Table of Contents

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D. C. 20549

 

 

FORM 10-K

 

 

(Mark One)

x ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the fiscal year ended January 31, 2009

or

 

¨ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the transition period from              to             

Commission file number 001-15274

LOGO

 

 

J. C. PENNEY COMPANY, INC.

(Exact name of registrant as specified in its charter)

 

Delaware   26-0037077

(State or other jurisdiction of

incorporation or organization)

 

(I.R.S. Employer

Identification No.)

6501 Legacy Drive, Plano, Texas 75024 – 3698

(Address of principal executive offices)

(Zip Code)

(972) 431-1000

(Registrant’s telephone number, including area code)

 

 

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class

 

Name of each exchange on which registered

Common Stock of 50 cents par value

Preferred Stock Purchase Rights

 

New York Stock Exchange

New York Stock Exchange

Securities registered pursuant to section 12(g) of the Act:

None

(Title of class)

 

 

Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.    Yes   x     No   ¨

Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or 15(d) of the Act.    Yes   ¨     No   x

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.    Yes   x     No   ¨

Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K (§ 229.405 of this chapter) is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K.   x

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer   x

 

Accelerated filer   ¨

Non-accelerated filer   ¨

(Do not check if a smaller reporting company)

 

Smaller reporting company   ¨

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).     Yes   ¨     No   x

State the aggregate market value of the voting and non-voting common equity held by non-affiliates computed by reference to the price at which the common equity was last sold, or the average bid and asked price of such common equity, as of the last business day of the registrant’s most recently completed second fiscal quarter (August 2, 2008). $6,693,199,575

Indicate the number of shares outstanding of each of the registrant’s classes of common stock, as of the latest practicable date.

222,258,048 shares of Common Stock of 50 cents par value, as of March 16, 2009.

DOCUMENTS INCORPORATED BY REFERENCE

 

Documents from which portions are incorporated by reference

 

Parts of the Form 10-K into which incorporated

J. C. Penney Company, Inc. 2009 Proxy Statement   Part III

 

 

 


Table of Contents

INDEX

 

          Page

Part I

     

Item 1.

  

Business

   1

Item 1A.

  

Risk Factors

   4

Item 1B.

  

Unresolved Staff Comments

   7

Item 2.

  

Properties

   8

Item 3.

  

Legal Proceedings

   8

Item 4.

  

Submission of Matters to a Vote of Security Holders

   8

Part II

     

Item 5.

  

Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities

   9

Item 6.

  

Selected Financial Data

   11

Item 7.

  

Management’s Discussion and Analysis of Financial Condition and Results of Operations

   13

Item 7A.

  

Quantitative and Qualitative Disclosures About Market Risk

   40

Item 8.

  

Financial Statements and Supplementary Data

   40

Item 9.

  

Changes in and Disagreements With Accountants on Accounting and Financial Disclosure

   40

Item 9A.

  

Controls and Procedures

   40

Item 9B.

  

Other Information

   43

Part III

     

Item 10.

  

Directors, Executive Officers and Corporate Governance

   43

Item 11.

  

Executive Compensation

   43

Item 12.

  

Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters

   44

Item 13.

  

Certain Relationships and Related Transactions, and Director Independence

   44

Item 14.

  

Principal Accounting Fees and Services

   44

Part IV

     

Item 15.

  

Exhibits, Financial Statement Schedules

   45
  

Signatures

   46
  

Index to Consolidated Financial Statements

   F-1
  

Exhibit Index

   E-1

 

i


Table of Contents

PART I

Item 1.    Business.

Business Overview

J. C. Penney Company, Inc. is a holding company whose principal operating subsidiary is J. C. Penney Corporation, Inc. (JCP). JCP was incorporated in Delaware in 1924, and J. C. Penney Company, Inc. was incorporated in Delaware in 2002, when the holding company structure was implemented. The new holding company assumed the name J. C. Penney Company, Inc. (Company). The holding company has no independent assets or operations, and no direct subsidiaries other than JCP. Common stock of the Company is publicly traded under the symbol “JCP” on the New York Stock Exchange. The Company is a co-obligor (or guarantor, as appropriate) regarding the payment of principal and interest on JCP’s outstanding debt securities. The guarantee by the Company of certain of JCP’s outstanding debt securities is full and unconditional. The holding company and its consolidated subsidiaries, including JCP, are collectively referred to in this Annual Report on Form 10-K as “we”, “us”, “our”, “ourselves”, “Company” or “JCPenney.”

Since our founding by James Cash Penney in 1902, we have grown to be a major retailer, operating 1,093 JCPenney department stores in 49 states and Puerto Rico as of January 31, 2009. Our business consists of selling merchandise and services to consumers through our department stores and Direct (Internet/catalog) channels. Department stores and Direct generally serve the same type of customers and provide virtually the same mix of merchandise, and department stores accept returns from sales made in stores, via the Internet and through catalogs. We sell family apparel and footwear, accessories, fine and fashion jewelry, beauty products through Sephora inside JCPenney and home furnishings. In addition, the department stores provide our customers with services such as styling salon, optical, portrait photography and custom decorating. See Total Net Sales Mix on page 18 for sales by category.

A five-year summary of certain financial and operational information regarding our continuing operations can be found in Part II, Item 6, Selected Financial Data, of this Annual Report on Form 10-K. For a discussion of our ongoing merchandise initiatives, see Part II, Item 7, Management’s Discussion and Analysis of Financial Condition and Results of Operations.

Competition and Seasonality

The business of marketing merchandise and services is highly competitive. We are one of the largest department store, catalog and e-commerce retailers in the United States, and we have numerous competitors, as further described in Item 1A, Risk Factors. Many factors enter into the competition for the consumer’s patronage, including price, quality, style, service, product mix, convenience and credit availability. Our annual earnings depend to a great extent on the results of operations for the last quarter of the fiscal year, which includes the holiday season, when a significant portion of our sales and profits are recorded.

Trademarks

The JCPenney, Every Day Matters, Okie Dokie, Worthington, east5th, a.n.a, St. John’s Bay, The Original Arizona Jean Company, Ambrielle, Decree, Linden Street, Stafford, J. Ferrar, JCPenney Home Collection and Studio by JCPenney Home Collection trademarks, as well as certain other trademarks, have been registered, or are the subject of pending trademark applications with the United

 

-1-


Table of Contents

States Patent and Trademark Office and with the registries of many foreign countries and/or are protected by common law. We consider our marks and the accompanying name recognition to be valuable to our business. For further discussion of our private brands, see Part II, Item 7, Management’s Discussion and Analysis of Financial Condition and Results of Operations.

Web Site Availability

We maintain an Internet Web site at www.jcpenney.net and make available free of charge through this Web site our annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K and all related amendments to those reports, as soon as reasonably practicable after the materials are electronically filed with or furnished to the Securities and Exchange Commission. In addition, the Web site also provides press releases, an investor update package, access to webcasts of management presentations and other materials useful in evaluating our Company.

Suppliers

We have a diversified supplier base, both domestic and foreign, and are not dependent to any significant degree on any single supplier. We purchase our merchandise from approximately 3,550 domestic and foreign suppliers, many of which have done business with us for many years. In addition to our Plano, Texas home office, we, through our international purchasing subsidiary, maintained buying and quality assurance inspection offices in 18 foreign countries as of January 31, 2009.

Employment

The Company and its consolidated subsidiaries employed approximately 147,000 full-time and part-time associates as of January 31, 2009.

Environmental Matters

Environmental protection requirements did not have a material effect upon our operations during 2008. While we believe it would be unlikely, it is possible that compliance with such requirements would lengthen lead time in expansion plans and increase construction costs, and therefore operating costs, due in part to the expense and time required to conduct environmental and ecological studies and any required remediation.

As of January 31, 2009, we estimated our total potential environmental liabilities to range from $34 million to $46 million and recorded our best estimate of $39 million in other liabilities in the Consolidated Balance Sheet as of that date. This estimate covered potential liabilities primarily related to underground storage tanks, remediation of environmental conditions involving our former Eckerd drugstore locations and asbestos removal in connection with approved plans to renovate or dispose of our facilities. We continue to assess required remediation and the adequacy of environmental reserves as new information becomes available and known conditions are further delineated. If we were to incur losses at the upper end of the estimated range, we do not believe that such losses would have a material effect on our financial condition, results of operations or liquidity.

 

-2-


Table of Contents

Executive Officers of the Registrant

The following is a list, as of March 16, 2009, of the names and ages of the executive officers of J. C. Penney Company, Inc. and of the offices and other positions held by each such person with the Company. These officers hold identical positions with JCP. References to JCPenney positions held during fiscal years 2001 and earlier (prior to the creation of the holding company) are for JCP. There is no family relationship between any of the named persons.

 

Name

  

Offices and Other Positions Held With the Company

   Age

Myron E. Ullman, III

   Chairman of the Board and Chief Executive Officer    62

Robert B. Cavanaugh

   Executive Vice President and Chief Financial Officer    57

Janet L. Dhillon

   Executive Vice President, General Counsel and Secretary    46

Ken C. Hicks

   President and Chief Merchandising Officer, Director    56

Dennis P. Miller

   Senior Vice President and Controller    56

Thomas M. Nealon

   Executive Vice President and Chief Information Officer    48

Michael T. Theilmann

   Executive Vice President, Chief Human Resources and Administration Officer    44

Mr. Ullman has served as Chairman of the Board of Directors and Chief Executive Officer of the Company since 2004. He was Directeur General, Group Managing Director, LVMH Moët Hennessy Louis Vuitton (luxury goods manufacturer/retailer) from 1999 to 2002. He was President of LVMH Selective Retail Group from 1998 to 1999. From 1995 to 1998, he was Chairman of the Board and Chief Executive Officer of DFS Group Ltd. From 1992 to 1995, he was Chairman of the Board and Chief Executive Officer of R. H. Macy & Company, Inc. He has served as a director of the Company and as a director of JCP since 2004.

Mr. Cavanaugh has served as Executive Vice President and Chief Financial Officer of the Company since 2001. He served as Senior Vice President and Chief Financial Officer of Eckerd Corporation, a former subsidiary of the Company, from 1999 to 2001. From 1996 to 1999, he served as Vice President and Treasurer of the Company. He has served as a director of JCP since 2002.

Ms. Dhillon was elected Executive Vice President, General Counsel and Secretary of the Company effective February 24, 2009. Prior to joining the Company, she served as Senior Vice President and General Counsel of US Airways Group, Inc. and US Airways, Inc. from 2006 to 2009. Ms. Dhillon joined US Airways, Inc. in August 2004 as Managing Director and Associate General Counsel and served as Vice President and Deputy General Counsel of US Airways Group, Inc. and US Airways, Inc. from January 2005 to September 2006. Ms. Dhillon was with the law firm of Skadden, Arps, Slate, Meagher & Flom LLP from 1991 to 2004.

Mr. Hicks has served as President and Chief Merchandising Officer of the Company since 2005. He served as President and Chief Operating Officer of Stores and Merchandise Operations from July 2002 through December 2004. He has served as a director, and President and Chief Merchandising Officer of JCP since January 2005. He served as President and Chief Operating Officer of Stores and Merchandise Operations of JCP from 2002 to 2004. From 1999 to 2002, he served as President of Payless ShoeSource, Inc. He has served as a director of the Company since 2008.

Mr. Miller has served as Senior Vice President and Controller of the Company since June 2008. He served as Vice President, Director of Procurement and Strategic Sourcing of JCP from 2004 to 2008.

 

-3-


Table of Contents

From 2001 to 2004, he served as Senior Vice President and Chief Financial Officer of Eckerd Corporation, a former subsidiary of the Company.

Mr. Nealon has served as Executive Vice President and Chief Information Officer since 2006. From 2002 to 2006, he was employed by EDS, where he served on assignment as the Senior Vice President and Chief Information Officer of Southwest Airlines Co. From 2000 to 2002, he was a partner with the Feld Group.

Mr. Theilmann has served as Executive Vice President, Chief Human Resources and Administration Officer of the Company since 2005. From 2002 to 2005, he served as Senior Vice President, Human Resources and Chief People Officer of the International business of Yum! Brands Inc. From 2000 to 2002, he served as Vice President of Human Resources for European operations at Yum! Brands Inc.

Item 1A.    Risk Factors.

The following risk factors should be read carefully in connection with evaluating our business and the forward-looking information contained in this Annual Report on Form 10-K. Any of the following risks could materially adversely affect our business, operating results, financial condition and the actual outcome of matters as to which forward-looking statements are made in this Annual Report on Form 10-K.

Current and future economic conditions may cause a continued deterioration in the level of consumer confidence and spending, which could adversely affect our growth and profitability.

Our results of operations are sensitive to changes in overall economic and political conditions that impact consumer spending, including discretionary spending. Many economic factors outside of our control, including the housing market, interest rates, recession, inflation and deflation, energy costs and availability, consumer credit availability and terms, consumer debt levels, tax rates and policy, and unemployment trends influence consumer confidence and spending. Many of the effects and consequences of the global financial crisis are currently unknown; accordingly, our business and financial performance may be adversely affected by current and future economic conditions. Worldwide economic conditions and consumer spending have deteriorated significantly over the past year. The continued decline in consumer spending resulting from the global recession and the deterioration of global credit markets has caused our comparable store sales to decline from prior periods and has led to a continued decline in store traffic. In addition, a prolonged economic downturn could cause some of our competitors to go out of business which could also have an adverse effect on store traffic. The domestic and international political situation also affects consumer confidence and spending. Additional events that could impact our performance include pandemics, terrorist threats and activities, worldwide military and domestic disturbances and conflicts, and political instability. Continued deterioration in the level of consumer spending could adversely affect our growth and profitability.

The retail industry is highly competitive, which could adversely impact our sales and profitability.

The retail industry is highly competitive, with few barriers to entry. We compete with many other local, regional and national retailers for customers, associates, locations, merchandise, services and other important aspects of our business. Those competitors include other department stores,

 

-4-


Table of Contents

discounters, home furnishing stores, specialty retailers, wholesale clubs, direct-to-consumer businesses and other forms of retail commerce. Some competitors are larger than JCPenney, have greater financial resources available to them, and, as a result, may be able to devote greater resources to sourcing, promoting and selling their products. Competition is characterized by many factors, including merchandise assortment, advertising, price, quality, service, location, reputation and credit availability. The performance of competitors as well as changes in their pricing and promotional policies, marketing activities, new store openings, launches of Internet Web sites, brand launches and other merchandise and operational strategies could cause us to have lower sales, lower gross margin and/or higher operating expenses such as marketing costs and other selling, general and administrative expenses, which in turn could have an adverse impact on our profitability.

Our sales and operating results depend on customer preferences and fashion trends.

Our sales and operating results depend in part on our ability to predict and respond to changes in fashion trends and customer preferences in a timely manner by consistently offering stylish quality merchandise assortments at competitive prices. We continuously assess emerging styles and trends and focus on developing a merchandise assortment to meet customer preferences. Even with these efforts, we cannot be certain that we will be able to successfully meet constantly changing customer demands. To the extent our predictions differ from our customers’ preferences, we may be faced with excess inventories for some products and/or missed opportunities for others. Excess inventories can result in lower gross margins due to greater than anticipated discounts and markdowns that might be necessary to reduce inventory levels. Low inventory levels can adversely affect the fulfillment of customer demand and diminish sales and brand loyalty. Consequently, any sustained failure to identify and respond to emerging trends in lifestyle and customer preferences and buying trends could have an adverse impact on our business and any significant misjudgments regarding inventory levels could adversely impact our results of operations.

Our profitability depends on our ability to source merchandise and deliver it to our customers in a timely and cost-effective manner.

Our merchandise is sourced from a wide variety of suppliers, and our business depends on being able to find qualified suppliers and access products in a timely and efficient manner. A substantial portion of our merchandise is sourced outside of the United States. All of our suppliers must comply with our supplier legal compliance program and applicable laws, including consumer and product safety laws. Although we diversify our sourcing and production by country, the failure of a supplier to produce and deliver our goods on time, to meet our quality standards and adhere to our product safety requirements or to meet the requirements of our supplier compliance program or applicable laws, or our inability to flow merchandise to our stores or through Direct in the right quantities at the right time could adversely affect our profitability and could result in damage to our reputation. Additionally, the impact of current and future economic conditions on our suppliers cannot be predicted and may cause our suppliers to be unable to access financing or become insolvent and thus become unable to supply us with products. Similarly, political or financial instability, changes in U.S. and foreign laws and regulations affecting the importation and taxation of goods, including duties, tariffs and quotas, or changes in the enforcement of those laws and regulations, as well as currency exchange rates, transport capacity and costs and other factors relating to foreign trade and the inability to access suitable merchandise on acceptable terms could adversely impact our results of operations.

 

-5-


Table of Contents

Our business is seasonal.

Our annual earnings and cash flows depend to a great extent on the results of operations for the last quarter of our fiscal year, which includes the holiday season. Our fiscal fourth-quarter results may fluctuate significantly, based on many factors, including holiday spending patterns and weather conditions. This seasonality causes our operating results to vary considerably from quarter to quarter.

The moderation of our new store growth strategy as a result of current economic conditions could adversely impact our future growth and profitability.

Our future growth and profitability depend in part on our ability to add new stores, primarily in the off-mall format. Current and projected future economic conditions have caused us to moderate the number of new stores that we plan to open in the near term and have made it difficult for third-party developers to obtain financing for new sites. These factors could negatively impact our future anticipated store openings. Furthermore, although we have conducted strategic market research, including reviewing demographic and regional economic trends, prior to making a decision to enter into a particular market, we cannot be certain that our entry into a particular market will prove successful. The failure to expand by successfully opening new stores as planned, or the failure of a significant number of these stores to perform as planned, could have an adverse impact on our future growth, profitability and cash flows.

The failure to retain, attract and motivate our associates, including associates in key positions, could have an adverse impact on our results of operations.

Our results depend on the contributions of our associates, including our senior management team and other key associates. Since 2000, we have hired seasoned individuals, including executive level associates and others with a breadth of experience in merchandising, marketing, and buying and allocation under a centralized model. Our performance depends to a great extent on our ability to retain, attract and motivate talented associates throughout the organization, many of whom, particularly in the department stores, are in entry level or part-time positions with historically high rates of turnover. Our ability to meet our labor needs while controlling our costs is subject to external factors such as unemployment levels, prevailing wage rates, minimum wage legislation and changing demographics. If we are unable to retain, attract and motivate talented associates at all levels, our results of operations could be adversely impacted.

Changes in federal, state or local laws and regulations could expose us to legal risks and adversely affect our results of operations.

Our business is subject to a wide array of laws and regulations. While our management believes that our associate relations are good, significant legislative changes that impact our relationship with our associates could increase our expenses and adversely affect our results of operations. Examples of possible legislative changes impacting our relationship with our associates include changes to an employer’s obligation to recognize collective bargaining units, the process by which collective bargaining agreements are negotiated or imposed, minimum wage requirements, and health care mandates. In addition, if we fail to comply with applicable laws and regulations we could be subject to legal risk, including government enforcement action and class action civil litigation. Changes in the regulatory environment regarding other topics such as privacy and information security, product safety or environmental protection, among others, could also cause our expenses to increase and adversely affect our results of operations.

 

-6-


Table of Contents

Our operations are dependent on information technology systems; disruptions in those systems could have an adverse impact on our results of operations.

Our operations are dependent upon the integrity, security and consistent operation of various systems and data centers, including the point-of-sale systems in the stores, data centers that process transactions, communication systems and various software applications used throughout our Company to track inventory flow, process transactions and generate performance and financial reports. We could encounter difficulties in developing new systems or maintaining and upgrading existing systems. Such difficulties could lead to significant expenses or to losses due to disruption in business operations. In addition, despite our considerable efforts and technology to secure our computer network, security could be compromised, confidential information could be misappropriated or system disruptions could occur. This could lead to loss of sales or profits, cause our customers to lose confidence in our ability to protect their personal information which could lead to lost future sales or cause us to incur significant costs to reimburse third parties for damages, any of which could have an adverse impact on our results of operations. In addition, the continued realization of the benefits of our centralized buying and allocation processes and systems is a key element of our ability to meet our long-term customer and financial goals. The effectiveness of these processes and systems is an important component of our ability to have the right inventory at the right place, time and price.

Significant changes in discount rates, actual investment return on pension assets, and other factors could affect our earnings, equity, and pension contributions in future periods.

Our earnings may be positively or negatively impacted by the amount of income or expense recorded for our qualified pension plan. Generally accepted accounting principles in the United States of America (GAAP) require that income or expense for the plan be calculated at the annual measurement date using actuarial assumptions and calculations. The most significant assumptions relate to the capital markets, interest rates and other economic conditions. Changes in key economic indicators can change the assumptions. Two critical assumptions used to estimate pension income or expense for the year are the expected long-term rate of return on plan assets and the interest rate. In addition, at the measurement date, we must also reflect the funded status of the plan (assets and liabilities) on the balance sheet, which may result in a significant change to equity through a reduction or increase to other comprehensive income. Although GAAP expense and pension contributions are not directly related, the key economic factors that affect GAAP expense would also likely affect the amount of cash we could be required to contribute to the pension plan. Potential pension contributions include both mandatory amounts required under federal law and discretionary contributions to improve a plan’s funded status.

Item 1B.    Unresolved Staff Comments.

None.

 

-7-


Table of Contents

Item 2.    Properties.

At January 31, 2009, we operated 1,093 department stores throughout the continental United States, Alaska and Puerto Rico, of which 389 were owned, including 105 stores located on ground leases. We owned and operated four Direct (Internet/catalog) fulfillment centers and operated five regional warehouses, of which four were owned. In addition, we owned seven of our 13 store merchandise distribution centers, each of which was located in our owned fulfillment centers or regional warehouses, as well as our home office facility in Plano, Texas, and approximately 240 acres of property adjacent to the facility.

The following table lists our 1,093 JCPenney department stores operating as of January 31, 2009.

 

Alabama

   21       Maine    6       Oklahoma    18

Alaska

   1       Maryland    17       Oregon    14

Arizona

   22       Massachusetts    13       Pennsylvania    41

Arkansas

   16       Michigan    45       Rhode Island    3

California

   79       Minnesota    26       South Carolina    18

Colorado

   21       Mississippi    17       South Dakota    8

Connecticut

   10       Missouri    25       Tennessee    25

Delaware

   3       Montana    9       Texas    89

Florida

   59       Nebraska    12       Utah    9

Georgia

   30       Nevada    7       Vermont    6

Idaho

   9       New Hampshire    10       Virginia    27

Illinois

   42       New Jersey    17       Washington    23

Indiana

   30       New Mexico    10       West Virginia    9

Iowa

   20       New York    42       Wisconsin    25

Kansas

   18       North Carolina    36       Wyoming    5

Kentucky

   22       North Dakota    8       Puerto Rico    7

Louisiana

   16       Ohio    47         

Information relating to certain of our facilities is included in Part II, Item 6, Selected Financial Data, of this Annual Report on Form 10-K.

Item 3.    Legal Proceedings.

The Company has no material proceedings pending against it.

Item 4.    Submission of Matters to a Vote of Security Holders.

No matters were submitted to a vote of stockholders during the fourth quarter of fiscal 2008.

 

-8-


Table of Contents

PART II

Item 5.    Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities.

Market for Registrant’s Common Equity

Our common stock is traded principally on the New York Stock Exchange (NYSE) under the symbol “JCP.” The number of stockholders of record at March 16, 2009 was 34,554. In addition to common stock, we have authorized 25 million shares of preferred stock, of which no shares were issued and outstanding at January 31, 2009.

The table below sets forth the quoted high and low market prices of our common stock on the NYSE for each quarterly period indicated, the quarter-end closing market price of our common stock, as well as the quarterly cash dividends declared per share of common stock:

 

     First Quarter    Second Quarter    Third Quarter    Fourth Quarter  
Per share:    2008    2007    2008    2007    2008    2007    2008    2007  

Dividend

   $ 0.20    $ 0.20    $ 0.20    $ 0.20    $ 0.20    $ 0.20    $ 0.20    $ 0.20  
        

Market price:

                       

High

   $   51.42    $   87.18    $   46.56    $   82.49    $   44.20    $   70.21    $   24.22    $   53.03  

Low

   $ 35.00    $ 76.50    $ 27.65    $ 65.73    $ 18.03    $ 52.82    $ 13.95    $ 33.27  

Close

   $ 45.18    $ 80.06    $ 30.20    $ 65.73    $ 23.92    $ 53.29    $ 16.75    $ 48.50  

Our Board of Directors (Board) reviews the dividend policy and rate on a quarterly basis, taking into consideration the overall financial and strategic outlook for our earnings, liquidity and cash flow projections, as well as competitive factors. On March 26, 2009, the Board declared a quarterly dividend of $0.20 per share to be paid on May 1, 2009.

Additional information relating to the common stock and preferred stock is included under the captions “Consolidated Statements of Stockholders’ Equity” (page F-5), and “Capital Stock” (page F-20), which appear in this Annual Report on Form 10-K on the pages indicated.

Issuer Purchases of Securities

No repurchases of common stock were made during the fourth quarter of 2008, and no amounts remained authorized for share repurchase as of January 31, 2009.

 

-9-


Table of Contents

Five-Year Total Stockholder Return Comparison

The following presentation compares JCPenney’s cumulative stockholder returns for the last five fiscal years with the returns of the S&P 500 Stock Index and the S&P 500 Retail Index for Department Stores over the same period. A list of these companies follows the graph below. The graph assumes $100 invested at the closing price of our common stock on the NYSE and each index as of the last trading day of our fiscal year 2003 and assumes that all dividends were reinvested on the date paid. The points on the graph represent fiscal year-end amounts based on the last trading day of each fiscal year. The following graph and related information shall not be deemed “soliciting material” or to be “filed” with the Securities and Exchange Commission, nor shall such information be incorporated by reference into any filing under the Securities Act of 1933 or Securities Exchange Act of 1934, each as amended, except to the extent that we specifically incorporate it by reference into such filing.

LOGO

 

       2003    2004    2005    2006    2007    2008

JCPenney

   $   100    $   161    $   220    $   331    $   194    $   69

S&P 500

     100      105      118      135      133      81

S&P Department Stores

     100      118      137      197      126      60

The stockholder returns shown are neither determinative nor indicative of future performance.

 

-10-


Table of Contents

Item 6.    Selected Financial Data.

FIVE-YEAR FINANCIAL SUMMARY (UNAUDITED)

 

(in millions, except per share data)    2008     2007     2006     2005     2004  

FINANCIAL SUMMARY

          

Results for the year

          

Total net sales

   $ 18,486     $ 19,860     $ 19,903     $ 18,781     $ 18,096  

Sales percent (decrease)/increase:

          

Total net sales

     (6.9 )%     (0.2 )% (1)     6.0 % (1)     3.8 %     3.3 % (1)

Comparable store sales (2)

     (8.5 )%     0.0 %     4.9 %     4.2 %     5.9 %

Gross margin

     6,915       7,671       7,825       7,191       6,792  

Selling, general and administrative (SG&A) expenses

     5,395       5,402       5,470 ( 3 )     5,115       5,015  

Pension (income)/expense

     (90 )     (45 )     51       112       120  

Depreciation and amortization expenses

     469       426       389       372       359  

Income from continuing operations

     567       1,105       1,134       977       657  

Ratios as a percent of sales:

          

Gross margin

     37.4 %     38.6 %     39.3 %     38.3 %     37.5 %

SG&A expenses

     29.2 %     27.2 %     27.5 %     27.2 %     27.7 %

Total operating expenses

     31.3 %     29.1 %     29.6 %     29.6 %     30.5 %

Operating income

     6.1 %     9.5 %     9.7 %     8.7 %     7.0 %

Return on beginning stockholders’ equity – continuing operations

     10.7 %     25.8 %     28.3 %     20.1 %     12.1 %

Return on beginning invested capital – continuing operations (4)

     8.1 %     16.5 %     17.4 %     13.3 %     8.4 %

Per common share

          

Income from continuing operations, diluted

   $ 2.54     $ 4.90     $ 4.88     $ 3.83     $ 2.20  

Dividends declared

     0.80       0.80       0.72       0.50       0.50  

Stockholders’ equity

     18.70       23.95       19.02       17.21       17.89  

Financial position and cash flow

          

Total assets

   $   12,011     $   14,309     $   12,673     $   12,461     $   14,127  

Merchandise inventory

     3,259       3,641       3,400       3,210       3,142  

Property and equipment, net

     5,367       4,959       4,162       3,748       3,575  

Long-term debt, including current maturities

     3,505       3,708       3,444       3,465       3,923  

Stockholders’ equity

     4,155       5,312       4,288       4,007       4,856  

Cash flow from operating activities – continuing operations

     1,155       1,249       1,258       1,339       1,219  

Capital expenditures

     969       1,243       772       535       398  

Dividends paid, common and preferred

     178       174       153       131       150  

Other

          

Common shares outstanding at end of year

     222       222       226       233       271  

Weighted-average common shares:

          

Basic

     222       223       229       253       279  

Diluted

     223       225       232       255       307  

(1) 2006 and 2003 contained 53 weeks. Total net sales percent includes the effect of the 53rd week in 2006. Excluding sales of $254 million for the 53rd week in 2006, total net sales increased 1.1% and 4.6% for 2007 and 2006, respectively. Excluding sales of $198 million for the 53 rd week of 2003, total net sales for 2004 increased 4.5%.

(2) Comparable store sales are presented on a 52-week basis and include sales from new and relocated stores that have been opened for 12 consecutive full fiscal months and online sales, through jcp.com. Stores closed for an extended period are not included in comparable store sales calculations, while stores remodeled and minor expansions not requiring store closures remain in the calculations.

(3) Includes $65 million of incremental SG&A expenses for the 53 rd week of 2006.

(4) Represents income from continuing operations plus after-tax interest expense on long-term debt divided by the sum of beginning of year stockholders’ equity and long-term debt, including current maturities.

 

-11-


Table of Contents

FIVE-YEAR OPERATIONS SUMMARY (UNAUDITED)

 

     2008     2007     2006     2005     2004  

OPERATIONS SUMMARY

          

Number of JCPenney department stores:

          

Beginning of year

     1,067       1,033       1,019       1,017       1,020  

Openings

     35       50       28       18       14  

Closings (1)

     (9 )     (16 )     (14 )     (16 )     (17 )
        

End of year

     1,093       1,067       1,033       1,019       1,017  
        

Gross selling space (square feet in millions)

       109.9         106.6         103.1         101.4         101.3  

Sales per gross square foot ( 2 )

   $ 160     $ 177     $ 176     $ 167     $ 159  

Sales per net selling square foot ( 2 )

   $ 223     $ 248     $ 248     $ 236     $ 225  

Third-party merchants, outlet stores and other ( 3 )

     345       358       417       448       470  

(1) Includes relocations of 7, 15, 10, 11, and 11, respectively.

(2) Calculation includes the sales and square footage of department stores that were open for a full year as of each year end and sales for jcp.com. The 2006 calculations exclude sales of the 53rd week.

(3) In addition to these catalog sales facilities, we have catalog desks in substantially all of our department stores.

 

-12-


Table of Contents

Item 7.    Management’s Discussion and Analysis of Financial Condition and Results of Operations.

The following discussion, which presents our results, should be read in conjunction with the accompanying consolidated financial statements and notes thereto beginning on page F-3, along with the unaudited Five-Year Financial and Operations Summaries on pages 11 and 12, the risk factors beginning on page 4 and the cautionary statement regarding forward-looking information on page 39. Unless otherwise indicated, this Management’s Discussion and Analysis (MD&A) relates only to results from continuing operations, all references to earnings per share (EPS) are on a diluted basis and all references to years relate to fiscal years rather than to calendar years. Fiscal 2008 and 2007 each contained 52 weeks, while 2006 contained 53 weeks.

Corporate Governance and Financial Reporting

We remain committed to maintaining the highest standards of corporate governance and continuously improving the transparency of our financial reporting by providing stockholders with informative financial disclosures and presenting a clear and balanced view of our financial position and operating results. We continue to employ a reporting matrix that requires written certifications on a quarterly basis from a cross-disciplined team of approximately 20 senior members of our management team who have responsibility for preparing, verifying and reporting corporate results.

For this Annual Report on Form 10-K, we made further enhancements to our financial reporting with expanded disclosures in several areas, such as:

 

   

reordered the sequence of MD&A to present a better flow of information;

   

included in the discussion of gross margin and selling, general and administrative (SG&A) expenses a description of the key components;

   

added a liquidity table to facilitate the discussion of financial condition and liquidity;

   

added pension expense as a separate line item on the Consolidated Statements of Operations to enhance and clarify disclosures regarding pension expense;

   

added clarity to the balance sheet by reclassifying income taxes receivable to a separate line item and credit card transactions awaiting settlements to cash and cash equivalents, which were formerly included in the “receivables” line item; and

   

changed the balance sheet line item “cash and short-term investments” to “cash and cash equivalents,” which is more representative of its components.

Consistent with the requirements of Section 404 of the Sarbanes-Oxley Act of 2002, we are required to report on the effectiveness of our internal control over financial reporting each fiscal year. In relation to these requirements, our external auditors expressed an unqualified opinion regarding the effective operation of our internal control over financial reporting.

Executive Overview

The fourth quarter of 2008 marked the sixth consecutive quarter in which our results of operations were negatively impacted by the weakened economic environment. For the full year of 2008, we experienced a decline in comparable store sales of 8.5%. While comparable store sales were down 5.8% during the first half of the year, they decreased sharply by 10.5% during the second half of the year, indicating a further decline in consumer confidence that reached new lows when the economic downturn became a global economic crisis. Income from continuing operations for 2008 decreased

 

-13-


Table of Contents

48.7% to $567 million. Diluted EPS from continuing operations was $2.54 for 2008 compared to $4.90 for 2007. Operating income was $1,135 million, or 6.1% of sales, versus $1,888 million, or 9.5% of sales, in 2007. To enhance our liquidity position and ensure we maintain a strong financial position, we addressed these difficult operating conditions by focusing on those areas within our control, specifically by reducing inventory and tightly controlling operating expenses. As a result of our efforts, we finished the year with approximately $2.4 billion of cash and cash equivalents on our balance sheet. Our strong liquidity and solid financial position allow us to focus our efforts on appropriately managing inventory levels, operating expenses and capital expenditures under our Bridge Plan without the need for substantial changes to our business model. A significant accomplishment and indication of our solid financial position is shown by our free cash flow (a non-GAAP financial measure defined and discussed on page 28), which provided a positive $21 million despite the harsh economic conditions.

2008 Key Items

   

The difficult economic environment impacting consumers continued to deteriorate in 2008 and included a further pronounced slowdown in consumer spending levels during the second half of the year. Tightening credit availability, the downturn of the housing and real estate market, rising unemployment and turmoil in the global capital markets weighed heavily on the consumer. Lower consumer spending and declining mall traffic impacted our sales. However, despite the challenging environment, we continued to focus on managing inventory and controlling operating expenses. At the same time, we continued to execute initiatives to deliver on the value proposition that our customers have come to expect from JCPenney – through newness in merchandise, competitive pricing, enhanced customer service and convenience of shopping in stores, catalog and jcp.com.

 

   

Despite the economic conditions, during 2008 we generated $21 million of positive free cash flow (a non-GAAP financial measure defined and discussed on page 28). This represents a $163 million improvement over 2007.

 

   

Comparable store inventory as of the end of 2008 decreased 13.5% from the prior year as a result of significant actions to lower merchandise receipts and increased clearance activity. Merchandise inventory at the end of 2008 was in alignment with sales trends expected for the near term.

 

   

SG&A expenses decreased $7 million, or 0.1%, in 2008 as compared to 2007, despite the incremental expenses associated with 35 new stores (26 net of closings and relocations). SG&A expenses for 2008 were well managed across the organization without compromising the customer shopping experience.

 

   

In 2008, we opened 35 new and relocated stores, including 31 in the off-mall format. Net of relocations and store closings, gross selling space increased 3.0%. We also opened 44 new Sephora inside JCPenney locations during the year, which brought the total to 91 locations. Sephora inside JCPenney brings an industry-leading beauty concept to JCPenney customers and continues to be one of the strongest areas of our business.

Current Developments

   

In March 2009, our Board declared a quarterly dividend of $0.20 per share to be paid to stockholders on May 1, 2009. The dividend rate remains unchanged from our previous quarterly dividend payment.

 

   

In March 2009, we opened nine new stores, including one relocation. We also opened 14 additional Sephora inside JCPenney locations, including nine in the new stores and five in

 

-14-


Table of Contents
 

existing stores, bringing our total Sephora inside JCPenney locations to 105. We expect to add 50 Sephora inside JCPenney locations during the remainder of 2009, bringing our total to 155 at the end of 2009.

 

 

 

In February 2009, we launched our spring marketing campaign showcasing our compelling selection of affordable, exclusive designer brands. The campaign kicked off with commercials at the 2009 Academy Awards featuring several authentic designers from our portfolio, including nicole ® by Nicole Miller, Bisou Bisou ® by Michele Bohbot, ALLEN B. ® by Allen B. Schwartz, Fabulosity ™ by Kimora Lee Simmons and I “Heart” Ronson ™ by Charlotte Ronson. Our spring campaign reflects our success as we are stepping up our style in delivering brands that inspire and enable customers to have exceptional style and quality at affordable prices.

