EXHIBIT 10.2
EMPLOYMENT AGREEMENT
DATED AS OF APRIL 5, 2005
BETWEEN DONALD G. CAMPBELL AND THE TJX COMPANIES, INC.
INDEX PAGE
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1. EFFECTIVE DATE; TERM OF AGREEMENT......................................................................1
2. SCOPE OF EMPLOYMENT....................................................................................1
3. COMPENSATION AND BENEFITS..............................................................................2
4. TERMINATION OF EMPLOYMENT; IN GENERAL..................................................................3
5. BENEFITS UPON NON-VOLUNTARY TERMINATION OF EMPLOYMENT OR UPON EXPIRATION OF THE AGREEMENT..............3
6. OTHER TERMINATION; VIOLATION OF CERTAIN AGREEMENTS.....................................................5
7. BENEFITS UPON CHANGE IN CONTROL........................................................................6
8. AGREEMENT NOT TO SOLICIT OR COMPETE....................................................................6
9. ASSIGNMENT.............................................................................................7
10. NOTICES................................................................................................7
11. WITHHOLDING; CERTAIN TAX MATTERS.......................................................................8
12. GOVERNING LAW..........................................................................................8
13. ARBITRATION............................................................................................8
14. ENTIRE AGREEMENT.......................................................................................8
EXHIBIT A Certain Definitions.............................................................................A-1
EXHIBIT B Definition of "Change of Control"...............................................................B-1
EXHIBIT C Change of Control Benefits......................................................................C-1
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DONALD G. CAMPBELL
EMPLOYMENT AGREEMENT
AGREEMENT dated as of April 5, 2005 between DONALD G. CAMPBELL
("Executive") and The TJX Companies, Inc., a Delaware corporation whose
principal office is in Framingham, Massachusetts 01701 (the "Company").
RECITALS
The Company and Executive intend that Executive shall serve the Company
as Senior Executive Vice President, Chief Administrative and Business
Development Officer on the terms set forth below and, to that end, deem it
desirable and appropriate to enter into this Agreement.
AGREEMENT
The parties hereto, in consideration of the mutual agreements
hereinafter contained, agree as follows:
1. EFFECTIVE DATE; TERM OF AGREEMENT. This Agreement shall become
effective as of April 5, 2005 (the "Effective Date"). Executive's employment
shall continue on the terms provided herein until April 4, 2008 (the "End
Date"), subject to earlier termination as provided herein (such period of
employment hereinafter called the "Employment Period").
2. SCOPE OF EMPLOYMENT.
(a) Nature of Services. Executive shall diligently perform the duties
and responsibilities of Senior Executive Vice President, Chief Administrative
and Business Development Officer and such additional executive duties and
responsibilities as shall from time to time be assigned to him by the Chief
Executive Officer.
(b) Extent of Services. Except for illnesses and vacation periods,
Executive shall devote substantially all his working time and attention and his
best efforts to the performance of his duties and responsibilities under this
Agreement. However, Executive may (i) make any passive investments where he is
not obligated or required to, and shall not in fact, devote any managerial
efforts, (ii) participate in charitable or community activities or in trade or
professional organizations, or (iii) subject to Board approval (which approval
shall not be unreasonably withheld or withdrawn), hold directorships in public
companies, except only that the Board shall have the right to limit such
services as a director or such participation whenever the Board shall believe
that the time spent on such activities infringes in any material respect upon
the time
required by Executive for the performance of his duties under this Agreement or
is otherwise incompatible with those duties.
3. COMPENSATION AND BENEFITS.
(a) Base Salary. Executive shall be paid a base salary at the rate
hereinafter specified, such Base Salary to be paid in the same manner and at the
same times as the Company shall pay base salary to other executive employees.
The rate at which Executive's Base Salary shall be paid shall be $775,000 per
year or at such other rate (not less than $775,000 per year) as the Board may
determine after Board review not less frequently than annually.
(b) Existing Awards. Reference is made to outstanding awards of stock
options and of performance-based restricted stock made prior to the Effective
Date under the Company's Stock Incentive Plan (including any successor, the
"Stock Incentive Plan"), to the award opportunity granted to Executive for FYE
2005 under the Company's Management Incentive Plan ("MIP") and to award
opportunities granted to Executive under the Company's Long Range Performance
Incentive Plan ("LRPIP") for cycles beginning before the Effective Date and
ending after the Effective Date. Each of such awards shall continue for such
period or periods and in accordance with such terms as are set out in the grant
and other governing documents relating to such awards and shall not be affected
by the terms of this Agreement except as otherwise expressly provided herein.
(c) New Stock Awards. Consistent with the terms of the Stock Incentive
Plan, Executive will be entitled to stock-based awards under the Stock Incentive
Plan at levels commensurate with his position and responsibilities.
(d) LRPIP. During the Employment Period, Executive will be eligible to
participate in annual grants under LRPIP at a level commensurate with his
position and responsibilities and subject to such terms as shall be established
by the Committee.
(e) MIP. During the Employment Period, Executive shall be eligible to
participate in annual grants under MIP at a level commensurate with his position
and responsibilities and subject to such terms as shall be established by the
Committee.
