Registration No. 33-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________________
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
__________________
SCHULTZ SAV-O STORES, INC.
(Exact name of registrant as specified in its charter)
Wisconsin 39-0600405
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
2215 Union Avenue
Sheboygan, Wisconsin 53081
(Address of principal executive offices) (Zip Code)
Schultz Sav-O Stores, Inc.
1995 Equity Incentive Plan
(Full title of the plans)
____________________
James H. Dickelman
Schultz Sav-O Stores, Inc.
2215 Union Avenue
Sheboygan, Wisconsin 53081
(414) 457-4433
(Name, address and telephone number,
including area code, of agent for service)
__________________________
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum
Title of Amount Offering Aggregate Amount of
Securities to to be Price Offering Registration
be Registered Registered Per Share Price Fee
Common Stock, 250,000 $21.50(1) $5,375,000(1) $1,854
$0.05 par shares
value
Common Stock 250,000 (2) (2) (2)
Purchase Rights rights
(1) Estimated pursuant to Rule 457(c) under the Securities Act of
1933 solely for the purpose of calculating the registration fee
based on the average of the high and low prices for Schultz Sav-O
Stores, Inc. Common Stock on the Nasdaq National Market on
May 16, 1995.
(2) The value attributable to the Common Stock Purchase Rights is
reflected in the market price of the Common Stock to which the
Rights are attached.
_________________________________
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document or documents containing the information specified
in Part I are not required to be filed with the Securities and Exchange
Commission (the "Commission") as part of this Form S-8 Registration
Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Commission by Schultz
Sav-O Stores, Inc. (the "Company") are hereby incorporated herein by
reference:
1. The Company's Annual Report on Form 10-K for the year ended
December 31, 1994, which includes certified financial statements as of and
for the year ended December 31, 1994.
2. All other reports filed since December 31, 1994 by the
Company pursuant to Section 13(a) or 15(d) of the Securities Exchange Act
of 1934.
3. The description of the Company's Common Stock contained
under the Section entitled "Description of Capital Stock" in the Company's
Form S-2 Registration Statement No. 33-27171, dated March 22, 1989, and
any amendments or reports filed by the Company for the purpose of updating
such description.
4. The description of the Rights contained in Item 1 of the
Company's Registration Statement on Form 8-A, dated December 21, 1988, and
any amendments or reports filed for the purpose of updating such
description, including the amendment to the description of the Rights
contained in Item 1 of the Form 8 Amendment to the Form 8-A Registration
Statement, dated as of February 20, 1989 and the Letter dated June 30,
1992 appointing Firstar Trust Company as the successor rights agent under
the Rights Agreement.
All documents subsequently filed by the Company or the Plan
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange
Act of 1934, as amended, after the date of filing of this Registration
Statement and prior to such time as the Company files a post-effective
amendment to this Registration Statement which indicates that all
securities offered hereby have been sold or which deregisters all
securities then remaining unsold shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the
date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Bernard S. Kubale, a Director of the Company, is a partner at
Foley & Lardner, which serves as the Company's general counsel.
Item 6. Indemnification of Directors and Officers.
Pursuant to the Wisconsin Business Corporation Law, directors
and officers of the Company are entitled to mandatory indemnification from
the Company against certain liabilities and expenses (i) to the extent
such officers or directors are successful in the defense of a proceeding
and (ii) in proceedings in which the director or officer is not successful
in defense thereof, unless it is determined that the director or officer
breached or failed to perform his or her duties to the Company and such
breach or failure constituted: (a) a willful failure to deal fairly with
the Company or its shareholders in connection with a matter in which the
director or officer had a material conflict of interest; (b) a violation
of the criminal law unless the director or officer had reasonable cause to
believe his or her conduct was lawful or had no reasonable cause to
believe his or her conduct was unlawful; (c) a transaction from which the
director or officer derived an improper personal profit; or (d) willful
misconduct. It should be noted that the Wisconsin Business Corporation
Law specifically states that it is the public policy of Wisconsin to
require or permit indemnification in connection with a proceeding
involving securities regulation, as described therein, to the extent
required or permitted as described above. Additionally, under the
Wisconsin Business Corporation Law, directors of the Company are not
subject to personal liability to the Company, its shareholders or any
person asserting rights on behalf thereof for certain breaches or failures
to perform any duty resulting solely from their status as directors except
in circumstances paralleling those in subparagraphs (a) through (d)
outlined above.
The Company's By-Laws contain similar indemnification provisions
as to directors and officers of the Company.
