EXHIBIT 10.20
BJ'S WHOLESALE CLUB, INC.
INDEMNIFICATION AGREEMENT
This Agreement, made and entered into as of this ____ day of
__________________ (the "Agreement"), is between BJ's Wholesale Club, Inc., a
Delaware corporation (the "Company," which term shall include any one or more of
its subsidiaries where appropriate), and ____________________________ (the
"Indemnitee"):
WHEREAS, highly competent persons are reluctant to serve public
companies as directors or as officers or in other capacities unless they are
provided with adequate indemnification against inordinate risks of claims and
actions against them arising out of their service to, and activities on behalf
of, such companies; and
WHEREAS, it is reasonable, prudent and necessary for the Company
contractually to obligate itself to indemnify such persons to the fullest extent
permitted by applicable law so that they will serve or continue to serve the
Company; and
WHEREAS, Indemnitee is willing to serve, continue to serve and/or to
take on additional service for or on behalf of the Company on the condition that
he or she be so indemnified;
NOW THEREFORE, in consideration of the premises and the covenants
contained herein, the Company and Indemnitee do hereby covenant and agree as
follows:
1. Definitions. For purposes of this Agreement:
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(a) "Change of Control" shall have the meaning set forth on
Exhibit A hereto.
(b) "Corporate Status" describes the status of a person who is
or was or has agreed to become a director of the Company or any of its
subsidiaries, or is or was or has agreed to become an officer or
fiduciary of the Company or of any other corporation, partnership,
joint venture, limited liability company, trust, employee benefit plan
or other enterprise which such person is or was serving or has agreed
to serve at the request of the Company.
(c) "Disinterested Director" means a director of the Company
who is not and was not a party to the Proceeding in respect of which
indemnification is sought by Indemnitee.
(d) "Expenses" shall include all reasonable attorneys' fees,
retainers, court costs, transcript costs, fees of experts, travel
expenses, duplicating costs, printing and binding costs, telephone
charges, postage, delivery service fees and all other
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disbursements or expenses of the types customarily incurred in
connection with prosecuting, defending, preparing to prosecute or
defend or investigating a Proceeding, but shall not include the amount
of judgments, fines or penalties against Indemnitee.
(e) "Independent Counsel" means a law firm, or a member of a
law firm, that is experienced in matters of corporation law and neither
presently is, nor in the past five years has been, retained to
represent the Company or Indemnitee in any matter material to either
such party. Notwithstanding the forgoing, the term "Independent
Counsel" shall not include any person who, under the applicable
standards of professional conduct then prevailing, would have a
conflict of interest in representing either the Company or Indemnitee
in an action to determine Indemnitee's rights under this Agreement.
(f) "Proceeding" includes any action, suit, arbitration,
alternate dispute resolution mechanism, investigation, administrative
hearing, appeal or any other proceeding, whether civil, criminal,
administrative or investigative, arising on or after the date of this
Agreement (and regardless of when the Indemnitee's act or failure to
act occurred), except one initiated by an Indemnitee pursuant to
Section 10 of this Agreement to enforce his or her rights under this
Agreement.
2. Services by Indemnitee. Indemnitee agrees to serve or continue to
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serve as a director or officer of the Company and/or one or more of its
subsidiaries. This Agreement shall not impose any obligation on the Indemnitee
or the Company or any of its subsidiaries to continue the Indemnitee's position
with the Company or any of its subsidiaries beyond any period otherwise
applicable.
3. General. The Company shall indemnify, and shall advance Expenses
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to, Indemnitee as provided in this Agreement with respect to any matters
pertaining to Indemnitee's Corporate Status and to the fullest extent permitted
by law.
4. Proceedings Other Than Proceedings by or in the Right of the
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Company. Indemnitee shall be entitled to the rights of indemnification provided
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in this Section 4 if, by reason of his or her Corporate Status, he or she is, or
is threatened to be made, a party to any threatened, pending, or completed
Proceeding other than a Proceeding by or in the right of the Company. Pursuant
to this Section 4, Indemnitee shall be indemnified against Expenses, judgments,
penalties and fines and amounts paid in settlement actually and reasonably
incurred by him or her or on his or her behalf in connection with any such
Proceeding or any claim, issue or matter therein, if he or she acted in good
faith and in a manner he or she reasonably believed to be in or not opposed to
the best interests of the Company, and, with respect to any criminal Proceeding,
had no reasonable cause to believe his or her conduct was unlawful.
