EXHIBIT 10.13
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Adopted 12/20/94
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Effective 1/30/95
As Amended Through 12/14/00
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XXXXXXX SAV-O STORES, INC.
1995 EQUITY INCENTIVE PLAN
1. Purpose
The purpose of Xxxxxxx Sav-O Stores, Inc. 1995 Equity Incentive Plan (the
"Plan") is to promote the best interests of Xxxxxxx Sav-O Stores, Inc.
(the "Company") and its shareholders by providing key employees of the
Company and its Affiliates (as defined below) with an opportunity to
acquire a, or increase their, proprietary interest in the Company. It is
intended that the Plan will promote continuity of management and
increased incentive and personal interest in the welfare of the Company
by those key employees who are primarily responsible for shaping and
carrying out the long-range plans of the Company and securing the
Company's continued growth and financial success.
2. Definitions
(a) As used in the Plan, the following terms shall have the respective
meanings set forth below:
(b) "Affiliate" shall mean any entity that, directly or through one or
more intermediaries, is controlled by, controls, or is under common control
with, the Company.
(c) "Award" shall mean any Option, Stock Appreciation Right, Restricted
Stock or Performance Share granted under the Plan.
(d) "Award Agreement" shall mean any written agreement, contract or
other instrument or document evidencing any Award granted under the Plan.
(e) "Code" shall mean the Internal Revenue Code of 1986, as amended
from time to time.
(f) "Commission" shall mean the Securities and Exchange Commission.
(g) "Committee" shall mean the Stock Option Committee of the Board of
Directors of the Company (or any other committee thereof designated by such
Board to administer the Plan); provided, however, that the Committee is composed
of not less than two directors, each of whom is a "disinterested person" within
the meaning of Rule 16b-3.
(h) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
(i) "Fair Market Value" shall mean, with respect to any property
(including, without limitation, any Shares or other securities), the fair market
value of such property determined by such methods or procedures as shall be
established from time to time by the Committee.
(j) "Incentive Stock Option" shall mean an option granted under Section
6(a) of the Plan that is intended to meet the requirements of Section 422 of the
Code (or any successor provision thereto).
(k) "Key Employee" shall mean any officer or other key employee of the
Company or of any Affiliate who is responsible for or contributes to the
management, growth or profitability of the business of the Company or any
Affiliate as determined by the Committee in its discretion.
(l) "Non-Qualified Stock Option" shall mean an option granted under
Section 6(a) of the Plan that is not intended to be an Incentive Stock Option.
(m) "Option" shall mean an Incentive Stock Option or a Non-Qualified
Stock Option.
(n) "Participating Key Employee" shall mean a Key Employee designated
to be granted an Award under the Plan.
(o) "Performance Period" shall mean, in relation to Performance Shares,
any period for which a performance goal or goals have been established.
(p) "Performance Share" shall mean any right granted under Section 6(d)
of the Plan that will be paid out as a Share (which, in specified circumstances,
may be a Share of Restricted Stock).
(q) "Person" shall mean any individual, corporation, partnership,
association, joint-stock company, trust, unincorporated organization or
government or political subdivision thereof.
(r) "Released Securities" shall mean Shares of Restricted Stock with
respect to which all applicable restrictions have expired, lapsed or been
waived.
(s) "Restricted Securities" shall mean Awards of Restricted Stock or
other Awards under which issued and outstanding Shares are held subject to
certain restrictions.
(t) "Restricted Stock" shall mean any Share granted under Section 6(c)
of the Plan or, in specified circumstances, a Share paid in connection with a
Performance Share under Section 6(e) of the Plan.
(u) "Rule 16b-3" shall mean Rule 16b-3 as promulgated by the Commission
under the Exchange Act, or any successor rule or regulation thereto.
(v) "Shares" shall mean shares of common stock of the Company, $0.05
par value (including the associated Common Stock Purchase Rights), and such
other securities or property as may become subject to Awards pursuant to an
adjustment made under Section 4(b) of the Plan.
(w) "Stock Appreciation Right" shall mean any right granted under
Section 6(b) of the Plan.