The Company has entered into individual indemnity agreements
with its directors and certain officers. Generally, the agreements state
that the director or officer who is a party thereto shall be indemnified
against expenses, amounts paid in settlement and judgments, fines,
penalties and/or other amounts incurred with respect to any threatened,
pending or completed proceeding (including, without limitation,
proceedings brought under and/or predicated upon the Securities Act and/or
the Exchange Act), unless it is determined that the director or officer
breached or failed to perform his or her duties to the Company and such
breach or failure constitutes (i) a willful failure to deal fairly with
the Company or its shareholders; (ii) a violation of the criminal law,
unless the director or officer had reasonable cause to believe his or her
conduct was lawful or had no reasonable cause to believe his or her
conduct was unlawful; (iii) a transaction from which the director or
officer derived an improper personal profit; or (iv) willful misconduct.
In addition, with respect to the indemnification of settlement amounts,
the Company will not indemnify a director or officer for amounts paid in
settlement without the Company's written consent.
Expenses for the defense of any action for which indemnification
may be available may be advanced by the Company under certain
circumstances.
The Company maintains an insurance policy which indemnifies its
officers and directors against certain liabilities.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
The following exhibits have been filed (except where otherwise
indicated) as part of this Registration Statement:
Exhibit No. Exhibit
(4.1) Schultz Sav-O Stores, Inc. 1995
Equity Incentive Plan
(4.2) Restated Articles of
Incorporation, as amended
[Incorporated by reference to
Exhibit 3.1 to the Company's
Annual Report on Form 10-K for
the year ended December 31,
1988]
(4.3) Rights Agreement dated December
20, 1988 between the Company and
First Bank (N.A.), Milwaukee,
Wisconsin [Incorporated by
reference to Exhibit 4 to
Company's Current Report on
Form 8-K dated December 21,
1988]
(4.4) Amendment to Rights Agreement
dated February 2, 1989 between
the Company and First Bank
(N.A.), Milwaukee, Wisconsin
[Incorporated by reference to
Exhibit 2 to the Company's Form
8 dated February 20, 1989]
(4.5) Letter dated June 30, 1992
constituting appointment of
Firstar Trust Company (f/k/a
First Wisconsin Trust Company)
as the successor rights agent
under the Rights Agreement dated
December 20, 1988, as amended
[Incorporated by reference to
the Company's Annual Report on
Form 10-K dated March 31, 1994]
(5) Opinion of Foley & Lardner
(23.1) Consent of Arthur Andersen LLP
(23.2) Consent of Foley & Lardner
(contained in Exhibit 5 hereto)
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933, as amended;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement (or
the most recent post-effective amendment thereof) which, individually
or in the aggregate, represents a fundamental change in the
information set forth in the Registration Statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934, as amended, that are incorporated by reference in
the Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, as amended, each such post-effective amendment
shall be deemed to be a new Registration Statement relating to the
securities offered herein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, as
amended, each filing of the Registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Securities Exchange Act of 1934, as amended,
that is incorporated by reference in this Registration Statement shall be
deemed to be a new Registration Statement relating to the securities
offered herein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under
the Securities Act of 1933, as amended, may be permitted to directors,
officers and controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been advised that
in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of
expenses incurred or paid by a director, officer or controlling person of
the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will,
unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of
such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Sheboygan, State of Wisconsin,
on May 10, 1995.
SCHULTZ SAV-O STORES, INC.
By: /s/ John H. Dahly
John H. Dahly
Executive Vice President and
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
Signatures Title Date
/s/ James H. Dickelman Chairman of the Board, May 10, 1995
James H. Dickelman Chief Executive Officer
and Director (principal
executive officer)
/s/ John H. Dahly Executive Vice May 10, 1995
John H. Dahly President, Chief
Financial Officer and
Director (Principal
Financial and
Accounting Officer)
/s/ Howard C. Dickelman
Howard C. Dickelman Director May 10, 1995
/s/ Thomas H. Fox Director May 10, 1995
Thomas H. Fox
/s/ Bernard S. Kubale Director May 10, 1995
Bernard S. Kubale
/s/ Martin Crneckiy, Jr. Director May 10, 1995
Martin Crneckiy, Jr.
/s/ R. Bruce Grover Director May 10, 1995
R. Bruce Grover
/s/ Michael R. Houser Director May 10, 1995
Michael R. Houser
<PAGE>
EXHIBIT INDEX
Exhibit No. Exhibit
(4.1) Schultz Sav-O Stores, Inc. 1995
Equity Incentive Plan
(4.2) Restated Articles of
Incorporation, as amended
[Incorporated by reference to
Exhibit 3.1 to the Company's
Annual Report on Form 10-K for
the year ended December 31,
1988]
(4.3) Rights Agreement dated December
20, 1988 between the Company and
First Bank (N.A.), Milwaukee,
Wisconsin [Incorporated by
reference to Exhibit 4 to
Company's Current Report on
Form 8-K dated December 21,
1988]
(4.4) Amendment to Rights Agreement
dated February 2, 1989 between
the Company and First Bank
(N.A.), Milwaukee, Wisconsin
[Incorporated by reference to
Exhibit 2 to the Company's Form
8 dated February 20, 1989]
(4.5) Letter dated June 30, 1992
constituting appointment of
Firstar Trust Company (f/k/a
First Wisconsin Trust Company)
as the successor rights agent
under the Rights Agreement dated
December 20, 1988, as amended
[Incorporated by reference to
the Company's Annual Report on
Form 10-K dated March 31, 1994]
(5) Opinion of Foley & Lardner
(23.1) Consent of Arthur Andersen LLP
(23.2) Consent of Foley & Lardner
(contained in Exhibit 5 hereto)
Adopted 12/20/94
Effective 1/30/95
SCHULTZ SAV-O STORES, INC.