 

 

 

In February 2009, we launched an interactive, fully-integrated, virtual runway show on jcp.com featuring spring styles from our compelling selection of affordable exclusive designer brands, including nicole ® by Nicole Miller, Bisou Bisou ® by Michele Bohbot, ALLEN B. ® by Allen B. Schwartz and I “Heart” Ronson ™ by Charlotte Ronson. The online experience gives our customers the opportunity to experience a dynamic runway show, complete with high energy music and 360 degree views of models in styles from each designer’s collection. The experience also includes video vignettes of our design partners sharing the inspiration behind their new collections along with their views on upcoming styles for spring.

 

   

Also in February 2009, we announced our official sponsorship of the “Rascal Flatts American Living Unstoppable Tour” presented by JCPenney. The tour will promote American Living, an affordable, all-American lifestyle brand developed exclusively for our customers by Polo Ralph Lauren’s Global Brand Concepts with offerings across 40 merchandise categories. Representing true Americana, Rascal Flatts’ music transcends genres and resonates strongly with many of our customers. The fully integrated two-year sponsorship will kick off in early June 2009, with the tour hitting about 60 cities across the nation each year. In conjunction with the tour, Rascal Flatts has written a new song inspired by the spirit of the brand titled “American Living,” which will serve as the soundtrack for our new American Living commercial and will be available in our stores.

 

   

In March 2009, we were recognized for our continued commitment to strategic energy management by the U.S. Department of Energy with the ENERGY STAR Award for Sustained Excellence in Energy Management. We are the first retailer to be honored with this award for our efforts in using energy efficiently in facility operations and integrating superior energy management into our overall organization strategy. We were selected from more than 12,000 organizations that participate in the ENERGY STAR program.

 

-15-


Table of Contents

Results of Operations

The following discussion and analysis, consistent with all other financial data throughout this Annual Report on Form 10-K, focuses on the results of operations and financial condition from our continuing operations.

Three-Year Comparison of Operating Performance

 

($ in millions, except EPS)    2008     2007     2006  

Total net sales

   $   18,486     $   19,860     $   19,903  

Percent (decrease)/increase from prior year

     (6.9 )%     (0.2 )% ( 1 )     6.0 % ( 1 )

Comparable store sales (decrease)/increase (2 )

     (8.5 )%     0.0 %     4.9 %
                        

Gross margin

     6,915       7,671       7,825  

Operating expenses:

      

Selling, general and administrative (SG&A)

     5,395       5,402       5,470  

Pension (income)/expense

     (90 )     (45 )     51  

Depreciation and amortization

     469       426       389  

Pre-opening

     31       46       27  

Real estate and other (income), net

     (25 )     (46 )     (34 )
                        

Total operating expenses

     5,780       5,783       5,903  
                        

Operating income

     1,135       1,888       1,922  

As a percent of sales

     6.1 %     9.5 %     9.7 %

Net interest expense

     225       153       130  

Bond premiums and unamortized costs

     -       12       -  
                        

Income from continuing operations before income taxes

     910       1,723       1,792  

Income tax expense

     343       618       658  
                        

Income from continuing operations

   $ 567     $ 1,105     $ 1,134  
                        

Diluted EPS from continuing operations

   $ 2.54     $ 4.90     $ 4.88  

(1) 2006 contained 53 weeks. Total net sales percent includes the effect of the 53 rd week in 2006. Excluding sales of $254 million for the 53 rd week in 2006, total net sales increased 1.1% and 4.6% for 2007 and 2006, respectively.

(2) Comparable store sales are presented on a 52-week basis and include sales from new and relocated stores that have been opened for 12 consecutive full fiscal months and online sales through jcp.com. Stores closed for an extended period are not included in comparable store sales calculations, while stores remodeled and minor expansions not requiring store closures remain in the calculations.

Income from continuing operations was $567 million in 2008, compared to $1,105 million in 2007 and $1,134 million in 2006. Our 2008 results were impacted by pressure on gross margins in a highly promotional selling environment, particularly during the holiday season. Gross margin declined both in dollars and as a percentage of sales from the pressure of declining sales levels that resulted from the slowdown in consumer spending. The impact on operating income from lower gross margin was somewhat mitigated by effective control over operating expenses, despite incremental expenses related to new store openings.

EPS from continuing operations in 2008 was $2.54, compared to $4.90 in 2007 and $4.88 in 2006. EPS in 2007 benefited from the reduction in average shares outstanding compared to the prior year due to the 2007 and 2006 common stock repurchase programs. Additionally, the 2007 results reflected tax credits of $38 million, or $0.17 per share, while 2006 results reflected a tax credit of $32 million, or

 

-16-


Table of Contents

$0.14 per share, both of which were due to the release of income tax reserves resulting from the favorable resolution of prior year tax matters.

Our 2007 results were impacted by gross margin pressure from the onset of the economic downturn that began in the second half of the year. Our 2006 earnings increased as a result of strong sales and gross margin improvement, combined with lower interest expense and bond premiums.

2008 Compared to 2007

Total Net Sales

Our year-to-year change in total net sales is comprised of (a) sales from new stores net of closings and relocations including catalog print media and outlet store sales, referred to as non-comparable store sales and (b) sales of stores opened in both years as well as online sales from jcp.com, referred to as comparable store sales. We consider comparable store sales to be a key indicator of our current performance measuring the growth in sales and sales productivity of existing stores. Positive comparable store sales contribute to greater leveraging of operating costs, particularly payroll and occupancy costs, while negative comparable store sales contribute to de-leveraging of costs. Comparable store sales also have a direct impact on our total net sales and the level of cash flow.

 

($ in millions)    2008     2007  

Total net sales

   $     18,486     $     19,860  
                

Sales percent (decrease)/increase

    

Total net sales

     (6.9 )%     (0.2 )%

Comparable store sales

     (8.5 )%     0.0 %

Sales per gross square foot (1 )

   $ 160     $ 177  

(1) Calculation includes the sales of stores that were open for the full fiscal year as of each year end, as well as online sales from jcp.com.

Total net sales in 2008 decreased $1,374 million as a result of a sharp slow down in consumer spending. The decline was mainly attributed to a comparable store sales decline of 8.5% and a decrease, as expected, in catalog print media and outlet store sales in our Direct channel. While comparable store sales decreased, sales from non-comparable stores opened in 2008 and 2007, net of closings, added $434 million. In 2008, we opened 26 net new stores (35 stores, net of 9 closings and relocations) and in 2007 we opened 34 net new stores (50 stores, net of 16 closings and relocations.) Over the course of 2008, the worsening consumer spending environment resulted in reduced sales from lower traffic in our mall stores, which decreased 5.4% from prior year traffic levels. Our off-mall traffic was also down compared to last year but had stronger traffic trends than our mall stores. Consistent with the difficult retail environment and the pronounced decrease in consumer spending, the number of transactions and the number of units sold declined for the year. Geographically, the best performing regions for the year were the central and northwest regions, while the southeast and southwest regions, which were more heavily impacted by declining home values, delivered the weakest performance. Sales of jcp.com, which are included in comparable stores sales, were essentially flat with last year at about $1.5 billion.

Although consumer spending steadily decreased over the year, we continued our leadership position in apparel, bringing style and newness through the launch of several private and exclusive brands. For the year, family shoes, along with women’s apparel and accessories were the best performing divisions. By contrast, and consistent with industry results, fine jewelry and home were the weakest businesses.

 

-17-


Table of Contents

Private and exclusive brands found only at JCPenney totaled approximately 52% and 49% of total merchandise sales for 2008 and 2007, respectively.

Total Net Sales Mix

The following percentages represent the mix of total net sales:

 

     2008     2007  

Women’s apparel

   24 %   23 %

Home

   20 %   21 %

Men’s apparel and accessories

   19 %   20 %

Children’s apparel

   11 %   11 %

Women’s accessories

   10 %   9 %

Family footwear

   6 %   6 %

Fine jewelry

   5 %   5 %

Services and other

   5 %   5 %
            
   100 %   100 %
            

Merchandise Initiatives

We remain committed to offering our customers compelling merchandise with the combination of style, quality and smart prices that they desire. In February 2008, we launched American Living™, a new updated traditional lifestyle brand created exclusively for JCPenney by Polo Ralph Lauren’s Global Brand Concepts. American Living™ is in the higher quality and pricing segment of our offerings across 40 merchandise categories for women, men and children, as well as shoes, accessories and home goods.

In April 2008, we launched Linden Street™, which was the most comprehensive home brand launch in our history. It is a blend of traditional and contemporary styles offering a classic, timeless design.

For the Back-to-School season, in junior’s, we launched private brand Decree ® , a denim-inspired line of apparel for girls and young women, and two new exclusive brands: LeTigre™ from Kenneth Cole Productions and Fabulosity™, a complete line of sportswear designed by Kimora Lee Simmons. For young men’s, we extended the exclusive American Living™ brand with new denim, graphic t-shirts and jackets, and launched White Tag™, a new “urban rock” inspired national brand of premium denim and art-driven t-shirts. In addition to the new fashion brands for Back-to-School, we introduced Dorm Life™, a new private modern lifestyle brand in the home division featuring merchandise to furnish a college dorm or off-campus housing.

In October 2008, we announced the significant enhancement of the longstanding and highly successful career brands Worthington ® for women and Stafford ® for men, to retain longtime customers and to attract new shoppers. We updated the private brands with new categories, fits and fabrics that overlap seasons.

Also in October 2008, we announced the spring 2009 launches of two new exclusive designer brands, I “Heart” Ronson™, a complete women’s fashion sportswear line designed by Charlotte Ronson, an innovator in the fashion industry; and ALLEN B. ® , a complete women’s fashion sportswear and dress collection by Allen B. Schwartz, a designer with talent in bringing the latest trends to market in record time. I “Heart” Ronson™ and ALLEN B. ® are exciting additions to our growing portfolio of exclusive designer brands, which continue to offer our customers coveted designer brands at smart prices.

 

-18-


Table of Contents

Marketing Initiatives

In July and November 2008, we supported the apparel launches with integrated marketing campaigns featuring the new brands. The campaigns targeted teens and included both traditional ads and non-traditional media components, such as in-cinema ads and mobile phone marketing, emails, web search and targeted direct mail and catalog. The messages were coordinated across all lines of the business, stores and Direct that represent an alignment of our offerings and provide a seamless shopping experience for customers.

Customer Service Initiatives

During 2008, store associates participated in CustomerFIRST, a training program focused on delivering extraordinary customer service that empowers associates to exceed customers’ expectations when they shop at our stores. Results of the CustomerFIRST program have been positive. Based on consumer research, customers rank us number one when asked about customer service, sales associate availability and whether they are treated with respect by sales associates. In January 2009, the National Retail Federation (NRF) Foundation/American Express 2008 Customer Service Survey, which placed us first in customer service among department store retailers, confirmed our leading customer service ranking and improved our overall ranking by five spots to seventh place.

Gross Margin

Gross margin is a measure of profitability of a retail company at the most fundamental level of buying and selling merchandise and measures a company’s ability to effectively manage the total costs of sourcing and allocating merchandise against the corresponding retail pricing designed to offer quality merchandise at smart prices. Gross margins not only cover marketing, selling and other operating expenses, but also must include a profit element to reinvest back into the business. Gross margin is the difference between total net sales and cost of the merchandise sold and is typically expressed as a percentage of total net sales. The cost of merchandise sold includes all direct costs of bringing merchandise to its final selling destination. These costs include:

 

•      cost of the merchandise (net of discounts or allowances earned)

•      freight

•      warehousing

•      sourcing and procurement

•      buying and brand development costs including buyers’ salaries and related expenses

 

•      merchandise examination

•      inspection and testing

•      store merchandise distribution center expenses

•      shipping and handling costs incurred related to direct sales to customers

 

($ in millions)    2008     2007  

First-in first-out (FIFO) gross margin

   $ 6,916     $ 7,664  

Last-in first-out (LIFO) (charge)/credit

     (1 )     7  
                

Gross margin

   $ 6,915     $ 7,671  
                

As a percent of sales

     37.4 %     38.6 %

Gross margin declined by $756 million, or 120 basis points as a percentage of sales in 2008. The decline was a result of a decrease in unit sales, as well as a decrease in average unit retail. The lower average unit retail reflected higher markdowns from increased clearance activity in response to softer sales and to achieve desired levels of inventory.

 

-19-


Table of Contents

Selling, General and Administrative (SG&A) Expenses

The following costs are included in SG&A expenses except if related to merchandise buying, sourcing, warehousing or distribution activities:

 

•      salaries

•      marketing

•      occupancy and rent

•      utilities and maintenance

•      information technology

 

•      administrative costs related to our home office, district and regional operations

•      credit card fees

•      real, personal property and other taxes (excluding income taxes)

 

($ in millions)    2008     2007  

SG&A

   $ 5,395     $ 5,402  
                

As a percent of sales

     29.2 %     27.2 %

SG&A expenses were well managed across the entire organization in 2008, decreasing $7 million despite the addition of 26 net new stores since last year. In 2008, we realized the first full year of benefit from our workforce management tool that facilitates efficient staffing levels. The rollout of this tool provided a positive impact on associate productivity, as well as stores payroll expense. Store salaries declined on a dollar basis, but were not leveraged against sales and increased about 40 basis points as a percent of sales. Total marketing costs were slightly under the prior year, but as a percent of sales increased 50 basis points. Likewise, store occupancy and utility expenses were also well managed, but were up about 50 basis points. Total SG&A expenses as a percent of sales experienced approximately 200 basis points of de-leveraging as a result of the sales decline.

During 2008 and 2007, advertising allowances that offset gross advertising expense were $167 million and $210 million, respectively. The year-over-year decrease was primarily due to lower merchandise receipts.

Pension (Income)/Expense

Pension income doubled to $90 million in 2008 from $45 million in the prior year primarily from the pension credit from our qualified pension plan (primary plan), which is a defined benefit funded plan. The net pension income of $90 million is comprised of the qualified pension plan income of $133 million and pension expense of $43 million from the defined benefit supplemental pension plans, which are unfunded. Our 2008 pension income was measured on February 3, 2008, in accordance with the adoption of the measurement date provisions of Statement of Financial Accounting Standards (SFAS) 158, “Employers’ Accounting for Defined Benefit Pension and Other Postretirement Plans.” The primary driver of the 2008 pension income was the result of strong capital market returns associated with the primary plan assets.

Depreciation and Amortization Expenses

Depreciation and amortization expenses in 2008 increased to $469 million, or approximately 40 basis points as a percent of sales, reflecting new store openings and store renovations.

Pre-Opening Expense

Pre-opening expense includes advertising, hiring and training costs for new associates, processing and stocking initial merchandise inventory and rental costs prior to store opening. During 2008, we opened 35 new stores compared to 50 in 2007. As a result, pre-opening expense decreased to $31 million from $46 million.

 

-20-


Table of Contents

Real Estate and Other (Income), Net

 

($ in millions)    2008    2007

Real estate activities

   $     (39)    $     (39)

Net gains from sale of real estate

     (10)      (10)

Other

     24      
             

Total

   $ (25)    $ (46)
             

Real estate and other consists primarily of ongoing operating income from our real estate subsidiaries, as well as net gains from the sale of facilities and equipment that are no longer used in our operations, other non-operating corporate charges and credits and asset impairments.

Real estate and other was a net credit of $25 million in 2008 and decreased $21 million compared to 2007. The decline was primarily a result of impairments related to a department store, a real estate joint venture and other corporate assets. In addition to ongoing operating income from real estate subsidiaries, 2008 included net gains of $10 million from the sale of non-operating real estate properties, comparable to the prior year.

Operating Income

Operating income decreased $753 million, or 340 basis points as a percent of sales, reflecting pressure from the weak sales environment and increased promotional levels throughout the year and holiday season. Operating income is the key measurement management uses to evaluate the financial performance of our retail operations.

Net Interest Expense

Net interest expense consists principally of interest expense on long-term debt, net of interest income earned on cash and cash equivalents. Net interest expense was $225 million, an increase of $72 million, or 47.1%, from 2007. The increase in net interest expense was due primarily to a decrease in the weighted-average annual interest rate earned on short-term investment balances to 1.6% in 2008 from 5.0% in 2007, combined with a decrease in average outstanding short-term investments. Interest income on short-term investments was $32 million in 2008 compared to $113 million in 2007.

Income Taxes

The effective income tax rate for continuing operations for 2008 was 37.7% compared with 35.9% for 2007. The 2007 effective tax rate was favorably impacted by the release of $38 million, or $0.17 per share, of income tax reserves resulting from the favorable resolution of prior year tax matters.

Discontinued Operations

Discontinued operations in 2008 was a credit of $5 million, or $0.03 per share, compared to $6 million, or $0.03 per share in 2007, and was primarily the result of our ongoing review and true-up of reserves related to previous discontinued operations. These previous discontinued operations are no longer expected to have a future material impact on our results of operations, financial condition or liquidity.

 

-21-


Table of Contents

2007 Compared to 2006

Total Net Sales

 

($ in millions)    2007     2006  

Total net sales

   $ 19,860     $ 19,903  
                

Sales percent (decrease)/increase

    

Total net sales

     (0.2 )% (1)     6.0 % (1)

Comparable store sales

     0.0 %     4.9 %

Sales per gross square foot (2 )

   $ 177     $ 176  

(1) Includes the effect of the 53rd week in 2006. Excluding sales of $254 million for the 53rd week in 2006, total net sales increased 1.1% and 4.6% in 2007 and 2006, respectively.

(2) Calculation includes the sales of stores that were open for the full fiscal year as of each year end, as well as online sales from jcp.com. The 2006 calculation excludes sales of the 53 rd week.

Total net sales decreased $43 million, or 0.2%, in 2007, primarily as a result of the 53 rd week in 2006 and the expected decline in catalog print media and outlet store sales. Excluding sales of $254 million for the 53 rd week of 2006, total net sales increased 1.1%. Comparable store sales, including online sales, were flat with 2006. Sales from non-comparable stores opened in 2007 and 2006, net of closings, were $456 million. In 2007, we opened 34 net new stores (50 stores, net of 16 closings and relocations) and in 2006 we opened 14 net new stores (28 stores, net of 14 closings and relocations.) Comparable store sales were negatively impacted by a decline in JCPenney mall store traffic of approximately 4%, consistent with overall mall traffic trends, while the average unit retail and the number of transactions remained at comparable levels to the prior year. Although sales were soft across most merchandise categories, our best performing categories were women’s and children’s apparel. The weakest sales results were in most home categories, men’s and fine jewelry. Geographically, the western regions reported sales gains during 2007, while decreases were reported in the eastern and central regions of the country.

Private and exclusive brands found only at JCPenney totaled approximately 49% and 48% of total merchandise sales for 2007 and 2006, respectively.

Total Net Sales Mix

The following percentages represent the mix of total net sales:

 

     2007     2006  

Women’s apparel

   23 %   22 %

Home

   21 %   21 %

Men’s apparel and accessories

   20 %   20 %

Children’s apparel

   11 %   11 %

Women’s accessories

   9 %   10 %

Family footwear

   6 %   6 %

Fine jewelry

   5 %   5 %

Services and other

   5 %   5 %
            
   100 %   100 %
            

 

-22-


Table of Contents

Merchandise and Shopping Experience Initiatives

Throughout 2007, we launched a number of private and exclusive brands designed to add newness and excitement to our merchandise offerings. The private brands included Ambrielle ® , a new lingerie brand. The exclusive brands included Liz & Co. ® , a traditional casual women’s apparel and accessories line, and CONCEPTS by Claiborne™, by Liz Claiborne, Inc. featuring casual sportswear, as well as suits and accessories for the modern male customer, C7P ® , a Chip & Pepper ® Production, a denim and sportswear line for juniors and young men and Messages from the Heart ® , an infant apparel and gift brand by author and artist Sandra Magsamen. We expanded Sephora inside JCPenney locations to 47 stores and opened 50 new and relocated stores in 2007, 42 of which were off-mall. We also launched a “Know Before You Go” initiative on jcp.com, which provides customers with innovative features, such as enhanced search capabilities and product information, merchandise availability at local stores and the ability to view weekly sales circulars online, making shopping at JCPenney easier and more efficient.

Gross Margin

 

($ in millions)    2007     2006  

First-in first-out (FIFO) gross margin

   $ 7,664     $ 7,809  

Last-in first-out (LIFO) credit

     7       16  
                

Gross margin

   $ 7,671     $ 7,825  
                

As a percent of sales

     38.6 %     39.3 %

Through the first half of 2007, gross margin increased 70 basis points to 39.8% of sales, or $3,481 million on a dollar basis, compared to 39.1%, or $3,305 million, for the comparable 2006 period. Gross margin was pressured in the third and fourth quarters by an inventory plan that anticipated higher sales and thus resulted in more promotional selling and higher levels of clearance merchandise. As a result, 2007 full year gross margin declined 70 basis points, as a percent of sales, following a 100 basis-point improvement in 2006.

SG&A Expenses

 

($ in millions)    2007     2006  

SG&A

   $ 5,402     $ 5,470  
                

As a percent of sales

     27.2 %     27.5 %

For 2007, SG&A expenses were 27.2% of sales, an improvement of 30 basis points, compared to 27.5% of sales for 2006. On a dollar basis, SG&A expenses for 2007 were down 1.2% from 2006. Advertising expenses, as a percent of sales, were consistent with the prior year. While overall SG&A expenses were well controlled, the two primary contributors to the year-over-year improvement were lower salary and related expenses, as well as lower incentive compensation expense.

During 2007 and 2006, advertising allowances offset gross advertising expense by $210 million and $163 million, respectively.

Pension (Income)/Expense

Pension income in 2007 was driven primarily from our qualified pension plan. Strong market returns in 2006, as well as cash contributions of $1.2 billion on a pre-tax basis, or $300 million per year in 2006, 2004, 2003 and 2002, resulted in pension income of $45 million in 2007 compared to pension expense of $51 million in 2006.

 

-23-


Table of Contents

Depreciation and Amortization

As expected with the accelerated store growth and investments in improving and modernizing existing facilities, depreciation and amortization expenses increased to $426 million in 2007, compared to $389 million in 2006. As a percent of sales, depreciation and amortization expenses were consistent from year to year at approximately 2%.

Pre-Opening Expense

With the launch of the Company’s accelerated store growth strategy in 2006, pre-opening expense increased to $46 million in 2007, compared to $27 million in 2006. The Company opened 50 and 28 new stores in 2007 and 2006, respectively.

Real Estate and Other (Income), Net

 

($ in millions)    2007    2006

Real estate activities

   $     (39)    $     (37)

Net gains from sale of real estate

     (10)      (8)

Other

          11 
             

Total

   $ (46)    $ (34)
             

In 2006, other included charges of $7 million associated with a senior management transition.

Operating Income

In 2007, operating income declined by 20 basis points as a percent of sales, driven by a negative trend in sales and gross margin rates. While we continued to make significant improvements in merchandise assortments, as well as further refinements to our planning and allocation systems to ensure that the merchandise is in the right place at the right time, the challenging retail environment in the second half of 2007 led to a softening in sales and a related increase in markdowns.

Net Interest Expense

The 2007 increase in net interest expense was primarily the result of an increase in average long-term debt, combined with a decrease in cash and cash equivalents and a decrease in corresponding short-term interest rates. The weighted-average interest rate on long-term debt declined to 7.5% in 2007, compared to 7.8% in 2006. Interest income earned on short-term investment balances remained about the same in 2007 as the prior year at an average annual interest rate of 5.0%.

Bond Premiums and Unamortized Costs

We incurred premiums, commissions and unamortized costs of $12 million in 2007 related to the early redemption of JCP’s 8.125% Debentures Due 2027.

Income Taxes

The overall effective tax rates for continuing operations were 35.9% for 2007 and 36.7% for 2006. The 2007 effective tax rate was favorably impacted by the release of $38 million, or $0.17 per share, of income tax reserves resulting from the favorable resolution of prior year tax matters. The 2006 rate was favorably impacted by the release of $32 million, or $0.14 per share, of income tax reserves resulting from the favorable resolution of prior year tax matters.

 

-24-


Table of Contents

Discontinued Operations

Discontinued operations added $0.03 per share to net income in 2007 resulting from our ongoing review and true-up of reserves for discontinued operations. For 2006, discontinued operations added $0.08 per share to net income and were primarily related to positive variances on tax reserves that had been provided for in connection with the sale of previously owned businesses.

2009 Outlook

Operating Performance

For 2009, we anticipate weak consumer spending to continue. Consequently, we are planning for full-year comparable stores sales to decline approximately 10% and for total sales to decrease high-single digits. We expect a modest improvement in the gross margin rate for 2009 resulting from better alignment of our inventory at year-end 2008 with current sales trends, combined with our plan to manage future inventory receipts to a low-double digit decrease. Excluding pension expense, which is discussed below, we expect operating expenses for 2009 to be relatively flat with 2008.

Pension Expense

Total pension expense in 2009 is expected to be $363 million, as compared to a credit of $90 million in 2008. Pension expense for 2009 is comprised of $322 million non-cash expense for the primary plan and $41 million expense for the supplemental pension plans. This compares with the 2008 pension credit of $133 million and $43 million expense, respectively. The increase in total pension expense in 2009 versus 2008 is due almost entirely to the swing in the primary plan. Pension expense in 2009 for the primary plan is negatively impacted by the amortization of unrecognized losses that resulted from the sharp decline in plan assets during 2008. At the measurement date of January 31, 2009, which was used to set the pension expense, the unrecognized loss balance was $2.3 billion. Under SFAS 87, “Employers Accounting for Pensions,” any unrecognized losses outside the allowable “corridor” are amortized over the average remaining service period of the current work force – seven years for our Company. The amortization component of the 2009 pension expense for the primary plan amounts to $277 million. The remaining $45 million of the $322 million of primary plan expense in 2009 represents the net of other components of pension expense – service cost, interest and expected return on assets. The expected return on assets for 2009 was negatively impacted by the lowering of the expected rate of return assumption to 8.4% from 8.9%.

Pension Funding

Based on the funded status of our primary pension plan, we are not required to make mandatory pension plan contributions in 2009 or 2010 as determined under the Employee Retirement Income Security Act of 1974 (ERISA) rules, as amended by the Pension Protection Act of 2006.

 

-25-


Table of Contents

Financial Condition and Liquidity

Overview

In 2008, despite the sharp deterioration in consumer spending, we continued to maintain our strong financial position, improved our cash flow metrics and retained the flexibility to continue the execution of our Bridge Plan initiatives. Our ability to sustain a strong financial position and financial flexibility further enhanced our competitive position and, going forward, will allow us to take advantage of future opportunities as the economic environment improves.

The foundation of our strong liquidity position is our cash and cash equivalent balances and our ability to generate positive cash flow from operating activities of continuing operations in excess of capital expenditures and dividend payments, net of proceeds from the sale of assets (defined as free cash flow, a non-GAAP financial measure discussed on page 28.) For 2008, we ended the year with approximately $2.4 billion of cash and cash equivalent balances and had positive free cash flow of $21 million, an improvement of $163 million compared to 2007. Moreover, we expect this measure to further improve in 2009 as we moderate capital expenditures, control expenses and manage inventory in line with expected sales trends.

In addition to cash flow and cash and cash equivalent balances, which are sufficient to meet our liquidity needs, our existing credit facility provides an additional $1.2 billion source of liquidity. Other than the issuance of trade and standby letters of credit, which totaled $152 million at year-end 2008, we have not utilized this facility nor do we expect to do so.

Our liquidity position is further enhanced by two additional factors: we have no debt maturing during 2009 and we are not required to make a mandatory cash contribution to our qualified pension plan. While the funded status of our primary pension plan weakened during 2008 as a result of the decline in the capital markets, the plan remains well funded relative to other large corporate pension plans. As a result of our funded status, we are not required to make mandatory pension plan contributions in 2009 or 2010 as determined under ERISA rules, as amended by the Pension Protection Act of 2006. In August 2008, we paid a $200 million debt maturity from our cash and cash equivalent balances. Our next debt maturity is in March 2010 for approximately $500 million, which we plan to fund from our cash and cash equivalent balances.

 

-26-


Table of Contents

The following table provides a summary of our key components and ratios of financial condition and liquidity:

 

($ in millions)    2008     2007     2006  

Cash and cash equivalents

   $     2,352     $     2,532     $     2,803  

Merchandise inventory

     3,259       3,641       3,400  

Property and equipment, net

     5,367       4,959       4,162  

Long-term debt, including current maturities

     3,505       3,708       3,444  

Stockholders’ equity

     4,155       5,312       4,288  
                        

Total capital

     7,660       9,020       7,732  

Additional amounts available under the 2005 Credit Agreement

     1,200       1,200       1,200  

Cash flow from operating activities of continuing operations

     1,155       1,249 (1)     1,258 (1)

Free cash flow (non-GAAP financial measure) (2 )

     21       (142 ) (1 )     353 (1)

Capital expenditures

     969       1,243       772  

Dividends paid

     178       174       153  

Ratios:

      

Debt-to-total capital ( 3 )

     45.8 %     41.1 %     44.5 %

Cash-to-debt ( 4 )

     67.1 %     68.3 %     81.4 %

(1) Includes $300 million discretionary cash contribution to our qualified pension plan in 2006. The approximately $110 million tax benefit related to the 2006 contribution was realized in 2007. No such contributions were made in 2008 or 2007.

(2) See page 28 for a reconciliation of this non-GAAP financial measure to its most directly comparable GAAP measure and further information on its uses and limitations.

(3) Long-term debt, including current maturities divided by total capitalization.

(4) Cash and cash equivalents divided by long-term debt, including current maturities.

Bridge Plan

At our April 2008 financial analyst meeting, we discussed modifications to our financial and business plans, referred to as the Company’s Bridge Plan. The Bridge Plan is designed to enable us to effectively navigate through the challenging retail environment, while working to maintain our financial strength and flexibility. The Bridge Plan outlines our initiatives between those items we expect to moderate, such as store growth and renovations, inventory levels and expenses; items we expect to maintain, such as our focus on the customer, our associates and our investors; and items we plan to accelerate, like Sephora inside JCPenney, “CustomerFIRST” initiatives and merchandise innovation.

Since April, we have announced updates to our Bridge Plan in response to the continuing downturn of the economic environment in order to maintain our strong financial position. The updated Bridge Plan targets for 2009 include a reduction in capital expenditures to approximately $600 million, versus $969 million for 2008. This reflects plans to open 17 new stores, including one relocated store in 2009, compared to 35 new or relocated stores that we opened in 2008, including 31 in the off-mall format. We expect to open 64 additional Sephora inside JCPenney locations during 2009, bringing our total to 155 locations. For 2010, we are planning capital expenditures at approximately $400 million to focus on improvements to existing stores and information technology infrastructure. In addition, we have reduced the store renovation plans for 2009 and 2010, as compared to the 24 renovations completed in 2008. We expect to fund capital expenditures for 2009 and 2010 with cash flow from operations and existing cash and cash equivalents. We continue to focus on aligning inventory levels with expected sales trends and carefully managing our operating expenses. Our Bridge Plan initiatives are designed to

 

-27-


Table of Contents

put us back on the trajectory of our long-range plan for growth and leadership in the retail industry when the economic environment improves.

Cash and Cash Equivalents

At year-end 2008, we had approximately $2.4 billion of cash and cash equivalents, which represented approximately 67% of our $3.5 billion of outstanding long-term debt. As of January 31, 2009, we had no current maturities. Cash and cash equivalents decreased $180 million in 2008, including a $200 million repayment of long-term debt at maturity. Our cash investments are held in U.S. Treasury money market funds and a portfolio of highly rated bank deposits.

In addition to cash and cash equivalents, our liquidity position includes a five-year $1.2 billion unsecured revolving credit facility that was put in place in April 2005 (2005 Credit Agreement). See further discussion on the credit agreement on page 33. Our liquidity is further enhanced by the fact that our current debt portfolio and material lease agreements contain no provisions that could trigger acceleration of payments or collateral support in the event of adverse changes in our financial condition. However, our 2007 debt issuances contain a change of control provision that would obligate us, at the holders’ option, to repurchase the debt at a price of 101% if there was a beneficial ownership change of 50% or more of our common stock and the debt was rated non-investment grade. This provision applies to $1 billion of our debt.

Free Cash Flow (Non-GAAP Financial Measure)

We define free cash flow as net cash provided by operating activities of continuing operations less capital expenditures and dividends paid, plus proceeds from sale of assets. Free cash flow is considered a non-GAAP financial measure under the rules of the Securities and Exchange Commission. We believe that free cash flow is a relevant indicator of our ability to repay maturing debt, revise our dividend policy or fund other uses of capital that we believe will enhance stockholder value. Free cash flow is limited and does not represent remaining cash flows available for discretionary expenditures due to the fact that the measure does not deduct the payments required for debt maturities and other obligations or payments made for business acquisitions. Therefore, we believe it is important to view free cash flow in addition to, rather than as a substitute for, our entire statement of cash flows and those measures prepared in accordance with GAAP.

The following table reconciles net cash provided by operating activities of continuing operations, the most directly comparable GAAP measure, to free cash flow, a non-GAAP financial measure.

 

($ in millions)    2008     2007     2006  

Net cash provided by operating activities of continuing operations (GAAP measure)

   $     1,155     $     1,249 (1)   $     1,258 (1)

Less:

      

Capital expenditures

     (969 )     (1,243 )     (772 )

Dividends paid, common

     (178 )     (174 )     (153 )

Plus:

      

Proceeds from sale of assets

     13       26       20  
                        

Free cash flow (a non-GAAP financial measure)

   $ 21     $ (142 )   $ 353  
                        

(1) Includes a $300 million discretionary cash contribution to our qualified pension plan in 2006. The approximately $110 million tax benefit related to the 2006 contribution was realized in 2007. No such contributions were made in 2008 or 2007.

Notwithstanding the difficult operating conditions in 2008, we generated $21 million of positive free cash flow, an improvement of $163 million over 2007.

 

-28-


Table of Contents

Cash Flows

The following is a summary of our cash flows from operating, investing and financing activities of both continuing and discontinued operations:

 

($ in millions)    2008     2007     2006  

Net cash provided by/(used in):

      

Continuing operations:

      

Operating activities

   $     1,155     $     1,249 (1)   $     1,258 (1)

Investing activities

     (956 )     (1,217 )     (752 )

Financing activities

     (380 )     (286 )     (751 )

Discontinued operations:

      

Operating activities

     2       8       11  

Investing activities

     (1 )     (25 )     (32 )

Financing activities

     -       -       -  
                        

Net (decrease) in cash and cash equivalents

   $ (180 )   $ (271 )   $ (266 )
                        

(1) Includes a $300 million discretionary cash contribution to our qualified pension plan in 2006. The approximately $110 million tax benefit related to the 2006 contribution was realized in 2007. No such contributions were made in 2008 or 2007.

Cash Flow from Operating Activities – Continuing Operations

Our operations are seasonal in nature, with the business depending to a great extent on the last quarter of the year when a significant portion of the sales, profits and positive operating cash flows are realized. Cash requirements are highest in the third quarter as we build inventory levels in preparation for the holiday season. During 2008, our peak cash requirements declined more than 15% as we reduced inventory receipts. We expect peak cash requirements to further decline in 2009 as we continue to plan double digit sales declines and lower inventory receipts.

2008 cash flow from operating activities of continuing operations decreased compared to 2007 as the result of a decline in income from continuing operations impacted by the weakened consumer spending environment largely offset by effective inventory management. Based on our goal of maintaining a strong liquidity position, we elected to forego making a voluntary pension plan contribution in 2008.

Total inventory was $3,259 million at the end of 2008, down 10.5% from last year, primarily as a result of our effective inventory management in response to the challenging business environment, even with the addition of 35 new stores (26 net of relocations and closings.) On a comparable store basis, inventories were down approximately 13.5% from last year, including inventory for the major launch of American Living™ and the continued expansion of Sephora inside JCPenney. In response to the soft selling environment, we managed merchandise inventory down to desirable levels by reducing receipts and taking effective clearance actions. We believe that the inventory level at the end of 2008 is appropriately balanced and reflects our expected near-term sales trends, which are planned down 10% for comparable stores. Inventory turns for 2008, 2007 and 2006 were 3.06, 3.14 and 3.33, respectively.

