AMENDED AND RESTATED
KMART CORPORATION
MANAGEMENT STOCK PURCHASE PLAN
1. PURPOSES; CONSTRUCTION.
The purposes of the Kmart Corporation Management Stock Purchase Plan are to
attract and retain highly-qualified executives, to align executive and
stockholder interests by creating a direct link between executive compensation
and stockholder return and to enable executives to develop and maintain a
substantial stock ownership position in the Company and to provide incentives to
executives to contribute to the success of the Company. The provisions of the
Plan are intended to satisfy the requirements of the Securities Exchange Act of
1934, and shall be interpreted in a manner consistent with the requirements
thereof, as now or hereafter construed, interpreted and applied by regulations,
rulings and cases.
2. DEFINITIONS.
As used in this Plan, the following words and phrases shall have the
following meanings:
(a) "Agreement" shall mean an agreement entered into between the Company and
a Participant in connection with participation in the Plan.
(b) "Board" shall mean the Board of Directors of the Company.
(c) "Annual Bonus" shall mean the bonus earned by a Participant under the
Annual Bonus Plan or other annual incentive bonus.
(d) "Annual Bonus Plan" shall mean the Kmart Corporation Annual Incentive
Bonus Plan, as amended from time to time.
(e) "Cause" shall mean the Participant's fraud, dishonesty, conduct in
violation of Company or Subsidiary policy, willful and continued failure to
substantially perform his or her duties with the Company or a Subsidiary or
willful engaging in conduct which is demonstrably and materially injurious to
the Company or a Subsidiary monetarily or otherwise.
(f) "Change in Control" shall mean the occurrence of an event described in
Article 6 hereof.
(g) "Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
(h) "Committee" shall mean the Compensation and Incentives Committee of the
Board.
(i) "Common Stock" shall mean shares of common stock of the Company, par
value $1.00 per share.
(j) "Company" shall mean Kmart Corporation, a corporation organized under
the laws of the State of Michigan, or any successor corporation.
(k) "Disability" shall mean a Participant's total and permanent disability
as defined in the Company's Employee Pension Plan.
(l) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time, and as now or hereafter construed, interpreted and
applied by regulations, rulings and cases.
(m) "Fair Market Value" per share of Common Stock as of any date shall mean
the average of the closing prices per share of such Common Stock for the five
trading days immediately preceding such date, as reported by the Composite Tape
reporting system, or if not so reported, as reported by the New York Stock
Exchange, or if not so reported, as reported by any national securities exchange
on which the Common Stock is listed.
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(n) "Participant" shall mean an officer or other employee of the Company or
one of its Subsidiaries who receives a grant of Restricted Shares under the
Plan; all such grants are sometimes referred to herein as purchases.
(o) "Plan" shall mean this Kmart Corporation Management Stock Purchase Plan,
as amended from time to time.
(p) "Restricted Period" shall have the meaning given in Section 5(d) hereof.
(q) "Restricted Shares" shall mean the shares of Common Stock purchased
hereunder subject to restrictions.
(r) "Subsidiary" shall mean any subsidiary of the Company (whether or not a
subsidiary at the date the Plan is adopted) which is designated by the Committee
or its delegate or the Board to have any one or more of its officers or
employees participate in the Plan.
3. COMMON STOCK RESERVED FOR PLAN.
The number of shares of Common Stock which shall be reserved for the
purchase of Restricted Shares under the Plan shall be 4,000,000.
Such number of shares of Common Stock shall be subject to adjustment as
provided in Article 7 hereof. Such shares may be either authorized but unissued
shares or shares that shall have been or may be reacquired by the Company.
If any outstanding Restricted Shares should be forfeited and reacquired by
the Company, the shares of Common Stock so forfeited shall (unless the Plan
shall have been terminated) again become available for use under the Plan.
