TRANSITION AND RETIREMENT AGREEMENT
This Transition and Retirement Agreement (this “Agreement”) is made and entered into on March 29, 2018, by and among Xxxxx Xxxxxxxxxxxx (the “Associate”), Walmart Inc., and Wal-Mart Canada Corp., an indirect wholly-owned subsidiary of Walmart Inc. (Walmart Inc. and Wal-Mart Canada Corp. are collectively referred to herein as “Walmart”).
RECITALS
AGREEMENT
NOW, THEREFORE, for good and sufficient consideration, the sufficiency of which the parties acknowledge, the parties agree as follows:
1. | Employment. The Associate shall remain employed by Wal-Mart Canada Corp. on a full-time basis through March 31, 2018, and beginning on April 1, 2018, the Associate shall remain employed by Wal-Mart Canada Corp. on a part-time basis through January 31, 2019 (the “Retirement Date,” unless the parties mutually agree in writing that the Associate shall retire from employment on a different date, in which case such other date shall be the Retirement Date). While employed by Wal-Mart Canada Corp., the Associate shall: |
a) | be available for consultation and advice to Walmart’s management and Board of Directors (the “Board”); |
b) | consult with Walmart’s management on strategic matters, including ongoing and future initiatives relating to Walmart’s International segment; and |
c) |
2. |
a) | Base Salary. Through March 31, 2018, the Associate shall continue to be paid his current annualized base salary of CAD 1,495,566, less applicable withholding. Beginning on April 1, 2018 through the Retirement Date, the Associate’s annualized base salary shall be CAD 1,023,807, less applicable withholding, for a total base salary for the entirety of the fiscal year ending January 31, 2019 (i.e., February 1, 2018 through January 31, 2019) of approximately CAD 1,265,556, less applicable withholding. The Associate’s base salary shall be paid through Wal-Mart Canada Corp.’s regular payroll and on Wal-Mart Canada Corp.’s regular payroll cycle. |
b) |
c) |
d) |
3. |
a) | Transition Payments. The Associate shall receive total transition payments of CAD 5,555,653, less applicable withholding (the “Transition Payments”). As soon as practical after the Retirement Date, but not to exceed 30 calendar days after the Retirement Date, the Associate will receive the first installment of the Transition Payments in a lump-sum payment in the amount of CAD 785,172, less applicable withholding. Thereafter, the Associate shall receive the remaining CAD 4,770,481 of the Transition Payments, less applicable withholding, over a six (6) month period in equal bi-weekly installments beginning at the end of the regularly scheduled pay period that is six (6) months after the Retirement Date. Such amounts are inclusive of all amounts to which the Associate would have been entitled under the Post-Termination Agreement and Covenant Not to Compete entered into as of January 1, 2014 between the Associate and Wal-Mart Canada Corp. (the “Non-Competition Agreement”). |
b) | Unvested Equity. Walmart and the Associate acknowledge that the Associate currently has unvested restricted stock units that have been granted to the Associate under the Walmart Inc. Stock Incentive Plan of 2015 and predecessor equity compensation plans of Walmart (collectively, the “Plan”), which such equity awards are subject to the award notices relating to such grants (the “Awards”). As consideration for the releases set forth in Section 5 of this Agreement and for other good and sufficient consideration, the vesting of certain unvested restricted stock units held by the Associate shall be accelerated to the Retirement Date, as set forth in Exhibit A. All other terms of such restricted stock unit awards, as set forth in the Plan and the Awards, shall continue in full force and effect. All other stock options, restricted stock awards, performance shares, performance equity, and any other equity awards issued to the Associate under Walmart’s equity compensation plans that are not vested as of the Retirement Date shall be forfeited and cancelled as of the Retirement Date. As set forth in Section 2(b) above, all outstanding performance shares and performance equity held by the Associate shall be cancelled and shall not vest. |
4. |
a) |
b) |
c) | Section 409A. Notwithstanding anything contained herein or in any Walmart-sponsored plan to the contrary, the Associate acknowledges that any and all distributions of benefits under any |
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Releases. |