Cash Flow from Investing Activities – Continuing Operations

In 2008 we had capital expenditures, including capitalized software costs of $969 million, which we used towards opening 35 new or relocated stores, 31 in our off-mall format. We also completed significant fixturing and store environment improvements in about 600 stores, as well as 24 major renovations and 90 store refurbishments. Capital expenditures, including capitalized software costs,

 

-29-


Table of Contents

were $1,243 million in 2007 and $772 million in 2006. The following provides a breakdown of capital expenditures:

 

($ in millions)    2008    2007    2006

New and relocated stores

   $     460    $     687    $     365

Store renewals and updates

     322      389      266

Technology and other

     187      167      141
                    

Total

   $ 969    $ 1,243    $ 772
                    

We expect 2009 capital expenditures to be approximately $600 million principally relating to store renewals and updates, new stores and relocations, merchandise initiatives, technology and other support projects. We currently plan to open 17 new and relocated stores in 2009, of which 16 are expected to be off-mall and one in the Manhattan Mall in New York City. We also expect to modernize approximately 20 existing stores. Incorporating relocations and store closures, net square footage is expected to increase approximately 1.7% in 2009 compared to a 3.0% increase in 2008. Our 2009 capital expenditures are expected to be funded with cash flow from operations and existing cash and cash equivalent balances.

Cash Flow from Financing Activities – Continuing Operations

There were no issuances of new debt during 2008. Cash payments on long-term debt, including capital leases, totaled $203 million and consisted primarily of the August 2008 payment at maturity of $200 million outstanding principal amount of JCP’s 7.375% Notes Due 2008.

During 2007, we received $980 million in proceeds from the issuance of $1.0 billion aggregate principal amount in new senior notes, which was used in 2007 and 2008 for debt payments and general corporate purposes. Cash payments for long-term debt, including capital leases and early retirement premiums in 2007, totaled $746 million. In 2006, there were no issuances of long-term debt, and cash payments for long-term debt, including capital leases, totaled $21 million.

During 2008, we returned $178 million to stockholders through dividend payments. During 2007, we returned to stockholders $400 million through common stock repurchases and $174 million through dividend payments. In 2006, we returned to stockholders $750 million through common stock repurchases and $153 million through dividend payments.

We maintained our quarterly dividend on common stock at $0.20 per share in 2008. The dividend rate was raised to $0.20 per share beginning with the May 1, 2007 dividend payment. Quarterly dividends of $0.18 per share were paid in 2006. The Board reviews the dividend policy and rate on a quarterly basis, taking into consideration the overall financial and strategic outlook for the Company, earnings, liquidity and cash flow projections, as well as competitive factors. The Board approves and declares dividends on a quarterly basis.

Net proceeds from the exercise of stock options declined significantly in 2008 to $4 million, compared to $45 million in 2007 and $135 million in 2006. The decline was the result of fewer stock options being exercised due to the Company’s stock price being lower than the exercise price of the majority of our exercisable stock options.

Excess tax benefits realized from stock-based compensation were $1 million, $17 million and $39 million for 2008, 2007 and 2006, respectively.

 

-30-


Table of Contents

Cash Flow and Financing Outlook

In 2009, our financing strategy will continue to focus on opportunities to maintain and even further strengthen our financial position, improve our credit profile and deliver value to stockholders. Our strong financial position provides continued financial flexibility to support our Bridge Plan. In March 2009, the Board declared a quarterly dividend to be paid on May 1, 2009 of $0.20 per share, unchanged from the prior quarterly dividend declaration.

For 2009, the operating and capital expenditure plans have been adjusted to reflect current operating conditions, while continuing to reinvest capital to drive the initiatives of our Bridge Plan. While we expect operating cash flow to decrease principally as a result of lower net income expectations, by moderating our capital expenditures we anticipate our free cash flow (a non-GAAP financial measure) to be positive for 2009. Until all of our credit ratings improve to competitive investment-grade levels, access to the capital markets for cash needs will retain an element of uncertainty. As such, we intend to maintain sufficient cash investment levels to ensure support for operational business needs, strategic initiatives and long-term debt maturities. We do not expect to borrow under our credit facility except to support ongoing letters of credit and we have no debt maturities in 2009. In accordance with our long-term financing strategy, we manage our financial position on a multi-year basis and may access the capital markets opportunistically.

 

-31-


Table of Contents

Contractual Obligations and Commitments

Aggregated information about our obligations and commitments to make future contractual payments, such as debt and lease agreements, and contingent commitments as of January 31, 2009 is presented in the following table.

 

($ in millions)    Total    2009     2010    2011    2012    2013   

After

5 years

 

Recorded contractual obligations:

                   

Long-term debt and capital leases (1)

   $ 3,505    $ -     $ 506    $ -    $ 230    $ -    $ 2,769  

Trade payables

     1,194      1,194       -      -      -      -      -  

Unrecognized tax benefits (2)

     192      88       -      -      -      -      104  

Contributions to non-qualified supplemental retirement and postretirement medical plans (3)

     280      29       30      27      29      28      137  
        
   $ 5,171    $ 1,311     $ 536    $ 27    $ 259    $ 28    $ 3,010  
        

Unrecorded contractual obligations:

                   

Interest payments on long-term debt and capital leases

   $ 6,304    $ 255 (4)   $ 235    $ 215    $ 215    $ 194    $ 5,190  

Operating leases (5)

     2,863      254       220      187      154      134      1,914  

Standby and import letters of credit (6)

     152      152       -      -      -      -      -  

Surety bonds (7)

     55      55       -      -      -      -      -  

Contractual obligations (8)

     259      106       59      43      34      17      -  

Purchase orders (9)

     2,083      2,083       -      -      -      -      -  

Guarantees (10)

     20      -       -      -      -      -      20  
        
   $ 11,736    $ 2,905     $ 514    $ 445    $ 403    $ 345    $ 7,124  
        

Total

   $   16,907    $   4,216     $   1,050    $   472    $   662    $   373    $   10,134  
        

(1) The weighted-average maturity of long-term debt is 24 years.

(2) Represents management’s best estimate of the payments related to tax reserves under FIN 48. Based on the nature of these liabilities, the actual payments in any given year could vary significantly from these amounts. See Note 17 to the consolidated financial statements.

(3) Represents expected payments through 2018. Based on the accounting rules for retirement and postretirement benefit plans, the liabilities reflected in our Consolidated Balance Sheets differ from these estimated future payments. See Note 15 to the consolidated financial statements.

(4) Includes $92 million that is reflected in accrued expenses and other current liabilities in our Consolidated Balance Sheet at January 31, 2009. See Note 5 to the consolidated financial statements.

(5) Represents future minimum lease payments for non-cancelable operating leases, including renewals determined to be reasonably assured.

(6) Standby letters of credit, which totaled $148 million, are issued as collateral to a third-party administrator for self-insured workers’ compensation and general liability claims. The remaining $4 million are outstanding import letters of credit.

(7) Surety bonds are primarily for previously incurred and expensed obligations related to workers’ compensation and general liability claims.

(8) Consists primarily of (a) minimum purchase requirements for exclusive merchandise and fixtures; (b) royalty obligations; and (c) minimum obligations for professional services, energy services, software maintenance and network services.

(9) Amounts committed under open purchase orders for merchandise inventory of which a significant portion are cancelable without penalty prior to a date that precedes the vendor’s scheduled shipment date.

(10) Relates to a third-party reinsurance guarantee. See Note 18 to the consolidated financial statements.

 

-32-


Table of Contents

Credit Agreement

The Company, JCP and J. C. Penney Purchasing Corporation are parties to a five-year $1.2 billion unsecured revolving credit facility (2005 Credit Agreement) with a syndicate of lenders with JPMorgan Chase Bank, N.A., as administrative agent. The 2005 Credit Agreement is available for general corporate purposes, including the issuance of letters of credit. Pricing is tiered based on JCP’s senior unsecured long-term debt ratings by Moody’s Investors Service, Inc. and Standard & Poor’s Ratings Services. JCP’s obligations under the 2005 Credit Agreement are guaranteed by the Company. No borrowings, other than the issuance of trade and standby letters of credit, which totaled $152 million as of the end of 2008, have been made under this facility.

The 2005 Credit Agreement includes two financial leverage metric covenants, which we are required to satisfy, a leverage ratio covenant and a fixed charge coverage ratio covenant. The leverage ratio for 2008 was 2.2 to 1.0, remaining in compliance with the 2005 Credit Agreement covenant requirement of no more than 3.0 to 1.0. The fixed charge coverage ratio for 2008 was 3.9 to 1.0, also remaining in compliance with the 2005 Credit Agreement covenant requirement of at least 3.2 to 1.0. See further discussion in Note 8 to the consolidated financial statements.

In light of the current business and credit environment, we intend to amend and extend our credit agreement in 2009. The renewed facility would have similar covenants as our current facility but would be adjusted to remove the non-cash pension expense and to set the covenant thresholds in alignment with our 2009 operating plan expectations. Due to our lower expected working capital requirements, the new facility would be a smaller size than the current bank line. The facility would also likely require a pledge of inventory as collateral due to overall tight lending standards.

With our strong liquidity position, there is no critical need for a credit facility, since we do not expect to borrow under such a facility other than for the issuance of letters of credit. Nonetheless, we understand that a line of credit would provide further strength to our solid liquidity position during the Bridge Plan period.

Credit Ratings

Our credit ratings and outlook as of March 26, 2009 were as follows:

 

     Long-Term
Debt
     Outlook

Moody’s Investors Service, Inc.

   Baa3      On Review

Standard & Poor’s Ratings Services

   BBB-      Negative

Fitch Ratings

   BBB-      Stable

Rating agencies consider the following factors in their rating decisions: changes in operating performance, comparable store sales, the economic environment, conditions in the retail industry, financial leverage and changes in our business strategy.

In February 2009, Standard and Poor’s Rating Services and Moody’s Investors Service, Inc. have both placed the Company on review for possible downgrade citing the unlikelihood that we could avoid sustained declines in comparable store sales.

During 2008, we maintained our investment-grade credit rating. In February 2009, Fitch Ratings downgraded our long-term debt rating to BBB- from BBB, citing expectations for continued weakness in comparable store sales through 2009. Fitch Ratings reaffirmed our stable rating outlook. In November 2008, Standard and Poor’s Ratings Services affirmed our long-term debt rating at BBB- and

 

-33-


Table of Contents

revised its outlook for the Company from stable to negative. The outlook revision reflected the challenging operating environment, which resulted in the acceleration of comparable store sales declines. In February 2008, Moody’s Investors Service, Inc. affirmed the Company’s long-term credit rating at Baa3 and revised its rating outlook to stable from positive, citing recent negative comparable store sales and uncertain overall economic outlook.

Despite the economic conditions that have impacted our operating performance, we continue to focus on restoring our competitive investment-grade credit ratings.

Off-Balance Sheet Arrangements

Management considers all on- and off-balance sheet debt in evaluating our overall liquidity position and capital structure. Other than operating leases, which are included in the Contractual Obligations and Commitments table on page 32, we do not have any off-balance sheet financing. See detailed disclosure regarding operating leases and their off-balance sheet present value in Note 14 to the consolidated financial statements.

As part of the 2001 sale of the assets of our Direct Marketing Services subsidiary, JCP signed a guarantee agreement with a maximum exposure of $20 million. Any potential claims or losses are first recovered from established reserves, then from the purchaser and finally from any state insurance guarantee fund before JCP’s guarantee would be invoked. As a result, we do not believe that any potential exposure would have a material effect on our consolidated financial statements.

We do not have any additional arrangements or relationships with entities that are not consolidated into the financial statements.

Common Stock

During 2006 to 2008, the number of outstanding shares of common stock changed as follows, primarily as a result of common stock repurchases:

 

(shares in millions)    2008      2007      2006  

Balance at beginning of the year

   222      226      233  

Repurchase and retirement of common stock

   -      (5 )    (11 )

Exercise of stock options

   -      1      4  
                    

Balance at end of year

   222      222      226  
                    

Common Stock Repurchases

As authorized by the Board in March 2007, we repurchased 5.1 million shares of common stock for $400 million during the second quarter of 2007 and as authorized by the Board in February 2006, we repurchased 11.3 million shares of common stock for $750 million during 2006. The 2007 and 2006 stock repurchase programs were funded with cash proceeds from employee stock option exercises and existing cash and cash equivalent balances. Common stock was retired on the same day it was repurchased. There are no outstanding Board authorizations to repurchase common stock.

 

-34-


Table of Contents

Critical Accounting Policies

The preparation of our financial statements in conformity with accounting principles generally accepted in the United States requires that we make estimates and use assumptions that in some instances may materially affect amounts reported in the accompanying consolidated financial statements. In preparing these financial statements, we have made our best estimates and judgments based on history and current trends, as well as other factors that we believe are relevant at the time of the preparation of our consolidated financial statements. Historically, actual results have not differed materially from estimates; however, future events and their effects cannot be determined with certainty and as a result, actual results could differ from our assumptions and estimates.

We have discussed the development and selection of the critical accounting policies with the Audit Committee of our Board of Directors. The Audit Committee has reviewed our disclosures relating to these policies in this MD&A. See Note 1 to the consolidated financial statements for a description of all of our significant accounting policies.

Inventory Valuation under the Retail Method

Inventories are valued primarily at the lower of cost (using the last-in, first-out or “LIFO” method) or market, determined by the retail method for department stores, store distribution centers and regional warehouses and standard cost, representing average vendor cost, for Direct (catalog and Internet). Under the retail method, retail values are converted to a cost basis by applying specific average cost factors to groupings of merchandise. The retail method inherently requires management judgment and certain estimates that may significantly impact the ending inventory valuation at cost, as well as gross margin. Two of the most significant estimates are permanent reductions to retail prices (markdowns) used to clear unproductive or slow-moving inventory and inventory shortages (shrinkage).

Permanent markdowns designated for clearance activity are recorded at the point of decision, when the utility of inventory has diminished, versus the point of sale. Factors considered in the determination of permanent markdowns include current and anticipated demand, customer preferences, age of the merchandise and style trends. The corresponding reduction to gross margin is recorded in the period the decision is made.

Shrinkage is estimated as a percent of sales for the period from the last inventory date to the end of the fiscal period. Physical inventories are taken at least annually and inventory records are adjusted accordingly. The shrinkage rate from the most recent physical inventory, in combination with current events and historical experience, is used as the standard for the shrinkage accrual rate for the next inventory cycle.

We do not believe that the assumptions used in these estimates will change significantly based on prior experience. A 10% increase or decrease in the markdown reserve at year-end 2008 would have impacted net income by approximately $5 million. A 10% increase or decrease in the estimated inventory shrinkage reserve at year-end 2008 would have impacted net income by approximately $6 million.

Valuation of Long-Lived Assets

We evaluate recoverability of long-lived assets, such as property and equipment, whenever events or changes in circumstances indicate that the carrying value may not be recoverable, such as historical operating losses or plans to close stores and dispose of or sell long-lived assets before the end of their

 

-35-


Table of Contents

previously estimated useful lives. Additionally, for store assets, in the fourth quarter of each fiscal year we separately test the performance of individual stores and underperforming stores are selected for further evaluation of the recoverability of the carrying amounts. If the evaluation, performed on an undiscounted cash flow basis, indicates that the carrying amount of the asset may not be recoverable, the potential impairment is measured as the excess of carrying value over the fair value of the impaired asset. The impairment calculation requires us to apply estimates for future cash flows and use judgments for qualitative factors such as local market conditions, operating environment, mall performance and other trends. For stores, we estimate fair value based on a projected discounted cash flow method using a discount rate that is considered commensurate with the risk inherent in our current business model and for assets other than stores, we generally base fair value on either appraised value or projected discounted cash flows.

We recognize an impairment loss in the period in which it occurs. The carrying value is adjusted to the new carrying value and any subsequent increases in fair value are not recorded. If it is determined that the estimated remaining useful life of the asset should be decreased, the periodic depreciation expense is adjusted based on the new carrying value of the asset. Impairment losses totaling $21 million, $1 million and $2 million in 2008, 2007 and 2006, respectively, were recorded in the Consolidated Statement of Operations in the real estate and other, net line item. The 2008 impairment charges include primarily a department store, a real estate joint venture property and other corporate assets. While we do not believe there is a reasonable likelihood that there will be a material change in the estimates or assumptions used to calculate long-lived asset impairments, if actual results are not consistent with our estimates and assumptions, we may be exposed to additional impairment charges, which could be material to our results of operations.

Reserves and Valuation Allowances

Based on an overall analysis of store performance and expected trends, we periodically evaluate the need to close underperforming stores. Reserves are established at the point of closure for the present value of any remaining operating lease obligations (PVOL), net of estimated sublease income, and at the point of decision for severance and other exit costs, as prescribed by SFAS 146, “Accounting for Costs Associated with Exit or Disposal Activities.” See further discussion in Note 1 to the consolidated financial statements on page F-14. Two key assumptions in calculating the reserve include the timeframe expected to terminate lease agreements and estimation of other related exit costs. If different assumptions were used regarding the timing and potential termination costs, the resulting reserves could vary from recorded amounts. Reserves are reviewed periodically and adjusted, when necessary.

We record a provision for workers’ compensation and general liability risk based on historical experience, current claims data and independent actuarial best estimates, including incurred but not reported claims and projected loss development factors. We target this provision above the midpoint of the actuarial range, and total estimated claim liability amounts are discounted using a risk-free rate. We do not anticipate any significant change in loss trends, settlements or other costs that would cause a significant fluctuation in net income. However, a 10% variance in the workers’ compensation and general liability reserves at year-end 2008 would have affected net income by approximately $14 million.

Income taxes are estimated for each jurisdiction in which we operate. This involves assessing the current tax exposure together with temporary differences, which result from differing treatment of items for tax and book purposes. Deferred tax assets and liabilities are provided for based on these

 

-36-


Table of Contents

assessments. Deferred tax assets are evaluated for recoverability based on estimated future taxable income. To the extent that recovery is deemed unlikely, a valuation allowance is recorded. Effective February 4, 2007, tax contingency accruals are measured and recorded in accordance with the Financial Accounting Standards Board’s (FASB’s) Interpretation No. 48, “Accounting for Uncertainty in Income Taxes,” (FIN 48), which is discussed in Note 17 to the consolidated financial statements. Previously, such accruals were provided when the Company considered that it was probable that taxes would be due. Tax contingency accruals are evaluated and adjusted as appropriate, while taking into account the progress of audits of various taxing jurisdictions. We do not expect the outcome of tax audits to have a material adverse effect on our financial condition, results of operations or cash flow. Many years of data have been incorporated into the determination of tax reserves, and our estimates have historically been reasonable.

As of January 31, 2009, we estimated our total potential environmental liabilities to range from $34 million to $46 million and recorded our best estimate of $39 million in other liabilities in the Consolidated Balance Sheet as of that date. This estimate covered potential liabilities primarily related to underground storage tanks, remediation of environmental conditions involving our former Eckerd drugstore locations, and asbestos removal in connection with approved plans to renovate or dispose of Company facilities. Even if we were to incur losses at the upper end of the estimated range, we do not believe that such losses would have a material effect on our financial condition, results of operations, or liquidity.

In establishing our reserves for liabilities associated with underground storage tanks, we maintain and periodically update an inventory listing of potentially impacted sites. The estimated cost of remediation efforts is based on our historical experience, as well as industry and other published data. With respect to our former Eckerd operations, we accessed extensive databases of environmental matters, including data from the Environmental Protection Agency, to estimate the cost of remediation. Our experience, as well as relevant data, was used to develop a range of potential liabilities, and a reserve was established at the time of the Eckerd sale. The Eckerd reserve is adjusted as payments are made or new information becomes known. Reserves for asbestos removal are based on our known liabilities in connection with approved plans for store modernization, renovations, or dispositions of store locations.

We believe the established reserves, as adjusted, are adequate to cover estimated potential liabilities.

Pension

Pension Accounting

We maintain a qualified funded defined benefit pension plan (primary plan) and smaller non-qualified unfunded supplemental defined benefit plans. The accounting for these plans is covered under SFAS 87, “Employers’ Accounting for Pensions,” and SFAS 158, “Employers’ Accounting for Defined Benefit Pension and Other Postretirement Plans.” The determination of pension expense is the result of actuarial calculations that are based on important assumptions about pension assets and liabilities. The most important of these are the rate of return on assets and the discount rate assumptions. These assumptions require significant judgment and a change in any one of them could have a significant effect on our pension expense reported in the Consolidated Statements of Operations, as well as in the liability and equity sections of the Consolidated Balance Sheets. Pension expense is reported separately on the Consolidated Statement of Operations. Refer to Note 1 to the consolidated financial statements for a discussion of the reclassification of pension (income)/expense on page F-8.

 

-37-


Table of Contents

The following table reflects our rate of return and discount rate assumptions:

 

     2008     2007     2006  

Expected return on plan assets

   8.9 %   8.9 %   8.9 %

Discount rate for pension expense

   6.54 % (1 )   5.85 %   5.80 %

Discount rate for pension obligation

   6.95 %   6.46 %   5.85 %

(1) Reflects a rate change from the prior year discount rate for pension obligation due to the measurement date provision of SFAS 158.

Return on Plan Assets and Impact on Earnings

For the primary plan, we apply our expected return on plan assets using fair market value as of the annual measurement date. The fair market value method results in greater volatility to our pension expense than the more commonly used calculated value method (referred to as smoothing of assets), which is also permitted under SFAS 87. Our primary pension plan is well diversified with an asset allocation policy that provides for a targeted 70%, 20% and 10% mix of equities (U.S., non-U.S. and private), fixed income (investment-grade and high-yield) and real estate (private and public), respectively. This allocation provides the pension plan with the appropriate balance of investment return and volatility risk, given the funded nature of the plan, our present and future liability characteristics and our long-term investment horizon. As a result of recent negative returns in the capital markets and lower expected future returns, we reduced the expected rate of return assumption to 8.4% from 8.9% beginning in 2009, which equals the historical rate of return since the plan’s inception in 1966. The actual rate of return of (30)%, measured on January 31, 2009, versus the expected return on assets resulted in a negative funded status of the primary pension plan of $275 million, and in a large increase in unrecognized losses that reduced equity through other comprehensive income. The significant balance in unrecognized losses will result in a material swing in pension expense in 2009 versus the pension credit recorded in 2008.

Discount Rate

The discount rate assumption used to determine our postretirement obligations was based on an externally published yield curve, which is determined by the plan’s actuary. The yield curve is a hypothetical AA yield curve represented by a series of bonds maturing from 6 months to 30 years, designed to match the corresponding pension benefit cash payments to retirees. Each underlying bond issue is required to have a rating of Aa2 or better by Moody’s Investors Service, Inc. or a rating of AA or better by Standard & Poor’s Ratings Services. We believe the yield curve provides a better match to the timing and amount of expected benefit payments. The discount rate increased to 6.95% from 6.54% as of January 31, 2009 and will have a small positive impact on 2009 expected pension expense.

Sensitivity

The sensitivity of the pension expense to a plus or minus one-half of one percent of expected return on assets is a decrease or increase in expense of approximately $0.05 per share. An increase or decrease in the discount rate of one-half of one percent would decrease or increase the expense by approximately $0.10 per share.

 

-38-


Table of Contents

Pension Funding

Funding requirements for our primary pension plan are determined under ERISA rules, as amended by the Pension Protection Act of 2006. As a result of the strong funded status of the pension plan, we are not required to make contributions in 2009 or 2010. However, we may make discretionary voluntary contributions taking into account liquidity and capital resource availability and capital market conditions.

Our funding policy is to maintain a well-funded pension plan throughout all business and economic cycles. Maintaining a well-funded plan over time provides additional financial flexibility, which includes lower pension expense and reduced cash contributions, especially in the event of a decline in the capital markets. In addition, a well-funded plan assures associates of the plan’s and our financial ability to continue to provide competitive retirement benefits, while at the same time being cost effective.

Consistent with our objectives, we contributed $1.2 billion on a pre-tax basis, or $300 million per year in 2006, 2004, 2003 and 2002. These contributions have helped to mitigate the negative returns from the downward cycle experienced in 2008 and have allowed the plan to continue to meet regulatory funding requirements.

Recent Accounting Pronouncements

Refer to Note 1 to the consolidated financial statements under the section titled Recent Accounting Pronouncements beginning on page F-14.

Cautionary Statement Regarding Forward-Looking Information

This Annual Report on Form 10-K contains forward-looking statements made within the meaning of the Private Securities Litigation Reform Act of 1995, which reflect our current view of future events and financial performance. The words expect, plan, anticipate, believe, intend, should, will and similar expressions identify forward-looking statements. Any such forward-looking statements are subject to known and unknown risks and uncertainties that may cause our actual results to be materially different from planned or expected results. Those risks and uncertainties include, but are not limited to, general economic conditions, including inflation, recession, unemployment levels, consumer spending patterns, credit availability and debt levels, changes in store traffic trends, the cost of goods, trade restrictions, changes in tariff, freight, paper and postal rates, changes in cost of fuel and other energy and transportation costs, increases in wage and benefit costs, competition and retail industry consolidations, interest rate fluctuations, dollar and other currency valuations, risks associated with war, an act of terrorism or pandemic, and a systems failure and/or security breach that results in the theft, transfer or unauthorized disclosure of customer, employee or Company information. Furthermore, our Company typically earns a disproportionate share of its operating income in the fourth quarter due to holiday buying patterns, and such buying patterns are difficult to forecast with certainty. While we believe that our assumptions are reasonable, we caution that it is impossible to predict the degree to which any such factors could cause actual results to differ materially from predicted results. For additional discussion on risks and uncertainties, see Item 1A, Risk Factors, beginning on page 4. We intend the forward-looking statements in this Annual Report on Form 10-K to speak only as of the date of this report and do not undertake to update or revise these projections as more information becomes available.

 

-39-


Table of Contents

Item 7A.    Quantitative and Qualitative Disclosures About Market Risk.

We maintain a majority of our cash and cash equivalents in financial instruments with original maturities of three months or less. Such investments are subject to interest rate risk and may have a small decline in value if interest rates increase. Since the financial instruments are of short duration, a change of 100 basis points in interest rates would not have a material effect on our financial condition.

All of our outstanding long-term debt as of January 31, 2009 is at fixed interest rates and would not be affected by interest rate changes. Future borrowings under our multi-year revolving credit facility, to the extent that fluctuating rate loans were used, would be affected by interest rate changes. As of January 31, 2009, no borrowings were outstanding under the facility other than the issuance of trade and standby letters of credit, which totaled $152 million. We do not believe that a change of 100 basis points in interest rates would have a material effect on our financial condition.

The fair value of long-term debt is estimated by obtaining quotes from brokers or is based on current rates offered for similar debt. At January 31, 2009 long-term debt, excluding capital leases and other, had a carrying value of $3.5 billion and a fair value of $2.6 billion. At February 2, 2008, long-term debt, excluding capital leases and other, had a carrying value of $3.7 billion and a fair value of $3.6 billion.

The effects of changes in the U.S. equity and bond markets serve to increase or decrease the value of assets in our qualified pension plan. Significant declines in pension assets during 2008 due to the sharp declines in the capital markets resulted in a negative funded status of $275 million in the primary pension plan. At the January 31, 2009 measurement date, plan assets of $3.4 billion were approximately 93% of the $3.7 billion pension liability. Under ERISA rules, as amended by the Pension Protection Act of 2006, the funded status of the plan exceeded 100% as of December 31, 2008, the qualified pension plan’s year end. We seek to manage exposure to adverse equity and bond returns by maintaining diversified investment portfolios and utilizing professional investment managers.

Item 8.    Financial Statements and Supplementary Data.

See the Index to Consolidated Financial Statements on Page F-1.

Item 9.    Changes in and Disagreements With Accountants on Accounting and Financial Disclosure.

None.

Item 9A.    Controls and Procedures.

Based on their evaluation of our disclosure controls and procedures (as defined in Rules 13a-15 and 15d-15 under the Securities Exchange Act of 1934 (the Exchange Act)) as of the end of the period covered by this Annual Report on Form 10-K, our principal executive officer and principal financial officer concluded that our disclosure controls and procedures are effective to ensure that information required to be disclosed by us in the reports that we file or submit under the Exchange Act, is recorded, processed, summarized and reported within the time periods specified in the Securities and Exchange Commission’s rules and forms and is accumulated and communicated to management, including our principal executive officer and principal financial officer, as appropriate, to allow timely decisions regarding required disclosure.

 

-40-


Table of Contents

Management’s Report on Internal Control Over Financial Reporting

The management of our Company is responsible for establishing and maintaining adequate internal control over financial reporting.

The management of our Company has assessed the effectiveness of our Company’s internal control over financial reporting as of January 31, 2009. In making this assessment, management used criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission (COSO) in Internal Control–Integrated Framework . Based on its assessment, the management of our Company believes that, as of January 31, 2009, our Company’s internal control over financial reporting is effective based on those criteria.

KPMG LLP, the registered public accounting firm that audited the financial statements included in this Annual Report on Form 10-K, has issued an attestation report on the effectiveness of our Company’s internal control over financial reporting. This attestation report appears on page 42.

There were no changes in our Company’s internal control over financial reporting during the fourth quarter ended January 31, 2009, that have materially affected, or are reasonably likely to materially affect, our Company’s internal control over financial reporting.

 

-41-


Table of Contents

Report of Independent Registered Public Accounting Firm

The Board of Directors and Stockholders

J. C. Penney Company, Inc.:

We have audited J. C. Penney Company, Inc.’s internal control over financial reporting as of January 31, 2009, based on criteria established in Internal Control–Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO). J. C. Penney Company, Inc.’s management is responsible for maintaining effective internal control over financial reporting and for its assessment of the effectiveness of internal control over financial reporting, included in the accompanying “Management’s Report on Internal Control Over Financial Reporting.” Our responsibility is to express an opinion on the Company’s internal control over financial reporting based on our audit.

We conducted our audit in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether effective internal control over financial reporting was maintained in all material respects. Our audit included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, and testing and evaluating the design and operating effectiveness of internal control based on the assessed risk. Our audit also included performing such other procedures as we considered necessary in the circumstances. We believe that our audit provides a reasonable basis for our opinion.

A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A company’s internal control over financial reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company’s assets that could have a material effect on the financial statements.

Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.

In our opinion, J. C. Penney Company, Inc. maintained, in all material respects, effective internal control over financial reporting as of January 31, 2009, based on criteria established in Internal Control–Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission.

We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the consolidated balance sheets of J. C. Penney Company, Inc. and subsidiaries as of January 31, 2009 and February 2, 2008, and the related consolidated statements of operations, stockholders’ equity and cash flows for each of the years in the three-year period ended January 31, 2009, and our report dated March 30, 2009 expressed an unqualified opinion on those consolidated financial statements.

LOGO

Dallas, Texas

March 30, 2009

 

-42-


Table of Contents

Item 9B.    Other Information.

None.

PART III

Item 10.    Directors, Executive Officers and Corporate Governance.

The information required by Item 10 with respect to executive officers is included within Item 1 in Part I under the caption “Executive Officers of the Registrant” of this Annual Report on Form 10-K.

The information required by Item 10 with respect to directors, audit committee, audit committee financial experts and Section 16(a) beneficial ownership reporting compliance is included under the captions “Election of Directors,” “Audit Committee” and “Section 16(a) Beneficial Ownership Reporting Compliance” in the Company’s definitive proxy statement for 2009, which will be filed with the Securities and Exchange Commission pursuant to Regulation 14A and is incorporated herein by reference.

Code of Ethics, Corporate Governance Guidelines and Committee Charters

Our Company has adopted a code of ethics for officers and employees, which applies to, among others, our Company’s principal executive officer, principal financial officer, and principal accounting officer, and which is known as the “Statement of Business Ethics.” We have also adopted certain ethical principles and policies for our directors, which are set forth in Article V of our Corporate Governance Guidelines. The Statement of Business Ethics and Corporate Governance Guidelines are available on our Web site at www.jcpenney.net. Additionally, we will provide copies of these documents without charge upon request made to:

J. C. Penney Company, Inc.

Office of Investor Relations

6501 Legacy Drive

Plano, Texas 75024

(Telephone 972-431-3436)

Our Company intends to satisfy the disclosure requirement under Item 5.05 of Form 8-K regarding an amendment to or waiver of any provision of the Statement of Business Ethics that applies to any officer of our Company by posting such information on our Web site at www.jcpenney.net.

Copies of our Company’s Audit Committee, Human Resources and Compensation Committee, the Committee of the Whole and Corporate Governance Committee Charters are also available on our Web site at www.jcpenney.net. Copies of these documents will likewise be provided without charge upon request made to the address or telephone number provided above.

Item 11.    Executive Compensation.

The information required by Item 11 is included under the captions “Compensation Committee Interlocks and Insider Participation,” “Compensation Discussion and Analysis,” “Report of the Human Resources and Compensation Committee,” “Summary Compensation Table,” “Grants of Plan-Based Awards for Fiscal 2008,” “Outstanding Equity Awards at Fiscal Year-End 2008,” “Option Exercises

 

-43-


Table of Contents

and Stock Vested for Fiscal 2008,” “Pension Benefits,” “Nonqualified Deferred Compensation for Fiscal 2008,” “Potential Payments and Benefits on Termination of Employment” and “Director Compensation for Fiscal 2008” in the Company’s definitive proxy statement for 2009, which will be filed with the Securities and Exchange Commission pursuant to Regulation 14A and is incorporated herein by reference.

Item 12.    Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters.

The information required by Item 12 is included under the captions “Beneficial Ownership of Common Stock” and “Equity Compensation Plan(s) Information” in our Company’s definitive proxy statement for 2009, which will be filed with the Securities and Exchange Commission pursuant to Regulation 14A and is incorporated herein by reference.

Item 13.    Certain Relationships and Related Transactions, and Director Independence.

The information required by Item 13 is included under the captions “Board Independence” and “Policies and Procedures with Respect to Related Person Transactions” in our Company’s definitive proxy statement for 2009, which will be filed with the Securities and Exchange Commission pursuant to Regulation 14A and is incorporated herein by reference.

Item 14.    Principal Accounting Fees and Services.

The information required by Item 14 is included under the captions “Audit and Other Fees” and “Audit Committee’s Pre-Approval Policies and Procedures” in our Company’s definitive proxy statement for 2009, which will be filed with the Securities and Exchange Commission pursuant to Regulation 14A and is incorporated herein by reference.

 

-44-


Table of Contents

PART IV

Item 15.    Exhibits, Financial Statement Schedules.

(a) Documents filed as part of this report:

1. Consolidated Financial Statements:

The consolidated financial statements of J. C. Penney Company, Inc. and subsidiaries are listed in the accompanying “Index to Consolidated Financial Statements” on page F-1.

2. Financial Statement Schedules:

Schedules have been omitted as they are inapplicable or not required under the rules, or the information has been submitted in the consolidated financial statements and related financial information contained otherwise in this Annual Report on Form 10-K.

3. Exhibits:

See separate Exhibit Index beginning on page E-1.

(b) Each management contract or compensatory plan or arrangement required to be filed as an exhibit to this Annual Report on Form 10-K is specifically identified in the separate Exhibit Index beginning on page E-1 and filed with or incorporated by reference in this report.

(c) Other Financial Statement Schedules. None.

 

-45-


Table of Contents

SIGNATURES

Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

 

J. C. PENNEY COMPANY, INC.
  (Registrant)

By:

 

/s/ R. B. Cavanaugh

  R. B. Cavanaugh
 

Executive Vice President

and Chief Financial Officer

Dated: March 31, 2009

 

-46-


Table of Contents

Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.

 

Signatures

  

Title

 

Date

M. E. Ullman, III*

M. E. Ullman, III

  

Chairman of the Board and

Chief Executive Officer

(principal executive officer);

Director

  March 31, 2009

K. C. Hicks*

K. C. Hicks

  

President and

Chief Merchandising Officer;

Director

  March 31, 2009

/s/ R. B. Cavanaugh

R. B. Cavanaugh

  

Executive Vice President and

Chief Financial Officer

(principal financial officer)

  March 31, 2009

D. P. Miller*

D. P. Miller

  

Senior Vice President and

Controller (principal

accounting officer)

  March 31, 2009

C. C. Barrett*

C. C. Barrett

   Director   March 31, 2009

M. A. Burns*

M. A. Burns

   Director   March 31, 2009

M. K. Clark*

M. K. Clark

   Director   March 31, 2009

T. J. Engibous*

T. J. Engibous

   Director   March 31, 2009

K. B. Foster*

K. B. Foster

   Director   March 31, 2009

B. Osborne*

B. Osborne

   Director   March 31, 2009

L. H. Roberts*

L. H. Roberts

   Director   March 31, 2009

J. G. Teruel*

J. G. Teruel

   Director   March 31, 2009

R. G. Turner*

R. G. Turner

   Director   March 31, 2009

M. E. West*

M. E. West

   Director   March 31, 2009

 

*By:  

/s/ R. B. Cavanaugh

  R. B. Cavanaugh
  Attorney-in-fact

 

-47-


Table of Contents

J. C. PENNEY COMPANY, INC.

INDEX TO CONSOLIDATED FINANCIAL STATEMENTS

 

Report of Independent Registered Public Accounting Firm

   F-2

Consolidated Statements of Operations for the Fiscal Years Ended January 31, 2009, February  2, 2008 and February 3, 2007

   F-3

Consolidated Balance Sheets as of January 31, 2009 and February 2, 2008

   F-4

Consolidated Statements of Stockholders’ Equity for the Fiscal Years Ended January 31, 2009, February  2, 2008 and February 3, 2007

   F-5

Consolidated Statements of Cash Flows for the Fiscal Years Ended January 31, 2009, February  2, 2008 and February 3, 2007

   F-6

Notes to Consolidated Financial Statements

   F-7

 

F-1


Table of Contents

REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

The Board of Directors and Stockholders

J.C. Penney Company, Inc.:

We have audited the accompanying consolidated balance sheets of J.C. Penney Company, Inc. and subsidiaries as of January 31, 2009 and February 2 2008, and the related consolidated statements of operations, stockholders’ equity and cash flows for each of the years in the three-year period ended January 31, 2009. These consolidated financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on these consolidated financial statements based on our audits.

