Exhibit 10.1





Exhibit 10.1




LANCASTER COLONY CORPORATION

AMENDED AND RESTATED 2005 STOCK PLAN




1. Purposes of the Plan. The purposes of this Plan are to attract and retain the best
available personnel for positions of substantial responsibility, to provide additional incentive to
Employees, Directors and Consultants and to promote the success of the Company’s business. The
Plan permits the grant of any of the following types of Awards, as the Administrator determines at
the time of the grant: Incentive Stock Options, Nonstatutory Stock Options, Restricted Stock, Stock
Appreciation Rights, Restricted Stock Units, Performance Units, Performance Shares and Other
Stock-Based Awards. The specifics of the Award(s) made shall be reflected in the terms of the
written Award Agreement.



2. Definitions. As used herein, the following definitions shall apply:



“Administrator” means the Board or any of its Committees as will be administering the Plan, in
accordance with Section 4 of the Plan.



“Affiliate” means, with respect to any specified person, any other person that directly or
indirectly, through one or more intermediaries, controls, is controlled by, or is under common
control with, such specified person (“control,” “controlled by” and “under common control with”
will mean the possession, directly or indirectly, of the power to direct or cause the direction of
the management and policies of a person, whether through ownership of voting securities, by contact
or credit arrangement, as trustee or executor, or otherwise).



“Applicable Laws” means the requirements relating to the administration of equity-based awards
or equity compensation plans under U.S. state corporate laws, U.S. federal and state securities
law, the Code, any stock exchange or quotation system on which the Common Stock is listed or quoted
and the applicable laws of any foreign country or jurisdiction where Awards are, or will be,
granted under the Plan.



“Award” means, individually or collectively, a grant under the Plan of Options, SARs,
Restricted Stock, Restricted Stock Units, Performance Units, Performance Shares or Other
Stock-Based Awards.



“Award Agreement” means the written agreement setting forth the terms and provisions
applicable to each Award granted under the Plan. The Award Agreement is subject to the terms and
conditions of the Plan.




“Awarded Stock” means the Common Stock subject to an Award.




“Board” means the Board of Directors of the Company.




“Change in Control” means the occurrence of any of the following events:



(a) Any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act)
becomes the “beneficial owner” (as defined in Rule 13d-3 of the Exchange Act), directly or
indirectly, of securities of the Company representing fifty percent (50%) or more of the total
voting power represented by the Company’s then outstanding voting securities;


 


 









 





(b) The consummation of the sale or disposition by the Company of all or substantially all of
the Company’s assets; or



(c) The consummation of a merger or consolidation of the Company with any other corporation,
other than a merger or consolidation which would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent (either by remaining outstanding or
by being converted into voting securities of the surviving entity or its parent) at least fifty
percent (50%) of the total voting power represented by the voting securities of the Company or such
surviving entity or its parent outstanding immediately after such merger or consolidation.



“Code” means the Internal Revenue Code of 1986, as amended. Any reference to a section of the
Code in this Plan is also a reference to any successor or amended section of the Code.



“Committee” means a committee of Directors or other individuals satisfying Applicable Laws
appointed by the Board in accordance with Section 4.



“Common Stock” means the Common Stock of the Company, or in the case of Performance Units and
certain Other Stock-Based Awards, the cash equivalent of the Common Stock of the Company.




“Company” means Lancaster Colony Corporation, an Ohio corporation, or any of its successors.



“Consultant” means any person, including an advisor, engaged by the Company or any Parent or
Subsidiary to render services and who is compensated for such services.



“Continuous Status as an Employee or Consultant” means the absence of any interruption or
termination of service as an Employee or Consultant. Continuous Status as an Employee or Consultant
shall not be considered interrupted in the case of sick leave, military leave, or any other leave
of absence approved by the Administrator, provided that such leave is for a period of not more than
ninety (90) days, unless reemployment upon the expiration of such leave is guaranteed by contract
or statute, or unless provided otherwise pursuant to Company policy adopted from time to time, or
in the case of transfers between locations of the Company or between the Company, its Subsidiaries
or its successor. For purposes of this Plan, a change in status from an Employee to a Consultant or
from a Consultant to an Employee will not constitute a termination of employment.



“Covered Employee” means a Participant who is, or is determined by the Administrator to be
likely to become, a “covered employee” within the meaning of Section 162(m) of the Code (or any
successor provision).




“Director” means a member of the Board.



“Disability” means total and permanent disability as defined in Section 22(e)(3) of the Code,
provided that in the case of Awards other than Incentive Stock Options, the Administrator
in its discretion may determine whether a permanent and total disability exists in accordance
with uniform and non discriminatory standards that the Administrator adopts from time to time.


 


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“Dividend Equivalent” means a credit made at the discretion of the Administrator to the
account of a Participant in an amount equal to the cash dividends paid on one Share for each Share
represented by an Award held by such Participant.



“Employee” means any person, including Officers and Directors, employed by the Company or any
Parent or Subsidiary of the Company. Neither service as a Director nor payment of a director’s fee
by the Company will be sufficient to constitute “employment” by the Company.




“Exchange Act” means the Securities Exchange Act of 1934, as amended.



“Exchange Program” means a program (subject to shareholder approval pursuant to
Section 4(b)(viii)) under which (a) outstanding Awards are surrendered or cancelled in exchange for
Awards of the same type (which may have lower exercise prices and different terms), Awards of a
different type, and/or cash, and/or (b) the exercise price of an outstanding Award is reduced. The
Administrator may determine the terms and conditions of any Exchange Program in its sole
discretion.



“Fair Market Value” means, as of any date and unless the Administrator determines otherwise,
the value of Common Stock determined as follows:



(a) If the Common Stock is listed on any established stock exchange or a national market
system, including without limitation the NASDAQ Stock Market, its Fair Market Value shall be the
closing sales price for such stock as quoted on such system on the date of determination (or the
closing bid, if no sales were reported on that day) as reported in The Wall Street Journal or such
other source as the Administrator deems reliable;



(b) If the Common Stock is regularly quoted by a recognized securities dealer but selling
prices are not reported, the Fair Market Value of a Share of Common Stock will be the mean between
the high bid and low asked prices for the Common Stock for the day of determination, as reported in
The Wall Street Journal or such other source as the Administrator deems reliable; or



(c) In the absence of an established market for the Common Stock, the Administrator will
determine the Fair Market Value in good faith.



