EXHIBIT 10.18
THE TJX COMPANIES, INC. SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
(2005 RESTATEMENT)
Article 1. - Introduction
1.1. In General. The Supplemental Executive Retirement Plan, established
in 1981, was amended and restated in 1984 and 1992 and has subsequently been
further amended. The 2005 amendment and restatement of the Plan set forth herein
is intended inter alia to conform the Plan to the requirements of Section 409A,
including the transition rules and exemptive relief provisions thereunder, and
shall be construed consistent with that intent. Notwithstanding the foregoing,
neither the Company nor any of its officers or directors, nor any other person
charged with administrative responsibilities under the Plan, shall be liable to
any employee or former employee of the Company, or to any spouse or other
beneficiary of any such employee or former employee, by reason of the failure of
any benefit hereunder to comply with the requirements of Section 409A.
1.2. Purpose. The purpose of the amended and restated Plan set forth
herein is to provide certain designated employees with retirement benefits
supplemental to those payable under the Company's tax-qualified retirement
plans.
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Article 2. - Definitions
2.1. "Average Compensation" shall mean the average of the Key Employee's
Compensation over the five (5) full calendar years yielding the highest such
average and occurring during the last ten (10) calendar years prior to the
earlier of the Key Employee's attainment of age 65 or separation from service
with the Company. In the case of a Key Employee who becomes disabled as defined
in the Company's long-term disability plan, Average Compensation shall be
determined on the basis of the five (5) full calendar years yielding the highest
such average and occurring during the last ten (10) calendar years of the Key
Employee's employment with the Company prior to commencement of benefits under
the Company's long-term disability plan. If the Key Employee has not completed
five full calendar years of employment prior to the commencement of benefits
under the Company's long-term disability plan, Average Compensation shall be
based on the number of full calendar years he or she was employed by the Company
prior to the commencement of such benefits.
2.2. "Beneficiary" shall mean a beneficiary entitled to receive certain
death benefits under the Plan who has been designated as such by the Key
Employee in writing in a form and manner acceptable to the Committee.
2.3. "Code" shall mean the Internal Revenue Code of 1986, as the same
presently exists and as the same may hereafter be amended, or any successor
statute of similar purpose. References to specific sections of the Code shall be
considered references to identifiable similar provisions of successor statutes.
2.4. "Committee" shall mean the Executive Compensation Committee of the
Board of Directors of The TJX Companies, Inc.
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2.5. "Company" shall mean The TJX Companies, Inc. and any wholly-owned
subsidiaries; provided, in determining whether an individual has separated from
the service of the Company, "Company" shall include The TJX Companies, Inc. and
any corporation or other trade or business that would be aggregated with The TJX
Companies, Inc. under Sections 414(b) or 414(c) of the Code and "separation from
service" shall be construed consistent with the rules under Section 409A.
2.6. "Compensation" shall mean, for any calendar year, a Key Employees
actual base salary earned and any short-term incentives awarded during the
calendar year (before taking into account any reduction in base salary or
short-term incentives pursuant to a salary reduction agreement under Section
401(k) or Section 125 of the Code). Any base salary or short-term incentives
that are deferred under the TJX Companies, Inc. General Deferred Compensation
Plan or The TJX Companies, Inc. Executive Savings Plan shall be included as
"Compensation" for the calendar year in which the salary is earned or short-term
incentives are awarded but not included for the calendar year in which such
deferred compensation is paid. By way of example and not by way of limitation,
Compensation shall not include employer contributions to The TJX Companies, Inc.
Retirement Plan, Matching Contributions under The TJX Companies, Inc. General
Savings/Profit Sharing Plan, or any amounts credited to the Employer Credit
Account under The TJX Companies, Inc. Executive Savings Plan; income or gains
resulting from the receipt, sale, exchange, exercise or other disposition of
stock or stock options, awards and benefits, including stock appreciation
rights, under The TJX Companies, Inc. Stock Incentive Plan or any other
long-term incentive plan of the Company; expense reimbursements or payments in
lieu of expense reimbursement; auto allowances, financial counseling fees,
tuition reimbursements or the value of other fringe benefits provided by the
Company or any other
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employer (even if wholly or partially currently taxable as income to the Key
Employee); or employer contributions to Social Security made by the Company or
another employer on behalf of the Key Employee.
2.7. "Deferred Compensation Amount" shall mean any income deferred under
The TJX Companies, Inc. General Deferred Compensation Plan or the TJX Companies,
Inc. Executive Savings Plan which (i) but for the deferral would be included in
the definition of "Compensation" under The TJX Companies, Inc. Retirement Plan
(without regard to the limitations described in Code Section 401(a) (17)) and
(ii) is paid to the Key Employee after he or she retires or terminates. For the
avoidance of doubt, "Deferred Compensation Amounts" shall be disregarded to the
extent (as determined by the Committee in its sole discretion) the reduction in
the Article 7 formula benefit under The TJX Companies, Inc. Retirement Plan
attributable to the non-inclusion in "Compensation" described in clause (i)
above of such Amounts is offset by the any benefit under The TJX Companies, Inc.