(f) Qualified Plans; Other Deferred Compensation Plans. Executive shall
be entitled during the Employment Period to participate in the Company's
tax-qualified retirement and profit-sharing plans and its nonqualified deferred
compensation plans, including the GDCP and ESP, in each case in accordance with
the terms of the applicable plan but subject to the following sentence. Except
as provided in Exhibit C ("Change of Control Benefits") and this subsection (f),
Executive is entitled to Category B benefits determined and made payable in
accordance with the generally applicable provisions of the Company's
Supplemental Executive Retirement Plan ("SERP"); provided, that Executive shall
at all times have a fully vested right to his accrued benefit, including any
future accruals, under SERP based on his actual years of service.
(g) Policies and Fringe Benefits. Executive shall be subject to Company
policies applicable to its executives generally and shall be entitled to receive
all such fringe benefits as
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the Company shall from time to time make available to other executives generally
(subject to the terms of any applicable fringe benefit plan). Without limiting
the foregoing, Executive shall be entitled during the Employment Period and
thereafter to the extent provided herein to a Level 5 leased automobile.
4. TERMINATION OF EMPLOYMENT; IN GENERAL.
(a) The Company shall have the right to end Executive's employment at
any time and for any reason, with or without Cause.
(b) The Employment Period shall terminate when Executive becomes
Disabled. In addition, if by reason of Incapacity Executive is unable to perform
his duties for at least six continuous months, upon written notice by the
Company to Executive the Employment Period will be terminated for Incapacity.
(c) Whenever the Employment Period shall terminate, Executive shall
resign all offices or other positions he shall hold with the Company and any
affiliated corporations.
5. BENEFITS UPON NON-VOLUNTARY TERMINATION OF EMPLOYMENT OR UPON
EXPIRATION OF THE AGREEMENT.
(a) Certain Terminations Prior to the End Date. If the Employment
Period shall have terminated prior to the End Date by reason of (i) death,
Disability or Incapacity of Executive, (ii) termination by the Company for any
reason other than Cause or (iii) termination by Executive in the event that (A)
Executive is required to report other than to the Chief Executive Officer, or
(B) Executive is relocated more than forty (40) miles from the current corporate
headquarters of the Company, in either case without his prior written consent (a
"Constructive Termination"), then all compensation and benefits for Executive
shall be as follows:
(i) For the longer of one year following the Date of
Termination or the period commencing on the Date of Termination and
ending on the End Date (such one-year or other period being herein
referred to as the "termination period"), the Company will pay to
Executive or his legal representative continued Base Salary at the rate
in effect at termination of employment, subject to the following:
(A) If Executive is eligible for long-term disability
compensation benefits under the Company's long-term disability
plan, the amount payable under this clause shall be paid at a
rate equal to the excess of (I) the rate of Base Salary in
effect at termination of employment, over (II) the long-term
disability compensation benefits for which Executive is
eligible under such plan.
(B) Payments pursuant to this clause (a)(i) shall be
paid for the first twelve (12) months of the termination
period without reduction for compensation earned from other
employment or self-employment, and shall thereafter be reduced
by such compensation received by Executive from other
employment or self-employment.
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(ii) Until the expiration of the termination period as defined
at (a)(i) above and subject to such minimum coverage-continuation
requirements as may be required by law, the Company will provide
(except to the extent that Executive shall obtain no less favorable
coverage from another employer or from self-employment) such medical
and hospital insurance and term life insurance for Executive and his
family, comparable to the insurance provided for executives generally,
as the Company shall determine, and upon the same terms and conditions
as the same shall be provided for other Company executives generally;
provided, however, that in no event shall such benefits or the terms
and conditions thereof be less favorable to Executive than those
afforded to him as of the Date of Termination; and further provided,
that to the extent it is impossible or impracticable to provide any
such coverage to Executive under the Company's then existing employee
benefit plans or arrangements, the Company shall arrange for alternate
comparable coverage or, if such alternate coverage is not available,
shall pay to Executive the cost of such coverage, all as reasonably
determined by the Committee.
(iii) The Company will pay to Executive or his legal
representative, without offset for compensation earned from other
employment or self-employment, (A) any unpaid amounts to which
Executive is entitled under MIP for the fiscal year of the Company
ended immediately prior to Executive's termination of employment, plus
(B) any unpaid amounts owing with respect to LRPIP cycles in which
Executive participated and which were completed prior to termination.
These amounts will be paid at the same time as other awards for such
prior year or cycle are paid.
(iv) The Company will pay to Executive or his legal
representative, without offset for compensation earned from other
employment or self-employment, an amount equal to the sum of (A)
Executive's MIP Target Award, if any, for the year of termination,
multiplied by a formula the numerator of which is three hundred and
sixty-five (365) plus the number of days during such year prior to
termination, and the denominator of which is seven hundred and thirty
(730), plus, (B) with respect to each LRPIP cycle in which Executive
participated and which had not ended prior to termination of
employment, 1/36 of an amount equal to Executive's LRPIP Target Award
for such cycle multiplied by the number of full months in such cycle
completed prior to termination of employment. The amount described in
clause (a)(iv)(A) above will be paid not later than MIP awards for the
year of termination are paid. The amount described in clause (a)(iv)(B)
above, to the extent measured by the LRPIP Target Award for any cycle,
will be paid not later than the date on which LRPIP awards for such
cycle are paid or would have been paid.
