{"id":40113,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/management-stock-purchase-plan-kmart-corp.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"management-stock-purchase-plan-kmart-corp","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/management-stock-purchase-plan-kmart-corp.html","title":{"rendered":"Management Stock Purchase Plan &#8211; Kmart Corp."},"content":{"rendered":"<pre>                              AMENDED AND RESTATED\n                                KMART CORPORATION\n                         MANAGEMENT STOCK PURCHASE PLAN\n\n1.  PURPOSES; CONSTRUCTION.\n\n    The purposes of the Kmart Corporation Management Stock Purchase Plan are to\nattract and retain highly-qualified executives, to align executive and\nstockholder interests by creating a direct link between executive compensation\nand stockholder return and to enable executives to develop and maintain a\nsubstantial stock ownership position in the Company and to provide incentives to\nexecutives to contribute to the success of the Company. The provisions of the\nPlan are intended to satisfy the requirements of the Securities Exchange Act of\n1934, and shall be interpreted in a manner consistent with the requirements\nthereof, as now or hereafter construed, interpreted and applied by regulations,\nrulings and cases.\n\n2.  DEFINITIONS.\n\n    As used in this Plan, the following words and phrases shall have the\nfollowing meanings:\n\n    (a) \"Agreement\" shall mean an agreement entered into between the Company and\na Participant in connection with participation in the Plan.\n\n    (b) \"Board\" shall mean the Board of Directors of the Company.\n\n    (c) \"Annual Bonus\" shall mean the bonus earned by a Participant under the\nAnnual Bonus Plan or other annual incentive bonus.\n\n    (d) \"Annual Bonus Plan\" shall mean the Kmart Corporation Annual Incentive\nBonus Plan, as amended from time to time.\n\n    (e) \"Cause\" shall mean the Participant's fraud, dishonesty, conduct in\nviolation of Company or Subsidiary policy, willful and continued failure to\nsubstantially perform his or her duties with the Company or a Subsidiary or\nwillful engaging in conduct which is demonstrably and materially injurious to\nthe Company or a Subsidiary monetarily or otherwise.\n\n    (f) \"Change in Control\" shall mean the occurrence of an event described in\nArticle 6 hereof.\n\n    (g) \"Code\" shall mean the Internal Revenue Code of 1986, as amended from\ntime to time.\n\n    (h) \"Committee\" shall mean the Compensation and Incentives Committee of the\nBoard.\n\n    (i) \"Common Stock\" shall mean shares of common stock of the Company, par\nvalue $1.00 per share.\n\n    (j) \"Company\" shall mean Kmart Corporation, a corporation organized under\nthe laws of the State of Michigan, or any successor corporation.\n\n    (k) \"Disability\" shall mean a Participant's total and permanent disability\nas defined in the Company's Employee Pension Plan.\n\n    (l) \"Exchange Act\" shall mean the Securities Exchange Act of 1934, as\namended from time to time, and as now or hereafter construed, interpreted and\napplied by regulations, rulings and cases.\n\n    (m) \"Fair Market Value\" per share of Common Stock as of any date shall mean\nthe average of the closing prices per share of such Common Stock for the five\ntrading days immediately preceding such date, as reported by the Composite Tape\nreporting system, or if not so reported, as reported by the New York Stock\nExchange, or if not so reported, as reported by any national securities exchange\non which the Common Stock is listed.\n\n\n\n   2\n\n    (n) \"Participant\" shall mean an officer or other employee of the Company or\none of its Subsidiaries who receives a grant of Restricted Shares under the\nPlan; all such grants are sometimes referred to herein as purchases.\n\n    (o) \"Plan\" shall mean this Kmart Corporation Management Stock Purchase Plan,\nas amended from time to time.\n\n    (p) \"Restricted Period\" shall have the meaning given in Section 5(d) hereof.\n\n    (q) \"Restricted Shares\" shall mean the shares of Common Stock purchased\nhereunder subject to restrictions.\n\n    (r) \"Subsidiary\" shall mean any subsidiary of the Company (whether or not a\nsubsidiary at the date the Plan is adopted) which is designated by the Committee\nor its delegate or the Board to have any one or more of its officers or\nemployees participate in the Plan.\n\n3.  COMMON STOCK RESERVED FOR PLAN.\n\n    The number of shares of Common Stock which shall be reserved for the\npurchase of Restricted Shares under the Plan shall be 4,000,000.\n\n    Such number of shares of Common Stock shall be subject to adjustment as\nprovided in Article 7 hereof. Such shares may be either authorized but unissued\nshares or shares that shall have been or may be reacquired by the Company.\n\n    If any outstanding Restricted Shares should be forfeited and reacquired by\nthe Company, the shares of Common Stock so forfeited shall (unless the Plan\nshall have been terminated) again become available for use under the Plan.