a) | Release and Waiver of Claims. In exchange for, and in consideration of, the payments, benefits, and other commitments described above, the Associate releases Walmart from any and all claims of any kind, whether known or unknown, that arose up to and including the date the Associate signs this Agreement (including claims arising out of or relating to the termination of the Associate’s employment with Walmart). For illustration purposes and not as a limitation, the claims the Associate is releasing include any claims for damages, costs, attorneys’ fees, expenses, compensation or any other monetary recovery. Further, the Associate specifically waives and releases all claims he may have that arose up to and including the date the Associate signs this Agreement (including claims arising out of or relating to the termination of the Associate’s employment with Walmart) regarding veteran’s status; Title VII of the Civil Rights Act of 1964, as amended; the Civil Rights Act of 1991; the Equal Pay Act; the Americans With Disabilities Act of 1990, as amended; the Rehabilitation Act of 1973, as amended; the Age Discrimination in Employment Act, as amended (“ADEA”); the Family and Medical Leave Act (“FMLA”), as amended; Sections 1981 through 1988 of Title 42 of the United States Code, as amended; the Genetic Information Non-Discrimination Act; the Immigration Reform and Control Act, as amended; the Workers Adjustment and Retraining Notification Act (“WARN”), as amended; any applicable state WARN-like statute; the Occupational Safety and Health Act, as amended; the Xxxxxxxx-Xxxxx Act of 2002; the Consolidated Omnibus Budget Reconciliation Act (COBRA); the Employee Retirement Income Security Act of 1974, as amended; the National Labor Relations Act; the Fair Labor Standards Act (FLSA); the Massachusetts Overtime Law; the Massachusetts Payment of Wages Law; the Massachusetts Fair Employment Practices Act; the New Jersey Conscientious Employee Protection Act, N.J.S.A. 34:19-1, et seq.; the New Jersey Law Against Discrimination; the West Virginia Human Rights Act, W. Va. CSR §77-6-3; the California Fair Employment and Housing Act; the California Family Rights Act; the California Labor Code; the Wage Orders of the California Industrial Welfare Commission; the California Unfair Business Practices law (Cal. Bus. and Prof. Code Sec. 17200, et seq.); California WARN (CA Labor Code Section 1400-1408); and all state or local statutes, ordinances, or regulations regarding anti-discrimination employment laws, as well as all matters arising under federal, state, or local law involving any tort, employment contract (express or implied), public policy, wrongful discharge, retaliation, and leaves of absence claims; and any claims related to emotional distress, mental anguish, benefits, or any other claim brought under local, state or federal law. |
b) | In addition, and in consideration of the terms and monetary consideration provided to the Associate, the receipt and sufficiency of which is hereby acknowledged, the Associate hereby releases and forever discharges Walmart and its past and present officers, directors, employees, and agents, and their successors and assigns jointly and severally from any and all actions, causes of action, contracts and covenants, whether express or implied, claims and demands for damages, indemnity, entitlements, costs, interest, loss or injury of every nature and kind whatsoever arising to the date hereof, which the Associate may have had, may now have or may have and without limiting the generality of the foregoing, all claims in any way relating to the hiring of, the employment by or the termination of employment of the Associate by Walmart and the Associate hereby specifically covenants, represents and warrants to Walmart that the Associate has no further claim against Walmart relating to or arising out of his employment or termination of employment which specifically includes but is not limited to any claims for notice, pay in lieu of notice, wrongful dismissal, termination pay, severance pay, bonus, overtime pay, incentive compensation, benefits, interest, vacation pay or any claims under the Ontario’s Employment Standards Act, 2000, the Ontario Human Rights Code, or otherwise. The Associate further represents that he is aware of his rights under Ontario’s Human Rights Code and confirms that Walmart has complied |
with the
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Ontario Human Rights Code in respect of his employment and/or termination from such employment.
