ex10_1.htm


    
      

    

    Exhibit
10.1



    
      BIG
LOTS

       

      
        
          

        

      

    

     

    2005
LONG-TERM INCENTIVE PLAN

    


    


    AMENDED
AND RESTATED

    EFFECTIVE
MAY 29, 2008


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    BIG
LOTS

    2005
LONG-TERM INCENTIVE PLAN

    


     

    ARTICLE
I

     

    ESTABLISHMENT
AND PURPOSE

     

    1.1 Restatement. The Plan
was initially adopted on the Effective Date and is hereby amended and restated
in its entirety effective on the Restatement Date.

     

    1.2 Purposes. The Plan is
intended to promote the Company’s long-term financial success and materially
increase shareholder value by motivating performance through incentive
compensation. The Plan also is intended to encourage Participants to acquire
ownership interests in the Company, attract and retain talented associates and
enable Participants to participate in the Company’s long-term growth and
financial success.

     

    ARTICLE
II

     

    DEFINITIONS

     

    When used
in the Plan, the following terms have the meaning given to them in this Article
II unless another meaning is expressly provided elsewhere in the Plan or
required by the plain context in which it is used. When applying the terms
defined in this Article II and other terms used throughout the Plan, the form of
any term, phrase or word will, as appropriate, include any and all of its
forms.

     

    2.1 “Affiliate” means (1)
in the case of an ISO, a “parent corporation” or a “subsidiary corporation” of
the Company, as those terms are defined in Code §§424(e) and (f), respectively;
and (2) in all other cases, any other entity (other than the Company) regardless
of its form that directly or indirectly controls, is controlled by or is under
common control with, the Company within the meaning of Code §414(b), as modified
by Section 409A of the Code.

     

    2.2 “Award” means any
Option, Stock Appreciation Right, Restricted Stock, Restricted Stock Unit or
Performance Unit granted to a Participant under the Plan. At the Committee’s
discretion, an Award may be granted as a Performance-Based Award.

     

    2.3 “Award Agreement”
means any written or electronic agreement granting an Award to a Participant.
Each Award Agreement will specify the Grant Date and describe the terms and
conditions imposed on the Award.

     

    2.4 “Beneficiary” means
any person (or entity), who (or which) has been designated by a Participant in
his or her most recent written beneficiary designation filed with the Committee
to receive the compensation or to exercise the rights that are due or
exercisable at the Participant’s death. If there is no designated beneficiary,
the term means any person or entity entitled by will or the applicable laws of
descent and distribution to receive such compensation.

     

    2.5 “Board of Directors”
or “Board”
means the Company’s board of directors.

     

    2.6 “Change in Control”
means any one or more of the following events:

     

    (1) Any
person or group (as defined for purposes of Section 13(d) of the Exchange Act)
becomes the beneficial owner of, or has the right to acquire (by contract,
option, warrant, conversion of convertible securities or otherwise), 20 percent
or more of the outstanding equity securities of the Company entitled to vote for
the election of directors;

     

    (2) A
majority of the members of the Board of Directors then in office is replaced
within any period of two years or less by directors not nominated and approved
by a majority of the directors in office at the beginning of such period (or
their successors so nominated and approved), or a majority of the Board of
Directors at any date consists of persons not so nominated and approved;
or

     

    (3) The
shareholders of the Company approve an agreement to merge or consolidate with
another corporation or an agreement to sell or otherwise dispose of all or
substantially all of the Company’s assets (including, without limitation, a plan
of liquidation).

     

    Provided,
however, the other provisions of this Section 2.6 notwithstanding, the term
“Change in Control” shall not mean any merger, consolidation, reorganization, or
other transaction in which the Company exchanges or offers to exchange
newly-issued or treasury Common Shares representing 20 percent or more, but less
than 50 percent, of the outstanding equity securities of the Company entitled to
vote for the election of directors, for 51 percent or more of the outstanding
equity securities entitled to vote for the election of at least the majority of
the directors of a corporation other than the Company or an Affiliate (the
“Acquired Corporation”), or for all or substantially all of the assets of the
Acquired Corporation.

     

    
      As
amended and restated effective May 29, 2008.

       

    

    
      
         


      

      
         


        
          

        

      

      
         


      

    

     

    2.7 “Code” means the
Internal Revenue Code of 1986, as amended from time to time, and any successor,
along with relevant rules, regulations and authoritative interpretations the
Internal Revenue Service issues.

     

    2.8 “Committee” means the
Compensation Committee of the Board or such other Board committee to which the
Board assigns the responsibility of administering the Plan. The Committee shall
consist of at least three members of the Board, each of whom may serve on the
Committee only if the Board determines that he or she (1) is a “Non-employee
Director” for purposes of Rule 16b-3 under the Exchange Act, (2) satisfies the
requirements of an “outside director” for purposes of Code §162(m) and (3)
qualifies as “independent” in accordance with New York Stock Exchange listing
standards.

     

    2.9 “Common Shares” means
shares of the Company’s common shares, $0.01 par value (as such par value may be
amended from time to time), whether presently or hereafter issued, and any other
stock or security resulting from adjustment thereof as described hereinafter, or
the Common Shares of any successor to the Company which is designated for the
purpose of the Plan.

     

    2.10
“Company” means
Big Lots, Inc., an Ohio corporation.

     

    2.11 “Covered Employee”
means a Participant whose compensation in the year of the expected payment of an
Award will be subject to Code §162(m).

     

    2.12 “Disability”
means:

     

    (1) With
respect to ISOs, as that term is defined in Code §22(e)(3);

     

    (2) With
respect to any Award that is subject to Code §409A, the Participant is (a)
unable to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in
death or can be expected to last for a continuous period of not less than 12
months, (b) by reason of any readily determinable physical or mental impairment
which can be expected to result in death or can be expected to last for a
continuous period of not less than 12 months, receiving income replacement
benefits for a period of at least three months under an accident and health plan
covering employees of the Participant’s employer, or (c) determined to be
totally disabled by the Social Security Administration or the Railroad
Retirement Board; and

     

    (3) With
respect to any other Award, a physical or mental condition that, for more than
six consecutive months, renders the Participant incapable, with reasonable
accommodation, of performing his or her assigned duties on a full-time
basis.

     

    2.13
“Effective
Date” means May 17, 2005, the date upon which the Plan was initially
approved by the Company’s shareholders.

     

    2.14 “Exchange Act” means
the Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.

     

    2.15 “Exercise Price” means
the price, if any, a Participant must pay to exercise an Award or the amount
upon which the value of an Award is based.

     

    2.16 “Fair Market Value”
means:

     

    (1) If
the Common Shares are readily tradable on an established securities market, the
average of the opening and closing trading prices of a Common Share on any date
for which it is relevant or, if a relevant date occurs on a day other than a
trading day, on the next trading day; and

     

    (2) If
the Common Shares are not readily tradable on an established securities market,
the value determined by the Committee through the reasonable application of a
reasonable method, taking into account all information material to the value of
the Company, within the meaning of Code §409A and the Treasury Regulations
promulgated thereunder.

     

    
      As
amended and restated effective May 29, 2008.


    

    
      
         


      

      
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    2.17 “Grant Date” means the
later of (1) the date the Committee establishes the terms of an Award or (2) the
date specified in the Award Agreement. In no event may the Grant Date be earlier
than the Effective Date.