Notwithstanding the preceding provisions of this Section
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4, it is the intention of the parties hereto that Indemnitee shall be
indemnified to the full extent authorized or permitted by Delaware law and,
therefore, to the extent Delaware law shall permit broader contractual
indemnification, this contract shall be deemed amended to incorporate such
broader indemnification.
5. Proceedings by or in the Right of the Company. Indemnitee shall
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be entitled to the rights of indemnification provided in this Section 5 if, by
reason of his or her Corporate Status, he or she is, or is threatened to be
made, a party to any threatened, pending or completed Proceeding brought by or
in the right of the Company to procure a judgment in its favor. Pursuant to this
Section 5, Indemnitee shall be indemnified against Expenses and, to the extent
permitted by applicable law, amounts paid in settlement actually and reasonably
incurred by him or her on his or her behalf in connection with such Proceeding
if he or she acted in good faith and in a manner he or she reasonably believed
to be in or not opposed to the best interests of the Company. Notwithstanding
the preceding provisions of this Section 5, it is the intention of the parties
hereto that Indemnitee shall be indemnified to the full extent authorized or
permitted by Delaware law and, therefore, to the extent Delaware law shall
permit broader contractual indemnification, this contract shall be deemed
amended to incorporate such broader indemnification. Notwithstanding the
foregoing provisions of this Section 5, no indemnification against such Expenses
shall be made in respect of any claim, issue or matter as to which Indemnitee
shall have been adjudged to be liable to the Company; provided, however, that
indemnification against Expenses shall nevertheless be made by the Company in
such event to the extent that the Court of Chancery of the State of Delaware, or
the court in which such Proceeding shall have been brought or is pending, shall
determine.
6. Indemnification for Expenses of a Party who is Wholly or Partly
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Successful. Notwithstanding any other provision of this Agreement, but subject
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to Section 14, to the extent that Indemnitee is, by reason of his or her
Corporate Status, a party to and is successful, on the merits or otherwise, in
any Proceeding, he or she shall be indemnified against all Expenses actually and
reasonably incurred by him or her on his or her behalf in connection therewith.
If Indemnitee is not wholly successful in such Proceeding but is successful, on
the merits or otherwise, as to one or more but less than all claims, issues or
matters in such Proceeding, the Company shall indemnify Indemnitee against all
Expenses actually and reasonably incurred by him or her on his or her behalf in
connection with each successfully resolved claim, issue or matter. For purposes
of this Section 6 and without limitation, the termination of any claim, issue or
matter in such a Proceeding by dismissal or withdrawal, with or without
prejudice, shall be deemed to be a successful result as to such claim, issue or
matter.
7. Advance of Expenses. The Company shall advance all reasonable
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Expenses incurred by or on behalf of Indemnitee in connection with any
Proceeding within 20 days
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after the receipt by the Company of a statement or statements from Indemnitee
requesting such advance or advances from time to time, whether prior to or after
final disposition of such Proceeding. Such statement or statements shall
reasonably evidence the Expenses incurred or to be incurred by Indemnitee and
shall include or be preceded or accompanied by an undertaking by or on behalf of
Indemnitee to repay any Expenses advanced to the extent it shall ultimately be
determined that Indemnitee is not entitled to be indemnified hereunder against
such Expenses.
8. Procedure for Determination of Entitlement to Indemnification.
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(a) To obtain indemnification under this Agreement, Indemnitee
shall submit to the Company a written request, including therein or
therewith such documentation and information as is reasonably available
to Indemnitee and is reasonably necessary to determine whether and to
what extent Indemnitee is entitled to indemnification hereunder.