Retirement Plan that is supplemental to the formula benefit described in Article
7 thereof.
2.8. "Executive Savings Plan Benefit" shall mean an annual benefit
computed by converting the value of the Key Employee's Employer Credit Account
under The TJX Companies, Inc. Executive Savings Plan to a life annuity
commencing at age 65. The Committee shall determine the actuarial factors used
in converting the Employer Credit Account to a life annuity.
2.9. "Interest Rate" shall mean the "Interest Rate" as in effect at the
relevant time under The TJX Companies, Inc. General Deferred Compensation Plan
(or, if at such time there is no such rate in effect under The TJX Companies,
Inc. General Deferred Compensation Plan, the rate then used under The TJX
Companies, Inc. Retirement Plan for determining lump-sum
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actuarial equivalency). If at the relevant determination date The TJX Companies,
Inc. Retirement Plan no longer exists or no longer provides for lump sum
actuarial equivalency determinations, the Committee shall apply reasonable
interest rate consistent with Section 409A.
2.10. "Key Employee" shall mean a Category A Key Employee, Category B Key
Employee or Category C Key Employee as determined pursuant to Article 3.
2.11. "Plan" shall mean The TJX Companies, Inc. Supplemental Executive
Retirement Plan (2005 Restatement) as set forth in this document, including any
and all amendments hereto and restatements hereof.
2.12. "Primary Social Security Benefit" shall mean the annual primary
insurance amount to which the Key Employee is entitled or would, upon
application therefor, become entitled at age 65 under the provisions of the
Federal Social Security Act as in effect on the Key Employee's termination date
assuming that the Key Employee will have no income after termination which would
be treated as wages for purposes of the Social Security Act.
2.13. "Retirement Agreement" shall mean an individual agreement between a
Category A Key Employee and the Company providing for supplemental executive
retirement benefits.
2.14. "Retirement Plan Benefit" shall mean the annual benefit payable at
age 65 under The TJX Companies, Inc. Retirement Plan on a life annuity basis.
2.15. "Savings/Profit Sharing Plan Benefit" shall mean an annual benefit
computed by converting the value of the Key Employee's Matching Contribution
Account payable under The TJX Companies, Inc. General Savings/Profit Sharing
Plan to a life annuity commencing at age 65. The Committee shall determine the
actuarial factors used in converting the Matching Contribution Account to a life
annuity.
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2.16. "Section 409A" shall mean Section 409A of the Code.
2.17. "Years of Service" shall mean the total completed years and months
of a Key Employee's uninterrupted service with the Company from the date that
the Key Employee's commences employment with the Company until the earliest of
termination of employment, retirement or age 65. A leave of absence approved by
the Company shall not constitute an interruption of service but the period of
such absence shall be excluded from Years of Service for all purposes under the
Plan.
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Article 3. - Key Employees
3.1. Designation of Key Employees. An employee or retired former employee
of the Company shall be a Key Employee if, and only if, designated as such by
the Committee, except that designation as a Category C Key Employee shall be
automatic (based on the application of specified limits as described in Section
3.4 below) except as the Committee may limit eligibility for such benefits.
Subject to Section 409A, the most recent "Category" to which such Key Employee
is assigned determines the nature of the benefits to which he or she may become
entitled under this Plan.
3.2. Category A Key Employee. Only the following shall be treated as
having been designated as Category A Key Employees: (i) an executive employee of
the Company who has a Retirement Agreement that refers directly to benefits
payable under this Plan, or (ii) any other employee with a Retirement Agreement
who is designated as a Category A Key Employee.
3.3. Category B Key Employee. A Category B Key Employee is a key employee
of the Company who has been designated by the Committee as eligible to receive
the benefits provided under Article 5 of this Plan. If, however, at the time a
Category B Key Employee retires or otherwise terminates employment, the benefit
under Article 6 of this Plan would provide a greater benefit to such Key
Employee than the benefit provided under Article 5 of this plan, then such Key
Employee will be deemed designated a Category C Key Employee and will receive
the benefit provided under Article 6 in lieu of that provided under Article 5.
3.4. Category C Key Employee. A Category C Key Employee is an employee of
the Company with a fully vested right to benefits under The TJX Companies, Inc.
Retirement Plan whose benefits under that plan are limited by reason of (i) the
operation of the limitation provisions of Section 401(a) (17) or Section 415 of
the Code, and/or (ii) the deferral of certain
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income which, but for the deferral, would be included in the definition of
"Compensation" under The TJX Companies, Inc. Retirement Plan.
