Employment Agreement - Kmart Management Corp. and David Whipple
EXECUTION COPY
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made and entered into on June 1, 2004, by and between
Kmart Management Corporation, a Michigan corporation (together with its
successors and assigns permitted under this Agreement, the "Company"), and David
Whipple (the "Executive").
WHEREAS, the Company desires that the Executive become employed by the
Company and provide services to the Company and Holding Corp. (as hereinafter
defined), in the best interest of the Company and its affiliates and
constituencies;
WHEREAS, the Executive desires to be employed by the Company as provided
herein; and
WHEREAS, the Executive and the Company desire to enter into this Agreement
to set forth the terms and conditions of the Executive's services with the
Company;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the receipt of
which is mutually acknowledged, the Company and the Executive (individually a
"Party" and together the "Parties") agree as follows:
1. Definitions. The following definitions shall apply to this
Agreement in its entirety.
(a) "Base Salary" shall mean the salary granted to the
Executive pursuant to Section 4.
(b) "Board" shall mean the Board of Directors of the Company.
(c) "Cause" shall mean (i) the Executive is convicted of a
felony involving moral turpitude or any other felony (other than motor vehicle
related) and, in the case of such other felony, the Executive is unable to show
that he (A) acted in good faith and in a manner he reasonably believed to be in
the best interests of the Company and its affiliates and (B) had no reasonable
cause to believe his conduct was unlawful; or (ii) the Executive engages in
conduct that constitutes willful gross neglect or willful misconduct in carrying
out his duties under this Agreement, resulting, in either case, in material harm
to the Company or its affiliates, unless the Executive believed in good faith
that such act or non-act was in, or was not opposed to, the best interests of
the Company and its affiliates.
(d) "Committee" shall mean the Compensation and Incentives
Committee of the Holding Corp. Board or any other committee of the Holding Corp.
Board performing similar functions.
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(e) "Constructive Termination" by the Executive shall mean
termination, during the Term of Employment, based on the occurrence without the
Executive's express written consent of any of the following: (i) a material
diminution or adverse change in the Executive's responsibilities, duties,
authorities or any reduction in title, other than for Cause or Disability; (ii)
a reduction in the Executive's Base Salary or Target Bonus (as defined in
Section 7) other than for Cause or Disability and other than as part of an
across-the-board salary reduction generally imposed on senior executives of the
Company; (iii) the failure of the Company to obtain the assumption in writing of
its obligation to perform this Agreement by any successor to all or
substantially all of the assets of the Company on or prior to a merger,
consolidation, sale or similar transaction; or (iv) if the Executive no longer
reports to the CEO or to the COO or other direct report of the CEO. The
Executive shall further be required to comply with the provisions of Section
11(d)(i) of this Agreement with respect to a Constructive Termination.
(f) "Disability" shall mean the Executive's inability, with or
without a reasonable accommodation, to substantially perform his duties and
responsibilities under this Agreement by reason of any physical or mental
incapacity for a period of 180 consecutive days.
(g) "Effective Date" shall mean June 1, 2004.
(h) "Holding Corp." shall mean Kmart Holding Corporation, a
Delaware corporation and the Company's parent corporation.
(i) "Holding Corp. Board" shall mean the board of directors of
Holding Corp.
2. Term of Employment. Subject to Holding Corp. Board approval as
set forth in Section 19 and subject to termination pursuant to Section 11, the
Company shall employ the Executive, and the Executive hereby accepts such
employment, for the period commencing on the Effective Date and ending on the
third anniversary thereof (the "Term of Employment"); provided, however, that
the Term of Employment shall be automatically extended for additional one-year
periods on each subsequent annual anniversary of the Effective Date, unless
written notice of non-extension is provided by either Party to the other Party
at least 60 days prior to any such anniversary.
3. Position, Duties and Responsibilities.
(a) During the Term of Employment, the Executive shall be
employed by the Company and shall serve as Senior Vice President, Associate
Resources (or such other position or positions as may be agreed upon in writing
by the Executive and Holding Corp. and/or the Company, as applicable). The
Executive shall have all authority commensurate with the position of Senior Vice
President, Associate Resources, subject to the direction of the Holding Corp.
Board, the Board and/or the Chief Executive Officer ("CEO") of the Company. The
Executive shall initially report directly to the CEO, but this may be changed
such that he reports to the COO or other direct report of the CEO. The Executive
shall devote substantially all of his business time, attention and
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skill to the performance of such duties and responsibilities, and shall use his
best efforts to promote the interests of the Company and its affiliates. The
Executive shall not, without the prior written approval of the Holding Corp.