\n\n\n\n4.  ELIGIBILITY; OPTIONAL RESTRICTED SHARE PURCHASES.\n\n    Each senior officer and divisional vice president of the Company and each\nother key employee of the Company or its Subsidiaries as is designated by the\nCommittee or its delegate shall be eligible to elect to use up to 100 percent of\nhis or her Annual Bonus (less applicable payroll deductions) to purchase\nRestricted Shares granted pursuant to, and subject to, the terms and conditions\nof this Plan. Any such election shall be made in accordance with rules\nestablished by the Committee or its delegate. Since the Restricted Shares are\npurchased with part or all of the Annual Bonus, Restricted Share grants under\nthis Plan are sometimes referred to herein as \"purchases.\"\n\n5.  RESTRICTED SHARES.\n\n    Each purchase of Restricted Shares under the Plan shall be evidenced by a\nwritten Agreement between the Company and the Participant, in such form as the\nCommittee shall from time to time approve, and shall comply with the following\nterms and conditions (and with such other terms and conditions not inconsistent\nwith the terms of this Plan as the Committee, in its discretion, shall\nestablish):\n\n    (a) NUMBER OF SHARES. Each Agreement shall state the number of Restricted\nShares to be purchased.\n\n    (b) PRICE. The price of each Restricted Share purchased under Article 4 of\nthe Plan shall be its Fair Market Value. Notwithstanding any other provision of\nthe Plan, in no event shall the price per Restricted Share be less than the par\nvalue per share of the Common Stock.\n\n    (c) RESTRICTIONS. Restricted Shares may not be sold, assigned, transferred,\npledged, hypothecated or otherwise disposed of (except by will or the applicable\nlaws of descent and distribution) during the Restricted Period. The Committee\nmay also impose such other restrictions and conditions on the \n\n\n                                       2\n   3\n\nRestricted Shares as it deems appropriate. Upon the issuance of Restricted\nShares, either (i) a stock certificate or certificates representing such shares\nshall be registered in the Participant's name, shall bear an appropriate legend\nreferring to the restrictions applicable thereto and shall be held in custody by\nan escrow agent appointed by the Committee or its delegate for the account of\nthe Participant, or (ii) the Company's stock transfer agent or other designee\nshall credit such shares to the Participant's Restricted Share account, which\nshares shall be subject to the restrictions applicable thereto under the Plan.\nAny attempt to dispose of any such shares in contravention of such restrictions\nshall be null and void and without effect.\n\n    (d) RESTRICTED PERIOD. Subject to such exceptions as may be determined by\nthe Committee or its delegate in its discretion, the Restricted Period for\nRestricted Shares purchased under the Plan shall be three years from the date of\npurchase.\n\n    (e) TERMINATION OF EMPLOYMENT DURING RESTRICTED PERIOD. Except as provided\nin this paragraph or in Section 5(g) hereof, if during the Restricted Period a\nParticipant's employment terminates, the Participant shall receive unrestricted\nshares of Common Stock (or cash, in the discretion of the Committee or its\ndelegate) equal to the lesser in value of (i) the Restricted Shares at their\nthen-current Fair Market Value or (ii) 80 percent of the Fair Market Value of\nsuch Restricted Shares on the date of purchase. Any additional value shall be\nforfeited.\n\n    If, during the Restricted Period, a Participant's employment is terminated\nby the Company or Subsidiary without Cause, the Participant shall receive\nunrestricted shares of Common Stock (or cash, in the discretion of the\nCommittee) equal in value to (i) the then-current Fair Market Value of a\npercentage of the Restricted Shares, such percentage to be based on the number\nof months of employment completed during the Restricted Period, plus (ii) as to\nthe balance of the Restricted Shares, the lesser in value of (x) such Restricted\nShares at their then-current Fair Market Value or (y) 80 percent of the Fair\nMarket Value of such Restricted Shares on the date of purchase. Any additional\nvalue shall be forfeited.\n\n    (f) OWNERSHIP. During the Restricted Period, the Participant shall possess\nall incidents of ownership of such shares, including the right to vote and to\nreceive dividends with respect to such shares, subject to the restrictions and\nlimitations described in this Article.\n\n    (g) ACCELERATED LAPSE OF RESTRICTIONS. Upon the termination of a\nParticipant's employment which either (i) occurs after the Participant has\nattained the age of 55 years with at least five years of full-time service or\n(ii) results from the Participant's death or Disability, or upon the occurrence\nof a Change in Control, all restrictions then outstanding with respect to\nRestricted Shares purchased hereunder shall automatically expire and be of no\nfurther force or effect. Additionally, the Committee or its delegate shall have\nthe authority (and the Agreement may so provide) to cancel all or any portion of\nany outstanding restrictions prior to the expiration of the Restricted Period\nwith respect to any or all Restricted Shares purchased hereunder on such terms\nand conditions as the Committee or its delegate shall deem appropriate.