3. Administration
The Plan shall be administered by the Committee; provided, however,
that if at any time the Committee shall not be in existence, the functions of
the Committee as specified in the Plan shall be exercised by those members of
the Board of Directors of the Company who qualify as "disinterested persons"
under Rule 16b-3. Subject to the terms of the Plan and applicable laws and
without limitation by reason of enumeration, the Committee shall have full
discretionary power and authority to: (i) designate Participating Key Employees;
(ii) determine the type or types of Awards to be granted to each Participating
Key Employee under the Plan; (iii) determine the number of Shares to be covered
by (or with respect to which payments, rights or other matters are to be
calculated in connection with) Awards granted to Participating Key Employees;
(iv) determine the terms and conditions of any Award granted to a Participating
Key Employee; (v) determine whether, to what extent and under what circumstances
Awards granted to Participating Key Employees may be settled or exercised in
cash, Shares, other securities, other Awards or other property, and the method
or methods by which Awards may be settled, exercised, canceled, forfeited or
suspended; (vi) determine whether, to what extent and under what circumstances
cash, Shares, other Awards and other amounts payable with respect to an Award
granted to Participating Key Employees under the Plan shall be deferred either
automatically or at the election of the holder thereof or of the Committee;
(vii) interpret and administer the Plan and any instrument or agreement relating
to, or Award made under, the Plan (including, without limitation, any Award
Agreement); (viii) establish, amend,
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suspend or waive such rules and regulations and appoint such agents as it shall
deem appropriate for the proper administration of the Plan; and (ix) make any
other determination and take any other action that the Committee deems necessary
or desirable for the administration of the Plan. Unless otherwise expressly
provided in the Plan, all designations, determinations, interpretations and
other decisions under or with respect to the Plan or any Award shall be within
the sole discretion of the Committee, may be made at any time or from time to
time, and shall be final, conclusive and binding upon all Persons, including the
Company, any Affiliate, any Participating Key Employee, any holder or
beneficiary of any Award, any shareholder and any employee of the Company or of
any Affiliate.
4. Shares Available for Award
(a) Shares Available. Subject to adjustment as provided in Section
4(b):
(i) Number of Shares Available. The number of Shares with
respect to which Awards may be granted under the Plan shall be
1,750,000, subject to the limitations set forth in Section 6(c)(i).
(ii) Accounting for Awards. The number of Shares covered by an
Award under the Plan, or to which such Award relates, shall be counted
on the date of grant of such Award against the number of Shares
available for granting Awards under the Plan.
(iii) Sources of Shares Deliverable Under Awards. Any Shares
delivered pursuant to an Award may consist, in whole or in part, of
authorized and unissued Shares or of treasury Shares.
(b) Adjustments. In the event that the Committee shall determine that
any dividend or other distribution (whether in the form of cash, Shares, other
securities or other property), recapitalization, stock split, reverse stock
split, reorganization, merger, consolidation, split-up, spin-off, combination,
repurchase or exchange of Shares or other securities of the Company, issuance of
warrants or other rights to purchase Shares or other securities of the Company,
or other similar corporate transaction or event affects the Shares such that an
adjustment is determined by the Committee to be appropriate in order to prevent
dilution or enlargement of the benefits or potential benefits intended to be
made available under the Plan, then the Committee may, in such manner as it may
deem equitable, adjust any or all of (i) the number and type of Shares subject
to the Plan and which thereafter may be made the subject of Awards under the
Plan; (ii) the number and type of Shares subject to outstanding Awards; and
(iii) the grant, purchase or exercise price with respect to any Award, or, if
deemed appropriate, make provision for a cash payment to the holder of an
outstanding Award; provided, however, in each case, that with respect to Awards
of Incentive Stock Options no such adjustment shall be authorized to the extent
that such authority would cause the Plan to violate Section 422(b) of the Code
(or any successor provision thereto); and provided further that the number of
Shares subject to any Award payable or denominated in Shares shall always be a
whole number.
5. Eligibility
Any Key Employee, including any executive officer or employee-director
of the Company or of any Affiliate, who is not a member of the Committee shall
be eligible to be designated a Participating Key Employee.
6. Awards
(a) Option Awards. The Committee is hereby authorized to grant Options
to Key Employees with the terms and conditions as set forth below and with such
additional terms and conditions, in either case not inconsistent with the
provisions of the Plan, as the Committee shall determine in its discretion.