(v) In addition, Executive or his legal representative shall
be entitled to the Stock Incentive Plan benefits described in Section
3(b) (Existing Awards) and Section 3(c) (New Stock Awards), in each
case in accordance with and subject to the terms of the applicable
arrangement, and to the payment of his vested benefits under the plans
described in Section 3(f) (Qualified Plans; Other Deferred Compensation
Plans).
(vi) If termination occurs by reason of Incapacity or
Disability, Executive shall also be entitled to such compensation, if
any, as is payable pursuant to the Company's
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long-term disability plan. If for any period Executive receives
long-term disability compensation payments under a long-term disability
plan of the Company as well as payments under (a)(i) above, and if the
sum of such payments (the "combined salary/disability benefit") exceeds
the payment for such period to which Executive is entitled under (a)(i)
above (determined without regard to paragraph (A) thereof), he shall
promptly pay such excess in reimbursement to the Company; provided,
that in no event shall application of this sentence result in reduction
of Executive's combined salary/disability benefit below the level of
long-term disability compensation payments to which Executive is
entitled under the long-term disability plan or plans of the Company.
(vii) If termination occurs by reason of death, Incapacity or
Disability, Executive shall also be entitled to an amount equal to
Executive's MIP Target Award for the year of termination, without
proration. This amount will be paid at the same time as the amount
payable under paragraph (iv) above.
(viii) Except as expressly set forth above or as required by
law, Executive shall not be entitled to continue participation during
the termination period in any employee benefit or fringe benefit plan,
except that during the termination period the Company shall continue to
provide the Executive with an automobile or automobile allowance.
(b) Terminations on or after the End Date. Unless earlier terminated or
except as otherwise mutually agreed by Executive and the Company, Executive's
employment with the Company shall terminate on the End Date. Unless the Company
in connection with such termination shall offer to Executive continued service
in a position acceptable to Executive and upon mutually and reasonably agreeable
terms, Executive shall be treated as having terminated under Section 5(a) on the
day immediately preceding the End Date and shall be entitled to the pay and
benefits described therein. If the Company in connection with such termination
offers to Executive continued service in a position acceptable to Executive and
upon mutually and reasonably agreeable terms, and Executive declines such
service, he shall be treated for all purposes of this Agreement as having
terminated his employment voluntarily on the End Date and he shall be entitled
only to those benefits to which he would be entitled under Section 6(a)
("Voluntary termination of employment"). For purposes of the two preceding
sentences, "service in a position acceptable to Executive" shall be deemed to
mean service as Senior Executive Vice President, Chief Administrative and
Business Development Officer or service in such other position, if any, as may
be acceptable to Executive.
6. OTHER TERMINATION; VIOLATION OF CERTAIN AGREEMENTS.
(a) Voluntary termination of employment. If Executive
terminates his employment voluntarily, Executive or his legal
representative shall be entitled (in each case in accordance with and
subject to the terms of the applicable arrangement) to any Stock
Incentive Plan benefits described in Section 3(b) (Existing Awards) or
Section 3(c) (New Stock Awards) and to any vested benefits under the
plans described in Section 3(f) (Qualified Plan; Other Deferred
Compensation Plans). In addition, the Company will pay to Executive or
his legal representative any unpaid amounts to which Executive is
entitled under MIP for the fiscal year of the Company ended immediately
prior to
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Executive's termination of employment, plus any unpaid amounts owing
with respect to LRPIP cycles in which Executive participated and which
were completed prior to termination, in each case at the same time as
other awards for such prior year or cycle are paid. No other benefits
shall be paid under this Agreement upon a voluntary termination of
employment.
(b) Termination for Cause; violation of certain agreements. If
the Company should end Executive's employment for Cause, or,
notwithstanding Section 5 and Section 6(a) above, if Executive should
violate the protected persons or noncompetition provisions of Section
8, all compensation and benefits otherwise payable pursuant to this
Agreement shall cease, other than (x) such vested amounts as are
credited to Executive's account (but not received) under GDCP and ESP
in accordance with the terms of those programs; and (y) Stock Incentive
Plan benefits, if any, to which Executive may be entitled (in each case
in accordance with and subject to the terms of the applicable
arrangement) under Section 3(b) (Existing Awards) or Section 3(c) (New
Stock Awards) and any vested benefits to which the Executive is
entitled under the Company's tax-qualified plans. The Company does not
waive any rights it may have for damages for injunctive relief.
7. BENEFITS UPON CHANGE IN CONTROL. Notwithstanding any other provision
of this Agreement, in the event of a Change of Control, the determination and
payment of any benefits payable thereafter with respect to Executive shall be
governed exclusively by the provisions of Exhibit C.
8. AGREEMENT NOT TO SOLICIT OR COMPETE.
(a) Upon the termination of employment at any time, then for a period
of two years after the termination of the Employment Period, Executive shall not
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. A "protected person"
shall be a person known by Executive to be employed by the Company or its
Subsidiaries or to have been employed by Company or its Subsidiaries within six
months prior to the commencement of conversations with such person with respect
to employment.