(d) Notwithstanding the preceding, for federal, state, and local income tax reporting purposes
and for such other purposes as the Administrator deems appropriate, the Administrator will
determine Fair Market Value in accordance with uniform and nondiscriminatory standards it adopts
from time to time.



“Incentive Stock Option” means an option intended to qualify as an incentive stock option
within the meaning of Section 422 of the Code and regulations promulgated thereunder.


 


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“Nonstatutory Stock Option” means an Option that by its terms does not qualify or is not
intended to qualify as an Incentive Stock Option.



“Officer” means a person who is an officer of the Company within the meaning of Section 16 of
the Exchange Act and the rules and regulations promulgated thereunder.




“Option” means a stock option granted pursuant to this Plan.




“Optioned Stock” means the Common Stock subject to an Option.




“Optionee” means a Service Provider who receives an Option.



“Other Stock-Based Awards” means any other awards not specifically described in the Plan that
are valued in whole or in part by reference to, or are otherwise based on, Shares and are created
by the Administrator pursuant to Section 12.




“Outside Director” means a Director who is not an Employee.



“Parent” means a “parent corporation” as defined in Section 424(e) of the Code, whether that
corporation is existing now or after the date of this Plan.




“Participant” means the holder of an outstanding Award granted under the Plan.



“Performance-Based Compensation” means compensation qualifying as “performance-based
compensation” under Section 162(m) of the Code.



“Performance Objectives” means the measurable performance objective or objectives established
by the Administrator pursuant to this Plan for Participants who received grants of Performance
Shares or Performance Units or, when so determined by the Administrator, Options, Stock
Appreciation Rights, Restricted Stock, Restricted Stock Units, dividend credits or Other
Stock-Based Awards pursuant to this Plan. Performance Objectives may be described in terms of
Company-wide objectives or objectives that are related to the performance of the individual
Participant or of the Subsidiary, division, department, region or function within the Company or
Subsidiary in which the Participant is employed. The Performance Objectives may be made relative to
the performance of other companies or subsidiaries, divisions, departments, regions or functions
within such other companies, and may be made relative to an index or one or more of the performance
objectives themselves. The Administrator may grant Awards subject to Performance Objectives that
are either Performance-Based Compensation or are not Performance-Based Compensation. The
Performance Objectives applicable to any Performance-Based Compensation to a Covered Employee will
be based on one or more, or a combination, of the following criteria: (a) increase in share price;
(b) earnings per share; (c) total shareholder return; (d) operating margin; (e) gross margin;
(f) return on equity; (g) return on assets; (h) return on investment; (i) operating income; (j) net
operating income; (k) pre tax profit; (l) cash flow; (m) revenue; (n) expenses; (o) earnings before
interest, taxes, depreciation and amortization; (p) economic value added and (q) market share.



“Performance Share” means an Award granted to a Service Provider pursuant to Section 10.


 


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“Performance Unit” means an Award granted to a Service Provider pursuant to Section 10.



“Period of Restriction” means the period during which the transfer of Shares of Restricted
Stock are subject to restrictions and therefore, the Shares are subject to a substantial risk of
forfeiture. Such restrictions may be based on the passage of time, the achievement of Performance
Objectives, or the occurrence of other events as determined by the Administrator.




“Plan” means this Amended and Restated 2005 Stock Plan.



“Restricted Stock” means shares of Common Stock issued pursuant to a Restricted Stock Award
under Section 8, Section 11 or Section 12.



“Restricted Stock Unit” means an Award which may be earned in whole or in part upon the
passage of time or the attainment of Performance Objectives established by the Administrator and
which may be settled for cash, Shares or other securities or a combination of cash, Shares or other
securities as established by the Administrator pursuant to Sections 4 and 11.



“Rule 16b-3” means Rule 16b-3 of the Exchange Act or any successor to Rule 16b-3, as in effect
when discretion is being exercised with respect to the Plan.




“Section” unless otherwise specified, refers to numbered sections of this Plan.




“Section 16(b)” means Section 16(b) of the Exchange Act.




“Service Provider” means an Employee, Director or Consultant.




“Share” means a share of the Common Stock, as adjusted in accordance with Section 15.



“Stock Appreciation Right” or “SAR” means an Award, granted alone or in connection with an
Option, that pursuant to Section 9 is designated as a SAR.



“Subsidiary” means a “subsidiary corporation” as defined in Section 424(f) of the Code,
whether that corporation exists now or after the date of this Plan.



3. Stock Subject to the Plan.



(a) Stock Subject to the Plan. Subject to the provisions of Section 15, the maximum
aggregate number of Shares that may be issued under the Plan is 2,000,000 shares of Common Stock.
The Shares may be authorized, but unissued, or reacquired Common Stock. If an Award is settled in
whole or in part with cash, the number of Shares available for future issuance under the Plan shall
be reduced by the total amount of Shares issued pursuant to the Award (if applicable) and the
number of Shares representing the portion of the Award settled in cash. If Shares are used to pay
for the exercise of an Award, the number of Shares used to pay for the exercise of an Award shall
be counted against the total number of Shares available for issuance under the Plan. If a
Participant pays the exercise price (or purchase price, if applicable) of an Award by tendering
Shares, or if Shares are tendered or withheld to satisfy any Company withholding
obligations, the number of Shares so tendered or withheld shall be counted against the total
number of Shares available for issuance under the Plan.


 


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(b) Lapsed Awards under this Plan. If any outstanding Award expires or is terminated
or canceled without having been exercised or settled in full, or if Shares acquired pursuant to an
Award subject to forfeiture or repurchase are forfeited or the Company repurchases them, the Shares
allocable to the terminated portion of such Award or such forfeited or repurchased Shares under
this Plan or shall again be available for grant under the Plan.



4. Administration of the Plan.



(a) Procedure. The Plan will be administered by the Board or by a Committee, which
committee will be constituted to satisfy Applicable Laws. Notwithstanding this general statement,
the following specific procedures shall apply:



(i) Multiple Administrative Bodies. Different Committees may administer the Plan with
respect to different groups of Service Providers.