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(i) Exercise Price. The exercise price per Share of an Option
granted pursuant to this Section 6(a) shall be determined by the
Committee; provided, however, that such exercise price shall not be
less than 100% of the Fair Market Value of a Share on the date of grant
of such Option.
(ii) Option Term. The term of each Option shall be fixed by
the Committee; provided, however, that in no event shall the term of
any Option exceed a period of ten years from the date of its grant.
(iii) Exercisability and Method of Exercise. An Option shall
become exercisable in such manner and within such period or periods and
in such installments or otherwise as shall be determined by the
Committee. The Committee also shall determine the method or methods by
which, and the form or forms, including, without limitation, cash,
Shares, other securities, other Awards, other property or any
combination thereof, having a Fair Market Value on the exercise date
equal to the relevant exercise price, in which payment of the exercise
price with respect to any Option may be made or deemed to have been
made.
(iv) Incentive Stock Options. The terms of any Incentive Stock
Option granted under the Plan shall comply in all respects with the
provisions of Section 422 of the Code (or any successor provision
thereto) and any regulations promulgated thereunder. Notwithstanding
any provision in the Plan to the contrary, no Incentive Stock Option
may be granted hereunder after the tenth anniversary of the adoption of
the Plan by the Board of Directors of the Company.
(b) Stock Appreciation Right Awards. The Committee is hereby authorized
to grant Stock Appreciation Rights to Key Employees. Subject to the terms of the
Plan and any applicable Award Agreement, a Stock Appreciation Right granted
under the Plan shall confer on the holder thereof a right to receive, upon
exercise thereof, the excess of (i) the Fair Market Value of one Share on the
date of exercise over (ii) the xxxxx xxxxx of the Stock Appreciation Right as
specified by the Committee, which shall not be less than 100% of the Fair Market
Value of one Share on the date of grant of the Stock Appreciation Right. Subject
to the terms of the Plan, the xxxxx xxxxx, term, methods of exercise, methods of
settlement (including whether the Participating Key Employee will be paid in
cash, Shares, other securities, other Awards, or other property or any
combination thereof), and any other terms and conditions of any Stock
Appreciation Right shall be as determined by the Committee in its discretion.
The Committee may impose such conditions or restrictions on the exercise of any
Stock Appreciation Right as it may deem appropriate, including, without
limitation, restricting the time of exercise of the Stock Appreciation Right to
specified periods as may be necessary to satisfy the requirements of Rule 16b-3.
(c) Restricted Stock Awards
(i) Issuance. The Committee is hereby authorized to grant
Awards of Restricted Stock to Key Employees; provided, however, that
the aggregate number of Shares of Restricted Stock granted under the
Plan to all Participating Key Employees as a group shall not exceed
75,000 Shares (such number of Shares subject to adjustment in
accordance with the terms of Section 4(b) hereof) of the total number
of Shares available for Awards under Section 4(a)(i).
(ii) Restrictions. Shares of Restricted Stock granted to
Participating Key Employees shall be subject to such restrictions as
the Committee may impose in its discretion (including, without
limitation, any limitation on the right to vote a Share of Restricted
Stock or the right to receive any dividend or other right or property),
which restrictions may lapse separately or in combination at such time
or times, in such installments or otherwise, as the Committee may deem
appropriate in its discretion.
(iii) Registration. Any Restricted Stock granted under the
Plan to a Participating Key Employee may be evidenced in such manner as
the Committee may deem appropriate in its discretion, including,
without limitation, book-entry registration or issuance of a stock
certificate or
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certificates. In the event any stock certificate is issued in respect
of Shares of Restricted Stock granted under the Plan to a Participating
Key Employee, such certificate shall be registered in the name of the
Participating Key Employee and shall bear an appropriate legend (as
determined by the Committee) referring to the terms, conditions and
restrictions applicable to such Restricted Stock.
(iv) Payment of Restricted Stock. At the end of the applicable
restriction period relating to Restricted Stock granted to a
Participating Key Employee, one or more stock certificates for the
appropriate number of Shares, free of restrictions imposed under the
Plan, shall be delivered to the Participating Key Employee or, if the
Participating Key Employee received stock certificates representing the
Restricted Stock at the time of grant, the legends placed on such
certificates shall be removed.
