EXHIBIT 10.17
RESTORATION AGREEMENT
This Agreement dated this December 31, 2002 by and between The TJX
Companies, Inc. (the "Corporation") and Xxxxxxx Xxxxxxxxx ("Executive").
WHEREAS Executive and the Corporation, by an agreement dated October
28, 1999 (the "SERP Relinquishment Agreement"), agreed that Executive would
relinquish such rights as he had to benefits (including both benefits previously
earned and any benefits that might be earned in the future) under the
Corporation's Supplemental Executive Retirement Plan (the "SERP"), in
recognition of modified benefits arrangements (the "Prior Insurance Agreements"
and, together with the SERP Relinquishment Agreement, the "1999 Agreements")
under which the Corporation agreed to fund certain life insurance policies (the
"Policies") to be owned by insurance trusts designated by Executive (the
"Trusts"); and
WHEREAS Executive has advised the Corporation that, pursuant to the
terms of the Trusts, he has informed the trustee of the Trusts (the "Trustee")
that he will exercise his right to acquire, immediately prior to the Closing (as
hereinafter defined), the Policies and other Trust assets from the Trusts,
including any rights the Trusts may have under the Prior Insurance Agreements,
subject to the liabilities of the Trusts to the Corporation under the Prior
Insurance Agreements, for cash of equivalent value (the "Asset Substitutions");
and
WHEREAS the Corporation has, and Executive individually has and in his
capacity as successor to the Trusts with respect to the Prior Insurance
Agreements will have, determined that it is in its and his respective best
interests to amend the Prior Insurance Agreements to provide for a termination
of the Corporation's remaining rights and obligations under the Prior Insurance
Agreements; and
WHEREAS, in recognition of the alterations resulting from the foregoing
to the 1999 Agreements and the benefits intended to be provided thereby, the
Corporation is willing to pay to Executive the restored supplemental pension
benefit hereinafter described on the terms hereinafter described.
NOW, THEREFORE, the parties hereto, intending to be bound hereby, agree
as follows:
1. At a closing to be held on a mutually agreed date but in no event
later than December 31, 2002 (the "Closing"), the following transactions shall
occur simultaneously:
2. Effective as of the Closing, the Corporation shall be relieved of
all rights and obligations under the Prior Insurance Agreements including any
obligation to make premium payments or payments of any kind with respect to the
Policies, whether due or to become due, and shall have no right to any refund or
death benefit of any kind from the Policies. At the Closing, the Corporation
shall execute and deliver to Executive a mutually acceptable release of the
collateral assignment of rights that it holds with respect to the Policies to
secure its repayment rights under the Prior Insurance Agreements.
3. At the Closing, the Corporation shall pay to Executive, as a
restored supplemental pension benefit payable separate and apart from the SERP,
the amount of $2,494,553 less all applicable tax and other required
withholdings, as reasonably determined by the Corporation. Executive
acknowledges that by reason of the Corporation's relinquishment of any right to
refunds of premiums paid with respect to the Policies and of any other rights
with respect to the Policies, Executive will be treated as having received
taxable wage income subject to tax withholding (the "Insurance Restructuring
Amount") in an amount equal to the aggregate of the premiums paid by the
Corporation with respect to the Policies, and that the amount of any withholding
with respect to the Insurance Restructuring Amount will be taken from the
payment described in the first sentence of this Paragraph 3 together with all
required withholdings with respect to the payment described in this Paragraph 3
itself. If the payment described in the first sentence of this Paragraph 3 is
not sufficient to satisfy all such required withholdings, Executive shall pay
the balance in cash to the Corporation at the Closing.
4. Executive represents to the Corporation that the following
representations and warranties are correct and complete as of the date of this
Agreement and will be correct and complete as of the Closing: Executive has the
power and authority to execute and deliver this Agreement and to perform his
obligations hereunder; this Agreement has been duly executed and delivered by
Executive and constitutes his legal, valid and binding obligation, enforceable
against him in accordance with its terms and conditions; and neither the
execution and the delivery of this Agreement, nor the consummation of the
transactions contemplated hereby, will violate any constitution, statute,
regulation, rule, injunction, judgment, order, decree, ruling, charge, or other
restriction of any government, governmental agency, or court to which Executive
is subject.