1995 EQUITY INCENTIVE PLAN
Section 1. Purpose
The purpose of Schultz Sav-O Stores, Inc. 1995 Equity Incentive
Plan (the "Plan") is to promote the best interests of Schultz Sav-O
Stores, Inc. (the "Company") and its shareholders by providing key
employees of the Company and its Affiliates (as defined below) with an
opportunity to acquire a, or increase their, proprietary interest in the
Company. It is intended that the Plan will promote continuity of
management and increased incentive and personal interest in the welfare of
the Company by those key employees who are primarily responsible for
shaping and carrying out the long-range plans of the Company and securing
the Company's continued growth and financial success.
Section 2. Definitions
As used in the Plan, the following terms shall have the
respective meanings set forth below:
(a) "Affiliate" shall mean any entity that, directly or through
one or more intermediaries, is controlled by, controls, or is under common
control with, the Company.
(b) "Award" shall mean any Option, Stock Appreciation Right,
Restricted Stock or Performance Share granted under the Plan.
(c) "Award Agreement" shall mean any written agreement,
contract or other instrument or document evidencing any Award granted
under the Plan.
(d) "Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
(e) "Commission" shall mean the Securities and Exchange
Commission.
(f) "Committee" shall mean the Compensation and Stock Option
Committee of the Board of Directors of the Company (or any other committee
thereof designated by such Board to administer the Plan); provided,
however, that the Committee is composed of not less than two directors,
each of whom is a "disinterested person" within the meaning of Rule 16b-3.
(g) "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended from time to time.
(h) "Fair Market Value" shall mean, with respect to any
property (including, without limitation, any Shares or other securities),
the fair market value of such property determined by such methods or
procedures as shall be established from time to time by the Committee.
(i) "Incentive Stock Option" shall mean an option granted under
Section 6(a) of the Plan that is intended to meet the requirements of
Section 422 of the Code (or any successor provision thereto).
(j) "Key Employee" shall mean any officer or other key employee
of the Company or of any Affiliate who is responsible for or contributes
to the management, growth or profitability of the business of the Company
or any Affiliate as determined by the Committee in its discretion.
(k) "Non-Qualified Stock Option" shall mean an option granted
under Section 6(a) of the Plan that is not intended to be an Incentive
Stock Option.
(l) "Option" shall mean an Incentive Stock Option or a Non-
Qualified Stock Option.
(m) "Participating Key Employee" shall mean a Key Employee
designated to be granted an Award under the Plan.
(n) "Performance Period" shall mean, in relation to Performance
Shares, any period for which a performance goal or goals have been
established.
(o) "Performance Share" shall mean any right granted under
Section 6(d) of the Plan that will be paid out as a Share (which, in
specified circumstances, may be a Share of Restricted Stock).
(p) "Person" shall mean any individual, corporation,
partnership, association, joint-stock company, trust, unincorporated
organization or government or political subdivision thereof.
(q) "Released Securities" shall mean Shares of Restricted Stock
with respect to which all applicable restrictions have expired, lapsed or
been waived.
(r) "Restricted Securities" shall mean Awards of Restricted
Stock or other Awards under which issued and outstanding Shares are held
subject to certain restrictions.
(s) "Restricted Stock" shall mean any Share granted under
Section 6(c) of the Plan or, in specified circumstances, a Share paid in
connection with a Performance Share under Section 6(e) of the Plan.
(t) "Rule 16b-3" shall mean Rule 16b-3 as promulgated by the
Commission under the Exchange Act, or any successor rule or regulation
thereto.
(u) "Shares" shall mean shares of common stock of the Company,
$0.05 par value (including the associated Common Stock Purchase Rights),
and such other securities or property as may become subject to Awards
pursuant to an adjustment made under Section 4(b) of the Plan.
(v) "Stock Appreciation Right" shall mean any right granted
under Section 6(b) of the Plan.