(ii) Section 162(m). To the extent that the Administrator determines it to be
desirable and necessary to qualify Awards granted under this Plan as Performance-Based
Compensation, the Plan will be administered by a Committee of two or more “outside directors”
within the meaning of Section 162(m) of the Code.



(iii) Rule 16b-3. To the extent desirable to qualify transactions under this Plan as
exempt under Rule 16b-3, the transactions contemplated under this Plan will be structured to
satisfy the requirements for exemption under Rule 16b-3.



(iv) Delegation of Authority for Day-to-Day Administration. Except to the extent
prohibited by Applicable Law, the Administrator may delegate to one or more individuals the
day-to-day administration of the Plan and any of the functions assigned to it in this Plan. The
Administrator may revoke any delegation at any time.



(b) Powers of the Administrator. Subject to the provisions of the Plan and, in the
case of a Committee, subject to the specific duties delegated by the Board to such Committee, the
Administrator will have the authority, in its discretion, to:




(i) determine the Fair Market Value;




(ii) select the Service Providers to whom Awards may be granted under the Plan;




(iii) determine the number of Shares to be covered by each Award granted under the Plan;




(iv) approve forms of agreement for use under the Plan;


 


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(v) determine the terms and conditions, consistent with the terms of the Plan, of any Award
granted under the Plan. Such terms and conditions include, but are not limited to,
the exercise price, the time or times when Awards may be exercised (which may be based on
Performance Objectives), any vesting acceleration or waiver of forfeiture or repurchase
restrictions, and any restriction or limitation regarding any Award or the Shares relating to any
Award, based in each case on such factors as the Administrator, in its sole discretion, will
determine;




(vi) construe and interpret the terms of the Plan and Awards granted pursuant to the Plan;



(vii) prescribe, amend and rescind rules and policies relating to the Plan, including rules
and policies relating to sub-plans established for the purpose of satisfying applicable foreign
laws and/or qualifying for preferred tax treatment under applicable foreign tax laws;



(viii) modify or amend each Award (subject to Section 18(c) of the Plan), including the
discretionary authority to extend the post-termination exercisability period of Awards longer than
is otherwise provided for in the Plan, provided that (A) the reduction of the exercise price or
purchase price of any Award awarded under the Plan shall be subject to shareholder approval,
(B) any Exchange Program shall be subject to shareholder approval and (C) the vesting schedule for
Awards of Restricted Stock, Restricted Stock Units Performance Shares and Performance Units may
only be amended in the event of a Change in Control or in the event of the Participant’s death or
Disability;



(ix) allow Participants to satisfy withholding tax obligations by electing to have the Company
withhold from the Shares or cash to be issued upon exercise or vesting of an Award that number of
Shares or cash having a Fair Market Value equal to the minimum amount required to be withheld. The
Fair Market Value of any Shares to be withheld will be determined on the date that the amount of
tax to be withheld is to be determined. All elections by a Participant to have Shares or cash
withheld for this purpose will be made in such form and under such conditions as the Administrator
may deem necessary or advisable;



(x) authorize any person to execute on behalf of the Company any instrument required to effect
the grant of an Award previously granted by the Administrator;



(xi) allow a Participant to defer the receipt of the payment of cash or the delivery of Shares
that would otherwise be due to such Participant under an Award;




(xii) determine whether Awards will be settled in Shares, cash or in any combination thereof;




(xiii) determine whether Awards will be adjusted for Dividend Equivalents;




(xiv) create Other Stock-Based Awards for issuance under the Plan;



(xv) establish a program whereby Service Providers designated by the Administrator can reduce
compensation otherwise payable in cash in exchange for Awards under the Plan;


 


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(xvi) impose such restrictions, conditions or limitations as it determines appropriate as to
the timing and manner of any resales by a Participant or other subsequent transfer by the
Participant of any Shares issued as a result of or under an Award, including without limitation,
(A) restrictions under an insider trading policy, and (B) restrictions as to the use of a specified
brokerage firm for such resales or other transfers; and




(xvii) make all other determinations deemed necessary or advisable for administering the Plan.



(c) Effect of Administrator’s Decision. The Administrator’s decisions, determinations
and interpretations will be final and binding on all Participants and any other holders of Awards.



5. Eligibility. Any Service Providers may be granted Nonstatutory Stock Options,
Restricted Stock, Stock Appreciation Rights, Performance Units, Performance Shares, Restricted
Stock Units and Other Stock-Based Awards. Incentive Stock Options may be granted only to
Participants who meet the definition of “employees” under Section 3401(c) of the Code.



6. Limitations.





(a) Incentive Stock Options.



(i) Plan Limit. The aggregate number of Shares actually issued or transferred by the
Company upon the exercise of Incentive Stock Options will not exceed 2,000,000 shares of Common
Stock; and



(ii) $100,000 Rule. Each Option will be designated in the Award Agreement as either an
Incentive Stock Option or a Nonstatutory Stock Option. However, notwithstanding such designation,
to the extent that the aggregate Fair Market Value of the Shares with respect to which Incentive
Stock Options are exercisable for the first time by the Participant during any calendar year (under
all plans of the Company and any Parent or Subsidiary) exceeds $100,000, such Options will be
treated as Nonstatutory Stock Options. For purposes of this Section 6(a)(ii), Incentive Stock
Options will be taken into account in the order in which they were granted. The Fair Market Value
of the Shares will be determined as of the time the Option with respect to such Shares is granted.



(b) No Rights as a Service Provider. Neither the Plan nor any Award shall confer upon
a Participant any right with respect to continuing his or her relationship as a Service Provider,
nor shall they interfere in any way with the right of the Participants or the right of the Company
or its Parent or Subsidiaries to terminate such relationship at any time, with or without cause.


 


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(c) Individual Limitations on Awards.



