EXHIBIT 10.15
Frank D. Forward
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EMPLOYMENT AGREEMENT
AGREEMENT dated as of July 28, 1997 between Frank D. Forward, whose address
is 8 Gibbs Valley Path, Framingham, Massachusetts 01701 ("Executive"), and BJ's
Wholesale Club, Inc., a Delaware corporation, whose principal office is in
Natick, Massachusetts ("Employer" or "Company").
The parties hereto, in consideration of the mutual agreements hereinafter
contained and intending to be legally bound hereby, agree as follows:
1. Employment. The Executive is currently an employee of Waban Inc.
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After the spinoff of the Company from Waban Inc., Employer will employ Executive
and Executive will be an employee of Employer under the terms and conditions
hereinafter set forth. This Agreement supersedes and replaces any prior
employment agreement between Executive and Waban Inc. or its subsidiaries or
divisions, except for any Change of Control Severance Agreement between
Executive and Employer.
2. Term. Executive's employment under the terms of this Agreement shall
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commence on the date hereof and shall continue until July 31, 1998 and
thereafter until terminated by either Executive or Employer, subject to earlier
termination as provided herein (such period of employment hereinafter called the
"Employment Period").
3. Duties. Executive shall diligently perform the duties of Executive
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Vice President and Chief Financial Officer of the Company and such additional
duties and responsibilities as shall from time to time be assigned to Executive
by the President.
4. Extent of Services. Except for illnesses and vacation periods,
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Executive shall devote substantially all Executive's working time and attention
and Executive's best efforts to the performance of Executive's duties and
responsibilities under this Employment Agreement; provided, however, that
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nothing herein contained shall be deemed to prevent or limit the right of
Executive (a) to make any passive investments where Executive is not obligated
or required to, and shall not in fact, devote any managerial efforts or (b) to
participate in charitable or community activities or in trade or professional
organizations, except only that Employer shall have the right to limit such
participation if the President believes that the time spent on such activities
infringes upon the time required by Executive for the performance of Executive's
duties under this Agreement or is otherwise incompatible with those duties.
5. Base Salary. During the Employment Period, Executive shall receive a
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base salary at the rate of $180,000.00 per year, or such higher amount as
Employer shall determine from time to time. Base salary shall be payable in such
manner and at such times as Employer shall pay base salary to other executive
employees.
6. Policies and Fringe Benefits. Executive shall be subject to
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Employer's policies applicable to its executives generally, and Executive shall
be entitled to receive all such fringe benefits as Employer shall from time to
time make available to other Employer executives generally (subject to the terms
of any applicable fringe benefit plan).
7. Termination of Employment; in General.
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a) Employer shall have the right to end Executive's employment at any
time and for any reason, with or without cause. Cause shall mean dishonesty by
Executive in the performance of Executive's duties, conviction of a felony
(other than a conviction arising solely under a statutory provision imposing
criminal liability upon Executive on a per se basis due to the Company offices
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held by Executive, so long as any act or omission of Executive with respect to
such matter was not taken or omitted in contravention of any applicable policy
or directive of the Board of Directors of the Company), gross neglect of duties
(other than as a result of incapacity, disability or death), or conflict of
interest which conflict shall continue for 30 days after the Company gives
written notice to Executive requesting the cessation of such conflict.
b) The Employment Period shall terminate when Executive becomes entitled
to receive long-term disability compensation pursuant to Employer's long-term
disability plan. In addition, if by reason of any incapacity, Executive is
unable to perform Executive's duties for at least six months in any 12 month
period, the Employment Period will be terminated for incapacity upon written
notice by Employer to Executive.
c) Whenever the Employment Period shall terminate, Executive shall
resign all offices or other positions Executive shall hold with Employer or any
parent corporation and any subsidiaries or divisions of Employer or any such
parent.
