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EXHIBIT 10.21
THE TJX COMPANIES, INC.
TRUST AGREEMENT FOR EXECUTIVE SAVINGS PLAN
This Agreement made as of this 6th day of October, 1998 by and between The
TJX Companies, Inc. (the "Company") with its principal offices at 000 Xxxxxxxxxx
Xxxx, Xxxxxxxxxx, XX 00000 and Fleet National Bank (the "Trustee"), of
Providence, Rhode Island.
WITNESSETH
WHEREAS the Company has adopted the Executive Savings Plan (the "Plan") to
provide deferred compensation and supplemental credits for certain management or
highly compensated employees and their beneficiaries; and
WHEREAS the Company wishes to establish a trust (the "Trust") to assist the
Company in the payment of benefits under the Plan;
NOW, THEREFORE, the parties hereby establish the Trust and agree that the
Trust shall be comprised, held and disposed of as follows:
SECTION 1. TRUST FUND
(a) Subject to the claims of its creditors as set forth in Section 5, the
Company hereby deposits with the Trustee in trust one hundred dollars ($100)
which shall become the principal of the Trust to be held, administered and
disposed of by the Trustee as provided in this Trust Agreement.
(b) The purpose of the Trust is to pay as they come due benefits under the
Plan to persons who are entitled to such benefits under the Plan ("Trust
Beneficiaries").
(c) The Trust hereby established shall become irrevocable upon a Change of
Control, as hereinafter defined, as to all amounts held in Trust as of the
Change of Control and all amounts contributed in Trust thereafter, and earnings
on such amounts. Prior to a Change of Control the Trust may be revoked by the
Company at any time by a writing delivered to the Trustee. Upon such revocation,
all amounts held in the Trust shall be paid to, or upon the direction of, the
Company.
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(d) The Trust is intended to be a trust of which the Company is treated as
the owner under Subpart E of Subchapter J, Chapter 1 of the Internal Revenue
Code of 1986, as from time to time amended, and shall be construed accordingly.
(e) The principal of the Trust and any earnings thereon which are not
returned to the Company in accordance with the specific provisions of this
Agreement or used to defray the expenses of the Trust shall be used exclusively
for the benefit of Trust Beneficiaries, subject in every case to the provisions
of Section 5 (relating to Insolvency of the Company). The Trust Beneficiaries
shall not have any preferred claim on, or any beneficial ownership interest in,
any assets of the Trust prior to the time such assets are distributed hereunder,
and all rights of Trust Beneficiaries created under the Plan or under this Trust
Agreement shall be mere unsecured contractual rights against the Company.
SECTION 2. CHANGE OF CONTROL
For all purposes of this Agreement, "Change of Control" means a Change of
Control, as defined in Schedule A hereto, of the Company.
SECTION 3. CONTRIBUTIONS TO THE TRUST
(a) The Company may at any time and from time to time make additional
deposits of cash or other property in Trust with the Trustee to augment the
principal to be held, administered and disposed of by the Trustee as provided in
this Trust Agreement.
(b) Amounts transferred to the Trust in respect of the Plan above, shall be
held in Trust until distributed in accordance with this Agreement and the
provisions of the Plan.
SECTION 4. PAYMENTS TO TRUST BENEFICIARIES
(a) The Trustee shall make payments of benefits to Trust Beneficiaries from
the assets of the Trust in accordance with the directions of the persons
identified on Schedule B, or either of them, or such other person or persons who
may from time to time be designated by the persons identified on Schedule B, or
either of them, as authorized to direct the Trustee hereunder (any of the
foregoing, the "Administrator").
(b) Upon receipt of evidence satisfactory to the Trustee that a benefit
otherwise payable hereunder has been paid by the Company directly to a Trust
Beneficiary, the Trustee shall reimburse the Company for such payment if there
are sufficient assets in the Trust fund to provide for such reimbursement.