(b) Upon written request by Indemnitee for indemnification
pursuant to Section 8(a) hereof, a determination, if required by
applicable law, with respect to Indemnitee's entitlement thereto under
Delaware law shall be made in the specific case: (i) if a Change of
Control shall have occurred, by Independent Counsel (unless Indemnitee
shall request that such determination be made by the Board of Directors
or the stockholders, in which case the determination shall be made in
the manner provided below in clauses (ii) or (iii), as the case may be)
in a written opinion to the Board of Directors, a copy of which shall
be delivered to Indemnitee; (ii) if a Change of Control shall not have
occurred, (A) by the Board of Directors by a majority vote of a quorum
consisting of Disinterested Directors, or (B) if a quorum of the Board
of Directors consisting of Disinterested Directors is not obtainable,
or, even if obtainable, such quorum of Disinterested Directors so
directs, by Independent Counsel in a written opinion to the Board of
Directors, a copy of which shall be delivered to Indemnitee, or (C) by
the stockholders of the Company; or (iii) as provided in Section 9(b)
of this Agreement; and, if it is so determined that Indemnitee is
entitled to indemnification, payment to Indemnitee shall be made within
ten days after such determination. Indemnitee shall cooperate with the
person, persons or entity making such determination with respect to
Indemnitee's entitlement to indemnification, including providing to
such person, persons or entity upon reasonable advance request any
documentation or information which is not privileged or otherwise
protected from disclosure and which is reasonably available to
Indemnitee and reasonably necessary to such determination. Any costs or
expenses (including attorneys' fees and disbursements) incurred by
Indemnitee in so cooperating shall be borne by the Company
(irrespective of the determination as to Indemnitee's entitlement to
indemnification) and the Company hereby indemnifies and agrees to hold
Indemnitee harmless therefrom.
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(c) In the event the determination of entitlement to indemnification
is to be made by Independent Counsel pursuant to Section 8(b) of this
Agreement, the Independent Counsel shall be selected as provided in
this Section 8(c). If a Change of Control shall not have occurred, the
Independent Counsel shall be selected by the Board of Directors, and
the Company shall give written notice to Indemnitee advising him or her
of the identity of the Independent Counsel so selected. If a Change of
Control shall have occurred, the Independent Counsel shall be selected
by Indemnitee (unless Indemnitee shall request that such selection be
made by the Board of Directors, in which event the preceding sentence
shall apply), and Indemnitee shall give written notice to the Company
advising it of the identity of the Independent Counsel so selected. In
either event, Indemnitee or the Company, as the case may be, may,
within seven days after such written notice of selection shall have
been given, deliver to the Company or to Indemnitee, as the case may
be, a written objection to such selection. Such objection may be
asserted only on the ground that the Independent Counsel so selected
does not meet the requirements of "Independent Counsel" as defined in
Section 1 of this Agreement, and the objection shall set forth with
particularity the factual basis of such assertion. If such written
objection is made, the Independent Counsel so selected may not serve as
Independent Counsel unless and until a court has determined that such
objection is without merit. If, within 20 days after submission by
Indemnitee of a written request for indemnification pursuant to Section
8(a) hereof, no Independent Counsel shall have been selected or if
selected, shall have been objected to, in accordance with this Section
8(c), either the Company or Indemnitee may petition the Court of
Chancery of the State of Delaware or other court of competent
jurisdiction for resolution of any objection which shall have been made
by the Company or Indemnitee to the other's selection of Independent
Counsel and/or for the appointment as Independent Counsel of a person
selected by the Court or by such other person as the Court shall
designate, and the person with respect to whom an objection is
favorably resolved or the person so appointed shall act as Independent
Counsel under Section 8(b) hereof. The Company shall pay any and all
reasonable fees and expenses of Independent Counsel incurred by such
Independent Counsel in connection with acting pursuant to Section 8(b)
hereof, and the Company shall pay all reasonable fees and expenses
incident to the procedures of this Section 8(c), regardless of the
manner in which such Independent Counsel was selected or appointed.
9. Presumptions and Effect of Certain Proceedings.
(a) In making a determination with respect to entitlement to
indemnification hereunder, the person, persons or entity making such
determination shall presume that Indemnitee is entitled to
indemnification under this Agreement if Indemnitee has submitted a
request for indemnification in
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accordance with Section 8(a) of this Agreement, and the Company shall
have the burden of proof to overcome that presumption in connection
with the making by any person, persons or entity of any determination
contrary to that presumption.