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Article 4. - Category A Key Employee Benefit
4.1. Category A Key Employee Benefit. Each present or future Category A
Key Employee (and, where so provided in the individual Retirement Agreements
between the Company and such Key Employee, the surviving spouse or other
beneficiary(ies) of such Key Employee) shall receive the benefit provided under
the Retirement Agreement with such Key Employee under the terms and subject to
the limitations set forth in said Retirement Agreement, which is incorporated
herein by reference.
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Article 5. - Category B Key Employee Benefit
5.1. Requirement for a Benefit. Each Category B Key Employee retiring at
or after age 55 with 10 or more Years of Service shall be entitled to receive a
supplemental retirement benefit under this Article 5.
5.2. Benefit Formula. The benefit payable at age 65 to a Category B Key
Employee who qualifies for a benefit under Sections 5.1 and who separates from
the service of the Company at or prior to attaining age 65, when expressed as a
monthly benefit payable as a life annuity for the life of the Category B Key
Employee commencing at age 65 (the "tentative life annuity"), shall be
one-twelfth (1/12) of the product of (a) and (b), such product offset (reduced)
by the sum of (c), (d) , (e) and (f), where:
(a) is two and one-half percent (2 1/2%) of the Key Employee's
Average Compensation,
(b) is the number of Years of Service completed by the Key
Employee, up to a maximum of twenty (20) such Years,
(c) is the Key Employee's annual Retirement Plan Benefit,
(d) is the Key Employee's annual Savings/Profit Sharing Plan
Benefit,
(e) is the Key Employee's annual Executive Savings Plan Benefit,
and
(f) is the Key Employee's annual Primary Social Security Benefit.
The lump-sum actuarial equivalent of such tentative life annuity (the "tentative
lump sum amount"), determined in accordance with the rules prescribed in Section
7.2(c) as of the date the Category B Key Employee separates from service, shall
be increased for six months' worth of interest at the Interest Rate in effect at
separation from service and thereafter, if payment is delayed pursuant to
Section 5.3 or by reason of a change in payment election under Section
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7.2(b)(ii), at the rate from time to time in effect until the applicable
determination date for the benefit payable to the Category B Key Employee.
5.3. Separation From Service After Age 65. In the case of each Category B
Key Employee who at age 65 has not yet separated from service with the Company,
there shall be determined (consistent with the rules set forth in Section
7.2(c)), as of the date the Category B Key Employee attains age 65, an opening
lump sum balance equal to the tentative lump sum amount that would have been
determined under Section 5.2 had such Category B Key Employee separated from
service at age 65. Between the date such Category B Key Employee attains age 65
and the date that follows the Category B Key Employee's later separation from
service by six (6) months (or any later payment date determined under Section
7.2(b)(iii)), the opening lump sum balance shall be adjusted for interest at the
Interest Rate from time to time in effect during such period. The actuarial
equivalent of such adjusted lump sum amount, expressed in the applicable form of
payment, shall be paid as determined in accordance with Article 7.
5.4. Death Benefit. Death benefits shall be payable only to the extent
provided in this Section 5.4:
(i) If a Category B Key Employee dies after having become entitled
to a benefit as set forth in Section 5.1 and after separating
from service, but prior to the payment or commencement of such
benefit, there shall be paid to the Category B Key Employee's
Beneficiary, or if there is no Beneficiary surviving, to the
Category B Key Employee's surviving spouse, if any, or
otherwise to the Category B Key Employee's estate, in each
case at or as soon as practicable after the decedent's death,
a lump sum equal to the lump sum benefit that would then have
been payable to
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the Category B Key Employee had the Category B Key Employee
been entitled to payment on such date.
(ii) If a Category B Key Employee dies after having satisfied the
age and service requirements set forth in Section 5.1 but
before separating from service, his or her surviving spouse,
if any, will be entitled to receive, as soon as practicable
following the Category B Key Employee's death, a lump sum
payment that is the actuarial equivalent of the survivor
benefit that would have been payable to the spouse on account
of the Key Employee's death if the Key Employee had separated
from service and commenced receiving benefits on the day six
months following his or her death in a 50% joint and survivor
annuity form (that is, in a form under which the Key Employee
would have received a reduced pension upon retirement and upon
such Key Employee's death one-half of such reduced benefit
would have been payable to the Key Employee's spouse).
Actuarial equivalency for this purpose shall be determined
using an interest assumption equal to the Interest Rate in
effect at the time of the Category B Key Employee's death and
the same mortality assumption as is then used under The TJX
Companies, Inc. Retirement Plan. If at the relevant
determination date The TJX Companies, Inc. Retirement Plan no
longer exists or no longer provides for lump sum actuarial
equivalency determinations, the Committee shall apply
reasonable actuarial assumptions consistent with Section 409A.