Section 3. Administration
The Plan shall be administered by the Committee; provided,
however, that if at any time the Committee shall not be in existence, the
functions of the Committee as specified in the Plan shall be exercised by
those members of the Board of Directors of the Company who qualify as
"disinterested persons" under Rule 16b-3. Subject to the terms of the
Plan and applicable laws and without limitation by reason of enumeration,
the Committee shall have full discretionary power and authority to: (i)
designate Participating Key Employees; (ii) determine the type or types of
Awards to be granted to each Participating Key Employee under the Plan;
(iii) determine the number of Shares to be covered by (or with respect to
which payments, rights or other matters are to be calculated in connection
with) Awards granted to Participating Key Employees; (iv) determine the
terms and conditions of any Award granted to a Participating Key Employee;
(v) determine whether, to what extent and under what circumstances Awards
granted to Participating Key Employees may be settled or exercised in
cash, Shares, other securities, other Awards or other property, and the
method or methods by which Awards may be settled, exercised, canceled,
forfeited or suspended; (vi) determine whether, to what extent and under
what circumstances cash, Shares, other Awards and other amounts payable
with respect to an Award granted to Participating Key Employees under the
Plan shall be deferred either automatically or at the election of the
holder thereof or of the Committee; (vii) interpret and administer the
Plan and any instrument or agreement relating to, or Award made under, the
Plan (including, without limitation, any Award Agreement); (viii)
establish, amend, suspend or waive such rules and regulations and appoint
such agents as it shall deem appropriate for the proper administration of
the Plan; and (ix) make any other determination and take any other action
that the Committee deems necessary or desirable for the administration of
the Plan. Unless otherwise expressly provided in the Plan, all
designations, determinations, interpretations and other decisions under or
with respect to the Plan or any Award shall be within the sole discretion
of the Committee, may be made at any time or from time to time, and shall
be final, conclusive and binding upon all Persons, including the Company,
any Affiliate, any Participating Key Employee, any holder or beneficiary
of any Award, any shareholder and any employee of the Company or of any
Affiliate.
Section 4. Shares Available for Award
(a) Shares Available. Subject to adjustment as provided in
Section 4(b):
(i) Number of Shares Available. The number of Shares with
respect to which Awards may be granted under the Plan shall be
250,000, subject to the limitations set forth in Section 6(c)(i).
(ii) Accounting for Awards. The number of Shares covered
by an Award under the Plan, or to which such Award relates, shall be
counted on the date of grant of such Award against the number of
Shares available for granting Awards under the Plan.
(iii) Sources of Shares Deliverable Under Awards. Any
Shares delivered pursuant to an Award may consist, in whole or in
part, of authorized and unissued Shares or of treasury Shares.
(b) Adjustments. In the event that the Committee shall
determine that any dividend or other distribution (whether in the form of
cash, Shares, other securities or other property), recapitalization, stock
split, reverse stock split, reorganization, merger, consolidation, split-
up, spin-off, combination, repurchase or exchange of Shares or other
securities of the Company, issuance of warrants or other rights to
purchase Shares or other securities of the Company, or other similar
corporate transaction or event affects the Shares such that an adjustment
is determined by the Committee to be appropriate in order to prevent
dilution or enlargement of the benefits or potential benefits intended to
be made available under the Plan, then the Committee may, in such manner
as it may deem equitable, adjust any or all of (i) the number and type of
Shares subject to the Plan and which thereafter may be made the subject of
Awards under the Plan; (ii) the number and type of Shares subject to
outstanding Awards; and (iii) the grant, purchase or exercise price with
respect to any Award, or, if deemed appropriate, make provision for a cash
payment to the holder of an outstanding Award; provided, however, in each
case, that with respect to Awards of Incentive Stock Options no such
adjustment shall be authorized to the extent that such authority would
cause the Plan to violate Section 422(b) of the Code (or any successor
provision thereto); and provided further that the number of Shares subject
to any Award payable or denominated in Shares shall always be a whole
number.
Section 5. Eligibility
Any Key Employee, including any executive officer or employee-
director of the Company or of any Affiliate, who is not a member of the
Committee shall be eligible to be designated a Participating Key Employee.
Section 6. Awards
(a) Option Awards. The Committee is hereby authorized to grant
Options to Key Employees with the terms and conditions as set forth below
and with such additional terms and conditions, in either case not
inconsistent with the provisions of the Plan, as the Committee shall
determine in its discretion.
(i) Exercise Price. The exercise price per Share of an
Option granted pursuant to this Section 6(a) shall be determined by
the Committee; provided, however, that such exercise price shall not
be less than 100% of the Fair Market Value of a Share on the date of
grant of such Option.
(ii) Option Term. The term of each Option shall be fixed
by the Committee; provided, however, that in no event shall the term
of any Option exceed a period of seven years from the date of its
grant.
(iii) Exercisability and Method of Exercise. An Option
shall become exercisable in such manner and within such period or
periods and in such installments or otherwise as shall be determined
by the Committee. The Committee also shall determine the method or
methods by which, and the form or forms, including, without
limitation, cash, Shares, other securities, other Awards, other
property or any combination thereof, having a Fair Market Value on
the exercise date equal to the relevant exercise price, in which
payment of the exercise price with respect to any Option may be made
or deemed to have been made.