Board, engage in any other business activity which is in violation of policies
established from time to time by the Company or its affiliates.
(b) Anything herein to the contrary notwithstanding, nothing
shall preclude the Executive from (i) serving on the boards of directors of a
reasonable number of other corporations or the boards of a reasonable number of
trade associations and/or charitable organizations (subject to the reasonable
approval of the Holding Corp. Board), (ii) engaging in charitable activities and
community affairs, and (iii) managing his personal investments and affairs,
provided that such activities do not materially interfere with the proper
performance of his duties and responsibilities as a senior executive officer of
Holding Corp. and the Company.
4. Base Salary. During the Term of Employment, the Executive shall
be paid an annualized Base Salary, payable in accordance with the regular
payroll practices of the Company, in the amount of $390,000. The Base Salary
shall be reviewed no less frequently than annually for increase in the
discretion of the Holding Corp. Board and/or the Committee. The Base Salary,
including any increase, shall not be decreased during the Term of Employment.
5. Transition Payment. The Company shall pay $50,000 to the
Executive promptly following commencement of the Executive's employment with the
Company to compensate the Executive for expenses associated with his transition
to employment with the Company which are not otherwise covered by the Company's
executive benefit plans, programs and arrangements.
6. Additional Payments. If any payment or benefit received or to be
received by the Executive (whether pursuant to the terms of this Agreement or
any other plan, arrangement or agreement with the Company or any affiliate) (all
such payments and benefits, excluding the Gross-Up Payment (as hereinafter
defined), being hereinafter called "Total Payments") will be subject (in whole
or part) to any excise tax (the "Excise Tax") imposed under section 4999 of the
Internal Revenue Code of 1986, as amended, then the Company shall pay to the
Executive an additional amount (the "Gross-Up Payment") such that the net amount
retained by the Executive, after deduction of any Excise Tax on the Total
Payments and any federal, state and local income and employment taxes and Excise
Tax upon the Gross-Up Payment, shall be equal to the Total Payments.
7. Annual Incentive Awards. During the Term of Employment, the
Executive shall be eligible for an annual target bonus ("Target Bonus") of 60%
of his then-current Base Salary under the annual cash-based incentive program of
the Company (or its affiliate, if applicable) payable if the performance goals
thereunder for the relevant fiscal year are met. Payment of the annual bonus
shall be made at the same time that other senior executives receive their
incentive awards. The actual bonus, if any, earned
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by the Executive for fiscal year 2004 shall be subject to pro-ration by reason
of the Executive's not having been employed by the Company for the entire fiscal
year.
8. Long-Term Incentive Programs. Starting with the performance
period that begins on February 1, 2005 and continuing throughout the remainder
of the Term of Employment, the Executive shall be eligible to participate in the
Kmart Long Term Incentive Plan ("LTIP"). While awards granted under the LTIP are
subject to the provisions of the LTIP and the discretion of the LTIP Committee
(and thus this sentence shall not be construed as creating any binding
obligation of Company), the Parties anticipate that such awards, will provide
for the payment (in common stock and/or cash at the Executive's election as
provided in the LTIP) of an amount equal to the average annual salary and target
bonuses paid to the Executive during a three-year performance period, payment at
or about the conclusion of the third fiscal year in the performance period
(commencing, therefore, with a payment at or about the conclusion of fiscal year
2007) if the Company meets or exceeds its cumulative EBITDA target for the
three-year period.
9. Employee Benefit Programs. During the Term of Employment, the
Executive shall be eligible to participate in all employee pension and welfare
benefit plans and programs made available generally to the Company's senior
executives (other than those made available only to the CEO) or to its employees
generally (on terms consistent, respectively, with those offered to the
Company's other senior executives and/or its employees generally), as such plans
or programs may be in effect from time to time, including, without limitation,
pension, profit sharing, savings and other retirement plans or programs,
medical, dental, hospitalization, short-term and long-term disability and life
insurance plans, accidental death and dismemberment protection, travel accident
insurance, and any other pension or retirement plans or programs and any other
employee welfare benefit plans or programs that may be sponsored by the Company
from time to time, including any plans that supplement the above-listed types of
plans or programs, whether funded or unfunded.
10. Reimbursement of Business and Other Expenses: Perquisites;
Vacations.
(a) The Executive is authorized to incur reasonable expenses
in carrying out his duties and responsibilities under this Agreement and
the Company shall promptly reimburse him for all reasonable business
expenses incurred in connection with carrying out the business of the
Company and its affiliates, subject to documentation in accordance with
the Company's policy.
