ex10_4.htm


    
      

    

    EXHIBIT
10.4

     

    AMENDMENT

     

    TO
THE

     

    BIG
LOTS, INC. 1996 PERFORMANCE INCENTIVE PLAN

     

    


    This
Amendment to the Big Lots, Inc. 1996 Performance Incentive Plan (“Amendment”) is
made effective as of March 4, 2008 (“Effective Date”).

    


    WHEREAS,
Big Lots, Inc. (“Company”) adopted the Big Lots, Inc. 1996 Performance Incentive
Plan (“Plan”);

    


    WHEREAS,
the Plan terminated by its terms on December 31, 2005, and no awards have been
issued under the Plan since its termination;

    


    WHEREAS,
pursuant to Section 6 of the Plan, outstanding awards granted before the
termination of the Plan continue to be effective and are governed by the Plan
until they expire by their terms, as provided in their respective Award
Agreements;

    


    WHEREAS,
the Plan permitted the Company to issue awards of Stock Options, Performance
Units, Restricted Stock and Stock Equivalent Units;

    


    WHEREAS,
the Company issued only awards of Stock Options and Restricted Stock pursuant to
the Plan;

    


    WHEREAS,
Section 409A was added to the Internal Revenue Code of 1986, as amended
(“Code”), effective January 1, 2005, and the final regulations under Section
409A of the Code become effective on January 1, 2009;

    


    WHEREAS,
the Financial Accounting Standards Board issued Statement of Financial
Accounting Standards No. 123(R), Share-Based Payment (“FAS
123R”), under which any change to the terms of an equity award constitutes a
modification that requires the Company to calculate the incremental fair value
of the modified award (i.e., the excess of the fair value of the award
immediately after the modification over its fair value immediately before the
modification), reassess the probability of vesting, and recognize any
incremental compensation cost over the remaining service period (“Modification
Accounting”);

    


    WHEREAS,
pursuant to Section 4 of the Plan, the Committee has the discretion to make
equitable and proportionate adjustments to awards previously issued under the
Plan (“Equitable Adjustment”) upon any stock dividend, stock split,
extraordinary dividend, combination or exchange of shares, merger,
reorganization, consolidation, recapitalization, spin-off or other distribution
of Company assets to shareholders, or any other change affecting the number of
shares or the Company’s capitalization (“Triggering Event”);


    
      
         


      

      
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    WHEREAS,
under FAS 123R, an Equitable Adjustment would not require the Company to
undertake Modification Accounting if such Equitable Adjustment was required to
be made by the Committee upon the occurrence of a Triggering Event;

    


    WHEREAS,
the Company is not presently contemplating a reorganization, recapitalization,
merger, spin-off, share dividend or other equity restructuring
event;

    


    WHEREAS, the Company desires to allow
all Plan participants one (1) year from the date of their termination of
employment to exercise all vested Options or SARs (but no later than the end of
the fixed term of the Option or SAR);

    


    WHEREAS, pursuant to Section 23.7
of the Plan, the Compensation Committee (“Committee”) of the Board of Directors
of the Company is authorized to amend the Plan as it deems necessary or
appropriate to better achieve the purposes of the Plan, except that no amendment
shall be made without the approval of the Company’s shareholders if such
amendment would (i) increase the total number of shares available for issuance
under the Plan, or (ii) cause the Plan not to comply with Rule 16b-3 under the
Securities Exchange Act of 1934 or any successor rule;

    


    WHEREAS, the Committee believes it is in the best
interest of the Company and
desires to amend the
Plan (i) to comply with the requirements of Section 409A of the Code, (ii) to mandate that Equitable Adjustments be
made upon the occurrence of a Triggering Event, and (iii) to allow participants one
(1) year after termination of employment to exercise the participant’s vested
Options and SARs; and

    


    WHEREAS, such amendments are not prohibited by the Plan, such amendments do not constitute
material modifications under Section 162(m) of the Internal Revenue Code or the
applicable rules of the New York Stock Exchange, and such amendments do not
require shareholder approval.

    


    NOW, THEREFORE, the Company, acting through the Committee,
amends the Plan as follows:

    


    
      	
              1.

            	
              Defined
      Terms; References.  Capitalized
      terms used but not otherwise defined in this Amendment shall have the
      respective meanings ascribed to them in the Plan.  Each
      reference to “hereof,” “hereunder,” “herein,” “hereby,” and similar
      references contained in the Plan, and each reference to “the Plan” and
      similar references contained in the Plan, shall refer to the Plan as and
      to the extent amended hereby.

            


    

    


    
      	
              2.

            	
              Amendment
      of Plan.