(iv) Incentive Stock Options. The terms of any Incentive
Stock Option granted under the Plan shall comply in all respects with
the provisions of Section 422 of the Code (or any successor provision
thereto) and any regulations promulgated thereunder. Notwithstanding
any provision in the Plan to the contrary, no Incentive Stock Option
may be granted hereunder after the tenth anniversary of the adoption
of the Plan by the Board of Directors of the Company.
(b) Stock Appreciation Right Awards. The Committee is hereby
authorized to grant Stock Appreciation Rights to Key Employees. Subject
to the terms of the Plan and any applicable Award Agreement, a Stock
Appreciation Right granted under the Plan shall confer on the holder
thereof a right to receive, upon exercise thereof, the excess of (i) the
Fair Market Value of one Share on the date of exercise over (ii) the grant
price of the Stock Appreciation Right as specified by the Committee, which
shall not be less than 100% of the Fair Market Value of one Share on the
date of grant of the Stock Appreciation Right. Subject to the terms of
the Plan, the grant price, term, methods of exercise, methods of
settlement (including whether the Participating Key Employee will be paid
in cash, Shares, other securities, other Awards, or other property or any
combination thereof), and any other terms and conditions of any Stock
Appreciation Right shall be as determined by the Committee in its
discretion. The Committee may impose such conditions or restrictions on
the exercise of any Stock Appreciation Right as it may deem appropriate,
including, without limitation, restricting the time of exercise of the
Stock Appreciation Right to specified periods as may be necessary to
satisfy the requirements of Rule 16b-3.
(c) Restricted Stock Awards.
(i) Issuance. The Committee is hereby authorized to grant
Awards of Restricted Stock to Key Employees; provided, however, that
the aggregate number of Shares of Restricted Stock granted under the
Plan to all Participating Key Employees as a group shall not exceed
25,000 Shares (such number of Shares subject to adjustment in
accordance with the terms of Section 4(b) hereof) of the total number
of Shares available for Awards under Section 4(a)(i).
(ii) Restrictions. Shares of Restricted Stock granted to
Participating Key Employees shall be subject to such restrictions as
the Committee may impose in its discretion (including, without
limitation, any limitation on the right to vote a Share of Restricted
Stock or the right to receive any dividend or other right or
property), which restrictions may lapse separately or in combination
at such time or times, in such installments or otherwise, as the
Committee may deem appropriate in its discretion.
(iii) Registration. Any Restricted Stock granted under
the Plan to a Participating Key Employee may be evidenced in such
manner as the Committee may deem appropriate in its discretion,
including, without limitation, book-entry registration or issuance of
a stock certificate or certificates. In the event any stock
certificate is issued in respect of Shares of Restricted Stock
granted under the Plan to a Participating Key Employee, such
certificate shall be registered in the name of the Participating Key
Employee and shall bear an appropriate legend (as determined by the
Committee) referring to the terms, conditions and restrictions
applicable to such Restricted Stock.
(iv) Payment of Restricted Stock. At the end of the
applicable restriction period relating to Restricted Stock granted to
a Participating Key Employee, one or more stock certificates for the
appropriate number of Shares, free of restrictions imposed under the
Plan, shall be delivered to the Participating Key Employee or, if the
Participating Key Employee received stock certificates representing
the Restricted Stock at the time of grant, the legends placed on such
certificates shall be removed.
(v) Forfeiture. Except as otherwise determined by the
Committee in its discretion, upon termination of employment of a
Participating Key Employee (as determined under criteria established
by the Committee in its discretion) for any reason during the
applicable restriction period, all Shares of Restricted Stock still
subject to restriction shall be forfeited by the Participating Key
Employee; provided, however, that the Committee may, when it finds
that a waiver would be in the best interests of the Company, waive in
whole or in part any or all remaining restrictions with respect to
Shares of Restricted Stock held by a Participating Key Employee.
(d) Performance Share Awards.
(i) Issuance. The Committee is hereby authorized to grant
Awards of Performance Shares to Key Employees.
(ii) Performance Goals and Other Terms. The Committee
shall determine in its discretion the Performance Period, the
performance goal or goals to be achieved during any Performance
Period, the proportion of payments, if any, to be made for
performance between the minimum and full performance levels, the
restrictions applicable to Shares of Restricted Stock received upon
payment of Performance Shares if Performance Shares are paid in such
manner, and any other terms, conditions and rights relating to a
grant of Performance Shares. Performance goals established by the
Committee may be based on one or more measures such as return on
shareholders' equity, earnings or any other standard or standards
deemed relevant by the Committee, measured internally or relative to
other organizations and before or after extraordinary items.
(iii) Rights and Benefits During the Performance
Period. The Committee may provide that, during a Performance Period,
a Participating Key Employee shall be paid cash amounts, with respect
to each Performance Share held by such Participating Key Employee, in
the same manner, at the same time, and in the same amount paid, as a
cash dividend on a Share. Participating Key Employees shall have no
voting rights with respect to Performance Shares held by them.