\n\n6.  CHANGE IN CONTROL OF THE COMPANY.\n\n    For purposes of this Article 6, the first to occur of any of the following\nevents shall be deemed a Change in Control of the Company:\n\n    (i)  the \"beneficial ownership\" (as defined in Rule 13d-3 under the Exchange\nAct) of securities representing more than 33% of the combined voting power of\nthe Company is acquired by any \"person,\" as defined in sections 13(d) and 14(d)\nof the Exchange Act (other than the Company, any trustee or other fiduciary\nholding securities under an employee benefit plan of the Company, or any\ncorporation owned, directly or indirectly, by the stockholders of the Company in\nsubstantially the same proportions as their ownership of stock of the Company),\nor\n\n    (ii) the stockholders of the Company approve a definitive agreement to merge\nor consolidate the Company with or into another corporation or to sell or\notherwise dispose of all or substantially all of its assets, or adopt a plan of\nliquidation, or\n\n\n                                       3\n   4\n\n    (iii) during any period of three consecutive years, individuals who at the\nbeginning of such period were members of the Board cease for any reason to\nconstitute at least a majority thereof (unless the election, or the nomination\nfor election by the Company's stockholders, of each new director was approved by\na vote of at least a majority of the directors then still in office who were\ndirectors at the beginning of such period or whose election or nomination was\npreviously so approved).\n\n7.  EFFECT OF CERTAIN CHANGES.\n\n    In the event of any extraordinary dividend, stock dividend,\nrecapitalization, merger, consolidation, stock split, warrant or rights\nissuance, or combination or exchange of such shares, or other similar\ntransactions, the number of shares of Common Stock available for purchase and\nthe number of outstanding Restricted Shares shall be equitably adjusted by the\nCommittee or its delegate to reflect such event and preserve the value of such\npurchases and the Committee or its delegate may make such other adjustments to\nthe terms of outstanding Restricted Shares as it may deem equitable under the\ncircumstances; provided, however, that any fractional shares resulting from such\nadjustment shall be disregarded.\n\n8.  PAYMENT OF WITHHOLDING TAXES.\n\n    The Committee or its delegate shall have discretion to permit or require a\nParticipant, on such terms and conditions as it determines, to pay all or a\nportion of any taxes arising in connection with a purchase of Restricted Shares\nhereunder or the lapse of restrictions with respect thereto by having the\nCompany withhold shares of Common Stock or by the Participant's delivering other\nshares of Common Stock having a then-current Fair Market Value equal to the\namount of taxes to be withheld; provided, however, that the amount to be\nwithheld shall not exceed the minimum Federal, State and local tax rates\napplicable to the transaction.\n\n9.  RIGHTS AS A STOCKHOLDER.\n\n    Except as provided in Section 5(f) hereof, a Participant shall have no\nrights as a stockholder with respect to any Restricted Shares until the date of\nthe issuance of a stock certificate to him or her for such shares. No adjustment\nshall be made for dividends (ordinary or extraordinary, whether in cash,\nsecurities or other property) or distribution of other rights for which the\nrecord date is prior to the date such stock certificate is issued, except as\nprovided in Article 7 hereof.\n\n10. NO RIGHT TO CONTINUED EMPLOYMENT.\n\n    Nothing in the Plan or in any grant or purchase made or Agreement entered\ninto pursuant hereto shall confer upon any Participant the right to continue in\nthe employ of the Company or any of its Subsidiaries or to be entitled to any\nremuneration or benefits not set forth in the Plan or such Agreement or to\ninterfere with or limit in any way the right of the Company or any of its\nSubsidiaries to terminate such Participant's employment. Purchases made under\nthe Plan shall not be affected by any change in duties or position of a\nParticipant as long as such Participant continues to be employed by the Company\nor any Subsidiary.\n\n11. ADMINISTRATION.\n\n    The Plan shall be administered by the Committee. The Committee shall have\nthe authority in its sole discretion, subject to and not inconsistent with the\nexpress provisions of the Plan, to administer the Plan and to exercise all the\npowers and authorities either specifically granted to it under the Plan or\nnecessary or advisable in the administration of the Plan, including, without\nlimitation, the authority: to construe and interpret the Plan; to prescribe,\namend and rescind rules and regulations relating to the Plan; to determine the\nterms and provisions of the Agreements (which need not be identical); and to\nmake all other determinations deemed necessary or advisable for the\nadministration of the Plan.