(b) During the Term of Employment, the Company shall reimburse
the Executive for reasonable personal financial (including tax) counseling
(other than legal fees) by a firm or consultant to be chosen by the
Executive, such reimbursement to be no more than the amount authorized
under Company policy in effect from time to time.
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(c) During the Term of Employment, the Executive shall be
entitled to four weeks' paid vacation per year.
(d) Relocation Expenses.
(i) From the Effective Date until August 31, 2004, the
Company shall provide to, or reimburse (following receipt of appropriate
documentation), the Executive for temporary housing in the Troy, Michigan
area; and coach airfare for the Executive for weekend travel home or for
the reasonable travel of his spouse and two children.
(ii) The Executive shall be afforded a relocation
package consisting of the following: (A) reimbursement of reasonable
moving expenses, including an amount equal to $7,500 for the purpose of
covering incidental moving expenses; (B) reimbursement of reasonable
travel expenses incurred by the Executive's spouse for the purpose of
searching for a permanent residence in the area of Company headquarters;
(C) Company assistance with the sale of the Executive's current residence
in accordance with the Company's executive relocation program; and (D)
benefits offered under the Company's Tier 4 Domestic Relocation Program.
11. Termination of Employment.
(a) Termination Due to Death. In the event the Executive's
employment is terminated due to his death, his estate or his beneficiaries as
the case may be, shall be entitled to the following:
(i) Base Salary through the date of death;
(ii) an amount equal to a prorated annual incentive
award for the year in which death occurs, based on the actual performance
for such year, the amount of which prorated bonus, if any, shall be
determined and paid promptly following the end of the year to which such
bonus relates;
(iii) the balance of any annual or long-term cash
incentive awards (if any) earned (but not yet paid) pursuant to the terms
of the applicable programs (Executive shall be vested pro-rata on any
outstanding long-term cash incentive award if the Company was ahead of
plan at date of termination);
(iv) any amounts earned, accrued or owing to the
Executive but not yet paid under this Agreement; and
(v) other or additional benefits in accordance with
applicable plans and programs of the Company or its affiliates.
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(b) Termination Due to Disability. In the event the
Executive's employment is terminated due to his Disability, he shall be entitled
in such case to the following:
(i) Base Salary through the date of termination;
(ii) through the Company's long-term disability plans or
otherwise, an amount equal to 60% of the Base Salary for the period
beginning on the date of termination through the Executive's attainment of
age 65;
(iii) an amount equal to a prorated annual incentive
award for the year in which termination due to Disability occurs, based on
the actual performance for such year, the amount of which prorated bonus,
if any, shall be determined and paid promptly following the end of the
year to which such bonus relates;
(iv) the balance of any annual or long-term cash
incentive awards (if any) earned (but not yet paid) pursuant to the terms
of the applicable programs (Executive shall be vested pro-rata on any
outstanding long-term cash incentive award if the Company was ahead of
plan at date of termination);
(v) any amounts earned, accrued or owing to the
Executive but not yet paid under this Agreement; and
(vi) other or additional benefits in accordance with
applicable plans and programs of the Company or its affiliates.
In no event shall a termination of the Executive's employment for
Disability occur unless the Party terminating his employment gives written
notice to the other Party in accordance with Section 18 below.
(c) Termination by the Company for Cause. In the event the
Company terminates the Executive's employment for Cause, he shall be entitled
to:
(i) Base Salary through the date of the termination of
his employment;
(ii) the balance of any annual or long-term cash
incentive awards (if any) earned (but not yet paid) pursuant to the terms
of the applicable programs;
(iii) an amount equal to a prorated annual incentive
award for the year in which such termination occurs, based on the actual
performance for such year, the amount of which prorated bonus, if any,
shall be determined and paid promptly following the end of the year to
which such bonus relates;
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(iv) any amounts earned, accrued or owing to the
Executive but not yet paid under this Agreement; and
(v) other or additional benefits in accordance with
applicable plans or programs of the Company or its affiliates;
(vi) a termination for Cause shall not take effect
unless the provisions of this paragraph (vi) are complied with. The
Executive shall be given written notice by the Holding Corp. Board of the
intention to terminate him for Cause, such notice (A) to state in detail
the particular act or acts or failure or failures to act that constitute
the grounds on which the proposed termination for Cause is based and (B)
to be given within six months of the Holding Corp. Board learning of such
act or acts or failure or failures to act. The Executive shall have 10
days after the date that such written notice has been given to the
Executive in which to cure such conduct, to the extent such cure is
possible. If he fails to cure such conduct, the Executive shall then be
entitled to a hearing before the Holding Corp. Board. Such hearing shall
be held within 15 days of notice to the Company by the Executive, provided
he requests such hearing within 10 days of the written notice from the
Holding Corp. Board of the intention to terminate his employment for
Cause. If, within five days following such hearing, the Executive is
furnished written notice by the Holding Corp. Board confirming that the
Holding Corp. Board has determined, by majority vote at a meeting of the
Holding Corp. Board duly called and held as to which termination of the
Executive is an agenda item, that grounds for Cause on the basis of the
original notice exist, he shall thereupon be terminated for Cause.