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(iii) If the Category B Key Employee survives until the commencement
of benefit payments hereunder but dies before the completion
of such payments, then (A) if the benefit was payable in five
(5) annual installments, the Category B Key Employee's
Beneficiary, or if there is no Beneficiary surviving, the
Category B Key Employee's surviving spouse, if any, or
otherwise the Category B Key Employee's estate shall be paid,
as soon as practicable following the Category B Key Employee's
death, a single lump sum equal to the present value
(determined using the Interest Rate then in effect) of the
remaining installments, and (B) if the benefit was payable as
a joint and survivor annuity under which the Category B Key
Employee's spouse was the survivor annuitant, the Category B
Key Employee's surviving spouse, if any and if the same as the
person to whom the Category B Key Employee was married at the
time such annuity was determined, shall be paid, as soon as
practicable following the Category B Key Employee's death, a
lump sum payment that is the actuarial equivalent of the
survivor portion of such annuity. Actuarial equivalency for
this purpose shall be determined using an interest assumption
equal to the Interest Rate in effect at the time of the
Category B Key Employee's death and the same mortality
assumption as is then used under The TJX Companies, Inc.
Retirement Plan. If at the relevant determination date The TJX
Companies, Inc. Retirement Plan no longer exists or no longer
provides for lump sum actuarial equivalency
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determinations, the Committee shall apply reasonable actuarial
assumptions consistent with Section 409A.
(iv) No death benefit shall be payable under the Plan in any
circumstances other than those described in Section 5.4(i),
(ii) or (iii) above.
5.5. Benefits in the Event of Disability. If a Category B Key Employee
should become disabled as defined by the Company's long-term disability plan,
the Key Employee will be credited with Year(s) of Service for the period in
which he or she receives such disability payments for purposes of Sections 5.1
and 5.2. For purposes of meeting the minimum requirements of Section 5.1, the
Key Employee will be deemed to be actively employed while receiving long-term
disability benefits. Long-term disability payments, however, will not be
included in determining Compensation. A Key Employee who is disabled shall be
entitled to benefits only upon separation from service in accordance with the
Company's long-term disability practices and policies.
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Article 6. - Category C Key Employee Benefit
6.1. Category C Key Employee Benefits. Each Category C Key Employee who
has a fully vested right to benefits under The TJX Companies, Inc. Retirement
Plan shall be entitled to receive a benefit under this Plan equal to the
difference between (a) and (b) below, where
(a) is the benefit the Key Employee would have received under The
TJX Companies, Inc. Retirement Plan on a life annuity basis,
if (1) neither the limitations of Code Sections 415(b) or
415(e), whichever is applicable, nor the limitations of Code
Section 401(a)(17) existed and/or (2) the Key Employee did not
have any Deferred Compensation Amounts; and
(b) is the benefit which the Key Employee is actually entitled to
receive under The TJX Companies, Inc. Retirement Plan on a
life annuity basis.
The lump-sum actuarial equivalent of such tentative life annuity,
determined in accordance with the rules prescribed in Article 7 as of the date
the Category C Key Employee separates from service, shall be increased for six
months' worth of interest at the Interest Rate then in effect, and thereafter
(if necessary because in a delay in payment under Section 7.2(b)(iii)) at the
Interest Rate from time to time in effect, and the actuarial equivalent of such
adjusted lump sum amount, expressed in the applicable form of payment determined
in accordance with Article 7, shall be paid or commence to be paid six months
and one day following the Category C Key Employee's separation from service or
later as provided in Section 7.2(b)(iii).
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Article 7. - Methods of Benefit Payment
7.1. Category A Key Employees. Benefits payable to Category A Key
Employees shall be paid in the manner prescribed in the Retirement Agreement
providing for such benefits, consistent with the requirements of Section 409A.
If the Retirement Agreement to which reference is made does not specify the
manner in which such benefits are to be paid, the manner in which such benefits
are distributed and the timing of such distributions shall be determined by
reference to the provisions of The TJX Companies, Inc. Retirement Plan, as
though such benefits were being provided under that plan; provided, that if such
benefits cannot, consistent with Section 409A, be distributed in accordance with
the provisions of The TJX Companies, Inc. Retirement Plan or if The TJX
Companies, Inc. Retirement Plan no longer exists, they shall instead be
distributed in the same manner as benefits payable to a Category B Key Employee.
