-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, UJUrEg4XxuQrs3epSjwxt4gpYRFbXSyFXnfDTe94vOA+YKsC43a27ZSTpwM7fvnQ lnaT4dquyrw6dUJ+oRx2zg== 0000950124-01-502999.txt : 20010824 0000950124-01-502999.hdr.sgml : 20010824 ACCESSION NUMBER: 0000950124-01-502999 CONFORMED SUBMISSION TYPE: S-8 POS PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20010823 EFFECTIVENESS DATE: 20010823 FILER: COMPANY DATA: COMPANY CONFORMED NAME: KMART CORP CENTRAL INDEX KEY: 0000056824 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-VARIETY STORES [5331] IRS NUMBER: 380729500 STATE OF INCORPORATION: MI FISCAL YEAR END: 0129 FILING VALUES: FORM TYPE: S-8 POS SEC ACT: 1933 Act SEC FILE NUMBER: 333-45212 FILM NUMBER: 1721988 BUSINESS ADDRESS: STREET 1: 3100 W BIG BEAVER RD CITY: TROY STATE: MI ZIP: 48084 BUSINESS PHONE: 2486431000 MAIL ADDRESS: STREET 1: 3100 W BIG BEAVER ROAD CITY: TROY STATE: MI ZIP: 48084 FORMER COMPANY: FORMER CONFORMED NAME: KRESGE S S CO DATE OF NAME CHANGE: 19770921 S-8 POS 1 k64688s-8pos.txt POST EFFECTIVE AMENDMENT TO FORM S-8 1 Registration No. 333-45212 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 A REGISTRATION STATEMENT Under The Securities Act of 1933 ----------------- KMART CORPORATION (Exact name of issuer as specified in its charter) Michigan 38-0729500 (State or other jurisdiction (I.R.S. Employer Identification No.) of incorporation or organization) 3100 West Big Beaver Road, Troy, Michigan 48084 (Address of Principal Executive Offices) (Zip Code) Conaway Stock Grants (Full title of the plans) James E. Defebaugh Vice President, Associate General Counsel and Secretary Kmart Corporation 3100 West Big Beaver Road Troy, Michigan 48084 (Name and Address of agent for service) Telephone number, including area code, of agent for service: 248-463-5021 Copies of Communications to: Verne C. Hampton II Dickinson Wright PLLC 500 Woodward, Suite 4000 Detroit, Michigan 48226 Approximate date of proposed public offering: As soon as practicable after the effective date of this Registration Statement CALCULATION OF REGISTRATION FEE
Proposed Maximum Proposed Title of Securities Amount to be Offering Price Per Maximum Aggregate Amount of to be Registered Registered Share* Offering Price Registration Fee Common Stock 3,000,000 shs. $12.01 $36,030,000 $9,008 ($1 par value)
*Based upon the market price on August 17, 2001 2 The contents of Registration Number 333-45212 of Kmart Corporation dated September 6, 2000 are incorporated by reference herein 3 ITEM 8. EXHIBITS The following exhibits are filed herewith: Exhibit Number Exhibit 5 Opinion and consent of Dickinson Wright PLLC 23 Consent of PricewaterhouseCoopers LLP 28(a) Notice of Stock Option Granted February 6, 2001 to Charles C. Conaway 28(b) Notice of Stock Option Granted May 15, 2001 to Charles C. Conaway 4 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 or amendment thereto to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Troy and State of Michigan on August 22, 2001. KMART CORPORATION By /s/ Charles C. Conaway ------------------------------------ (Charles C. Conaway) Chairman of the Board and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, this Registration Statement or amendment thereto has been signed below by the following persons in the capacities indicated on August 22, 2001.