c) | Release of Age Discrimination Claims. With respect to the Associate’s release and waiver of claims under the ADEA as described in Section 5 above, the Associate agrees and acknowledges the following: |
(i) | The Associate has reviewed this Agreement carefully and understands its terms and conditions. The Associate has been advised, and by this Agreement is again advised, to consult with an attorney of the Associate’s choice prior to entering into this Agreement. |
(ii) | The Associate shall have twenty-one (21) days from receipt of this Agreement to consider and execute the Agreement by fully executing it below and returning it to Walmart; otherwise, the terms and provisions of this Agreement become null and void. The Associate agrees that any modifications, material or otherwise, made to this Agreement do not restart or affect in any manner the original review period. |
(iii) | The Associate will have a period of seven (7) calendar days after Associate signs the Agreement during which to revoke the Agreement. The Associate must provide written notice of revocation during the seven (7) day period to Xxxxxx Xxxxxxx, Senior Vice President, Global Total Rewards. Any revocation within this period must expressly state, “I hereby revoke my Agreement.” The written revocation must be delivered to Xxxxxx Xxxxxxx, Senior Vice President, Global Total Rewards, or to her successor, and be postmarked within seven (7) calendar days of the Associate’s execution of this Agreement. This Agreement will not become effective or enforceable until the revocation period has expired. If the last day of the revocation period is a Saturday, Sunday, or legal holiday, then the revocation period will not expire until the next following day that is not a Saturday, Sunday, or legal holiday. |
(iv) | The Associate knows that he is waiving his rights under the ADEA and does so voluntarily. The Associate realizes the waiver does not include any ADEA rights which may arise after the Associate signs this Agreement. By signing this Agreement, the Associate acknowledges that he is receiving consideration that the Associate would not otherwise be entitled to receive. |
(v) |
d) | Limitation of Release. Nothing in this Agreement releases claims for workers’ compensation or unemployment benefits. Nothing in this Agreement prevents Associate from pursuing administrative claims with or otherwise assisting government agencies, including engaging in or participating in an investigation or proceeding conducted by, or providing information to, the EEOC, NLRB, the Securities and Exchange Commission, or any federal, state or local agency charged with the enforcement of employment or other laws. Associate acknowledges and agrees, however, that the transition payments set forth in Section 3 of this Agreement are in full satisfaction of any amounts to which the Associate might be entitled from any claim against Walmart, and that, as a result of this release and waiver of claims, the Associate is not entitled to receive any additional individual monetary relief from Walmart. This release and waiver of claims will not apply to rights or claims that may arise after the effective date of this Agreement. This Agreement is not intended to release and does not release or include claims that the law states cannot be waived by private agreement, nor does it prevent the Associate from receiving any whistleblower or similar award. Nothing in this subparagraph or in this Agreement is intended to limit or restrict any rights the Associate may |
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e) |
6. | Confidential Information. The Associate agrees that he will not at any time, whether prior to or subsequent to the Retirement Date, directly or indirectly use any Confidential Information (as defined below) obtained during the course of his employment with Walmart or otherwise, except as previously authorized by Walmart in writing. Additionally, the Associate shall not at any time, whether prior to or subsequent to the Retirement Date, disclose any Confidential Information obtained during the course of his employment with Walmart or otherwise, unless such disclosure is (a) previously authorized by Walmart in writing, (b) required by applicable legal proceeding, or (c) as permitted by Section 18(a) of this Agreement. In addition, the Associate shall not disclose any information for which Walmart holds a legally recognized privilege against disclosure or discovery (“Privileged Information”), or take any other action that would cause such privilege to be waived by Walmart. With respect to (b) above only, in the event that the Associate is required by applicable legal proceeding (including, without limitation, by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand, or other legal proceeding) to disclose any Confidential Information or Privileged Information, the Associate shall provide Walmart with prompt prior written notice of such requirement. The Associate shall also, to the extent legally permissible, provide Walmart as promptly as practicable with a description of the information that may be required to be disclosed (and, if applicable, the text of the disclosure itself) and cooperate with Walmart (at Walmart’s expense) to the extent Walmart may seek to limit such disclosure, including, if requested, by taking all reasonable steps to resist or narrow any such disclosure or to obtain a protective order or other remedy with respect thereto. If a protective order or other remedy is not obtained and disclosure is legally required, the Associate shall (a) disclose such information only to the extent required in the written opinion of the Associate’s legal counsel, and (b) give advance notice to Walmart of the information to be actually disclosed as far in advance as is reasonably possible. In any such event, the Associate and his legal counsel shall use reasonable commercial efforts to ensure that all Confidential Information or Privileged Information that is so disclosed is accorded confidential treatment by the recipient thereof. |
“Confidential Information” means information pertaining to the business of Walmart, and includes, without limitation, information regarding processes, suppliers, consultants and service providers (including the terms, conditions, or other business arrangements with suppliers, consultants and service providers), advertising, marketing, and external and internal communications plans and strategies, labor matters and strategies, government relations plans and strategies, litigation matters and strategies, Foreign Corrupt Practices Act investigatory and compliance information and strategies, tax matters and strategies, community relations and public affairs plans and strategies, charitable giving plans and strategies, sustainability plans and strategies, profit margins, seasonal plans, goals, objectives, projections, compilations, and analyses regarding Walmart’s business, salary, staffing, compensation, promotion, diversity objectives and other employment-related data, and any know-how, techniques, practices or non-public technical information regarding the business of Walmart. “Confidential Information” does not include information that is or becomes generally available to the public other than
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as a result of a disclosure by the Associate or any of the Associate’s representatives or information that Walmart has authorized the Associate to disclose.