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SECTION 5. TRUSTEE RESPONSIBILITY REGARDING PAYMENTS TO TRUST BENEFICIARIES
WHEN COMPANY INSOLVENT
(a) The Company shall be considered "Insolvent" for purposes of this Trust
Agreement if (i) the Company is unable to pay its debts as they mature, or (ii)
the Company is subject to a pending proceeding as a debtor under the U.S.
Bankruptcy Code.
(b) At all times during the continuance of this Trust, the principal and
income of the Trust shall be subject to claims of general creditors of the
Company, but only to the extent hereinafter set forth. If at any time the
Trustee has actual knowledge, or has determined, that the Company is Insolvent,
the Trustee shall deliver any undistributed principal and income in the Trust to
satisfy such claims as a court of competent jurisdiction may direct. The Board
of Directors and the Chief Executive Officer, or if he shall have delegated the
responsibility to the Chief Financial Officer, the Chief Financial Officer of
the Company shall have the duty to inform the Trustee of the Company's
Insolvency. If the Company or a person claiming to be a creditor of the Company
alleges in writing to the Trustee that the Company has become Insolvent, the
Trustee shall independently determine, within thirty (30) days after receipt of
such notice, whether the Company is Insolvent and, pending such determination,
shall discontinue payments of benefits to Trust Beneficiaries, shall hold the
Trust assets for the benefit of the Company's general creditors, and shall
resume payments of benefits to Trust Beneficiaries in accordance with Section 4
of this Trust Agreement only after the Trustee has determined that the Company
is not Insolvent (or is no longer Insolvent, if the Trustee initially determined
the Company to be Insolvent). Unless the Trustee has actual knowledge of the
Company's Insolvency or has received an allegation of Insolvency as provided in
the preceding sentence, the Trustee shall have no duty to inquire whether the
Company is Insolvent. The Trustee may in all events rely on such evidence
concerning the Company's solvency as may be furnished to the Trustee which will
give the Trustee a reasonable basis for making a determination concerning the
Company's solvency. Nothing in this Trust Agreement shall in any way diminish
any rights of any Trust Beneficiary to pursue his or her rights as a general
creditor of the Company with respect to his or her benefits hereunder or
otherwise.
(c) Provided there are sufficient assets, if the Trustee discontinues
payments of benefits from the Trust and subsequently resumes such payments, the
first payment following such discontinuance shall include the aggregate amount
of all payments which would have been made to Trust Beneficiaries during the
period of such discontinuance, less the aggregate amount of payments made to
Trust Beneficiaries by the Company in lieu of the payments provided for
hereunder during any such period of discontinuance (together with interest on
the amount delayed at the prime rate then in effect at the Trustee on the date
of said payment).
SECTION 6. INVESTMENT OF PRINCIPAL AND INCOME
The Trustee shall invest the principal of the Trust and any earnings
thereon in accordance
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with such investment directions as the Company shall provide (or, if the Company
has appointed an investment manager to manage or direct the investment of some
or all of the assets of the Trust, in accordance with the directions of such
investment manager) or in accordance with such objectives, policies and
restrictions as the Company or such investment manager may from time to time
prescribe. The Trustee shall have no duty to inquire into or review the
aforesaid investment directions, objectives, policies, or restrictions, or the
investments made pursuant to the directions of an investment manager. In no
event, however, shall assets held in the Trust be invested in securities or
obligations issued by the Company or any affiliate of the Company.
Without limiting the foregoing, the parties hereto acknowledge that in
order to provide for an accumulation of assets comparable to the contractual
liabilities of the Company under the Plan, the Company may direct the Trustee to
invest the assets held in the Trust to correspond to the notional investments
made for Trust Beneficiaries under the Plan, and that to the extent specified by
the Company, and subject to a change by the Company in or revocation by the
Company of such specifications and directions at any time, the Trustee shall
accomplish such conforming investments by following investment elections
communicated to the Trustee by Trust Beneficiaries as hereinafter provided.
Trust Beneficiaries may communicate their elections by use of the telephone
exchange or similar system maintained for such purpose by the Trustee or its
affiliates. Any election so communicated by a Trust Beneficiary to the Trustee
with respect to the notional investment or reinvestment of all or a portion of
his or her interest in the Plan shall be treated as a corresponding investment
direction by the Company with respect to assets held in the Trust.