(d) Termination Without Cause; Constructive Termination.
(i) A Constructive Termination shall not take effect
unless the provisions of this paragraph 11(d)(i) are complied with. The
Company shall be given written notice by the Executive of the intention to
terminate his employment on account of a Constructive Termination, such
notice (A) to state in detail the particular act or acts or failure or
failures to act that constitute the grounds on which the proposed
Constructive Termination is based and (B) to be given within six months of
the Executive learning of such act or acts or failure or failures to act.
The Company shall have 30 days after the date that such written notice has
been given to the Company in which to cure such conduct, to the extent
such cure is possible.
(ii) In the event the Executive's employment is
terminated (1) by the Company without Cause (other than due to Disability
or death), (2) by reason of a Constructive Termination or (3) upon
expiration of the Term of Employment following the Company's
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having given a notice of non-extension of the Term of Employment, the
Executive shall be entitled to:
(A) Base Salary through the date of termination of
the Executive's employment;
(B) Base Salary, at the monthly rate in effect on
the date of termination of the Executive's employment (or in the
event a reduction in Base Salary is the basis for a Constructive
Termination, then the Base Salary in effect immediately prior to
such reduction), payable for the 12-month period following such
termination (the "Severance Period"); provided, however, that the
Company's obligations under this clause (B) shall be reduced on a
dollar-for-dollar basis (but not below zero) to the extent that the
Executive earns fees, salary or wages from a subsequent employer
(including those arising from self-employment) during the Severance
Period;
(C) an amount equal to a prorated annual incentive
award for the year in which such termination occurs, based on the
actual performance for such year, the amount of which prorated
bonus, if any, shall be determined and paid promptly following the
end of the year to which such bonus relates;
(D) the balance of any annual or long-term cash
incentive awards earned but not yet paid pursuant to the terms of
the applicable programs (Executive shall be vested pro-rata on any
outstanding long-term cash incentive award if the Company was ahead
of plan at date of termination);
(E) any amounts earned, accrued or owing to the
Executive but not yet paid under this Agreement;
(F) continued participation during the Severance
Period in medical, dental, hospitalization and life insurance
coverage and in all other employee welfare plans and programs (other
than disability plans and programs) in which he was participating on
the date of termination; provided, that the Company's obligations
under this clause (F) shall be reduced to the extent that the
Executive receives similar coverage and benefits under the plans and
programs of a subsequent employer; and provided, further, that (x)
if the Company determines that
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the Executive is precluded from continuing his participation in any
employee benefit plan or program as provided in this clause on
account of his employment status or for any other reason, he shall
be provided with the after-tax economic equivalent of the benefits
provided under the plan or program in which he is unable to
participate for the period specified in this clause (F) of this
Section 11(d); (y) the economic equivalent of any benefit foregone
shall be deemed to be the lowest cost that would be incurred by the
Executive in obtaining such benefit himself on an individual basis
through payment of COBRA continuation coverage premiums or by other
means, and (z) payment of such after-tax economic equivalent shall
be made quarterly in advance; and
(G) other or additional benefits in accordance
with applicable plans and programs of the Company or its affiliates.
The Executive agrees to notify the Company immediately upon subsequent
employment (including self-employment) so that the Company may determine
and administer the offsets provided under subparagraphs (B) and (F) of
this Section 11(d)(ii).
(e) Voluntary Termination. In the event of a termination of
employment by the Executive on his own initiative, other than a termination due
to death or Disability or a Constructive Termination, the Executive shall have
the same entitlements as provided in Section 11(c) above for a termination for
Cause. A voluntary termination under this Section 11(e) shall be effective upon
30 days' prior written notice to the Company and shall not be deemed a breach of
this Agreement.