As to (i) each "protected person" to whom the foregoing applies, (ii)
each subcategory of "protected person" as defined above, (iii) each limitation
on (A) employment, (B) solicitation and (C) unsolicited acceptance of services,
of each "protected person" and (iv) 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 his employment, Executive will have learned
many trade secrets of the Company and its Subsidiaries and will have access to
confidential information and business plans for the Company and its
Subsidiaries. Therefore, upon termination of the
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Employment Period on the End Date or if Executive should end his employment
voluntarily at any time, including by reason of retirement or disability, or if
the Company should end Executive's employment at any time for Cause, then for a
period of two years thereafter, Executive will not engage, either as a
principal, employee, partner, consultant or investor (other than a less-than-1%
stock interest in a corporation), in a business which is a competitor of the
Company and its Subsidiaries. A business shall be deemed a competitor of the
Company and its Subsidiaries if and only (i) if it shall then be so regarded by
retailers generally or (ii) if it shall operate an off-price family apparel
and/or home fashions or furnishings store within ten (10) miles of any "then
existing or proposed Company store" or (iii) if it shall operate an on-line,
"e-commerce" or other internet-based off-price family apparel and/or home
fashions or furnishings business; provided, that a business shall be deemed a
competitor of the Company and its Subsidiaries under clause (iii) only if the
Company or a Subsidiary is then also operating an on-line, "e-commerce" or other
internet-based off-price family apparel and/or home fashions or furnishings
business; and further provided, that a business shall be deemed a competitor of
the Company and its Subsidiaries by engaging in an off-price family apparel
and/or home fashions or furnishings business only if the Company or a Subsidiary
is then also engaged in such a business. The term "then existing or proposed
Company store" in the previous sentence shall refer to any such store that is,
at the time of termination of the Employment Period, operated by the Company or
any Subsidiary or under lease for operation as aforesaid. Nothing herein shall
restrict the right of Executive to engage in a business that operates a
conventional or full mark-up department store. Executive agrees that if, at any
time, pursuant to action of any court, administrative or governmental body or
other arbitral tribunal, 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, as the case may be, 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.
(c) If the Employment Period terminates, Executive agrees (i) to notify
the Company immediately upon his securing employment or becoming self-employed
during any period when Executive's compensation from the Company shall be
subject to reduction or his benefits provided by the Company shall be subject to
termination as provided in Section 6 and (ii) to furnish to the Company written
evidence of his compensation earned from any such employment or self-employment
as the Company 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 all written trade secrets, confidential
information and business plans of the Company and shall execute a certificate
certifying that he has returned all such items in his possession or under his
control.
9. ASSIGNMENT. The rights and obligations of the Company shall enure to
the benefit of and shall be binding upon the successors and assigns of the
Company. The rights and obligations of Executive are not assignable except only
that payments payable to him after his death shall be made by devise or descent.
10. NOTICES. All notices and other communications required hereunder
shall be in writing and shall be given by mailing the same by certified or
registered mail, return receipt requested, postage prepaid. If sent to the
Company the same shall be mailed to the Company at
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770 Cochituate Road, Framingham, Massachusetts 01701, Attention: Chairman of the
Executive Compensation Committee, or other such address as the Company may
hereafter designate by notice to Executive; and if sent to the Executive, the
same shall be mailed to Executive at his address set forth in the records of the
Company or at such other address as Executive may hereafter designate by notice
to the Company.
11. WITHHOLDING; CERTAIN TAX MATTERS. Anything to the contrary
notwithstanding, (a) all payments required to be made by the Company hereunder
to Executive shall be subject to the withholding of such amounts, if any,
relating to tax and other payroll deductions as the Company may reasonably
determine it should withhold pursuant to any applicable law or regulation, and
(b) to the extent any payment hereunder shall be required to be delayed until
six months following separation from service to comply with the "specified
employee" rules of Section 409A of the Code, it shall be so delayed (but not
more than is required to comply with such rules).
12. GOVERNING LAW. This Agreement and the rights and obligations of the
parties hereunder shall be governed by the laws of the Commonwealth of
Massachusetts.
13. ARBITRATION. In the event that there is any claim or dispute
arising out of or relating to this Agreement, or the breach thereof, and the
parties hereto shall not have resolved such claim or dispute within sixty (60)
days after written notice from one party to the other setting forth the nature
of such claim or dispute, then such claim or dispute shall be settled
exclusively by binding arbitration in Boston, Massachusetts in accordance with
the Rules Governing Resolutions of Employment Disputes of the American
Arbitration Association by an arbitrator mutually agreed upon by the parties
hereto or, in the absence of such agreement, by an arbitrator selected according
to such Rules. Notwithstanding the foregoing, if either the Company or Executive
shall request, such arbitration shall be conducted by a panel of three
arbitrators, one selected by the Company, one selected by Executive and the
third selected by agreement of the first two, or, in the absence of such
agreement, in accordance with such Rules. Judgment upon the award rendered by
such arbitrator(s) shall be entered in any Court having jurisdiction thereof
upon the application of either party.
14. ENTIRE AGREEMENT. This Agreement, including Exhibits, represents
the entire agreement between the parties relating to the terms of Executive's
employment by the Company and supersedes all prior written or oral agreements
between them.
/s/ Donald G. Campbell
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Executive
THE TJX COMPANIES, INC.
By /s/ Edmond J. English
__________________________
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EXHIBIT A
Certain Definitions
(a) "Base Salary" means, for any period, the amount described in
Section 3(a).
(b) "Board" means the Board of Directors of the Company.
(c) "Committee" means the Executive Compensation Committee of the
Board.