SECTION 7. DISPOSITION OF PRINCIPAL AND INCOME
During the term of this Trust, all principal amounts contributed to the
Trust and all interest thereon, net of expenses, shall be accumulated and
reinvested for the purposes herein provided. Subject to the provisions of
Sections 1(c), 4 and 12, the Company shall have no right or power to direct the
Trustee to return to the Company or to direct to others any of the Trust assets
before all payments of benefits payable under the Trust have been made to Trust
Beneficiaries. Upon payment of all such benefits and legal expenses, the Trustee
shall return to the Company all amounts, if any, then remaining in the Trust.
SECTION 8. ACCOUNTING BY THE TRUSTEE
The Trustee shall keep accurate and detailed records of all investments,
receipts, disbursements, and all other transactions required to be done,
including such specific records as shall be agreed upon in writing between the
Company and the Trustee. All such accounts, books and records shall be open to
inspection and audit at all reasonable times by the Company. Within sixty (60)
days following the close of each calendar year and within sixty (60) days after
the removal or resignation of the Trustee, the Trustee shall deliver to the
Company a written account of its administration of the Trust during such year or
during the period from the close of the last
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preceding year to the date of such removal or resignation, setting forth all
investments, receipts, disbursements and other transactions effected by it,
including a description of all securities and investments purchased and sold
with the cost or net proceeds of such purchases or sales (accrued interest paid
or receivable being shown separately), and showing all cash, securities and
other property held in the Trust at the end of such year as the date of such
removal or resignation, as the case may be.
SECTION 9. RESPONSIBILITY OF THE TRUSTEE
(a) The Trustee shall act with the care, skill, prudence and diligence
under the circumstances then prevailing that a prudent person acting in a like
capacity and familiar with such matters would use in the conduct of an
enterprise of a like character and with like aims; PROVIDED, HOWEVER, that the
Trustee shall incur no liability to anyone for any action reasonably taken in
accordance with a written direction, request, or approval given by the Company
or by an investment manager appointed by the Company that is contemplated by and
complies with the terms of this Trust Agreement, including distributions made in
accordance with directions of the Plan Administrator, and to that extent shall
be relieved of the prudent person rule for investments.
(b) The Company agrees to indemnify the Trustee against all loss or expense
incurred by the Trustee under this Agreement, except that in no event shall the
Company indemnify the Trustee against any loss or expense incurred by reason of
the Trustee's own negligence or misconduct. Without limiting the foregoing, the
Trustee shall not be required to undertake or to defend on behalf of any person
any litigation arising in connection with this Trust agreement, unless it be
first indemnified by the Company against its prospective costs, expenses and
liability.
(c) The Trustee may consult with legal counsel (who may also be counsel for
the Trustee generally) with respect to any of its duties or obligations
hereunder, including any determination as to whether a Change of Control has
occurred or as to whether the Company is Insolvent, and shall not be held
responsible for acting or refraining from acting in accordance with the advice
of any such counsel selected with reasonable care.
(d) The Trustee may hire agents, legal counsel, accountants, actuaries,
investment managers and financial consultants.
(e) The Trustee shall have, without exclusions, all powers conferred on
trustees by applicable law unless expressly provided otherwise herein.
(f) Nothing in this Trust Agreement shall be construed as constituting the
Trustee plan "administrator," as that term is defined in Section 3(16) of ERISA,
of any plan or arrangement pursuant to which benefits are provided hereunder.
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SECTION 10. COMPENSATION AND EXPENSES OF THE TRUSTEE
The Trustee shall be entitled to receive such reasonable compensation for
its services as shall be agreed upon by the Company and the Trustee. The Trustee
shall also be entitled to receive its reasonable expenses incurred with respect
to the administration of the Trust. All such compensation and expenses shall be
payable by the Company, but if not paid by the Company shall be a charge against
and may be paid from the assets of the Trust.