\n\n    The Committee shall consist of two or more persons each of whom is a\n\"non-employee\" director within the meaning of Rule 16b-3 under the Exchange Act.\nThe Board shall fill all vacancies, however caused, in the Committee. The Board\nmay from time to time appoint additional members to the Committee, and may at\nany time remove one or more Committee members and substitute others. The\nCommittee shall hold its meetings at such times and places as it shall deem\nadvisable. The Committee may appoint a chairperson \n\n\n                                       4\n   5\n\nand a secretary and make such rules and regulations for the conduct of its\nbusiness as it shall deem advisable, and shall keep minutes of its meetings. All\ndeterminations of the Committee shall be made by a majority of its members\neither present in person or participating by conference telephone at a meeting\nor by unanimous written consent. The Committee may delegate to one or more of\nits members or to one or more officers of the Company of other agents such\nadministrative duties as it may deem advisable, and the Committee or any person\nto whom it has delegated duties as aforesaid may employ one or more persons to\nrender advice with respect to any responsibility the Committee or such person\nmay have under the Plan. All decisions, determinations and interpretations of\nthe Committee shall be final and binding on all persons, including the Company,\na Subsidiary, a Participant (or any person claiming any rights under the Plan\nfrom or through any Participant) and any stockholder.\n\n    No member of the Board or the Committee shall be liable for any action taken\nor determination made in good faith with respect to the Plan or any grant or\npurchase hereunder.\n\n12. AMENDMENT TO AND DISCONTINUANCE OF PLAN.\n\n    The Board at any time and from time to time may amend, suspend or\ndiscontinue the Plan in whole or in part; provided, however, that no amendment\nwhich requires stockholder approval in order for the Plan to continue to comply\nwith Rule 16b-3 or any other law, regulation or stock exchange requirement shall\nbe effective unless the same shall be approved by the requisite vote of the\nstockholders of the Company. The Committee may also make such amendments as it\ndeems necessary to comply with other applicable laws, rules and regulations.\nNotwithstanding the foregoing, except as provided in Article 5 hereof, no\namendment, suspension or discontinuance of the Plan may adversely affect any\npurchase previously made by any Participant without the consent of such\nParticipant.\n\n13. GOVERNING LAW.\n\n    The Plan and the rights of all persons claiming hereunder shall be construed\nand determined in accordance with the laws of the State of Michigan without\ngiving effect to the choice of law principles thereof, except to the extent that\nsuch law is preempted by federal law.\n\n\n\n14. EFFECTIVE DATE; APPROVAL OF STOCKHOLDERS.\n\n    The Plan shall take effect upon its adoption by the Board but the Plan (and\nany grants made prior to the stockholder approval described in this Article 14)\nshall be subject to the approval of the holders of a majority of the securities\nof the Company present, or represented, and entitled to vote at a meeting of\nstockholders held in accordance with applicable law, which approval must occur\nwithin twelve months of the date that the Plan is adopted by the Board. In the\nabsence of such approval, such grants shall be null and void.\n\n15. PERIOD DURING WHICH PURCHASES MAY BE MADE.\n\n    Purchases may be made pursuant to the Plan from time to time until March 15,\n2004. No purchases shall be made thereafter. However, the Restricted Period for\nRestricted Shares purchased hereunder prior to such date may extend beyond such\ndate, and the provisions of the Plan shall continue to apply to such Restricted\nShares.\n\n\n\n\n\nAdopted April 22, 1994; amended and restated December 20, 1994; amended June 20,\n1995, December 1, 1995, August 20, 1996, July 18, 2000 and September 19, 2000.\n\n\n\n                                       5\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7994],"corporate_contracts_industries":[9495],"corporate_contracts_types":[9539,9548],"class_list":["post-40113","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-kmart-corp","corporate_contracts_industries-retail__department","corporate_contracts_types-compensation","corporate_contracts_types-compensation__msp"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/40113","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=40113"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40113"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40113"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40113"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}