(f) Mitigation; No Offset. In the event of any termination of
employment under this Section 11, the Executive shall be obligated to seek other
employment which is suitable for Executive based on his education and work
experience. There shall be no offset against amounts due the Executive under
this Agreement on account of any remuneration attributable to any subsequent
employment that he may obtain except as specifically provided in this Section
11.
(g) Nature of Payments. Any amounts due under this Section 11
are in the nature of severance payments considered to be reasonable by the
Company. Failure to qualify for any such payment is not in the nature of a
penalty.
(h) Exclusivity of Severance Payments. Upon termination of the
Executive's employment during the Term of Employment, he shall not be entitled
to any payments or benefits from the Company or its affiliates, other than as
provided herein, or any payments by the Company or its affiliates on account of
any claim by him of wrongful termination, including claims under any federal,
state or local human and civil
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rights or labor laws, other than the payments and benefits provided hereunder,
except for any benefits which may be due under any employee benefit plan of the
Company or its affiliates which provides benefits after termination of
employment (as set forth above and incorporated herein).
(i) Non-competition. The Executive agrees that any right to
receive any payments and/or benefits hereunder, other than Base Salary and/or
any pension, and/or any other compensation already earned by the Executive and
required to be paid by state law other than under this Agreement, will cease and
be immediately forfeited if the Executive breaches the provisions of Section 12.
The Executive agrees that any violation of the provisions of Section 12 will
result in the immediate forfeiture of any rights to exercise or receive stock
options or restricted stock. The foregoing is in addition to the rights of the
Company under Section 12.
(j) Release of Claims. As a condition of the Executive's
entitlement to the payment and/or delivery of any of the severance rights and
benefits provided in this Section 11 (other than in the event of the Executive's
death), the Executive shall be required to execute and honor a release of claims
in the form reasonably requested by the Company.
(k) Termination at Will. Notwithstanding anything herein to
the contrary, the Executive's employment with the Company is terminable at will
with or without Cause; provided, however, that a termination of the Executive's
employment shall be governed in accordance with the terms hereof.
12. Restrictive Covenants.
(a) Non-Compete. By and in consideration of the substantial
compensation and benefits provided by the Company hereunder, and further in
consideration of the Executive's exposure to the proprietary information of the
Company and its affiliates, the Executive agrees that he shall not, during the
Term of Employment and for a period ending 12 months following termination of
employment for any reason, directly or indirectly own, manage, operate, join,
control, be employed by, or participate in the ownership, management, operation
or control of or be connected in any manner, including, but not limited to,
holding the positions of officer, director, shareholder, consultant, independent
contractor, employee, partner, or investor, with any Competing Enterprise;
provided, however, that the Executive may invest in stocks, bonds or other
securities of any corporation or other entity (but without participating in the
business thereof) if such stocks, bonds, or other securities are listed for
trading on a national securities exchange or NASDAQ-National Market and the
Executive's investment does not exceed 1% of the issued and outstanding shares
of capital stock, or in the case of bonds or other securities, 1% of the
aggregate principal amount thereof issued and outstanding. For purposes of this
Section 12, "Competing Enterprise" shall mean any and/or all of the following:
(i) Albertson's Inc., American Retail Group, Inc., Carrefour se, Fleming
Companies, Inc., Kohl's Corporation, The May Department Store Company, J.C.
Penny Company, Royal Ahold, Safeway, Inc., Sears, Roebuck and Co., ShopKo
Stores, Inc., Supervalue Inc., Target Corp., The Home Depot, Inc., Toys R Us
Inc., TJX
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Companies, Inc., and Wal-Mart Stores, Inc., and any of their parents and/or
subsidiaries that are engaged in retail operations, and/or (ii) an entity or
enterprise whose business is in competition with the business of the Company
which operates retail stores selling general merchandise and/or food if at least
10 of such stores have an area of 50,000 or more square feet and at least 10 of
such stores with 50,000 or more square feet are within 25 miles of any one or
more Kmart stores.
(b) Nonsolicitation. By and in consideration of the
substantial compensation and benefits to be provided by the Company and its
affiliates hereunder, and further in consideration of the Executive's exposure
to the proprietary information of the Company and its affiliates, the Executive
agrees that he shall not, during the Term of Employment and for a period of 12
months following termination of employment for any reason, without the express
prior written approval of the Company, (i) directly or indirectly, in one or a
series of transactions, recruit, solicit or otherwise induce or influence any
proprietor, partner, stockholder, lender, director, officer, employee, sales
agent, joint venturer, investor, lessor, supplier, agent, representative or any
other person which has a business relationship with the Company or any of its
subsidiaries or affiliates, or had a business relationship with the Company or
any of its subsidiaries or affiliates within the 24-month period preceding the
date of the incident in question, to discontinue, reduce or modify such
employment, agency or business relationship with the Company or such
subsidiary(ies) or affiliate(s), or (ii) directly or indirectly, employ or seek
to employ (including through any employer of the Executive) or cause any
Competing Enterprise to employ or seek to employ any person or agent who is then
(or was at any time within six months prior to the date the Executive or the
Competing Enterprise employs or seeks to employ such person) employed or
retained by the Company or any of its subsidiaries or affiliates.
