Exhibit 10.37
EXECUTIVE EMPLOYMENT AND
SEVERANCE AGREEMENT
By this Executive Employment and
Severance Agreement, dated as of February 25, 2008
(“Agreement”), Sears Holdings Corporation and its
affiliates and subsidiaries (“Sears”) and Kevin
Holt (“Executive”) (collective referred to as the
“Parties”) intending to be legally bound, and for good
and valuable consideration, agree as follows:
PART A –
EMPLOYMENT
1. Employment Term .
Executive agrees to an eighteen (18) month term of employment
with Sears, as Executive Vice President, Store Operations and
President, Store Operations Business Unit, which employment term
shall run from February 25, 2008 through August 25, 2009
(“Employment Term”), and during which term:
(a) Executive shall be deemed, for
all purposes under applicable employment policies and associate
benefit programs, a full-time, salaried employee.
(b) Executive shall work at the
Hoffman Estates Support Center or on approved store visits no fewer
than either:
|
|
i.
|
three
(3) weeks per month for at least six (6) weekdays each
week; or
|
|
|
ii.
|
such other
combination of days as may be agreed time to time by the Executive
and the Chief Executive Officer as would be the equivalent of
clause (i);
|
provided that, in either case,
Executive shall ensure that he is present and available at the
Hoffman Estates Support Center for at least three of the weekly
Senior Leadership Team staff meetings per month (with the remaining
weekly Senior Leadership Team meetings attended by telephone or
video conference), the monthly Business Unit board meetings and any
other critical Senior Leadership meetings, as shall be agreed by
the Chief Executive Officer and Executive.
2. Compensation Package .
During this employment term, Executive shall be entitled to the
compensation package set forth in the offer letter to Executive
from William Harker, dated February 15, 2008 (“Offer
Letter”)
PART B –
SEVERANCE
1. Severance Benefits .
Subject to the provisions of subsection 4(e) of this Part B and
Sections 1 and 6 of Part C:
(a) Salary Continuation . In
the event that Executive’s employment is
terminated:
i. By Sears for any reason other
than “Cause”, death or “Disability” (as
such terms are defined in Section 2 below), Executive shall be
placed on a severance-related leave of absence
(“Leave”) and Sears shall Continue to pay
Executive’s base salary, at the rate in effect immediately
prior to the termination date, for a period (“Salary
Continuation Period”) which shall be the lesser
of:
(1) Six (6) months, beginning
on the day after the Executive’s termination date, which
shall be the first day of his severance-related leave of absence
(“Leave”); or
(2) The period remaining in his
Employment Term (as defined in Section 1 of Part A
above);
provided that, in any event, Sears
obligations under this subsection (a) shall be reduced on a
dollar-for-dollar basis (but not below zero) to the extent
Executive earns fees, salary or wages from a subsequent employer
(including those arising from self-employment but excluding income
from being employed by Hudsonville Ice Cream one week per month)
during the Salary Continuation Period. Notwithstanding anything in
this subsection (a) to the contrary, if as of the first day of
the Leave Executive is a “key employee” or
“specified employee” within the meaning of Internal
Revenue Code (“Code”) Section 409A and regulations
issued thereunder, then, if necessary to comply with Code
Section 409A, payment to Executive shall not be made to
Executive until six (6) months after the first day of
Executive’s Leave and payment of the first six
(6) months of salary continuation shall be made in a lump sum
and payment of the salary continuation shall instead be made in a
lump sum at the end of the six (6) month waiting period. In
addition to the foregoing, a lump sum payment will be made to
Executive within ten (10) business days following the first
day of the Leave in an amount equal to the sum of any accrued base
salary through the first day of the Leave to the extent not already
paid and any vacation benefits that accrued prior to the Leave. No
vacation will accrue during the Leave. All salary continuation
payments and benefits will terminate and forever lapse if Executive
is employed by a “Sears Competitor” as defined in
Section 4(b)(ii) of this Part B.
ii. By Sears for Cause during the
Employment Term, Executive shall not be entitled to any
severance-related salary continuation or benefits under Part B of
this Agreement, or under any other Sears severance pay
plan.
iii. By Executive for any reason,
Executive shall not be entitled to any severance-related salary
continuation or benefits under Part B of this Agreement, or under
any other Sears severance pay plan.
(b) Continuation of Benefits
. During the Salary Continuation Period, Executive will be entitled
to participate in all benefit plans and programs (except as
specified in this subsection (b)) in which Executive was eligible
to participate immediately prior to the Leave (subject to the terms
and conditions and continued availability of such plans and
programs); provided, however, that Executive will not be eligible
to participate in the long-term disability plan, flexible spending
accounts, Sears paid life
2
insurance and the Sears Holdings
401(k) Savings Plan (or any other defined contribution plan
sponsored by Sears) during the Leave. Executive and
Executive’s eligible dependents shall be entitled to continue
to participate in Sears medical and dental plans (subject to the
terms and conditions and continued availability of such plans).
However, in the event Executive provides services to another
employer and is covered by such employer’s health benefits
plan or program, the medical and dental benefits provided by Sears
hereunder shall be secondary to such employer’s health
benefits plan or program in accordance with the terms of Sears
health benefit plans.