SIGNATURE TITLE SIGNATURE TITLE Chairman of the Board and Chief Executive Officer /s/ Charles C. Conaway (Principal Executive Officer) /s/ Willie D. Davis Director - --------------------------------- and Director ------------------------------- (Charles C. Conaway) (Willie D. Davis) Executive Vice President and /s/ Jeffrey N. Boyer Chief Financial Officer /s/ Joseph P. Flannery Director - --------------------------------- (Principal Financial and ------------------------------- (Jeffrey N. Boyer) Accounting Officer) (Joseph P. Flannery) /s/ Robert D. Kennedy Director ------------------------------- (Robert D. Kennedy) /s/ James B. Adamson Director /s/ Robin B. Smith Director - --------------------------------- ------------------------------- (James B. Adamson) (Robin B. Smith) /s/ Lilyan H. Affinito Director /s/ Thomas T. Stallkamp Director - --------------------------------- ------------------------------- (Lilyan H. Affinito) (Thomas T. Stallkamp) /s/ Richard G. Cline Director /s/ Richard J. Statuto Director - --------------------------------- ------------------------------- (Richard G. Cline) (Richard J. Statuto)
5 Exhibit Index Exhibit Number Exhibit 5 Opinion and consent of Dickinson Wright PLLC 23 Consent of PricewaterhouseCoopers LLP 28(a) Notice of Stock Option Granted February 6, 2001 to Charles C. Conaway 28(b) Notice of Stock Option Granted May 15, 2001 to Charles C. Conaway EX-5 3 k64688ex5.txt OPINION & CONSENT OF DICKINSON WRIGHT PLLC 1 EXHIBIT 5 [DICKINSON WRIGHT LLP LETTERHEAD] August 21, 2001 Securities and Exchange Commission Judiciary Plaza 450 Fifth Street, N.W. Washington, DC 20549 Re: Kmart Corporation Conaway Stock Grants Registration Statement on Form S-8-A Gentlemen: As counsel for Kmart Corporation, a Michigan corporation (the "Corporation"), we are familiar with the corporate affairs of the Corporation and particularly with the corporate proceedings relating to the Stock Option Grants to Charles C. Conaway (the "Stock Grants"). The Stock Grants were duly and legally entered into by the Corporation as authorized by its Board of Directors. Based on the above, we are of the opinion that: 1. The Corporation duly and validly has approved the Stock Grants, taking all necessary corporate action for that purpose. 2. The shares of Common Stock of the Corporation covered by the Stock Grants have been duly authorized and when issued pursuant to the Stock Grants will be validly issued, fully paid and non-assessable and no personal liability will attach to the holder thereof. 3. The Stock Grants are not subject to the Employee Retirement Income Security Act of 1974, as amended. Very truly yours, DICKINSON WRIGHT PLLC EX-23 4 k64688ex23.txt CONSENT OF INDEPENDENT ACCOUNTS 1 EXHIBIT 23 CONSENT OF INDEPENDENT ACCOUNTS We hereby consent to the incorporation by reference in this Amendment to Registration Statement on Form S-8 of our report dated March 13, 2001 relating to the financial statements, which appears in the 2000 Annual Report to Shareholders of Kmart Corporation, which is incorporated by reference in Kmart Corporation's Annual Report on Form 10-K for the year ended January 31, 2001. PricewaterhouseCoopers LLP Detroit, Michigan August 23, 2001 EX-28.(A) 5 k64688ex28-a.txt NOTICE OF STOCK OPTION GRANTED 2/06/01 1 EXHIBIT 28(a) NOTICE OF STOCK OPTION GRANTED FEBRUARY 6, 2001 ("GRANT NOTICE") To: Charles C. Conaway 1. Grant. Pursuant to approval of the Board of Directors of Kmart Corporation (the "Company"), you are hereby granted, effective February 6, 2001, a Nonqualified Stock Option to purchase 500,000 shares of Common Stock of the Company at $8.55 per share, subject to the terms of this Grant Notice. 2. Vesting. This option shall become vested and exercisable in three equal installments on February 6 of each of 2002, 2003 and 2004. 3. Expiration Date. This option, unless sooner terminated or exercised in full, shall expire on February 7, 2011. 4. Payment of Option Price. The option price for the shares for which this option is exercised by you shall be paid by you, on the date the option is exercised, in cash, in shares of Common Stock owned by you for at least six months prior to the date of exercise or a combination of the foregoing. Any share of Common Stock delivered in payment of the option price shall be valued at its Fair Market Value (as such Capitalized Term is defined in the Kmart Corporation 1997 Long-Term Equity Compensation Plan). 