     

    2.18 “Incentive Stock
Option” or “ISO” means any Option
granted under the Plan that is designated as an “incentive stock option” within
the meaning of Code §422.

     

    2.19 “Non-Qualified Stock
Option” or “NQSO” means an Option
granted under the Plan that (1) is not designated as an ISO or (2) an ISO that,
for any reason other than exercise, ceased to be an ISO.

     

    2.20 “Option” means a right
to purchase Common Shares granted to a Participant in accordance with Article
VI. An Option may be either an ISO or NQSO.

     

    2.21 “Option Period” means
the period during which an Option may be exercised.

     

    2.22 “Participant” means a
person who satisfies the eligibility conditions of Article V and to whom an
Award has been granted by the Committee under the Plan.

     

    2.23 “Performance-Based
Award” means an Award granted subject to the terms of Article
X.

     

    2.24 “Performance Period”
means the period (which, with respect to a Covered Employee, may be no shorter
than a fiscal quarter of the Company) established by the Committee over which
the Committee measures whether or not Performance-Based Awards have been
earned.

     

    2.25 “Performance Unit”
means a right granted subject to the terms and conditions established by the
Committee under Article IX.

     

    2.26
“Plan” means
the Big Lots 2005 Long-Term Incentive Plan, as herein amended and restated and
as may be further amended from time to time.

     

    2.27
“Restatement
Date” means May 29, 2008, the date of the Company’s 2008 Annual Meeting
of Shareholders.

     

    2.28 “Restricted Stock”
means Common Shares granted subject to the terms and conditions established by
the Committee under Section 8.1.

     

    2.29 “Restricted Stock
Unit” means an Award granted subject to the terms and conditions
established by the Committee under Section 8.2.

     

    2.30 “Restriction Period”
means the period over which the Committee measures whether terms and conditions
(such as forfeitures) placed on Restricted Stock or Restricted Stock Units have
been met.

     

    2.31 “Rule 16b-3” means
Rule 16b-3, as from time to time in effect and applicable to the Plan and
Participants, issued by the Securities and Exchange Commission under Section 16
of the Exchange Act or any successor rule.

     

    2.32 “Stock Appreciation
Right” or “SAR” means a right
granted to a Participant to receive, either in cash or Common Shares or a
combination thereof, the appreciation in the value of a Common Share over a
certain period of time. SARs are granted under Article VII.

     

    2.33 “Termination of
Employment” means the occurrence of any act or event that causes a
Participant to cease being an employee of the Company or of any Affiliate,
including, without limitation, death, Disability, dismissal, severance at the
election of the Participant, or severance as a result of the discontinuance,
liquidation, sale, or transfer by the Company or its Affiliates of a business
owned or operated by the Company or any Affiliate. With respect to any person
who is not an employee of the Company or any Affiliate (such as an eligible
consultant as determined in accordance with Article V), the Award Agreement
shall establish what act or event shall constitute a Termination of Employment
for purposes of the Plan. A Termination of Employment shall occur with respect
to an employee who is employed by an Affiliate if the Affiliate shall cease to
be an Affiliate and the Participant shall not immediately thereafter become an
employee of the Company or an Affiliate.

     

    2.34 “Vesting Acceleration
Feature” means a term in an Award Agreement that, upon achievement and
certification of performance goals set forth in Section 10.3, causes the lapse
of restrictions imposed on Restricted Stock or Restricted Stock Units to
accelerate.

     

    
      As
amended and restated effective May 29, 2008.

       

    

    
      
         


      

      
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    ARTICLE
III

     

    ADMINISTRATION

     

    3.1 Committee Duties. The
Committee is granted all powers appropriate and necessary to administer the
Plan. Consistent with the Plan’s purpose, the Committee may adopt, amend and
rescind rules and regulations relating to the Plan to the extent appropriate to
protect the Company’s interests and the Plan’s purpose and has complete
discretion to make all other decisions necessary or advisable for the
administration and interpretation of the Plan. Any action by the Committee will
be final, binding and conclusive for all purposes and upon all Participants and
Beneficiaries. Also, the Committee (or the Board, as appropriate) may revoke or
amend the Plan and Award Agreements without any additional consideration to
affected Participants, to the extent necessary to avoid penalties under Code
§409A, even if that revocation or those amendments reduce, restrict or eliminate
rights granted under the Plan or Award Agreement (or both) before the
amendments; provided, however, that the Company or the Committee may (but
neither is required to) reimburse an affected Participant for any diminution in
the value of an Award associated with any such change.

     

    3.2 Restrictions on
Reload/Repricing. Regardless of any other provision of the Plan (1)
without the prior approval of the shareholders, neither the Company nor the
Committee may reprice or grant any Award in connection with the cancellation of
a previously granted Award if the Exercise Price of the later granted Award is
less than the Exercise Price of the earlier granted Award and (2) no Participant
will be entitled (and no Committee discretion may be exercised to extend to any
Participant) an automatic grant of additional Awards in connection with the
exercise of an Option or otherwise.

     

    3.3 Committee Actions.
The Committee may authorize any one or more of its members or an officer of the
Company to execute and deliver documents on behalf of the Committee. The
Committee may allocate among one or more of its members, or may delegate to one
or more of its agents, such duties and responsibilities as it determines.
However, the Committee may not delegate any duties required to be administered
by the Committee to comply with Code §162(m) or any applicable law.

     

    ARTICLE
IV

     

    SHARES
SUBJECT TO PLAN

     

    4.1 Number of Shares.
Subject to Section 4.7, the total number of Common Shares reserved and available
for distribution pursuant to Awards shall be the sum of (1) 1,250,000 newly
issued Common Shares, plus (2) any remaining Common Shares available for
issuance under the Company’s 1996 Performance Incentive Plan on December 30,
2005, plus (3) an additional .75 percent of the total number of issued Common
Shares (including treasury shares) as of the start of each of the Company’s
fiscal years (currently comprised of a 52/53-week period which ends on the
Saturday nearest to January 31) that the Plan is in effect (including Common
Shares exchanged when exercising Options), plus (4) effective on the Restatement
Date, 2,100,000 newly issued Common Shares. Such shares may consist, in whole or
in part, of authorized and unissued Common Shares or Common Shares acquired from
a third party. In any event, the total number of Common Shares underlying Awards
granted under the Plan, the 1996 Performance Incentive Plan, the Big Lots, Inc.
Executive Stock Option and Stock Appreciation Rights Plan and the Director Stock
Option Plan shall not exceed 15 percent of the total Common Shares issued and
outstanding (including treasury shares) as of any date.

     

    4.2 Unfulfilled Awards.
Any Common Shares subject to an Award that, for any reason, is forfeited,
cancelled, terminated or relinquished may again be the subject of an Award.
Notwithstanding the foregoing, the following shares shall not become available
again for issuance as an Award: (1) Common Shares tendered by Participants as
full or partial payment to the Company upon exercise of Awards granted under the
Plan; (2) Common Shares reserved for issuance upon grant of SARs, to the extent
the number of reserved shares exceeds the number of shares actually issued upon
exercise of the SARs, and (3) Common Shares withheld by, or otherwise remitted
to, the Company to meet the obligations described in Section 13.4.