4. ELIGIBILITY; OPTIONAL RESTRICTED SHARE PURCHASES.
Each senior officer and divisional vice president of the Company and each
other key employee of the Company or its Subsidiaries as is designated by the
Committee or its delegate shall be eligible to elect to use up to 100 percent of
his or her Annual Bonus (less applicable payroll deductions) to purchase
Restricted Shares granted pursuant to, and subject to, the terms and conditions
of this Plan. Any such election shall be made in accordance with rules
established by the Committee or its delegate. Since the Restricted Shares are
purchased with part or all of the Annual Bonus, Restricted Share grants under
this Plan are sometimes referred to herein as "purchases."
5. RESTRICTED SHARES.
Each purchase of Restricted Shares under the Plan shall be evidenced by a
written Agreement between the Company and the Participant, in such form as the
Committee shall from time to time approve, and shall comply with the following
terms and conditions (and with such other terms and conditions not inconsistent
with the terms of this Plan as the Committee, in its discretion, shall
establish):
(a) NUMBER OF SHARES. Each Agreement shall state the number of Restricted
Shares to be purchased.
(b) PRICE. The price of each Restricted Share purchased under Article 4 of
the Plan shall be its Fair Market Value. Notwithstanding any other provision of
the Plan, in no event shall the price per Restricted Share be less than the par
value per share of the Common Stock.
(c) RESTRICTIONS. Restricted Shares may not be sold, assigned, transferred,
pledged, hypothecated or otherwise disposed of (except by will or the applicable
laws of descent and distribution) during the Restricted Period. The Committee
may also impose such other restrictions and conditions on the
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Restricted Shares as it deems appropriate. Upon the issuance of Restricted
Shares, either (i) a stock certificate or certificates representing such shares
shall be registered in the Participant's name, shall bear an appropriate legend
referring to the restrictions applicable thereto and shall be held in custody by
an escrow agent appointed by the Committee or its delegate for the account of
the Participant, or (ii) the Company's stock transfer agent or other designee
shall credit such shares to the Participant's Restricted Share account, which
shares shall be subject to the restrictions applicable thereto under the Plan.
Any attempt to dispose of any such shares in contravention of such restrictions
shall be null and void and without effect.
(d) RESTRICTED PERIOD. Subject to such exceptions as may be determined by
the Committee or its delegate in its discretion, the Restricted Period for
Restricted Shares purchased under the Plan shall be three years from the date of
purchase.
(e) TERMINATION OF EMPLOYMENT DURING RESTRICTED PERIOD. Except as provided
in this paragraph or in Section 5(g) hereof, if during the Restricted Period a
Participant's employment terminates, the Participant shall receive unrestricted
shares of Common Stock (or cash, in the discretion of the Committee or its
delegate) equal to the lesser in value of (i) the Restricted Shares at their
then-current Fair Market Value or (ii) 80 percent of the Fair Market Value of
such Restricted Shares on the date of purchase. Any additional value shall be
forfeited.
If, during the Restricted Period, a Participant's employment is terminated
by the Company or Subsidiary without Cause, the Participant shall receive
unrestricted shares of Common Stock (or cash, in the discretion of the
Committee) equal in value to (i) the then-current Fair Market Value of a
percentage of the Restricted Shares, such percentage to be based on the number
of months of employment completed during the Restricted Period, plus (ii) as to
the balance of the Restricted Shares, the lesser in value of (x) such Restricted
Shares at their then-current Fair Market Value or (y) 80 percent of the Fair
Market Value of such Restricted Shares on the date of purchase. Any additional
value shall be forfeited.
(f) OWNERSHIP. During the Restricted Period, the Participant shall possess
all incidents of ownership of such shares, including the right to vote and to
receive dividends with respect to such shares, subject to the restrictions and
limitations described in this Article.