5. Treatment under IRC. This option shall not be treated as an incentive stock option under the Internal Revenue Code. 6. SEC Registration. Prior to the vesting date(s) set forth in Paragraph 2 above, the Company shall use its reasonable best efforts to file a registration statement on Form S-8 (or any successor form, or file an amendment to a previously filed registration statement on Form S-8) with the SEC under the Securities Act of 1933 (the "Act") covering the issuance of the shares issuable upon exercise of this option, and shall maintain the effectiveness of such registration statement until this option is exercised in full or expires. 7. Withholding Tax. Notwithstanding anything to the contrary in this Grant Notice, the obligations of the Company to issue stock upon exercise of this option shall be contingent upon your satisfaction of all applicable withholding tax requirements. Such issuance shall be subject to reduction in the number of such shares if necessary, to comply with applicable withholding tax obligations. You may elect, in such form and at such time as the Company may prescribe, to satisfy any tax required to be withheld under applicable federal, state or local law upon exercise of this option in whole or in part, by either having the Company withhold whole shares of Kmart Corporation Common Stock or by delivering other whole shares of Kmart Corporation Common Stock owned by you for at least six months, having a Fair Market Value (as such Capitalized 2 Term is defined in the Kmart Corporation 1997 Long-Term Equity Compensation Plan) equal to the amount withheld. 8. Notices. Any notice by you to the Company hereunder shall be in writing and shall be deemed duly given only upon receipt thereof by the Company at its principal offices. Any notice by the Company to you shall be in writing and shall be deemed duly given if mailed to you at the address last specified to the Company by you. 9. General. The validity and construction of this Grant Notice shall be governed by the laws of the State of Michigan without reference to principles of conflicts of laws. This option is not granted pursuant to the Kmart Corporation 1997 Long-Term Equity Compensation Plan. However, except as expressly set forth herein or in the Employment Agreement, this option shall be governed by the terms of such Plan; provided, however, that Section 14.3 of the Plan shall be expressly disregarded for purposes of this Grant Notice. If there is any conflict between such Plan and this Grant Notice, this Grant Notice shall govern. If there is any conflict between the Employment Agreement and either the Grant Notice or the Plan (including, but not limited to, Section 14.3), the Employment Agreement shall govern. The obligation of the Company to issue and deliver any stock under this option is specifically subject to all applicable laws, rules, regulations and required governmental approvals. The Company shall use its reasonable best efforts to obtain such approvals as promptly as practicable. Kmart Corporation By: ----------------------------------------- Accepted and agreed: - ----------------------------- Charles C. Conaway 2 EX-28.(B) 6 k64688ex28-b.txt NOTICE OF STOCK OPTION GRANTED 5/15/01 1 EXHIBIT 28(b) NOTICE OF STOCK OPTION GRANTED MAY 15, 2001 ("GRANT NOTICE") To: Charles C. Conaway 1. Grant. Pursuant to Section 6(b)(iv) of the employment agreement dated as of May 30, 2000 between Kmart Corporation (the "Company") and you, as amended effective May 15, 2001 (the "Employment Agreement"), you are hereby granted, effective May 15, 2001, a Nonqualified Stock Option to purchase 2,500,000 shares of Common Stock of the Company at $10.15 per share, subject to the terms of this Grant Notice. 2. Vesting. This option shall become vested as provided in Section 6(b)(iv) of the Employment Agreement. 3. Expiration Date. This option, unless sooner terminated or exercised in full, shall expire on May 16, 2011. 4. Termination. In the event of any termination of your employment, subject to Paragraph 3 above, the applicable provisions of Section 6(b)(iv) and Section 11 of the Employment Agreement, and of any other provisions of the Employment Agreement pertinent to the interpretation of such Sections, shall govern the vesting, duration of exercise rights after termination of employment, and forfeiture, as the case may be, of this option. 5. Change in Control. In the event of a Change in Control (as defined in the Employment Agreement), this option shall immediately become vested and exercisable in full and shall continue to be exercisable until its scheduled expiration date under Paragraph 3 or 4 above or, if sooner, its exercise in full. 6. Payment of Option Price. The option price for the shares for which this option is exercised by you shall be paid by you, on the date the option is exercised, in cash, in shares of Common Stock owned by you for at least six months prior to the date of exercise or a combination of the foregoing. Any share of Common Stock delivered in payment of the option price shall be valued at its Fair Market Value (as such Capitalized Term is defined in the Kmart Corporation 1997 Long-Term Equity Compensation Plan). 