(iv) Adjustments with Respect to Performance Shares. Any
other provision of the Plan to the contrary notwithstanding, the
Committee may in its discretion at any time or from time to time
adjust performance goals (up or down) and minimum or full performance
levels (and any intermediate levels and proportion of payments
related thereto), adjust the manner in which performance goals are
measured, or shorten any Performance Period or waive in whole or in
part any or all remaining restrictions with respect to Shares of
Restricted Stock issued in payment of Performance Shares, if the
Committee determines that conditions, including but not limited to,
changes in the economy, changes in competitive conditions, changes in
laws or governmental regulations, changes in generally accepted
accounting principles, changes in the Company's accounting policies,
acquisitions or dispositions by the Company or its Affiliates, or the
occurrence of other unusual, unforeseen or extraordinary events, so
warrant.
(v) Payment of Performance Shares. As soon as is
reasonably practicable following the end of the applicable
Performance Period, one or more certificates representing the number
of Shares equal to the number of Performance Shares payable shall be
registered in the name of and delivered to the Participating Key
Employee; provided, however, that any Shares of Restricted Stock
payable in connection with Performance Shares shall, pending the
expiration, lapse, or waiver of the applicable restrictions, be
evidenced in the manner as set forth in Section 6(c)(iii) hereof.
(e) General.
(i) No Consideration for Awards. Awards shall be granted
to Participating Key Employees for no cash consideration unless
otherwise determined by the Committee.
(ii) Award Agreements. Each Award granted under the Plan
shall be evidenced by an Award Agreement in such form (consistent
with the terms of the Plan) as shall have been approved by the
Committee.
(iii) Awards May Be Granted Separately or Together.
Awards to Participating Key Employees under the Plan may be granted
either alone or in addition to, in tandem with, or in substitution
for, any other Award or any award granted under any other plan of the
Company or any Affiliate. Awards granted in addition to, or in
tandem with, other Awards, or in addition to, or in tandem with,
awards granted under any other plan of the Company or any Affiliate,
may be granted either at the same time as or at a different time from
the grant of such other Awards or awards.
(iv) Forms of Payment Under Awards. Subject to the terms
of the Plan and of any applicable Award Agreement, payments or
transfers to be made by the Company or an Affiliate upon the grant,
exercise or payment of an Award to a Participating Key Employee may
be made in such form or forms as the Committee shall determine, and
may be made in a single payment or transfer, in installments, or on a
deferred basis, in each case in accordance with rules and procedures
established by the Committee in its discretion. Such rules and
procedures may include, without limitation, provisions for the
payment or crediting of interest on installment or deferred payments.
(v) Limits on Transfer of Awards. No Award (other than
Released Securities), and no right under any such Award, shall be
assignable, alienable, saleable or transferable by a Participating
Key Employee otherwise than by will or by the laws of descent and
distribution (or, in the case of an Award of Restricted Securities,
to the Company); provided, however, that a Participating Key Employee
at the discretion of the Committee may be entitled, in the manner
established by the Committee, to designate a beneficiary or
beneficiaries to exercise his or her rights, and to receive any
property distributable, with respect to any Award upon the death of
the Participating Key Employee. Each Award, and each right under any
Award, shall be exercisable, during the lifetime of the Participating
Key Employee, only by such individual or, if permissible under
applicable law, by such individual's guardian or legal
representative. No Award (other than Released Securities), and no
right under any such Award, may be pledged, alienated, attached or
otherwise encumbered, and any purported pledge, alienation,
attachment or encumbrance thereof shall be void and unenforceable
against the Company or any Affiliate.
(vi) Term of Awards. Except as otherwise provided in the
Plan, the term of each Award shall be for such period as may be
determined by the Committee.
(vii) Rule 16b-3 Six-Month Limitations. To the extent
required in order to comply with Rule 16b-3 only, any equity security
offered pursuant to the Plan may not be sold for at least six months
after acquisition, except in the case of death or disability, and any
derivative security issued pursuant to the Plan shall not be
exercisable for at least six months, except in case of death or
disability of the holder thereof. Terms used in the preceding
sentence shall, for the purposes of such sentence only, have the
meanings, if any, assigned or attributed to them under Rule 16b-3.
(viii) Share Certificates; Representation. In addition
to the restrictions imposed pursuant to Section 6(c) and Section 6(d)
hereof, all certificates for Shares delivered under the Plan pursuant
to any Award or the exercise thereof shall be subject to such stop
transfer orders and other restrictions as the Committee may deem
advisable under the Plan or the rules, regulations and other
requirements of the Commission, Nasdaq Stock Market or any stock
exchange or other market upon which such Shares are then listed or
traded, and any applicable federal or state securities laws, and the
Committee may cause a legend or legends to be put on any such
certificates to make appropriate reference to such restrictions. The
Committee may require each Participating Key Employee, or other
Person who acquires Shares under the Plan by means of an Award
originally made to a Participating Key Employee to represent to the
Company in writing that such Participating Key Employee, or other
Person is acquiring the Shares without a view to the distribution
thereof.