7. | Cooperation. |
a. |
c. |
8. |
9. |
a) | The Associate has read and understands the provisions of Walmart’s Statement of Ethics and agrees to abide by the provisions thereof to the extent applicable to former Walmart associates. The Associate further acknowledges that the Associate has complied with the applicable Statement of Ethics, as well as with all applicable laws, rules and regulations, during the Associate’s employment with Walmart. The discovery of a failure to abide by the Statement of Ethics and/or comply with all applicable laws, rules or regulations, whenever discovered, shall, in addition to any other remedies under this Agreement, entitle Walmart to suspend and recoup any payments paid or due under this Agreement or any other agreements between the parties. |
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b) |
10. | Covenant not to Compete. Due to the strategic, sensitive and far-reaching nature of the Associate’s current and former positions at Walmart, Walmart Canada Corp., and Asda Group Limited, and the Confidential Information to which the Associate is and has been exposed, Associate agrees, promises, and covenants that: |
a) | For a period of one (1) year from the date on which Associate’s employment with Walmart terminates, and regardless of the cause or reason for such termination, Associate will not directly or indirectly: |
(i) | own, manage, operate, finance, join, control, advise, consult, render services to, have a current or future interest in, or participate in the ownership, management, operation, financing, or control of, or be employed by or connected in any manner with, any Competing Canadian Business as defined below in Section 10(b)(i), any Competing US Business as defined below in Section 10(b)(ii), and/or any Global Retail Business as defined below in Section 10(b)(iii); and/or |
(ii) | participate in any other activity that risks the use or disclosure of Confidential Information either overtly by the Associate or inevitably through the performance of such activity by the Associate; and/or |
(iii) | solicit for employment, hire or offer employment to, or otherwise aid or assist any person or entity other than Walmart in soliciting for employment, hiring, or offering employment to, any Officer, Officer Equivalent or Management Associate of Walmart, or any of its subsidiaries or affiliates, including Walmart Canada Corp. |
b)(i) | For purposes of this Agreement, the term “Competing Canadian Business” shall include any general or specialty retail, grocery, wholesale membership club, or merchandising business, inclusive of its respective parent companies, subsidiaries and/or affiliates that: (a) is located in Canada and sells goods or merchandise at retail to consumers and/or businesses (whether through physical locations, via the internet or combined) of the types sold from time to time by Walmart (whether through physical locations, via the internet or combined) of the types sold from time to time by Walmart within twelve (12) months following Associate’s last day of employment with Walmart and (b) has gross annual consolidated sales volume or revenues attributable to its retail operations (whether through physical locations, via the internet or combined) equal to or in excess of U.S.D. $5 billion. The parties agree that as of the date of this Agreement, a Competing Canadian Business includes but is not limited to, such entities as Xxxxxx Bay Company, Sears, Canadian Tire, Shoppers Drug Mart, Xxxx Xxxxx, A&P, Metro-Richelieu, Loblaws, National Grocers, Sobeys, Future Shop, Costco, Giant Tiger, Home Depot, RONA, Lowes, and Carrefour. |
b)(ii) | For purposes of this Agreement, the term “Competing US Business” shall include any general or specialty retail, grocery, wholesale membership club, or merchandising business, inclusive of its respective parent companies, subsidiaries and/or affiliates that: (a) sells goods or merchandise at retail to consumers and/or businesses (whether through physical locations, via the internet or combined) or has plans to sell goods or merchandise at retail to consumers and/or businesses (whether through physical locations, via the internet or combined) in the United States within twelve (12) months following Associate’s last day of employment with Walmart; and (b) has gross annual consolidated sales volume or revenues attributable to its retail operations (whether through physical locations, via the internet or combined) equal to or in excess of U.S.D. $7 billion. |
b)(iii) | For purposes of this Agreement, the term “Global Retail Business” shall include any general or specialty retail, grocery, wholesale membership club, or merchandising business, inclusive of its respective parent companies, subsidiaries and/or affiliates, that: (a) in any country or countries |
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outside of the United States and Canada in which Walmart conducts business or intends to conduct business in the twelve (12) months following Associate’s last day of employment with Walmart, sells goods or merchandise at retail to consumers and/or businesses (whether through physical locations, via the internet or combined); and (b) has gross annual consolidated sales volume or revenues attributable to its retail operations (whether through physical locations, via the internet or combined) equal to or in excess of U.S.D. $7 billion in any country pursuant to (B)(iii)(a) or in the aggregate equal to or in excess of U.S.D. $7 billion in any countries taken together pursuant to (b)(iii)(a) when no business in any one country has annual consolidated sales volume or revenues attributable to its retail operations equal to or in excess of U.S.D. $7 billion.
