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EXECUTIVE EMPLOYMENT AND SEVERANCE AGREEMENT

Employee Retention Agreement

EXECUTIVE EMPLOYMENT AND SEVERANCE AGREEMENT | Document Parties: Sears Holdings Corporation You are currently viewing:
This Employee Retention Agreement involves

Sears Holdings Corporation

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Title: EXECUTIVE EMPLOYMENT AND SEVERANCE AGREEMENT
Governing Law: Illinois     Date: 3/17/2009
Industry: Retail (Department and Discount)     Sector: Services

EXECUTIVE EMPLOYMENT AND SEVERANCE AGREEMENT, Parties: sears holdings corporation
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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

 

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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.

 

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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

 

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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


 
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