(v) Forfeiture. Except as otherwise determined by the
Committee in its discretion, upon termination of employment of a
Participating Key Employee (as determined under criteria established by
the Committee in its discretion) for any reason during the applicable
restriction period, all Shares of Restricted Stock still subject to
restriction shall be forfeited by the Participating Key Employee;
provided, however, that the Committee may, when it finds that a waiver
would be in the best interests of the Company, waive in whole or in
part any or all remaining restrictions with respect to Shares of
Restricted Stock held by a Participating Key Employee.
(d) Performance Share Awards
(i) Issuance. The Committee is hereby authorized to grant
Awards of Performance Shares to Key Employees.
(ii) Performance Goals and Other Terms. The Committee shall
determine in its discretion the Performance Period, the performance
goal or goals to be achieved during any Performance Period, the
proportion of payments, if any, to be made for performance between the
minimum and full performance levels, the restrictions applicable to
Shares of Restricted Stock received upon payment of Performance Shares
if Performance Shares are paid in such manner, and any other terms,
conditions and rights relating to a grant of Performance Shares.
Performance goals established by the Committee may be based on one or
more measures such as return on shareholders' equity, earnings or any
other standard or standards deemed relevant by the Committee, measured
internally or relative to other organizations and before or after
extraordinary items.
(iii) Rights and Benefits During the Performance Period. The
Committee may provide that, during a Performance Period, a
Participating Key Employee shall be paid cash amounts, with respect to
each Performance Share held by such Participating Key Employee, in the
same manner, at the same time, and in the same amount paid, as a cash
dividend on a Share. Participating Key Employees shall have no voting
rights with respect to Performance Shares held by them.
(iv) Adjustments with Respect to Performance Shares. Any other
provision of the Plan to the contrary notwithstanding, the Committee
may in its discretion at any time or from time to time adjust
performance goals (up or down) and minimum or full performance levels
(and any intermediate levels and proportion of payments related
thereto), adjust the manner in which performance goals are measured, or
shorten any Performance Period or waive in whole or in part any or all
remaining restrictions with respect to Shares of Restricted Stock
issued in payment of Performance Shares, if the Committee determines
that conditions, including but not limited to, changes in the economy,
changes in competitive conditions, changes in laws or governmental
regulations, changes in generally accepted accounting principles,
changes in the Company's accounting policies, acquisitions or
dispositions by the Company or its Affiliates, or the occurrence of
other unusual, unforeseen or extraordinary events, so warrant.
(v) Payment of Performance Shares. As soon as is reasonably
practicable following the end of the applicable Performance Period, one
or more certificates representing the number
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of Shares equal to the number of Performance Shares payable shall be
registered in the name of and delivered to the Participating Key
Employee; provided, however, that any Shares of Restricted Stock
payable in connection with Performance Shares shall, pending the
expiration, lapse, or waiver of the applicable restrictions, be
evidenced in the manner as set forth in Section 6(c)(iii) hereof.
(e) General
(i) No Consideration for Awards. Awards shall be granted to
Participating Key Employees for no cash consideration unless otherwise
determined by the Committee.
(ii) Award Agreements. Each Award granted under the Plan shall
be evidenced by an Award Agreement in such form (consistent with the
terms of the Plan) as shall have been approved by the Committee.
(iii) Awards May Be Granted Separately or Together. Awards to
Participating Key Employees under the Plan may be granted either alone
or in addition to, in tandem with, or in substitution for, any other
Award or any award granted under any other plan of the Company or any
Affiliate. Awards granted in addition to, or in tandem with, other
Awards, or in addition to, or in tandem with, awards granted under any
other plan of the Company or any Affiliate, may be granted either at
the same time as or at a different time from the grant of such other
Awards or awards.
(iv) Forms of Payment Under Awards. Subject to the terms of
the Plan and of any applicable Award Agreement, payments or transfers
to be made by the Company or an Affiliate upon the grant, exercise or
payment of an Award to a Participating Key Employee may be made in such
form or forms as the Committee shall determine, and may be made in a
single payment or transfer, in installments, or on a deferred basis, in
each case in accordance with rules and procedures established by the
Committee in its discretion. Such rules and procedures may include,
without limitation, provisions for the payment or crediting of interest
on installment or deferred payments.