(i) Individual Limit for Options and SARs. The maximum number of Shares with respect
to which Options and SARs may be granted to any Participant in any calendar year shall be 50,000.
The foregoing limitation shall be adjusted proportionately in connection with any change in the
Company’s capitalization pursuant to Section 15 below. To the extent required by Section 162(m) of
the Code or the regulations thereunder, in applying the foregoing
limitations with respect to a Participant, if any Option or SAR is canceled, the canceled
Option or SAR shall continue to count against the maximum number of Shares with respect to which
Options and SARs may be granted to the Participant. For this purpose, the repricing of an Option
(or in the case of a SAR, the base amount on which the stock appreciation is calculated is reduced
to reflect a reduction in the Fair Market Value of the Common Stock) shall be treated as the
cancellation of the existing Option or SAR and the grant of a new Option or SAR.



(ii) Individual Limit for Restricted Stock, Restricted Stock Units, Performance Share and
Performance Units. For awards of Restricted Stock, Restricted Stock Units, Other Stock-Based
Awards, Performance Shares and Performance Units that are intended to be Performance-Based
Compensation, the maximum number of Shares with respect to which such Awards may be granted to any
Participant in any calendar year shall be 50,000. The foregoing limitation shall be adjusted
proportionately in connection with any change in the Company’s capitalization pursuant to
Section 15 below.



(d) Performance-Based Exercise Price. In the case of Awards intended to qualify as
Performance-Based Compensation, the exercise or purchase price, if any, shall be no less than 100%
of the Fair Market Value per Share on the date of grant.



(e) Vesting of Restricted Stock, Restricted Stock Units, Performance Shares and
Performance Units. Awards of Restricted Stock, Restricted Stock Units, Performance Shares and
Performance Units issued under the Plan shall vest and be released from the risk of forfeiture over
a period of no less than one (1) year measured from the date of issuance of the Award. As provided
in Section 4(b)(viii), the vesting schedule for awards of Restricted Stock, Restricted Stock Units,
Performance Shares and Performance Units may only be amended in the event of a Change in Control or
in the event of the Participant’s death or Disability.



7. Stock Options.



(a) Term of Option. The term of each Option will be designated by the Administrator in
each Award Agreement, provided, however, that no Option shall be exercisable for a period of more
than ten (10) years from the date of grant. Moreover, in the case of an Incentive Stock Option
granted to a Participant who, at the time the Incentive Stock Option is granted, owns stock
representing more than ten percent (10%) of the total combined voting power of all classes of stock
of the Company or any Parent or Subsidiary, the term of the Incentive Stock Option will be five
(5) years from the date of grant or such shorter term as may be provided in the Award Agreement.


 


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(b) Option Exercise Price and Consideration.



(i) Exercise Price. The per Share exercise price for the Shares to be issued pursuant
to exercise of an Option will be determined by the Administrator, subject to the following:




(1) In the case of an Incentive Stock Option




(A) granted to an Employee who, at the time the Incentive Stock Option
is granted, owns stock representing more than ten percent (10%) of the
voting power of all classes of stock of the Company or any Parent or
Subsidiary, the per Share exercise price will be no less than 110% of the
Fair Market Value per Share on the date of grant.




(B) granted to any Employee other than an Employee described in
paragraph (A) immediately above, the per Share exercise price will be no
less than 100% of the Fair Market Value per Share on the date of grant.




(2) In the case of a Nonstatutory Stock Option, the per Share exercise price
will be no less than 100% of the Fair Market Value per Share on the date of grant.




(3) Notwithstanding the foregoing, in the case of an Option issued pursuant to
a merger or other corporate transaction, the exercise price for the Option shall be
determined in accordance with the provisions of the relevant instrument evidencing
the agreement to issue such Award.



(ii) Performance Objectives. Any grant of an Option may specify Performance Objectives
that must be achieved as a condition to the exercise of such Option.



(iii) Waiting Period and Exercise Dates. At the time an Option is granted, the
Administrator will fix the period within which the Option may be exercised and will determine any
conditions that must be satisfied before the Option may be exercised.



(c) Form of Consideration. The Administrator will determine the acceptable form of
consideration for exercising an Option, including the method of payment. In the case of an
Incentive Stock Option, the Administrator will determine the acceptable form of consideration at
the time of grant. Such consideration to the extent permitted by Applicable Laws may consist
entirely of:




(i) cash;




(ii) check;



(iii) other Shares which meet the conditions established by the Administrator to avoid adverse
accounting consequences (as determined by the Administrator);



(iv) consideration received by the Company under a cashless exercise program implemented by
the Company in connection with the Plan;




(v) any combination of the foregoing methods of payment; or



(vi) such other consideration and method of payment for the issuance of Shares to the extent
permitted by Applicable Laws.


 


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(d) Exercise of Option.



(i) Procedure for Exercise; Rights as a Shareholder. Any Option granted hereunder will
be exercisable according to the terms of the Plan and at such times and under such conditions as
determined by the Administrator and set forth in the Award Agreement. An Option may not be
exercised for a fraction of a Share.



An Option will be deemed exercised when the Company receives: (x) written notice of exercise
(in accordance with the Award Agreement) from the person entitled to exercise the Option, and
(y) full payment for the Shares with respect to which the Option is exercised. Full payment may
consist of any consideration and method of payment authorized by the Administrator and permitted by
the Award Agreement and the Plan. Shares issued upon exercise of an Option will be issued in the
name of the Participant or, if requested by the Participant, in the name of the Participant and his
or her spouse or the Participant’s nominee. Until the Shares are issued (as evidenced by the
appropriate entry on the books of the Company or of a duly authorized transfer agent of the
Company), no right to vote or receive dividends or any other rights as a shareholder will exist
with respect to the Awarded Stock, notwithstanding the exercise of the Option. The Company will
issue (or cause to be issued) such Shares promptly after the Option is exercised. No adjustment
will be made for a dividend or other right for which the record date is prior to the date the
Shares are issued, except as provided in Section 15 of the Plan or the applicable Award Agreement.