     

    4.3 Restrictions on Common
Shares. Common Shares issued upon exercise of an Award shall be subject
to the terms and conditions specified herein and to such other terms and
conditions as the Committee, in its discretion, may determine or provide in the
Award Agreement. The Company shall not be required to issue or deliver any
certificates for Common Shares, cash or other property prior to (1) the
completion of any registration or qualification of such shares under federal,
state or other law or any ruling or regulation of any government body which the
Committee determines to be necessary or advisable; and (2) the satisfaction of
any applicable withholding obligation in order for the Company or an Affiliate
to obtain a deduction or discharge its legal obligation with respect to the
exercise of an Award. The Company may cause any certificate (or other
representation of title) for any Common Shares to be delivered to be properly
marked with a legend or other notation reflecting any limitations on transfer of
such Common Shares as provided in the Plan or as the Committee may otherwise
require. The Committee may require any person exercising an Award to make such
representations and furnish such information as the Committee may consider
appropriate in connection with the issuance or delivery of the Common Shares in
compliance with applicable law or otherwise.

     

    
      As
amended and restated effective May 29, 2008.

       

    

    
      
         


      

      
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    4.4 Restrictions on Full Value
Awards. The maximum aggregate number of shares of Restricted Stock,
Restricted Stock Units and Performance Units that may be issued under the Plan
shall not exceed 33-1/3 percent of all awards granted pursuant to the
Plan.

     

    4.5 ISO Restriction. The
maximum aggregate number of shares that may be granted under the Plan through
the exercise of ISOs shall be five million (5,000,000).

     

    4.6 Shareholder Rights.
Except as expressly provided in the Plan or Award Agreement, no Participant will
have any rights as a shareholder with respect to Common Shares subject to an
Award until, after proper transfer of the Common Shares subject to the Award or
other action required, the shares have been recorded on the Company’s official
shareholder records as having been issued and transferred. Upon grant of
Restricted Stock, or exercise of an Option or a SAR, or payment of any other
Award or any portion thereof to be made in Common Shares, the Company will have
a reasonable period (but not more than two and one-half months after the
exercise or settlement date) in which to issue and transfer the shares, and the
Participant will not be treated as a shareholder for any purpose whatsoever
prior to such issuance and transfer, except as provided in the Plan or Award
Agreement. Unless specifically provided in the Plan or Award Agreement, no
adjustment shall be made for cash dividends or other rights for which the record
date is prior to the date such shares are recorded as issued and transferred in
the Company’s official shareholder records.

     

    4.7 Effect of Certain
Changes. In the event of any Company share dividend, share split,
combination or exchange of Common Shares, recapitalization or other similar
change in the capital structure of the Company, corporate separation, or
division of the Company (including, but not limited to, a split-up, spin-off,
split-off or distribution to Company shareholders other than a normal cash
dividend), reorganization, rights offering, a partial or complete liquidation,
or any other corporate transaction, or event involving the Company and having an
effect similar to any of the foregoing, the Committee shall make equitable
adjustments or substitutions as described below in this Section 4.7. The
adjustments or substitutions may relate to the number of Common Shares available
for Awards under the Plan, the number of Common Shares covered by outstanding
Awards, the exercise price per share of outstanding Awards and any other
characteristics or terms of the Awards as the Committee deems necessary or
appropriate to reflect equitably the effects of such changes to the
Participants. Any adjustment or substitution made pursuant to this Section 4.7
shall be made in accordance with the requirements of Code §§ 409A and 424, to
the extent applicable.

     

    ARTICLE
V

     

    ELIGIBILITY

     

    5.1 Eligibility. In the
Committee’s discretion, any salaried employee, consultant or advisor to the
Company or its Affiliates or any member of the Board may be a Participant,
provided such eligibility would not jeopardize the Plan’s compliance with Rule
16b-3 under the Exchange Act or any successor rule. For purposes of the Plan, a
consultant or advisor shall be eligible only if bona fide services are being
rendered pursuant to a valid written agreement between the consultant or advisor
and the Company, and the services rendered are not in connection with the offer
or sale of securities in a capital-raising transaction and do not directly or
indirectly promote or maintain a market for the Company’s securities. However,
no Award subject to Code §409A may be granted to any person who is performing
services for an entity that is not an Affiliate.

     

    5.2 Conditions of
Participation. By accepting an Award, each Participant agrees in his or
her own behalf and in behalf of his or her Beneficiaries (1) to be bound by the
terms of the Award Agreement and the Plan and (2) that the Committee (or the
Board) may amend the Plan and the Award Agreement without any additional
consideration to the extent necessary to avoid penalties arising under Code
§409A, even if those amendments reduce, restrict or eliminate rights or Awards
granted under the Plan or an Award Agreement (or both) before those amendments;
provided, however, that the Company or the Committee may (but neither is
required to) reimburse an affected Participant or Beneficiary for any diminution
in the value of an Award associated with any such change.

     

    
      As
amended and restated effective May 29, 2008.

       

    

    
      
         


      

      
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    ARTICLE
VI

     

    OPTIONS

     

    6.1 Grant of Options.
Except as provided in Section 4.5, the Committee may grant Options to
Participants at any time during the term of the Plan. However:

     

    (1) No Option intended
to be an ISO may be granted more than seven years after the Effective
Date.

     

    (2) Only a person who
is a common-law employee of the Company or an Affiliate on the Grant Date, may
be granted an ISO. Any Option that is not designated as an ISO or which does not
qualify as an ISO will be a NQSO.

     

    6.2 Terms and Conditions.
Options shall be subject to the terms and conditions specified in the Award
Agreement, including:

     

    (1) Exercise Price. The
Exercise Price shall not be less than (a) 100 percent of Fair Market Value on
the Grant Date or (b) 110 percent of Fair Market Value on the Grant Date in the
case of an ISO granted to an individual (a “10 percent Owner”) who owns or who
is deemed to own shares possessing more than 10 percent of the total combined
voting power of all classes of shares of the Company or any Affiliate, as
determined under Code §422.

     

    (2) Option Period. The
Option Period of each Option will be specified in the Award Agreement, provided
that no Option shall be exercisable fewer than six months after the Grant Date
or more than 10 years after the Grant Date (five years in the case of an ISO
granted to a 10 percent Owner).

     

    (3) Exercisability.
Subject to Article X, an Option shall be exercisable under terms specified in
the Award Agreement; provided, however, that an Option (which is not a
substitution under Section 13.9) shall not permit more than one-third of any
Common Shares thereunder to be purchased before each of the first three
anniversary dates after its Grant Date. The Committee may provide in the Award
Agreement for an accelerated exercise of all or part of an Option upon specified
events or conditions, including one or more of the performance goals listed in
Section 10.3. Also, the Committee may accelerate the exercisability of all or
part of any Option at any time. The aggregate Fair Market Value (determined at
the Grant Date) of the Common Shares subject to ISOs that are exercisable by a
Participant for the first time during any calendar year (under all plans of the
Company and its Affiliates) shall not exceed $100,000, calculated under Code
§422.

     

    (4) Method of Exercise.
Subject to the provisions of this Article VI and the Award Agreement, a
Participant may exercise Options, in whole or in part, during the Option Period
by giving written notice of exercise on a form provided by the Committee
specifying the number of whole Common Shares subject to the Option to be
purchased. Such notice must be accompanied by payment of the Exercise Price by
cash or certified check or other form of payment acceptable to the Committee at
the time of exercise, including (a) delivering Common Shares already owned by
the Participant (for any minimum period required by the Committee) having a
total Fair Market Value on the date of delivery equal to the Exercise Price; (b)
the delivery of cash by a broker-dealer as a “cashless” exercise, provided this
method of payment may not be used by an executive officer of the Company to the
extent it would violate applicable provisions of the Sarbanes-Oxley Act of 2002;
(c) authorizing the Company to withhold from the Common Shares to be issued
pursuant to the Option a number of Common Shares having a total Fair Market
Value as of the date of exercise equal to the Exercise Price; or (d) any
combination of the foregoing.