(g) ACCELERATED LAPSE OF RESTRICTIONS. Upon the termination of a
Participant's employment which either (i) occurs after the Participant has
attained the age of 55 years with at least five years of full-time service or
(ii) results from the Participant's death or Disability, or upon the occurrence
of a Change in Control, all restrictions then outstanding with respect to
Restricted Shares purchased hereunder shall automatically expire and be of no
further force or effect. Additionally, the Committee or its delegate shall have
the authority (and the Agreement may so provide) to cancel all or any portion of
any outstanding restrictions prior to the expiration of the Restricted Period
with respect to any or all Restricted Shares purchased hereunder on such terms
and conditions as the Committee or its delegate shall deem appropriate.
6. CHANGE IN CONTROL OF THE COMPANY.
For purposes of this Article 6, the first to occur of any of the following
events shall be deemed a Change in Control of the Company:
(i) the "beneficial ownership" (as defined in Rule 13d-3 under the Exchange
Act) of securities representing more than 33% of the combined voting power of
the Company is acquired by any "person," as defined in sections 13(d) and 14(d)
of the Exchange Act (other than the Company, any trustee or other fiduciary
holding securities under an employee benefit plan of the Company, or any
corporation owned, directly or indirectly, by the stockholders of the Company in
substantially the same proportions as their ownership of stock of the Company),
or
(ii) the stockholders of the Company approve a definitive agreement to merge
or consolidate the Company with or into another corporation or to sell or
otherwise dispose of all or substantially all of its assets, or adopt a plan of
liquidation, or
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(iii) during any period of three consecutive years, individuals who at the
beginning of such period were members of the Board cease for any reason to
constitute at least a majority thereof (unless the election, or the nomination
for election by the Company's stockholders, of each new director was approved by
a vote of at least a majority of the directors then still in office who were
directors at the beginning of such period or whose election or nomination was
previously so approved).
7. EFFECT OF CERTAIN CHANGES.
In the event of any extraordinary dividend, stock dividend,
recapitalization, merger, consolidation, stock split, warrant or rights
issuance, or combination or exchange of such shares, or other similar
transactions, the number of shares of Common Stock available for purchase and
the number of outstanding Restricted Shares shall be equitably adjusted by the
Committee or its delegate to reflect such event and preserve the value of such
purchases and the Committee or its delegate may make such other adjustments to
the terms of outstanding Restricted Shares as it may deem equitable under the
circumstances; provided, however, that any fractional shares resulting from such
adjustment shall be disregarded.
8. PAYMENT OF WITHHOLDING TAXES.
The Committee or its delegate shall have discretion to permit or require a
Participant, on such terms and conditions as it determines, to pay all or a
portion of any taxes arising in connection with a purchase of Restricted Shares
hereunder or the lapse of restrictions with respect thereto by having the
Company withhold shares of Common Stock or by the Participant's delivering other
shares of Common Stock having a then-current Fair Market Value equal to the
amount of taxes to be withheld; provided, however, that the amount to be
withheld shall not exceed the minimum Federal, State and local tax rates
applicable to the transaction.
9. RIGHTS AS A STOCKHOLDER.
Except as provided in Section 5(f) hereof, a Participant shall have no
rights as a stockholder with respect to any Restricted Shares until the date of
the issuance of a stock certificate to him or her for such shares. No adjustment
shall be made for dividends (ordinary or extraordinary, whether in cash,
securities or other property) or distribution of other rights for which the
record date is prior to the date such stock certificate is issued, except as
provided in Article 7 hereof.
10. NO RIGHT TO CONTINUED EMPLOYMENT.
Nothing in the Plan or in any grant or purchase made or Agreement entered
into pursuant hereto shall confer upon any Participant the right to continue in
the employ of the Company or any of its Subsidiaries or to be entitled to any
remuneration or benefits not set forth in the Plan or such Agreement or to
interfere with or limit in any way the right of the Company or any of its
Subsidiaries to terminate such Participant's employment. Purchases made under
the Plan shall not be affected by any change in duties or position of a
Participant as long as such Participant continues to be employed by the Company
or any Subsidiary.