(d) "Cause" means dishonesty by Executive in the performance of his
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 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), gross neglect of duties
(other than as a result of Incapacity, Disability or death), or conflict of
interest which conflict shall continue for thirty (30) days after the Company
gives written notice to Executive requesting the cessation of such conflict.
In respect of any termination during a Standstill Period, Executive
shall not be deemed to have been terminated for Cause until the later to occur
of (i) the 30th day after notice of termination is given and (ii) the delivery
to Executive of a copy of a resolution duly adopted by the affirmative vote of
not less than a majority of the Company's directors at a meeting called and held
for that purpose (after reasonable notice to Executive), and at which Executive
together with his counsel was given an opportunity to be heard, finding that the
Executive was guilty of conduct described in the definition of "Cause" above,
and specifying the particulars thereof in detail; provided, however, that the
Company may suspend Executive and withhold payment of his Base Salary from the
date that notice of termination is given until the earliest to occur of (A)
termination of Executive for Cause effected in accordance with the foregoing
procedures (in which case Executive shall not be entitled to his Base Salary for
such period), (B) a determination by a majority of the Company's directors that
Executive was not guilty of the conduct described in the definition of "Cause"
effected in accordance with the foregoing procedures (in which case Executive
shall be reinstated and paid any of his previously unpaid Base Salary for such
period), or (C) ninety (90) days after notice of termination is given (in which
case Executive shall then be reinstated and paid any of his previously unpaid
Base Salary for such period). If Base Salary is withheld and then paid pursuant
to clause (B) or (C) of the preceding sentence, the amount thereof shall be
accompanied by simple interest, calculated on a daily basis, at a rate per annum
equal to the prime or base lending rate, as in effect at the time, of the
Company's principal commercial bank.
(e) "Change of Control" has the meaning given it in Exhibit B.
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(f) "Change of Control Termination" means the termination of
Executive's employment during a Standstill Period (1) by the Company other than
for Cause, or (2) by Executive for good reason, or (3) by reason of death,
Incapacity or Disability.
For purposes of this definition, termination for "good reason" shall
mean the voluntary termination by Executive of his employment (A) within one
hundred and twenty (120) days after the occurrence without Executive's express
written consent of any one of the events described in clauses (I), (II), (III),
(IV), (V) or (VI) below, provided, that Executive gives notice to the Company at
least thirty (30) days in advance requesting that the pertinent situation
described therein be remedied, and the situation remains unremedied upon
expiration of such 30-day period; (B) within one hundred and twenty (120) days
after the occurrence without Executive's express written consent of the event
described in clause (VII), provided, that Executive gives notice to the Company
at least thirty (30) days in advance of his intent to terminate his employment
in respect of such event; or (C) under the circumstances described in clause
(VIII) below, provided, that Executive gives notice to the Company at least
thirty (30) days in advance:
(I) the assignment to him of any duties inconsistent with
his positions, duties, responsibilities, reporting
requirements, and status with the Company immediately
prior to the Change of Control, or any removal of
Executive from or any failure to reelect him to such
positions, except in connection with the termination
of Executive's employment by the Company for Cause or
by Executive other than for good reason, or any other
action by the Company which results in a diminishment
in such position, authority, duties or
responsibilities, other than an insubstantial and
inadvertent action which is remedied by the Company
promptly after receipt of notice thereof given by
Executive; or
(II) if Executive's rate of Base Salary for any fiscal
year is less than 100 percent of the rate of Base
Salary paid to Executive in the completed fiscal year
immediately preceding the Change of Control or if
Executive's total cash compensation opportunities,
including salary and incentives, for any fiscal year
are less than 100% of the total cash compensation
opportunities made available to Executive in the
completed fiscal year immediately preceding the
Change of Control; or
(III) the failure of the Company to continue in effect any
benefits or perquisites, or any pension, life
insurance, medical insurance or disability plan in
which Executive was participating immediately prior
to the Change of Control unless the Company provides
Executive with a plan or plans that provide
substantially similar benefits, or the taking of any
action by the Company that would adversely affect
Executive's benefits under any of such plans or
deprive Executive of any material fringe benefit
enjoyed by Executive immediately prior to the Change
of Control; or
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(IV) any purported termination of Executive's employment
by the Company for Cause during a Standstill Period
which is not effected in compliance with paragraph
(d) above; or
(V) any relocation of Executive of more than forty (40)
miles from the place where Executive was located at
the time of the Change of Control; or
(VI) any other breach by the Company of any provision of
this Agreement; or
(VII) the Company sells or otherwise disposes of, in one
transaction or a series of related transactions,
assets or earning power aggregating more than 30% of
the assets (taken at asset value as stated on the
books of the Company determined in accordance with
generally accepted accounting principles consistently
applied) or earning power of the Company (on an
individual basis) or the Company and its Subsidiaries
(on a consolidated basis) to any other Person or
Persons (as those terms are defined in Exhibit B); or
(VIII) the voluntary termination by Executive of his
employment at any time within one year after the
Change of Control. Notwithstanding the foregoing, the
Board may expressly waive the application of this
clause (VIII) if it waives the applicability of
substantially similar provisions with respect to all
persons with whom the Company has a written severance
agreement (or may condition its application on any
additional requirements or employee agreements which
the Board shall in its discretion deem appropriate in
the circumstances). The determination of whether to
waive or impose conditions on the application of this
clause (VIII) shall be within the complete discretion
of the Board but shall be made prior to the Change of
Control.