We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.

In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position of J.C. Penney Company, Inc. and subsidiaries as of January 31, 2009 and February 2, 2008, and the results of their operations and their cash flows for each of the years in the three-year period ended January 31, 2009, in conformity with U.S. generally accepted accounting principles.

As discussed in Note 1 to the Consolidated Financial Statements, the Company adopted the provisions of the Financial Accounting Standards Board’s (FASB) Statement of Financial Accounting Standards (SFAS) No. 157, “Fair Value Measurements” in fiscal year 2008, and FASB Interpretation No. 48 “Accounting for Uncertainty in Income Taxes” on February 4, 2007. Also as discussed in Note 1, the Company adopted the measurement date provisions of SFAS No. 158, “Employers’ Accounting for Defined Benefit Pension and Other Postretirement Plans” on February 3, 2008, and the recognition and disclosure provisions of SFAS No. 158 on February 3, 2007.

We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), J.C. Penney Company Inc.’s internal control over financial reporting as of January 31, 2009, based on criteria established in Internal Control–Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO), and our report dated March 30, 2009 expressed an unqualified opinion on the effectiveness of the Company’s internal control over financial reporting.

LOGO

Dallas, Texas

March 30, 2009

 

F-2


Table of Contents

CONSOLIDATED STATEMENTS OF OPERATIONS

 

($ in millions, except per share data)    2008     2007     2006  

Total net sales

   $   18,486     $   19,860     $   19,903  

Cost of goods sold

     11,571       12,189       12,078  
                        

Gross margin

     6,915       7,671       7,825  

Operating expenses:

      

Selling, general and administrative (SG&A)

     5,395       5,402       5,470  

Pension (income)/expense

     (90 )     (45 )     51  

Depreciation and amortization

     469       426       389  

Pre-opening

     31       46       27  

Real estate and other (income), net

     (25 )     (46 )     (34 )
                        

Total operating expenses

     5,780       5,783       5,903  
                        

Operating income

     1,135       1,888       1,922  

Net interest expense

     225       153       130  

Bond premiums and unamortized costs

     -       12       -  
                        

Income from continuing operations before
income taxes

     910       1,723       1,792  

Income tax expense

     343       618       658  
                        

Income from continuing operations

     567       1,105       1,134  

Income from discontinued operations, net of
income tax (benefit)/expense of $(3), $4 and
$(17)

     5       6       19  
                        

Net income

   $ 572     $ 1,111     $ 1,153  
                        

Basic earnings per share:

      

Continuing operations

   $ 2.55     $ 4.96     $ 4.95  

Discontinued operations

     0.03       0.03       0.08  
                        

Net income

   $ 2.58     $ 4.99     $ 5.03  
                        

Diluted earnings per share:

      

Continuing operations

   $ 2.54     $ 4.90     $ 4.88  

Discontinued operations

     0.03       0.03       0.08  
                        

Net income

   $ 2.57     $ 4.93     $ 4.96  
                        

The accompanying notes are an integral part of these consolidated financial statements.

 

F-3


Table of Contents

CONSOLIDATED BALANCE SHEETS

 

($ in millions, except per share data)    2008     2007

Assets

    

Current assets

    

Cash and cash equivalents

   $     2,352     $ 2,532

Merchandise inventory (net of LIFO reserves of $2 and $1)

     3,259       3,641

Income taxes receivable

     352       313

Prepaid expenses and other

     257       265
              

Total current assets

     6,220       6,751

Property and equipment, net

     5,367       4,959

Prepaid pension

     -       2,030

Other assets

     424       569
              

Total Assets

   $ 12,011     $     14,309
              

Liabilities and Stockholders’ Equity

    

Current liabilities

    

Trade payables

   $ 1,194     $ 1,472

Accrued expenses and other current liabilities

     1,600       1,663

Current maturities of long-term debt

     -       203
              

Total current liabilities

     2,794       3,338

Long-term debt

     3,505       3,505

Deferred taxes

     599       1,463

Other liabilities

     958       691
              

Total Liabilities

     7,856       8,997

Stockholders’ Equity

    

Common stock (1)

     111       111

Additional paid-in capital

     3,499       3,453

Reinvested earnings

     1,959       1,540

Accumulated other comprehensive (loss)/income

     (1,414 )     208
              

Total Stockholders’ Equity

     4,155       5,312
              

Total Liabilities and Stockholders’ Equity

   $ 12,011     $ 14,309
              

(1) Common stock has a par value of $0.50 per share; 1,250 million shares are authorized. At January 31, 2009 and February 2, 2008, 222 million shares were issued and outstanding.

The accompanying notes are an integral part of these consolidated financial statements.

 

F-4


Table of Contents

CONSOLIDATED STATEMENTS OF STOCKHOLDERS’ EQUITY

 

(in millions, except per share amounts)   Number
of
Common
Shares
    Common
Stock
    Additional
Paid-in
Capital
    Reinvested
Earnings
    Accumulated
Other
Comprehensive
Income/(Loss)
    Total
Stockholders’
Equity
 
           

January 28, 2006

  233     $   116     $   3,363     $       512     $ 16     $     4,007  

Net income

  -       -       -       1,153       -       1,153  

Unrealized gain on investments, net of tax of $(29)

  -       -       -       -       48       48  

Non-qualified plan minimum liability adjustment, net of tax
of $3

  -       -       -       -       (6 )     (6 )
                 

Total comprehensive income

            $ 1,195  
                 

Adjustment to initially apply SFAS 158, net of tax of $150 (1)

  -       -       -       -       (234 )     (234 )

Dividends declared, common ($0.72 per share)

  -       -       -       (165 )     -       (165 )

Common stock issued

  4       2       130       -       -       132  

Common stock repurchased and retired

  (11 )     (6 )     (166 )     (578 )     -       (750 )

Vesting of share-based payments

  -       -       103       -       -       103  
     

February 3, 2007

  226       112       3,430       922       (176 )     4,288  

Adjustment to initially apply FIN 48 on February 4, 2007 ( 2 )

  -       -       -       5       -       5  
     

Adjusted balances at February 4, 2007

  226       112       3,430       927       (176 )     4,293  

Net income

  -       -       -       1,111       -       1,111  

Unrealized (loss) on investments, net of tax of $29

  -       -       -       -       (51 )     (51 )

Net actuarial gain/(loss) and prior service (cost)/credit adjustment, net of tax of $(278)

  -       -       -       -       435       435  
                 

Total comprehensive income

            $ 1,495  
                 

Dividends declared, common ($0.80 per share)

  -       -       -       (178 )     -       (178 )

Common stock issued

  1       1       38       -       -       39  

Common stock repurchased and retired

  (5 )     (2 )     (78 )     (320 )     -       (400 )

Vesting of share-based payments

  -       -       63       -       -       63  
     

February 2, 2008

  222       111       3,453       1,540       208       5,312  

SFAS 158 opening balance measurement date adjustment for 2007, net of tax of $(16) ( 3 )

  -       -       -       26       -       26  

SFAS 158 opening balance measurement date adjustment for 2008, net of tax of $218 ( 3 )

  -       -       -       -       (343 )     (343 )
     

Adjusted balances at February 3, 2008

  222       111       3,453       1,566       (135 )     4,995  

Net income

  -       -       -       572       -       572  

Unrealized (loss) on investments, net of tax of $56

  -       -       -       -       (100 )     (100 )

Net actuarial gain/(loss) and prior service (cost)/credit adjustment, net of tax of $752

  -       -       -       -       (1,179 )     (1,179 )
                 

Total comprehensive (loss)

            $ (707 )
                 

Dividends declared, common ($0.80 per share)

  -       -       -       (179 )     -       (179 )

Common stock issued

  -       -       1       -       -       1  

Vesting of share-based payments

  -       -       45       -       -       45  
     

January 31, 2009

  222     $ 111     $ 3,499     $ 1,959     $   (1,414 )   $ 4,155  
     

(1) Reflects the adoption of the recognition provisions of Statement of Financial Accounting Standards No. 158, “Employers’ Accounting for Defined Benefit Pension and Other Postretirement Plans – an amendment of FASB Statements No. 87, 88, 106, and 132(R).” See Note 15.

(2) Reflects the adoption of the Financial Accounting Standards Board’s Interpretation No. 48, “Accounting for Uncertainty in Income Taxes.” See Note 1.

(3) Reflects the adoption of the measurement date provisions of Statement of Financial Accounting Standards No. 158, “Employers’ Accounting for Defined Benefit Pension and Other Postretirement Plans – an amendment of FASB Statements No. 87, 88, 106, and 132(R).” See Note 15.

The accompanying notes are an integral part of these consolidated financial statements.

 

F-5


Table of Contents

CONSOLIDATED STATEMENTS OF CASH FLOWS

 

($ in millions)    2008     2007     2006  

Cash flows from operating activities:

      

Net income

   $     572     $     1,111     $  1,153  

(Income) from discontinued operations

     (5 )     (6 )     (19 )

Adjustments to reconcile net income to net cash provided by operating activities:

      

Asset impairments, PVOL and other unit closing costs

     29       5       4  

Depreciation and amortization

     469       426       389  

Net (gains) on sale of assets

     (10 )     (12 )     (8 )

Benefit plans (income)

     (201 )     (155 )     (51 )

Pension contribution

     -       -       (300 )

Stock-based compensation

     47       45       60  

Tax benefits from stock-based compensation

     6       9       6  

Deferred taxes

     167       37       (6 )

Change in cash from:

      

Inventory

     382       (241 )     (190 )

Prepaid expenses and other assets

     25       51       (5 )

Trade payables

     (278 )     106       195  

Current income taxes payable

     (36 )     (66 )     (1 )

Accrued expenses and other

     (12 )     (61 )     31  
                        

Net cash provided by operating activities of continuing operations

     1,155       1,249       1,258  
                        

Cash flows from investing activities:

      

Capital expenditures

     (969 )     (1,243 )     (772 )

Proceeds from sale of assets

     13       26       20  
                        

Net cash (used in) investing activities of continuing operations

     (956 )     (1,217 )     (752 )
                        

Cash flows from financing activities:

      

Proceeds from issuance of long-term debt

     -       980       -  

Payments of long-term debt, including capital leases and bond premiums

     (203 )     (746 )     (21 )

Common stock repurchased

     -       (400 )     (750 )

Dividends paid, common

     (178 )     (174 )     (153 )

Proceeds from stock options exercised

     4       45       135  

Excess tax benefits from stock-based compensation

     1       17       39  

Tax withholding payments reimbursed by restricted stock

     (4 )     (8 )     (1 )
                        

Net cash (used in) financing activities of continuing operations

     (380 )     (286 )     (751 )
                        

Cash flows from discontinued operations:

      

Operating cash flows

     2       8       11  

Investing cash flows

     (1 )     (25 )     (32 )

Financing cash flows

     -       -       -  
                        

Total cash received/(paid) for discontinued operations

     1       (17 )     (21 )
                        

Net (decrease) in cash and cash equivalents

     (180 )     (271 )     (266 )

Cash and cash equivalents at beginning of year

     2,532       2,803       3,069  
                        

Cash and cash equivalents at end of year

   $ 2,352     $ 2,532     $ 2,803  
                        

The accompanying notes are an integral part of these consolidated financial statements.

 

F-6


Table of Contents

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

1) Nature of Operations and Summary of Significant Accounting Policies

Nature of Operations

JCPenney was founded by James Cash Penney in 1902 and has grown to be a major national retailer, operating 1,093 JCPenney department stores throughout the continental United States, Alaska and Puerto Rico, as well as through the Internet at jcp.com and catalog. We sell family apparel and footwear, accessories, fine and fashion jewelry, beauty products through Sephora inside JCPenney, and home furnishings. In addition, our department stores provide services, such as styling salon, optical, portrait photography and custom decorating, to customers.

Basis of Presentation

The consolidated financial statements present the results of J. C. Penney Company, Inc. and our subsidiaries (the Company or JCPenney). All significant intercompany transactions and balances have been eliminated in consolidation.

We have a holding company whose principal operating subsidiary is J. C. Penney Corporation, Inc. (JCP). JCP was incorporated in Delaware in 1924, and J. C. Penney Company, Inc. was incorporated in Delaware in 2002, when the holding company structure was implemented. The holding company has no direct subsidiaries other than JCP, and has no independent assets or operations.

Our Company is a co-obligor (or guarantor, as appropriate) regarding the payment of principal and interest on JCP’s outstanding debt securities. We guarantee certain of JCP’s outstanding debt securities fully and unconditionally.

Fiscal Year

Our fiscal year ends on the Saturday closest to January 31. Unless otherwise stated, references to years in this report relate to fiscal years rather than to calendar years.

 

    Fiscal Year    

  

    Ended    

  

    Weeks    

    2008    

       January 31, 2009            52    

    2007    

       February 2, 2008            52    

    2006    

       February 3, 2007            53    

Use of Estimates

The preparation of financial statements, in conformity with U. S. generally accepted accounting principles (GAAP), requires our management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. While actual results could differ from these estimates, we do not expect the differences, if any, to have a material effect on the financial statements.

The most significant estimates relate to: inventory valuation under the retail method, specifically permanent reductions to retail prices (markdowns) and adjustments for shortages (shrinkage); valuation of long-lived assets; valuation allowances and reserves for workers’ compensation and general liability, environmental contingencies, income taxes and litigation; and pension accounting. Workers’ compensation and general liability reserves are based on historical experience, current claims data and independent actuarial best estimates, including incurred but not reported claims. Environmental remediation reserves are estimated using a range of potential liability, based on our experience and

 

F-7


Table of Contents

consultation with in-house legal counsel, as appropriate. Income taxes are estimated for each jurisdiction in which we operate. Deferred tax assets are evaluated for recoverability, and a valuation allowance is recorded if it is deemed more likely than not that the asset will not be realized. Effective February 4, 2007, we began to measure and record tax contingency accruals in accordance with the Financial Accounting Standards Board’s (FASB’s) Interpretation No. 48, “Accounting for Uncertainty in Income Taxes” (FIN 48). See additional discussion of FIN 48 in Note 17. During 2006, the valuation allowance previously established for state net operating losses was reversed based on management’s assessment that we will more likely than not generate sufficient income over the next several years to utilize the losses. Litigation reserves are based on management’s best estimate of potential liability, with consultation of in-house and outside counsel. Related to pension accounting, the selection of assumptions, including the estimated rate of return on plan assets and the discount rate, impacts the actuarially determined amounts reflected in our consolidated financial statements.

Reclassifications

Certain reclassifications were made to prior year amounts to conform to the current period presentation. None of the reclassifications affected our net income in any period.

Receivables

In order to clarify and more accurately classify the amounts recorded in the balance sheet line item “Receivables”, income taxes receivable of $352 million, as of January 31, 2009, is shown separately on the face of the balance sheet. The other significant component of receivables represented end-of-period sales transactions, involving credit cards awaiting settlement early in the following period, of $56 million as of January 31, 2009 and was reclassified to cash and cash equivalents due to its highly liquid nature. The remaining portion of receivables of $39 million, as of January 31, 2009, representing other current assets was reclassified to prepaid expenses and other. To ensure conformity between the reporting periods presented, we also made the same reclassification to the Consolidated Balance Sheets as of year-end 2007 as shown in the following table:

 

($ in millions)    2007  

Receivables – as previously reported

   $ 430  

Credit card sales settlements

     (61 )

Other current assets

     (56 )
        

Income taxes receivable – as reclassified

   $ 313  
        

Cash and short-term investments – as previously reported

   $ 2,471  

Credit card sales settlements

     61  
        

Cash and cash equivalents – as reclassified

   $   2,532  
        

Prepaid expenses – as previously reported

   $ 209  

Other current assets

     56  
        

Prepaid expenses and other – as reclassified

   $ 265  
        

Pension (Income)/Expense

A significant decline in pension plan assets during 2008 will have a material negative impact on pension expense to be recorded beginning in 2009 – see page 25 for more details. The year-over-year swing in pension expense materially affects the year-to-year comparability of selling, general and administrative (SG&A) expenses. In order to present SG&A expenses on a more comparable basis and be more reflective of recent trends, the pension expense has been removed and reclassified to a separate line item on the Consolidated Statements of Operations.

 

F-8


Table of Contents

For the year ended January 31, 2009, we reclassified $(90) million of pension (income) from SG&A expenses to the line item pension (income)/expense on the Consolidated Statements of Operations. This reclassification improves comparability of the components of SG&A, as well as provides transparency into pension (income)/expense reporting. The table below shows the reclassification as of 2007 and 2006.

 

($ in millions)    2007     2006

Selling, general and administrative (SG&A) – as previously reported

   $     5,357     $     5,521

Pension (income)/expense

     (45 )     51
              

Selling, general and administrative (SG&A) – as reclassified

   $ 5,402     $ 5,470
              

Merchandise and Services Revenue Recognition

Total net sales, which exclude sales taxes and are net of estimated returns, are recorded at the point of sale when payment is made and the customer takes possession of the merchandise in department stores, at the point of shipment of merchandise ordered through Direct (Internet/catalog) or, in the case of services, at the time the customer has received the benefit of the service, such as salon, portrait, optical or custom decorating. Commissions earned on sales generated by licensed departments are included as a component of total net sales. Shipping and handling fees charged to customers are also included in total net sales with corresponding costs recorded as cost of goods sold. We provide for estimated future returns based on historical return rates and sales levels.

Gift Card Revenue Recognition

At the time gift cards are sold, no revenue is recognized; rather, a liability is established for the face amount of the card. The liability remains recorded until the earlier of redemption, escheatment or 60 months. The liability is relieved and revenue is recognized when gift cards are redeemed for merchandise. We escheat a portion of unredeemed gift cards according to Delaware escheatment requirements that govern remittance of the cost of the merchandise portion of unredeemed gift cards over five years old. After reflecting the amount escheated, any remaining liability after 60 months (referred to as breakage) is relieved and recognized as a reduction of SG&A expenses as an offset to the costs of administering the gift card program. It is our historical experience that the likelihood of redemption after 60 months is remote. The liability for gift cards is recorded in accrued expenses and other current liabilities on the Consolidated Balance Sheets and was $215 million and $231 million at January 31, 2009 and February 2, 2008, respectively.

Cost of Goods Sold

Cost of goods sold includes all costs directly related to bringing merchandise to its final selling destination. These costs include the cost of the merchandise (net of discounts or allowances earned), sourcing and procurement costs, buying and brand development costs, including buyers’ salaries and related expenses, freight costs, warehouse operating expenses, merchandise examination, inspection and testing, store merchandise distribution center expenses, including rent, and shipping and handling costs incurred related to Direct sales to customers.

Selling, General and Administrative Expenses

SG&A expenses include the following costs, except as related to merchandise buying, sourcing, warehousing or distribution activities: salaries, marketing costs, occupancy and rent expense, utilities and maintenance, costs related to information technology, administrative costs related to our home office and district and regional operations, real and personal property and other taxes (excluding income taxes) and credit card fees.

 

F-9


Table of Contents

Advertising

Advertising costs, which include newspaper, television, radio and other media advertising, are expensed either as incurred or the first time the advertisement occurs. Total advertising costs, net of cooperative advertising vendor reimbursements of $167 million, $210 million and $163 million for 2008, 2007 and 2006, respectively, were $1,314 million, $1,316 million and $1,317 million. These totals include direct-to-consumer advertising, consisting of catalog book costs and Internet advertising, of $331 million, $346 million and $357 million for 2008, 2007 and 2006, respectively. Catalog book preparation and printing costs, which are considered direct response advertising, are charged to expense over the productive life of the catalog, not to exceed eight months. Deferred catalog book costs of $35 million at January 31, 2009 and $41 million at February 2, 2008 were included in prepaid expenses and other on the Consolidated Balance Sheets.

Vendor Allowances

We receive vendor support in the form of cash payments or allowances through a variety of reimbursements such as cooperative advertising, markdowns, vendor shipping and packaging compliance and defective merchandise. We have agreements in place with each vendor setting forth the specific conditions for each allowance or payment. In accordance with Emerging Issues Task Force (EITF) 02-16, “Accounting by a Customer (Including a Reseller) for Certain Consideration Received from a Vendor,” depending on the arrangement, we either recognize the allowance as a reduction of current costs or defer the payment over the period the related merchandise is sold. If the payment is a reimbursement for costs incurred, it is offset against those related costs; otherwise, it is treated as a reduction to the cost of merchandise.

For cooperative advertising programs offered by national brands, we generally offset the allowances against the related advertising expense. Certain programs require proof-of-advertising to be provided to the vendor to support the reimbursement of the incurred cost. Programs that do not require proof-of-advertising are monitored to ensure that the allowance provided by each vendor is a reimbursement of costs incurred to advertise for that particular vendor’s label. If the allowance exceeds the advertising costs incurred on a vendor-specific basis, then the excess allowance for the vendor is recorded as a reduction of merchandise cost.

Markdown reimbursements related to merchandise that has been sold are negotiated and documented by our buying teams and are credited directly to cost of goods sold in the period received. If vendor allowances are received prior to merchandise being sold, they are recorded as a reduction of merchandise cost.

Vendor compliance charges reimburse us for incremental merchandise handling expenses incurred due to a vendor’s failure to comply with our established shipping or merchandise preparation requirements. Vendor compliance charges are recorded as a reduction of merchandise handling costs.

Pre-Opening Expense

Subsequent to the construction/build-out period of store facilities, costs associated with the pre-opening phase, including advertising, hiring and training costs for new associates, processing and stocking initial merchandise inventory and rental costs, if applicable, are expensed in the period incurred. Due to the adoption of FASB Staff Position (FSP) 13-1, “Accounting for Rental Costs Incurred during a Construction Period,” beginning in 2006, rental costs incurred during the construction/buildout period are also included in pre-opening expense. Previously, such costs were capitalized as part of the building or leasehold improvement. In total, pre-opening expense was $31 million, $46 million and $27 million, respectively, for 2008, 2007 and 2006.

 

F-10


Table of Contents

Income Taxes

We account for income taxes using the asset and liability method. Deferred tax assets and liabilities are recognized for the future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases and operating loss and tax credit carryforwards. Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be recovered or settled. The effect on deferred tax assets and liabilities of a change in tax rates is recognized in income in the period that includes the enactment date. A valuation allowance is recorded to reduce the carrying amounts of deferred tax assets unless it is more likely than not such assets will be realized. We recognize accrued interest and penalties related to unrecognized tax benefits in income tax expense on our Consolidated Statements of Operations.

Earnings per Share

Basic earnings per share (EPS) is computed by dividing net income by the weighted-average number of common shares outstanding for the period. Except when the effect would be anti-dilutive at the continuing operations level, the diluted EPS calculation includes the impact of restricted stock units and shares that, during the period, could have been issued under outstanding stock options.

Comprehensive Income/(Loss)

Comprehensive income/(loss) consists of two components: net income and other comprehensive income/(loss). For all years presented, other comprehensive income/(loss) includes unrealized net actuarial gains/(losses) from pension and other postretirement benefit plans, and unrealized gains/(losses) on investments. On February 3, 2008, the opening balance of other comprehensive income/(loss) was adjusted for the SFAS 158 measurement date provision from the prior measurement date of October 31, 2007. Beginning in 2007, other comprehensive income/(loss) reflects gain or loss and prior service cost arising during the period and reclassification adjustments for amounts being recognized as components of net periodic pension/postretirement cost during the period, all net of tax. For years prior to 2007, other comprehensive income/(loss) also included non-qualified plan minimum liability adjustments, net of tax. However, as reflected on the Consolidated Statements of Stockholders’ Equity, the February 3, 2007 balance of accumulated other comprehensive income/(loss) was adjusted to reflect the recognition provisions of SFAS 158, which resulted in the reversal of the additional minimum liability and the recognition of net actuarial losses and prior service costs not yet included in periodic pension/postretirement cost, net of tax. See the Retirement-Related Benefits accounting policy on page F-13 and Note 15 for further discussion regarding the measurement date provision adjustments.

Cash and Cash Equivalents

Cash and cash equivalents were $2,352 million and $2,532 million for year-end 2008 and year-end 2007, respectively. All highly liquid investments with original maturities of three months or less are considered to be cash equivalents. Cash equivalents consist primarily of short-term U.S. Treasury money market funds and a portfolio of highly rated bank deposits and are stated at cost, which approximates fair market value due to the short-term maturity. There are no restricted investment balances at year-end 2008. Cash and cash equivalents include restricted balances of $49 million at year-end 2007. At year-end 2007, restricted balances contained pledged collateral for a portion of casualty insurance program liabilities. Cash and cash equivalents also includes credit card sales transactions that are settled early in the following period. Refer to Reclassifications on page F-8 for a description of the 2008 reclassification of these transactions to cash and cash equivalents.

 

F-11


Table of Contents

Merchandise Inventories

Inventories are valued primarily at the lower of cost (using the last-in, first-out or “LIFO” method) or market, determined by the retail method for department stores, regional warehouses and store distribution centers, and standard cost, representing average vendor cost, for Direct. The lower of cost or market is determined on an aggregate basis for similar types of merchandise. To estimate the effects of inflation/deflation on ending inventory, an internal index measuring price changes from the beginning to the end of the year is calculated using merchandise cost data at the item level.

Total LIFO (charges)/credits included in cost of goods sold were $(1) million, $7 million and $16 million in 2008, 2007 and 2006, respectively. If the first-in, first-out or “FIFO” method of inventory valuation had been used instead of the LIFO method, inventories would have been $2 million and $1 million higher at January 31, 2009 and February 2, 2008, respectively.

Property and Equipment, Net

 

($ in millions)    Estimated
Useful Lives
(Years)
   2008     2007  
       

Land

   N/A    $ 308     $ 303  

Buildings

   50      4,090       3,670  

Furniture and equipment

   3-20      2,364       2,241  

Leasehold improvements

        1,044       964  

Accumulated depreciation

        (2,439 )     (2,219 )
                   

Property and equipment, net

      $     5,367     $     4,959  
                   

Property and equipment is stated at cost less accumulated depreciation. Depreciation is computed primarily by using the straight-line method over the estimated useful lives of the related assets. Leasehold improvements are depreciated over the shorter of the estimated useful lives of the improvements or the term of the lease, including renewals determined to be reasonably assured.

Routine maintenance and repairs are expensed when incurred. Major replacements and improvements are capitalized. The cost of assets sold or retired and the related accumulated depreciation or amortization are removed from the accounts with any resulting gain or loss included in net income.

We account for our conditional asset retirement obligations, which are primarily related to asbestos removal, based on the guidance in FIN 47, “Accounting for Conditional Asset Retirement Obligations – an Interpretation of FASB Statement No. 143.” FIN 47 requires us to recognize a liability for the fair value of the conditional asset retirement obligation when incurred if the liability’s fair value can be reasonably estimated.

Capitalized Software Costs

Costs associated with the acquisition or development of major software for internal use are capitalized in other assets in our Consolidated Balance Sheets and are amortized over the expected useful life of the software, generally between three and seven years. Subsequent additions, modifications or upgrades to internal-use software are capitalized only to the extent that they allow the software to perform a task it previously did not perform. Software maintenance and training costs are expensed in the period incurred.

 

F-12


Table of Contents

Impairment of Long-Lived Assets

In accordance with SFAS 144, “Accounting for the Impairment or Disposal of Long-Lived Assets,” we evaluate long-lived assets such as stores, property and equipment and other corporate assets for impairment whenever events or changes in circumstances indicate that the carrying amount of those assets may not be recoverable. Factors considered important that could trigger an impairment review include, but are not limited to, significant underperformance relative to historical or projected future operating results and significant changes in the manner of use of the assets or our overall business strategies. Potential impairment exists if the estimated undiscounted cash flows expected to result from the use of the asset plus any net proceeds expected from disposition of the asset are less than the carrying value of the asset. The amount of the impairment loss represents the excess of the carrying value of the asset over its fair value. For stores, we estimate fair value based on a projected discounted cash flow method using a discount rate that is considered to be commensurate with the risk inherent in our current business model and for assets other than stores, we generally base fair value on either appraised value or projected discounted cash flows. Additional factors are taken into consideration, such as local market conditions, operating environment, mall performance and other trends.

We recorded impairment losses totaling $21 million, $1 million and $2 million in 2008, 2007 and 2006, respectively. For 2008, impairment charges were primarily for a department store, a real estate joint venture and other corporate assets. These charges are reflected in real estate and other (income), net in the accompanying Consolidated Statements of Operations. See further discussion in Note 16.

Leases

We use a consistent lease term when calculating depreciation of leasehold improvements, determining straight-line rent expense and determining classification of leases as either operating or capital. For purposes of recognizing incentives, premiums, rent holidays and minimum rental expenses on a straight-line basis over the terms of the leases, we use the date of initial possession to begin amortization, which is generally when we enter the property and begin to make improvements in preparation of its intended use. Renewal options determined to be reasonably assured are also included in the lease term. Some leases require additional payments based on sales and are recorded in rent expense when the contingent rent is probable.

Some of our lease agreements contain developer/tenant allowances. Upon receipt of such allowances, we record a deferred rent liability in other liabilities on the Consolidated Balance Sheets. The allowances are then amortized on a straight-line basis over the remaining terms of the corresponding leases as a reduction of rent expense.

Retirement-Related Benefits

On February 3, 2007, we adopted the recognition and disclosure provisions of SFAS 158, “Employers’ Accounting for Defined Benefit Pension and Other Postretirement Plans – an amendment of FASB Statements No. 87, 88, 106, and 132(R).” SFAS 158 required us to recognize the funded status – the difference between the fair value of plan assets and the plan’s benefit obligation – of our defined benefit pension and postretirement plans directly on the balance sheet. Each overfunded plan is recognized as an asset and each underfunded plan is recognized as a liability. Beginning in 2007, adjustments to other comprehensive income/(loss) reflect prior service cost or credits and actuarial gain or loss amounts arising during the period and reclassification adjustments for amounts being recognized as components of net periodic pension/postretirement cost, net of tax, in accordance with current pension accounting rules under SFAS 87, “Employers’ Accounting for Pensions,” and SFAS 106, “Employers’ Accounting for Postretirement Benefits Other Than Pensions.”

 

F-13


Table of Contents

SFAS 158 also eliminates the provisions of SFAS 87 and SFAS 106 that allow plan assets and obligations to be measured as of a date not more than three months prior to the reporting entity’s balance sheet date. We transitioned to a measurement date of January 31 for our defined benefit pension and other postretirement plans; using the first approach prescribed by paragraph 18 of SFAS 158 and completed a new measurement of plan assets and benefit obligations as of the beginning of 2008 and end of 2008. Refer to Note 15 for a discussion of the measurement date provision.

Exit or Disposal Activity Costs

In accordance with SFAS 146, “Accounting for Costs Associated with Exit or Disposal Activities,” costs associated with exit or disposal activities are recorded at their fair values when a liability has been incurred. Reserves are established at the time of closure for the present value of any remaining operating lease obligations (PVOL), net of estimated sublease income, and at the point of decision for severance and other exit costs. Since we have an established program for termination benefits upon a reduction in force or the closing of a facility, termination benefits paid under the existing program are considered part of an ongoing benefit arrangement, accounted for under SFAS 112, “Employers’ Accounting for Postemployment Benefits,” and recorded when payment of the benefits is considered probable and reasonably estimable.

Stock-Based Compensation

Consistent with the use of the fair value method under SFAS 123R “Share-Based Payment,” we record compensation expense for time-vested awards on a straight-line basis over the associates’ service period, to the earlier of the retirement eligibility date, if the grant contains provisions such that the award becomes fully vested upon retirement, or the stated vesting period (the non-substantive vesting period approach). See Note 13 for a full discussion of our stock-based compensation.

Recent Accounting Pronouncements

SFAS 157, “Fair Value Measurements,” became effective as of the beginning of 2008. This standard defines fair value, establishes a framework for measuring fair value and expands disclosures about fair value measurements. This statement applies under other accounting pronouncements that require or permit fair value measurements, but does not require any new fair value measurements. In November 2007, the FASB issued FSP FAS 157-2, which provided a one-year deferral for the implementation of SFAS 157 for other non-financial assets and liabilities that are recorded or disclosed on a non-recurring basis. We elected to apply the FSP FAS 157-2 deferral of SFAS 157, and accordingly, have not applied SFAS 157 to our long-lived assets that are valued on a non-recurring basis. On October 10, 2008, the FASB issued FASB FSP FAS 157-3, “Determining the Fair Value of a Financial Asset When the Market for That Asset Is Not Active,” which clarifies the application of SFAS 157 as it relates to the valuation of financial assets in inactive markets. FSP FAS 157-3 is effective immediately and includes those periods for which financial statements have not been issued. The adoption of FSP FAS 157-3 did not have a material impact on our consolidated financial statements. See Note 7 for a discussion of the partial adoption of SFAS 157.

EITF 06-11, “Accounting for Income Tax Benefits of Dividends on Share-Based Payment Awards,” became effective in the first quarter of 2008. EITF 06-11 requires that the tax benefit received on dividends associated with share-based awards that are charged to retained earnings should be recorded in additional paid-in-capital (APIC) and included in the APIC pool of excess tax benefits available to absorb potential future tax deficiencies on share-based payment awards. EITF 06-11 did not have a material impact on our consolidated financial statements.

 

F-14


Table of Contents

In May 2008, the FASB issued SFAS 162, “The Hierarchy of Generally Accepted Accounting Principles.” SFAS 162 identifies the sources of accounting principles and the framework for selecting the principles used in the preparation of financial statements that are presented in conformity with GAAP. SFAS 162 became effective on November 15, 2008, but did not have a material impact on our consolidated financial statements.

In December 2008, the FASB issued FSP FAS 132(R)-1, “Employers’ Disclosures about Postretirement Benefit Plan Assets.” FSP FAS 132(R)-1 provides enhanced disclosures about plan assets of a defined benefit pension or other postretirement plan including (i) investment policies and strategies, (ii) major categories of plan assets, (iii) the valuation techniques used to measure the fair value of plan assets, including the effect of significant unobservable inputs on changes in plan assets, and (iv) significant concentrations within plan assets. This statement is effective after December 15, 2009. Since FSP FAS 132(R)-1 requires enhanced disclosures, without a change to existing standards relative to measurement and recognition, our adoption of FSP FAS 132(R)-1 will not have any effect on our earnings or financial position.

2) Earnings Per Share

Income from continuing operations and shares used to compute earnings per share (EPS) from continuing operations, basic and diluted, are reconciled below:

 

(in millions, except EPS)    2008    2007    2006

Earnings:

        

Income from continuing operations, basic and diluted

   $     567    $     1,105    $     1,134
                    

Shares:

        

Average common shares outstanding (basic shares)

     222      223      229

Adjustment for assumed dilution – stock options and restricted stock awards

     1      2      3
                    

Average shares assuming dilution (diluted shares)

     223      225      232
                    

EPS from continuing operations:

        

Basic

   $ 2.55    $ 4.96    $ 4.95

Diluted

   $ 2.54    $ 4.90    $ 4.88

The following average potential shares of common stock were excluded from the diluted EPS calculations because their effect would be anti-dilutive:

 

(shares in millions)    2008    2007    2006

Stock options and restricted awards

     9        2        1  
              

 

F-15


Table of Contents

3) Supplemental Cash Flow Information

 

($ in millions)    2008     2007     2006  

Total income taxes paid

   $     209     $     616     $     593  

Less: income taxes (received) attributable to discontinued operations

     (3 )     (15 )     (27 )
                        

Income taxes paid by continuing operations

   $ 212     $ 631     $ 620  
                        

Interest paid by continuing operations

   $ 265     $ 283 (1)   $ 281  

Interest received by continuing operations

   $ 35     $ 118     $ 140  

(1) Includes cash paid for bond premiums and commissions of $9 million.

There were no significant non-cash investing or financing activities in 2008, 2007 or 2006.

4) Other Assets

 

($ in millions)    2008    2007

Capitalized software, net

   $       140    $       107

Leveraged lease investments

     139      141

Real estate investments (1)

     90      263

Debt issuance costs, net

     30      34

Other

     25      24
             

Total

   $ 424    $ 569
             

(1) Consists mainly of the market value of our investment in public real estate investment trusts (REITs) accounted for as available for sale securities. As of both January 31, 2009 and February 2, 2008 the cost basis of these investments was $75 million. The change from year to year relates primarily to the decline in market value of these investments. See Note 12 accumulated other comprehensive (loss)/income for the net unrealized gains on real estate investments.