(v) Limits on Transfer of Options. Except as otherwise
provided by the Board of Directors of the Company or the Committee,
Awards granted under the Plan shall not be transferable other than as
designated by the Participating Key Employee by will, or by the laws of
descent and distribution. In the event that the Board of Directors of
the Company or the Committee shall permit a transfer of an Award, any
permitted transferee shall have all of the rights of the Participating
Key Employee under the Plan, as if the Participating Key Employee had
retained such Award.
(vi) Term of Awards. Except as otherwise provided in the Plan,
the term of each Award shall be for such period as may be determined by
the Committee.
(vii) Rule 16b-3 Six-Month Limitations. To the extent required
in order to comply with Rule 16b-3 only, any equity security offered
pursuant to the Plan may not be sold for at least six months after
acquisition, except in the case of death or disability, and any
derivative security issued pursuant to the Plan shall not be
exercisable for at least six months, except in case of death or
disability of the holder thereof. Terms used in the preceding sentence
shall, for the purposes of such sentence only, have the meanings, if
any, assigned or attributed to them under Rule 16b-3.
(viii) Share Certificates; Representation. In addition to the
restrictions imposed pursuant to Section 6(c) and Section 6(d) hereof,
all certificates for Shares delivered under the Plan pursuant to any
Award or the exercise thereof shall be subject to such stop transfer
orders and other restrictions as the Committee may deem advisable under
the Plan or the rules, regulations and other requirements of the
Commission, Nasdaq Stock Market or any stock exchange or other market
upon which such Shares are then listed or traded, and any applicable
federal or state securities laws, and the Committee may cause a legend
or legends to be put on any such certificates to make appropriate
reference to such restrictions. The Committee may require each
Participating Key Employee, or other
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Person who acquires Shares under the Plan by means of an Award
originally made to a Participating Key Employee to represent to the
Company in writing that such Participating Key Employee, or other
Person is acquiring the Shares without a view to the distribution
thereof.
7. Amendment and Termination of the Plan; Correction of Defects and
Omissions
(a) Amendments to and Termination of the Plan. The Board of Directors
of the Company may at any time amend, alter, suspend, discontinue or terminate
the Plan; provided, however, that shareholder approval of any amendment of the
Plan shall also be obtained if otherwise required by: (i) the rules and/or
regulations promulgated under Section 16 of the Exchange Act (in order for the
Plan to remain qualified under Rule 16b-3); (ii) the Code or any rules
promulgated thereunder (in order to allow for Incentive Stock Options to be
granted under the Plan); or (iii) the quotation or listing requirements of the
Nasdaq National Market or any principal securities exchange or market on which
the Shares are then traded (in order to maintain the quotation or listing of the
Shares thereon). Termination of the Plan shall not affect the rights of
Participating Key Employees with respect to Awards previously granted to them,
and all unexpired Awards shall continue in force and effect after termination of
the Plan except as they may lapse or be terminated by their own terms and
conditions.
(b) Correction of Defects, Omissions and Inconsistencies. The Committee
may in its discretion correct any defect, supply any omission or reconcile any
inconsistency in any Award or Award Agreement in the manner and to the extent it
shall deem desirable to carry the Plan into effect.
8. General Provisions
(a) No Rights to Awards. No Key Employee, Participating Key Employee or
other Person shall have any claim to be granted any Award under the Plan, and
there is no obligation for uniformity of treatment of Key Employees,
Participating Key Employees or holders or beneficiaries of Awards under the
Plan. The terms and conditions of Awards need not be the same with respect to
each Participating Key Employee.