(g) "Code" means the Internal Revenue Code of 1986, as from time to
time amended and in effect.
(h) "Date of Termination" means the date on which Executive's
employment terminates.
(i) "Disability" has the meaning given it in the Company's long-term
disability plan. Executive's employment shall be deemed to be terminated for
Disability on the date on which Executive is entitled to receive long-term
disability compensation pursuant to such long-term disability plan.
(j) "End Date" has the meaning set forth in Section 1 of the Agreement.
(k) "GDCP" means the Company's General Deferred Compensation Plan, or,
if the General Deferred Compensation Plan is no longer maintained by the
Company, a nonqualified deferred compensation plan (other than the ESP) or
arrangement the terms of which are not less favorable to Executive than the
terms of the General Deferred Compensation Plan as in effect on the Effective
Date.
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(l) "ESP" means the Company's Executive Savings Plan.
(m) "Incapacity" means a disability (other than Disability within the
meaning of (i) above) or other impairment of health that renders Executive
unable to perform his duties to the reasonable satisfaction of the Committee.
(n) "LRPIP" has the meaning set forth in Section 3(b) of the Agreement.
(o) "MIP" has the meaning set forth in Section 3(b) of the Agreement.
(p) "SERP" has the meaning set forth in Section 3(f) of this Agreement.
(q) "Standstill Period" means the period commencing on the date of a
Change of Control and continuing until the close of business on the earlier of
the day immediately preceding the End Date or the last business day of the 24th
calendar month following such Change of Control.
(r) "Stock" means the common stock, $1.00 par value, of the Company.
(s) "Stock Incentive Plan" has the meaning set forth in Section 3(b) of
the Agreement.
(t) "Subsidiary" means any corporation in which the Company owns,
directly or indirectly, 50% or more of the total combined voting power of all
classes of stock.
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EXHIBIT B
Definition of "Change of Control"
"Change of Control" shall mean the occurrence of any one of the
following events:
(a) there occurs a change of control of the Company of a
nature that would be required to be reported in response to Item 1(a)
of the Current Report on Form 8-K pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934 (the "Exchange Act") or in any
other filing under the Exchange Act; provided, however, that no
transaction shall be deemed to be a Change of Control (i) if the person
or each member of a group of persons acquiring control is excluded from
the definition of the term "Person" hereunder or (ii) unless the
Committee shall otherwise determine prior to such occurrence, if
Executive or an Executive Related Party is the Person or a member of a
group constituting the Person acquiring control; or
(b) any Person other than the Company, any wholly-owned
subsidiary of the Company, or any employee benefit plan of the Company
or such a subsidiary becomes the owner of 20% or more of the Company's
Common Stock and thereafter individuals who were not directors of the
Company prior to the date such Person became a 20% owner are elected as
directors pursuant to an arrangement or understanding with, or upon the
request of or nomination by, such Person and constitute at least 1/4 of
the Company's Board of Directors; provided, however, that unless the
Committee shall otherwise determine prior to the acquisition of such
20% ownership, such acquisition of ownership shall not constitute a
Change of Control if Executive or an Executive Related Party is the
Person or a member of a group constituting the Person acquiring such
ownership; or
(c) there occurs any solicitation or series of solicitations
of proxies by or on behalf of any Person other than the Company's Board
of Directors and thereafter individuals who were not directors of the
Company prior to the commencement of such solicitation or series of
solicitations are elected as directors pursuant to an arrangement or
understanding with, or upon the request of or nomination by, such
Person and constitute at least 1/4 of the Company's Board of Directors;
or
(d) the Company executes an agreement of acquisition, merger
or consolidation which contemplates that (i) after the effective date
provided for in the agreement, all or substantially all of the business
and/or assets of the Company shall be owned, leased or otherwise
controlled by another Person and (ii) individuals who are directors of
the Company when such agreement is executed shall not constitute a
majority of the board of directors of the survivor or successor entity
immediately after the effective date provided for in such agreement;
provided, however, that unless otherwise determined by the Committee,
no transaction shall constitute a Change of Control if, immediately
after such transaction, Executive or any Executive Related Party shall
own equity securities of any surviving corporation ("Surviving Entity")
having a fair value as a percentage of the fair value of the equity
securities of such Surviving Entity greater than 125% of the fair value
B-1
of the equity securities of the Company owned by Executive and any
Executive Related Party immediately prior to such transaction,
expressed as a percentage of the fair value of all equity securities of
the Company immediately prior to such transaction (for purposes of this
paragraph ownership of equity securities shall be determined in the
same manner as ownership of Common Stock); and provided, further, that,
for purposes of this paragraph (d), if such agreement requires as a
condition precedent approval by the Company's shareholders of the
agreement or transaction, a Change of Control shall not be deemed to
have taken place unless and until such approval is secured (but upon
any such approval, a Change of Control shall be deemed to have occurred
on the date of execution of such agreement).
