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EXHIBIT
10.17
[Excludes Payment of Target
Bonus]
EXECUTIVE SEVERANCE
AGREEMENT
By this Executive Severance
Agreement dated as of
, 2007 (“ Agreement ”), Sears Holdings
Corporation and its affiliates and subsidiaries
(“Sears”), and [
] (“ Executive ”), intending to be legally
bound, and for good and valuable consideration, agree as
follows:
1. Severance Benefits
.
(a) Continuation of
Compensation . In the event that Executive’s employment
is terminated by each Sears entity by which the Executive is
employed for any reason other than “Cause”, death or
“Disability” (as such terms are defined in
Section 2 below) or by Executive for Good Reason (as defined
in Section 2 below), subject to the provisions of subsection
4(e), Section 5 and Section 10 herein, Executive shall be
placed on a severance-related leave of absence
(“Leave”) and Sears shall:
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Continue to
pay Executive’s base salary, at the rate in effect
immediately prior to the first day of the Leave, for a period of
one (1) year (“Salary Continuation Period”), which
amount shall be paid on each regular salary payroll period with
respect to the Salary Continuation Period.
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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 the remaining six (6) months shall be paid on each regular
salary payroll 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 subsection 4(b)(ii)
herein.
(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 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) Annual Incentive
Plan . Upon occurrence of the Leave, Executive’s
entitlement to any award Executive otherwise may be eligible for
under an annual incentive plan (“AIP”) sponsored by
Sears, shall be determined in accordance with the terms and
conditions of the AIP document regarding termination of employment
(as if the termination of employment occurred on the first day of
the Leave).
(d) Long-Term Performance
Program . Upon occurrence of the Leave, Executive’s
entitlement to any award granted to Executive under a long-term
incentive program (“LTIP”) sponsored by Sears, shall be
determined in accordance with the terms and conditions of the award
letter and the LTIP document regarding termination of employment
(as if the termination of employment occurred on the first day of
the Leave).
(e) Stock Plan . Upon
occurrence of the Leave, any unvested restricted stock awarded to
Executive under a stock plan sponsored by Sears, shall be forfeited
as of the first day of the Leave.
(f) Outplacement .
From the first day of the Leave, Executive will be immediately
eligible for outplacement services at Sears’ expense. Sears
and Executive will mutually agree on which outplacement firm, among
current vendors used by Sears, will provide these services. Such
services will be provided for up to one (1) year from the
beginning of the Salary Continuation Period or until employment is
obtained, whichever occurs first.
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 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.
(c) “ Good
Reason ” shall mean, without Executive’s written
consent, (i) a reduction of more than ten percent
(10%) in the sum of Executive’s annual base salary and
target bonus from those in effect as of the date of this Agreement;
(ii) Executive’s
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mandatory relocation to an
office more than fifty (50) miles from the primary location at
which Executive is required to perform Executive’s duties
immediately prior to the date of this Agreement; or (iii) any
other action or inaction that constitutes a material breach of the
terms of this Agreement, including failure of a successor company
to assume or fulfill the obligations under this Agreement. In
each case, Executive must provide Sears with written notice of the
facts giving rise to a claim that “Good Reason” exists
for purposes of this Agreement, within thirty (30) days of the
initial existence of such Good Reason event, and Sears
shall have a right to remedy such event within sixty (60) days
after receipt of Executive’s written notice (“the
sixty (60) day period”). If
Sears remedies the Good Reason event within the sixty
(60) day period the Good Reason event (and
Executive’s right to receive any benefit under this Agreement
on account of termination of employment for Good Reason) shall
cease to exist. If Sears does not remedy the Good Reason event
within the sixty (60) day period, and Executive does not
terminate employment within thirty (30) days following
the earlier of: (y) the date Sears notifies Executive that it
does not intend to remedy the Good Reason or does not agree that
there has been a Good Reason event, or (z) the expiration of
the sixty (60) day period, the Good Reason event (or any claim
of Good Reason) shall cease to exist. Notwithstanding the
foregoing, if Executive fails to provide written notice to
Sears of the facts giving rise to a claim of Good Reason within
thirty (30) days of the initial existence of such Good
Reason event, the Good Reason event (and
Executive’s right to receive any benefit under this Agreement
on account of termination of employment for Good
Reason) shall cease to exist as of the thirty-first (31
st
) day following the
later of its occurrence or Executive’s knowledge
thereof.
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.
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 severance
benefits pursuant to Section 1 hereto (“ Severance
Benefits ”):
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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 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
ou
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