8. BENEFITS UPON TERMINATION OF EMPLOYMENT.
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a) Termination by Employer Other Than for Cause, Disability or
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Incapacity. If the Employment Period shall have been terminated by Employer for
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any reason other than cause, disability or incapacity, no compensation or other
benefits shall be payable to or accrue to Executive hereunder except as follows:
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(i) Vested vacation pay accrued at date of termination shall be
paid one week after date of termination.
(ii) Employer will continue to pay to Executive Executive's then
base salary for a period of 12 months from the date of termination, which
base salary shall be reduced after three months for compensation earned
from other employment or self-employment.
(iii) Until the expiration of the period of base salary payments
described in (ii) immediately above or until Executive shall commence other
employment or self-employment, whichever shall first occur, Employer will
provide such medical and hospital insurance and life insurance (but not
long-term disability insurance) for Executive and Executive's family,
comparable to the insurance provided for executives generally, as Employer
shall determine, and upon the same terms and conditions as shall be
provided for Employer's executives generally.
(iv) Employer will pay to Executive, without offset for compensation
earned from other employment or self-employment, the following amounts
under Employer's Management Incentive Plan ("MIP") applicable to Executive:
First, if not already paid, any amounts to which Executive is
entitled under MIP for the fiscal year ended immediately prior to
Executive's termination of employment. These amounts will be paid at
the same time as other awards for such prior year are paid.
Second, such amount as Executive would have earned under MIP if
Executive's employment had continued until the end of the fiscal year
during which the termination of employment occurs (prorated for the
period of active employment during such fiscal year). This amount
will be paid at the same time as other MIP awards for the year of
termination are paid.
(v) Executive shall also be entitled to payments or benefits under
other plans of Employer to the extent that such plans provide benefits
following a termination of employment.
b) Termination for Death, Disability or Incapacity. If the Employment
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Period shall terminate at any time by reason of death, disability or incapacity,
no compensation or other benefits shall be payable to or accrue to Executive
hereunder except as follows:
(i) Vested vacation pay accrued at date of termination shall be
paid one week after date of
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termination.
(ii) Employer will pay to Executive, without offset for compensation
earned from other employment or self-employment, the following amounts
under MIP applicable to Executive:
First, if not already paid, any amounts to which Executive is
entitled under MIP for the fiscal year ended immediately prior to
Executive's termination of employment. These amounts will be paid at
the same time as other awards for such prior year are paid.
Second, such amount as Executive would have earned under MIP if
Executive's employment had continued until the end of the fiscal year
during which the termination of employment occurs (prorated for the
period of active employment during such fiscal year). This amount
will be paid at the same time as other MIP awards for the year of
termination are paid.
(iii) Executive shall also be entitled to payments or benefits under
other plans of Employer to the extent that such plans provide benefits
following a termination of employment.
c) Voluntary Termination; Termination for Cause; Violation of Certain
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Covenants. If Executive should end Executive's employment voluntarily or if
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Employer should end Executive's employment for cause, or if Executive should
violate the protected persons or noncompetition provisions of Section 9, all
compensation and benefits otherwise payable pursuant to this Agreement shall
cease. Employer does not waive any rights it may have for damages or for
injunctive relief.
9. Agreement Not to Solicit or Compete.
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(a) Upon the termination of the Employment Period at any time for any
reason, Executive shall not during the Prohibited Period under any circumstances
employ, solicit the employment of, or accept unsolicited the services of, any
"protected person", or recommend the employment of any "protected person" to any
other business organization in which Executive has any direct or indirect
interest (other than a less-than-one percent equity interest in an entity), with
which Executive is affiliated or for which Executive renders any services.
"Prohibited Period" shall mean a period coterminous with the period of base
salary continuation (without regard to reduction for income from other
employment or self-employment) which is applicable or which would have been
applicable had the termination been pursuant to Section 8(a). A "protected
person" shall be a person known by Executive to be employed by Employer or its
subsidiaries at or within six months prior to the commencement of conversations
with such
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person with respect to employment.