     

    6.3 Effect of Termination of
Employment. Unless otherwise specifically provided in an Award Agreement
or determined by the Committee, any exercisable Options held by a Participant
who Terminates Employment may be exercised until the earlier of one year after
Termination of Employment or the expiration date specified in the Award
Agreement; provided, however, that a Participant may not exercise an ISO more
than 3 months following such Participant’s Termination of Employment for any
reason other than due to death or Disability or the expiration date specified in
the Award Agreement, if earlier.

     

    6.4 Notice of Disposition of
Common Shares Prior to the Expiration of Specified ISO Holding Periods.
The Committee may require that a Participant exercising an ISO give a written
representation, satisfactory in form and substance, upon which the Company may
rely, that the Participant will report to the Company any disposition of Common
Shares acquired through exercise of an ISO before expiration of the holding
periods specified by Code §422(a)(1).

     

    
      As
amended and restated effective May 29, 2008.

       

    

    
      
         


      

      
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    ARTICLE
VII

     

    STOCK
APPRECIATION RIGHTS

     

    7.1 Grant of SARs. The
Committee may grant SARs to Participants at any time during the term of the
Plan, either alone or in tandem with other Awards. If all the terms and
conditions specified in the Award Agreement are met, the Participant may
exercise the SAR and receive Common Shares under the procedures described in
this Section 7.1.

     

    7.2 Terms and Conditions.
SARs shall be subject to the terms and conditions specified in the Award
Agreement, including:

     

    (1) Exercise Price. The
Exercise Price may not be less than 100 percent of Fair Market Value on the
Grant Date.

     

    (2) Period and Exercise.
The Award Agreement will specify the period over which a SAR may be exercised
and the terms and conditions that must be met before it may be exercised;
provided, however, that (a) a SAR Award Agreement (which is not a substitution
under Section 13.9) shall not permit more than one-third of SARs granted
thereunder to be exercised before each of the first three anniversary dates
after its Grant Date and (b) a SAR Award Agreement may not permit the SAR Award
to be exercisable for more than 10 years after its Grant Date. The Committee may
provide in the Award Agreement for an accelerated exercise of all or part of a
SAR upon specified events or conditions, including one or more of the
performance goals listed in Section 10.3. Also, the Committee may accelerate the
exercisability of all or part of any SAR. A Participant may exercise a SAR
giving written notice of exercise on a form acceptable to the Committee
specifying the portion of the SAR being exercised.

     

    (3) Settlement. Except as
otherwise provided in the Award Agreement, when a SAR is exercised, the
Participant shall be entitled to receive a number of Common Shares, cash or a
combination of cash or Common Shares (as determined by the Participant) as
follows:  (a) if the SAR Award is settled in cash, the Participant
shall receive an amount of cash equal to the product of (i) the excess of the
Fair Market Value of one Common Share on the date of exercise over the Exercise
Price, multiplied by (ii) the number of SARs being settled; and (b) if the SAR
Award is settled in Common Shares, the Participant shall receive a number of
Common Shares equal to the amount of the cash settlement, divided by the Fair
Market Value of one Common Share on the date of exercise. Also, neither the
Company nor an Affiliate may repurchase the Common Shares delivered in
settlement of a SAR or enter into an arrangement that has a similar
effect.

     

    7.3 Effect of Termination of
Employment. Unless otherwise specifically provided in an Award Agreement
or determined by the Committee, any exercisable SARs held by a Participant who
Terminates Employment may be exercised until the earlier of one year after
Termination of Employment or the expiration date specified in the Award
Agreement.

     

    ARTICLE
VIII

     

    RESTRICTED
STOCK/RESTRICTED STOCK UNITS

     

    8.1 Restricted Stock.
Except as provided in Section 4.4, the Committee may grant Restricted Stock to
Participants at any time during the term of the Plan.

     

    (1) Restricted Stock Grant,
Awards and Certificates. Each Participant receiving a Restricted Stock
Award shall be issued a certificate (or other representation of title) in
respect of such Restricted Stock. That certificate shall be registered in the
name of such Participant and shall bear an appropriate legend describing the
terms, conditions and restrictions applicable to such Award as determined by the
Committee. The Committee, in its discretion, may distribute the certificate to
the Participant or require that the certificate be held in escrow by the Company
until the Restriction Period lapses and, as a condition of receiving any
Restricted Stock Award, the Participant delivers a share power, endorsed in
blank, relating to the Common Shares underlying the Restricted Stock
Award.

     

    
      As
amended and restated effective May 29, 2008.

       

    

    
      
         


      

      
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    (2) Terms and Conditions.
Restricted Stock shall be subject to such terms and conditions as specified in
the Award Agreement, including:

     

    (a) Restrictions. The
Award Agreement will specify the Restriction Period and the terms and conditions
that must be met if the Restricted Stock is to be earned. These may include an
acceleration of the Restriction Period based on one or more of the performance
goals listed in Section 10.3. The Committee also may impose more than one
Restriction Period affecting simultaneously granted Restricted Stock Awards;
provided however, that (except in the case of Restricted Stock subject to
Section 10.1 or Restricted Stock substituted under Section 13.9) the Restriction
Period (1) affecting no more than one-third of such Restricted Stock, may not
lapse earlier than one year after the Grant Date, (2) affecting no more than
one-half of the remaining Restricted Stock may not lapse earlier than two years
after the Grant Date and (3) affecting the remaining Restricted Stock may not
lapse earlier than three years after the Grant Date.

     

    (b) Rights. Except as
provided in Section 13.7 during the Restriction Period, a Participant receiving
a Restricted Stock Award will have, with respect to the Restricted Stock, all of
the rights of a shareholder of the Company holding the class of Common Shares
that is the subject of the Restricted Stock, including, if applicable, the right
to vote the shares and the right to receive any cash dividends. However, any
dividends paid on Restricted Stock held in escrow also will be held in escrow
and either will be paid to the Participant or forfeited at the end of the
Restriction Period, depending on whether the Restricted Stock on which they were
paid is earned or forfeited. Also, any stock dividends will be subject to the
same restrictions that affect the Restricted Stock with respect to which the
dividend was paid. Dividends paid out of escrow will be treated as remuneration
for employment unless an election has been made under Section 13.17 of the
Plan.

     

    (c) Forfeiture. Unless
otherwise specifically provided in the Award Agreement, all Restricted Stock
will be forfeited if the Participant Terminates Employment before the end of the
Restriction Period or if applicable terms and conditions have not been met at
the end of the Restriction Period. If forfeited Restricted Stock was held in
escrow during the Restriction Period, it will be released from escrow. If
forfeited Restricted Stock was issued to the Participant, the share certificates
will be returned and cancelled.

     

    (d) Settlement. If all
terms and conditions imposed on the Restricted Stock Award are met, unlegended
certificates (or other representation of title) for such Common Shares shall be
delivered to the Participant.

     

    (e) Price. The Committee
may require a Participant to pay a stipulated purchase price for each share of
Restricted Stock.