7. Treatment under IRC. This option shall not be treated as an incentive stock option under the Internal Revenue Code. 8. Exercisability of Option. This option shall be exercisable during your lifetime only by you in accordance with the terms hereof and shall not be assignable or transferable except by will or the laws of descent and distribution or as otherwise provided in Paragraph 12 below. Except in the event of a prior permitted transfer made in accordance with Paragraph 12 below, if you die or become disabled, any shares issuable upon exercise of this option shall in the case of death be issued to the legal representative of your estate, and 2 may in the case of Disability be issued to the legal representative or guardian. The Compensation and Incentives Committee may require an indemnity and/or such evidence or other assurances as it may deem necessary prior to such issuance. 9. SEC Registration. Prior to May 15, 2002, (or if this option becomes exercisable prior to that date, then as promptly as practicable thereafter), the Company shall use its reasonable best efforts to file a registration statement on Form S-8 (or any successor form, or file an amendment to a previously filed registration statement on Form S-8) with the SEC under the Securities Act of 1933 (the "Act") covering the issuance of the shares issuable upon exercise of this option and shall maintain the effectiveness of such registration statement until this option is exercised in full or expires. 10. Withholding Tax. Notwithstanding anything to the contrary in this Grant Notice, the obligations of the Company to issue stock upon exercise of this option shall be contingent upon your satisfaction of all applicable withholding tax requirements. Such issuance shall be subject to reduction in the number of such shares if necessary, to comply with applicable withholding tax obligations. You may elect, in such form and at such time as the Company may prescribe to satisfy any tax required to be withheld under applicable federal, state or local law upon exercise of this option, in whole or in part, by either having the Company withhold whole shares of Kmart Corporation Common Stock or by delivering other whole shares of Kmart Corporation Common Stock owned by you for at least six months, having a Fair Market Value (as such Capitalized Term is defined in the Kmart Corporation 1997 Long-Term Equity Compensation Plan) equal to the amount withheld. 11. Transferability of Option. Except for transfers of options permitted under the General Instructions to Form S-8 under the Act and currently in effect and as may be amended in the future, this option shall not be assignable or transferable except by will or the laws of descent and distribution. 12. Notices. Any notice by you to the Company hereunder shall be in writing and shall be deemed duly given only upon receipt thereof by the Company at its principal offices. Any notice by the Company to you shall be in writing and shall be deemed duly given if mailed to you at the address last specified to the Company by you. 13. General. The validity and construction of this Grant notice shall be governed by the laws of the State of Michigan without reference to principles of conflicts of laws. This option is not granted pursuant to the Kmart Corporation 1997 Long-Term Equity Compensation Plan. However, except as expressly set forth herein or in the Employment Agreement, this option shall be governed by the terms of such Plan; provided, however, that Section 14.3 of the Plan shall be expressly disregarded for purposes of this Grant Notice. If there is any conflict between such Plan and this Grant Notice, this Grant Notice shall govern. If there is any conflict between the Employment Agreement and either the 2 3 Grant Notice or the Plan (including, but not limited to, Section 1.4.3), the Employment Agreement shall govern. The obligation of the Company to issue and deliver any stock under this option is specifically subject to all applicable laws, rules, regulations and required governmental approvals. The Company shall use its reasonable best efforts to obtain such approvals as promptly as practicable. Kmart Corporation By: ----------------------------------------- Accepted and agreed: - ----------------------------- Charles C. Conaway 3 -----END PRIVACY-ENHANCED MESSAGE-----