(ii) Termination of Relationship as a Service Provider. If a Participant ceases to be
a Service Provider, other than upon the Participant’s death or Disability, the Participant may
exercise his or her Option within such period of time as is specified in the Award Agreement to the
extent that the Option is vested on the date of termination (but in no event later than the
expiration of the term of such Option as set forth in the Award Agreement). In the absence of a
specified time in the Award Agreement, the Option will remain exercisable until the earlier of (A)
the expiration of its original term or (B) ninety (90) days following the Participant’s
termination. Unless otherwise provided by the Administrator, if on the date of termination the
Participant is not vested as to his or her entire Option, the Shares covered by the unvested
portion of the Option will revert immediately to the Plan on the date of the Participant’s
termination. If after termination the Participant does not exercise his or her Option within the
time specified by the Administrator, the Option will terminate, and the Shares covered by such
Option will revert to the Plan.



(iii) Disability of Participant. If a Participant ceases to be a Service Provider as a
result of the Participant’s Disability, the Participant may exercise his or her Option within such
period of time as specified in the Award Agreement to the extent the Option is vested on the date
of termination (but in no event later than the expiration of the term of such Option as set forth
in the Award Agreement). In the absence of a specified time in the Award Agreement, the Option will
remain exercisable until the earlier of (A) the expiration of the its original term or (B)
one-hundred and eighty (180) days following the Participant’s termination.



Unless otherwise provided by the Administrator, if on the date of termination the Participant
is not vested as to his or her entire Option, the Shares covered by the unvested portion of the
Option will immediately revert to the Plan on the date of the Participant’s termination. If after
the termination the Participant does not exercise his or her Option within the time specified
herein, the Option will terminate, and the Shares covered by such Option will revert to the Plan.


 


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(iv) Death of Participant. If a Participant dies while a Service Provider, the Option
may be exercised following the Participant’s death within such period of time as is specified in
the Award Agreement to the extent that the Option is vested on the date of death (but in no event
may the option be exercised later than the expiration of the term of such Option as set forth in
the Award Agreement), by the Participant’s designated beneficiary, provided such beneficiary has
been designated prior to Participant’s death in a form acceptable to the Administrator. If no such
beneficiary has been designated by the Participant, then such Option may be exercised by the
personal representative of the Participant’s estate or by the person(s) to whom the Option is
transferred pursuant to the Participant’s will or in accordance with the laws of descent and
distribution. In the absence of a specified time in the Award Agreement, the Option will remain
exercisable until the earlier of (A) the expiration of its original term or (B) the first
anniversary of the Participant’s death. Unless otherwise provided by the Shares covered by the
unvested portion of the Option will immediately revert to the Plan on the date of the Participant’s
death. If the Option is not so exercised within the time specified herein, the Option will
terminate, and the Shares covered by such Option will revert to the Plan.



8. Restricted Stock.



(a) Grant of Restricted Stock. Subject to the terms and provisions of the Plan, the
Administrator, at any time and from time to time, may grant Shares of Restricted Stock to Service
Providers in such amounts as the Administrator, in its sole discretion, determines.



(b) Restricted Stock Agreement. Each Award of Restricted Stock will be evidenced by an
Award Agreement that will specify the Period of Restriction, the number of Shares granted, and such
other terms and conditions as the Administrator, in its sole discretion, determines. Unless the
Administrator determines otherwise, Shares of Restricted Stock will be held by the Company as
escrow agent until the restrictions on such Shares have lapsed.



(c) Transferability. Except as provided in this Section 8, Shares of Restricted Stock
may not be sold, transferred, pledged, assigned, or otherwise alienated or hypothecated until the
end of the applicable Period of Restriction.



(d) Other Restrictions. The Administrator, in its sole discretion, may impose such
other restrictions on Shares of Restricted Stock as it may deem advisable or appropriate.



(e) Removal of Restrictions. Except as otherwise provided in this Section 8, Shares of
Restricted Stock covered by each Restricted Stock grant made under the Plan will be released from
escrow as soon as practicable after the last day of the Period of Restriction. The Administrator,
in its sole discretion and in compliance with Section 4(b)(viii), may accelerate the time at which
any restrictions will lapse or be removed.



(f) Performance Objectives. Any grant of Restricted Stock may specify Performance
Objectives that, if achieved, will result in termination or early termination of the restrictions
applicable to such Restricted Stock.



(g) Voting Rights. During the Period of Restriction, Service Providers holding Shares
of Restricted Stock granted hereunder may exercise full voting rights with respect to those Shares,
unless the Administrator determines otherwise.


 


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(h) Dividends and Other Distributions. During the Period of Restriction, Service
Providers holding Shares of Restricted Stock will be entitled to receive all dividends and other
distributions paid with respect to such Shares unless otherwise provided in the Award Agreement. If
any such dividends or distributions are paid in Shares, the Shares will be subject to the same
restrictions on transferability and forfeitability as the Shares of Restricted Stock with respect
to which they were paid.



(i) Return of Restricted Stock to Company. On the date set forth in the Award
Agreement, the Restricted Stock for which restrictions have not lapsed will revert to the Company
and again will become available for grant under the Plan.



9. Stock Appreciation Rights.



(a) Grant of SARs. Subject to the terms and conditions of the Plan, a SAR may be
granted to Service Providers at any time and from time to time as will be determined by the
Administrator, in its sole discretion.



(b) Number of Shares. The Administrator will have complete discretion to determine the
number of SARs granted to any Service Provider.



(c) Exercise Price and Other Terms. The Administrator, subject to the provisions of
the Plan, will have complete discretion to determine the terms and conditions of SARs granted under
the Plan. Notwithstanding anything in this Plan to the contrary, the per Share base price for each
SAR granted under this Plan will be no less than 100% of the Fair Market Value per Share on the
date of grant.



(d) Performance Objectives. Any grant of a SAR may specify Performance Objectives that
must be achieved as a condition to the exercise of such rights.



(e) Exercise of SARs. SARs will be exercisable on such terms and conditions as the
Administrator, in its sole discretion, determines.



(f) SAR Agreement. Each SAR grant will be evidenced by an Award Agreement that will
specify the exercise price, the term of the SAR, the conditions of exercise, and such other terms
and conditions as the Administrator, in its sole discretion, determines.



(g) Expiration of SARs. A SAR granted under the Plan will expire upon the date
determined by the Administrator, in its sole discretion, and set forth in the Award Agreement.
Notwithstanding the foregoing, the rules of Section 7(d)(ii), 7(d)(iii) and 7(d)(iv) also will
apply to SARs.