(b) Withholding. No later than the date as of which an amount first
becomes includible in the gross income of a Participating Key Employee for
federal income tax purposes with respect to any Award under the Plan, the
Participating Key Employee shall pay to the Company, or make arrangements
satisfactory to the Company regarding the payment of, any federal, state, local
or foreign taxes of any kind required by law to be withheld with respect to such
amount. Unless otherwise determined by the Committee, withholding obligations
arising with respect to Awards to Participating Key Employees under the Plan may
be settled with Shares previously owned by the Participating Key Employee;
provided, however, that the Participating Key Employee may not settle such
obligations with Shares that are part of, or are received upon exercise of, the
Award that gives rise to the withholding requirement. The obligations of the
Company under the Plan shall be conditional on such payment or arrangements, and
the Company and any Affiliate shall, to the extent permitted by law, have the
right to deduct any such taxes from any payment otherwise due to the
Participating Key Employee. The Committee may establish such procedures as it
deems appropriate for the settling of withholding obligations with Shares,
including, without limitation, the establishment of such procedures as may be
necessary to satisfy the requirements of Rule 16b-3.
(c) No Limit on Other Compensation Arrangements. Nothing contained in
the Plan shall prevent the Company or any Affiliate from adopting or continuing
in effect other or additional compensation arrangements, and such arrangements
may be either generally applicable or applicable only in specific cases.
(d) Rights and Status of Recipients of Awards. The grant of an Award
shall not be construed as giving a Participating Key Employee the right to be
retained in the employ of the Company or any Affiliate. Further, the Company or
any Affiliate may at any time dismiss a Participating Key Employee from
employment, free from any liability, or any claim under the Plan, unless
otherwise expressly provided in the Plan or in any Award Agreement. Except for
rights accorded under the Plan and under any applicable Award
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Agreement, Participating Key Employees shall have no rights as holders of Shares
as a result of the granting of Awards hereunder.
(e) Unfunded Status of the Plan. Unless otherwise determined by the
Committee, the Plan shall be unfunded and shall not create (or be construed to
create) a trust or a separate fund or funds. The Plan shall not establish any
fiduciary relationship between the Company or the Committee and any
Participating Key Employee or other Person. To the extent any Person holds any
right by virtue of a grant under the Plan, such right (unless otherwise
determined by the Committee) shall be no greater than the right of an unsecured
general creditor of the Company.
(f) Governing Law. The validity, construction and effect of the Plan
and any rules and regulations relating to the Plan shall be determined in
accordance with the internal laws of the State of Wisconsin and applicable
federal law.
(g) Severability. If any provision of the Plan or any Award Agreement
or any Award is or becomes or is deemed to be invalid, illegal or unenforceable
in any jurisdiction, or as to any Person or Award, or would disqualify the Plan,
any Award Agreement or any Award under any law deemed applicable by the
Committee, such provision shall be construed or deemed amended to conform to
applicable laws, or if it cannot be so construed or deemed amended without, in
the determination of the Committee, materially altering the intent of the Plan,
any Award Agreement or the Award, such provision shall be stricken as to such
jurisdiction, Person or Award, and the remainder of the Plan, any such Award
Agreement and any such Award shall remain in full force and effect.
(h) No Fractional Shares. No fractional Shares or other securities
shall be issued or delivered pursuant to the Plan, any Award Agreement or any
Award, and the Committee shall determine (except as otherwise provided in the
Plan) whether cash, other securities or other property shall be paid or
transferred in lieu of any fractional Shares or other securities, or whether
such fractional Shares or other securities or any rights thereto shall be
canceled, terminated or otherwise eliminated.
(i) Headings. Headings are given to the Sections and subsections of the
Plan solely as a convenience to facilitate reference. Such headings shall not be
deemed in any way material or relevant to the construction or interpretation of
the Plan or any provision thereof.
9. Effective Date of the Plan
The Plan shall be effective as of January 30, 1995 subject to
shareholder approval of the Plan within 12 months following the date of adoption
of the Plan by the Board of Directors, and all Awards granted under the Plan
prior to the date of shareholder approval shall be subject to such approval and
the effective date of such Award grants shall be deemed to be the date of such
shareholder approval.
10. Term of the Plan
No Award shall be granted under the Plan following the tenth
anniversary of its effective date. However, unless otherwise expressly provided
in the Plan or in an applicable Award Agreement, any Award theretofore granted
may extend beyond such date and, to the extent set forth in the Plan, the
authority of the Committee to amend, alter, adjust, suspend, discontinue or
terminate any such Award, or to waive any conditions or restrictions with
respect to any such Award, and the authority of the Board of Directors of the
Company to amend the Plan, shall extend beyond such date.
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