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EXECUTIVE SEVERANCE AGREEMENT

Termination Severance Agreement

EXECUTIVE SEVERANCE AGREEMENT | Document Parties: Sears Holdings Corporation You are currently viewing:
This Termination Severance Agreement involves

Sears Holdings Corporation

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Title: EXECUTIVE SEVERANCE AGREEMENT
Governing Law: Illinois     Date: 3/26/2008
Industry: Retail (Department and Discount)     Sector: Services

EXECUTIVE SEVERANCE AGREEMENT, Parties: sears holdings corporation
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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:

 

   

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.

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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