(c) Confidential Information. During the Term of Employment
and at all times thereafter, Executive agrees that he will not divulge to anyone
or make use of any Confidential Information except in the performance of his
duties as an senior executive of Holding Corp. or the Company or when legally
required to do so (in which case the Executive shall give prompt written notice
to the Company in order to allow the Company the opportunity to object or
otherwise resist such disclosure). "Confidential Information" shall mean any
knowledge or information of any type relating to the business of the Company or
any of its subsidiaries or affiliates, as well as any information obtained from
customers, clients or other third parties, including, without limitation, all
types of trade secrets and confidential commercial information. The Executive
agrees that he will return to the Company, immediately upon termination, any and
all documents, records or reports (including electronic information) that
contain any Confidential Information. Confidential Information shall not include
information (i) that is or becomes part of the public domain, other than through
the breach of this Agreement by the Executive or (ii) regarding the business or
industry of the Company or any of its subsidiaries or affiliates properly
acquired by the Executive in the course of his career as a senior executive in
the Company's industry and independent of the Executive's employment by the
Company. The Executive acknowledges that the Company and its affiliates have
expended, and will continue to expend, significant amounts of time, effort and
money in the procurement of its Confidential Information, that the Company and
its
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affiliates have taken all reasonable steps in protecting the secrecy of the
Confidential Information, that said Confidential Information is of critical
importance to the Company and its affiliates.
(d) Non-Disparagement. The Parties agree that, during the Term
of Employment and thereafter (including following the Executive's termination of
employment for any reason): (i) the Executive will not make statements or
representations, or otherwise communicate, directly or indirectly, in writing,
orally, or otherwise, or take any action which may, directly or indirectly,
disparage the Company or any subsidiary or affiliate or their respective
officers, directors, employees, advisors, businesses or reputations; and (ii)
the officers of the Company will not make any statements or representations or
otherwise communicate, directly or indirectly, in writing, orally, or otherwise,
or take any action which may, directly or indirectly, disparage the Executive.
Notwithstanding the foregoing, nothing in this Agreement shall preclude (A)
either the Executive or the Company from making truthful statements or
disclosures that are required by applicable law, regulation or legal process, or
(B) the Executive from making truthful statements or disclosures to any
director, employee, consultant, professional advisor or other third party
representative of the Company, in each case having a need to know, which
disclosures are reasonably necessary for the Executive to perform his duties as
the chief human resources officer for the Company.
(e) Cooperation. The Executive agrees to cooperate with the
Company, during the Term of Employment and thereafter (including following the
Executive's termination of employment for any reason), by being reasonably
available to testify on behalf of the Company or any subsidiary or affiliate in
any action, suit, or proceeding, whether civil, criminal, administrative, or
investigative, and to assist the Company, or any subsidiary or affiliate, in any
such action, suit or proceeding, by providing information and meeting and
consulting with the Holding Corp. Board or the Board or their representatives or
counsel, or representatives or counsel to the Company, or any subsidiary or
affiliate, as reasonably requested. The Company agrees to reimburse the
Executive for all expenses actually incurred in connection with his provision of
testimony or assistance (including attorneys' fees incurred in connection
therewith) upon submission of appropriate documentation to the Company.
(f) Remedies. The Executive agrees that any breach of the
terms of this Section 12 would result in irreparable injury and damage to the
Company for which the Company would have no adequate remedy at law; the
Executive therefore also agrees that in the event of said breach or any threat
of said breach, the Company shall be entitled to an immediate injunction and
restraining order to prevent such breach and/or threatened breach and/or
continued breach by the Executive and/or any and all persons and/or entities
acting for and/or with the Executive. The terms of this paragraph shall not
prevent the Company from pursuing any other available remedies for any breach or
threatened breach hereof, including, but not limited to, remedies available
under this Agreement and the recovery of damages. The Executive and the Company
further agree that the provisions of the covenant not to compete are reasonable.
