{"id":40578,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/special-supplemental-executive-retirement-plan-kmart-corp.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"special-supplemental-executive-retirement-plan-kmart-corp","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/special-supplemental-executive-retirement-plan-kmart-corp.html","title":{"rendered":"Special Supplemental Executive Retirement Plan &#8211; Kmart Corp."},"content":{"rendered":"<pre>                 SPECIAL SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN\n                                KMART CORPORATION\n\n\nSECTION 1.     PURPOSE\n\nThis Special Supplemental Executive Retirement Plan (the \"Plan\") has been\nadopted by Kmart Corporation (the \"Company\") for the purpose of providing\nsupplemental retirement income to certain senior officers and other key\nexecutive employees of the Company, in order to attract and retain superior and\nhighly qualified executive employees.\n\nThis Plan is intended to be an arrangement that is unfunded and is maintained by\nthe Company primarily for the purpose of providing deferred compensation for\nemployees who are members of a select group of management or highly compensated\nemployees within the meaning of Sections 201(2) and 301(a)(3) of the Employee\nRetirement Income Security Act of 1974 (\"ERISA\"), and shall be interpreted and\nadministered to the extent possible in a manner consistent with that intent.\n\n\nSECTION 2.     EFFECTIVE DATE\n\nThe effective date of the Plan is April 1, 2001.\n\n\nSECTION 3.     DEFINITIONS\n\n(a)    Accrued Benefit means the benefit payable to a Participant as determined\nunder Section 5.1.\n\n(b)    Annual Compensation means the sum of the Participant's base pay and bonus\ndetermined on a calendar year basis, for the calendar year ending immediately\nbefore the first day of a Plan Year.\n\n(c)    Early Retirement Age means the attainment of the Participant's\nfifty-fifth (55th) birthday.\n\n(d)    Early Retirement Date means the first day of a month coincident with or\nnext following (i) a Participant's attainment of age fifty-five (55), (ii)\ntermination of employment, and (iii) written application on or after attainment\nof age fifty-five (55) or termination of employment, provided, that such Early\nRetirement Date is prior to the Participant's Normal Retirement Date.\n\n(e)    Final Average Compensation means the average of the three years (or such\nlesser time that the Participant may have been employed by the Company) of a\nParticipant's Annual Compensation that produce the highest average.\n\n(f)    Initial Participant means the initial select group of employees\ndesignated by the Compensation and Incentives Committee as Participants in this\nPlan as of the Effective Date.\n\n(g)    Normal Retirement Age means the attainment of the Participant's sixtieth\n(60th) birthday.\n\n(h)    Normal Retirement Date means the first day of the month coincident with\nor next following attainment of Normal Retirement Age.\n\n(i)    Participant means an Initial Participant or an employee who is a member\nof a select group of management or is a highly compensated employee within the\nmeaning of Sections 201(2) and 301(a)(3) of ERISA and who is designated as a\nParticipant in this Plan pursuant to Section 4.\n\n(j)    Pension Plan means the Kmart Corporation Employee Pension Plan, as\namended from time to time.\n\n(k)    Plan Year means the 12-month period beginning on the Effective Date or\nany subsequent anniversary date.\n\n(l)    Years of Participation shall be credited for Plan Years of participation\non and after the Effective Date; provided, however, that the Initial\nParticipants shall be credited with one Year of Participation as of the\n\n\n\n\n\n                                       1\n\n\nEffective Date. A Participant shall be credited with a Year of Participation for\neach Plan Year in which the Participant completes at least 1,000 Hours of\nEmployment (as defined in the Pension Plan) and is a Participant in this Plan.\n\n\nSECTION 4.     ELIGIBILITY\n\nThe Initial Participants shall begin participation in the Plan on the Effective\nDate. The Office of the Chief Executive Officer has the authority to amend the\nselect group of employees who are eligible to participate in the Plan, and their\nrespective entry dates into the Plan, as it may deem necessary or desirable. Any\nParticipant who may be removed from the select group of employees shall not\nforfeit any Accrued Benefit that is vested as of the date of such removal.\nHowever, any Participant that is removed from the select group of employees will\nnot accrue any additional benefit after the effective date of such removal.\n\nSECTION 5.     