     

    8.2 Restricted Stock
Units. Except as provided in Section 4.4, the Committee may grant
Restricted Stock Units to Participants at any time during the term of the Plan.
Restricted Stock Units shall be subject to the terms and conditions specified in
the Award Agreement, including:

     

    (1)  Restrictions. The
Award Agreement will specify the Restriction Period and the terms and conditions
that must be met if the Restricted Stock Units are to be earned. These may
include an acceleration of the Restriction Period based on one or more of the
performance goals listed in Section 10.3. The Committee also may impose more
than one Restriction Period affecting simultaneously granted Restricted Stock
Units Award; provided however, that (except in the case of Restricted Stock
Units subject to Section 10.1 or substituted under Section 13.9) the Restriction
Period (a) affecting no more than one-third of such Restricted Stock Units, may
not lapse earlier than one year after the Grant Date, (b) affecting no more than
one-half of the remaining Restricted Stock Units may not lapse earlier than two
years after the Grant Date and (c) affecting the remaining Restricted Stock
Units may not lapse earlier than three years after the Grant Date.

     

    (2) Rights. During the
Restriction Period, a Participant receiving a Restricted Stock Unit Award will
not have, with respect to the Restricted Stock Unit, any of the rights of a
shareholder of the Company.

     

    (3) Forfeiture. Unless
otherwise specifically provided in the Award Agreement, all Restricted Stock
Units will be forfeited if the Participant Terminates Employment before the end
of the Restriction Period or if applicable terms and conditions have not been
met at the end of the Restriction Period.

     

    (4) Settlement. Within
two and one-half months after all terms and conditions imposed on the Restricted
Stock Unit Award and specified in the Award Agreement have been met, the
Committee, in its discretion, will issue unlegended certificates (or other
representation of title) for Common Shares equal to the number of Restricted
Stock Units to be settled, redeem the Restricted Stock Units for cash equal to
the Fair Market Value (as of the last day of the Restriction Period) of the
Restricted Stock Units being settled or deliver any combination of unlegended
certificates or cash to the Participant having an aggregate value equal to the
Restricted Stock Units being settled.

     

    
      As
amended and restated effective May 29, 2008.

       

    

    
      
         


      

      
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    ARTICLE
IX

     

    PERFORMANCE
UNITS

     

    9.1 Grant of Performance
Units. Except as provided in Section 4.4 of the Plan, the Committee may
grant to Participants Performance Units at any time during the term of the
Plan.

     

    9.2 Terms and Conditions.
The Committee may, in its discretion, grant Performance Units to Participants.
Performance Units may be subject to any terms and conditions, including vesting,
that the Committee specifies in the Award Agreement and to the terms of the
Plan; provided, however, that a Performance Unit Award Agreement (other than one
executed under Section 13.9 of the Plan or subject to Section 10.1 of the Plan)
shall not permit more than one-third of the Performance Units granted thereunder
to vest before each of the first three anniversary dates after its Grant Date.
Performance Units may constitute Performance-Based Awards, as described in
Article X. The Award Agreement will state the form in which the Performance Unit
is to be settled and when the Performance Unit will be settled. Common Shares
issued through a Performance Unit Award may be issued with or without payment by
the Participant as required by applicable law or any other consideration
specified by the Committee.

     

    9.3 Settling Performance
Units. One Common Share will be issued for each Performance Unit to be
settled unless the Award Agreement provides for settlement in cash or partially
in cash and partially in Common Shares. If all or part of any Performance Unit
Award is to be settled in cash, the amount distributed will be equal to the Fair
Market Value (as of the settlement date specified in the Award Agreement) of the
number of Common Shares that otherwise would have been distributed to settle the
Performance Unit.

     

    9.4 Forfeiture. Unless
otherwise specifically provided in the Award Agreement, all Performance Units
will be forfeited if the Participant Terminates Employment before meeting all
applicable terms and conditions.

     

    ARTICLE
X

     

    PERFORMANCE-BASED
AWARDS

     

    10.1 Grant of Performance-Based
Awards. Any Award may be granted in a form that qualifies as “performance
based compensation” as defined under Code §162(m). As determined by the
Committee, in its sole discretion, either the granting or vesting of
Performance-Based Awards will be based on achieving one or more (or any
combination of) performance objectives derived from the criteria listed below
over the Performance Period established by the Committee. However, a particular
Performance-Based Award Agreement shall not permit (1) the exercisability of a
Performance-Based Option or Performance-Based SAR before the first anniversary
date after its Grant Date, (2) the lapse of the Restriction Period in the case
of a Restricted Stock Award or Restricted Stock Unit Award before the first
anniversary date after its Grant Date, (3) the vesting of a Performance-Based
Performance Unit before the first anniversary date after its Grant Date, or (4)
except upon the attainment of the performance objectives to which the relevant
Award relates, the lapse of the Restriction Period in the case of a Restricted
Stock Award or a Restricted Stock Unit Award or the vesting of a
Performance-Based Performance Unit in the event of a Participant's Termination
of Employment (other than due to death or Disability).

     

    10.2 Establishing
Objectives. With respect to Performance-Based Awards, the Committee will
establish in writing the performance objectives to be applied and the
Performance Period (which may not be shorter than 12 fiscal periods (which may
consist of a four or five week period) of the Company except for the inaugural
Performance Period in the case of an employee who first becomes a Participant
after the beginning of a fiscal year of the Company) over which their
achievement will be measured, the method for computing the value of the Award
that may be earned if (and to the extent that) those performance objectives are
met and the Participants or class of Participants to which the performance
objectives apply. Performance objectives will be established in writing no later
than 90 days after the beginning of the applicable Performance Period (but in no
event after 25 percent of the Performance Period has elapsed).

     

    
      As
amended and restated effective May 29, 2008.

       

    

    
      
         


      

      
        -9-

        
          

        

      

      
         


      

    

     

    10.3 Performance Goals.
Performance criteria imposed on Performance-Based Awards will be derived using
the accounting principles generally accepted in the United States of America and
will be reported or appear in the Company’s filings with the Securities Exchange
Commission (including, but not limited to, Forms 8-K, 10-Q and 10-K) or the
Company’s annual report to shareholders and will be derived from one or more (or
any combination of one or more) of the following:

     

    (1) Earnings per
common share from continuing operations; or

     

    (2) Earnings per
common share from income; or

     

    (3) Operating profit
(loss) or Operating income (loss) (as the case may be); or

     

    (4) Income (Loss) from
continuing operations before unusual or infrequent items; or

     

    (5) Income (Loss) from
continuing operations; or

     

    (6) Income (Loss) from
continuing operations before income taxes; or

     

    (7) Income (Loss) from
continuing operations before extraordinary item and/or cumulative effect of a
change in accounting principle (as the case may be); or

     

    (8) Income (Loss)
before extraordinary item and/or cumulative effect of a change in accounting
principle (as the case may be); or

     

    (9) Net income (loss);
or

     

    (10) Income (Loss)
before other comprehensive income (loss); or

     

    (11) Comprehensive
income (loss); or

     

    (12) Income (Loss)
before interest and income taxes (sometimes referred to as “EBIT”);
or

     

    (13) Income (Loss)
before interest, income taxes, depreciation and amortization (sometimes referred
to as “EBITDA”); or

     

    (14) Any other
objective and specific income (loss) category or non-GAAP financial measure that
appears as a line item in the Company’s filings with the Securities and Exchange
Commission or the annual report to shareholders; or

     