Section 7. Amendment and Termination of the Plan; Correction of
Defects and Omissions
(a) Amendments to and Termination of the Plan. The Board of
Directors of the Company may at any time amend, alter, suspend,
discontinue or terminate the Plan; provided, however, that shareholder
approval of any amendment of the Plan shall also be obtained if otherwise
required by: (i) the rules and/or regulations promulgated under Section 16
of the Exchange Act (in order for the Plan to remain qualified under Rule
16b-3); (ii) the Code or any rules promulgated thereunder (in order to
allow for Incentive Stock Options to be granted under the Plan); or (iii)
the quotation or listing requirements of the Nasdaq National Market or any
principal securities exchange or market on which the Shares are then
traded (in order to maintain the quotation or listing of the Shares
thereon). Termination of the Plan shall not affect the rights of
Participating Key Employees with respect to Awards previously granted to
them, and all unexpired Awards shall continue in force and effect after
termination of the Plan except as they may lapse or be terminated by their
own terms and conditions.
(b) Correction of Defects, Omissions and Inconsistencies. The
Committee may in its discretion correct any defect, supply any omission or
reconcile any inconsistency in any Award or Award Agreement in the manner
and to the extent it shall deem desirable to carry the Plan into effect.
Section 8. General Provisions
(a) No Rights to Awards. No Key Employee, Participating Key
Employee or other Person shall have any claim to be granted any Award
under the Plan, and there is no obligation for uniformity of treatment of
Key Employees, Participating Key Employees or holders or beneficiaries of
Awards under the Plan. The terms and conditions of Awards need not be the
same with respect to each Participating Key Employee.
(b) Withholding. No later than the date as of which an amount
first becomes includible in the gross income of a Participating Key
Employee for federal income tax purposes with respect to any Award under
the Plan, the Participating Key Employee shall pay to the Company, or make
arrangements satisfactory to the Company regarding the payment of, any
federal, state, local or foreign taxes of any kind required by law to be
withheld with respect to such amount. Unless otherwise determined by the
Committee, withholding obligations arising with respect to Awards to
Participating Key Employees under the Plan may be settled with Shares
previously owned by the Participating Key Employee; provided, however,
that the Participating Key Employee may not settle such obligations with
Shares that are part of, or are received upon exercise of, the Award that
gives rise to the withholding requirement. The obligations of the Company
under the Plan shall be conditional on such payment or arrangements, and
the Company and any Affiliate shall, to the extent permitted by law, have
the right to deduct any such taxes from any payment otherwise due to the
Participating Key Employee. The Committee may establish such procedures
as it deems appropriate for the settling of withholding obligations with
Shares, including, without limitation, the establishment of such
procedures as may be necessary to satisfy the requirements of Rule 16b-3.
(c) No Limit on Other Compensation Arrangements. Nothing
contained in the Plan shall prevent the Company or any Affiliate from
adopting or continuing in effect other or additional compensation
arrangements, and such arrangements may be either generally applicable or
applicable only in specific cases.
(d) Rights and Status of Recipients of Awards. The grant of an
Award shall not be construed as giving a Participating Key Employee the
right to be retained in the employ of the Company or any Affiliate.
Further, the Company or any Affiliate may at any time dismiss a
Participating Key Employee from employment, free from any liability, or
any claim under the Plan, unless otherwise expressly provided in the Plan
or in any Award Agreement. Except for rights accorded under the Plan and
under any applicable Award Agreement, Participating Key Employees shall
have no rights as holders of Shares as a result of the granting of Awards
hereunder.
(e) Unfunded Status of the Plan. Unless otherwise determined
by the Committee, the Plan shall be unfunded and shall not create (or be
construed to create) a trust or a separate fund or funds. The Plan shall
not establish any fiduciary relationship between the Company or the
Committee and any Participating Key Employee or other Person. To the
extent any Person holds any right by virtue of a grant under the Plan,
such right (unless otherwise determined by the Committee) shall be no
greater than the right of an unsecured general creditor of the Company.
(f) Governing Law. The validity, construction and effect of
the Plan and any rules and regulations relating to the Plan shall be
determined in accordance with the internal laws of the State of Wisconsin
and applicable federal law.
(g) Severability. If any provision of the Plan or any Award
Agreement or any Award is or becomes or is deemed to be invalid, illegal
or unenforceable in any jurisdiction, or as to any Person or Award, or
would disqualify the Plan, any Award Agreement or any Award under any law
deemed applicable by the Committee, such provision shall be construed or
deemed amended to conform to applicable laws, or if it cannot be so
construed or deemed amended without, in the determination of the
Committee, materially altering the intent of the Plan, any Award Agreement
or the Award, such provision shall be stricken as to such jurisdiction,
Person or Award, and the remainder of the Plan, any such Award Agreement
and any such Award shall remain in full force and effect.