7.2. Category B Key Employees.
(a) Available Forms of Payment. The benefit payable hereunder to a
Category B Key Employee shall be paid in one of the following
forms:
(i) either five (5) or ten (10) substantially equal
installments commencing (except as provided at Section
7.2(b)(iii) below) six months and one day following the
date on which the Category B Key Employee separates from
service with the Company;
(ii) a single lump-sum payment payable (except as provided at
Section 7.2(b)(iii) below) six months and one day
following the date on which the Category B Key Employee
separates from service with the Company; or
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(iii) an annuity payable in a form generally available under
The TJX Companies, Inc. Retirement Plan as of the date
the Category B Key Employee selects such form of payment
hereunder (whether or not the Category B Key Employee
participates in The TJX Companies, Inc. Retirement Plan
and whether or not such form is available under The TJX
Companies, Inc. Retirement Plan as of the date the
Category B Key Employee's benefit hereunder commences),
such annuity to be paid commencing (except as provided
at Section 7.2(b)(iii) below) six months and one day
following the date on which the Category B Key Employee
separates from service with the Company.
The form and manner of payment of a Category B Key Employee's
benefit shall be determined, from among these alternatives, in
accordance with (b) below.
(b) Election Provisions. The form in which a Category B Key
Employee's benefit hereunder is paid shall be determined as
follows:
(i) Except as otherwise elected in accordance with this
Section 7.2(b), each Category B Key Employee's benefit
hereunder shall be paid in five (5) annual installments
as determined under (a)(i) above.
(ii) Each Category B Key Employee may elect to have his or
her benefit hereunder paid in another form described in
Section 7.2(a) above, but only if such election is made
(A) in writing in a form and manner acceptable to the
Committee, and (B) at least twelve
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(12) months prior to the date the Category B Key
Employee separates from service with the Company. No
election made under this Section 7.2(b)(ii) shall take
effect until twelve (12) months after it is made. Any
change election made in accordance with this Section
7.2(b)(ii) shall be binding on the Category B Key
Employee when made and may be altered only by a
subsequent change election that complies with the
requirements of this Section 7.2(b)(ii).
(iii) Except as provided in Section 7.2(b)(iv) or Section
7.2(b)(v) below, if a Category B elects a change in
payment form pursuant to Section 7.2(b)(ii) above,
payment (or, in the case of installments or an annuity,
commencement of payment) of the benefit payable under
the new form of payment shall be delayed by five years
and one day measured from the date on which the
pre-change form of payment would have been made or would
have commenced to be made. For example, (A) under a
valid change in payment form from lump sum to
installments or to a life annuity, the first installment
payment or the first annuity payment, as the case may
be, shall be made five years and one day after the date
the lump sum would otherwise have been paid, and (B)
under a valid change from an installment or annuity form
of payment to a lump sum payment, the lump sum shall be
paid five years and one day after the first installment
or annuity payment would have been made. In
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any case in which a delay in payment or commencement of
payment is required under this Section 7.2(b)(iii), the
lump sum amount used to calculate the actuarially
equivalent payment to the Category B Key Employee shall
continue to be credited with interest as described in
Section 5 until payment is made or commences.
(iv) Notwithstanding Section 7.2(b)(ii) and Section
7.2(b)(iii) above, a Category B Key Employee as to whom
the applicable form of payment (pursuant to a prior
election under Section 7.2(b)(ii)) is a life annuity or
a joint and survivor annuity described in Prop. Regs.
Section 1.409A-2(b)(2)(ii) or successor guidance may, to
the extent consistent with Section 409A, elect in
writing, in a form and manner acceptable to the
Committee, to have his or her benefit hereunder payable
in another such annuity form that is available under
Section 7.2(a), without regard to whether such election
is made at least twelve (12) months in advance and
without any required delay in the commencement of such
payment under Section 7.2(b)(iii) above, provided that
no such change election shall be effective if made on or
after the date the first annuity payment is made.
(v) The Committee may, consistent with Section 409A and the
transition rules thereunder, permit a Category B Key
Employee or former Category B Key Employee to elect an
alternative form of
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payment from among those available under Section 7.2(a)
without regard to the limitations of Section 7.2(b)(ii)
or Section 7.2(b)(iii) above if (A) such election is in
writing and made in a form and manner acceptable to the
Committee on or before December 31, 2006 (except that
with respect to an amount that would be paid or commence
to be paid prior to calendar 2007, this Section
7.2(b)(v) shall apply only if such change election is
made by December 31, 2005), and (B) is made not later
than six months prior to the later of separation from
service or the date the benefit would have commenced to
be paid absent such election.
(vi) Notwithstanding Sections 7.2(b)(i), (ii), (iii), (iv)
and (v) above, a Category B Key Employee who commenced
receiving a benefit under the Plan (as in effect prior
to this amendment and restatement) prior to January 1,
2005 shall continue to receive his or her benefit in
accordance with the payment terms then in effect. It is
the intent of this restatement that nothing herein shall
be construed as subjecting to the requirements of
Section 409A any benefit payable pursuant to the
preceding sentence. In the case of a Category B Key
Employee not described in the preceding sentence who
separated from service prior to December 1, 2005,
benefits under the Plan shall be paid, notwithstanding
Sections 7.2(b)(i), (ii), (iii), and (iv) but subject to
Section 7.2(b)(v) above, in accordance with the payment
terms determined in connection
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with such termination, to the extent such payment terms
are consistent with Section 409A (as applicable).