    (15) Either of items
(1) or (2) on a basic basis and any of items (3) through (14) on a basic
earnings per share basis, as basic earnings per share is defined in the
Financial Accounting Standards Board (“FASB”) Statement of Financial Accounting
Standards (“SFAS”) No. 128 including authoritative interpretations or amendments
thereof which may be issued from time to time as long as such interpretations or
amendments are utilized on the consolidated statements of operations or
statement of operations, as applicable, or in the notes to the consolidated
financial statements; or

     

    (16) Either of items
(1) or (2) on a diluted basis and any of items (3) through (14) on a diluted
earnings per share basis, as diluted earnings per share is defined in the FASB
SFAS No. 128 including authoritative interpretations or amendments thereof which
may be issued from time to time as long as such interpretations or amendments
are utilized on the consolidated statements of operations or statement of
operations, as applicable, or in the notes to the consolidated financial
statements; or

     

    (17) Common stock
price; or

     

    (18) Total shareholder
return expressed on a dollar or percentage basis as is customarily disclosed in
the proxy statement accompanying the notice of annual meetings of shareholders;
or

     

    (19) Percentage
increase in comparable store sales; or

     

    (20) Gross profit
(loss) or gross margin (loss) (as the case may be); or

     

    (21) Economic value
added; or

     

    (22) Any of items (1)
through (21) with respect to any subsidiary, Affiliate, business unit, business
group, business venture or legal entity, including any combination thereof, or
controlled directly or indirectly by the Company whether or not such information
is included in the Company’s annual report to shareholders, proxy statement or
notice of annual meeting of shareholders; or

     

    
      As
amended and restated effective May 29, 2008.

       

    

    
      
         


      

      
        -10-

        
          

        

      

      
         


      

    

     

    (23) Any of items (1)
through (21) above may be determined before or after a minority interest’s share
as designated by the Committee; or

     

    (24) Any of items (1)
through (21) above with respect to the period of service to which the
performance goal relates whether or not such information is included in the
Company’s filings, annual report to shareholders, proxy statement or notice of
annual meetings of shareholders; or

     

    (25) Total shareholder
return ranking position meaning the relative placement of the Company’s total
shareholder return (as determined in (18) above) compared to those publicly held
companies in the Company’s peer group as established by the Committee prior to
the beginning of a vesting period or such later date as permitted under the
Code. The peer group shall be comprised of not less than eight and not more than
sixteen companies, including the Company.

     

    (26) With respect to
items (1), (2), (15) and (16) above, other terminology may be used for each such
performance criteria (including, but not limited to, “Basic EPS,” “income (loss)
per common share,” “diluted EPS,” or “earnings per common share-assuming
dilution”) as contemplated by SFAS No. 128, as amended, revised or
superseded;

     

    The
Committee, in its sole discretion in setting the performance goals in the time
prescribed in Section 10.2, may provide for the making of adjustments (including
the income tax effects attributable thereto), singularly or in combination, to
the goals/targets in recognition of the following categories (or any particular
item(s) within the following categories or portion(s) thereof):

     

    (27) Asset impairments
as described in SFAS No. 144, as amended, revised or superseded; or

     

    (28) Costs associated
with exit or disposal activities as described by SFAS No. 146, as amended,
revised or superseded; or

     

    (29) Impairment charges
(excluding the amortization thereof) related to goodwill or other intangible
assets, as described by SFAS No. 142, as amended, revised or superseded;
or

     

    (30) Merger integration
costs; or

     

    (31) Merger transaction
costs; or

     

    (32) Any profit or loss
attributable to the business operations of a specified segment as described by
SFAS No. 131 as amended, revised or superseded; or

     

    (33) Any profit or loss
attributable to a specified segment as described by SFAS No. 131, as amended,
revised or superseded or an entity or entities acquired during the period of
service to which the performance goal relates; or

     

    (34) Any tax
settlement(s) with a tax authority; or

     

    (35) Any extraordinary
item, event or transaction as described in Accounting Principles Board Opinion
(“APB”) No. 30, as amended, revised or superseded; or

     

    (36) Any unusual in
nature, or infrequent in occurrence items, events or transactions (that are not
“extraordinary” items) as described in APB No. 30, as amended, revised or
superseded; or

     

    (37) Any other
non-recurring items, any events or transactions that do not constitute ongoing
operations, or other non-GAAP financial measures (not otherwise listed);
or

     

    (38) Any change in
accounting principle as described in SFAS No. 154, as amended, revised or
superseded; or

     

    (39) Unrealized gains
or losses on investments in debt and equity securities as described in SFAS No.
115, as amended, revised or superseded; or

     

    (40) Any gain or loss
recognized as a result of derivative instrument transactions or other hedging
activities as described in SFAS No. 133, as amended, revised or superseded;
or

     

    
      As
amended and restated effective May 29, 2008.


    

    
      
         


      

      
        -11-

        
          

        

      

      
         


      

    

     

    (41) Stock-based
compensation charges as described in SFAS No. 123R, as amended, revised or
superseded; or

     

    (42) Any gain or loss
as reported as a component of other comprehensive income as described in SFAS
No. 130, as amended, revised or superseded; or

     

    (43) Any expense (or
reversal thereof) as a result of incurring an obligation for a direct or
indirect guarantee, as described in FASB Interpretations (“FIN”) No. 45, as
amended, revised or superseded; or

     

    (44) Any profit or loss
as the result of the consolidation of a variable interest entity as described in
FIN No. 46R, as amended, revised or superseded; or

     

    (45) Any expense, gain
or loss (including, but not limited to, judgments, interest on judgments,
settlement amounts, attorneys’ fees and costs, filing fees, experts’ fees, and
damages sustained as a result of the imposition of injunctive relief) as a
result of claims, litigation or lawsuit settlement (including collective actions
or class action lawsuits); or

     

    (46) Any charges
associated with the early retirement of debt; or

     

    (47) The
relevant tax effect(s) of tax laws or regulations, or amendments thereto, that
become effective after the beginning of the applicable Performance
Period.

     

    10.4 Certification of Performance
Goals. Any Award intended to qualify as “performance based compensation”
as defined under Code §162(m) shall not be paid until the Committee certifies in
writing that the performance goals and any other material terms were in fact
satisfied. In the manner required by Code §162(m), the Committee shall, promptly
after the date on which the necessary financial and other information for a
particular Performance Period becomes available, certify the extent to which
performance goals have been achieved with respect to any Award intended to
qualify as “performance-based compensation” under Code §162(m). In addition, the
Committee may, in its discretion, reduce or eliminate the amount of any Award
payable to any Participant, based on such factors as the Committee may deem
relevant.

     

    10.5 Limitation on Awards.
The following limits, which are subject to automatic adjustment under Section
4.7, will apply to Performance-Based Awards:

     

    (1) In no event may
the number of Restricted Stock shares awarded to any Covered Employee for any
fiscal year exceed 2,000,000 Common Shares.

     

    (2) During any three
consecutive calendar-year period, the maximum number of Common Shares for which
Options and SARs, in the aggregate, may be granted to any Covered Employee may
not exceed 3,000,000 Common Shares. If an Option is cancelled, the cancelled
Option continues to be counted against the maximum number of shares for which
Options may be granted to the Covered Employee under the Plan.

     

    (3) For Performance
Unit Awards that are intended to be “performance-based compensation” (as that
term is used in Code §162(m))  no more than $6,000,000 may be subject
to such Awards granted to any Covered Employee during any three consecutive
calendar-year period.