(b) If the person, persons or entity empowered or selected
under Section 8 of this Agreement to determine whether Indemnitee is
entitled to indemnification shall not have made such determination
within 60 days after receipt by the Company of the request therefor,
the requisite determination of entitlement to indemnification shall be
deemed to have been made and Indemnitee shall be entitled to such
indemnification, absent (i) a misstatement by Indemnitee of a material
fact, or an omission of a material fact necessary to make Indemnitee's
statement not materially misleading, in connection with the request for
indemnification, or (ii) a prohibition of such indemnification under
applicable law; provided, however, that such 60-day period may be
extended for a reasonable time, not to exceed an additional 30 days, if
the person, persons or entity making the determination with respect to
entitlement to indemnification in good faith requires such additional
time for the obtaining or evaluating of documentation and/or
information relating thereto; and provided, further, that the foregoing
provisions of this Section 9(b) shall not apply if the determination of
entitlement to indemnification is to be made by the stockholders
pursuant to Section 8(b) of this Agreement and if (A) within 15 days
after receipt by the Company of the request for such determination the
Board of Directors has resolved to submit such determination to the
stockholders for their consideration at an annual meeting thereof to be
held within 75 days after such receipt and such determination is made
thereat, or (B) a special meeting of stockholders is called within 15
days after such receipt for the purpose of making such determination,
such meeting is held for such purpose within 60 days after having been
so called and such determination is made thereat.
(c) The termination of any Proceeding or of any claim, issue
or matter therein by judgment, order, settlement or conviction, or upon
a plea of nolo contendere or its equivalent, shall not (except as
otherwise expressly provided in this Agreement) of itself adversely
affect the right of Indemnitee to indemnification or create a
presumption that Indemnitee did not act in good faith and in a manner
which he or she reasonably believed to be in or not opposed to the best
interests of the Company or, with respect to any criminal Proceeding,
that Indemnitee had reasonable cause to believe that his or her conduct
was unlawful.
10. Remedies of Indemnitee.
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(a) In the event that (i) a determination is made pursuant to
Section 8 of this Agreement that Indemnitee is not entitled to
indemnification under this
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Agreement, (ii) advancement of Expenses is not timely made pursuant to
Section 7 of this Agreement, (iii) payment of indemnification is not
made pursuant to Section 6 of this Agreement within ten days after
receipt by the Company of a written request therefor, or (iv) payment
of indemnification is not made within ten days after a determination
has been made that Indemnitee is entitled to indemnification or such
determination is deemed to have been made pursuant to Section 9(b) of
this Agreement, Indemnitee shall be entitled to an adjudication in an
appropriate court of the State of Delaware, or in any other court of
competent jurisdiction, of his or her entitlement to such
indemnification or advancement of Expenses. Alternatively, Indemnitee,
at his or her option, may seek an award in arbitration to be conducted
by a single arbitrator pursuant to the rules of the American
Arbitration Association. The Company shall not oppose Indemnitee's
right to seek any such adjudication or award in arbitration.
(b) In the event that a determination shall have been made
pursuant to Section 8 of this Agreement that Indemnitee is not entitled
to indemnification, any judicial proceeding or arbitration commenced
pursuant to this Section 10 shall be conducted in all respects as a de
novo trial, or arbitration, on the merits and Indemnitee shall not be
prejudiced by reason of that adverse determination. In any judicial
proceeding or arbitration commenced pursuant to this Section 10 the
Company shall have the burden of proving that Indemnitee is not
entitled to indemnification or advancement of Expenses, as the case may
be.
(c) If a determination shall have been made or deemed to have
been made pursuant to Section 8 or Section 9 of this Agreement that
Indemnitee is entitled to indemnification, the Company shall be bound
by such determination in any judicial proceeding or arbitration
commenced pursuant to this Section 10, absent (i) a misstatement by
Indemnitee of a material fact, or an omission of a material fact
necessary to make Indemnitee's statement not materially misleading, in
connection with the request for indemnification, or (ii) a prohibition
of such indemnification under applicable law.
(d) The Company shall be precluded from asserting in any
judicial proceeding or arbitration commenced pursuant to this Section
10 that the procedures and presumptions of this Agreement are not
valid, binding and enforceable and shall stipulate in any such court or
before any such arbitrator that the Company is bound by all the
provisions of this Agreement.