(c) The amounts payable to a Category B Key Employee under the
applicable payment shall be determined as follows:
(i) First, there shall be determined the "tentative lump
sum" amount referred to in Section 5.2. The tentative
lump sum amount shall equal the actuarial equivalent
present value of the annuity described in Section 5.2,
determined as of the date of the Category B Key
Employee's separation from service (or attainment of age
65 if earlier) using an interest assumption equal to the
Interest Rate then in effect and the same mortality
assumption as is then used under The TJX Companies, Inc.
Retirement Plan. If at the relevant determination date
The TJX Companies, Inc. Retirement Plan no longer exists
or no longer provides for lump sum actuarial equivalency
determinations, the Committee shall apply reasonable
actuarial assumptions consistent with Section 409A.
(ii) Second, the tentative lump sum amount determined under
Section 7.2(c)(i) above shall be increased by in
interest factor as described in Section 5.2 or Section
5.3, as applicable.
(iii) If the benefit payable hereunder is payable as a lump
sum, the amount of the payment shall equal the adjusted
lump sum amount determined under Section 7.2(c)(ii)
above.
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(iv) If the benefit is payable in five (5) annual
installments, each installment shall equal the level
annual payment amount which, if payable in five
successive annual installments, would have the same
present value (using the same interest assumption as
would be used under Section 7.2(c)(i) above if the
determination under Section 7.2(c)(i) were made as of
the date of the first annual installment) as the
adjusted lump sum value determined under Section
7.2(c)(ii) above.
(v) If the benefit is payable as an annuity, the annuity
shall have an actuarially equivalent value, determined
using the same actuarial assumptions as would be used
under Section 7.2(c)(i) above if the determination were
made as of the date of the first annuity payment, equal
to the adjusted lump sum value determined under Section
7.2(c)(ii) above.
7.3. Category C Key Employees. Benefits payable to Category C Key
Employees shall be paid in the same manner as benefits payable to a Category B
Key Employee. Rules analogous to those under Section 7.2(b)(vi) shall apply for
purposes of this Section 7.3.
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Article 8. - Divestiture
8.1. Divestiture of Category A Key Employee. Category A Key Employees
shall be subject to divestiture of benefits to the extent that the Retirement
Agreement(s) pursuant to which such benefits are included in the Plan so
provide.
8.2. Competition. The Committee shall have the authority to divest the
benefits under this Plan for any Category B or C Key Employee who separates from
service voluntarily at any time, including by reason of retirement or
disability, and who within two years following such separation, directly or
indirectly, is a partner or investor in or engages in any employment,
consulting, or fees-for-services arrangement with any business which is a
competitor of The TJX Companies, Inc. and its subsidiaries, or undertakes any
planning to engage in any such business. A business shall be deemed a competitor
of The TJX Companies, Inc. and its subsidiaries if and only if (i) it shall then
be so regarded by retailers generally, or (ii) it shall operate an off-price
apparel, off-price footwear, off-price jewelry, off-price accessories, off-price
home furnishings and/or off-price home fashions business, including any such
business that is store-based, catalogue-based, or an on-line, "e-commerce" or
other off-price internet-based business; provided, that the mere application for
employment with a competitive business shall not be treated as prohibited
planning to engage in such business. A Category B Key Employee or Category C Key
Employee will not be deemed to have violated the provisions of this Section 8.2
merely by reason of being engaged in an employment, consulting or other
fees-for-services arrangement with an entity that manages a private equity,
venture capital or leveraged buyout fund that in turn invests in one or more
businesses deemed competitors of the Company and its Subsidiaries under this
Section 8.2, provided that (A) such fund is not intended to, and does not in
fact, invest primarily in such businesses, and (B) the Category B Key Employee
or Category C
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Key Employee demonstrates to the reasonable satisfaction of the Company that his
or her arrangement with such entity will not involve the provision of
employment, consulting or other services, directly or indirectly, to any such
business or to the fund with respect to its investment or proposed investment in
any such business and that he or she will not participate in any meetings,
discussions, or interactions in which any such business or any such proposed
investment is proposed to be or is likely to be discussed. Each Category B Key
Employee and Category C Key Employee by participating in the Plan 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 Section 8.2
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.
A Key Employee shall notify the Company immediately upon his or her
securing employment or becoming self-employed during the two years following
voluntary termination of employment, and shall furnish to the Committee written
evidence of his or her compensation earned from any such employment or
self-employment, in each case promptly following any request therefor by the
Committee.
Any Key Employee may inquire of the Committee in writing whether any
proposed act shall be considered competition under this section 8.2 and the
Committee shall provide a prompt reply.