5) Accrued Expenses and Other Current Liabilities

 

($ in millions)    2008    2007

Accrued salaries, vacation and bonus

   $     343    $     343

Customer gift cards/certificates

     215      231

Advertising payables

     100      95

Occupancy and rent-related payables

     98      97

Capital expenditures payable

     92      124

Interest payable

     92      88

Unrecognized tax benefits

     88      49

Taxes other than income taxes

     72      90

Current portion of workers’ compensation and general liability insurance

     63      65

Common dividends payable

     44      45

Current portion of retirement plan liabilities

     29      78

Other (1)

     364      358
             

Total

   $ 1,600    $ 1,663
             

(1) Other includes various general accrued expenses related to operations that are individually insignificant.

 

F-16


Table of Contents

6) Other Liabilities

 

($ in millions)    2008    2007

Qualified pension plan (1)

   $     275    $     -

Supplemental pension and other postretirement benefit plan liabilities

     240      248

Long-term portion of workers’ compensation and general liability insurance

     168      166

Deferred developer/tenant allowances

     121      118

Unrecognized tax benefits

     104      111

Other

     50      48
             

Total

   $ 958    $     691
             

(1) In 2008, the decline in the funded status of the pension plan resulted in a funded status liability of $275 million that was a prepaid pension asset in 2007 of $2,030 million.

7) Fair Value of Financial Instruments

We adopted SFAS 157 as of the beginning of 2008, as discussed in Note 1, for our investments in public real estate investment trusts (REITs), which are carried at fair value in our consolidated financial statements. SFAS 157 defines fair value as the price that would be received to sell an asset or paid to transfer a liability (i.e., the exit price) in an orderly transaction between market participants at the measurement date. SFAS 157 establishes a hierarchy for inputs used in measuring fair value, as follows:

Level 1 — Valuations are based on quoted market prices (unadjusted) in active markets for identical assets or liabilities that we have the ability to access. Since valuations are readily and regularly available, valuation of level 1 assets and liabilities does not require a significant degree of judgment.

Level 2 — Valuations are based on quoted prices for similar assets in active markets, or quoted prices in markets that are not active for which significant inputs are observable, either directly or indirectly.

Level 3 — Valuations are based on inputs that are unobservable and significant to the overall fair value measurement. Inputs reflect management’s best estimate of what market participants would use in pricing the asset or liability at the measurement date. Consideration is given to the risk inherent in the valuation technique and the risk inherent in the inputs to the model.

We determined the fair value of our REITs using quoted market prices considered level 1 inputs. The fair value of these investments reflected in other assets in our Consolidated Balance Sheet as of January 31, 2009 is presented in the table below based on the hierarchy outlined in SFAS 157. See Note 12 for the accumulated net unrealized gain of $15 million in REITs in 2008 recorded in accumulated other comprehensive income, a component of net equity.

 

($ in millions)    Assets at Fair Value as of January 31, 2009
     Level 1    Level 2    Level 3    Total

Total REIT assets

   $   98    $   -    $   -    $   98
                           

Cash and Cash Equivalents

The carrying amount approximates fair value because of the short maturity of these instruments.

 

F-17


Table of Contents

Long-Term Debt

The fair value of long-term debt, excluding capital leases and other is estimated by obtaining quotes from brokers or is based on current rates offered for similar debt. At January 31, 2009, long-term debt excluding capital leases and other, had a carrying value of $3.5 billion and a fair value of $2.6 billion. At February 2, 2008, long-term debt excluding capital leases and other, had a carrying value of $3.7 billion and a fair value of $3.6 billion.

Concentrations of Credit Risk

We have no significant concentrations of credit risk.

8) Credit Agreement

On April 7, 2005, the Company, JCP and J. C. Penney Purchasing Corporation entered into a five-year $1.2 billion unsecured revolving credit facility (2005 Credit Agreement) with a syndicate of lenders with JPMorgan Chase Bank, N.A., as administrative agent. The 2005 Credit Agreement is available for general corporate purposes, including the issuance of letters of credit. Pricing is tiered based on JCP’s senior unsecured long-term debt ratings by Moody’s Investors Service, Inc. and Standard & Poor’s Ratings Services. JCP’s obligations under the 2005 Credit Agreement are guaranteed by the Company.

The 2005 Credit Agreement includes a requirement that we maintain: (i) a Leverage Ratio (as defined in the 2005 Credit Agreement) of no more than 3.0 to 1.0 as of the last day of each fiscal quarter, measured on a trailing four-quarters basis and (ii) a Fixed Charge Coverage Ratio (as defined in the 2005 Credit Agreement) of at least 3.2 to 1.0 for each period of four consecutive fiscal quarters. As of January 31, 2009, we were in compliance with these requirements with a Leverage Ratio of 2.2 to 1.0 and a Fixed Charge Coverage Ratio of 3.9 to 1.0.

No borrowings, other than the issuance of standby and import letters of credit, which totaled $152 million as of the end of 2008, have been made under this credit facility.

 

F-18


Table of Contents

9) Long-Term Debt

 

($ in millions)    2008    2007

Issue:

     

5.75% Senior Notes Due 2018

   $ 300    $ 300

6.375% Senior Notes Due 2036

     700      700

6.875% Medium-Term Notes Due 2015

     200      200

6.9% Notes Due 2026

     2      2

7.125% Debentures Due 2023

     255      255

7.375% Notes Due 2008

     -      200

7.4% Debentures Due 2037

     326      326

7.625% Notes Due 2097

     500      500

7.65% Debentures Due 2016

     200      200

7.95% Debentures Due 2017

     285      285

8.0% Notes Due 2010

     506      506

9.0% Notes Due 2012

     230      230
             

Total notes and debentures

     3,504      3,704

Capital lease obligations and other

     1      4
             

Total long-term debt, including current maturities

     3,505      3,708

Less: current maturities

     -      203
             

Total long-term debt

   $   3,505    $   3,505
             

As of January 31, 2009, the weighted-average interest rate on long-term debt outstanding was 7.3% and the weighted-average maturity of our long-term debt was 24 years. The weighted-average interest rate on long-term debt outstanding was also 7.3% as of February 2, 2008.

2008 Debt Payment

In August 2008, we repaid at maturity $200 million outstanding principal amount of JCP’s 7.375% Notes Due 2008.

2007 Debt Reductions

In the second quarter of 2007, we accelerated the redemption of the remaining $303 million principal amount of JCP’s 8.125% Debentures Due 2027. We incurred a pre-tax charge of $12 million for this early redemption related to the call premium and write-off of unamortized costs of these Debentures. In the first quarter of 2007, we repaid at maturity $325 million outstanding principal amount of JCP’s 7.60% Notes Due 2007. In the fourth quarter of 2007, we repaid at maturity $100 million outstanding principal amount of JCP’s 6.5% Medium-Term Notes Due 2007.

2007 Issuance of Debt

In April 2007, we issued $1.0 billion aggregate principal amount of new senior unsecured notes, consisting of $300 million aggregate principal amount of 5.75% Senior Notes Due 2018 and $700 million aggregate principal amount of 6.375% Senior Notes Due 2036. We received proceeds of $980 million from the offering, net of underwriting discounts, which was used in 2007 and 2008 for debt payments and general corporate purposes.

 

F-19


Table of Contents

Long-Term Debt Financial Covenants

We have an indenture covering approximately $255 million of long-term debt that contains a financial covenant requiring us to have a minimum of 200% net tangible assets to senior funded indebtedness (as defined in the indenture). This indenture permits our Company to issue additional long-term debt if we are in compliance with the covenant. At year-end 2008, our percentage of net tangible assets to senior funded indebtedness was 272%.

Scheduled Annual Principal Payments on Long-Term Debt

 

($ in millions)                    

2009

 

2010

 

2011

 

2012

 

2013

 

2014-2097

$  -

  $  506   $  -   $  230   $  -   $  2,769
                     

10) Net Interest Expense

 

($ in millions)    2008     2007     2006  

Long-term debt

   $   268     $   278     $   270  

Short-term investments

     (32 )     (113 )     (135 )

Other, net

     (11 )     (12 )     (5 )
                        

Total

   $ 225     $ 153     $ 130  
                        

11) Capital Stock

Common Stock

As of January 31, 2009, we had 34,656 stockholders of record. On a combined basis, our 401(k) savings plan, including our employee stock ownership plan (ESOP), held approximately 17 million shares of common stock, or approximately 7.6% of outstanding JCPenney common stock, at January 31, 2009.

Common Stock Repurchases

During the second quarter of 2007, we repurchased 5.1 million shares of common stock for $400 million under a plan authorized by the Board in March 2007. In 2006, we repurchased 11.3 million shares of common stock for $750 million as authorized by the Board in February 2006. The 2007 and 2006 stock repurchase programs were funded with cash proceeds from employee stock option exercises and existing cash and cash equivalents. Common stock was repurchased through open market transactions and retired on the same day it was repurchased. The excess of the purchase price over the par value was allocated between reinvested earnings and additional paid-in-capital. As of January 31, 2009, we had no outstanding Board authorizations to repurchase stock.

Preferred Stock

We have authorized 25 million shares of preferred stock; no shares of preferred stock were issued and outstanding as of January 31, 2009 or February 2, 2008.

Preferred Stock Purchase Rights

Until March 26, 2009, each outstanding share of common stock included one preferred stock purchase right. These rights, which were redeemable by the Company under certain circumstances, entitled the holder to purchase, for each right held, 1/1000 of a share of Series A Junior Participating Preferred Stock at a price of $140 upon the occurrence of certain events, as described in the rights

 

F-20


Table of Contents

agreement. The rights agreement also provided that a committee of our independent directors would review the rights agreement at least every three years and, if they deemed it appropriate, might recommend to the Board of Directors a modification or termination of the rights agreement. The Board of Directors determined to allow the rights agreement to expire by its terms on March 26, 2009. Accordingly, no preferred stock purchase rights currently exist.

12) Accumulated Other Comprehensive (Loss)/Income

 

       2008          2007
     Pre-Tax
Amount
    Deferred
Tax
(Liability)/
Asset
    Net of
Tax
Amount
         Pre-Tax
Amount
   Deferred
Tax
(Liability)/
Asset
    Net of
Tax
Amount

($ in millions)

                

Net unrealized gains on real estate investments

   $ 23     $ (8 )   $ 15        $ 179    $ (64 )   $ 115

Net actuarial(loss)/gain and prior service (cost)/credit – pension and postretirement plans (1)

     (2,339 )     910       (1,429 )        153      (60 )     93
                                                

Accumulated other comprehensive (loss)/income

   $   (2,316 )   $   902     $   (1,414 )      $   332    $   (124 )   $   208
                                                

(1) See Note 15 for breakdowns of the pre-tax actuarial (loss)/gain and prior service (cost)/credit balances.

13) Stock-Based Compensation

The J. C. Penney Company, Inc. 2005 Equity Compensation Plan (2005 Plan) was approved by our stockholders in May 2005 and provides to employees (associates) grants of options to purchase JCPenney common stock, restricted and non-restricted stock awards (shares and units) and stock appreciation rights. In addition, our 2005 Plan provides for grants of restricted and non-restricted stock awards (shares and units) and stock options to our non-employee members of the Board of Directors. As of January 31, 2009, 8.7 million shares of stock were available for future grant under the 2005 Plan. Of these, 2.1 million were available for grant as stock awards. We are putting forth a new equity compensation plan for stockholder approval at our May 2009 Annual Meeting of Stockholders. If the new plan is approved, as of its May 15, 2009 effective date, no new equity awards will be made under our 2005 Plan.

Associate stock options and restricted stock awards typically vest over periods ranging from one to three years. Since 2007, the exercise price of stock options and the market value of restricted stock awards are determined based on the closing market price of our common stock on the date of grant. Prior to 2007, the price under the 2005 Plan was set at the opening market price of JCPenney common stock on the date of grant. The 2005 Plan does not permit awarding stock options below grant-date market value nor does it allow any repricing subsequent to the date of grant. Associate stock options have a maximum term of 10 years.

Over the past three years, our stock option and restricted stock award grants have averaged about 1.6% of total outstanding stock. We issue new shares upon the exercise of stock options, granting of restricted shares and vesting of restricted stock units.

 

F-21


Table of Contents

Stock-Based Compensation Cost

 

($ in millions)    2008    2007    2006

Stock options

   $   29    $   23    $   26

Stock awards (shares and units)

     18      22      34
                    

Total stock-based compensation cost

   $ 47    $ 45    $ 60
                    

Total income tax benefit recognized for stock-based compensation arrangements

   $ 18    $ 18    $ 23
                    

Stock Options

On March 12, 2008, we made our annual grant of stock options covering approximately 2.2 million shares to associates at an option price of $39.78, with a fair value of $13.90 per option. In addition to the annual grant, we also made two additional supplemental annual grants during 2008 to selected associates. On July 24, 2008 we granted approximately 1.3 million stock options at an option price of $30.88, with a fair value of $9.22 per option and on November 20, 2008 we granted approximately 1.0 million stock options at an option price of $14.38, with a fair value of $6.41.

As of January 31, 2009, options to purchase approximately 11.9 million shares of common stock were outstanding. If all options were exercised, common stock outstanding would increase by 5.3%. Additional information regarding options outstanding as of January 31, 2009 follows:

(Shares in thousands; price is weighted-average exercise price)

 

     Exercisable         Unexercisable         Total Outstanding
     Shares    %     Price         Shares    %     Price         Shares    %     Price

In-the-money

   250    4 %   $   16       1,048    18 %   $   14       1,298    11 %   $   15

Out-of-the-money (1)

   5,937    96 %     45       4,627    82 %     46       10,564    89 %     46
                                               

Total options
outstanding

   6,187    100 %     44       5,675    100 %     40       11,862    100 %     42
                                               

(1) Out-of-the-money options are those with an exercise price above the closing price of JCPenney common stock of $16.75 as of January 31, 2009.

The following table summarizes stock options outstanding as of January 31, 2009, as well as activity during the year then ended:

 

     Shares (in
thousands)
    Weighted-
Average

Exercise Price
Per Share
   Weighted-
Average
Remaining
Contractual
Term 
(in years)
   Aggregate
Intrinsic
Value 
($ in
millions) (1)

Outstanding at February 2, 2008

   8,233     $   50      

Granted

   4,548       31      

Exercised

   (156 )     28      

Forfeited/canceled

   (763 )     62      
              

Outstanding at January 31, 2009

   11,862       42    7.2    $   3
              

Exercisable at January 31, 2009

   6,187       44    5.5    $ -
              

(1) The intrinsic value of a stock option is the amount by which the market value of the underlying stock exceeds the exercise price of the option at year end.

 

F-22


Table of Contents

Cash proceeds, tax benefits and intrinsic value related to total stock options exercised are provided in the following table:

 

($ in millions)    2008      2007    2006

Proceeds from stock options exercised

   $   4      $   45    $   135

Intrinsic value of stock options exercised

     2        47      124

Tax benefit related to stock-based compensation

     2        18      48

Excess tax benefits realized on stock-based compensation

     1        17      39

As of January 31, 2009, we had $47 million of unrecognized and unearned compensation expense, net of estimated forfeitures, for stock options not yet vested, which will be recognized as expense over the remaining weighted-average vesting period of approximately one year.

Stock Option Valuation

Valuation Method. We estimate the fair value of stock option awards on the date of grant using a binomial lattice model. We believe that the binomial lattice model is a more accurate model for valuing employee stock options since it better reflects the impact of stock price changes on option exercise behavior.

Expected Term. Our expected option term represents the average period that we expect stock options to be outstanding and is determined based on our historical experience, giving consideration to contractual terms, vesting schedules, anticipated stock prices and expected future behavior of option holders.

Expected Volatility . Our expected volatility is based on a blend of the historical volatility of JCPenney stock combined with an estimate of the implied volatility derived from exchange traded options. Beginning in 2008, we increased the weighting of the historical volatility component of our expected volatility assumption due to historical volatility being more representative of our current business model. Our historical volatility no longer reflects the volatility associated with the Eckerd drugstore business, which was sold in mid-2004.

Risk-Free Interest Rate. Our risk-free interest rate is based on zero-coupon U.S. Treasury yields in effect at the date of grant with the same period as the expected option life.

Expected Dividend Yield. The dividend assumption is based on our current expectations about our dividend policy.

Our weighted-average fair value of stock options at grant date was $11.74 in 2008, $19.85 in 2007 and $16.17 in 2006 using the binomial lattice valuation model and the following assumptions:

 

    2008    2007    2006

Weighted-average expected option term

  4.6 years    4.5 years    5 years

Weighted-average expected volatility

  44.7%    25.0%    25.0%

Weighted-average risk-free interest rate

  2.7%    4.5%    4.7%

Weighted-average expected dividend yield

  2.0%    0.9%    1.2%

Expected dividend yield range

  1.2% – 5.6%    -    -

 

F-23


Table of Contents

Stock Awards

On March 12, 2008, we granted approximately 768,000 restricted stock unit awards to associates, representing the annual grant under the 2005 Plan. These awards consisted of approximately 384,000 time-based restricted stock units and approximately 384,000 performance-based restricted stock units. The time-based restricted stock units vest one-third on each of the first three anniversaries of the grant date provided that the associate remains continuously employed with our Company during that time. The performance unit grant is a target award with a payout matrix ranging from 0% to 200% based on 2008 earnings per share (defined as diluted per common share income from continuing operations, excluding any unusual and/or extraordinary items as determined by the Human Resources and Compensation Committee of the Board (Committee)). A payment of 100% of the target award would have been achieved at earnings per share of $4.00. In addition to the performance requirement, the award also included a time-based vesting requirement, which is the same as the requirement for the time-based restricted stock unit award. Upon vesting both the time-based restricted stock units and the performance-based restricted stock units will be paid out in shares of JCPenney common stock. The compensation cost of the performance units is recognized based upon estimated payout percentages. For 2008, based on EPS excluding unusual and/or extraordinary items identified by the Committee, no payout was earned for the performance-based restricted stock units and the performance-based units were canceled.

On December 15, 2008, we made a supplemental annual grant of performance units to the Chairman and Chief Executive Officer. The performance measurement for the award is our annual total stockholder return over a three-year performance period. Depending on our total stockholder return, he may receive 0 to 500,000 shares of the targeted 300,000 performance units granted based on a sliding scale where a minimum return of 11.3% will pay 200,000 shares and a return at 29.1% or greater will pay the maximum payout of 500,000 shares, limited to a $25 million maximum payout based on the market value of the stock at the vesting date. A return below 11.3% will result in no payment. For accounting purposes, this award is considered to have a market condition. The effect of a market condition is reflected in the grant date fair value of the award and, thus, compensation expense is recognized over the requisite service period without regard to the market condition. The fair value of the award was estimated on the date of grant by using a Monte Carlo analysis to estimate the total shareholder return of JCPenney stock over the performance period.

In addition to the annual and supplemental annual restricted stock unit awards, during 2008 we granted approximately 130,000 restricted and non-restricted stock units as ad-hoc awards to associates, as well as dividend equivalents on unvested restricted stock awards.

We also granted approximately 30,000 restricted stock units to non-employee members of the Board in 2008. Restricted stock awards (shares and units) for non-employee directors are expensed when granted since the recipients have the right to receive the shares upon a qualifying termination of service in accordance with the grant.

During 2008, in addition to the vesting of individual restricted stock awards, one-third, or approximately 238,000, of our March 2006 annual grant of performance-based restricted stock unit awards vested. The total earned was based on 200% of the target award as determined by the 2006 payout matrix and our achieving $4.88 of EPS from continuing operations for 2006.

 

F-24


Table of Contents

The following table summarizes our non-vested stock awards (shares and units) as of January 31, 2009 and activity during the year then ended:

 

(shares in thousands)    Stock Awards     Weighted-
Average Grant
Date Fair Value

Non-vested at February 2, 2008

   894     $   58

Granted

   1,228       34

Vested

   (467 )     55

Forfeited/canceled

   (436 )     41
        

Non-vested at January 31, 2009

   1,219       42
        

As of January 31, 2009, we had $24 million of unrecognized compensation expense related to unearned associate stock awards, which will be recognized over the remaining weighted-average vesting period of approximately 1.3 years. The aggregate market value of shares vested during 2008, 2007 and 2006 was $17 million, $28 million and $13 million, respectively, compared to an aggregate grant date fair value of $26 million, $21 million and $7 million, respectively.

14) Leases

We conduct the major part of our operations from leased premises that include retail stores, store distribution centers, warehouses, offices and other facilities. Almost all leases will expire during the next 20 years; however, most leases will be renewed or replaced by leases on other premises. We also lease data processing equipment and other personal property under operating leases of primarily three to five years. Rent expense, net of sublease income, was as follows:

Rent Expense

 

($ in millions)    2008    2007    2006

Real property base rent and straight-lined step rent expense

   $     217    $     210    $     205

Real property contingent rent expense (based on sales)

     22      26      27

Personal property rent expense

     63      61      63
                    

Total rent expense

   $ 302    $ 297    $ 295
                    

As of January 31, 2009, future minimum lease payments for non-cancelable operating leases, including lease renewals determined to be reasonably assured and net of future non-cancelable operating sublease payments, and capital leases were:

 

($ in millions)    Operating     Capital  

2009

   $ 254     $ -  

2010

     220       -  

2011

     187       -  

2012

     154       -  

2013

     134       -  

Thereafter

     1,914       1  
                

Total minimum lease payments

   $ 2,863     $ 1  
                

Present value

   $     1,257     $ 1  

Weighted-average interest rate

     7.8 %         8.3 %

 

F-25


Table of Contents

15) Retirement Benefit Plans

Our Company provides retirement pension benefits, postretirement health and welfare benefits, as well as 401(k) savings, profit-sharing and stock ownership plan benefits to substantially all employees (associates). Retirement benefits are an important part of our total compensation and benefits program designed to attract and retain qualified, talented associates. Pension benefits are provided through defined benefit pension plans consisting of a non-contributory qualified pension plan (primary plan) and non-contributory supplemental retirement plans for certain management associates, including a 1997 voluntary early retirement plan. Retirement and other benefits include:

Defined Benefit Pension Plans    Other Benefit Plans

Primary plan – funded

  

Postretirement benefits – medical and dental

Supplemental retirement plans – unfunded

  

Defined contribution plans:

  

401(k) savings plan and Employee stock ownership plan

  

Deferred compensation plan

Adoption of SFAS 158 — Measurement Date Provision

For 2008, the measurement date for the determination of pension income was February 3, 2008. The year end measurement date of January 31, 2009 was used to record the funded status of the plan and for the determination of pension expense in 2009. The annual measurement date for each subsequent year will be January 31 st .

As permitted under SFAS 158, we transitioned to a fiscal year end measurement date by re-measuring plan assets and benefit obligations as of the beginning of 2008 (the year of adopting the measurement date provision). As a result, we recorded an increase of $26 million, net of tax, to 2008 opening retained earnings for the transition adjustment to recognize three months of net periodic benefit income from October 31, 2007 to February 2, 2008. In addition, we recorded a decrease of $343 million, net of tax, to the 2008 opening balance of accumulated other comprehensive income, a component of net equity, to reflect the changes in fair value of plan assets and the benefit obligation from October 31, 2007 to February 2, 2008, which included an increase in the discount rate from 6.46% to 6.54%. The expected return on plan assets was unchanged at 8.9%.

Defined Benefit Pension Plans

Primary Plan — Funded

Our primary plan is a funded non-contributory qualified pension plan. The primary pension plan, initiated in 1966, was closed to new entrants on January 1, 2007. As of 2008, the primary plan had approximately 150,000 plan participants of which about half were active and about 90% were vested. The plan is funded by Company contributions to a trust fund, which is held for the sole benefit of participants and beneficiaries.

Supplemental Retirement Plans — Unfunded

We have unfunded supplemental retirement plans, which provide retirement benefits to certain management associates. We pay ongoing benefits from operating cash flow and cash investments. The plans are a Supplemental Retirement Program and a Benefit Restoration Plan. Participation in the Supplemental Retirement Program is limited to associates who were annual incentive-eligible management associates as of December 31, 1995. Benefits for these plans are based on length of service and final average compensation. The Benefit Restoration Plan is intended to make up benefits

 

F-26


Table of Contents

that could not be paid by the primary pension plan due to governmental limits on the amount of benefits and the level of pay considered in the calculation of benefits. The Supplemental Retirement Program is a non-qualified plan that was designed to allow eligible management associates to retire at age 60 with retirement income comparable to the age 65 benefit provided under the primary pension plan and Benefit Restoration Plan. In addition, the Supplemental Retirement Program offers participants who leave the Company between ages 60 and 62 benefits equal to the estimated social security benefits payable at age 62. The Supplemental Retirement Program also continues Company-paid term life insurance at a declining rate until it is phased out at age 70. Associate-paid term life insurance through age 65 is continued under a separate plan (Supplemental Term Life Insurance Plan for Management Profit-Sharing Associates).

Pension (Income)/Expense for Defined Benefit Pension Plans

Pension expense is based upon the annual service cost of benefits (the actuarial cost of benefits attributed to a period) and the interest cost on plan liabilities, less the expected return on plan assets for the primary pension plan. Differences in actual experience in relation to assumptions are not recognized immediately but are deferred and amortized over the average remaining service period of about 7 years for the primary plan, subject to a corridor as permitted under SFAS 87. The components of net periodic pension (income)/expense were as follows:

Pension Plan (Income)/Expense

 

    2008         2007         2006  
($ in millions)   Primary
Plan
    Supp.
Plans
  Total         Primary
Plan
    Supp.
Plans
  Total         Primary
Plan
    Supp.
Plans
  Total  

Service costs

  $ 87     $ 4   $ 91       $ 93     $ 4   $ 97       $ 94     $ 1   $ 95  

Interest costs

    237       20     257         218       23     241         212       22     234  

Projected return on assets

    (457 )     -       (457 )         (415 )     -       (415 )         (371 )     -       (371 )

Amortization of actuarial loss

    -       19     19         7       25     32         74       19     93  
                                                                     

Net periodic pension plan (income)/expense

  $   (133)     $   43   $ (90 )     $ (97 )   $   52   $ (45 )     $ 9     $   42   $ 51  
                                                                     

The defined benefit plan pension (income)/expense shown in the above table is included as a separate line item on the Consolidated Statements of Operations.

 

F-27


Table of Contents

Assumptions

The weighted-average actuarial assumptions used to determine (income)/expense for 2008, 2007 and 2006 were as follows:

 

     2008     2007     2006  

Expected return on plan assets

   8.9 %   8.9 %   8.9 %

Discount rate

   6.54 %   5.85 %   5.80 %

Salary increase

   4.7 %   4.7 %   4.0 %

The discount rate used to measure pension expense each year is the rate as of the beginning of the year (i.e., the prior measurement date), except for 2008, which reflected the rate change from the prior year discount rate pension obligation due to the measurement date provision of SFAS 158. The discount rate used was based on an externally published yield curve, which was determined by the plan’s actuary. The yield curve is a hypothetical AA yield curve represented by a series of bonds maturing from 6 months to 30 years, designed to match the corresponding pension benefit cash payments to retirees.

The expected return on plan assets is based on the plan’s long-term asset allocation policy, historical returns for plan assets and overall capital market returns, taking into account current and expected market conditions. As a result of the 2008 negative returns in the capital markets and lowered expected future returns, we reduced the expected rate of return assumption to 8.4% from 8.9% beginning in 2009, which equals the historical rate of return since inception in 1966.

The salary progression rate was based on age ranges and projected forward. The salary progression rate used for measuring the year end pension liability was revised to reflect a freeze on merit increases for 2009, a moderate increase in 2010 and resuming with the historical salary increase trend in 2011. The impact of this revision was a reduction of $61 million in the pension liability and $16 million in the 2009 pension expense.

 

F-28


Table of Contents

Funded Status

The following table provides a reconciliation of benefit obligations, plan assets and the funded status of the primary and supplemental pension plans. As of the end of 2008, the funded status of the primary plan was approximately 93%. The projected benefit obligation (PBO) is the present value of benefits earned to date by plan participants, including the effect of assumed future salary increases. For 2008 and 2007, assets used in calculating the funded status were measured at fair value at January 31, 2009 and October 31, 2007 (the plans’ measurement date). Under the Employee Retirement Income Security Act of 1974 (ERISA), the funded status of the plan exceeded 100% as of December 31, 2008, the qualified pension plan’s year end.

Obligations and Funded Status

 

     Primary Plan     Supplemental Plans  
($ in millions)    2008     2007     2008     2007  

Change in PBO

        

Beginning balance

   $ 3,728     $ 3,846     $ 369     $ 436  

Service costs

     87       93       4       4  

Interest costs

     237       218       20       23  

Measurement date change

     (3 )     -       (57 )     -  

Amendments

     1       -       2       -  

Actuarial (gain)

     (95 )     (212 )     (5 )     (19 )

Benefits (paid)

     (230 )     (217 )     (81 )     (75 )
                                

Balance at measurement date

   $ 3,725     $   3,728     $ 252     $ 369  
                                

Change in fair value of plan assets

        

Beginning balance

   $ 5,758     $ 4,781     $ -     $ -  

Measurement date change

     (518 )     -       -       -  

Company contributions

     -       300 (1)     81       75  

Actual (loss)/return on assets (2)

       (1,560 )     894       -       -  

Benefits (paid)

     (230 )     (217 )     (81 )     (75 )
                                

Balance at measurement date

   $ 3,450     $ 5,758     $ -     $ -  
                                

Funded status of plan

        

(Deficiency)/excess of fair value over projected benefits

   $ (275 )   $ 2,030     $ (252 )   $ (369 )

Fourth-quarter contributions

     -       -       -       60 (3)
                                

Total (accrued liability)/prepaid pension cost

   $ (275 ) (4 )   $ 2,030 (5)   $   (252 ) (4)   $   (309 ) (4)
                                

(1) Contribution was made in the fourth quarter of 2006, but reflected in the 2007 contributions in accordance with the October 31 measurement date.

(2) Includes plan administrative expenses.

(3) Represents the five-year installment payments elected by retired associates.

(4) For the primary plan, the total accrued liability of $275 million is included in other liabilities. Of the total accrued liability for the supplemental plans, $25 million and $74 million for 2008 and 2007, respectively, is included in accrued expenses and other current liabilities in the Consolidated Balance Sheets, and the remaining $227 million and $235 million, respectively, is included in other liabilities.

(5) The total prepaid pension asset is presented as a separate line item under non-current assets in the Consolidated Balance Sheets.

In the reconciliation of the fair value of plan assets, the actual loss on plan assets of $1,560 million in 2008 was due to the sharp capital market decline experienced in 2008. The actual one-year return on

pension plan assets at the January 31 and October 31 measurement date in 2008 and 2007 was (30.3)% and 19.1%, respectively.

 

F-29


Table of Contents

The following pre-tax amounts were recognized in accumulated other comprehensive income/(loss) as of January 31, 2009 and February 2, 2008:

 

     Primary Plan    Supplemental Plans
($ in millions)    2008     2007    2008     2007

Net loss/(gain)

   $     2,310 (1)   $     (174)    $     157 (1)   $     189

Prior service cost

     1            2       -
                             
   $ 2,311     $ (173)    $ 159     $ 189
                             

(1) Approximately $277 million for the primary plan and $20 million for the supplemental plans is expected to be amortized from accumulated other comprehensive income/(loss) into net periodic benefit (income)/expense in 2009.

Assumptions to Determine Obligations

The weighted-average actuarial assumptions used to determine benefit obligations at the January 31, 2009 and October 31, 2007 and 2006 measurement dates were as follows:

 

     2008     2007     2006  

Discount rate

   6.95 %   6.46 %   5.85 %

Salary progression rate ( 1)

   4.7 %   4.7 %   4.7 %

(1) The salary scale assumption at January 31, 2009 assumed 0% pay increases in 2009 and 2.4% increases in 2010 to reflect our short-term salary progression, but overall did not impact the long-term assumption for salary progression rate.

We use the Retirement Plans 2000 Table of Combined Healthy Lives (RP 2000 Table), projected to 2005, using Scale AA to forecast mortality improvements into the future to 2015 for annuitants and 2023 for non-annuitants.

Accumulated Benefit Obligation (ABO)

The ABO is the present value of benefits earned to date, assuming no future salary growth. The ABO for our primary pension plan was $3.4 billion as of both January 31, 2009 and October 31, 2007, respectively. At January 31, 2009, plan assets of $3.5 billion for the primary pension plan were slightly above the ABO, a significant decrease from the prior year due to declines in the capital markets during 2008. The ABO for our unfunded supplemental pension plans was $216 million as of January 31, 2009 and $322 million as of October 31, 2007.

Primary Plan Asset Allocation

The target allocation ranges for each asset category, as well as the fair value of each asset category as a percent of the total fair value of pension plan assets as of January 31, 2009 and October 31, 2007, are as follows:

 

          Plan Assets  
     Target
Allocation Ranges
   January 31,
2009
    October 31,
2007
 

Asset Category

       

Equity

   65% - 75%      64 %   70 %

Fixed income

   15% - 25%      22 %   19 %

Real estate

   5% - 15%    14 %   10 %

Cash and other

   0% - 5%      0 %   1 %
               

Total

      100 %   100 %
               

 

F-30


Table of Contents

Asset Allocation Strategy

The pension plan’s investment strategy is designed to provide a rate of return that, over the long term, increases the ratio of plan assets to liabilities by maximizing investment return on assets, at an appropriate level of volatility risk. The plan’s asset portfolio is actively managed and invested primarily in equity securities, which have historically provided higher returns than debt portfolios, balanced with fixed income (i.e., debt securities) and other asset classes to maintain an efficient risk/return diversification profile. This strategy allows the pension plan to serve as a funding vehicle to secure benefits for Company associates, while at the same time being cost effective to our Company. The risk of loss in the plan’s equity portfolio is mitigated by investing in a broad range of equity types. Equity diversification includes large-capitalization and small-capitalization companies, growth-oriented and value-oriented investments and U.S. and non-U.S. securities. Investment types, including high-yield versus investment-grade debt securities, illiquid assets such as real estate, the use of derivatives and Company securities are set forth in written guidelines established for each investment manager and monitored by our plan’s management team. Although the ERISA rules allow plans to invest in their company’s stock, up to 10% of a plan’s assets, we have not historically had an asset class in our stock. The plan’s asset allocation policy is designed to meet the plan’s future pension benefit obligations. The policy is periodically reviewed and rebalanced as necessary, to ensure that the mix continues to be appropriate relative to established targets and ranges.

We have an internal Benefit Plans Investment Committee (BPIC), which consists of senior executives who have established and oversee risk management practices associated with the management of the plan’s assets. Key risk management practices include having an established and broad decision-making framework in place, focused on long-term plan objectives. This framework consists of the BPIC and various third parties, including investment managers, an investment consultant, an actuary and a trustee/custodian. The funded status of the plan is monitored with updated market and liability information at least annually. Actual asset allocations are monitored monthly and rebalancing actions are executed at least quarterly, if needed. To manage the risk associated with an actively managed portfolio, our plan’s management team reviews each manager’s portfolio on a quarterly basis and has written manager guidelines in place, which are adjusted as necessary to ensure appropriate diversification levels. Also, annual audits of the investment managers are conducted by independent auditors. Finally, to minimize operational risk, we utilize a master custodian for all plan assets, and each investment manager reconciles its account with the custodian at least quarterly.

Cash Contributions

Based on management’s goal of maintaining a strong corporate liquidity position during the Bridge Plan period, we elected to forego making a voluntary pension plan cash contribution in 2008 and 2007. Due to our past aggressive funding of the pension plan and overall positive growth in plan assets over 40 years, there will not be any required cash contribution for funding of plan assets in either 2009 or 2010 under ERISA, as amended by the Pension Protection Act of 2006. However, we may make discretionary voluntary contributions taking into account liquidity and capital resource availability and capital market conditions.

Company payments to the unfunded non-qualified supplemental retirement plans are equal to the amount of benefit payments made to retirees throughout the year and for 2009 are anticipated to be approximately $25 million. The expected contributions for 2009 have decreased from the prior year. Certain five-year installments have been paid out (elected previously) as we have completed the 5-year installment payments that resulted from the 2003 amendment of the plans that allowed participants a one-time irrevocable election to receive remaining unpaid benefits in five equal annual installments.

 

F-31


Table of Contents

Effective at the end of 2007, benefits are paid in the form of five equal annual installments to participants commencing payments after 2007; and no election as to the form of benefit is provided for in the unfunded plans.

Estimated Future Benefit Payments

 

($ in millions)    Primary
Plan Benefits (1) (2)
   Supplemental
Plan Benefits (1)

2009

   $   236    $   25

2010

     244      27

2011

     251      24

2012

     262      26

2013

     272      26

2014-2018

     1,530      129

(1) Does not include plan administrative expenses.

(2) Primary pension plan benefits are paid from the JCPenney Pension Plan Trust.

Other Benefit Plans

Postretirement Benefits — Medical and Dental

Our Company provides medical and dental benefits to retirees through a contributory medical and dental plan based on age and years of service. Our Company provides a defined dollar commitment toward retiree medical premiums.