In addition, for purposes of this Exhibit B the following terms have the
meanings set forth below:
"Common Stock" shall mean the then outstanding Common Stock of the
Company plus, for purposes of determining the stock ownership of any Person, the
number of unissued shares of Common Stock which such Person has the right to
acquire (whether such right is exercisable immediately or only after the passage
of time) upon the exercise of conversion rights, exchange rights, warrants or
options or otherwise. Notwithstanding the foregoing, the term Common Stock shall
not include shares of Preferred Stock or convertible debt or options or warrants
to acquire shares of Common Stock (including any shares of Common Stock issued
or issuable upon the conversion or exercise thereof) to the extent that the
Board of Directors of the Company shall expressly so determine in any future
transaction or transactions.
A Person shall be deemed to be the "owner" of any Common Stock:
(i) of which such Person would be the "beneficial owner," as
such term is defined in Rule 13d-3 promulgated by the Securities and
Exchange Commission (the "Commission") under the Exchange Act, as in
effect on March 1, 1989; or
(ii) of which such Person would be the "beneficial owner" for
purposes of Section 16 of the Exchange Act and the rules of the
Commission promulgated thereunder, as in effect on March 1, 1989; or
(iii) which such Person or any of its affiliates or associates
(as such terms are defined in Rule 12b-2 promulgated by the Commission
under the Exchange Act, as in effect on March 1, 1989), has the right
to acquire (whether such right is exercisable immediately or only after
the passage of time) pursuant to any agreement, arrangement or
understanding or upon the exercise of conversion rights, exchange
rights, warrants or options or otherwise.
"Person" shall have the meaning used in Section 13(d) of the Exchange
Act, as in effect on March 1, 1989.
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An "Executive Related Party" shall mean any affiliate or associate of
Executive other than the Company or a majority-owned subsidiary of the Company.
The terms "affiliate" and "associate" shall have the meanings ascribed thereto
in Rule 12b-2 under the Exchange Act (the term "registrant" in the definition of
"associate" meaning, in this case, the Company).
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EXHIBIT C
Change of Control Benefits
C.1. Benefits Upon a Change of Control Termination.
(a) The Company shall pay the following to Executive in a lump sum
within thirty (30) days following a Change of Control Termination:
(i) an amount equal to (A) two times his Base Salary for one
year at the rate in effect immediately prior to the Date of Termination
or the Change of Control, whichever is higher, plus (B) the accrued and
unpaid portion of his Base Salary through the Date of Termination,
subject to the following. If Executive is eligible for long term
disability compensation benefits under the Company's long-term
disability plan, the amount payable under (A) shall be reduced by the
annual long-term disability compensation benefit for which Executive is
eligible under such plan for the two-year period over which the amount
payable under (A) is measured. If for any period Executive receives
long-term disability compensation payments under a long-term disability
plan of the Company as well as payments under the first sentence of
this clause (i), and if the sum of such payments (the "combined Change
of Control/disability benefit") exceeds the payment for such period to
which Executive is entitled under the first sentence of this clause (i)
(determined without regard to the second sentence of this clause (i)),
he shall promptly pay such excess in reimbursement to the Company;
provided, that in no event shall application of this sentence result in
reduction of Executive's combined Change of Control/disability benefit
below the level of long-term disability compensation payments to which
Executive is entitled under the long-term disability plan or plans of
the Company.
(ii) in lieu of any other benefits under SERP, an amount equal
to the present value of the payments that Executive would have been
entitled to receive under SERP as a Category B or Category C
participant, whichever is greater, applying the following rules and
assumptions:
(A) the monthly benefit under SERP determined using
the foregoing criteria shall be multiplied by 12 to determine
an annual benefit; and
(B) the present value of such annual benefit shall be
determined by multiplying the result in (A) by the appropriate
actuarial factor, using the most recently published interest
and mortality rates published by the Pension Benefit Guaranty
Corporation which are effective for plan terminations
occurring on the Date of Termination, using Executive's age to
the nearest year determined as of that date. If, as of the
Date of Termination, the Executive has previously satisfied
the eligibility requirements for Early Retirement under The
TJX Companies, Inc. Retirement Plan, then the appropriate
factor shall be that based on the most recently published
"PBGC Actuarial Value of $1.00 Per Year Deferred to Age 60 and
Payable for Life Thereafter -- Healthy Lives," except that if
the Executive's
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age to the nearest year is more than 60, then such higher age
shall be substituted for 60. If, as of the Date of
Termination, the Executive has not satisfied the eligibility
requirements for Early Retirement under The TJX Companies,
Inc. Retirement Plan, then the appropriate factor shall be
based on the most recently published "PBGC Actuarial Value of
$1.00 Per Year Deferred To Age 65 And Payable For Life
Thereafter -- Healthy Lives."
(C) the benefit determined under (B) above shall be
reduced by the value of any portion of Executive's SERP
benefit already paid or provided to him in cash or through the
transfer of an annuity contract.
(b) Until the second anniversary of the Date of Termination, the
Company shall maintain in full force and effect for the continued benefit of
Executive and his family all life insurance and medical insurance plans and
programs in which Executive was entitled to participate immediately prior to the
Change of Control, provided that Executive's continued participation is possible
under the general terms and provisions of such plans and programs. In the event
that Executive is ineligible to participate in such plans or programs, the
Company shall arrange upon comparable terms to provide Executive with benefits
substantially similar to those which he is entitled to receive under such plans
and programs. Notwithstanding the foregoing, the Company's obligations hereunder
with respect to life or medical coverage or benefits shall be deemed satisfied
to the extent (but only to the extent) of any such coverage or benefits provided
by another employer.