If any Key Employee covered under this Section 8.2 engages in a business
determined by the Committee to be a competitor, the Committee shall give notice
in writing to the Key
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Employee that unless a written appeal is submitted by the Key Employee to the
Committee within thirty (30) days, his or her benefits under this Plan will be
forfeited. The Committee in its discretion may also provide that if the Key
Employee ceases to engage in such business his or her benefits under this Plan
will not be forfeited. Upon receipt of the Committee's notice, the Key Employee
shall have 30 days to submit a written appeal of the Committees decision. The
Committee shall review the Key Employees appeal and notify the Key Employee of
its decision within 30 days from receipt of his or her appeal. If the Key
Employee fails to submit an appeal within 30 days, his or her benefits will be
forfeited at the expiration of. the 30-day period; provided, that if the
Committee has determined that such benefits will not be forfeited if the Key
Employee ceases to engage in the competitor business within a specified period,
such benefits will be forfeited only if the Key Employee continues to engage in
such business after the expiration of such specified period.
The provisions of this Section 8.2 shall cease to have effect upon the
occurrence of a Change of Control as defined in the Company's Stock Incentive
Plan or successor plan, as from time to time amended. The provisions of this
section 8.2 shall not apply to a Key Employee who voluntarily terminates
employment at a time when he or she has entered into an employment agreement
with The TJX Companies, Inc. or a related company containing an express
non-competition provision; instead, a violation by the Key Employee of such
provision shall result in the automatic forfeiture of benefits under this Plan
for such Key Employee.
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
Section 8.2 shall be determined to be unlawful or otherwise unenforceable, then
the coverage of this Section 8.2 shall be deemed to be
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restricted as to duration, geographical scope or otherwise, as the case may be,
to the extent, and only to the extant, enforceable in the particular
jurisdiction in which such determination is made.
8.3. Termination for Cause. Notwithstanding anything to the contrary
contained herein, if a Key Employee's employment is terminated for cause, all
benefits otherwise payable under this Plan shall be forfeited. For this purpose,
termination for cause shall mean termination of employment by reason of the Key
Employee's dishonesty, conviction of a felony, gross neglect of duties, or
conflict of interest. If, subsequent to termination of employment for other
reasons, and prior to the payment of all benefits hereunder, it is discovered
that a Key Employee engaged in acts or conduct which, had they been discovered,
would have resulted in termination of employment for cause, his or her
employment will be deemed to have been terminated for cause, and all unpaid
benefits hereunder shall be forfeited.
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Article 9. - Funding and Administration
9.1. Source of Funds. All payments of benefits hereunder and all costs of
administration of this Plan shall be paid in cash from the' general funds of the
Company, and no special or separate fund shall be required to be established or
other segregation of assets required to be made to assure such payments.
However, the Company may, in its discretion, establish a bookkeeping account or
reserve to meet its obligations hereunder-and may establish a so-called "rabbi
trust" or similar grantor trust, and may fund such trust, for the purpose of
providing benefits hereunder, except that no such use of a trust shall violate
the requirements of Section 409A. Except as provided in the preceding sentence,
nothing contained in the Plan and no action taken pursuant to the provisions of
this Plan shall create or be construed to create a trust of any kind, or a
fiduciary relationship between the Company or the Committee and any employee or
other person. To the extent that any person acquires a right to receive payments
under the Plan, such right shall be no greater than the right of any unsecured
general creditor of that person's employer or former employer.
9.2. Administration of Plan. The Plan shall be administered by the
Committee, which shall have the full power, discretion and authority to
interpret, construe and administer the Plan and any part thereof. The Committee
may delegate such administrative responsibilities as it deems appropriate to
officers or employees of the Company or to others (in which case, to the extent
of such delegation, references herein to the Committee shall be deemed to
include a reference to the person(s) to whom such responsibilities have been
delegated) and may employ legal counsel, consultants, actuaries and agents as it
deems desirable in the administration of the Plan and may rely on the opinions
of such counsel, the advice of such consultants, and the computations oPound
Sterling such actuaries. No member of the Committee shall be eligible for a
benefit
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under this Plan unless approved by the Board of Directors of The TJX Companies,
Inc. The Committee shall establish claims procedures under the Plan consistent
with the requirements of Section 503 of the Employee Retirement Income Security
Act of 1974, as amended.
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Article 10. - Amendment, Suspension, Termination or Assignment.
10.1. Amendment, Suspension and Termination. The Plan may be amended,
suspended, or terminated in whole or in part at any time and from time to time
by the Committee. No such amendment, suspension or termination shall
retroactively impair or otherwise adversely affect the rights of any person to
benefits under this Plan that have accrued prior to the date of such amendment,
suspension or termination as determined by the Committee, unless such reduction
is by reason of an amendment required by law or regulation of an administrative
agency; provided, however, that the Committee may amend the Interest Rate
without regard to whether such amendment has the effect of decreasing the lump
sum value of the participating Key Employee's benefit.
