EXHIBIT 10.19
RESTORATION AGREEMENT
This Agreement dated this January 20, 2003 by and between The TJX
Companies, Inc. (the "Corporation") and Xxxxxxx Xxxxxx ("Executive").
WHEREAS Executive and the Corporation, by an agreement dated March 1,
2000 (the "SERP Relinquishment Agreement"), agreed that Executive would
relinquish rights he had to certain benefits under the Corporation's
Supplemental Executive Retirement Plan, in recognition of modified benefits
arrangements (the "Prior Insurance Agreements" and, together with the SERP
Relinquishment Agreement, the "2000 Agreements") under which the Corporation
agreed to fund certain life insurance policies (the "Policies") to be owned by
an insurance trust designated by Executive (the "Trust"); and
WHEREAS the Corporation, Executive and the successor trustee of the
Trust have determined that it is in their respective best interests to amend the
Prior Insurance Agreement (the "Insurance Agreement Amendment") to provide for
an immediate refund to the Corporation of a portion of the premiums already paid
by the Corporation and a termination of the Corporation's remaining rights and
obligations under the Prior Insurance Agreement; and
WHEREAS, in recognition of the alterations resulting from the foregoing
to the 2000 Agreements and the benefits intended to be provided thereby, the
Corporation is willing to pay to Executive a restored lump-sum pension benefit
plus an additional amount with respect to certain taxes that may become payable
as a result of the foregoing.
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 (the "Closing"),
the Corporation shall pay to Executive the amount of $1,416,937 less all
applicable tax and other required withholdings as reasonably determined by the
Corporation. The payment described in the immediately preceding sentence shall
be made promptly upon termination of the Prior Insurance Agreement.
2. 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.
3. 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.
4. The Corporation and Executive shall cooperate in effectuating or
causing to be effectuated the transactions contemplated hereby.
5. 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.
6. Effective as of the Closing, this Agreement supersedes the SERP
Relinquishment Agreement; provided, that Paragraphs 1 and 4 of the SERP
Relinquishment Agreement shall be deemed for all purposes to survive as
provisions of this Agreement.
7. 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 trustee or beneficiaries of the Trust with respect to the 2000
Agreements, or any of them, or by any other person claiming under or on behalf
of the trust (including any successor trustee), whether relating to the
obligation of the Company under the 2000 Agreements to fund the Policies or
otherwise relating to the 2000 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 (including any associated
interest or penalties) 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 6 above shall survive the termination
of this Agreement.
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9. 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.
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. Xxxxxxxx
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/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
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