AMOUNT AND PAYMENT OF BENEFITS\n\n5.1    Amount of Benefit. Subject to the vesting schedule set forth in Section\n5.2, a Participant's Accrued Benefit under the Plan shall be determined as\nfollows:\n\n5% x Final Average Compensation x Years of Participation in the Plan, with a\nmaximum benefit of 50% of the Participant's Final Average Compensation.\n\n5.2    Vesting of Benefit. The benefit payable from the Plan shall be a \npercentage of the Participant's Accrued Benefit determined under the following \nschedule:\n\n           Years of Participation             Percentage of Benefit\n\n               1 through 2                               0%\n                    3                                   50%\n                    4                                   75%\n                5 or more                              100%\n\n5.3    Payment of Benefit. Benefits shall be payable from the Plan as follows:\n\n       (a) Normal Retirement Age. A Participant who terminates employment with\nthe Company and retires at or after Normal Retirement Age shall be entitled to\nreceive his or her Accrued Benefit commencing on the first day of the month\ncoincident with or next following attainment of Normal Retirement Age or actual\nretirement date, if later.\n\n       (b) Early Retirement Age. A Participant who terminates employment with\nthe Company and retires at Early Retirement Age shall be entitled to receive his\nor her Accrued Benefit at (i) Normal Retirement Date, or (ii) any Early\nRetirement Date. If the Participant elects to receive his or her Accrued Benefit\nat an Early Retirement Date, the Accrued Benefit shall be reduced by 1\/2 of 1%\nfor each month by which the Participant's age at retirement precedes Normal\nRetirement Age.\n\n       (c) Other Termination of Employment. A Participant who terminates\nemployment with the Company before attainment of Early Retirement Age for any\nreason (including death or disability) with at least three Years of\nParticipation shall be entitled to receive his or her Accrued Benefit. The\nbenefit shall be payable (i) at Normal Retirement Date or (ii) at any Early\nRetirement Date, subject to reduction as provided in Section 5.3(b), as elected\nby the Participant.\n\n5.4    Form of Benefit Payment. Benefits shall be paid to a Participant in the\nform, and subject to the same terms and conditions, as set forth in Section VI\nof the Pension Plan. In the event of a death of a Participant, benefits shall in\npaid in the form, and subject to the same terms and conditions, as set forth in\nsubsection 1 of Section VII of the Pension Plan.\n\n5.5    Restrictions on Payment of Benefits. Notwithstanding any other provision\nof this Plan to the contrary, no Participant (or his or her joint annuitant or\nbeneficiary) shall be entitled to benefits under the Plan if, as determined by\nthe Board of Directors in its sole discretion, such Participant (a) breaches the\ncovenants or agreements which are included in any agreement between the\nParticipant and Company including, without limitation, provisions regarding\nconfidentiality, non-solicitation, non-competition or disparagement with respect\nto the Company or an Affiliated Company (as defined in the Pension Plan), or (b)\nparticipated in any theft, embezzlement, fraud, or acts of a similar nature\nagainst the Company or an Affiliated Company.\n\n\n\n                                       2\n\n\n\n\nSECTION 6.     FUNDING\n\nBenefits under the Plan shall be payable solely from the general assets of the\nCompany or the appropriate participating Affiliated Company. The Plan shall\nremain unfunded during the entire period of its existence.\n\n\nSECTION 7.     RIGHTS OF EMPLOYEES AND CONDITIONS OF EMPLOYMENT\n\n7.1    Rights of Employees and Beneficiaries. Payment of benefits pursuant to\nthe Plan shall be made only to a Participant, joint annuitant or beneficiary.\nSuch benefits shall not be subject in any manner to the debts or other\nobligations of the person to whom they are payable and shall not be sold,\ntransferred, assigned or encumbered in any manner, either voluntarily or\ninvoluntarily.\n\n7.2    Conditions of Employment Not Affected by Plan. The establishment and\nmaintenance of the Plan shall not be construed as conferring any legal rights\nupon any person to the continuance of employment with the Company or any\nAffiliated Company, nor shall the Plan limit or affect the right of the Company\nof any Affiliated Company to discharge any person from its employ.\n\n\nSECTION 8.     ADMINISTRATION\n\nThe Company shall be responsible for the administration of the Plan and for\ncarrying out the purposes and provisions of the Plan. As administrator, the\nCompany:\n\n(a)    May adopt such rules, regulations and forms and establish such procedures\nas it deems necessary or appropriate in its discretion for the administration of\nthe Plan.