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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without the Agreement having been revoked;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:
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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
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a) Restricted Activities . For a period of twenty-four
(24) months after the Termination Date, the Executive will not
directly or indirectly:
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(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 .
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