(h) Payment of SAR Amount. Upon exercise of a SAR, a Participant will be entitled to
receive payment from the Company in an amount determined by multiplying:



(i) The difference between the Fair Market Value of a Share on the date of exercise over the
exercise price; times



(ii) The number of Shares with respect to which the SAR is exercised.


 


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At the discretion of the Administrator, the payment upon SAR exercise may be in cash, in Shares of
equivalent value, or in some combination thereof.



10. Performance Units and Performance Shares.



(a) Grant of Performance Units/Shares. Subject to the terms and conditions of the
Plan, Performance Units and Performance Shares may be granted to Service Providers at any time and
from time to time, as determined by the Administrator, in its sole discretion. Subject to Section
6(c)(ii), the Administrator will have complete discretion in determining the number of Performance
Units and Performance Shares granted to each Participant.



(b) Value of Performance Units/Shares. Each Performance Unit will have an initial
value that is established by the Administrator on or before the date of grant. Each Performance
Share will have an initial value equal to the Fair Market Value of a Share on the date of grant.



(c) Performance Objectives and Other Terms. The Administrator will set Performance
Objectives in its discretion which, depending on the extent to which they are met, will determine
the number or value of Performance Units/Shares that will be paid to the Service Providers. The
time period during which the Performance Objectives must be met will be called the “Performance
Period.” Each Award of Performance Units/Shares will be evidenced by an Award Agreement that will
specify the Performance Period, and such other terms and conditions as the Administrator, in its
sole discretion, determines. Partial achievement of the specified Performance Objectives may result
in a payment or vesting corresponding to the degree of achievement as specified in the Award
Agreement.



(d) Earning of Performance Units/Shares. After the applicable Performance Period has
ended, the holder of Performance Units/Shares will be entitled to receive a payout of the number of
Performance Units/Shares earned by the Participant over the Performance Period, to be determined as
a function of the extent to which the corresponding Performance Objectives have been achieved.



(e) Form and Timing of Payment of Performance Units/Shares. Payment of earned
Performance Units/Shares will be made as soon after the expiration of the applicable Performance
Period as determined by the Administrator. The Administrator, in its sole discretion, may pay
earned Performance Units/Shares in the form of cash, in Shares (which have an aggregate Fair Market
Value equal to the value of the earned Performance Units/Shares at the close of the applicable
Performance Period) or in a combination thereof.



(f) Cancellation of Performance Units/Shares. On the date set forth in the Award
Agreement, all unearned or unvested Performance Units/Shares will be forfeited to the Company, and
again will be available for grant under the Plan.


 


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11. Restricted Stock Units. Restricted Stock Units may be earned in whole or in part upon
the passage of time or the attainment of Performance Objectives established by the Administrator
and which may be settled for cash, Shares or other securities or a combination of cash, Shares or
other securities as established by the Administrator.



12. Other Stock-Based Awards. Other Stock-Based Awards may be granted either alone, in
addition to, or in tandem with, other Awards granted under the Plan and/or cash awards made outside
of the Plan. The Administrator shall have authority to determine the Service Providers to whom and
the time or times at which Other Stock-Based Awards shall be made, the amount of such Other
Stock-Based Awards, and all other conditions of the Other Stock-Based Awards, which may include the
achievement of Performance Objectives and any dividend and/or voting rights.



13. Leaves of Absence. Unless the Administrator provides otherwise, vesting of Awards
granted hereunder will be suspended during any unpaid leave of absence and will resume on the date
the Participant returns to work on a regular schedule as determined by the Company; provided,
however, that no vesting credit will be awarded for the time vesting has been suspended during such
leave of absence. A Service Provider will not cease to be an Employee in the case of (a) any leave
of absence approved by the Company or (b) transfers between locations of the Company or between the
Company, its Parent, or any Subsidiary. For purposes of Incentive Stock Options, no such leave may
exceed three (3) months, unless reemployment upon expiration of such leave is guaranteed by statute
or contract. If reemployment upon expiration of a leave of absence approved by the Company is not
so guaranteed, then three months following the expiration of such three (3) month period any
Incentive Stock Option held by the Participant will cease to be treated as an Incentive Stock
Option and will be treated for tax purposes as a Non Statutory Stock Option.



14. Non Transferability of Awards. Unless determined otherwise by the Administrator, an
Award may not be sold, pledged, assigned, hypothecated, transferred, or disposed of in any manner
other than by will or by the laws of descent or distribution and may be exercised, during the
lifetime of the Participant, only by the Participant. If the Administrator makes an Award
transferable, such Award Agreement will contain such additional terms and conditions as the
Administrator deems appropriate.



15. Adjustments; Dissolution or Liquidation; Change in Control.



(a) Adjustments. Subject to any required action by the shareholders of the Company,
the number of Shares covered by each outstanding Award, and the number of Shares which have been
authorized for issuance under the Plan but as to which no Awards have yet been granted or which
have been returned to the Plan, the exercise or purchase price of each such outstanding Award, the
maximum number of Shares with respect to which Awards may be granted to any Participant in any
calendar year, as well as any other terms that the Administrator determines require adjustment
shall be proportionately adjusted for (i) any increase or decrease in the number of issued Shares
resulting from a stock split, reverse stock split, stock dividend, combination or reclassification
of the Shares, or similar transaction affecting the Shares, (ii) any other increase or decrease in
the number of issued Shares effected without receipt of consideration by the Company, or (iii) any
other transaction with respect to Common Stock including a corporate merger,



 