(c) Stock Plan . Upon
occurrence of a Leave, the Executive shall be credited with service
during his Salary Continuation Period for purposes of continuing to
vest in his restricted stock award, as described in the Offer
Letter.
(d) Corporate Housing and
Aircraft . Upon the occurrence of a Leave, the Executive shall
no longer be entitled to payment by Sears for corporate housing nor
will he be entitled to continued use of the corporate
aircraft.
2. Definitions . For purposes
of this Agreement, the following terms shall have the definitions
as set forth below:
(a) “Cause” shall mean
(i) a material breach by Executive (other than a breach
resulting from Executive’s incapacity due to a Disability) of
Executive’s duties and responsibilities, as specifically
agreed to under the Offer Letter and this Agreement, which breach
is demonstrably willful and deliberate on Executive’s part,
is committed in bad faith or without reasonable belief that such
breach is in the best interests of Sears and is not remedied in a
reasonable period of time after receipt of written notice from
Sears specifying such breach; (ii) the commission by Executive
of a felony involving moral turpitude; or (iii) dishonesty or
willful misconduct in connection with Executive’s
employment.
(b) “Disability” shall
mean disability as defined under the Sears long-term disability
plan.
3. Intellectual Property
Rights . Executive acknowledges that Executive’s
development, work or research on any and all inventions or
expressions of ideas, that may or may not be eligible for patent,
copyright, trademark or trade secret protection, hereafter made or
conceived solely or jointly within the scope of employment at
Sears, provided such invention or expression of an idea relates to
the business of Sears, or relates to Sears actual or demonstrably
anticipated research or development, or results from any work
performed by Executive for or on behalf of Sears, are hereby
assigned to Sears, including Executive’s entire rights, title
and interest. Executive will promptly disclose such invention or
expression of an idea to Executive’s management and will,
upon request, promptly execute a specific written assignment of
title to Sears. If Executive currently holds any inventions or
expressions of an idea, regardless of whether they were published
or filed with the U.S. Patent and Trademark Office or the U.S.
Copyright Office, or is under contract to not so assign, Executive
will list them on the last page of this Agreement.
3
4. Protective Covenants .
Executive acknowledges that this Agreement provides for additional
consideration beyond what Sears is otherwise obligated to pay. In
consideration of the opportunity for severance benefits and special
payments specified above, and other good and valuable
consideration, Executive agrees to the following
(a) Non-Disclosure and
Non-Solicitation . Executive acknowledges and agrees to be
bound by the following, whether or not Executive receives the
“Severance Benefits” referred to in Section 1 of
this Part B:
i. Non-Disclosure of Sears
Confidential Information .
1. Executive will not, during the
term of Executive’s employment with Sears (including the
Leave) or thereafter, except as Sears may otherwise consent or
direct in writing, reveal or disclose, sell, use, lecture upon or
publish any “Sears Confidential Information” (as
defined herein) until such time as the information becomes publicly
known other than as a result of its disclosure, directly or
indirectly, by Executive; and
2. Executive understands that if
Executive possesses any proprietary information of another person
or company as a result of prior employment or otherwise, Sears
expects and requires that Executive will honor any and all legal
obligations that Executive has to that person or company with
respect to proprietary information, and Executive will refrain from
any unauthorized use or disclosure of such information.
ii. Sears Confidential
Information . For purposes of this Agreement, “Sears
Confidential Information” means trade secrets and non-public
information which Sears designates as being confidential or which,
under the circumstances, should be treated as confidential,
including, without limitation, any information received in
confidence or developed by Sears, its long and short term goals,
vendor and supply agreements, databases, methods, programs,
techniques, business information, financial information, marketing
and business plans, proprietary software, personnel information and
files, client information, pricing, and other information relating
to the business of Sears that is not known generally to the public
or in the industry.
iii. Return of Sears Property
. All documents and other property that relate to the business of
Sears are the exclusive property of Sears, even if Executive
authored or created them. Executive agrees to return all such
documents and tangible property to Sears upon termination of
employment or at such earlier time as Sears may request Executive
to do so.
iv. Conflict of Interest .
During Executive’s employment with Sears (including the
Leave), except as may be approved in writing by Sears, neither
Executive nor members of Executive’s immediate family will
have financial investments or other interests or relationships with
the Sears’ customers, suppliers or competitors which might
impair Executive’s
4
independence of judgment on behalf
of the Company. Executive agrees further not to engage in any
activity in competition with Sears and will avoid any outside
activity that could adversely affect the independence and
objectivity of Executive’s judgment, interfere with the
timely and effective performance of Executive’s duties and
responsibilities to Sears, discredit Sears or otherwise conflict
with the Sears’ best interests. For the avoidance of doubt,
Executive and Sears agree that Executive’s employment by
Hudsonville Ice Cream one week per month shall not be considered to
violate this clause iv.
v. Non-Solicitation of
Employees . During Executive’s employment with Sears
(including the Leave) and for one (1) year from the first day
of the Leave, Executive shall not, directly or indirectly, solicit
or encourage any person to leave her/his employment with Sears or
assist in any way with the hiring of any Sears employee by any
future employer or other entity.
(b) Non-Competition .
Executive acknowledges that as a result of Executive’s
position at Sears, Executive has learned or developed, or will
learn or develop, Sears Confidential Information (as defined in
subsection 4(a)(ii) above) and that use or disclosure of