            


    

    


    
      	
               
      

            	
              a.

            	
              The
      second paragraph of Section 4 of the Plan is hereby deleted in its
      entirety and restated as follows:

            


    

    


    In the
event of any stock dividend, stock split, extraordinary dividend, combination or
exchange of shares, merger, reorganization, consolidation, recapitalization,
spin-off or other distribution (other than normal cash dividends) of Company
assets to stockholders, or any other similar change affecting the number of
shares or the Company’s capitalization, the Committee shall make equitable
adjustments to reflect such change with respect to: (i) aggregate number of
shares that may be issued under the Plan; (ii) the number of shares relating to
each outstanding Award made or assumed under the Plan; and (iii) the price per
share for any outstanding stock options awarded or assumed under the
Plan.  If an equitable adjustment cannot be made or the Committee
determines that future adjustments are necessary, the Committee shall make such
equitable adjustment under the Plan as it determines will fairly preserve the
intended benefits of the Plan to the participants and the Company.  In
addition, any shares issued by the Company through the assumption or
substitution of outstanding securities or commitments to issue securities from
an acquired company or other entity shall not reduce the shares available for
issuance under the Plan.  Notwithstanding the foregoing, an adjustment
pursuant to this Section 4 shall be made only to the extent such adjustment
complies with, to the extent applicable, Sections 409A and 424 of the
Code.


    
      
         


      

      
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              b.

            	
              The
      second and third paragraphs of Section 12 of the Plan are hereby deleted
      in their entirety and restated as
follows:

            


    

    


    If a
participant to whom an Option or SAR shall have been granted shall terminate
employment, die or become permanently and totally disabled within the meaning of
Section 22(e)(3) of the Code while in the employ of the Corporation, such Option
or SAR may be exercised by the participant or the participant’s personal
representative only during a period not exceeding one (1) year after the date of
the participant’s termination of employment, death or permanent and total
disability (but no later than the end of the fixed term of the Option or SAR)
and only for the number of shares of Common Stock for which the Option or SAR
could have been exercised at the time the participant terminated employment,
died, or became permanently and totally disabled.

    


    
      	
               
      

            	
              c.

            	
              Section
      14 of the Plan is hereby deleted in its
  entirety.

            


    

    


    
      	
              
              

            	
              d.

            	
              The
      following Sections 23.9 and 23.10 are hereby added to the
      Plan:

            


    

     

    23.9  Six-Month Distribution
Delay. If a participant is a “specified employee,” within the meaning of Section
409A of the Code and as determined under the Company’s policy for determining
specified employees, on the date of his or her separation from service (within
the meaning of Section 409A of the Code), all awards eligible to be paid,
distributed or settled, as applicable, at such time that are subject to Section
409A of the Code shall not be paid, distributed or settled, as applicable, until
the first business day of the seventh month following the date of the separation
from service (or, if earlier, the participant’s death).  This payment
shall include the cumulative amount of any amounts that could not be paid or
provided during such period.

     

    23.10  Section 409A of the
Code.  It is intended that this Plan be exempt from the requirements
of Section 409A of the Code and the Treasury Regulations promulgated thereunder
(and any subsequent notices or guidance issued by the Internal Revenue Service),
and this Plan will be interpreted, administered and operated
accordingly.  Nothing herein shall be construed as an entitlement to
or guarantee of any particular tax treatment to a Participant.

     

    
      
         

      

      
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              3.

            	
              Effectiveness
      of Amendment.  This
      Amendment shall become effective as of the Effective Date.  Upon
      and to the extent of the effectiveness hereof, the Plan shall be amended
      hereby in accordance with the terms hereof, and this Amendment and the
      Plan shall hereafter be one agreement and any reference to the Plan in any
      document, instrument, or agreement shall hereafter mean and include the
      Plan as amended hereby.  In the event of irreconcilable
      inconsistency between the terms or provisions hereof and the terms or
      provisions of the Plan, the terms and provisions hereof shall
      control.  Except as specifically amended by the provisions
      hereof, the Plan shall remain in full force and
  effect.

            


    

    


     

    IN WITNESS WHEREOF, this Amendment is
hereby adopted by the Company.

     

    


    
      	 
      	
              COMPENSATION
      COMMITTEE

            
	 
      	
              OF
      THE BOARD OF DIRECTORS OF

            
	 
      	
              BIG
      LOTS, INC.

            
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
              By:
      

            	
              /s/ Dennis B. Tishkoff

            
	 
      	 
      	 
      
	 
      	
              Name:
      

            	
              Dennis B. Tishkoff

            
	 
      	 
      	 
      
	 
      	
              Title:
      

            	
              Chairman

            


    

    


     

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