Attached files
Exhibit 10.1
CONSULTING AGREEMENT
This CONSULTING AGREEMENT (the “Agreement”) dated as of May 25, 2010 is entered into between HJZ Consulting, Inc. (the “Consultant”) and BJ’s Wholesale Club, Inc. (“BJ’s” or the “Company”).
WITNESSETH
WHEREAS, through Herbert J Zarkin (“Zarkin”), Consultant has a unique historical knowledge of the Company;
WHEREAS, Consultant has significant institutional and industry knowledge and expertise in the retail and wholesale sectors; and
WHEREAS, the Company desires to utilize the expert advice and consultation assistance of Consultant in the field in which Consultant has professional and experiential qualifications.
NOW THEREFORE, in consideration of the promises and conditions set forth herein, the sufficiency of which is hereby acknowledged, the Company and Consultant agree as follows:
| 1. | Consulting Services. Consultant agrees to engage Herbert J Zarkin to provide strategic advice and expert guidance to executives of the Company (“Services”). Consultant will provide such consultation to Laura Sen, President and Chief Executive Officer of the Company (the “CEO”), and to the other members of the Company’s Senior Leadership Team. Consultant’s Services shall include, but are not limited to the following: |
| a. | Supporting the on-going transition of the CEO; |
| b. | Providing input to the CEO on setting the strategic direction of the business and establishing current and long range objectives for the Senior Leadership Team; |
| c. | Continuing to advise the CEO concerning (i) the executive compensation strategy, (ii) executive succession planning, (iii) the real estate acquisition strategy and (iv) communication with Company’s investors; and |
| d. | Remaining current on the operation and financial performance of the Company to provide advice and counsel as needed or requested by the CEO and/or the Senior Leadership Team. |
| 2. | Compensation. BJ’s agrees to pay Consultant for Services rendered pursuant to this Agreement at the rate of $575,000 per 12 month period (“Consulting Fee”). The Company shall pay Consultant his Consulting Fee in twelve (12) equal monthly lump sum installments. Consultant shall be responsible for his own commuting cost and other expenses. |
| Herbert J Zarkin’s Initials |
| 3. | Term and Termination of Agreement. |
| a. | This Agreement shall be effective as of May 25, 2010 and shall terminate on May 25, 2013 (“Term”) unless otherwise terminated under this paragraph or by the mutual assent of the parties. |
| b. | The Company shall have the right to terminate this Agreement upon sixty (60) days written notice to Consultant, if Consultant shall fail to provide the services set forth in this Agreement, and the Consultant shall have the right to terminate this agreement upon sixty (60) days written notice for any reason. |
| c. | This Agreement shall be automatically terminated upon the death or disability of the Consultant. The Company shall pay to Consultant’s estate, or to the Consultant as appropriate, the balance of the Consulting Fee owed through the fiscal year end following Consultant’s death or disability. |
| 4. | Independent Contractor. The parties intend that Consultant shall perform services pursuant to this Agreement as an independent contractor as defined by applicable law. Consultant shall be responsible for payment of all taxes arising out of Consultant’s activities under this Agreement. |
| 5. | Confidentiality. Consultant acknowledges that during the engagement of his services by the Company, Consultant will have access to and become acquainted with various trade secrets, strategies, information, and records of the Company and/or used by the Company in connection with the operation of its business, and Consultant agrees to keep confidential all such information and any other non-public information from, or relating to, the Company. All files, records, documents, and information and similar items relating to the business of the Company, whether prepared by Consultant or otherwise coming into his possession, shall remain the exclusive property of the Company. The provisions of this paragraph shall survive the termination of this Agreement. |
| 6. | Right to Injunction. The parties hereto acknowledge that the services to be rendered by Consultant under this Agreement and the rights and privileges granted to the Company under the Agreement are of a special, unique, and extraordinary character which gives them a peculiar value, the loss of which cannot be reasonably or adequately compensated by damages in any action at law, and the breach by the Consultant of any of the provisions of this Agreement will cause the Company irreparable injury and damage. Consultant expressly agrees that the Company shall be entitled to seek injunctive in the event of, or to prevent, a breach of any provision of this Agreement by Consultant. Rights and remedies of the Company under this Agreement are cumulative and resort to injunctive relief, however, shall not be construed to be a waiver of any other rights or remedies that the Company may have for damages or otherwise. |
| 7. | Successors and Assigns. All of the provisions of this Agreement shall be binding upon the parties hereto and their respective heirs, if any, successors, and assigns. |
| 2 | Herbert J Zarkin’s Initials |
| 8. | Waiver. Waiver by one party or breach of any provision of this Agreement by the other shall not operate as a continuing waiver. |
| 9. | Assignment. Consultant shall not assign any of Consultant’s rights under this Agreement, or delegate the performance of any of Consultant’s duties hereunder, without the prior written consent of the Company. Nor, shall anyone other than Zarkin provide the Services under this Agreement on behalf of Consultant. |
| 10. | Notices. Any and all notices to be given hereunder shall be in writing and shall be given to another party if personally served, or if sent by Federal Express or a similar national overnight carrier (“Federal Express”). If such notice is served personally, notice shall be deemed constructively made at the time of such personal service. If such notice, is given by Federal Express, such notice shall be conclusively deemed given one day after delivery to Federal Express addressed to the party to whom such notice is to be given as follows: |
| If to Consultant: | HJZ Consulting, Inc. 6074 NW 23rd Terrace Boca Raton, FL 33496 | |
| If to the Company: | President and Chief Executive Officer BJ’s Wholesale Club, Inc One Mercer Road Natick, MA 01760 |
Any party hereto may change its address for purposes of this section by written notice given in the manner provided above.
| 11. | Entire Understanding. This Agreement constitutes the sole agreement between the parties hereto. It supersedes all prior communications, representations or agreements between the parties. |
| 12. | Jurisdiction. This Agreement shall be construed in accordance with and governed by the laws of the Commonwealth of Massachusetts, notwithstanding conflict of law principals. |
| 13. | Modification or Amendment. No amendment, change or modification of this Agreement shall be valid unless in writing signed by the parties hereto. |
| 14. | Unenforceability of Provisions. If any provision of this Agreement, or any portion thereof, is held to be invalid and unenforceable, then the remainder of this Agreement shall nevertheless remain in full force and effect. |
| 3 | Herbert J Zarkin’s Initials |
IN WITNESS WHEREOF the undersigned are duly authorized to execute and do execute this Agreement on behalf of Consultant and the Company as of the day and year first written above.
| BJ’S WHOLESALE CLUB, INC. | HJZ CONSULTING, INC. | |||
| /s/ Laura J. Sen | /s/ Herbert J Zarkin | |||
| Laura J. Sen | Herbert J Zarkin | |||
| President and, Chief Executive Officer | ||||
| 5/27/10 | 5/28/10 | |||
| Date | Date | |||
| 4 | Herbert J Zarkin’s Initials |