(e) In the event that Indemnitee, pursuant to this Section 10,
seeks a judicial adjudication of or an award in arbitration to enforce
his or her rights under, or to recover damages for breach of, this
Agreement, Indemnitee shall be entitled to recover from the Company,
and shall be indemnified by the Company against,
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any and all expenses (of the types described in the definition of
Expenses in Section 1 of this Agreement) actually and reasonably
incurred by him or her in such judicial adjudication or arbitration,
but only if he or she prevails therein. If it shall be determined in
said judicial adjudication or arbitration that Indemnitee is entitled
to receive part but not all of the indemnification or advancement of
expenses sought, the expenses incurred by Indemnitee in connection with
such judicial adjudication or arbitration shall be appropriately
prorated.
11. Security. To the extent requested by the Indemnitee and approved by
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the Board of Directors, the Company may at any time and from time to time
provide security to the Indemnitee for the Company's obligations hereunder
through an irrevocable bank line of credit, funded trust or other collateral.
Any such security, once provided to the Indemnitee, may not be revoked or
released without the prior written consent of Indemnitee.
12. Non-Exclusivity; Duration of Agreement; Subrogation.
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(a) The rights of indemnification and to receive advancement
of Expenses as provided by this Agreement shall not be deemed exclusive
of any other rights to which Indemnitee may at any time be entitled
under applicable law, the Company's certificate of incorporation or
by-laws, any other agreement, a vote of stockholders or a resolution of
directors, or otherwise. This Agreement shall continue as to Indemnitee
even though his or her Corporate Status may have ceased and shall inure
to the benefit of Indemnitee and his or her heirs, executors and
administrators.
(b) In the event of any payment under this Agreement, the
Company shall be subrogated to the extent of such payment to all of the
rights of recovery of Indemnitee, who shall execute all papers required
and take all action necessary to secure such rights, including
execution of such documents as are necessary to enable the Company to
bring suit to enforce such rights.
(c) The Company shall not be liable under this Agreement to
make any payment of amounts otherwise indemnifiable hereunder if and to
the extent that Indemnitee has otherwise actually received such payment
under any insurance policy, contract, agreement or otherwise.
13. Severability. If any provision or provisions of this Agreement
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shall be held to be invalid, illegal or unenforceable for any reason whatsoever:
(a) the validity, legality and enforceability of the remaining provisions of
this Agreement (including without limitation, each portion of any Section of
this Agreement containing any such provision held to be invalid, illegal or
unenforceable, that is not itself invalid, illegal or unenforceable) shall not
in any way be affected or impaired thereby; and (b) to the fullest
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extent permitted by applicable law, the provisions of this Agreement (including,
without limitation, each portion of any Section of this Agreement containing any
such provision held to be invalid, illegal or unenforceable, that is not itself
invalid, illegal or unenforceable) shall be construed so as to give effect to
the intent manifested by the provision held invalid, illegal or unenforceable.
14. Exception to Right of Indemnification or Advancement of Expenses.
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Notwithstanding any other provision of this Agreement, except as otherwise
provided in Section 10, Indemnitee shall not be entitled to indemnification or
advancement of Expenses under this Agreement with respect to any Proceeding, or
any claim therein, brought or made by him or her against the Company without the
prior written consent of the Company.
15. Headings. The headings of the paragraphs of this Agreement
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are inserted for convenience only and shall not be deemed to constitute part of
this Agreement or to affect the construction thereof.
16. Modification and Waiver. This Agreement may be amended from time to
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time to reflect changes in Delaware law or for other reasons. No supplement,
modification or amendment of this Agreement shall be binding unless executed in
writing by both of the parties hereto. No waiver of any of the provisions of
this Agreement shall be deemed or shall constitute a waiver of any other
provision hereof (whether or not similar) nor shall such waiver constitute a
continuing waiver.
17. Notice by Indemnitee. Indemnitee agrees promptly to notify the
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Company in writing upon being served with any summons, citation, subpoena,
complaint, indictment, information or other document relating to any Proceeding
or matter which may be subject to indemnification or advancement of Expenses
covered hereunder; provided, however, that the failure to give any such notice
shall not disqualify the Indemnitee from indemnification hereunder.