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consolidation, acquisition of property or stock, separation
(including a spin-off or other distribution of stock or property), reorganization, liquidation
(whether partial or complete) or any similar transaction; provided, however that conversion of any
convertible securities of the Company shall not be deemed to have been “effected without receipt of
consideration.” In the event of any distribution of cash or other assets to shareholders other than
a normal cash dividend, the Administrator may also, in its discretion, make adjustments described
in (i)-(iii) of this Section 15(a) or substitute, exchange or grant Awards with respect to the
shares of a Parent of Subsidiary of the Company (collectively “adjustments”). In determining
adjustments to be made under this Section 15(a), the Administrator may take into account such
factors as it deems appropriate, including (x) the restrictions of Applicable Law, (y) the
potential tax, accounting or other consequences of an adjustment and (z) the possibility that some
Participants might receive an adjustment and a distribution or other unintended benefit, and in
light of such factors or circumstances may make adjustments that are not uniform or proportionate
among outstanding Awards, modify vesting dates, defer the delivery of stock certificates or make
other equitable adjustments. Any such adjustments to outstanding Awards will be effected in a
manner that precludes the material enlargement of rights and benefits under such Awards.
Adjustments, if any, and any determinations or interpretations, including any determination of
whether a distribution is other than a normal cash dividend, shall be made by the Administrator and
its determination shall be final, binding and conclusive. In connection with the foregoing
adjustments, the Administrator may, in its discretion, prohibit the exercise of Awards during
certain periods of time. Except as the Administrator determines, no issuance by the Company of
shares of any class, or securities convertible into shares of any class, shall affect, and no
adjustment by reason hereof shall be made with respect to, the number or price of Shares subject to
an Award.



(b) Dissolution or Liquidation. In the event of the proposed dissolution or
liquidation of the Company, the Administrator will notify each Participant as soon as practicable
prior to the effective date of such proposed transaction. The Administrator in it sole discretion
may provide for a Participant to have the right to exercise his or her Award, to the extent
applicable, until ten (10) days prior to such transaction as to all of the Awarded Stock covered
thereby, including Shares as to which the Award would not otherwise be exercisable. In addition,
the Administrator may provide that any Company repurchase option or forfeiture rights applicable to
any Award shall lapse 100%, and that any Award vesting shall accelerate 100%, provided the proposed
dissolution or liquidation takes place at the time and in the manner contemplated. To the extent it
has not been previously exercised or vested, an Award will terminate immediately prior to the
consummation of such proposed action.


 


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(c) Change in Control.



(i) Stock Options and SARs. In the event of a Change in Control, each outstanding
Option and SAR shall be assumed or an equivalent option or SAR substituted by the successor
corporation or a Parent or Subsidiary of the successor corporation. With respect to Options and
SARs granted to an Outside Director, the Participant shall fully vest in and have the right to
exercise such Options and SARs as to all of the Awarded Stock, including Shares as to which it
would not otherwise be vested or exercisable, immediately prior to the Change in Control. Unless
determined otherwise by the Administrator, in the event that the successor corporation refuses to
assume or substitute for the Option or SAR, the Participant shall fully vest
in and have the right to exercise the Option or SAR as to all of the Awarded Stock, including
Shares as to which it would not otherwise be vested or exercisable. If an Option or SAR is not
assumed or substituted in the event of a Change in Control, the Administrator shall notify the
Participant in writing or electronically that the Option or SAR shall be exercisable, to the extent
vested, for a period of time (as determined by the Administrator) following the date of such
notice, and the Option or SAR shall terminate upon the expiration of such period. For the purposes
of this paragraph, the Option or SAR shall be considered assumed if, following the Change in
Control, the option or stock appreciation right confers the right to purchase or receive, for each
Share of Awarded Stock subject to the Option or SAR immediately prior to the Change in Control, the
consideration (whether stock cash, or other securities or property) received in the Change in
Control by holders of Common Stock for each Share held on the effective date of the transaction
(and if holders were offered a choice of consideration, the type of consideration chosen by the
holders of a majority of the outstanding Shares); provided, however, that if such consideration
received in the Change in Control is not solely common stock of the successor corporation or its
Parent, the Administrator may, with the consent of the successor corporation, provide for the
consideration to be received upon the exercise of the Option or SAR, for each Share of Awarded
Stock subject to the Option or SAR, to be solely common stock of the successor corporation or its
Parent equal in fair market value to the per share consideration received by holders of Common
Stock in the Change in Control. Notwithstanding anything herein to the contrary, an Award that
vests, is earned or paid out upon the satisfaction of one or more performance goals will not be
considered assumed if the Company or its successor modifies any of such performance goals without
the Participant’s consent; provided, however, a modification to such performance goals only to
reflect the successor corporation’s post-Change in Control corporate structure will not be deemed
to invalidate an otherwise valid Award assumption.



(ii) Restricted Stock, Performance Shares, Performance Units, Restricted Stock Units and
Other Stock-Based Awards. In the event of a Change in Control, each outstanding Restricted
Stock, Performance Share, Performance Unit, Other Stock-Based Award and Restricted Stock Unit
awards shall be assumed or an equivalent Restricted Stock, Performance Share, Performance Unit,
Other Stock-Based Award and Restricted Stock Unit award substituted by the successor corporation or
a Parent or Subsidiary of the successor corporation. With respect to Awards granted to an Outside
Director, the Participant shall fully vest in such Awards, including Shares as to which it would
not otherwise be vested or exercisable, immediately prior to the Change in Control. Unless
determined otherwise by the Administrator, in the event that the successor corporation refuses to
assume or substitute for the Restricted Stock, Performance Share, Performance Unit, Other
Stock-Based Award and Restricted Stock Unit award, the Participant shall fully vest in the
Restricted Stock, Performance Share, Performance Unit, Other Stock-Based Award or Restricted Stock
Unit including as to Shares which would not otherwise be vested. If an award of Restricted Stock,
Performance Shares, Performance Units, Other Stock-Based Awards or Restricted Stock Units is not
assumed or substituted in the event of a Change in Control, the Administrator shall notify the
Participant in writing or electronically that such Award shall be exercisable, to the extent
vested, for a period of time (as determined by the Administrator) following the date of such
notice, and that such Award shall terminate upon the expiration of such period. For purposes of
this paragraph, Restricted Stock, Performance Share, Performance Unit, Other Stock-Based Award and
Restricted Stock Unit award shall be considered assumed if, following
the Change in Control, the award confers the



 


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right to purchase or receive, for each Share subject to the Award
immediately prior to the Change in Control, the consideration (whether stock, cash, or other
securities or property) received in the Change in Control by holders of Common Stock for each Share
held on the effective date of the transaction (and if holders were offered a choice of
consideration, the type of consideration chosen by the holders of a majority of the outstanding
Shares); provided, however, that if such consideration received in the Change in Control is not
solely common stock of the successor corporation or its Parent, the Administrator may, with the
consent of the successor corporation, provide for the consideration to be solely common stock of
the successor corporation or its Parent equal in fair market value to the per share consideration
received by holders of Common Stock in the Change in Control. Notwithstanding anything herein to
the contrary, an Award that vests, is earned or paid out upon the satisfaction of one or more
performance goals will not be considered assumed if the Company or its successor modifies any of
such performance goals without the Participant’s consent; provided, however, a modification to such
performance goals only to reflect the successor corporation’s post-Change in Control corporate
structure will not be deemed to invalidate an otherwise valid Award assumption.



