Kroger 2010 Annual Report Download - page 74

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Rule 16b-3 or any other applicable rule or regulation, the Board may amend this Plan to delete, add to
or modify the provisions of the Plan accordingly, subject to the provisions of Article 14, if applicable.
The Company intends to comply, if and to the extent applicable, with the requirements of Rule 16b-3;
however, the Company’s failure for any reason whatsoever to comply with such requirements will not
impose any liability on the Company to any Optionee or any other party.
8.8 To the extent required by Rule 16b-3 under the Exchange Act or otherwise provided in
the Agreement, the Committee will have sole discretion to consent to or disapprove the election of
any Optionee to receive cash in full or partial settlement of a Performance Unit. In cases where an
election of settlement in cash must be consented to by the Committee, the Committee may consent
to, or disapprove, such election at any time after such election, or within such period for taking action
as is specified in the election, and failure to give consent will be disapproval. Consent may be given
in whole or as to a portion of the Performance Unit surrendered by the Optionee. If the election
to receive cash is disapproved in whole or in part, the Performance Unit will be deemed to have
been exercised for Shares, or, if so specified in the notice of exercise and election, not to have been
exercised to the extent the election to receive cash is disapproved.
8.9 The maximum number of Shares that may be issued to any Employee or Director pursuant
to the exercise of Performance Units may not exceed 3,750,000 Shares. For purposes of the preceding
sentence, any Performance Units paid in the form of cash will be deemed to have been paid in Shares,
with the number of Shares being deemed paid equal to the amount of cash paid to the Employee or
Director divided by the Fair Market Value of a Share on the date of payment.
9. Exercise
An Option, Right or Performance Unit, subject to the provisions of the Agreement under which
it was granted, may be exercised in whole or in part by the delivery to the Company of written
notice of the exercise, in such form as the Committee may prescribe, accompanied, in the case of
an Option, by (i) full payment for the Shares with respect to which the Option is exercised, or (ii)
irrevocable instructions to a broker selected by the Committee to consummate “cashless” exercises
to deliver promptly to the Company cash equal to full payment for the Shares for which the Option
is exercised.
10. Non-transferability
Options, Rights, Performance Units and Incentive Shares granted or awarded under the Plan will
not be transferable otherwise than by will or the laws of descent and distribution, and an Option,
Right or Performance Unit may be exercised during his or her lifetime only by the Optionee or, in
the event of his or her legal disability, by his or her legal representative. A Related Right or Related
Performance Unit is transferable only when the Related Option is transferable and only with the
Related Option and under the same conditions.
11. Restricted Stock Awards
11.1 The Committee is hereby authorized to award Shares of Restricted Stock to Employees and
Directors.
11.2 Restricted Stock awards under the Plan will consist of Shares that are restricted against
transfer, subject to forfeiture, and subject to such other terms and conditions intended to further
the purposes of the Plan as may be determined by the Committee. The terms and conditions may
provide, in the discretion of the Committee, for the vesting of such awards to be contingent upon the
achievement of one or more Performance Goals.