(c) For a period of two years after the Date of Termination, the
Company shall make available to Executive the use of any automobile that was
made available to Executive prior to the Date of Termination, including ordinary
replacement thereof in accordance with the Company's automobile policy in effect
immediately prior to the Change of Control (or, in lieu of making such
automobile available, the Company may at its option pay to Executive the present
value of its cost of providing such automobile).
C.2. Incentive Benefits Upon a Change of Control. Within thirty (30)
days following a Change of Control, whether or not Executive's employment has
terminated or been terminated, the Company shall pay to the Executive, in a lump
sum, the sum of (i) and (ii), where:
(i) is the sum of (A) the "Target Award" under the Company's
Management Incentive Plan or any other annual incentive plan which is
applicable to Executive for the fiscal year in which the Change of
Control occurs, plus (B) an amount equal to such Target Award prorated
for the period of active employment during such fiscal year through the
Change of Control; and
(ii) the sum of (A) for Performance Cycles not completed prior
to the Change of Control, an amount with respect to each such cycle
equal to the maximum Award under LRPIP specified for Executive for such
cycle, plus (B) any unpaid amounts owing with respect to cycles
completed prior to the Change of Control.
C-2
C.3. Gross-Up Payment. Payments under Section C.1. and Section C.2. of
this Exhibit shall be made without regard to whether the deductibility of such
payments (or any other payments or benefits to or for the benefit of Executive)
would be limited or precluded by Section 280G of the Code ("Section 280G") and
without regard to whether such payments (or any other payments or benefits)
would subject Executive to the federal excise tax levied on certain "excess
parachute payments" under Section 4999 of the Code (the "Excise Tax"). If any
portion of the payments or benefits to or for the benefit of Executive
(including, but not limited to, payments and benefits under this Agreement but
determined without regard to this paragraph) constitutes an "excess parachute
payment" within the meaning of Section 280G (the aggregate of such payments
being hereinafter referred to as the "Excess Parachute Payments"), the Company
shall promptly pay to Executive an additional amount (the "gross-up payment")
that after reduction for all taxes (including but not limited to the Excise Tax)
with respect to such gross-up payment equals the Excise Tax with respect to the
Excess Parachute Payments; provided, that to the extent any gross-up payment
would be considered "deferred compensation" for purposes of Section 409A of the
Code, the manner and time of payment, and the provisions of this Section C.3,
shall be adjusted to the extent necessary (but only to the extent necessary) to
comply with the requirements of Section 409A with respect to such payment so
that the payment does not give rise to the interest or additional tax amounts
described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the
"Section 409A penalties"); and further provided, that if, notwithstanding the
immediately preceding proviso, the gross-up payment cannot be made to conform to
the requirements of Section 409A of the Code, the amount of the gross-up payment
shall be determined without regard to any gross-up for the Section 409A
penalties. The determination as to whether Executive's payments and benefits
include Excess Parachute Payments and, if so, the amount of such payments, the
amount of any Excise Tax owed with respect thereto, and the amount of any
gross-up payment shall be made at the Company's expense by
PricewaterhouseCoopers LLP or by such other certified public accounting firm as
the Committee may designate prior to a Change of Control (the "accounting
firm"). Notwithstanding the foregoing, if the Internal Revenue Service shall
assert an Excise Tax liability that is higher than the Excise Tax (if any)
determined by the accounting firm, the Company shall promptly augment the
gross-up payment to address such higher Excise Tax liability.
C.4. Other Benefits. In addition to the amounts described in Sections
C.1. and C.2., and C.3., Executive shall be entitled to his Stock Incentive Plan
benefits, if any, under Section 3(b) (Existing Awards) and Section 3(c) (New
Stock Awards), and, subject to Section C.1(a)(ii) above, to the payment of
vested benefits under the plans described in Section 3(f) (Qualified Plans;
Other Deferred Compensation Plans).
C.5. Noncompetition; No Mitigation of Damages; etc.
(a) Noncompetition. Upon a Change of Control, any agreement by
Executive not to engage in competition with the Company subsequent to
the termination of his employment, whether contained in an employment
contract or other agreement, shall no longer be effective.
C-3
(b) No Duty to Mitigate Damages. Executive's benefits under
this Exhibit C shall be considered severance pay in consideration of
his past service and his continued service from the date of this
Agreement, and his entitlement thereto shall neither be governed by any
duty to mitigate his damages by seeking further employment nor offset
by any compensation which he may receive from future employment.
(c) Legal Fees and Expenses. The Company shall pay all legal
fees and expenses, including but not limited to counsel fees,
stenographer fees, printing costs, etc. reasonably incurred by
Executive in contesting or disputing that the termination of his
employment during a Standstill Period is for Cause or other than for
good reason (as defined in the definition of Change of Control
Termination) or obtaining any right or benefit to which Executive is
entitled under this Agreement following a Change of Control. Any amount
payable under this Agreement that is not paid when due shall accrue
interest at the prime rate as from time to time in effect at Bank of
America, or its successor, until paid in full.
(d) Notice of Termination. During a Standstill Period,
Executive's employment may be terminated by the Company only upon
thirty (30) days' written notice to Executive.
C-4