Exhibit 10.30
SEVERANCE AGREEMENT AND GENERAL RELEASE
THIS SEVERANCE AGREEMENT AND GENERAL
RELEASE (the “Agreement”) dated as of November 22,
2006, is entered into between Michael T. Wedge, whose address
is One Huntington Avenue, Residence #501, Boston, Massachusetts
02116 (the “Executive”), and BJ’s Wholesale Club,
Inc., a Delaware corporation, whose principal office is One Mercer
Road, Natick, Massachusetts 01760 (the
“Company”).
WHEREAS, the Executive has resigned
effective November 22, 2006 from his employment with the
Company and from his office as President and Chief Executive
Officer and as a director of the Company, and has signed Exhibit A
hereto;
WHEREAS, the parties wish to resolve
amicably the Executive’s termination from employment and
establish the terms of the Executive’s severance
arrangement;
WHEREAS, the Executive is advised
that he has at least 21 days to consider this Agreement, that he is
advised to consult with his own attorney prior to signing this
Agreement and that he may revoke the agreement for a period of
seven (7) days after signing by notifying the General Counsel
of the Company in writing of such revocation, and the Agreement
shall not be effective or enforceable until the expiration of the
seven (7) day revocation period without the Agreement having
been revoked;
WHEREAS, the parties intend that, as
of November 22, 2006, ( i ) the Employment
Agreement dated as of July 28, 1997 between the Executive and
the Company (the “1997 Agreement”) and ( ii
) the Change of Control Severance Agreement dated as of
February 9, 1999 and amended thereafter between the Executive
and the Company (the “COC Agreement”) shall
terminate;
NOW, THEREFORE, in consideration of
the promises and conditions set forth herein, the sufficiency of
which is hereby acknowledged, the Company and the Executive
intending to be legally bound, do agree as follows:
1. Termination Date . The
Executive’s effective date of termination from all employment
with the Company is November 22, 2006 (the “Termination
Date”). Effective upon the Termination Date, the 1997
Agreement and the COC Agreement will be terminated. Regardless of
the Executive’s execution and nonrevocation of this
Agreement, the Company shall pay the Executive (i) any
amounts earned but unpaid through the Termination Date with respect
to salary, automobile allowance and vested but unused vacation;
(ii) to the extent not already paid, any amounts to
which the Executive is entitled under the Company’s annual
incentive compensation plan for the fiscal year which ended
immediately prior to the Termination Date; (iii) his
vested account balance under the BJ’s Wholesale Club, Inc.
401(k) Savings Plan for Salaried Employees; and (iv)
any unreimbursed expenses incurred in accordance with Company
policy. Any such amounts, to the extent payable, shall be paid as
soon as practicable, but in no event sooner than the next regularly
scheduled payment cycle.
2. Severance Compensation and
Benefits . In return for the timely execution and nonrevocation
of this Agreement and in return for the Executive’s
compliance with all of its terms, the Company agrees to provide the
Executive with the following compensation and benefits:
a) continuation of the
Executive’s base salary as of the Termination Date, for a
period of twenty-four months following the Termination Date,
payable in such a manner and at such times as the Executive’s
base salary was being paid immediately prior to the Termination
Date; and
b) continued participation in and
coverage under the Company’s health plans for the twenty-four
(24) month period severance benefits are payable under
Section 2(a) (the “Severance Period”) on the same
terms and conditions as the Executive participated immediately
prior to the Termination Date (if and only if such participation is
legally and contractually permissible); and after any benefits
provided in the previous sentence are no longer available, if the
Executive elects to continue to participate in the Company’s
medical or dental plans for team members pursuant to a valid COBRA
election (and if and only if such participation is legally and
contractually permissible), an amount equal to the difference
between the Executive’s actual COBRA premium costs and the
amount the Executive would have paid had Executive continued
coverage as an employee under the Company’s applicable health
plans without regard to the pre-tax benefits the Executive would
have received under the BJ’s Wholesale Club, Inc. Flexible
Benefits Plan will be paid either to the Executive, or at the
election of the Company, to the medical or dental care provider,
provided, however, that the Company’s obligations under this
Subsection 2(b) shall (i) not extend beyond the Severance
Period, (ii) be eliminated if the Executive discontinues COBRA
benefits or (iii) be reduced or eliminated to the extent that
the Executive receives similar coverage and benefits under the
plans and programs of a subsequent employer or entity or becomes
eligible for similar coverage under a spouse’s employer;
and
c) any amounts the Executive would
have been entitled to receive under the Company’s annual
incentive compensation plan had the Executive remained employed by
the Company until the end of the fiscal year containing the
Termination Date (prorated for the period of active employment
during such fiscal year). All such amounts, if any, will be paid at
the same time as other incentive compensation plan payments for the
fiscal year containing the Termination Date; and
d) immediately upon the expiration
of the seven (7) day revocation period referenced above,
acceleration of the vesting of any unvested outstanding option
grants, or outstanding unvested grants of restricted stock or
restricted stock units; provided, however, that notwithstanding the
foregoing, there shall be no acceleration if, and to the extent
that, the terms of any such grants expressly provide for continued
vesting of any portion of the grant following the Executive’s
termination from employment; and
e) payments or benefits under other
plans of the Company to the extent that the plans provide for
benefits following a termination of employment.