\n\n(b)    Shall have discretionary authority to interpret, construe and determine\nthe application of the Plan and its terms and to resolve all issues arising\nunder the Plan. This discretionary authority shall include the authority to (i)\nconstrue disputed or doubtful terms of the Plan or of any rule, regulation, form\nor procedure, (ii) determine the eligibility of an individual to participate in\nthe Plan, (iii) determine the amount, if any, of benefits to which any\nParticipant or other person may be entitled under the Plan, (iv) determine the\ntiming and manner of payment of benefits, (v) determine any such matter relating\nto the administration of the Plan or any claim under the Plan, and (vi) resolve\nall other issues arising under the Plan, any such determinations to be final and\nbinding upon all persons.\n\n(c)    May take such other action as it deems necessary or appropriate in its\ndiscretion for the proper administration of the Plan.\n\n(d)    May delegate any of the foregoing powers to any person or persons or\ncommittee or committees.\n\n\nSECTION 9.     AMENDMENT AND TERMINATION\n\nThe Company reserves the right to amend or discontinue the Plan if, in its sole\njudgment, such an amendment or discontinuance is deemed necessary or desirable.\nNo such amendment or termination of the Plan shall operate to reduce the Accrued\nBenefit hereunder of any Participant under the Plan as of the effective date of\namendment or termination.\n\n\nSECTION 10.    CHANGE IN CONTROL\n\n10.1   Effect of a Change in Control. Upon a Change in Control (as defined in\nSection 10.2), the following provisions shall become immediately effective and\nshall supersede any provisions of the Plan to the contrary:\n\n(a)    The requirement that a Participant must complete three Years of\nParticipation in order to be eligible to receive a benefit from the Plan shall\nbe waived.\n\n(b)    For a Participant with less than five Years of Participation, his or her\nvested Percentage of Benefit set forth in Section 5.2 shall be increased to 100%\nof his or her Accrued Benefit immediately upon the date the Change in Control\noccurs.\n\n\n\n\n                                       3\n\n\n\n(c)    A Participant's minimum Accrued Benefit from the Plan shall be the\nAccrued Benefit determined under the Plan's benefit formula as of the end of the\nPlan Year in which the Change in Control occurs.\n\n(d)    A Participant's Accrued Benefit shall be payable immediately upon\nconsummation of a Change in Control and shall be paid in the form of an\nactuarially equivalent lump sum distribution.\n\n10.2   Definition of Change in Control. \"Change in Control\" of the Company is\ndeemed to have occurred as of the first day that any one or more of the\nfollowing conditions shall have been satisfied:\n\n(a)    The \"Beneficial Ownership\" of securities representing more than\nthirty-three percent (33%) of the combined voting power of the Company is\nacquired by any \"person\" as defined in Sections 13(d) and 14(d) of the Exchange\nAct (other than the Company, any trustee or other fiduciary holding securities\nunder an employee benefit plan of the Company, or any corporation owned,\ndirectly or indirectly, by the stockholders of the Company in substantially the\nsame proportions as their ownership of stock of the Company); or\n\n(b)    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(c)    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\n\nSECTION 11.    MISCELLANEOUS\n\n11.1   Controlling Law. To the extent not preempted by the laws of the United\nStates of America, the laws of the State of Michigan shall be the controlling\nlaw in all matters relating to the Plan.\n\n11.2   Severability. If any provisions of the Plan shall be held illegal or\ninvalid for any reason, said illegality or invalidity shall not affect the\nremaining parts of the Plan and the Plan shall be construed and enforced as if\nsaid illegal and invalid provisions had never been included herein.\n\n11.3   Limitations on Provisions. The Plan shall not operate or be construed in\nany way to modify, amend or affect the terms and provisions of the Pension Plan.\n\n11.4   Extension of Plan to Subsidiaries. The Plan may be extended to an\nAffiliated Company on such terms and conditions as determined by the Board of\nDirectors of the Company.\n\n\n\n\n                                       4\n\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":[9539,9550],"class_list":["post-40578","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__retirement"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/40578","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=40578"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40578"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40578"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40578"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}