11. ADMINISTRATION.
The Plan shall be administered by the Committee. The Committee shall have
the authority in its sole discretion, subject to and not inconsistent with the
express provisions of the Plan, to administer the Plan and to exercise all the
powers and authorities either specifically granted to it under the Plan or
necessary or advisable in the administration of the Plan, including, without
limitation, the authority: to construe and interpret the Plan; to prescribe,
amend and rescind rules and regulations relating to the Plan; to determine the
terms and provisions of the Agreements (which need not be identical); and to
make all other determinations deemed necessary or advisable for the
administration of the Plan.
The Committee shall consist of two or more persons each of whom is a
"non-employee" director within the meaning of Rule 16b-3 under the Exchange Act.
The Board shall fill all vacancies, however caused, in the Committee. The Board
may from time to time appoint additional members to the Committee, and may at
any time remove one or more Committee members and substitute others. The
Committee shall hold its meetings at such times and places as it shall deem
advisable. The Committee may appoint a chairperson
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and a secretary and make such rules and regulations for the conduct of its
business as it shall deem advisable, and shall keep minutes of its meetings. All
determinations of the Committee shall be made by a majority of its members
either present in person or participating by conference telephone at a meeting
or by unanimous written consent. The Committee may delegate to one or more of
its members or to one or more officers of the Company of other agents such
administrative duties as it may deem advisable, and the Committee or any person
to whom it has delegated duties as aforesaid may employ one or more persons to
render advice with respect to any responsibility the Committee or such person
may have under the Plan. All decisions, determinations and interpretations of
the Committee shall be final and binding on all persons, including the Company,
a Subsidiary, a Participant (or any person claiming any rights under the Plan
from or through any Participant) and any stockholder.
No member of the Board or the Committee shall be liable for any action taken
or determination made in good faith with respect to the Plan or any grant or
purchase hereunder.
12. AMENDMENT TO AND DISCONTINUANCE OF PLAN.
The Board at any time and from time to time may amend, suspend or
discontinue the Plan in whole or in part; provided, however, that no amendment
which requires stockholder approval in order for the Plan to continue to comply
with Rule 16b-3 or any other law, regulation or stock exchange requirement shall
be effective unless the same shall be approved by the requisite vote of the
stockholders of the Company. The Committee may also make such amendments as it
deems necessary to comply with other applicable laws, rules and regulations.
Notwithstanding the foregoing, except as provided in Article 5 hereof, no
amendment, suspension or discontinuance of the Plan may adversely affect any
purchase previously made by any Participant without the consent of such
Participant.
13. GOVERNING LAW.
The Plan and the rights of all persons claiming hereunder shall be construed
and determined in accordance with the laws of the State of Michigan without
giving effect to the choice of law principles thereof, except to the extent that
such law is preempted by federal law.
14. EFFECTIVE DATE; APPROVAL OF STOCKHOLDERS.
The Plan shall take effect upon its adoption by the Board but the Plan (and
any grants made prior to the stockholder approval described in this Article 14)
shall be subject to the approval of the holders of a majority of the securities
of the Company present, or represented, and entitled to vote at a meeting of
stockholders held in accordance with applicable law, which approval must occur
within twelve months of the date that the Plan is adopted by the Board. In the
absence of such approval, such grants shall be null and void.
15. PERIOD DURING WHICH PURCHASES MAY BE MADE.
Purchases may be made pursuant to the Plan from time to time until March 15,
2004. No purchases shall be made thereafter. However, the Restricted Period for
Restricted Shares purchased hereunder prior to such date may extend beyond such
date, and the provisions of the Plan shall continue to apply to such Restricted
Shares.
Adopted April 22, 1994; amended and restated December 20, 1994; amended June 20,
1995, December 1, 1995, August 20, 1996, July 18, 2000 and September 19, 2000.
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Management Stock Purchase Plan - Kmart Corp.
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