16. Date of Grant. The date of grant of an Award will be, for all purposes, the date on
which the Administrator makes the determination granting such Award, or such other later date as is
determined by the Administrator. Notice of the determination will be provided to each Participant
within a reasonable time after the date of such grant.



17. Term of Plan. Subject to Section 22 of the Plan, the Plan will become effective upon
receipt of shareholder approval as set forth in Section 22 of the Plan. It will continue in effect
for a term ending on May 24, 2015, which date is ten (10) years from the date of adoption of the
Company’s 2005 Stock Plan by the Board, unless terminated earlier under Section 18 of the Plan.



18. Amendment and Termination of the Plan.



(a) Amendment and Termination. The Board may at any time amend, alter, suspend or
terminate the Plan.



(b) Shareholder Approval. The Company will obtain shareholder approval of any Plan
amendment to the extent necessary and desirable to comply with Applicable Laws, or if such
amendment would change any of the provisions of Section 4(b)(viii) or this Section 18(b).



(c) Effect of Amendment or Termination. Subject to Section 20, no amendment,
alternation, suspension or termination of the Plan will impair the rights of any Participant,
unless mutually agreed otherwise between the Participant and the Administrator, which agreement
must be in writing and signed by the Participant and the Company. Termination of the Plan will not
affect the Administrator’s ability to exercise the powers granted to it hereunder with respect to
Awards granted under the Plan prior to the date of such termination.


 


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19. Conditions Upon Issuance of Shares.



(a) Legal Compliance. Shares will not be issued pursuant to the exercise of an Award
unless the exercise of such Award and issuance and delivery of such Shares will comply with
Applicable Laws and will be further subject to the approval of counsel for the Company with
respect to such compliance.



(b) Investment Representations. As a condition to the exercise or receipt of an Award,
the Company may require the person exercising or receiving such Award to represent and warrant at
the time of any such exercise or receipt that the Shares are being purchased only for investment
and without any present intention to sell or distribute such Shares if, in the opinion of counsel
for the Company, such a representation is required.



20. Severability. Notwithstanding any contrary provision of the Plan or an Award to the
contrary, if any one or more of the provisions (or any part thereof) of this Plan or the Awards
shall be held invalid, illegal or unenforceable in any respect, such provision shall be modified so
as to make it valid, legal and enforceable, and the validity, legality and enforceability of the
remaining provisions (or any part thereof) of the Plan or Award, as applicable, shall not in any
way be affected or impaired thereby.



21. Inability to Obtain Authority. The inability of the Company to obtain authority from
any regulatory body having jurisdiction, which authority is deemed by the Company’s counsel to be
necessary for the lawful issuance and sale of any Shares hereunder, will relieve the Company of any
liability with respect to the failure to issue or sell such Shares as to which such requisite
authority will not have been obtained.



22. Compliance with Section 409A of the Code.




(a) To the extent applicable, it is intended that this Plan and any grants made hereunder
comply with the provisions of Section 409A of the Code, so that the income inclusion provisions of
Section 409A(a)(1) of the Code do not apply to the Participants. This Plan and any grants made
hereunder shall be administered in a manner consistent with this intent. Any reference in this
Plan to Section 409A of the Code will also include any regulations or any other formal guidance
promulgated with respect to such Section by the U.S. Department of the Treasury or the Internal
Revenue Service.



(b) Neither a Participant nor any of a Participant’s creditors or beneficiaries shall have the
right to subject any deferred compensation (within the meaning of Section 409A of the Code) payable
under this Plan and grants hereunder to any anticipation, alienation, sale, transfer, assignment,
pledge, encumbrance, attachment or garnishment. Except as permitted under Section 409A of the
Code, any deferred compensation (within the meaning of Section 409A of the Code) payable to a
Participant or for a Participant’s benefit under this Plan and grants hereunder may not be reduced
by, or offset against, any amount owing by a Participant to the Company or any of its affiliates.


 


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(c) If, at the time of a Participant’s separation from service (within the meaning of Section
409A of the Code), (i) the Participant is a specified employee (within the meaning of Section 409A
of the Code and using the identification methodology selected by the Company from time to time);
and (ii) the Company makes a good faith determination that an amount payable hereunder constitutes
deferred compensation (within the meaning of Section 409A of the Code), the payment of which is
required to be delayed pursuant to the six-month delay rule set
forth in Section 409A of the Code in order to avoid taxes or penalties under Section 409A of
the Code; then the Company shall not pay such amount on the otherwise scheduled payment date but
shall instead pay it, without interest, on the first business day of the month after such six-month
period.



(d) Notwithstanding any provision of this Plan and grants hereunder to the contrary, in light
of the uncertainty with respect to the proper application of Section 409A of the Code, the Company
reserves the right to make amendments to this Plan and grants hereunder as the Company deems
necessary or desirable to avoid the imposition of taxes or penalties under Section 409A of the
Code. In any case, a Participant shall be solely responsible and liable for the satisfaction of
all taxes and penalties that may be imposed on a Participant or for a Participant’s account in
connection with this Plan and grants hereunder (including any taxes and penalties under Section
409A of the Code), and neither the Company nor any of its affiliates shall have any obligation to
indemnify or otherwise hold a Participant harmless from any or all of such taxes or penalties.



23. Shareholder Approval. The Plan will be subject to approval by the shareholders of the
Company within twelve (12) months after the date the Plan is adopted. Such shareholder approval
will be obtained in the manner and to the degree required under Applicable Laws.



* * * * * * *





 


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