     

    ARTICLE
XI

     

    CHANGE
IN CONTROL PROVISIONS

     

    11.1 Impact of Event.
Notwithstanding any other provision of the Plan to the contrary and unless
otherwise specifically provided in an Award Agreement, in the event of a Change
in Control:

     

    (1) Any Options and
SARs outstanding as of the date of such Change in Control and not then
exercisable shall become fully exercisable to the full extent of the original
grant;

     

    (2) All remaining
Restriction Periods shall be accelerated and any remaining restrictions
applicable to any Restricted Stock Awards shall lapse and such Restricted Stock
shall become free of all restrictions and become fully vested and transferable
to the full extent of the original grant;

     

    (3) All remaining
Restriction Periods shall be accelerated and any remaining restrictions
applicable to any Restricted Stock Unit shall lapse and such Restricted Stock
Unit shall become free of all restrictions and become fully vested and
transferable to the full extent of the original grant (i.e., the Restriction
Period shall lapse); and

     

    
      As
amended and restated effective May 29, 2008.


    

    
      
         


      

      
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    (4) Any performance
goal or other condition with respect to any Performance Units shall be deemed to
have been satisfied in full, and the Common Shares or cash subject to such Award
shall be fully distributable.

     

    11.2 Effect of Code §280G.
Except as otherwise provided in the Award Agreement or any other written
agreement between the Participant and the Company or any Affiliate in effect on
the date of the Change in Control, if the sum (or value) due under Section 11.1
that are characterizable as parachute payments, when combined with other
parachute payments attributable to the same Change in Control, constitute
“excess parachute payments” as defined in Code §280G(b)(1), the entity
responsible for making those payments or its successor or successors
(collectively, “Payor”) will reduce the Participant’s benefits under the Plan by
the smaller of (1) the value of the sum or the value of the payments due under
Section 11.1 or (2) the amount necessary to ensure that the Participant’s total
“parachute payment” as defined in Code §280G(b)(2)(A) under the Plan and all
other agreements will be $1.00 less than the amount that would generate an
excise tax under Code §4999. Any reduction pursuant to this Section 11.2 shall
be first applied against parachute payments (as determined above) that are not
subject to Code §409A and, thereafter, shall be applied against all remaining
parachute payments (as determined above) subject to Code §409A on a pro rata
basis.

     

    ARTICLE
XII

     

    PROVISIONS
APPLICABLE TO COMMON SHARES ACQUIRED UNDER THE PLAN

     

    12.1
No Obligation to
Disclose Material Information.  Except to the extent required
by applicable securities laws, none of the Company, an Affiliate or the
Committee shall have any duty or obligation to affirmatively disclose material
information to a record or beneficial holder of Common Shares or an Award, and
such holder shall have no right to be advised of any material information
regarding the Company or any Affiliate at any time prior to, upon or in
connection with receipt or the exercise or distribution of an Award. The Company
makes no representation or warranty as to the future value of the Common Shares
that may be issued or acquired under of the Plan.

     

    12.2
Six-Month Distribution
Delay.  Notwithstanding anything in the Plan to the contrary,
if a Participant is a “specified employee,” within the meaning of Code §409A and
as determined under the Company’s policy for determining specified employees, on
the date of his or her “separation from service” (as that phrase is used for
purposes of Code §409A), all Awards subject to Code §409A shall be paid,
distributed or settled, as applicable, on the first business day of the seventh
month following the Participant’s 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.

     

    ARTICLE
XIII

     

    MISCELLANEOUS

     

    13.1 Amendment, Alteration and
Termination. The Board may amend, alter or terminate the Plan at any
time, but no amendment, alteration or termination shall be made which would
impair the rights of a Participant under an Award theretofore granted without
the Participant’s consent. Notwithstanding the immediately preceding sentence,
an amendment may be made to (1) cause the Plan to comply with applicable law
(including, but not limited to, any changes needed to comply with Code §409A),
(2) permit the Company, or an Affiliate a tax deduction under applicable law, or
(3) avoid an expense charge to the Company or an Affiliate. Subject to the
requirements of Code §409A and except to the extent prohibited by Code §162(m),
the Committee may amend, alter or terminate any Award Agreement prospectively or
retroactively, on the same conditions and limits (and exceptions to limitations)
that apply to the Board and further subject to any approval or limitations the
Board may impose and any amendment to the terms of an Award Agreement which has
the effect of accelerating the exercisability (with respect to any Option or SAR
Award), causing the remaining restrictions to lapse (in the case of Restricted
Stock or Restricted Stock Unit Awards), or satisfying any performance goal or
other condition (with respect to any Performance Unit Award) may only be made
after, in the Committee’s sole discretion, an extraordinary, unusual or
nonrecurring event has occurred. Notwithstanding the foregoing, any material
amendments to the Plan or any Award Agreement shall require shareholder approval
to the extent required by the rules of the New York Stock Exchange or other
national securities exchange or market that regulates the securities of the
Company.

     

    
      As
amended and restated effective May 29, 2008.

       

    

    
      
         


      

      
        -13-

        
          

        

      

      
         


      

    

     

    13.2 Unfunded Status of
Plan. It is intended that the Plan be an “unfunded” plan for incentive
compensation. The Committee may authorize the creation of trusts or other
arrangements to meet the obligations created under the Plan to deliver Common
Shares or make payments; provided, however, that, unless the Committee otherwise
determines, the existence of such trusts or other arrangements is consistent
with the “unfunded” status of the Plan.

     

    13.3 No Additional
Obligation. Nothing contained in the Plan shall prevent the Company or an
Affiliate from adopting other or additional compensation or benefit arrangements
for its employees.

     

    13.4 Withholding. As soon
as practicable after the date as of which the amount first becomes includible in
the gross income of the Participant (but no later than the last business day of
the calendar quarter during which the amount first becomes includible in gross
income), the Participant shall pay to the Company or an Affiliate (or other
entity identified by the Committee), or make arrangements satisfactory to the
Company or other entity identified by the Committee regarding the payment of any
federal, state, or local taxes of any kind (including any employment taxes)
required by law to be withheld with respect to such income. The obligations of
the Company under the Plan shall be conditional on such payment or arrangements,
and the Company and its Affiliates shall, to the extent permitted by law, have
the right to deduct any such taxes from any payment otherwise due to the
Participant. Subject to approval by the Committee, a Participant may elect to
have such tax withholding obligation satisfied, in whole or in part, by (1)
authorizing the Company to withhold from the Common Shares to be issued pursuant
to any Award a number of Common Shares that would satisfy the required statutory
minimum (but no more than such required minimum) with respect to the Company’s
withholding obligation or (2) transferring to the Company Common Shares owned by
the Participant that would satisfy the required statutory minimum (but no more
than such required minimum) with respect to the Company’s withholding
obligation.

     

    13.5 Controlling Law. The
Plan and all Awards made and actions taken thereunder shall be governed by and
construed in accordance with the laws of Ohio (other than its law respecting
choice of laws). The Plan shall be construed to comply with all applicable law
and to avoid liability (other than a liability expressly assumed under the Plan
or an Award Agreement) to the Company, an Affiliate or a Participant. In the
event of litigation arising in connection with actions under the Plan, the
parties to such litigation shall submit to the jurisdiction of courts located in
Franklin County, Ohio or to the federal district court that encompasses that
county.