Should a court or arbitrator determine, however, that any provision of the
covenant not to compete is unreasonable, either in period of time, geographical
area, or otherwise, the parties hereto
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agree that the covenant shall be interpreted and enforced to the maximum extent
which such court or arbitrator deems reasonable.
(g) Continuing Operation. The provisions of this Section 12
shall survive any termination of this Agreement and the Term of Employment, and
the existence of any claim or cause of action by the Executive against the
Company, whether predicated on this Agreement or otherwise, shall not constitute
a defense to the enforcement by the Company of the covenants and agreements of
this Section 12.
(h) Notice to Employer. The Executive agrees that as long as
the provisions of Section 12(a) or 12(b) continue to bind the Executive, he will
provide written notice of the terms and provisions of this Section 12 to any
prospective employer.
13. Indemnification.
(a) The Company agrees that if the Executive is made a party,
or is threatened to be made a party, to any action, suit or proceeding, whether
civil, criminal, administrative or investigative (a "Proceeding"), by reason of
the fact that he is or was a director or employee of the Company or any of its
affiliates or is or was serving at the request of the Company as a director,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, including service with respect to employee benefit plans,
whether or not the basis of such Proceeding is the Executive's alleged action in
an official capacity while serving as a director, employee or agent, the
Executive shall be indemnified and held harmless by the Company to the fullest
extent legally permitted or authorized by the Company's certificate of
incorporation or bylaws or resolutions of the Board or, if greater, by the laws
of the State of Michigan against all cost, expense, liability and loss
(including, without limitation, attorney's fees, judgments, fines, ERISA excise
taxes or penalties and amounts paid or to be paid in settlement) reasonably
incurred or suffered by the Executive in connection therewith, and such
indemnification shall continue as to the Executive even if he has ceased to be a
director, employee or agent of the Company or other entity and shall inure to
the benefit of the Executive's heirs, executors and administrators. The Company
shall advance to the Executive all reasonable costs and expenses incurred by him
in connection with a Proceeding within 20 days after receipt by the Company of a
written request for such advance. Such request shall include an undertaking by
the Executive to repay the amount of such advance if it shall ultimately be
determined that he is not entitled to be indemnified against such costs and
expenses.
(b) Neither the failure of the Company (including the Board or
the Holding Corp. Board or their respective independent legal counsel or
stockholders) to have made a determination prior to the commencement of any
Proceeding concerning payment of amounts claimed by the Executive under Section
13(a) above that indemnification of the Executive is proper because he has met
the applicable standard of conduct, nor a determination by the Company
(including the Board or the Holding Corp. Board or their respective independent
legal counsel or stockholders) that the Executive has not met such applicable
standard of conduct, shall create a presumption that the Executive has not met
the applicable standard of conduct.
<PAGE>
The Company agrees to continue and/or maintain a directors and
officers' liability insurance policy covering the Executive to the same extent
the Company provides such coverage for its other senior executive officers and
directors and for not less than the amounts in effect for its other senior
executive officers and directors.
14. Assignability; Binding Nature. This Agreement shall be binding
upon and inure to the benefit of the Parties and their respective successors,
heirs (in the case of the Executive) and assigns. No rights or obligations of
the Company under this Agreement may be assigned or transferred by the Company
except that such rights or obligations may be assigned or transferred pursuant
to a merger or consolidation in which the Company is not the continuing entity,
or the sale or liquidation of all or substantially all of the assets of the
Company, provided that the assignee or transferee is the successor to all or
substantially all of the assets of the Company and such assignee or transferee
assumes the liabilities, obligations and duties of the Company, as contained in
this Agreement, either contractually or as a matter of law. The Company further
agrees that, in the event of a sale or reorganization transaction as described
in the preceding sentence, it shall take whatever action it legally can in order
to cause such assignee or transferee to expressly assume the liabilities,
obligations and duties of the Company hereunder. No rights or obligations of the
Executive under this Agreement may be assigned or transferred by the Executive
other than his rights to compensation and benefits, which may be transferred
only by will or operation of law, except as otherwise provided herein.
15. Miscellaneous Provisions.
(a) This Agreement contains the final and entire understanding
and agreement between the Parties concerning the subject matter hereof and
supersedes all prior representations, agreements, discussions, negotiations and
undertakings, whether written or oral, between the Parties with respect thereto;
provided, however, that this Agreement shall not supersede any separate written
commitments by the Company with respect to indemnification.