(h) No Fractional Shares. No fractional Shares or other
securities shall be issued or delivered pursuant to the Plan, any Award
Agreement or any Award, and the Committee shall determine (except as
otherwise provided in the Plan) whether cash, other securities or other
property shall be paid or transferred in lieu of any fractional Shares or
other securities, or whether such fractional Shares or other securities or
any rights thereto shall be canceled, terminated or otherwise eliminated.
(i) Headings. Headings are given to the Sections and
subsections of the Plan solely as a convenience to facilitate reference.
Such headings shall not be deemed in any way material or relevant to the
construction or interpretation of the Plan or any provision thereof.
Section 9. Effective Date of the Plan
The Plan shall be effective as of January 30, 1995 subject to
shareholder approval of the Plan within 12 months following the date of
adoption of the Plan by the Board of Directors, and all Awards granted
under the Plan prior to the date of shareholder approval shall be subject
to such approval and the effective date of such Award grants shall be
deemed to be the date of such shareholder approval.
Section 10. Term of the Plan
No Award shall be granted under the Plan following the fifth
anniversary of its effective date. However, unless otherwise expressly
provided in the Plan or in an applicable Award Agreement, any Award
theretofore granted may extend beyond such date and, to the extent set
forth in the Plan, the authority of the Committee to amend, alter, adjust,
suspend, discontinue or terminate any such Award, or to waive any
conditions or restrictions with respect to any such Award, and the
authority of the Board of Directors of the Company to amend the Plan,
shall extend beyond such date.
FOLEY & LARDNER
A T T O R N E Y S A T L A W
FIRSTAR CENTER
777 EAST WISCONSIN AVENUE
MILWAUKEE, WISCONSIN 53202-5367
A MEMBER OF GLOBALEX
WITH MEMBER OFFICES IN
MADISON BERLIN
CHICAGO TELEPHONE (414) 271-2400 BRUSSELS
WASHINGTON, D.C. DRESDEN
JACKSONVILLE TELEX 26-819 FRANKFURT
ORLANDO LONDON
TALLAHASSEE (FOLEY LARD MIL) PARIS
TAMPA SINGAPORE
WEST PALM BEACH FACSIMILE (414) 297-4900 STUTTGART
TAIPEI
WRITER'S DIRECT LINE
May 19, 1995
Schultz Sav-O Stores, Inc.
2215 Union Avenue
Sheboygan, WI 53018
Attention: John H. Dahly, Executive Vice President
Gentlemen:
We have acted as counsel for Schultz Sav-O Stores, Inc., a
Wisconsin corporation (the "Company"), in conjunction with the preparation
of a Form S-8 Registration Statement (the "Registration Statement") to be
filed by the Company with the Securities and Exchange Commission under the
Securities Act of 1933, as amended (the "Securities Act"), relating to
250,000 shares of the Company's common stock, $0.05 par value (the "Common
Stock"), and the related Common Stock purchase rights (the "Rights") which
may be issued or acquired pursuant to the Schultz Sav-O Stores, Inc. 1995
Equity Incentive Plan (the "Plan").
We have examined: (i) the Plan; (ii) the Registration
Statement; (iii) the Company's Articles of Incorporation and By-laws, as
amended to date; (iv) resolutions of the Company's Board of Directors
relating to the Plan; and (v) such other documents and records as we have
deemed necessary to enable us to render this Opinion.
Based upon the foregoing, we are of the opinion that:
1. The Company is a corporation validly existing under the
laws of the State of Wisconsin.
2. The Common Stock, when issued and paid for in the manner
set forth in the Plan, will be validly issued, fully paid and non-
assessable and no personal liability will attach to the ownership thereof,
except with respect to wage claims of employees of the Company for
services performed not to exceed six (6) months service in any one case,
as provided in Section 180.0622(2)(b) of the Wisconsin Business
Corporation Law.
3. The Rights to be issued with the Common Stock have been
duly and validly authorized by all corporate action.
Bernard S. Kubale, a partner in the law firm of Foley & Lardner,
is a director of the Company.
We consent to the use of this opinion as an Exhibit to the
Registration Statement. In giving our consent we do not admit that we are
"experts" within the meaning of Section 11 of the Securities Act or within
the category of persons whose consent is required by Section 7 of said
Act.
Very truly yours,
/s/ FOLEY & LARDNER
FOLEY & LARDNER
ARTHUR ANDERSEN LLP
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement of our reports dated
February 8, 1995 included and incorporated by reference in Schultz Sav-O
Stores, Inc.'s Form 10-K for the year ended December 31, 1994 and to all
references to our Firm included in this registration statement.
/s/ ARTHUR ANDERSEN LLP
Milwaukee, Wisconsin
May 16, 1995