Effective June 7, 2005, we amended the medical plan to reduce our Company provided subsidy to post-age 65 retirees and spouses by 45% beginning January 1, 2006, and then fully eliminated the subsidy after December 31, 2006. As disclosed previously, the postretirement benefit plan was amended in 2001 to reduce and cap the per capita dollar amount of the benefit costs that would be paid by our Company. Thus, changes in the assumed or actual health care cost trend rates do not materially affect the accumulated postretirement benefit obligation or our annual expense.

Postretirement Plan (Income)

 

($ in millions)    2008     2007     2006  

Service costs

   $ 1     $ 1     $ 1  

Interest costs

     1       1       3  

Amortization of prior service (credit)

     (27 )     (31 )     (29 )
                        

Net periodic postretirement benefit (income)

   $   (25 )   $   (29 )   $   (25 )
                        

The net periodic postretirement benefit is included in SG&A expenses in the Consolidated Statements of Operations.

The discount rates used for the postretirement plan are the same as those used for the defined benefit plans, as disclosed on page F-28, for all periods presented.

 

F-32


Table of Contents

Funded Status

The table below provides a reconciliation of benefit obligations, plan assets and the funded status of the postretirement plan. The accumulated postretirement benefit obligation (APBO) is the present value of benefits earned to date by plan participants. The funded status for 2008 and 2007 was measured at January 31, 2009 and October 31, 2007, respectively (the plan’s measurement date).

Obligations and Funded Status

 

($ in millions)    2008     2007  

Change in APBO

    

Beginning balance

   $ 19     $ 22  

Service cost

     1       1  

Interest cost

     1       1  

Participant contributions

     12       12  

Actuarial loss/(gain)

     1       (1 )

Benefits (paid)

     (16 )     (16 )
                

Balance at measurement date

   $ 18     $ 19  
                

Change in fair value of plan assets

    

Beginning balance

   $ -     $ -  

Participant contributions

     12       12  

Company contributions

     4       4  

Benefits (paid)

     (16 )     (16 )
                

Balance at measurement date

   $ -     $ -  
                

Funded status of plan

    

(Deficiency) of fair value over projected benefits

   $ (18 )   $ (19 )

Fourth quarter contributions

     -       2  
                

Total (accrued liability)

   $   (18 ) (1)   $   (17 ) (1)
                

(1) Of the total accrued liability, $4 million for both 2008 and 2007 is included in accrued expenses and other current liabilities in the Consolidated Balance Sheets, and the remaining $14 million and $13 million, respectively, is included in other liabilities.

The following pre-tax amounts were recognized in accumulated other comprehensive income/(loss) as of January 31, 2009 and February 2, 2008:

 

     Postretirement Plans  
($ in millions)    2008     2007  

Net (gain)

   $ (14 ) (1)   $ (19 )

Prior service (credit)

     (117 ) (1)     (150 )
                
   $   (131 )   $   (169 )
                

(1) In 2009, approximately $(1) million and $(25) million, respectively, of the net (gain) and prior service (credit) for the postretirement plan are expected to be amortized from accumulated other comprehensive loss into net periodic postretirement benefit (income).

 

F-33


Table of Contents

Cash Contributions

The postretirement benefit plan is not funded and is not subject to any minimum regulatory funding requirements. We estimate the 2009 postretirement plan payments will approximate $4 million, representing our defined dollar contributions toward medical coverage.

Estimated Future Benefit Payments

 

($ in millions)    Other
Postretirement
Benefits (1)

2009

   $   4

2010

     3

2011

     3

2012

     3

2013

     2

2014-2018

     8

(1) Does not include plan administrative expenses.

Defined Contribution Plans

Our Company’s Savings, Profit-Sharing and Stock Ownership Plan (Savings Plan) is a qualified defined contribution plan, a 401(k) plan, available to all eligible associates of the Company and certain subsidiaries. Effective January 1, 2007, all associates who are age 21 or older are immediately eligible to participate in the plan. Previously, associates who had completed at least 1,000 hours of service within an eligibility period (generally 12 consecutive months) and had attained age 21 were eligible to participate in the plan. Beginning in plan year 2007, eligible associates, who have completed one year and at least 1,000 hours of service, are offered a fixed Company matching contribution of 50 cents on each dollar contributed up to 6% of pay. We may make additional discretionary matching contributions. This fixed plus discretionary match replaced the former Company contribution of an amount equal to 4.5% of available profits plus discretionary contributions, which was effective through plan year 2006. Effective with the 2007 plan year, Company matching contributions fully vest after three years. For Company matching contributions made through plan year 2006, the vesting period occurs over a five-year period at 20% per year of service. Total Company contributions for 2008, 2007 and 2006 were $52 million, $51 million and $82 million, respectively. Company contributions in 2006 were invested in Company stock, with associates having the option of reinvesting matching contributions made in our Company stock into a variety of investment options. After 2006, the Company matching contributions are credited to associates’ accounts in accordance with their investment elections.

The 401(k) plan includes a non-contributory retirement account that is part of the defined contribution 401(k) plan. Participants receive a Company contribution in an amount equal to 2% of the participants’ annual pay after one year of service, which is in lieu of the primary pension benefit that was closed to associates hired or rehired on or after January 1, 2007. Participating associates are fully vested after three years.

In addition to the 401(k) plan, we also have a deferred compensation plan – Mirror Savings Plan – which is a non-qualified contributory unfunded defined contribution plan offered to certain management associates. Similar to the supplemental retirement plans, the Mirror Plan benefits are paid by our Company from operating cash flow and cash investments.

 

F-34


Table of Contents

Total expense for defined contribution plans, including the Mirror Plan, for 2008, 2007 and 2006 was $62 million, $58 million and $97 million, respectively and is predominantly included in SG&A on the Consolidated Statements of Operations.

16) Real Estate and Other (Income), Net

 

($ in millions)    2008     2007     2006  

Real estate activities

   $ (39 )   $ (39 )   $ (37 )

Net gains from sale of real estate

     (10 )     (10 )     (8 )

Other

          24              3            11  
                        

Total

   $ (25 )   $ (46 )   $ (34 )
                        

Real estate and other consists mainly of ongoing operating income from our real estate subsidiaries whose primary investments are in REITs, as well as investments in 14 joint ventures that own regional mall properties, six as general partner and eight as limited partner. Real estate and other also includes net gains from the sale of facilities and equipment that are no longer used in Company operations, asset impairments and other non-operating corporate charges and credits.

In 2008, other reflected impairment charges of $21 million primarily related to a department store, a real estate joint venture and other corporate assets. Other included charges of $7 million associated with a senior management transition in 2006.

 

F-35


Table of Contents

17) Income Taxes

We measure deferred tax assets and liabilities reflected in our accompanying Consolidated Balance Sheets using enacted tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be recovered or settled. Our deferred tax assets and liabilities as of January 31, 2009 and February 2, 2008 were as follows:

 

     2008 ( 1) (2 )     2007 ( 1) (2 )  
($ in millions)    Deferred
Tax Assets
    Deferred
Tax
(Liabilities)
    Deferred
Tax Assets
    Deferred
Tax
(Liabilities)
 

Current

        

Accrued vacation pay

   $   48     $   -     $   50     $ -  

Discontinued operations – Eckerd

     4       -       4       -  

Inventories

     48       -       57       -  

Capitalized advertising cost

     -       (19 )     -       -  

Other ( 3 )

     116       (49 )     77       (44 )
                                

Total current

     216       (68 )     188       (44 )
                                

Net current assets

     148 ( 4 )       144 ( 4 )  
                    

Non-current

        

Depreciation and amortization

     -       (909 )     -       (816 )

Pension and other retiree obligations

     224       -       134       (829 )

Equity-based compensation

     51       -       43       -  

Leveraged leases

     -       (214 )     -       (231 )

State taxes and net operating losses

     37       -       87       -  

Unrealized gain/loss

     -       (8 )     -       (64 )

Workers’ compensation/general liability

     95       -       94       -  

Discontinued operations – Eckerd

     11       -       12       -  

Closed unit reserves

     11       -       3       -  

Other ( 5 )

     104       (1 )     105       (1 )
                                

Total non-current

   $   533     $   (1,132 )   $   478     $ (1,941 )
                                

Net non-current (liabilities)

     $ (599 )     $ (1,463 )
                    

Total net deferred tax (liabilities)

     $ (451 )     $   (1,319 )
                    

(1) Under FIN 48, $122 million and $90 million of deferred tax liability for 2008 and 2007, respectively, were reclassified to other liabilities in our Consolidated Balance Sheets.

(2) Under SFAS 109, the federal benefit of state taxes related to FIN 48 was reclassified from current taxes to long-term deferred taxes. The amount in 2008 was $24 million ($22 million related to continuing operations and $2 million related to discontinued operations). For 2007, the amount was also $24 million ($20 million related to continuing operations and $4 million related to discontinued operations).

(3) Other current deferred tax assets include tax items related to gift cards and accruals for sales returns and allowances. Other current deferred tax liabilities include tax items related to property taxes and prepaid expenses.

(4) Net current deferred tax assets of $148 million and $144 million are included in income tax receivables in our Consolidated Balance Sheets for 2008 and 2007, respectively.

(5) Other non-current deferred tax assets include tax items related to mirror savings plan expense, accrued rent and environmental cleanup costs.

Deferred tax assets are evaluated for recoverability based on estimated future taxable income. We ended 2008 with total net deferred tax liabilities of $451 million compared to $1,319 million at year-end 2007. The change was principally the result of deferred taxes related to our primary pension plan

 

F-36


Table of Contents

and was mainly driven by the significant decline in pension assets, which resulted in a pre-tax charge of $2.5 billion for the year to other comprehensive income/(loss). The related tax impact of $970 million is reflected in total net deferred tax liabilities.

Tax reserves are evaluated and adjusted as appropriate, while taking into account the progress of audits of various taxing jurisdictions. At the beginning of 2007, we adopted the provisions of FIN 48. Our adoption of this standard was consistent with FSP FIN 48-1, “Definition of Settlement in FASB Interpretation No. 48” (FSP 48-1), that was issued in May 2008 and that provides guidance on how to determine whether a tax position is effectively settled for the purpose of recording unrecognized tax benefits. As a result of the implementation of FIN 48, we recorded a $5 million decrease in the liability for unrecognized tax benefits with a corresponding increase to retained earnings.

A reconciliation of the 2008 and 2007 beginning and ending amounts of unrecognized tax benefits is as follows:

 

($ in millions)    2008     2007  

Balance at beginning of year

   $ 160     $ 181  

Additions based on tax positions related to the current year

     32       22  

Additions based on tax positions related to prior years

     11       -  

Reductions based on tax positions related to prior years

     (5 )     -  

Settlements and effective settlements with tax authorities

     (6 )     (43 )
                

Balance at end of year (1)

   $     192     $     160  
                

(1) Includes $7 million and $12 million of unrecognized tax benefits related to discontinued operations for 2008 and 2007, respectively.

Our total amount of unrecognized tax benefits as of January 31, 2009 was $192 million. Included in the balance are $122 million of tax positions for which the ultimate deductibility is highly certain but for which there is uncertainty about the timing of such deductibility. Because of the impact of deferred tax accounting, other than interest and penalties, the disallowance of the shorter deductibility period would not affect the annual effective tax rate but would accelerate the payment of cash to the taxing authority to an earlier period. The remaining $70 million of unrecognized tax benefits, if recognized, would favorably impact the effective tax rate, and would be reduced upon settlement by $24 million related to the federal tax deduction of state taxes.

Over the next twelve months, we anticipate that it is reasonably possible that the amount of unrecognized tax benefits could be reduced by approximately $88 million (none of which would impact the effective tax rate) either because our tax position will be sustained upon audit or we will agree to a disallowance.

We recognize accrued interest and penalties related to unrecognized tax benefits in income tax expense. As of January 31, 2009, we had $1 million of accrued interest and no penalties accrued related to unrecognized tax benefits. During 2007 and 2006, we recognized approximately $(25) million and $(5) million, respectively, in interest.

 

F-37


Table of Contents

The components of our income tax expense for continuing operations were as follows:

Income Tax Expense for Continuing Operations

 

($ in millions)    2008    2007    2006

Current

        

Federal and foreign

   $     153    $     510    $     485

State and local

     25      89      86
                    
     178      599      571
                    

Deferred

        

Federal and foreign

     140      15      72

State and local

     25      4      15
                    
     165      19      87
                    

Total

   $ 343    $ 618    $ 658
                    

Income taxes receivable on our Consolidated Balance Sheets totaled $352 million as of January 31, 2009 and $313 million as of February 2, 2008, and consisted of $204 million and $169 million of current income taxes receivable, respectively and $148 million and $144 million of deferred tax assets, respectively.

A reconciliation of the statutory federal income tax rate to our effective rate for continuing operations is as follows:

Reconciliation of Tax Rates for Continuing Operations

 

(percent of pre-tax income)    2008     2007     2006  

Federal income tax at statutory rate

   35.0 %   35.0 %   35.0 %

State and local income tax, less federal income tax benefit

   3.6     3.5     3.7  

Tax effect of dividends on ESOP shares

   (0.5 )   (0.3 )   (0.3 )

Other permanent differences and credits

   (0.4 )   (2.3 )   (1.7 )
                  

Effective tax rate for continuing operations

   37.7 %   35.9 %   36.7 %
                  

The income tax rates for 2007 and 2006 were lower than they otherwise would have been due to the release of income tax reserves resulting from the favorable resolution of prior year tax matters.

18) Litigation, Other Contingencies and Guarantees

We are subject to various legal and governmental proceedings involving routine litigation incidental to our business. Reserves have been established based on our best estimates of our potential liability in certain of these matters. These estimates have been developed in consultation with in-house and outside counsel. While no assurance can be given as to the ultimate outcome of these matters, we currently believe that the final resolution of these actions, individually or in the aggregate, will not have a material adverse effect on our results of operations, financial position, liquidity or capital resources.

As of January 31, 2009, we estimated our total potential environmental liabilities to range from $34 million to $46 million and recorded our best estimate of $39 million in other liabilities in the Consolidated Balance Sheet as of that date. This estimate covered potential liabilities primarily related

 

F-38


Table of Contents

to underground storage tanks, remediation of environmental conditions involving our former Eckerd drugstore locations and asbestos removal in connection with approved plans to renovate or dispose of our facilities. We continue to assess required remediation and the adequacy of environmental reserves as new information becomes available and known conditions are further delineated. If we were to incur losses at the upper end of the estimated range, we do not believe that such losses would have a material effect on our financial condition, results of operations or liquidity.

As part of the 2001 asset sale of J. C. Penney Direct Marketing Services, Inc., JCP signed a guarantee agreement with a maximum exposure of $20 million. Any potential claims or losses are first recovered from established reserves, then from the purchaser and finally from any state insurance guarantee fund before JCP’s guarantee would be invoked. As a result, we do not believe that any potential exposure would have a material effect on our consolidated financial statements.

19) Discontinued Operations

Our consolidated financial statements reflect activity related to operations we discontinued prior to 2006, and consisted primarily of adjustments reflecting management’s ongoing review and true-up of reserves for discontinued operations, including tax reserves.

Discontinued Operations

 

($ in millions, except per share data)    2008     2007    2006  

Income from discontinued operations

   $ 2     $ 10    $ 2  

Income tax (benefit)/expense related to discontinued operations

     (3 )     4      (17 )
                       

Total income from discontinued operations, net of income taxes

   $ 5     $ 6    $ 19  
                       

Diluted EPS for discontinued operations

   $     0.03     $     0.03    $     0.08  

We do not expect previously discontinued operations to have a future material impact on our results of operations, financial condition or liquidity.

 

F-39


Table of Contents

20) Quarterly Results of Operations (Unaudited)

The following is a summary of our quarterly unaudited consolidated results of operations for 2008 and 2007:

 

    First Quarter   Second Quarter     Third Quarter     Fourth Quarter  
($ in millions, except per share
data)
  2008   2007   2008   2007     2008   2007     2008    2007  

Total net sales

  $   4,127   $   4,350   $   4,282   $   4,391     $   4,318   $   4,729     $   5,759    $   6,390  

Gross margin

    1,650     1,807     1,606     1,674       1,664     1,879       1,995      2,311  

SG&A expenses

    1,317     1,302     1,270     1,254       1,320     1,361       1,488      1,485  

Income from continuing operations

    120     238     116     175 ( 1 )     123     261 ( 1 )     208      431 ( 1 )

Discontinued operations

    -     -     1     7       1     -       3      (1 )
                                                      

Net income

  $ 120   $ 238   $ 117   $ 182     $ 124   $ 261     $ 211    $ 430  
                                                      

Diluted earnings per share ( 2 ) :

                

    Continuing operations

  $ 0.54   $ 1.04   $ 0.52   $ 0.78     $ 0.55   $ 1.17     $ 0.94    $ 1.93  

    Discontinued operations

    -     -     -     0.03       0.01     -       0.01      -  
                                                      

Net income

  $ 0.54   $ 1.04   $ 0.52   $ 0.81     $ 0.56   $ 1.17     $ 0.95    $ 1.93  
                                                      

(1) Includes credits of $3 million, or $0.01 per share, for the second quarter of 2007, $32 million, or $0.14 per share, for the third quarter of 2007, and $3 million, or $0.02 per share, for the fourth quarter of 2007 of tax benefits, which were due to the release of income tax reserves resulting from the favorable resolution of prior year tax matters.

(2) Per share amounts are computed independently for each of the quarters presented. The sum of the quarters may not equal the total year amount due to the impact of changes in average quarterly shares outstanding.

 

F-40


Table of Contents

EXHIBIT INDEX

 

          Incorporated by Reference     

Exhibit No.

  

Exhibit Description

   Form    SEC File
No.
   Exhibit    Filing
Date
   Filed
Herewith

2.1

   Agreement and Plan of Merger dated as of January 23, 2002, between JCP and Company    8-K    001-15274    2    01/28/2002   

3.1

   Restated Certificate of Incorporation of the Company, as amended to May 19, 2006    10-Q    001-15274    3.1    06/07/2006   

3.2

   Bylaws of Company, as amended to February 25, 2009    8-K    001-15274    3.1    03/03/2009   

4.1

   Indenture, dated as of October 1, 1982, between JCP and U.S. Bank National Association, Trustee (formerly First Trust of California, National Association, as Successor Trustee to Bank of America National Trust and Savings Association)    10-K    001-00777    4(a)    04/19/1994   

4.2

   First Supplemental Indenture, dated as of March 15, 1983, between JCP and U.S. Bank National Association, Trustee (formerly First Trust of California, National Association, as Successor Trustee to Bank of America National Trust and Savings Association)    10-K    001-00777    4(b)    04/19/1994   

4.3

   Second Supplemental Indenture, dated as of May 1, 1984, between JCP and U.S. Bank National Association, Trustee (formerly First Trust of California, National Association, as Successor Trustee to Bank of America National Trust and Savings Association)    10-K    001-00777    4(c)    04/19/1994   

4.4

   Third Supplemental Indenture, dated as of March 7, 1986, between JCP and U.S. Bank National Association, Trustee (formerly First Trust of California, National Association, as Successor Trustee to Bank of America National Trust and Savings Association)    S-3    033-03882    4(d)    03/11/1986   

 

E-1


Table of Contents
          Incorporated by Reference     

Exhibit No.

  

Exhibit Description

   Form    SEC File
No.
   Exhibit    Filing
Date
   Filed
Herewith

4.5

   Fourth Supplemental Indenture, dated as of June 7, 1991, between JCP and U.S. Bank National Association, Trustee (formerly First Trust of California, National Association, as Successor Trustee to Bank of America National Trust and Savings Association)    S-3    033-41186    4(e)    06/13/1991   

4.6

   Fifth Supplemental Indenture, dated as of January 27, 2002, among the Company, JCP and U.S. Bank National Association, Trustee (formerly First Trust of California, National Association, as Successor Trustee to Bank of America National Trust and Savings Association) to Indenture dated as of October 1, 1982    10-K    001-15274    4(o)    04/25/2002   

4.7

   Indenture, dated as of April 1, 1994, between JCP and U.S. Bank National Association, Trustee (formerly First Trust of California, National Association, as Successor Trustee to Bank of America National Trust and Savings Association)    S-3    033-53275    4(a)    04/26/1994   

4.8

   First Supplemental Indenture dated as of January 27, 2002, among the Company, JCP and U.S. Bank National Association, Trustee (formerly Bank of America National Trust and Savings Association) to Indenture dated as of April 1, 1994    10-K    001-15274    4(p)    04/25/2002   

4.9

   Second Supplemental Indenture dated as of July 26, 2002, among the Company, JCP and U.S. Bank National Association, Trustee (formerly Bank of America National Trust and Savings Institution) to Indenture dated as of April 1, 1994    10-Q    001-15274    4    09/06/2002   

 

E-2


Table of Contents
          Incorporated by Reference     

Exhibit No.

  

Exhibit Description

   Form    SEC File
No.
   Exhibit    Filing
Date
   Filed
Herewith

4.10*

   Credit Agreement dated as of April 7, 2005, among the Company, JCP, J.C. Penney Purchasing Corporation, the Lenders party thereto, JPMorgan Chase Bank, N.A., as Administrative Agent, and Wachovia Bank, National Association, as Letter of Credit Agent    10-K    001-15274    4(o)    04/08/2005   

10.1

   Asset Purchase Agreement dated as of April 4, 2004, among J. C. Penney Company, Inc., Eckerd Corporation, Thrift Drug, Inc., Genovese Drug Stores, Inc., Eckerd Fleet, Inc., CVS Pharmacy, Inc. and CVS Corporation    10-K    001-15274    10(i)(e)    04/08/2004   

10.2

   Stock Purchase Agreement dated as of April 4, 2004, among J. C. Penney Company, Inc., TDI Consolidated Corporation, and The Jean Coutu Group (PJC) Inc.    10-K    001-15274    10(i)(f)    04/08/2004   

10.3

   Amendment and Waiver No. 1 to Asset Purchase Agreement dated as of July 30, 2004, among CVS Pharmacy, Inc., CVS Corporation, J. C. Penney Company, Inc., Eckerd Corporation, Thrift Drug, Inc., Genovese Drug Stores, Inc., and Eckerd Fleet, Inc.    10-Q    001-15274    10.1    09/08/2004   

10.4

   First Amendment to Stock Purchase Agreement dated as of July 30, 2004, among The Jean Coutu Group (PJC) Inc., J. C. Penney Company, Inc., and TDI Consolidated Corporation    10-Q    001-15274    10.2    09/08/2004   

10.5

   CN Rescission Agreement dated as of August 25, 2004, among CVS Corporation, CVS Pharmacy, Inc., certain CVS affiliates, and J.C. Penney Company, Inc.    10-Q    001-15274    10.3    09/08/2004   

10.6**

   J. C. Penney Company, Inc. Directors’ Equity Program Tandem Restricted Stock Award/Stock Option Plan    10-K    001-00777    10(k)    04/24/1989   

10.7**

   J. C. Penney Company, Inc. 1989 Equity Compensation Plan    Def.
Proxy
Stmt.
   001-00777    A    04/18/1989   

* Other instruments evidencing long-term debt have not been filed as exhibits hereto because none of the debt authorized under any such instrument exceeds 10 percent of the total assets of the Registrant and its consolidated subsidiaries. The Registrant agrees to furnish a copy of any of its long-term debt instruments to the Securities and Exchange Commission upon request.

 

** Indicates a management contract or compensatory plan or arrangement.

 

E-3


Table of Contents
          Incorporated by Reference     

Exhibit No.

  

Exhibit Description

   Form    SEC File
No.
   Exhibit    Filing
Date
   Filed
Herewith

10.8**

   February 1995 Amendment to J. C. Penney Company, Inc. 1989 Equity Compensation Plan    10-K    001-00777    10(ii)(k)    04/18/1995   

10.9**

   February 1996 Amendment to J. C. Penney Company, Inc. 1989 Equity Compensation Plan, as amended    10-K    001-00777    10(ii)(k)    04/16/1996   

10.10**

   J. C. Penney Company, Inc. 1993 Non-Associate Directors’ Equity Plan    Def.
Proxy
Stmt.
   001-00777    B    04/20/1993   

10.11**

   February 1995 Amendment to J. C. Penney Company, Inc. 1993 Non-Associate Directors’ Equity Plan    10-K    001-00777    10(ii)(m)    04/18/1995   

10.12**

   Directors’ Charitable Award Program    10-K    001-00777    10(r)    04/25/1990   

10.13**

   J. C. Penney Company, Inc. 1997 Equity Compensation Plan    Def.
Proxy
Stmt.
   001-00777    A    04/11/1997   

10.14**

   J. C. Penney Company, Inc. 2001 Equity Compensation Plan    Def.
Proxy
Stmt.
   001-00777    B    04/11/2001   

10.15**

   JCP Supplemental Term Life Insurance Plan for Management Profit-Sharing Associates, as amended and restated effective July 1, 2007    10-Q    001-15274    10.1    09/12/2007   

10.16**

   Term Sheet dated as of October 27, 2004, between the Company and M. E. Ullman, III    10-Q    001-15274    10.1    12/07/2004   

10.17**

   Letter Agreement dated as of March 18, 2005, between the Company and M. E. Ullman, III    8-K    001-15274    10.1    03/22/2005   

10.18**

   Notice of Restricted Stock Award to M. E. Ullman, III, dated as of December 1, 2004    10-Q    001-15274    10.2    12/07/2004   

10.19**

   Notice of Restricted Stock Unit Award to M. E. Ullman, III, dated as of December 1, 2004    10-Q    001-15274    10.3    12/07/2004   

10.20**

   Form of Notice of Restricted Stock Unit Award under the J. C. Penney Company, Inc. 2001 Equity Compensation Plan    8-K    001-15274    10.1    02/15/2005   

10.21**

   Form of Notice of Restricted Stock Award under the J. C. Penney Company, Inc. 2001 Equity Compensation Plan    8-K    001-15274    10.2    02/15/2005   

 

** Indicates a management contract or compensatory plan or arrangement.

 

E-4


Table of Contents
          Incorporated by Reference     

Exhibit No.

  

Exhibit Description

   Form    SEC File
No.
   Exhibit    Filing
Date
   Filed
Herewith

10.22**

   Form of Notice of Grant of Stock Option(s) under the J. C. Penney Company, Inc. 2001 Equity Compensation Plan    8-K    001-15274    10.3    02/15/2005   

10.23**

   Form of Director’s election to receive all/portion of annual cash retainer in J. C. Penney Company, Inc. common stock (J. C. Penney Company, Inc. 2001 Equity Compensation Plan)    8-K    001-15274    10.4    02/15/2005   

10.24**

   Form of Notice of Restricted Stock Award – Non-Associate Director Annual Grant under the J. C. Penney Company, Inc. 2001 Equity Compensation Plan    8-K    001-15274    10.5    02/15/2005   

10.25**

   Form of Notice of Election to Defer under the J. C. Penney Company, Inc. Deferred Compensation Plan for Directors    8-K    001-15274    10.6    02/15/2005   

10.26**

   Form of Notice of Change in the Amount of Fees Deferred under the J. C. Penney Company, Inc. Deferred Compensation Plan for Directors    8-K    001-15274    10.7    02/15/2005   

10.27**

   Form of Notice of Change of Factor for Deferral Account under the J. C. Penney Company, Inc. Deferred Compensation Plan for Directors    8-K    001-15274    10.8    02/15/2005   

10.28**

   Form of Notice of Termination of Election to Defer under the J. C. Penney Company, Inc. Deferred Compensation Plan for Directors    8-K    001-15274    10.9    02/15/2005   

10.30**

   Form of Notice of Non-Associate Director Restricted Stock Unit Award under the J. C. Penney Company, Inc. 2001 Equity Compensation Plan    8-K    001-15274    10.1    05/24/2005   

10.31**

   Form of Notice of Grant of Stock Option(s), Special Stock Option Grant under the J. C. Penney Company, Inc. 2005 Equity Compensation Plan    8-K    001-15274    10.1    05/31/2005   

10.32**

   Form of Notice of Restricted Stock Unit Award under the J. C. Penney Company, Inc. 2005 Equity Compensation Plan    8-K    001-15274    10.2    05/31/2005   

 

** Indicates a management contract or compensatory plan or arrangement.

 

E-5


Table of Contents
          Incorporated by Reference     

Exhibit No.

  

Exhibit Description

   Form    SEC File
No.
   Exhibit    Filing
Date
   Filed
Herewith

10.33**

   Form of Notice of Non-Associate Director Restricted Stock Unit Award under the J. C. Penney Company, Inc. 2005 Equity Compensation Plan    8-K    001-15274    10.1    11/18/2005   

10.34**

   JCP Form of Executive Termination Pay Agreement, as amended and restated effective September 21, 2007    8-K    001-15274    10.1    09/26/2007   

10.35**

   Form of Notice of Grant of Stock Options under the J. C. Penney Company, Inc. 2005 Equity Compensation Plan    8-K    001-15274    10.4    03/27/2006   

10.36**

   Form of Notice of Performance Unit Grant under the J. C. Penney Company, Inc. 2005 Equity Compensation Plan    8-K    001-15274    10.5    03/27/2006   

10.37**

   Form of Election to Receive Stock in Lieu of Cash Retainer(s) (J. C. Penney Company, Inc. 2005 Equity Compensation Plan)    8-K    001-15274    10.1    05/19/2006   

10.38**

   Form of Notice of Election to Defer under the J. C. Penney Company, Inc. Deferred Compensation Plan for Directors    8-K    001-15274    10.2    05/19/2006   

10.39**

   Form of Notice of Change in the Amount of Fees Deferred under the J. C. Penney Company, Inc. Deferred Compensation Plan for Directors    8-K    001-15274    10.3    05/19/2006   

10.40**

   Form of Notice of Termination of Election to Defer under the J. C. Penney Company, Inc. Deferred Compensation Plan for Directors    8-K    001-15274    10.4    05/19/2006   

10.41**

   Summary of Non-Employee Director Compensation    10-Q    001-15274    10.1    09/10/2008   

10.42**

   Form of Notice of Grant of Stock Options for Executive Officers subject to Executive Termination Pay Agreements under the J. C. Penney Company, Inc. 2005 Equity Compensation Plan    8-K    001-15274    10.1    08/07/2006   

10.43**

   JCP Management Incentive Compensation Program, effective December 31, 2007    8-K    001-15274    10.6    12/14/2007   

10.44**

   Form of Notice of Grant of Stock Options under the J. C. Penney Company, Inc. 2005 Equity Compensation Plan    8-K    001-15274    10.1    03/15/2007   

 

** Indicates a management contract or compensatory plan or arrangement.

 

E-6


Table of Contents
          Incorporated by Reference     

Exhibit No.

  

Exhibit Description

   Form    SEC File
No.
   Exhibit    Filing
Date
   Filed
Herewith

10.45**

   Form of Notice of Special Restricted Stock Unit Award under the J. C. Penney Company, Inc. 2005 Equity Compensation Plan    8-K    001-15274    10.2    03/15/2007   

10.46**

   Form of Notice of 2007 Performance Unit Grant under the J. C. Penney Company, Inc. 2005 Equity Compensation Plan    8-K    001-15274    10.3    03/15/2007   

10.47**

   2006 Incentive Compensation Awards, 2007 Base Salaries, 2007 Target Incentive Opportunity Percentages and 2007 Equity Awards for Named Executive Officers    10-K    001-15274    10.56    04/04/2007   

10.48**

   2008 Form of Notice of Grant of Stock Options under the J. C. Penney Company, Inc. 2005 Equity Compensation Plan    8-K    001-15274    10.1    03/07/2008   

10.49**

   2008 Form of Notice of Special Restricted Stock Unit Award under the J. C. Penney Company, Inc. 2005 Equity Compensation Plan    8-K    001-15274    10.2    03/07/2008   

10.50**

   Form of Notice of 2008 Performance Unit Grant under the J. C. Penney Company, Inc. 2005 Equity Compensation Plan    8-K    001-15274    10.3    03/07/2008   

10.51**

   JCP Change in Control Plan, as amended and restated effective March 27, 2008    8-K    001-15274    10.1    04/02/2008   

10.52**

   Form of Indemnification Trust Agreement between JCP and JPMorgan Chase Bank (formerly Chemical Bank) dated as of July 30, 1986, as amended March 30, 1987    Def.
Proxy
Stmt.
   001-00777    Exhibit 1
to Exhibit
B
   04/24/1987   

10.53**

   Second Amendment to Indemnification Trust Agreement between JCP and JPMorgan Chase Bank, effective as of January 27, 2002                X

10.54**

   Third Amendment to Indemnification Trust Agreement between Company, JCP and JPMorgan Chase Bank, effective as of June 1, 2008    10-Q    001-15274    10.2    09/10/2008   

 

** Indicates a management contract or compensatory plan or arrangement.

 

E-7


Table of Contents
          Incorporated by Reference     

Exhibit No.

  

Exhibit Description

   Form    SEC File
No.
   Exhibit    Filing
Date
   Filed
Herewith

10.55**

   Form of Indemnification Agreement between Company, JCP and individual Indemnities, as amended through January 27, 2002    10-K    001-15274    10(ii)(ab)    04/25/2002   

10.56**

   Special Rules for Reimbursements Subject to Code Section 409A under Indemnification Agreement between Company, JCP and individual Indemnities, adopted December 9, 2008                X

10.57**

   Form of Notice of 2008 Supplemental Annual CEO Performance Unit Grant under the J. C. Penney Company, Inc. 2005 Equity Compensation Plan    8-K    001-15274    10.1    12/16/2008   

10.58**

   2008 Base Salaries, 2008 Target Incentive Opportunity Percentages and 2008 Equity Awards for Named Executive Officers    10-K    001-15274    10.60    04/01/2008   

10.59**

   JCP Change in Control Plan, effective December 31, 2007    8-K    001-15274    10.7    12/14/2007   

10.60**

   JCP Change in Control Plan, adopted effective January 26, 2009                X

10.61**

   JCP Mirror Savings Plan, amended and restated effective December 31, 2007 and as further amended through December 9, 2008                X

10.62**

   J. C. Penney Company, Inc. Deferred Compensation Plan for Directors, as amended and restated effective February 27, 2008 and as further amended through December 10, 2008                X

10.63**

   Supplemental Retirement Program for Management Profit-Sharing Associates of JCP, as amended and restated effective December 31, 2007 and as further amended through December 9, 2008                X

10.64**

   JCP Benefit Restoration Plan, as amended and restated effective December 31, 2007 and as further amended through December 9, 2008                X

10.65**

   J. C. Penney Company, Inc. 2005 Equity Compensation Plan, as amended through December 10, 2008                X

 

** Indicates a management contract or compensatory plan or arrangement.

 

E-8


Table of Contents
          Incorporated by Reference     

Exhibit No.

  

Exhibit Description

   Form    SEC File
No.
   Exhibit    Filing
Date
   Filed
Herewith

10.66**

   2009 Base Salaries, 2009 Target Incentive Opportunity Percentages and 2009 Equity Awards for Named Executive Officers                X

10.67**

   Form of Notice of 2009 Annual CEO Performance Unit Grant under the J. C. Penney Company, Inc. 2005 Equity Compensation Plan    8-K    001-15274    10.1    03/17/2009   

12

   Computation of Ratios of Earnings to Fixed Charges and Preferred Stock Dividends                X

21

   Subsidiaries of the Registrant                X

23

   Consent of Independent Registered Public Accounting Firm                X

24

   Power of Attorney                X

31.1

   Certification by CEO pursuant to 15 U.S.C. 78m(a) or 780(d), as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002                X

31.2

   Certification by CFO pursuant to 15 U.S.C. 78m(a) or 780(d), as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002                X

32.1

   Certification by CEO pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002                X

32.2

   Certification by CFO pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002                X

 

** Indicates a management contract or compensatory plan or arrangement.

 

E-9

EXHIBIT 10.53

SECOND AMENDMENT to INDEMNIFICATION TRUST AGREEMENT, effective as of January 27, 2002 (“Second Amendment”), by and among J. C. Penney Company, Inc., a Delaware corporation, J. C. Penney Corporation, Inc., a Delaware corporation (herein collectively called the “Company”), and JPMorgan Chase Bank (a successor to Chemical Bank) a bank organized and existing under the laws of the State of New York, as trustee (“Trustee”).

J. C. Penney Corporation, Inc. (formerly known as J. C. Penney Company, Inc.) and Trustee have heretofore executed an Indemnification Trust Agreement, dated as of July 30, 1986, as amended March 30, 1987 (“Trust Agreement”), for the benefit of the Indemnitees (as defined on page 1 of the Trust Agreement). Upon the approval of the Representatives (as defined in Section 4(a) of the Trust Agreement), the Company and the Trustee now wish to amend the sections of the Trust Agreement described below to reflect changes in the organizational structure and names of both the Company and the Trustee.