Except as expressly provided above,
the Executive’s eligibility to participate in any of the
Company’s employee benefits plans and programs shall cease on
or after the Termination Date in accordance with the terms of such
benefits and programs.
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3. Non-Competition and
Non-Solicitation .
a) Restricted Activities .
For a period of twenty-four (24) months after the Termination
Date, the Executive will not directly or indirectly:
(i) Engage in any business or
enterprise (whether as owner, partner, officer, director, employee,
consultant, investor, lender or otherwise, except as the holder of
not more than 1% of the outstanding stock of a publicly-held
company) that is competitive with the Company’s business. A
business or enterprise shall be deemed competitive if it shall
operate a chain of membership warehouse clubs (by way of example,
but not limitation, Sam’s Club or Costco), warehouse stores
selling food and/or general merchandise that includes a warehouse
store located within 10 miles of any “then existing”
BJ’s Wholesale Club warehouse store, or any other business
that competes with the Company. Competitive business or enterprise
also includes any store or business operated or owned by Wal-Mart
Stores, Inc., Costco Wholesale Corporation, or any of the
respective affiliates thereof. The term “then existing”
shall refer to any such warehouse store that is, at the time of
termination of the Executive’s employment, operated by the
Company or any of its subsidiaries or divisions or under lease for
operation as aforesaid; or
(ii) Either alone or in association
with others (x) solicit, or permit any organization
directly or indirectly controlled by the Executive to solicit, any
employee of the Company to leave the employ of the Company, or
(y) solicit for employment, hire or engage as an
independent contractor, or permit any organization directly or
indirectly controlled by the Executive to solicit for employment,
hire or engage as an independent contractor, any person who was
employed by the Company at the time of the termination of the
Executive’s employment with the Company; provided that this
clause (y) shall not apply to the solicitation, hiring or
engagement of any individual whose employment with the Company has
been terminated for a period of six months or longer at the time of
such solicitation, hiring or employment.
b) Extension of Restrictions
. If the Executive violates the provisions of Section 3(a),
the twenty-four (24) month period referred to in
Section 3(a) shall recommence and the Executive shall continue
to be bound by the restrictions set forth in Section 3(a)
until a period of twenty-four (24) months has expired without
any violation of such provisions.
c) Interpretation . If any
restriction set forth in Section 3(a) is found by any court of
competent jurisdiction to be unenforceable because it extends for
too long a period of time or over too great a range of activities
or in too broad a geographic area, it shall be interpreted to
extend only over the maximum period of time, range of activities or
geographic area as to which it may be enforceable.
d) Equitable Remedies . The
restrictions contained in this Section 3 are necessary for the
protection of the business and goodwill of the Company and are
considered by the Executive to be reasonable for such purpose. The
Executive agrees that any breach of this Section 3 is likely
to cause the Company substantial and irrevocable damage which is
difficult to measure. Therefore, in the event of any such breach or
threatened breach, the Executive agrees that the Company, in
addition to such other remedies which may be available, shall have
the right to obtain an injunction from a court restraining such a
breach or threatened breach and the right to specific performance
of the provisions of this Section 3, and the Executive hereby
waives the adequacy of a remedy at law as a defense to such
relief.
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e) Executive Breach . Without
waiving any other remedies that may be available to the Company,
the payments and benefits described in Section 2 above shall
immediately terminate, and the Company shall have no further
obligations to the Executive with respect thereto, in the event
that the Executive (i) becomes employed by Wal-Mart Stores,
Inc., Costco Wholesale Corporation, Sam’s Clubs, or any of
their respective subsidiaries or affiliates; or (ii) breaches
any provision of this Section 3 or Section 4 below of
this Agreement.
4. Proprietary Information
.
a) Proprietary Information
.
(i) The Executive agrees that all
information, whether or not in writing, of a private, secret or
confidential nature concerning the Company’s business,
business relationships or financial affairs (collectively,
“Proprietary Information”) is and shall be the
exclusive property of the Company. By way of illustration, but not
limitation, Proprietary Information may include
