Exhibit 10.9
LONG TERM INCENTIVE AWARD
AGREEMENT
Dated: _________________, 2003
To: [Name of Participant]
Pursuant to the KMART Long Term Incentive Plan (the "Plan"), KMART
Holding Corporation (the "Corporation") hereby grants you the right to receive
long term incentive compensation (your "Award") upon the terms and conditions
set forth in this Agreement and in the Plan, a copy of which is attached hereto.
In the event of any inconsistency between this Agreement or any other document
or communication to you on the one hand, and the Plan on the other hand, the
latter shall supersede and control.
1. The amount of your Award shall equal the average annual salary
and target bonuses paid to you during the three-year plan period (annualized for
2003).
2. Your entitlement to your Award is conditioned upon the
Corporation and its Subsidiaries (as defined in Paragraph 1(f) of the Plan)
having cumulative "EBITDA" of at least $1,508 million for the period from August
1, 2003 to the end of the 2005 fiscal year of the Corporation (the "Performance
Goal"). For this purpose, "EBITDA" shall mean earnings before interest, taxes,
depreciation and amortization, exclusive of extraordinary, unusual or
non-recurring items, based on the audited consolidated financial statements of
the Corporation prepared in accordance with generally accepted accounting
principles consistently applied.
3. Subject to the provisions of this Paragraph 3, if the
Performance Goal is attained, you may elect, subject to the terms of the Plan,
to receive your Award in cash, in common stock of the Corporation, or in any
combination thereof. If you elect to receive stock, you shall be entitled to
receive that number of shares of stock having a value on the date of payment of
your Award equal to the amount of your Award that you elect to receive in stock.
The stock utilized to pay your Award in stock will be purchased by the
Corporation in the open market, and the Corporation reserves the right to
decline to honor an election by you to receive your Award in stock under
circumstances where it would be unlawful for the Corporation to purchase its own
stock to honor your election to receive your Award in stock.
4. If the Performance Goal is attained, you shall be entitled to
receive your Award only after the Corporation's 2005 fiscal year has ended, the
Corporation's audited consolidated financial statements for the 2005 fiscal year
have been prepared and issued, the Compensation Committee of the Board of
Directors of the Corporation (the "Committee") has certified in writing that the
Performance Goal has been attained, and you have provided notification in
writing to the Corporation of the form in which you elect to receive your Award.
5. Notwithstanding the foregoing, if your employment with the
Corporation or a Subsidiary is terminated for "Cause" by the Corporation or a
Subsidiary prior to the time of payment of your Award or, except under the
circumstances prescribed in Paragraphs 6 and 7 of this Agreement, if your
employment with the Corporation or a Subsidiary terminates for any other reason
prior to the end of the Corporation's 2005 fiscal year, your rights in respect
of your Award shall terminate and you shall not be entitled to any payment in
respect of your Award. For purposes of this Agreement, "Cause" means, unless
otherwise provided by the Committee, (i) "Cause" as defined in any employment
agreement to which you are a party, or (ii) if there is no such employment
agreement or if it does not define Cause: (A) your conviction for committing a
felony under federal law or the law of the state in which such action occurred,
(B) dishonesty
in the course of fulfilling your employment duties, (C) willful and deliberate
failure on your part to perform your employment duties in any material respect,
(D) breach by you of any agreement between you and the Corporation or a
Subsidiary, or (E) prior to a Change in Control (as defined in Paragraph 1(b) of
the Plan), such other events as shall be determined by the Committee. The
Committee shall, unless otherwise provided in an employment agreement with you,
have the sole discretion to determine whether "Cause" exists, and its
determination shall be final.
6. Notwithstanding Paragraph 5 above, in the event your employment with
the Corporation or a Subsidiary terminates on account of your death or permanent
disability prior to the end of the Corporation's 2005 fiscal year, if the
Performance Goal is ultimately attained and the goals are currently being met,
you shall be entitled to receive at the time specified in Paragraph 4 of this
Agreement a portion of your Award equal to the product of (i) the amount your
Award would have been had you remained employed by the Corporation or a
Subsidiary through the end of the Corporation's fiscal 2005 year at the same
salary and target bonus as in effect at the time of your employment termination,
(ii) multiplied by a fraction (A) the numerator of which is the number of days
from and including the date of this Agreement to and including the date of your
employment termination, and (B) the denominator of which is the number of days
from and including the date of this Agreement to and including the last day of
the Corporation's 2005 fiscal year. For purposes of this Paragraph 6 and
Paragraph 7, to satisfy the condition that "the goals are currently being met,"
the Corporation must, cumulatively for the period commencing on August 1, 2003
and ending on your employment termination date, have achieved EBITDA earnings
equal to or in excess of the EBITDA plan established for such period by the
Committee.
7. Notwithstanding Paragraph 5 above, if prior to the end of the
Corporation's 2005 fiscal year either the Corporation or a Subsidiary terminates
your employment without Cause or you terminate your employment with the
Corporation or a Subsidiary upon or after reaching a normal retirement age
permitted under a retirement plan of the Corporation, if the Performance Goal is
ultimately attained and the goals are currently being met, you shall be entitled
to receive at the time specified in Paragraph 4 of this Agreement a portion of
your Award equal to the amount computed under the formula set forth in Paragraph
6 of this Agreement.
8. Nothing contained in this Agreement or in the Plan shall confer upon
you any right with respect to continuation of your employment by the Corporation
or any Subsidiary, nor interfere in any way with the right of the Corporation or
any Subsidiary to terminate your employment at any time, and your employment is
and shall remain employment at will.
9. If upon or as a result of receipt of your Award there shall be
payable by the Corporation or a Subsidiary any amount for employment or income
tax withholding, you will pay such amount to the Corporation, or the amount of
your Award shall be reduced, to enable the Corporation or a Subsidiary to pay
such employment or income tax withholding or to reimburse it for doing so.
Very truly yours,
KMART Holding Corporation,
a Delaware corporation
By:
Its:
The above is agreed to
and accepted by:
[Name of Participant]
Dated: , 2003