As to (i) each "protected person" to whom the foregoing applies, (ii) each
limitation on (A) employment of, (B) solicitation of, and (C) unsolicited
acceptance of services from, each "protected person" and (iii) each month of the
period during which the provisions of this subsection (a) apply to each of the
foregoing, the provisions set forth in this subsection (a) are deemed to be
separate and independent agreements and in the event of unenforceability of any
such agreement, such unenforceable agreement shall be deemed automatically
deleted from the provisions hereof and such deletion shall not affect the
enforceability of any other provision of this subsection (a) or any other term
of this Agreement.
(b) During the course of Executive's employment, Executive will have
learned many trade secrets of the Company and will have access to confidential
information and business plans of the Employer. Therefore, if Executive should
end Executive's employment voluntarily at any time, including by reason of
retirement, disability or incapacity, or if Employer should end Executive's
employment at any time for cause, then during the Prohibited Period, Executive
will not engage, either as a principal, employee, partner, consultant or
investor (other than a less-than-one percent equity interest in an entity), in a
business which is a competitor of Employer. A business shall be deemed a
competitor of Employer if it shall operate a chain of membership warehouse clubs
(such as Sam's Club or Costco), or warehouse stores selling food and/or general
merchandise, that includes a warehouse store located within 10 miles of any
"then existing" BJ's Wholesale Club warehouse store. The term "then existing" in
the previous sentence shall refer to any such warehouse store that is, at the
time of termination of the Employment Period, operated by the Company or any of
its subsidiaries or divisions or under lease for operation as aforesaid. Nothing
herein shall restrict the right of Executive to engage in a business that
operates exclusively a chain of home improvement stores, conventional or full
mark-up department stores, general merchandise discount department stores, or
apparel stores. Executive agrees that if, at any time, pursuant to action of any
court or administrative or governmental body, the operation of any part of this
paragraph shall be determined to be unlawful or otherwise unenforceable, then
the coverage of this paragraph shall be deemed to be restricted as to duration,
geographical scope or otherwise, to the extent, and only to the extent,
necessary to make this paragraph lawful and enforceable in the particular
jurisdiction in which such determination is made.
If the Employment Period terminates, Executive agrees (i) to notify
Employer immediately upon Executive's securing employment or becoming self-
employed during any period when Executive's
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compensation from Employer shall be subject to reduction or Executive's benefits
provided by Employer shall be subject to termination as provided in Section 8,
and (ii) to furnish to Employer written evidence of Executive's compensation
earned from any such employment or self-employment as Employer shall from time
to time request. In addition, upon termination of the Employment Period for any
reason other than the death of Executive, Executive shall immediately return to
Employer all written trade secrets, confidential information and business plans
of Employer and shall execute a certificate certifying that Executive has
returned all such items in Executive's possession or under Executive's control.
In the event of the death of Executive, Executive's estate shall comply with
this obligation.
10. ASSIGNMENT. The rights and obligations of Employer shall inure to
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the benefit of and shall be binding upon the successors and assigns of Employer.
The rights and obligations of Executive are not assignable except only that
payments payable to Executive after Executive's death shall be made to
Executive's estate.
11. NOTICES. All notices and other communications required hereunder
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shall be in writing and shall be given either by personal delivery or by mailing
the same by certified or registered mail, return receipt requested, postage
prepaid. If sent to Employer, the same shall be mailed to Employer at One Mercer
Road, Natick, MA 01760, Attention: President, or such other address as Employer
may hereafter designate by notice to Executive; and if sent to Executive, the
same shall be mailed to Executive at his address set forth above, or at such
other address as Executive may hereafter designate by notice to Employer.
Notices shall be effective upon receipt.
12. GOVERNING LAW. This Agreement and the rights and obligations of the
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parties hereunder shall be governed by the laws of the Commonwealth of
Massachusetts.
WITNESS the execution hereof the day and year first above written.
/s/ Frank Forward
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Executive
BJ'S WHOLESALE CLUB, INC.
By /s/ John J. Nugent
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John J. Nugent
President
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