18. Notices. All notices, requests, demands and other communications
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hereunder shall be in writing and shall be deemed to have been duly given if (i)
delivered by hand and receipted for by the party to whom said notice or other
communication shall have been directed, or (ii) mailed by certified or
registered mail with postage prepaid, on the third business day after the date
on which it is so mailed:
(a) If to Indemnitee to:
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(b) If to the Company to:
BJ's Wholesale Club, Inc.
One Mercer Road
Natick, Massachusetts 01760
Attention: President
or to such other address as may have been furnished to Indemnitee by the Company
or the Company by Indemnitee, as the case may be.
19. Governing Law. The parties agree that this Agreement shall be
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governed by, and construed and enforced in accordance with, the domestic
substantive laws of the State of Delaware without giving effect to any choice or
conflict of laws rule or provision that would result in the application of the
domestic substantive laws of any other jurisdiction.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
BJ'S WHOLESALE CLUB, INC.
By
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INDEMNITEE
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EXHIBIT A
Definition of "Change of Control"
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For the purpose of this Agreement, a "Change of Control" shall mean:
(a) The acquisition by an individual, entity or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"))(a "Person") of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 20% or
more of either (i) the then-outstanding shares of common stock of the Company
(the "Outstanding Company Common Stock") or (ii) the combined voting power of
the then-outstanding voting securities of the Company entitled to vote generally
in the election of directors (the "Outstanding Company Voting Securities");
provided, however, that for purposes of this subsection (a), the following
acquisitions shall not constitute a Change of Control: (i) any acquisition
directly from the Company, (ii) any acquisition by the Company, (iii) any
acquisition by any employee benefit plan (or related trust) sponsored or
maintained by the Company or any corporation controlled by the Company, or (iv)
any acquisition by any corporation pursuant to a transaction which satisfies the
criteria set forth in clauses (i), (ii) and (iii) of subsection (c) of this
definition; or
(b) Individuals who, as of the date hereof, constitute the
Board (the "Incumbent Board") cease for any reason to constitute at least a
majority of the Board; provided, however, that any individual becoming a
director subsequently to the date hereof whose election, or nomination for
election by the Company's stockholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board shall be
considered as though such individual were a member of the Incumbent Board
(except that this proviso shall not apply to any individual whose initial
assumption of office as a director occurs as a result of an actual or threatened
election contest with respect to the election or removal of directors or other
actual or threatened solicitation of proxies or consents by or on behalf of a
Person other than the Board); or
(c) Consummation of a reorganization, merger or consolidation
involving the Company or a sale or other disposition of all or substantially all
of the assets of the Company (a "Business Combination"), in each case, unless,
immediately following such Business Combination, (i) all or substantially all of
the individuals and entities who were the beneficial owners, respectively, of
the Outstanding Company Common Stock and Outstanding Company Voting Securities
immediately prior to such Business Combination beneficially own, directly or
indirectly, more than 60% of, respectively, the then-outstanding shares of
common stock and the combined voting power of the then-outstanding voting
securities entitled to vote generally in the election of directors, of
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the corporation resulting from such Business Combination (which as used in
section (c) of this definition shall include, without limitation, a corporation
which as a result of such transaction owns the Company or all or substantially
all of the Company's assets either directly or through one or more subsidiaries)
in substantially the same proportions as their ownership, immediately prior to
such Business Combination, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities, as the case may be, (ii) no Person
(excluding any corporation resulting from such Business Combination or any
employee benefit plan (or related trust) of the Company or such corporation
resulting from such Business Combination) beneficially owns, directly or
indirectly, 20% or more of, respectively, the then outstanding shares of common
stock of the corporation resulting from such Business Combination, or the
combined voting power of the then-outstanding voting securities of such
corporation and (iii) at least half of the members of the board of directors of
the corporation resulting from such Business Combination were members of the
Incumbent Board at the time of the execution of the initial agreement, or of the
action of the Board, providing for such Business Combination; or
(d) Approval by the stockholders of the Company of a complete
liquidation or dissolution of the Company.
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