5. The Corporation represents to Executive that the following
representations and warranties are correct and complete as of the date of this
Agreement and will be correct and complete as of the Closing: The Corporation
has the power and authority to execute and deliver this Agreement and to perform
its obligations hereunder; all actions or proceedings to be taken by or on the
part of the Corporation to authorize and permit the execution and delivery by
the Corporation of this Agreement and the instruments required to be executed
and delivered by Corporation pursuant hereto, the performance by Corporation of
its obligations hereunder, and the consummation by Corporation of the
transactions contemplated herein, have been duly and properly taken; this
Agreement has been duly executed and delivered by the Corporation and
constitutes the legal, valid and binding obligation of the Corporation,
enforceable against it in accordance with its terms and conditions; and neither
the execution and the delivery of this Agreement, nor the consummation of the
transactions contemplated hereby will violate any constitution, statute,
regulation, rule, injunction, judgment, order, decree, ruling, charge, or other
restriction of any government, governmental agency, or court to which the
Corporation is subject.
6. The Corporation and Executive shall cooperate in effectuating or
causing to be effectuated the transactions contemplated hereby.
-2-
7. This Agreement shall be binding on Executive, the Corporation, and
their respective heirs and assigns, including any successor to the Corporation
or the Corporation's business by merger or otherwise.
8. Effective as of the Closing, this Agreement supersedes the SERP
Relinquishment Agreement; provided, that Paragraphs 1 and 5 of the SERP
Relinquishment Agreement shall be deemed for all purposes to survive as
provisions of this Agreement.
9. Executive acknowledges that he has been separately advised with
respect to the arrangements that are the subject matter of this Agreement and
has not relied upon any advice from the Corporation with respect to the tax
treatment of such arrangements or other matters pertaining thereto. Executive
agrees to indemnify the Corporation for, and hold it harmless against, (i) any
and all taxes (including, without limitation, withholding taxes) and related
interest and penalties that may be asserted against the Corporation with respect
to the arrangements contemplated by this Agreement, and (ii) any claims asserted
by the trustees or beneficiaries of the Trusts with respect to the 1999
Agreements and/or the Prior Insurance Agreements, or any of them, or by any
other person claiming under or on behalf of the trusts (including any successor
trustee), whether relating to the obligation of the Company under the 1999
Agreements to fund the Policies or otherwise relating to the 1999 Agreements
and/or the Prior Insurance Agreements, and any suits, liabilities, charges,
penalties and expenses of any kind relating to such claims. The indemnity set
out in clause (i) shall not be construed as indemnifying the Corporation for, or
holding it harmless against, any loss of any deduction that the Corporation may
claim with respect to any payment made pursuant to the arrangements contemplated
by this Agreement. The provisions of this paragraph and Paragraph 8 above shall
survive the termination of this Agreement.
10. Except to the extent federal law applies, this Agreement shall be
construed and applied in accordance with the laws of the Commonwealth of
Massachusetts and deemed for all purposes to be an agreement under seal. Each of
the parties hereto hereby irrevocably and unconditionally consents to submit to
the exclusive jurisdiction of the courts of the Commonwealth of Massachusetts
and of the United States of America located in the Commonwealth of Massachusetts
for any actions, suits or proceedings arising out of or relating to this
Agreement and the transactions contemplated hereby, and each of the parties
hereto agrees not to commence any action, suit or proceeding relating hereto or
thereto except in such courts. Each of the parties hereto hereby irrevocably and
unconditionally waives any objection to the laying of venue of any action, suit
or proceeding arising out of this Agreement or the transactions contemplated
hereby or thereby, in the courts of the Commonwealth of Massachusetts or the
United States of America located in the Commonwealth of Massachusetts, and
hereby further irrevocably and unconditionally waives and agrees not to plead or
claim in any such court that any such action, suit or proceeding brought in any
such court has been brought in an inconvenient forum. In any action or suit to
enforce any right or remedy under this Agreement or to interpret any provision
of this Agreement, the prevailing party shall be entitled to recover its costs,
including reasonable attorneys' fees.