NOW, THEREFORE, the Company and the Trustee agree that:

1. The title page to the Trust Agreement shall be amended and restated in its entirety as follows:

INDEMNIFICATION TRUST AGREEMENT

by and among

J. C. PENNEY COMPANY, INC.,

J. C. PENNEY CORPORATION, INC.

and

JPMORGAN CHASE BANK

2. The first paragraph page 1 of the Trust Agreement shall be amended and restated in its entirety as follows:

INDEMNIFICATION TRUST AGREEMENT (“Trust Agreement”) dated as of July 30, 1986, as amended March 30, 1987, and amended effective January 27, 2002, by and among J. C. Penney Company, Inc., a Delaware corporation, J. C. Penney Corporation, Inc., a Delaware company and wholly-owned subsidiary of J. C. Penney Company, Inc. (formerly known as J. C. Penney Company, Inc.) (herein collectively called the “Company”), and JPMorgan Chase Bank, a bank organized and existing under the laws of the State of New York (formerly known as Chemical Bank), as trustee (“Trustee”), for the benefit of the Indemnitees (as hereinafter defined), which Indemnitees shall be the beneficiaries of the trust created hereby (“Trust”).


3. Section 6(a) of the Trust Agreement shall be amended and restated in its entirety as follows:

 

  (a) For purposes of this Trust Agreement, “Change in Control” means a change in control of J. C. Penney Company, Inc. of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A (or in response to any similar item on any similar schedule or form) promulgated under the Securities Exchange Act of 1934 (“Act”), whether or not J. C. Penney Company, Inc. is then subject to such reporting requirement; provided, however, that without limitation, such a Change in Control shall be deemed to have occurred (irrespective of the applicability of the initial clause of this definition) if (i) any “person” (as such term is used in Sections 13(d) and 14(d) of the Act, but excluding any employee benefit plan or employee stock plan of the Company or any subsidiary of the Company, or any entity organized, appointed, established or holding securities of the Company with voting power for or pursuant to the terms of any such plan) is or becomes the “beneficial owner” (as defined in Rule 13d03 under the Act), directly or indirectly, of securities of the Company representing 35% or more of the combined voting power of the Company’s then outstanding securities without the prior approval of at least two-thirds of the members of the Board of Directors of J. C. Penney Company, Inc. in office immediately prior to such person attaining such interest; (ii) J. C. Penney Company, Inc. is party to a merger, consolidation, sale of assets or other reorganization, or proxy contest, as a consequence of which members of the Board of Directors of J. C. Penney Company, Inc. in office immediately prior to such transaction or event constitute less than a majority of the Board of Directors of J. C. Penney Company, Inc. thereafter; or (iii) during any period of two consecutive years, individuals who at the beginning of such period constituted the Board of Directors of J. C. Penney Company, Inc. (including for this purpose any new director whose election or nomination for election by the Company’s stockholders was approved by a vote of at least two-thirds of the directors then still in office who were directors at the beginning of such period) cease for any reason to constitute at least a majority of the Board of Directors of J. C. Penney Company, Inc.

 

2


4. The addresses of the Company and the Trustee in Section 9(i) of the Trust Agreement shall be amended and restated in their entirety by the following:

if to J. C. Penney Company, Inc., to:

J. C. Penney Company, Inc.

6501 Legacy Drive, MS 005

Plano, Texas 75024-3698

Attn: General Counsel

if to J. C. Penney Corporation, Inc., to:

J. C. Penney Corporation, Inc.

6501 Legacy Drive, MS 005

Plano, Texas 75024-3698

Attention: General Counsel

if to the Trustee, to:

JPMorgan Chase Bank

1211 Avenue of the Americas - 34th Floor

New York, NY 10036

Attn: Trust Administration Department

5. The addresses for written advice of each payment on Exhibit A to the Trust Agreement shall be amended and restated in their entirety by the following:

J. C. Penney Company, Inc.

6501 Legacy Drive, MS 005

Plano, Texas 75024-3698

Attention: Chief Financial Officer

    and

J. C. Penney Corporation, Inc.

6501 Legacy Drive, MS 005

Plano, Texas 75024-3698

Attention: Treasurer

This Second Amendment shall be governed by, and construed in accordance with the, the laws of the State of New York.

 

3


IN WITNESS WHEREOF, the parties hereto have executed and delivered this Amendment as of the date(s) set forth below.

 

  J. C. PENNEY COMPANY, INC.
ATTEST   By  

/s/ C. R. Lotter

  Name  

Charles R. Lotter

  Title  

Executive Vice President, Secretary and General Counsel

  Date  

June 3, 2002

By  

/s/ Jeffrey J. Vawrinek

   
Name  

Jeffrey J. Vawrinek

   
Title  

Assistant Secretary

   
Date  

June 3, 2002

   
     
  J. C. PENNEY CORPORATION, INC.
ATTEST   By  

/s/ C. R. Lotter

  Name  

Charles R. Lotter

  Title  

Executive Vice President, Secretary and General Counsel

  Date  

June 3, 2002

     
By  

/s/ Jeffrey J. Vawrinek

   
Name  

Jeffrey J. Vawrinek

   
Title  

Vice President and Asst. Secretary

   
Date  

June 3, 2002

   
     
  JPMORGAN CHASE BANK
ATTEST   By  

/s/ Jonathan R. Miller

  Name  

Jonathan R. Miller

  Title  

Vice President

  Date  

05/17/02

     
By  

/s/ June Ryan

   
Name  

June Ryan

   
Title  

Vice President

   
Date  

May 17, 2002

   

 

4


APPROVAL OF THE REPRESENTATIVES

Second Amendment to

Indemnification Trust Agreement

effective January 27, 2002

We, the undersigned, being Representatives, as defined in the Indemnification Trust Agreement between J. C. Penney Company, Inc. and JPMorgan Chase Bank (as successor to Chemical Bank), dated July 30, 1986, as amended March 30, 1987, and amended effective January 27, 2002, hereby approve the Second Amendment of the Indemnification Trust Agreement effective January 27, 2002.

Dated as of the date(s) set forth below.

 

By  

/s/ Thomas J. Engibous

Name  

Thomas J. Engibous

Date  

5-01-02

By  

/s/ Vernon E. Jordan, Jr.

Name  

Vernon E. Jordan, Jr.

Date  

5-2-02

By  

/s/ Jane C. Pfeiffer

Name  

Jane C. Pfeiffer

Date  

April 7, 2002

By  

/s/ R. Gerald Turner

Name  

R. Gerald Turner

Date  

5/1/02

 

5

EXHIBIT 10.56

Special Rules for Reimbursements

Subject to Code Section 409A under Indemnification Agreement

between Company, JCP and individual Indemnities,

adopted December 9, 2008

Solely to the extent that any otherwise required payment or reimbursement of Indemnitee’s expenses under this Policy (including expenses, judgments, fines and settlement amounts) would not be exempt from the requirements of section 409A of the Internal Revenue Code (“Section 409A”), such payment or reimbursement shall comply with the requirements of Treasury Regulation section 1.409A-3(i)(1)(iv) (or successor provisions). For this purpose, such payment or reimbursement shall be made in accordance with the rules in the next paragraph.

Indemnitee shall only be entitled to the payment or reimbursement of expenses incurred during the time period in which the Indemnitee has indemnification rights under the plan, agreement, or arrangement giving rise to the reimbursement. The amount of expenses paid or reimbursed during one taxable year of Indemnitee shall not affect the amount of expenses eligible for payment or reimbursement in any other taxable year. Any reimbursement of an expense shall be made on or before the last day of Indemnitee’s taxable year following the taxable year in which the expense was incurred. Notwithstanding the foregoing, in the event of a bona fide dispute regarding Indemnitee’s entitlement or reimbursement, reimbursement of an expense may be delayed to a later date if provided for under the provisions of the plan, agreement, or arrangement giving rise to the reimbursement and permitted by the Treasury Regulations under Section 409A, including Treasury Regulation section 1.409A-3(g) (or any successor provision). The right to payment or reimbursement of expenses shall not be subject to liquidation or exchange for another benefit.

EXHIBIT 10.60

J. C. PENNEY CORPORATION, INC.

2009 CHANGE IN CONTROL PLAN

Adopted Effective January 26, 2009


J. C. PENNEY CORPORATION, INC.

2009 CHANGE IN CONTROL PLAN

TABLE OF CONTENTS

 

Article

       Page
ARTICLE ONE   INTRODUCTION    1
ARTICLE TWO   DEFINITIONS    3
ARTICLE THREE   ELIGIBILITY AND PARTICIPATION    11
ARTICLE FOUR   BENEFITS    12
ARTICLE FIVE   AMENDMENT AND TERMINATION    20
ARTICLE SIX   MISCELLANEOUS    21
APPENDIX I   PARTICIPATING EMPLOYERS    27

 

i


J. C. PENNEY CORPORATION, INC.

2009 CHANGE IN CONTROL PLAN

ARTICLE ONE

INTRODUCTION

 

1.01 Purpose Of Plan

The J.C. Penney Corporation, Inc. 2009 Change in Control Plan (the “Plan”) consists primarily of (i) severance benefits, (ii) additional cash benefits after termination of employment to be paid outside of the Corporation’s non-qualified retirement plans and (iii) a cash amount payable at Employment Termination equal to the Corporation’s cost of health and welfare benefits the associate participated in immediately prior to the Change in Control. The purpose and intent of the Plan is to attract and retain key associates and to improve associate productivity by reducing distractions resulting from a potential Change in Control situation, all of which are in the best interest of the Corporation, and J.C. Penney Company, Inc. and its stockholders.

Capitalized terms used throughout the Plan have the meanings set forth in Article Two except as otherwise defined in the Plan, or the context clearly requires otherwise.

 

1.02 Plan Status

The Plan is intended to be a plan providing Severance Pay and certain other benefits following a Change in Control. The Plan is intended to be a top hat plan for a select group of management or highly compensated executives, subject only to the administration and enforcement provisions of ERISA. To the extent applicable, it is intended that portions of this Plan either comply with or be exempt from the provisions of Code section 409A. This Plan shall be administered in a manner consistent with this intent and any provision that would cause this Plan to fail to either comply with or be exempt from Code section 409A, as the case may be, shall have no force and effect.

 

1.03 Entire Plan

This document, including any Appendix hereto, and any documents incorporated by reference set forth the provisions of the Plan effective as of the Effective Date, except as otherwise provided herein.

 

1


1.04 Administration

The Human Resources and Compensation Committee of the Board (“Committee”) shall administer the Plan, provided, however, that none of the members of the Committee will be a Participant. The powers and duties of the Committee in administering the Plan are set forth in Article Six.

 

2


ARTICLE TWO

DEFINITIONS

 

2.01 For purposes of this Plan, the following terms shall have the following meanings:

Accounting Firm means a nationally recognized accounting firm, or actuarial, benefits or compensation consulting firm, (with experience in performing the calculations regarding the applicability of Section 280G of the Code and of the tax imposed by Section 4999 of the Code) selected by the Corporation prior to a change in control (as defined in Section 4.11 of this Plan) or Change in Control.

Board means the Board of Directors of J.C. Penney Company, Inc.

Change in Control means the occurrence of any of the following events:

 

  (i) any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) (a “Person”) becomes the beneficial owner (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 20% or more of the combined voting power of the then-outstanding Voting Stock of the Company or Corporation; provided , however , that:

 

  (1) for purposes of this Section (i), the following acquisitions shall not constitute a Change in Control: (A) any acquisition of Voting Stock of the Company or Corporation directly from the Company or Corporation that is approved by a majority of the Incumbent Directors, (B) any acquisition of Voting Stock of the Company or Corporation by the Company or any Subsidiary, (C) any acquisition of Voting Stock of the Company or Corporation by the trustee or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by the Company or any Subsidiary, and (D) any acquisition of Voting Stock of the Company or Corporation by any Person pursuant to a Business Transaction that complies with clauses (A), (B) and (C) of Section (iii) below;

 

  (2)

if any Person becomes the beneficial owner of 20% or more of the combined voting power of the then-outstanding Voting Stock of the Company or Corporation as a result of a transaction described in clause (A) of Section (i)(1) above and such Person thereafter becomes the beneficial owner of any additional shares of Voting Stock of the Company or Corporation representing 1% or more of the then-outstanding Voting Stock of the Company or Corporation, as the case may be, other than in an acquisition directly

 

3


 

from the Company or Corporation that is approved by a majority of the Incumbent Directors or other than as a result of a stock dividend, stock split or similar transaction effected by the Company or Corporation in which all holders of Voting Stock are treated equally, such subsequent acquisition shall be treated as a Change in Control;

 

  (3) a Change in Control will not be deemed to have occurred if a Person becomes the beneficial owner of 20% or more of the Voting Stock of the Company or Corporation as a result of a reduction in the number of shares of Voting Stock of the Company or Corporation outstanding pursuant to a transaction or series of transactions that is approved by a majority of the Incumbent Directors unless and until such Person thereafter becomes the beneficial owner of any additional shares of Voting Stock of the Company or Corporation representing 1% or more of the then-outstanding Voting Stock of the Company or Corporation, as the case may be, other than as a result of a stock dividend, stock split or similar transaction effected by the Company or Corporation in which all holders of Voting Stock are treated equally; and

 

  (4) if at least a majority of the Incumbent Directors determine in good faith that a Person has acquired beneficial ownership of 20% or more of the Voting Stock of the Company or Corporation inadvertently, and such Person divests as promptly as practicable but no later than the date, if any, set by the Incumbent Directors a sufficient number of shares so that such Person beneficially owns less than 20% of the Voting Stock of the Company or Corporation, then no Change in Control shall have occurred as a result of such Person’s acquisition; or

 

  (ii) a majority of the board of the Company or of the Corporation ceases to be comprised of Incumbent Directors; or

 

  (iii)

the consummation of a reorganization, merger or consolidation, or sale or other disposition of all or substantially all of the assets of the Company or the Corporation, or the acquisition of the stock or assets of another corporation, or other transaction (each, a “Business Transaction”), unless, in each case, immediately following such Business Transaction (A) the Voting Stock of the Company outstanding immediately prior to such Business Transaction continues to represent (either by remaining outstanding or by being converted into Voting Stock of the

 

4


 

surviving entity or any parent thereof), more than 50% of the combined voting power of the then outstanding shares of Voting Stock of the entity resulting from such Business Transaction (including, without limitation, an entity which as a result of such transaction owns the Company, Corporation or all or substantially all of the Company’s or Corporation’s assets either directly or through one or more subsidiaries), (B) no Person (other than the Company, such entity resulting from such Business Transaction, or any employee benefit plan (or related trust) sponsored or maintained by the Company or any Subsidiary or such entity resulting from such Business Transaction) beneficially owns, directly or indirectly, 20% or more of the combined voting power of the then outstanding shares of Voting Stock of the entity resulting from such Business Transaction, and (C) at least a majority of the members of the Board of Directors of the entity resulting from such Business Transaction were Incumbent Directors at the time of the execution of the initial agreement or of the action of the Board providing for such Business Transaction; or

 

  (iv) approval by the stockholders of the Company of a complete liquidation or dissolution of the Company, except pursuant to a Business Transaction that complies with clauses (A), (B) and (C) of Section (iii).

Code shall mean the Internal Revenue Code of 1986, as amended, and the proposed, temporary and final regulations promulgated thereunder. Reference to any section or subsection of the Code includes reference to any comparable or succeeding provisions of any legislation that amends, supplements or replaces such section or subsection.

Company shall mean J. C. Penney Company, Inc., a Delaware corporation, or any successor company.

Compensation shall mean the annual base salary rate of a Participant, plus the Participant’s target annual incentive compensation (at $1.00 per unit), under the Corporation’s Management Incentive Compensation Plan (or any successor plan thereto) for the fiscal year, all at the greater of the amount in effect on the date of the Change in Control or as of his/her Employment Termination date. As applied to a Participant employed by an affiliate or Subsidiary of the Corporation, Compensation shall include the same elements of pay to the extent the affiliate or Subsidiary maintains similar or comparable pay arrangements.

Corporation shall mean J. C. Penney Corporation, Inc., a Delaware corporation, or any successor company.

Effective Date shall mean January 26, 2009.

 

5


Employment Termination shall be deemed to have occurred when a Participant has a Separation from Service within two years after a Change in Control (or prior to a Change in Control if the Participant has reasonably demonstrated that such termination of employment (i) was at the request of a third party who has taken steps reasonably calculated to effect a Change in Control, or (ii) otherwise arose in connection with or in anticipation of a Change in Control) because of either a Separation from Service for Good Reason or an Involuntary Separation from Service other than as a result of a Summary Dismissal. An Employment Termination shall not include a termination by reason of the Participant’s death, disability, voluntary quit other than a Separation from Service for Good Reason, or Normal Retirement.

ERISA shall mean the Employee Retirement Income Security Act of 1974, as amended, and the regulations promulgated thereunder. Reference to any section or subsection of ERISA includes reference to any comparable or succeeding provisions of any legislation that amends, supplements or replaces such section or subsection.

Exchange Act means the Securities Exchange Act of 1934, as amended, and the regulations promulgated thereunder. Reference to any section or subsection of the Exchange Act includes reference to any comparable or succeeding provisions of any legislation that amends, supplements or replaces such section or subsection.

Excise Tax shall mean, collectively, (i) the tax imposed by section 4999 of the Code by reason of being “contingent on a change in ownership or control” of the Company, within the meaning of section 280G of the Code, or (ii) any similar tax imposed by state or local law, or (iii) any interest or penalties with respect to any excise tax described in clause (i) or (ii).

Good Reason within the meaning of Code section 409A and Treasury Regulation section 1.409A-1(n)(2)(i) or any successor thereto, shall mean a condition resulting from any of the actions listed below taken by a Service Recipient, without the consent of the Participant, directed at a Participant:

(a) a material decrease in salary or incentive compensation opportunity (the amount paid at target as a percentage of salary under the Corporation’s Management Incentive Compensation Program) as in effect immediately prior to the Change in Control, or

(b) failure by the Service Recipient to pay the Participant a material portion of his/her current base salary, or incentive compensation within seven days of its due date, or

 

6


(c) a material adverse change in reporting responsibilities, duties, or authority as compared with pre-Change in Control responsibilities, duties, or authority, or

(d) a material diminution in the authority, duties, or responsibilities of the supervisor to whom the Participant is required to report, including a requirement that a Participant report to a corporate officer or employee instead of reporting directly to the Board of the Company or the Corporation, as the case may be, or

(e) a material diminution in the budget over which the Participant retains authority as compared to the pre-Change in Control budget, or

(f) the Service Recipient requires the Participant to have the Participant’s principal location of work changed to a location more than 50 miles from the location thereof immediately prior to the Change in Control, or

(g) discontinuance of any material paid time off policy, fringe benefit, welfare benefit, incentive compensation, equity compensation, or retirement plan (without substantially equivalent compensating remuneration or a plan or policy providing substantially similar benefits) in which the Participant participates or any action that materially reduces such Participant’s benefits or payments under such plans, as in effect immediately before the Change in Control.

Provided, however, that the Participant must provide notice to the Corporation of the existence of the condition described above within 90 days of the initial existence of the condition, upon the notice of which the Corporation will have 30 days during which it or a Service Recipient may remedy the condition and not be required to pay any amount owed under this Plan. Any Separation from Service as a result of a Good Reason condition must occur within two years of the initial existence of the condition in order for benefits to be due under this Plan. A Separation from Service for Good Reason will be treated as an Involuntary Separation from Service for purposes of this Plan.

Gross-Up Payment within the meaning of Code section 409A and Treasury Regulation section 1.409A-3(i)(1)(v) or any successor thereto, means a payment to reimburse the Participant in an amount equal to all or a designated portion of the Federal, state, local, or foreign taxes imposed upon the Participant as a result of compensation paid or made available to the Participant by the Service Recipient, including the amount of additional taxes imposed upon the Participant due to the Service Recipient’s payment of the initial taxes on such compensation.

Incumbent Directors means the individuals who, as of the Effective Date hereof, are Directors of the Company or the Corporation, as the context

 

7


requires, and any individual becoming a Director subsequent to the date hereof whose election, nomination for election by the Company’s or Corporation’s stockholders, or appointment, was approved by a vote of at least two-thirds of the then Incumbent Directors (either by a specific vote or by approval of the proxy statement of the Company in which such person is named as a nominee for director, without objection to such nomination); provided, however, that an individual shall not be an Incumbent Director if such individual’s election or appointment to the Board occurs as a result of an actual or threatened election contest (as described in Rule 14a-12(c) of the Exchange Act) with respect to the election or removal of Directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board.

Involuntary Separation from Service shall mean Separation from Service due to the independent exercise of the unilateral authority of the Service Recipient to terminate the Participant’s services, other than due to the Participant’s implicit or explicit request, where the Participant was willing and able to continue performing services, within the meaning of Code section 409A and Treasury Regulation section 1.409A-1(n)(1) or any successor thereto.

Normal Retirement shall mean retirement at or after a Participant’s normal retirement date as determined in accordance with the J. C. Penney Corporation, Inc. Pension Plan as in effect immediately prior to a Change in Control.

Participant shall mean each person appointed by the Board to the Executive Board allowing them to participate in the Plan as provided in Article Three and who continues to be an Executive Board member immediately prior to a Change in Control.

Participating Employer shall mean the Corporation and any Subsidiary or affiliate of the Corporation which is designated as a Participating Employer under the Plan by the Board, excluding, however, any division of the Corporation or of a Subsidiary or affiliate that is designated by the Board as ineligible to participate in the Plan. Appendix I contains a list of the Participating Employers currently participating in the Plan that have adopted the Plan pursuant to Article Six.

Separation from Service within the meaning of Code section 409A and Treasury Regulation section 1.409A-1(h) or any successor thereto, shall mean the date a Participant retires, dies or otherwise has a termination of employment with the Service Recipient. In accordance with Treasury Regulation section 1.409A-1(h) or any successor thereto, if a Participant is on a period of leave that exceeds six months and the Participant does not retain a right to reemployment under an applicable statute or by contract, the employment relationship is deemed to terminate on the first date immediately following such six-month period, and also, a Participant is presumed to have a

 

8


Separation from Service where the level of bona fide services performed (whether as an employee or an independent contractor) decreases to a level equal to 20 percent or less of the average level of services performed (whether as an employee or an independent contractor) by the Participant during the immediately preceding 36-month period (or the full period of service to the Service Recipient if the employee has been providing services for less than the 36-month period).

Service Recipient shall mean the Corporation or any successor thereto, for whom the services are performed and with respect to whom the legally binding right to compensation arises, and all persons with whom the Corporation would be considered a single employer under Code section 414(b) (employees of controlled group of corporations), and all persons with whom the Corporation would be considered a single employer under Code section 414(c) (employees of partnerships, proprietorships, etc., under common control), using the “at least 50 percent” ownership standard, within the meaning of Code section 409A and Treasury Regulation section 1.409A-1(h)(3) or any successor thereto.

Severance Pay shall mean the cash severance payments payable to a Participant pursuant to Section 4.01 of the Plan.

Severance Benefits shall mean Severance Pay and the other benefits described in Article Four of the Plan payable to a Participant.

Severance Benefits Limitation shall mean 2.99 times the sum of (a) the annual base salary rate of a Participant, as in effect immediately prior to the date of the Participant’s Employment Termination, plus (b) the Participant’s target annual incentive compensation (at $1.00 per unit) under the Corporation’s Management Incentive Compensation Program (or any successor plan thereto) for the fiscal year in which an Employment Termination occurs.

Subsidiary shall mean any entity in which the Company, directly or indirectly, beneficially owns 50% or more of the Voting Stock.

Summary Dismissal shall mean a termination due to:

(a) any willful or negligent material violation of any applicable securities laws (including the Sarbanes-Oxley Act of 2002);

(b) any intentional act of fraud or embezzlement from the Corporation or Company;

(c) a conviction of or entering into a plea of nolo contendere to a felony that occurs during or in the course of the Participant’s employment with the Corporation;

 

9


(d) any breach of a written covenant or agreement with the Corporation, which is material and which is not cured within 30 days after written notice thereof from the Corporation; and

(e) willful and continued failure of the Participant to substantially perform his/her duties for the Corporation (other than as a result of incapacity due to physical or mental illness) or to materially comply with Corporation or Company policy after written notice, in either case, from the Corporation and a 30-day opportunity to cure.

For purposes hereof, an act, or failure to act, shall not be deemed to be “willful” or “intentional” unless it is done, or omitted to be done, by the Participant in bad faith or without a reasonable belief that the action or omission was in the best interests of the Corporation.

Voting Stock means securities entitled to vote generally in the election of directors.

 

10


ARTICLE THREE

ELIGIBILITY AND PARTICIPATION

 

3.01 Eligibility

Each person who is appointed to the Executive Board of the Corporation (“Executive Board”) by the Board for purposes of this Section 3.01 on or after the Effective Date and prior to the occurrence of a Change in Control will be a Participant in the Plan.

 

11


ARTICLE FOUR

BENEFITS

 

4.01 Severance Pay

Except as otherwise provided in Section 4.09, upon an Employment Termination, a Participant shall become entitled to Severance Pay in accordance with the following schedule.

 

Title

   Severance Pay Period

Chief Executive Officer and direct reports

   2.99 years

Other Executive Vice Presidents

   2.5 years

Senior Vice Presidents

   2 years

Severance Pay will be computed by multiplying the Participant’s Compensation times the number of years (including any fraction of a year) in the Participant’s Severance Pay Period, plus a cash amount equal to the aggregate Corporation’s premium cost for active associate medical, dental and life insurance coverage, if any, provided to the Participant on the date of the Change in Control, or if higher, the amount in effect at Employment Termination, times the number of years (including any fraction of a year) in the Severance Pay Period. Such lump sum Corporation contribution toward medical, dental and life insurance coverage for the Severance Pay Period will be grossed-up for federal income taxes using the applicable federal income tax rate that applied to the Participant for his/her prior year’s Compensation.

Severance Pay shall be paid in a lump sum within 30 days after Employment Termination.

In the event a Participant is entitled to any cash severance payments that are payable in the event of termination of employment pursuant to a written contract (“contract payments”) between the Participant and the Corporation or an affiliate or Subsidiary, Severance Pay otherwise payable to the Participant under this Section 4.01 shall be reduced by the amount of such contract payments. Notwithstanding the foregoing, if the Participant receives payments and benefits pursuant to this Section 4.01, the Participant shall not be entitled to any severance pay or benefits under any severance plan, program or policy of the Company or an affiliate or Subsidiary, unless otherwise specifically provided therein in a specific reference to this Plan. For purposes of the preceding sentence, the reference in the Executive Termination Pay Agreement to the receipt of all benefits in this Plan shall mean the receipt of all benefits which are payable under this Plan by the deadline for payment under Section 1.3(a) of the Executive Termination Pay Agreement.

 

12


To the extent applicable, Severance Pay will be reduced as provided in Section 4.10 hereof.

 

4.02 Prorated Incentive Compensation

A Participant who is covered under the Corporation’s Management Incentive Compensation Program (or any successor plan thereto) and who becomes entitled to Severance Pay under this Plan shall be paid a lump sum equal to the Participant’s pro-rated target annual incentive compensation (at $1.00 per unit), under the Corporation’s Management Incentive Compensation Program for the fiscal year; provided, however, if the Employment Termination occurs on the last day of the Corporation’s fiscal year the Participant shall be paid the higher of (a) target annual incentive compensation (at $1.00 per unit) or (b) the actual annual incentive compensation earned under the Corporation’s Management Incentive Compensation Program. Notwithstanding the foregoing, if the Participant has elected to defer under the Corporation’s Mirror Savings Plan (or any successor plan thereto) a portion of the annual incentive to be paid under the Corporation’s Management Incentive Compensation Program for the fiscal year, then that portion of the prorated incentive compensation will be deferred and paid in accordance with the terms of the Corporation’s Mirror Savings Plan, and the remaining portion of the prorated incentive compensation will be paid in a lump sum under this Section. Such lump sum shall be paid with the Severance Pay payable under Section 4.01. To the extent applicable, prorated incentive compensation will be reduced as provided in Section 4.10 hereof.

 

4.03 Retiree Medical, Dental, Gold Card, and Long Term Care Eligibility

Except as otherwise provided in Section 4.09, for the purpose of determining eligibility for retiree coverage under the J. C. Penney Corporation, Inc. Health and Welfare Benefits Plan (“H&W Plan”), a Participant who is covered under the H&W Plan and who becomes entitled to Severance Pay under this Plan shall be provided with up to 12 months of additional age and service credit under the H&W Plan to reach a critical age, date or points for retiree eligibility purposes the same as any other involuntary termination resulting from a reduction in force would receive under the terms of the H&W Plan. This provision shall apply to retiree eligibility for medical, dental, long term care insurance and the associate discount benefits provided under the H&W Plan. Any insurance benefits shall be paid solely from the insurance policy or policies provided under said plan.

 

4.04 Associate-Paid Retiree Term Life Insurance Eligibility

Except as otherwise provided in Section 4.09, notwithstanding any provision of the J. C. Penney Corporation, Inc. Voluntary Employees’ Beneficiary Association (“VEBA”) Life and Disability Benefit Plan to the contrary, if a

 

13


Participant becomes entitled to Severance Pay under this Plan, he/she shall be provided with up to 12 months of additional age and service credit under the terms of the life insurance portion of the VEBA Life and Disability Benefit Plan to reach a critical age, date or points for retiree eligibility purposes the same as any other involuntary termination resulting from a reduction in force would receive under the terms of such plan. Retiree life insurance benefits shall be paid solely from the insurance policy or policies provided under said plan.

 

4.05 Non-Qualified Retirement Plans

Except as otherwise provided in Section 4.09, if a Participant becomes entitled to Severance Pay under this Plan, he/she will receive an immediate lump sum payment within 30 days after Employment Termination, subject to any reduction provided for under Section 4.10 hereof, of any incremental benefit provided outside the terms of the applicable retirement plan calculated as follows, if he/she,

 

  (a) is a participant in the Corporation’s Supplemental Retirement Plan for Management Profit-Sharing Associates (“SRP”), or was a participant immediately prior to such plan’s termination following a change in control as defined in Section 4.11 of this Plan, he/she will receive an incremental benefit equal to the number of years in the Participant’s Severance Pay Period as years of additional age and additional service credit from either the date of such plan’s termination or the date of Employment Termination, as applicable, to make him/her eligible for a benefit, and if eligible, to provide him/her with the highest benefit available as though the entire amount of his/her incremental benefit were provided under such plan (including any offsets under such plan or offsets calculated under (b) or (c) of this Section 4.05) and using the higher of his/her Compensation or actual Average Final Compensation under the SRP, as his/her Average Final Compensation for purposes of such calculation and then offsetting the amount actually paid under the SRP as a result of vesting under such plan; and/or

 

  (b)

is a participant in the Corporation’s Benefit Restoration Plan (“BRP”), or was a participant immediately prior to such plan’s termination following a change in control as defined in Section 4.11 of this Plan, he/she will receive an incremental benefit equal to the number of years in the Participant’s Severance Pay Period as years of additional age and additional service credit from either the date of such plan’s termination or the date of Employment Termination, as applicable, to make him/her eligible for a benefit, and if eligible, to provide him/her with the highest benefit available as though the entire amount of his/her incremental benefit were provided under such plan

 

14


 

and using the higher of his/her Compensation or actual Average Final Pay under the BRP, as his/her Average Final Pay for purposes of such calculation and then offsetting the amount actually paid under the BRP as a result of vesting under such plan; and/or

 

  (c) is a participant in the Corporation’s Mirror Savings Plan, or was a participant immediately prior to such plan’s termination following a change in control as defined in Section 4.11 of this Plan, he/she will receive an incremental benefit equal to the Corporation’s match under such plan for each year in the Participant’s Severance Pay Period, and assuming the same Corporation contribution rate as in effect at the time of the Change in Control to provide him/her with the highest benefit available using his Compensation for each year of the Severance Pay Period and using his/her election in effect immediately prior to such plan’s termination date or his/her Employment Termination, as applicable, to determine his/her contribution and the Corporation’s matching contribution as though the entire amount of his/her incremental matching contribution benefit were provided under such plan and then offsetting the amount of match actually paid under the Corporation’s Mirror Savings Plan as a result of the vesting of matching contributions under such plan;

provided, however, that if and to the extent a Participant is otherwise entitled to receive any additional age and/or service credit under any such plan as a result of Employment Termination, the additional age and/or service credit otherwise provided under this Section 4.05 shall not be counted twice for purposes of determining eligibility.

 

4.06 Legal Fees

All expenses of a Participant incurred in enforcing his/her rights and/or to recover his/her benefits under this Article Four, including but not limited to, attorney’s fees, court costs, arbitration costs, and other expenses shall be paid by the Corporation, in accordance with Code section 409A and Treasury Regulation section 1.409A-3(i)(1)(iv)(A) or any successor thereto and shall meet the requirements below. The Corporation shall reimburse the Participant for any such fees, costs or expenses, promptly upon delivery of reasonable documentation, provided, however, all invoices for reimbursement of fees, costs or expenses must be submitted to the Corporation and paid in a lump sum payment by the end of the calendar year following the calendar year in which the fee, cost or expense was incurred. To be eligible for reimbursement, all fees, costs or expenses must be incurred within a 20 year period following the latest of a change in control (as defined in Section 4.11), a Change in Control, or Employment Termination which gives rise to a benefit under this Plan. The amount of fees, costs or expenses paid or eligible for reimbursement in one year under this Section 4.06 shall not affect the fees,

 

15


costs or expenses paid or eligible for reimbursement in any other taxable year. The right to payment or reimbursement under this Section 4.06 is not subject to liquidation or exchange for another benefit.

 

4.07 Outplacement Services/Financial Counseling

Except as otherwise provided in Section 4.09, following an Employment Termination, a Participant will be paid a lump sum payment in cash of $25,000 to allow the Participant to pay for outplacement and financial counseling services. Such lump sum will be paid with the Severance Pay payable under Section 4.01. To the extent applicable, the benefit will be reduced as provided in Section 4.10 hereof.

 

4.08 Special Bonus Hours

Except as otherwise provided in Section 4.09, in the event of an Employment Termination, a Participant will be paid for special bonus hours, if he/she is also a participant in the Corporation’s Paid Time Off Policy (“PTO Policy”) the same as any other involuntary termination resulting from a reduction in force would receive under the terms of the PTO Policy. Such payment will be determined in accordance with the provisions of the PTO Policy and paid within 30 days after the Participant’s Employment Termination date.

 

4.09 Severance Benefits Limitation

Notwithstanding any other provision of the Plan to the contrary, the total of the Severance Benefits provided under Sections 4.01, 4.03, 4.04, 4.05, 4.07, and 4.08 shall not be greater than an amount equal to the Severance Benefits Limitation. In the event that the total value of such Severance Benefits exceeds the Severance Benefits Limitation, such Severance Benefits will be provided in the following order until the Severance Benefits Limitation is met: Sections 4.01, 4.05, 4.07, 4.08, 4.03, and then 4.04. Once the Severance Benefits Limitation is met, no additional Severance Benefits shall be provided under the aforesaid provisions. The Severance Benefits Limitation shall not apply to the benefits provided in Sections 4.02 and 4.06.

 

4.10 Determination of Excise Tax; No Gross-Up Payments

(a) Anything in the Plan to the contrary notwithstanding, if it shall be determined that any payment or distribution by the Corporation or an affiliate or Subsidiary to or for the benefit of the Participant, whether paid or payable or distributed or distributable pursuant to the terms of the Plan or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the

 

16


vesting or exercisability of any of the foregoing, but excluding any payment or benefit not provided due to the application of the Severance Benefits Limitation under Section 4.09 (a “Payment”), would be subject to the Excise Tax, then the payments and benefits to be paid or provided under this Plan may be reduced (or repaid to the Corporation, if previously paid or provided) as provided below. In no event shall the Participant be entitled to receive a Gross-Up Payment or Excise Tax reimbursement. For purposes of this Section 4.10, the terms “excess parachute payment” and “parachute payment” will have the meanings assigned to them by Section 280G of the Code.

(b) All determinations required to be made under this Section 4.10, including whether an Excise Tax is payable by the Participant and the amount of such Excise Tax shall be made by the Accounting Firm. The Accounting Firm shall make an initial determination at the time of a change in control (as defined in Section 4.11). In addition, the Corporation shall direct the Accounting Firm to submit its determination and detailed supporting calculations to both the Corporation and the Participant within 15 calendar days after the date of the Participant’s Employment Termination, if applicable, and any other such time or times as may be requested by the Corporation or the Participant.

(c) The Accounting Firm shall calculate the amount of any “parachute payment” and “excess parachute payment” due to the Participant after taking into account the application of Section 4.09 and the related Excise Tax. The Accounting Firm also shall calculate a “reduced payment amount” by reducing the Participant’s payments and benefits under this Plan (which could require repayment of amounts previously paid or provided to the Participant) to the minimum extent necessary so that no portion of any Payment, as so reduced or repaid, constitutes an “excess parachute payment.” If the Accounting Firm determines that any Excise Tax is payable by the Participant, then the Participant shall receive either (i) all Payments otherwise due to him or her or (ii) the reduced payment amount described in the preceding sentence, whichever will provide him or her with the greater after-tax economic benefit taking into account for these purposes any applicable Excise Tax. If the Accounting Firm determines that no Excise Tax is payable by the Participant, it shall, at the same time as it makes such determination, furnish the Participant with an opinion that he/she has substantial authority not to report any Excise Tax on his/her federal, state, local income or other tax return.