SECTION 11. REPLACEMENT OF THE TRUSTEE
The Trustee may be removed by the Company at any time prior to a Change of
Control, or may resign at any time, in either case by notice in writing. Upon
the removal or the resignation of the Trustee, a new trustee, which shall be a
bank or trust company having a combined capital and surplus of not less than
$50,000,000 shall be appointed by the Company. If the Company fails to appoint a
successor Trustee following the resignation or removal of the present Trustee,
then the present Trustee may apply to a court of competent jurisdiction for the
appointment of a successor Trustee.
SECTION 12. AMENDMENT OR TERMINATION
(a) This Trust Agreement may be amended at any time and to any extent by a
written instrument executed by the Committee or the Company; PROVIDED, that no
such amendment that would increase the duties or responsibilities of the Trustee
shall be effective unless the Trustee shall have consented thereto; AND FURTHER
PROVIDED, that following a Change of Control the provisions of this Section 12
may not be amended.
(b) The Trust shall not terminate until the date on which the last Trust
Beneficiary ceases to be entitled to benefits payable under the Trust, unless
sooner revoked in writing in accordance with Section 1.
(c) Upon termination of the Trust or upon revocation of the Trust under
Section 1, all assets remaining in the Trust shall be returned to the Company.
SECTION 13. SEVERABILITY AND ALIENATION
(a) Any provision of this Trust Agreement prohibited by law shall be
ineffective to the extent of any such prohibition without invalidating the
remaining provisions hereof.
(b) Benefits payable to Trust Beneficiaries under this Agreement may not be
anticipated, assigned (either at law or in equity), alienated or subject to
attachment, garnishment, levy, execution or other legal or equitable process and
no benefit actually paid to Trust Beneficiaries by the Trustee shall be subject
to any claim for repayment by the Company or the Trustee.
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SECTION 14. GOVERNING LAW
This Trust Agreement shall be governed by and construed in accordance with
the laws of Rhode Island.
IN WITNESS WHEREOF, the Company and the Trustee have executed this
Agreement as of the date first above written.
THE TJX COMPANIES, INC.
By /s/ Xxxxxx X. Xxxxxxxx
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FLEET NATIONAL BANK
By /s/ A. H. Mira
--------------------------
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SCHEDULE A
To The Trust Agreement For
The TJX Companies, Inc. Executive Savings Plan
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 if the Participant or a Participant
Related Party is the Person or a member of a group constituting the Person
acquiring control, a transaction shall not be deemed to be a Change of
Control as to a Participant unless the Committee shall otherwise determine
prior to such occurrence; 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 as to a
Participant if the Participant or a Participant 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
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(d) the Company executes an agreement of acquisition, merger or
consolidation which contemplates that (i) after the effective date provided
for in such 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 as to a Participant if, immediately after
such transaction, the Participant or any Participant 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 of
the equity securities of the Company owned by the Participant and any
Participant 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 A 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
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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.
A "Participant Related Party" shall mean, with respect to a Participant,
any affiliate or associate of the Participant other than the Company or a
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).
"Subsidiary" shall mean any corporation or other entity (other than the
Company) in an unbroken chain beginning with the Company if each of the entities
(other than the last entity in the unbroken chain) owns stock or other interests
possessing 50% or more of the total combined voting power of all classes of
stock or other interests in one of the other corporations or other entities in
the chain.
"Committee" shall mean the Executive Compensation Committee of the Board of
Directors of the Company.
"Company" shall mean The TJX Companies, Inc.
Initially capitalized terms not defined above shall have the meanings
assigned to those terms in Article I of the Executive Savings Plan.
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SCHEDULE B
To The Trust Agreement For
The TJX Companies, Inc. Executive Savings Plan
PERSONS AUTHORIZED TO PROVIDE DIRECTION TO THE TRUSTEE (SUBJECT TO CHANGE BY THE
COMPANY)
1. Xxxxxx X. Xxxxxxxx, Executive Vice President, Chief Financial Officer
2. Xxxx Xxxxxxxx, Vice President, Corporate Human Services Director
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