b)(iv) | For purposes of this Agreement, the term “Management Associate” shall mean any domestic or international associate holding the title of “manager” or above. |
b)(v) | For purposes of this Agreement, the term “Officer” shall mean any domestic Walmart or Walmart Canada Corp. associate who holds a title of Vice President or above. |
b)(vi) | For purposes of this Agreement, the term “Officer Equivalent” shall mean any non-U.S. Walmart associate who Walmart views as holding a position equivalent to an officer position, such as managers and directors in international markets, irrespective of whether such managers and directors are on assignment in the U.S. |
(c) | Ownership of an investment of less than the greater of $25,000 or 1% of any class of equity or debt security of a Competing Business and/or a Global Retail Business will not be deemed ownership or participation in ownership of a Competing Business and/or a Global Retail Business for purposes of this Agreement. |
(d) |
11. |
12. |
13. | Non-Admission. The parties acknowledge that the terms and execution of this Agreement are the result of negotiation and compromise, that this Agreement is entered into in good faith, and that this Agreement shall never be considered at any time or for any purpose as an admission of liability by Walmart or that Walmart acted wrongfully with respect to the Associate, or any other person, or that the Associate has any rights or claims whatsoever against Walmart arising out of or from the |
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14. |
15. | Taxes. The Associate acknowledges and agrees that the Associate is responsible for paying all taxes and related penalties, and interest on the Associate’s income. Walmart will withhold taxes, including from amounts or benefits payable under this Agreement, and report them to the appropriate tax authorities, as it determines it is required to do. Although the payments under this Agreement are intended to comply with the requirements of the Income Tax Act (Canada), Employment Insurance Act, the Canada Pension Act and pursuant to any other duly recognized federal and provincial taxing authorities or statutes, the Associate will indemnify Walmart and hold it harmless with respect to all such taxes, claims, charges, penalties, and interest. Additionally, while the payments and other benefits under this Agreement are intended comply to with the requirements of Section 409A and Walmart intends to administer this Agreement so that it will comply with Section 409A, Walmart has not warranted to the Associate that taxes and penalties will not be imposed under Section 409A or any other provision of federal, state, local, or non-United States law. |
16. |
17. |
18. | Miscellaneous. |
a) | Protected Rights. Nothing in this Agreement is intended to prohibit the Associate from engaging in any legally protected communication or action. Nothing contained in this Agreement shall restrict, limit or otherwise modify Associate’s rights under Walmart’s Open Door Policy. Nothing contained in this Agreement is intended to discourage the Associate from reporting any activity or information under the Global Statement of Ethics or to a governmental agency as permitted by any “whistleblower” laws. Associate shall not be held liable under this Agreement or any other |
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b) |
c) |
d) |
e) |
f) |
g) | Governing Law and Dispute Resolution. This Agreement shall be governed by, and construed in accordance with, the laws of the Province of Ontario and the laws of Canada. The parties do hereby irrevocably: (a) submit themselves to the personal jurisdiction of such courts; (b) agree to service of such courts’ process upon them with respect to any such proceeding; (c) waive any objection to venue laid therein; and (d) consent to service of process by registered mail, return receipt requested. Associate further agrees that in any claim or action involving the execution, interpretation, validity, or enforcement of this Agreement, Associate will seek satisfaction exclusively from the assets of Walmart and will hold harmless all of Walmart’s individual directors, officers, employees, and representatives. The parties also agree that they will first attempt to resolve any disputes arising under this Agreement through good faith negotiations. |
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first above written.
XXXXX XXXXXXXXXXXX | WAL-MART CANADA CORP. |
/s/Xxxxx Xxxxxxxxxxxx | By: /s/Xxxxxx Xxxxxx-Xxxxxxx |
Name: Xxxxxx Xxxxxx-Xxxxxxx | |
Title: Senior Vice President and General Counsel | |
By: /s/Xxxxxx Xxxxxxx | |
Name: Xxxxxx Xxxxxxx | |
Title: SVP, Global Rewards and Performance |
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Exhibit A
Restricted Stock to be Accelerated to Retirement Date:
Grant Date | Number of Shares to be Accelerated | Original Vesting Date |
January 25, 2016 | 25,611 | January 25, 2019 |
January 23, 2017 | 24,381 | January 21, 2020 |
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