-3-
IN WITNESS WHEREOF, TJX has caused this Agreement to be executed by its
duly authorized officer, and Executive has executed this Agreement, under seal
as of the date first written above.
THE TJX COMPANIES, INC.
By: /s/ Xxxxxx X. English
---------------------
/s/ Xxxxxxx Xxxxxxxxx
---------------------
Xxxxxxx Xxxxxxxxx
-4-
December 31, 2002
Xx. Xxxxxxx Xxxxxxxxx
00 Xxxxxxx Xxxxx Xxxx
Xxxxxxx, XX 00000
Re: Conditional reimbursement
Dear Xx. Xxxxxxxxx:
Reference is made to an agreement of even date herewith (the
"Restoration Agreement") pursuant to which, inter alia, The TJX Companies, Inc.
("TJX") has agreed with you that (i) TJX is foregoing its right to a refund of
premium payments with respect to certain life insurance policies acquired in
1999 (the "Policies"); (ii) TJX is relieved of any obligation to make additional
premium payments with respect to the Policies; and (iii) TJX will pay to you a
restored supplemental pension benefit. The Policies were previously held in
insurance trusts of which you were the settlor and grantor (the "Trusts"). You
acquired the Policies and related rights and liabilities from the Trusts.
You have been separately advised by and have relied upon your counsel
with respect to the tax consequences associated with the foregoing transactions
(the "Transactions"). Our understanding is that you have been advised that the
federal gift tax consequences of the Transactions are not entirely clear. In
view of your valued service to TJX, as reflected in part in the restored
supplemental pension referred to above, TJX agrees that if, in connection with
an examination of your federal gift tax return, the IRS asserts that you (and
your spouse, in the event of a split-gift election) have made a taxable gift
with respect to the Transactions (the "Gift"), TJX will pay you an amount (the
"Award") equal to the lesser of (i) 1.82 times the amount of the Gift times the
highest marginal gift tax rate in effect in the year in which the Gift was
deemed to be made, or (ii) $1,125,000. The Award shall be paid, at the sole
discretion of TJX, either in cash or in shares of restricted stock (the
"Restricted Stock") under and subject to the terms of the Stock Incentive Plan
(or any successor plan). If the Award is paid in shares of Restricted Stock, the
number of shares of Restricted Stock comprising the Award shall be the number of
shares determined by dividing the Award amount by the closing price of a share
of TJX common stock on the date of the grant (or on the next preceding trading
day, if the date of grant is not a trading day), without any discount for the
restrictions applicable to such shares. If the Award is paid in Restricted
Stock, the Restricted Stock will vest as follows: 25% of the Award will vest on
the date on which the ECC determines whether the MIP target performance goal
(Corporate) for the first fiscal year of the Company commencing not earlier than
90 days prior to the date of grant of the Award (the "first year") has been met,
but only if the performance for such first year is at least 67% of such target;
25% of the Award will vest on the date on
which the ECC determines whether the MIP target performance goal (Corporate) for
the next fiscal year of the Company (the "second year") has been met, but only
if the performance for such second year is at least 67% of such target; 25% of
the Award will vest on the date on which the ECC determines whether the MIP
target performance goal (Corporate) for the next fiscal year of the Company (the
"third year") has been met, but only if the performance for such third year is
at least 67% of such target; and 25% of the Award will vest on the date on which
the ECC determines whether the MIP target performance goal (Corporate) for the
next following fiscal year of the Company (the "fourth year") has been met, but
only if the performance for such fourth year is at least 67% of such target.
Vesting of any Restricted Stock will not be conditioned upon your continued
service for TJX. You acknowledge that the ECC has complete discretion in
determining MIP target performance goals each year.
If this letter agreement is consistent with your understanding of our
discussions, please sign the enclosed copy of this letter in the space indicated
below and return it to me, whereupon this letter agreement will be binding in
accordance with its terms as an agreement under seal.
THE TJX COMPANIES, INC.
By: /s/ Xxxxxx X. English
---------------------
Agreed:
/s/ Xxxxxxx Xxxxxxxxx [seal]
---------------------
Xxxxxxx Xxxxxxxxx
Date: December 31, 2002
-2-