10.2. Assignment. The rights and obligations of The TJX Companies, Inc.
shall enure to the benefit of and shall be binding upon the successors and
assigns of The TJX Companies, Inc.
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Article 11. - Miscellaneous
11.1. Notices. Each Key Employee shall be responsible for furnishing the
Committee with the current and proper address for the mailing of notices,
reports and benefit payments. Any notice required or permitted to be given shall
be deemed given if directed to the person to whom addressed at such address and
mailed by regular United States mail, first-class and prepaid. If any check
mailed to such address is returned as undeliverable to the addressee, the
mailing of checks will be suspended until the Key Employee or beneficiary
furnishes the proper address.
11.2. Lost Distributees. A benefit shall be deemed forfeited if the
Committee is unable to locate the Key Employee or beneficiary to whom payment is
due, after diligent effort, for a period of at least two (2) years, provided,
however, that the Committee shall have the authority (but not the obligation) to
reinstate such benefit upon the later discovery of a proper payee for such
benefit. Mailing of a notice in writing, by certified or registered mail, to the
last known address of the Key Employee and to the beneficiaries of such Key
Employee (if the addresses of such beneficiaries are known to the Committee) not
less frequently than once each year for the two-year period shall be considered
a diligent effort for this purpose.
11.3. Nonalienation of Benefits. None of the payments, benefits or rights
of any Key Employee or beneficiary shall be subject to any claim of any
creditor, and, in particular, to the fullest extent permitted by law, all such
payments, benefits and rights shall be free from attachment, garnishment,
trustee's process, or any other legal or equitable process available to any
creditor of such Key Employee or beneficiary. No Key Employee or beneficiary
shall have the right to alienate, anticipate, commute, pledge, encumber or
assign any of the benefits or
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payments which he or she may expect to receive, contingently or otherwise, under
this Plan, except the right to designate a beneficiary or beneficiaries as
hereinabove provided.
11.4. Reliance on Data. The Company, the Committee and all other persons
associated with the Plan's operation shall have the right to rely on the
veracity and accuracy of any data provided by the Key Employee or by any
beneficiary, including representations as to age, health and marital status.
Such representations are binding upon any party seeking to claim a benefit
through a Key Employee. The Company, the Committee and all other persons
associated with the Plan's operation are absolved completely from inquiring into
the accuracy or veracity of any representation made at any time by a Key
Employee or beneficiary.
11.5. No Contract of Employment. Neither the establishment of the Plan,
nor any modification thereof, nor the creation of any fund, trust or account,
nor the payment of any benefits shall be construed as giving any Key Employee,
or any person whomsoever, the right to be retained in the service of the
Company, and all Key Employees and other persons shall remain subject to
discharge to the same extent as if the Plan had never been adopted.
11.6. Severability of Provision. If any provision of this Plan shall be
held invalid or unenforceable, such invalidity or unenforceability shall not
affect any other provisions hereof, and this Plan shall be construed and
enforced as if such provision had not been included.
11.7. Heirs, Assigns and Personal Representative. This Plan shall be
binding upon the heirs, executors, administrators, successors and assigns of the
parties, including each Key Employee and beneficiary, present and future.
11.8. Payments to Minors, Etc. Any benefit payable to or for the benefit
of a minor, an incompetent person or other person incapable of receipting
thereof shall be deemed paid when paid to such person's guardian or to the party
providing or reasonably appearing to provide for
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the care of such person, and such payment shall fully discharge the Company, the
Committee and all other parties with respect thereto.
11.9. Effect on other Plans. Any benefit payable under the Plan shall not
be deemed salary or other compensation for the purpose of computing benefits
under any employee benefit Plan or other arrangement of the Company for the
benefit of its employees.
11.10. Government Regulations. It is intended that this Plan will comply
with all applicable laws and government regulations, and the Company shall not
be obligated to perform an obligation hereunder in any case where, in the
opinion of the Company's counsel, such performance would result in violation of
any law or regulation.
11.11. Certain Benefits. In any case in which a Key Employee has earned
benefits under a plan or arrangement other than the plans and arrangements
maintained by the Company for its U.S. employees, the offsets under the Plan for
other benefits (e.g., under Section 5.2) shall be adjusted to include, to the
extent determined by the Committee, offsets for such other benefits.
11.12. Heading and Captions. The headings and captions herein are provided
for reference and convenience only, shall not be considered part of the Plan,
and shall not be employed in the construction of the Plan.
11.13. Singular Includes Plural. Except where otherwise clearly indicated
by context, the singular shall include the plural, and vice-versa.
11.14. Controlling Law. This Plan shall be construed and enforced
according to the laws of the Commonwealth of Massachusetts, to the extent not
preempted by Federal law, which shall otherwise control.
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