     

    13.6 Offset. Any amounts
owed to the Company or an Affiliate by the Participant of whatever nature up to
$5,000 in any taxable year of the Participant may be offset by the Company from
the value of any Award to be transferred to the Participant, and no Common
Shares, cash or other thing of value under the Plan or an Award Agreement shall
be transferred unless and until all disputes between the Company and the
Participant have been fully and finally resolved and the Participant has waived
all claims to such against the Company or an Affiliate. However, no waiver of
any liability (or the right to apply the offset described in this Section 13.6)
may be inferred because the Company pays an Award to a Participant with an
outstanding liability owed to the Company or an Affiliate.

     

    13.7 Nontransferability;
Beneficiaries. No Award or Common Shares subject to an Award shall be
assignable or transferable by the Participant otherwise than by will or the laws
of descent and distribution or pursuant to a beneficiary designation, and Awards
shall be exercisable during the Participant’s lifetime only by the Participant
(or by the Participant’s legal representatives in the event of the Participant’s
incapacity). Each Participant may designate a Beneficiary to exercise any Option
or SAR or receive any Award held by the Participant at the time of the
Participant’s death or to be assigned any other Award outstanding at the time of
the Participant’s death. No Award or Common Shares subject to an Award shall be
subject to the debts of a Participant or Beneficiary or subject to attachment or
execution or process in any court action or proceeding unless otherwise provided
in the Plan. If a deceased Participant has named no Beneficiary, any Award held
by the Participant at the time of death shall be transferred as provided in his
or her will or by the applicable laws of descent and distribution. Except in the
case of the Participant’s incapacity, only the Participant may exercise an
Option or SAR.

     

    13.8 No Rights with Respect to
Continuance of Employment. Nothing contained herein shall be deemed to
alter the relationship between the Company or an Affiliate and a Participant, or
the contractual relationship between a Participant and the Company or an
Affiliate if there is a written contract regarding such relationship. Nothing
contained herein shall be construed to constitute a contract of employment
between the Company or an Affiliate and a Participant. The Company or an
Affiliate and each of the Participants continue to have the right to Terminate
the Employment or service relationship at any time for any reason, except as
provided in a written contract. The Company or an Affiliate shall have no
obligation to retain the Participant in its employ or service as a result of the
Plan. There shall be no inference as to the length of employment or service
hereby, and the Company or an Affiliate reserves the same rights to Terminate
the Employment or service of the Participant as existed prior to the individual
becoming a Participant in the Plan.

     

    
      As
amended and restated effective May 29, 2008.

       

    

    
      
         


      

      
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    13.9 Awards in Substitution for
Awards Granted by Other Corporations. Awards may be granted under the
Plan from time to time in substitution for awards held by employees, directors
or service providers of other corporations who are about to become officers or
employees of the Company or an Affiliate (and will be eligible to be
Participants) as the result of a transaction described in Code §424. The terms
and conditions of the Awards so granted may vary from the terms and conditions
set forth in the Plan at the time of such grant as the majority of the members
of the Committee may deem appropriate to conform, in whole or in part, to the
provisions of the awards in substitution for which they are granted and to
ensure that the requirements imposed under Code §§409A and 424, to the extent
applicable, are met.

     

    13.10 Delivery of Stock
Certificates. To the extent the Company uses certificates to represent
Common Shares, certificates to be delivered to Participants under the Plan shall
be deemed delivered for all purposes when the Company or a stock transfer agent
of the Company shall have placed such certificates in the United States mail,
addressed to the Participant, at the Participant’s last known address on file
with the Company. Any reference in this Section 13.10 or elsewhere in the Plan
or an Award Agreement to actual stock certificates and/or the delivery of actual
stock certificates shall be deemed satisfied by the electronic record-keeping
and electronic delivery of Common Shares or other mechanism then utilized by the
Company and its agents for reflecting ownership of such Common
Shares.

     

    13.11 Indemnification. To
the maximum extent permitted under the Company’s Articles of Incorporation and
Code of Regulations, each person who is or shall have been a member of the
Committee, or of the Board, shall be indemnified and held harmless by the
Company against and from (1) any loss, cost, liability or expense (including
attorneys’ fees) that may be imposed upon or reasonably incurred by him or her
in connection with or resulting from any claim, action, suit or proceeding to
which he or she may be a party or in which he or she may be involved by reason
of any action taken or failure to act under the Plan or any Award Agreement, and
(2) from any and all amounts paid by him or her in settlement thereof, with the
Company’s prior written approval, or paid by him or her in satisfaction of any
judgment in any such claim, action, suit or proceeding against him or her;
provided, however, that he or she shall give the Company an opportunity, at its
own expense, to handle and defend the same before he or she undertakes to handle
and defend it on his or her own behalf. The foregoing right of indemnification
shall not be exclusive of any other rights of indemnification to which such
persons may be entitled under the Company’s Articles of Incorporation or Code of
Regulations, by contract, as a matter of law, or otherwise, or under any power
that the Company may have to indemnify them or hold them harmless.

     

    13.12 No Fractional Shares.
No fractional Common Shares shall be issued or delivered under the Plan or any
Award granted hereunder, provided that the Committee, in its sole discretion,
may round fractional shares down to the nearest whole share or settle fractional
shares in cash.

     

    13.13 Severability. If any
provision of the Plan shall for any reason be held to be invalid or
unenforceable, such invalidity or unenforceability shall not effect any other
provision hereof, and the Plan shall be construed as if such invalid or
unenforceable provision were omitted.

     

    13.14 Successors and
Assigns. The Plan shall inure to the benefit of and be binding upon each
successor and assign of the Company. All obligations imposed upon a Participant,
and all rights granted to the Company hereunder, shall be binding upon the
Participant’s heirs, legal representatives and successors.

     

    13.15 Entire Agreement.
Except as expressly provided otherwise, the Plan and any Award Agreement
constitute the entire agreement with respect to the subject matter hereof and
thereof, provided that in the event of any inconsistency between the Plan and
any Award Agreement, the terms and conditions of the Plan shall
control.

     

    13.16 Term. No Award shall
be granted under the Plan after May 16, 2012.

     

    13.17 Application of Section
83(b). At the Committee’s discretion, any Participant may make an early
inclusion election under Code §83(b) but only by complying with procedures
developed by the Committee and rules issued under Code §83(b).

     

    13.18 Headings. The
headings of the Articles and their subparts contained in the Plan are for the
convenience of reading and reference purposes only and shall not affect the
meaning, interpretation or be meant to be of substantive significance of the
Plan.

     

    
      As
amended and restated effective May 29, 2008.

       

    

    
      
         


      

      
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    13.19
Compliance with Code
§409A.  It is intended that the Plan comply with Code §409A and
the Treasury Regulations promulgated thereunder (and any subsequent notices or
guidance issued by the Internal Revenue Service), and the Plan shall be
interpreted, administered and operated accordingly.  Nothing in the
Plan or any Award Agreement shall be construed as an entitlement to or guarantee
of any particular tax treatment to a Participant.

     

    13.20
Inclusion in Income
under Code §409A.  The Company may accelerate the time or
schedule of distribution, exercise or settlement of an Award to a Participant to
pay an amount the Participant includes in income as a result of the Plan failing
to meet the requirements of Code §409A and the Treasury Regulations promulgated
thereunder.  Such payment may not exceed the amount required to be
included in income as a result of the failure to comply with Code §409A and the
Treasury Regulations promulgated thereunder.

     

    
      As
amended and restated effective May 29, 2008.

    

     

     

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