(b) No provision in this Agreement may be amended unless such
amendment is authorized by the Holding Corp. Board or the Committee and agreed
to in writing and signed by the Executive and an authorized officer of the
Company. No waiver by either Party of any breach by the other Party of any
condition or provision contained in this Agreement to be performed by such other
Party shall be deemed a waiver of a similar or dissimilar condition or provision
at the same or any prior or subsequent time. Any waiver must be in writing and
signed by the Executive or an authorized officer of the Company, as the case may
be.
(c) In the event that any provision or portion of this
Agreement shall be determined to be invalid or unenforceable for any reason, in
whole or in part, the remaining provisions of this Agreement shall be unaffected
thereby and shall remain in full force and effect to the fullest extent
permitted by law.
<PAGE>
(d) The respective rights and obligations of the Parties
hereunder shall survive any termination of the Executive's employment to the
extent necessary to the intended preservation of such rights and obligations.
(e) The Executive shall be entitled, to the extent permitted
under any applicable law, to select and change a beneficiary or beneficiaries to
receive any compensation or benefit payable hereunder following the Executive's
death by giving the Company written notice thereof. In the event of the
Executive's death or a judicial determination of his incompetence, reference in
this Agreement to the Executive shall be deemed, where appropriate, to refer to
his beneficiary, estate or other legal representative.
(f) All amounts required to be paid by the Company shall be
subject to reduction in order to comply with applicable Federal, state and local
tax withholding requirements, except as otherwise provided herein.
(g) The headings of the sections contained in this Agreement
are for convenience only and shall not be deemed to control or affect the
meaning or construction of any provision of this Agreement.
(h) This Agreement may be executed in two or more
counterparts.
(i) Notwithstanding any provision of this Agreement to the
contrary, any action to be taken by the Board shall require the concurrence of
the Holding Corp. Board.
16. Governing Law/Jurisdiction. This Agreement shall be governed by
and construed and interpreted in accordance with the laws of Michigan without
reference to principles of conflict of laws. Subject to Section 17, the Company
and the Executive hereby consent to the jurisdiction of any or all of the
following courts for purposes of resolving any dispute under this Agreement: (i)
the United States District Court of Detroit, Michigan or (ii) the State of
Michigan Courts of Oakland County, Michigan. The Company and the Executive
further agree that any service of process or notice requirements in any such
proceeding shall be satisfied if the rules of such court relating thereto have
been substantially satisfied. The Company and the Executive hereby waive, to the
fullest extent permitted by applicable law, any objection which it or the
Executive may now or hereafter have to such jurisdiction and any defense of
inconvenient forum.
17. Resolution of Disputes. Any disputes arising under or in
connection with this Agreement shall be resolved by binding arbitration, to be
held in the metropolitan area of Company headquarters in accordance with the
rules and procedures of the American Arbitration Association. Judgment upon the
award rendered by the arbitrator(s) may be entered in any court having
jurisdiction thereof. All costs and expenses of any arbitration or court
proceeding (including fees and disbursements of counsel) shall be borne by the
respective Party incurring such costs and expenses, but the Company shall
reimburse the Executive for such reasonable costs and expenses in the event he
substantially prevails in such arbitration or court proceeding. Notwithstanding
the foregoing, the Company shall be entitled to seek equitable relief pursuant
to Section
<PAGE>
12(f) hereof in a Court of competent jurisdiction without otherwise waiving the
right to exclusive arbitration of all other disputes.
18. Notices. Any notice given to a Party shall be in writing and
shall be deemed to have been given when delivered personally or sent by
certified or registered mail, postage prepaid, return receipt requested, duly
addressed to the Party concerned at the address indicated below or to such
changed address as such Party may subsequently give such notice of:
If to the Company: Kmart Management Corporation
3100 West Big Beaver Road
Troy, MI 48084-3163
Attention: Chief Executive Officer
With a copy to: James E. Defebaugh, Esquire
Senior Vice President, Deputy General
Counsel & Chief Compliance Officer
Kmart Management Corporation
3100 W. Big Beaver Road
Troy, MI 48084
If to the Executive:
With a copy to:
19. Approvals. Except with respect to the Company's obligations
under Section 10(d), the effectiveness of this Agreement shall be subject to the
approval of this Agreement by the Holding Corp. Board. The Company agrees to
seek such approval no later than the first meeting of the Board that takes place
following the Effective Date. Absent such approval by the Holding Corp. Board,
this Agreement shall not be effective except with respect to the Company's
obligations under Section 10(d).
IN WITNESS WHEREOF, the undersigned have executed this Agreement as
of the date first set forth above.
KMART MANAGEMENT CORPORATION
By: __________________________________
Title: Chief Executive Officer
______________________________________
David Whipple