(d) The Corporation and the Participant shall each provide the Accounting Firm access to and copies of any books, records and documents in the possession of the Corporation or the Participant, as the case may be, reasonably requested by the Accounting Firm, and otherwise cooperate with the Accounting Firm in connection with the preparation and issuance of the determination contemplated by paragraph (c) hereof. Any reasonable determination by the Accounting Firm as to the amount of the Excise Tax,

 

17


“parachute payment,” “excess parachute payment,” or “reduced payment amount” (and supported by the calculations done by the Accounting Firm) shall be binding upon the Corporation and the Participant.

(e) The federal, state and local income or other tax returns filed by the Participant shall be prepared and filed on a consistent basis with the determination of the Accounting Firm with respect to the Excise Tax, if any, payable by the Participant. The Participant shall make proper payment of the amount of any Excise Tax, and at the request of the Corporation, provide to the Corporation true and correct copies (with any amendments) of his/her federal income tax return as filed with the Internal Revenue Service and corresponding state and local tax returns, if relevant, as filed with the applicable taxing authority, and such other documents reasonably requested by the Corporation, evidencing such payment.

(f) The fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by this Section 4.10 shall be borne by the Corporation. If such fees and expenses are initially paid by the Participant, the Corporation shall reimburse the Participant the full amount of such fees and expenses within five business days after receipt from the Participant of a statement therefor and reasonable evidence of his/her payment thereof. Any reimbursement or payment of such fees and expenses will be made by the Corporation in accordance with Code section 409A and Treasury Regulation section 1.409A-3(i)(1)(iv)(A) or any successor thereto and shall meet the requirements below. The Corporation shall reimburse the Participant for any such fees and expenses, promptly upon delivery of reasonable documentation, provided, however, all invoices for reimbursement of fees and expenses must be submitted to the Corporation and paid in a lump sum payment by the end of the calendar year following the calendar year in which the fee or expense was incurred. To be eligible, all fees and expenses must be incurred within a 20 year period following the latest of a change in control (as defined in Section 4.11), a Change in Control, or Employment Termination which gives rise to a benefit under this Plan. The amount of fees and expenses paid or eligible for reimbursement in one year under this Section 4.10(f) shall not affect the fees and expenses paid or eligible for reimbursement in any other taxable year. The right to payment or reimbursement under this Section 4.10(f) is not subject to liquidation or exchange for another benefit.

(g) Appropriate adjustments will be made to amounts previously paid to the Participant, or to amounts not paid pursuant to paragraph (c), as the case may be, to reflect properly any subsequent changes to the calculations described above in paragraph (c). In the event that any payment or benefit is required to be reduced or repaid pursuant to paragraph (c), reductions will be made, to the extent necessary, to any payments otherwise owed to the Participant under Sections 4.01, 4.02 (excluding any amount elected to be

 

18


deferred under the Corporation’s Mirror Savings Plan), 4.05 and 4.07 of the Plan (to the extent not previously paid). In the event that additional amounts are owed to the Corporation after the imposition of such reductions, the Participant shall be required to repay to the Corporation the additional amount owed within 30 days of the determination being made by the Accounting Firm.

 

4.11 Change in Control

The term “change in control,” as used in Sections 4.05 and 4.10 of the Plan shall mean a change in control within the meaning of Code section 409A and Treasury Regulation section 1.409A-3(i)(5), or its successor, including a change in the ownership of the corporation, a change in the effective control of the corporation, or a change in the ownership of a substantial portion of the assets of the corporation as such events are defined in Treasury Regulation sections 1.409A-3(i)(5)(v), (vi), and (vii). For this purpose, “corporation” has the meaning given in Treasury Regulation section 1.409A-3(i)(5)(ii), or its successor.

 

19


ARTICLE FIVE

AMENDMENT AND TERMINATION

 

5.01 Amendment

The Plan may be amended by the Board at any time; provided, however, that

(a) any amendment which would have an adverse effect on any Participant’s Plan benefits and/or rights, except as may be otherwise required to comply with changes in applicable laws or regulations, including, but not limited to, Code section 409A, or

(b) any amendment within one year before or two years after a Change in Control,

cannot be applied to any Participant who would be adversely affected by such amendment without such Participant’s consent. After a Change in Control, any amendment shall also require the consent of the Committee.

 

5.02 Termination

The Plan shall continue indefinitely after the Effective Date, unless the Board shall decide to terminate the Plan by duly adopting resolutions terminating the Plan; provided, however, following the commencement of any discussion with a third party that ultimately results in a Change in Control, the Plan shall continue subject to Section 5.01, until such time as the Corporation and each affiliate or Subsidiary (as appropriate) shall have fully performed all of their obligations under the Plan with respect to all Participants, and shall have paid all Severance Benefits under the Plan in full to all Participants.

 

20


ARTICLE SIX

MISCELLANEOUS

 

6.01 Participant Rights

The Corporation and each affiliate or Subsidiary intend this Plan to constitute a legally enforceable obligation between (a) the Corporation or an affiliate or Subsidiary (as appropriate) and (b) each Participant.

It is also intended that the Plan shall confer vested and non-forfeitable rights for each Participant to receive benefits to which the Participant is entitled under the terms of the Plan with Participants being third party beneficiaries.

Except as provided in the definitions of Summary Dismissal or Good Reason, nothing in this Plan shall be construed to confer on any Participant any right to continue in the employ of the Corporation or an affiliate or Subsidiary or to affect in any way the right of the Corporation or an affiliate or Subsidiary to terminate a Participant’s employment without prior notice at any time for any reason or no reason.

 

6.02 Authority of Committee

The Committee will administer the Plan and have the full authority and discretion necessary to accomplish that purpose, including, without limitation, the authority and discretion to: (i) resolve all questions relating to the eligibility of Executive Board members to become or continue as Participants, (ii) determine the amount of benefits, if any, payable to Participants under the Plan and determine the time and manner in which such benefits are to be paid, to either comply with or be exempt from Code section 409A, as the case may be, (iii) engage any administrative, legal, tax, actuarial, accounting, clerical, or other services it deems appropriate in administering the Plan, (iv) construe and interpret the Plan, supply omissions from, correct deficiencies in and resolve inconsistencies or ambiguities in the language of the Plan, resolve inconsistencies or ambiguities between the provisions of this document, and adopt rules for the administration of the Plan which are not inconsistent with the terms of the Plan document and that are intended to make any benefits provided under the Plan either comply with or be exempt from Code section 409A, as the case may be, (v) compile and maintain all records it determines to be necessary, appropriate or convenient in connection with the administration of the Plan, and (vi) resolve all questions of fact relating to any matter for which it has administrative responsibility. The Committee shall perform all of the duties and may exercise all of the powers and discretion that the Committee deems necessary or appropriate for the proper administration of the Plan, and shall do so in a uniform, nondiscriminatory manner. Any failure by the Committee to apply any provisions of this Plan to any particular situation

 

21


shall not represent a waiver of the Committee’s authority to apply such provisions thereafter. Every interpretation, choice, determination or other exercise of any power or discretion given either expressly or by implication to the Committee shall be conclusive and binding upon all parties having or claiming to have an interest under the Plan or otherwise directly or indirectly affected by such action, without restriction, however, on the right of the Committee to reconsider and redetermine such action. Any decision rendered by the Committee and any review of such decision shall be limited to determining whether the decision was so arbitrary and capricious as to be an abuse of discretion. The Committee may adopt such rules and procedures for the administration of the Plan as are consistent with the terms hereof.

 

6.03 Claims Procedure

A. Allocation of Claims Responsibility: With respect to any claim for benefits which are provided exclusively under this Plan, the claim shall be approved or denied by the Committee within 60 days following the receipt of the information necessary to process the claim. In the event the Committee denies a claim for benefits in whole or in part, it will give written notice of the decision to the claimant or the claimant’s authorized representative, which notice will set forth in a manner calculated to be understood by the claimant, stating the specific reasons for such denial, make specific reference to the pertinent Plan provisions on which the decision was based, and provide any other additional information, as applicable, required by 29 Code of Federal Regulations section 2560.503-1 applicable to the Plan.

With respect to any claim for benefits which, under the terms of the Plan, are provided under another employee benefit plan maintained by the Corporation (i.e., life insurance, H&W Plan, PTO/MTO Policy, Pension, Savings, Mirror Savings, BRP, and SRP benefits), the Committee shall determine claims regarding the Participant’s eligibility under the Plan in accordance with the preceding paragraph, but the administration of any other claim with respect to such benefits (including the amount of such benefits) shall be subject to the claims procedure specified in such other employee benefit plan or program.

B. Litigation or Appeal In the event the Committee denies a claim in whole or in part for benefits which are provided exclusively under the Plan, or denies a claim regarding the claimant’s eligibility under the Plan, Participants will then be allowed to file a lawsuit in federal court as provided under ERISA.

Appeals with respect to any claim for benefits which, under the terms of the Plan, are provided under another employee benefit plan maintained by the Corporation (i.e., life insurance, H&W Plan, PTO/MTO Policy, Pension, Savings, Mirror Savings, BRP, and SRP benefits), shall be subject to the claims and appeals procedure specified in such other employee benefit plan.

 

22


6.04 Records and Reports

The Committee will maintain adequate records of all of their proceedings and acts and all such books of account, records, and other data as may be necessary for administration of the Plan. The Committee will make available to each Participant upon his request such of the Plan’s records as pertain to him for examination at reasonable times during normal business hours.

 

6.05 Reliance on Tables, Etc.

In administering the Plan, the Committee is entitled to the extent permitted by law to rely conclusively upon all tables, valuations, certificates, opinions and reports which are furnished by accountants, legal counsel or other experts employed or engaged by the Committee. The Committee will be fully protected in respect of any action taken or suffered by the Committee in good faith reliance upon all such tables, valuations, certificates, reports, opinions or other advice. The Committee is also entitled to rely upon any data or information furnished by a Participating Employer or by a Participant as to any information pertinent to any calculation or determination to be made under the provisions of the Plan, and, as a condition to payment of any benefit under the Plan the Committee may request a Participant to furnish such information as it deems necessary or desirable in administering the Plan.

 

6.06 Availability of Plan Information and Documents

Any Participant having a question concerning the administration of the Plan or the Participant’s eligibility for participation in the Plan or for the payment of benefits under the Plan may contact the Committee and request a copy of the Plan document. Each Participating Employer will keep copies of this Plan document, exhibits and amendments hereto, and any related documents on file in its administrative offices, and such documents will be available for review by a Participant or a designated representative of the Participant at any reasonable time during regular business hours. Reasonable copying charges for such documents will be paid by the requesting party.

 

6.07 Expenses

All Plan administration expenses incurred by the Committee shall be paid by the Corporation and all other administration expenses incurred by the Corporation or an affiliate or Subsidiary shall be paid by the Corporation or an affiliate or Subsidiary (as appropriate).

 

23


6.08 Adoption Procedure for Participating Employer

Any Subsidiary or affiliate of the Corporation may become a Participating Employer under the Plan provided that (i) the Board approves the adoption of the Plan by the Subsidiary or affiliate and designates the Subsidiary or affiliate as a Participating Employer in the Plan and (ii) by appropriate resolutions of the board of directors or other governing body of the Subsidiary or affiliate, the Subsidiary or affiliate agrees to become a Participating Employer under the Plan and also agrees to be bound by any other terms and conditions which may be required by the Board or the Committee, provided that such terms and conditions are not inconsistent with the purposes of the Plan. A Participating Employer may withdraw from participation in the Plan, subject to approval by the Committee, by providing written notice to the Committee that withdrawal has been approved by the board of directors or other governing body of the Participating Employer; provided, however, following the commencement of any discussion with a third party that ultimately results in a Change in Control, the Committee shall have no authority to approve the withdrawal of any Participating Employer until such time as the Corporation and each affiliate or Subsidiary (as appropriate) shall have fully performed all of their obligations under the Plan with respect to all Participants, and shall have paid all Severance Benefits under the Plan in full to all Participants. The Board may at any time remove a Participating Employer from participation in the Plan by providing written notice to the Participating Employer that it has approved removal; provided, however, following the commencement of any discussion with a third party that ultimately results in a Change in Control, the Board shall have no authority to remove or approve the withdrawal of any Participating Employer until such time as the Corporation and each affiliate or Subsidiary (as appropriate) shall have fully performed all of their obligations under the Plan with respect to all Participants, and shall have paid all Severance Benefits under the Plan in full to all Participants. The Board will act in accordance with this Article pursuant to unanimous written consent or by majority vote at a meeting.

 

6.09 Effect on Other Benefits

Except as otherwise provided herein, the Plan shall not affect any Participant’s rights or entitlement under any other retirement or employee benefit plan offered to him/her by the Corporation or an affiliate or Subsidiary (as appropriate) as of his/her Employment Termination.

 

6.10 Successors

The Plan shall be binding upon any successor in interest of the Corporation or an affiliate or Subsidiary (as appropriate) and shall inure to the benefit of, and be enforceable by, a Participant’s assigns or heirs.

 

24


6.11 Severability

The various provisions of the Plan are severable and any determination of invalidity or unenforceability of any one provision shall not have any effect on the remaining provisions.

 

6.12 Construction

In determining the meaning of the Plan, words imparting the masculine gender shall include the feminine and the singular shall include the plural, unless the context requires otherwise. Headings of sections and subsections of the Plan are for convenience only and are not intended to modify or affect the meaning of the substantive provisions of the Plan.

 

6.13 References to Other Plans and Programs

Each reference in the Plan to any plan, policy or program, the Plan or document of the Corporation or an affiliate or Subsidiary, shall include any amendments or successor provisions thereto without the necessity of amending the Plan for such changes.

 

6.14 Notices

 

  (a) General . Notices and all other communications contemplated by this Plan shall be in writing and shall be deemed to have been duly given when personally delivered or when mailed by U.S. registered or certified mail, return receipt requested and postage prepaid. In the case of the Participant, (i) mailed notices shall be addressed to the Participant at the Participant’s home address which was most recently communicated to the Corporation in writing or (ii) in the case of a Participant who is an employee, distributed to the employee at his or her place of employment in compliance with 29 Code of Federal Regulations section 2520.104b-1(c). In the case of the Corporation, mailed notices shall be addressed to its corporate headquarters, and all notices shall be directed to the attention of its General Counsel at J.C. Penney Corporation, Inc., 6501 Legacy Drive, Plano, Texas 75024.

 

  (b) Notice of Termination . Any notice of Summary Dismissal by the Corporation or by the Participant for Good Reason shall be communicated by a notice of termination to the other party given in accordance with this Section 6.14. Such notice shall indicate the specific termination provision in this Plan relied upon, shall set forth in reasonable detail the facts and circumstances claimed to provide the basis for termination under the provision so indicated, and shall specify the Employment Termination date.

 

25


6.15 No Duty to Mitigate

The Participant shall not be required to mitigate the amount of any payment contemplated under this Plan, nor shall such payment be reduced by any earnings that the Participant may receive from any other source.

 

6.16 Employment Taxes

All payments made pursuant to this Plan shall be subject to withholding of applicable income and employment taxes.

 

6.17 Governing Law

Except to the extent that the Plan may be subject to the provisions of ERISA, the Plan will be construed and enforced according to the laws of the State of Texas, without giving effect to the conflict of laws principles thereof. Except as otherwise required by ERISA, every right of action by an Associate with respect to the Plan shall be barred after the expiration of three years from the date of termination of employment or the date of receipt of the notice of denial of a claim for benefits or eligibility, if earlier. In the event ERISA’s limitation on legal action does not apply, the laws of the State of Texas with respect to the limitations of legal actions shall apply and the cause of action must be brought no later than four years after the date the action accrues.

 

26


APPENDIX I

Participating Employers

J.C. Penney Corporation, Inc.

J.C. Penney Company, Inc.

JCP Publications Corp.

JCP Overseas Services, Inc.

J.C. Penney Puerto Rico, Inc.

JCP Logistics L. P.

JCP Media L.P.

JCP Procurement L.P.

J.C. Penney Private Brands, Inc.

JCP Construction Services, Inc.

The Original Arizona Jean Company

 

27

EXHIBIT 10.61

J. C. PENNEY CORPORATION, INC.

MIRROR SAVINGS PLAN

AMENDED AND RESTATED, EFFECTIVE DECEMBER 31, 2007

and As Further Amended Through December 9, 2008


J. C. PENNEY CORPORATION, INC.

MIRROR SAVINGS PLAN

Amended and Restated Effective

At 11:59 p.m. on December 31, 2007

and As Further Amended Through December 9, 2008

INTRODUCTION

The J. C. Penney Corporation, Inc. Mirror Savings Plans I and II were adopted effective January 1, 1999 as part of a program to redesign the Company’s qualified and non-qualified savings plans to optimize the retirement savings opportunities for Associates.

Effective December 31, 2006, the J.C. Penney Corporation Inc. Mirror Savings Plan I and III were closed to new deferrals and new participants. Effective on January 1, 2007, the J.C. Penney Corporation, Inc. amended and restated Mirror Savings Plan II and renames the plan the J.C. Penney Corporation, Inc. Mirror Savings Plan. As of the December 31, 2007, Mirror Savings Plans I and III are merged into the Mirror Savings Plan and the Mirror Savings Plan is the surviving plan.

The Plans are maintained by the Company on an unfunded basis primarily for the purpose of providing deferred compensation to a select group of management or highly compensated employees.

The provisions of the Plan as amended and restated herein will apply to the entire benefit of each Participant who is an Associate on or after the above effective date and each Participant who had a Separation from Service prior to the above effective date and had not commenced receiving benefit payments under the Plan as of the effective date. For all other Participants who have commenced receiving benefits under the Plan as of the above effective date, the provisions of the Plan as in effect at the time each such Participant commenced receiving benefits will continue to be applicable. Unless otherwise indicated, no provision of the Plan as amended and restated shall amend any provision of the Plan as in effect on October 3, 2004 (“previous Plan”) and amendments to the previous Plan adopted after that date.

Words and phrases with initial capital letters used throughout the Plan are defined in Article One.


J. C. PENNEY CORPORATION, INC.

MIRROR SAVINGS PLAN

TABLE OF CONTENTS

 

Article

        Page
ARTICLE ONE    DEFINITIONS    1
ARTICLE TWO    ELIGIBILITY AND PARTICIPATION    5
   2.01    Eligibility Determined for Each Plan Year    5
   2.02    Eligible Associate    5
   2.03    Participation    6
   2.04    Election to Defer    6
   2.05    Deferral Amounts    7
   2.06    Investment Elections    8
ARTICLE THREE    BENEFITS    9
   3.01    Establishment of Accounts    9
   3.02    Personal Accounts    9
   3.03    Company Accounts    9
   3.04    Mirror Company Matching Contribution    10
   3.05    Mirror Retirement Account Contribution    10
   3.06    Mirror Discretionary Contribution    11
ARTICLE FOUR    TRANSFERS    13
   4.01    Personal Accounts    13
   4.02    Company Accounts    13
ARTICLE FIVE    VESTING    14
   5.01    Personal Accounts    14
   5.02    Company Accounts    14
   5.03    Forfeitures    15
ARTICLE SIX    TYPE OF PLAN    16
   6.01    Top Hat Plan    16
   6.02    No Funding    16


ARTICLE SEVEN    DISTRIBUTIONS    17
   7.01    Normal Form of Payment    17
   7.02    Payment Event    17
   7.03    Payment Commencement Date    17
   7.04    Delay for Specified Employees    17
   7.05    Death    18
   7.06    Subsequent Changes in Time and Form of Benefit    18
   7.07    Distribution for an Unforeseeable Emergency    18
   7.08    Fund-Specific Installments or Unforeseeable Emergency Distributions    19
   7.09    Form of Payments    19
   7.10    Change in Control    19
   7.11    Reemployed Participants    20
   7.12    Prohibition on Acceleration of Payment    20
   7.13    Limited Cashouts    20
ARTICLE EIGHT    AMENDMENT AND TERMINATION    22
   8.01    Plan Amendment    22
   8.02    Plan Termination    22
ARTICLE NINE    MISCELLANEOUS    23
   9.01    Plan Administration    23
   9.02    Plan Expenses    23
   9.03    Effect on Other Benefits    23
   9.04    No Guarantee of Employment    24
   9.05    Disclaimer of Liability    24
   9.06    Severability    24
   9.07    Successors    24
   9.08    Governing Law    24
   9.09    Construction    25
   9.10    Taxes    25
   9.11    Non-Assignability    25
   9.12    Claims Procedure    25
   Exhibit A    Examples of Calculations for the Company Matching Contribution    28
   Appendix A    Document History    37


ARTICLE ONE

DEFINITIONS

As used herein, the following words and phrases have the following respective meanings unless the context clearly indicates otherwise.

Active Participant : A Participant who defers part of his or her Compensation for a Plan Year (or part thereof) pursuant to an election to defer.

Associate : Any person who is classified as an associate and employed by an Employer if the relationship between the Employer and such person constitutes the legal relationship of employer and employee.

Beneficiary : The person or persons designated by the Participant on a beneficiary form required by the Company for this purpose to receive benefits payable under the Plan because of the Participant’s death.

Code : The Internal Revenue Code of 1986, as amended from time to time.

Company : On and after January 27, 2002, J. C. Penney Corporation, Inc., a Delaware corporation. The term “Company” will also include any successor employer, if the successor employer expressly agrees in writing as of the effective date of succession to continue the Plan.

Company Account : A phantom account established in accordance with Article Three to which Mirror Company Matching, Mirror Retirement Account and Mirror Discretionary contributions plus earnings are credited.

Compensation : The same meaning as the term “Compensation” is defined in the Savings Plan.

For all purposes under the Plan, a Participant’s “Compensation” shall exclude any awards (cash or otherwise) under the J.C. Penney Company, Inc. 2005 Equity Compensation Plan.

Compensation for a Plan Year shall be determined without regard to the limitations on annual compensation under Section 401(a)(17) of the Code and without regard to deferrals to this Plan.

An Associate who is in the service of the armed forces of the United States during any period in which his or her reemployment rights are guaranteed by law will be considered to have received the same rate of Compensation during his or her absence that he or she was receiving immediately prior to his or her absence, provided he or she returns to employment with an Employer within the time such rights are guaranteed by law.


Controlled Group : The Company and all other corporations, trades, and businesses, the employees of which, together with employees of the Company, are required by the first sentence of subsection (b), by subsection (c), by subsection (m), or by subsection (o) of Code section 414 to be treated as if they were employed by a single employer. For purposes of determining if a Separation from Service has occurred, the Controlled Group will be determined under Code sections 414(b) and 414(c) and Treasury Regulation section 1.414(c) – 2 by using the language “at least 50 percent” instead of “at least 80 percent” each place it appears in Code section 1563(a)(1),(2), and (3).

Eligible Associate : An Associate who has satisfied the eligibility requirements of the Plan for a Plan Year in accordance with Section 2.02.

Employer : The Company and any subsidiary company or affiliate of the Company that is a Participating Employer as defined in Article I of the Savings Plan.

ERISA : The Employee Retirement Security Act of 1974, as amended from time to time.

Exchange Act : The Securities Exchange Act of 1934, as amended from time to time.

Human Resources and Compensation Committee : The Human Resources and Compensation Committee of the Board of Directors of the Parent Company.

Human Resources Committee : The Human Resources Committee of the Company.

Mirror Company Matching Contributions : The phantom amounts deemed to be contributed by the Company for each Plan Year as determined under Section 3.04.

Mirror Discretionary Contributions : The phantom amounts deemed to be contributed by the Company for each Plan Year as determined under Section 3.06.

Mirror Investment Funds : Phantom funds established as book reserve entries in the books and records of the Company to which a Participant’s deferral amounts under the Plan are credited based on the investment elections of the Participant. The investment returns of such funds shall be assumed to match the returns of the same investment funds available to participants under the Savings Plan. No phantom fund shall be established in this Plan for any self directed brokerage account in the Savings Plan.

Mirror Retirement Account Contributions: The phantom amounts deemed to be contributed by the Company for each Plan Year as determined under Section 3.05.

Parent Company : J. C. Penney Company, Inc., a Delaware corporation, and any successor corporation.

 

2


Participant : An Eligible Associate who participates in the Plan in accordance with Article Two, and who has not yet received a distribution of the entire amount of his or her vested benefits under the Plan.

Payment Commencement Date : The date upon which payment of a Particpant’s benefits is scheduled to begin as determined under Section 7.03.

Payment Event : The event set forth in Section 7.02 upon which a Participant’s benefits may be paid.

Personal Account : A phantom account established in accordance with Article Three to which a Participant’s deferral amounts plus earnings are credited.

Plan : The J.C. Penney Corporation Inc. Mirror Savings Plan, as amended from time to time.

Plan Administrator : The Benefits Administration Committee.

Plan Year : Each calendar year.

Savings Plan : Prior to January 27, 2002, the J. C. Penney Company, Inc. Savings, Profit-Sharing and Stock Ownership Plan, as amended from time to time, and on and after January 27, 2002, the J. C. Penney Corporation, Inc. Savings, Profit-Sharing and Stock Ownership Plan, as amended from time to time.

Separation from Service : The date an Associate dies, retires, or otherwise has a termination of employment from the Controlled Group within the meaning of Code section 409A and Treasury Regulation section 1.409A-1(h), or its successor, taking into account the definition of Controlled Group for such purpose as defined above. An Eligible Associate or Participant who transfers from one Employer to another member of the Employer’s Controlled Group as defined in the preceding sentence without a break in employment shall not be deemed to have a Separation from Service.

Specified Employee : A “specified employee” within the meaning of Code section 409A, as determined in accordance with the rules specified by the Board of Directors in resolutions dated December 12, 2007.

Valuation Date : With respect to all Mirror Investment Funds, each day of a calendar year on which the New York Stock Exchange is open.

 

3


With respect to transactions or distributions initiated by a Participant or Beneficiary, (a) the date of receipt by the Plan Administrator of the request if it is received prior to the close of the New York Stock Exchange, or (b) the next trading day if the request is received after the close of the New York Stock Exchange.

With respect to distributions not initiated by a Participant, the date the distribution is processed.

 

4


ARTICLE TWO

ELIGIBILITY AND PARTICIPATION

 

2.01 Eligibility Determined for Each Plan Year

The eligibility of each Associate to participate in the Plan as an Active Participant is determined for each Plan Year in accordance with Section 2.02 below. Eligibility for, or participation in, the Plan for a Plan Year does not give an Associate the right to defer part of his or her Compensation under the Plan for any other Plan Year.

 

2.02 Eligible Associate

An Associate shall be eligible to participate in the Plan as an Active Participant for a Plan Year if the Associate for the preceding Plan Year had:

(a) Satisfied the eligibility requirements to make deferrals to the Savings Plan; and

(b) Earnings in excess of $100,000 (as adjusted in accordance with Section 414(q)(1) of the Code) comprised as follows:

 

  (1) If a current Associate, such earnings will be based on his actual Compensation through October 31 of such year plus his or her projected earnings from November 1 through December 31 of such year determined by using his or her Base Salary (as defined below) in effect on October 31 of such year.

 

  (2) If an Associate was not an Associate in the preceding Plan Year, he or she shall be eligible to participate in the year of hire or rehire if in addition to meeting the requirements of Section 2.02(a) above, he or she is expected to have projected Base Salary of at least an amount in excess of $100,000 (as adjusted in accordance with Section 414(q)(1) of the Code) in the current Plan Year based on his rate of Base Salary.

Base Salary shall mean the aggregate amount of the base pay rate (before any deductions of contributions or deferrals), commissions and amounts under the J.C. Penney Corporation, Inc. Management Incentive Compensation Program due and payable to an Eligible Associate in the applicable Plan Year designated by his or her Employer as the Eligible Associate’s monthly pay as reflected on the Employer’s personnel records including any such amounts otherwise due and payable with respect to which his or her election to defer applies.

 

5


2.03 Participation

An Eligible Associate for a Plan Year shall participate in the Plan for that Plan Year as an Active Participant by making a timely election to defer in accordance with Section 2.04 below. An Eligible Associate who fails to satisfy the requirements of Section 2.04 below shall not be allowed to make an election to defer and shall not be an Active Participant for the applicable Plan Year.

A Participant who is not an Active Participant for a Plan Year shall continue to participate in the Plan in all respects except that such Participant shall not have the right to defer part of his or her Compensation under the Plan for that Plan Year, and shall not be entitled to a Mirror Company Matching Contribution or a Mirror Discretionary Contribution (as determined under Sections 3.04 or 3.06, respectively) for that Plan Year. A Participant hired on or after January 1, 2007, shall be entitled to receive a Mirror Retirement Account Contribution (as determined under 3.05) regardless of whether he or she is an Active Participant.

 

2.04 Election to Defer

(a) All elections to defer for a Plan Year must be made in accordance with Treasury Regulation section 1.409A-2(a), and its successor, and in a manner approved by the Plan Administrator. An Eligible Associate for a Plan Year may elect to defer a percentage (as described in Section 2.05 below) of his or her Compensation for such Plan Year by filing an election no later than the December 31 preceding the Plan Year during which the services giving rise to the Compensation are performed. To the extent required by Code section 409A and the regulations thereunder, with respect to cash incentive amounts, including, but not limited to, amounts paid under the J.C. Penney Corporation, Inc. Management Incentive Compensation Program, such deferral election must be submitted no later than the December 31 preceding the Plan Year during which the services giving rise to the cash incentive amounts are performed, even though such cash incentive amounts may be payable in a Plan Year subsequent to performance of the relevant services.

(b) To the extent permitted by Treasury Regulation section 1.409A-2(a)(7), and its successor, a newly Eligible Associate who has never participated in the Plan or in an agreement, method, program, or other arrangement that would be aggregated with this Plan under Code section 409A or Treasury Regulation section 1.409A-1(c)(2), or its successor may file his or her election with the Plan Administrator within 30 days of his or her first date of eligibility for participation in the Mirror Plan but such election shall apply only to Compensation paid for services performed after the election and the amount of Compensation deferred shall be pro-rated, to the extent required, pursuant to Treasury Regulation section 1.409A-2(a)(7) or its successor. If the election to defer is not made within 30 days or if the Eligible Associate is not otherwise newly eligible within the meaning of the preceding sentence, the Eligible Associate will not be allowed to make an election for the current Plan Year. An Eligible Associate who was previously eligible to participate in the Plan may be treated as a newly Eligible Associate if:

(1) the Eligible Associate became ineligible to elect to defer, prior to a complete distribution of the Eligible Associate’s Account and following the distribution of all remaining amounts from his or her account, the Eligible Associate has subsequently become eligible to elect to participate again; or

 

6


(2) the Eligible Associate, has not been eligible to defer at any time during the 24-month period ending on the date the Eligible Associate becomes eligible again, regardless of whether the Eligible Associate has a current Account balance or if the Eligible Associate’s Account was credited with earnings or losses during such 24-month period.

Clauses (1) and (2) shall be applied by taking into account by treating an agreement, method, program, or other arrangement that would be aggregated with this Plan under Code section 409A or Treasury Regulation section 1.409A-1(c)(2) as if it were part of this Plan for purposes of determining the Participant’s eligibility to defer or receipt of all remaining amounts.

(c) An Active Participant cannot change or terminate his or her election to defer during a Plan Year for that Plan Year. However, an Eligible Associate may change his or her election to defer for a subsequent Plan Year by filing a new election with the Plan Administrator by December 31 of the preceding Plan Year.

An election to defer also shall terminate:

(1) at the end of the Plan Year;

(2) if the Plan is terminated, or

(3) in the event of a Participant’s request for a distribution due to an unforeseeable emergency which is determined to exist under Section 7.07 or in the event the Participant receives a hardship distribution as described in Treasury Regulation section 1.401(k)-1(d)(3).

 

2.05 Deferral Amounts

An Active Participant for a Plan Year may defer

(a) up to 14% of his Compensation in that Plan Year up to the earnings dollar limit, and,

(b) up to 75% of his Compensation in that Plan Year that exceeds the earnings dollar limit.

All deferral amounts shall be in whole percentages and made by payroll deduction. The earnings dollar limit of an Active Participant for a Plan Year shall be $225,000, as adjusted for cost of living increases in accordance with Section 401(a)(17) of the Code.

 

7


2.06 Investment Elections

A Participant shall complete an election, in the manner determined by the Plan Administrator, requesting that all of his or her future deferral amounts (in whole percentages) be applied to the hypothetical purchase for him or her, as of the earliest practicable Valuation Date after such amounts are deferred, of units in his or her Personal Accounts within any one or more of the available Mirror Investment Funds in each case at a price equal to the value of such units as of such Valuation Date.

Such election initially must be made prior to the commencement of his or her participation in the Plan and may be changed at any time during the Plan Year in accordance with the procedures established by the Plan Administrator. Each such election shall be effective as soon as administratively feasible following receipt by the Plan Administrator or its delegate of the Participant’s election.

In the event that no timely election by the Participant is on file with the Plan Administrator, such Participant shall be deemed to have elected that all deferral amounts shall be applied to the hypothetical purchase for him or her of units in the Personal Account within the Mirror Investment Fund that is the “Interest Income Fund” under the Savings Plan. Effective March 1, 2008, in the event that no timely election by the Participant is on file with the Plan Administrator, such Participant shall be deemed to have elected that all deferral amounts shall be applied to the purchase for him or her of units in the Personal Account within the Mirror Investment Fund that is the appropriate “Target Retirement Investment Fund” under the Savings Plan.

 

8


ARTICLE THREE

BENEFITS

 

3.01 Establishment of Accounts

A Personal Account and a Company Account within each Mirror Investment Fund shall be established for each Participant in the Plan as if assets were invested in a trust. All amounts credited to the Personal Accounts and Company Accounts of a Participant shall at all times be held in the Company’s general funds as part of the Company’s general assets, unless a trust is established pursuant to Section 7.10(b).

The value, including gains and losses, credited to such accounts and funds shall be determined by the Plan Administrator pursuant to procedures established by the Plan Administrator based on the same manner that the value is determined under the Savings Plan. As of each Valuation Date, the net asset value of a unit shall equal the net asset value of a unit as determined under the Savings Plan.

 

3.02 Personal Accounts

All amounts deferred by an Active Participant pursuant to Article Two shall be credited to his or her Personal Accounts within his or her Mirror Investment Funds specified in his or her investment election under Section 2.06.

 

3.03 Company Accounts

All Company contributions shall be credited to the Company Account of each Active Participant at each pay period. All Mirror Retirement Account Contributions and Mirror Discretionary Contributions shall be credited to each Active Participant’s Company Account within 2  1 / 2 months after the Company’s fiscal year end.

A Mirror Company Matching Contribution, a Mirror Retirement Account Contribution and a Mirror Discretionary Contribution (as determined under Sections 3.04, 3.05 and 3.06 below, respectively) shall be deemed to be invested in his or her Company Account within the Mirror Investment Funds in accordance with the Active Participant’s Investment election for his or her Personal Accounts under Section 2.06 of this Plan. In the event an Active Participant does not make an investment election, the Active Participant will be deemed to have elected the Mirror Investment Fund in accordance with Section 2.06.

Any amount of Company matching contributions credited to the Participant’s Company account under the Savings Plan and subsequently cancelled so that said plan could satisfy the actual contribution percentage test (as described in the Savings Plan) shall be credited to his or her Company Account within the Mirror Investment Fund that is according to the Participant’s investment election in the year paid to the extent permissible under Section 409A of the Code.

 

9


All amounts credited to the Company Accounts of a Participant shall be subject to the vesting provisions of Article Five.

 

3.04 Mirror Company Matching Contribution

For each Active Participant who has completed one year of employment and 1,000 hours of service, the Company will credit to the Mirror Company Matching Contribution account a matching contribution for each Active Participant in an amount equal to (i) 50% (or such other percent as may be determined from time to time by the Human Resources and Compensation Committee) of the Active Participant’s deferral contribution to the Plan for each payroll period that does not exceed 6% of the Active Participant’s Compensation for the payroll period reduced by (ii) the maximum matching contribution the Active Participant could have received under the Savings Plan. Each Active Participant’s matching contribution will be calculated in the same manner as in the examples attached to the Plan as Exhibit A.

An Active Participant who had a Separation from Service shall vest in the Mirror Company Matching Account contribution if he or she terminated:

 

  (a) At or after age 65;

 

  (b) Due to a permanent and total disability within the meaning of the Social Security Act, provided the participant either (a) has qualified for disablity insurance benefits under such Act, or (b) in the opinion of the organization that administers the Corporation’s disability plans has a disability which would entitle him to such disabiliy insurance benefits except for the fact that he does not have sufficient quarters of coverage or has not satisfied any age requirements under such law;

 

  (c) Due to death; or

 

  (d) Due to job restructuring, reduction in force or unit closing determined by the Company entitling the Participant to serverance pay under the Company’s then existing Separation Pay Plan.

 

3.05 Mirror Retirement Account Contributions

For each Participant hired or rehired on or after January 1, 2007, who has completed one year of employment and 1,000 hours of service and with Compensation in excess of the earnings dollar limit, the Company shall contribute an amount to the Mirror Plan equal to the difference between the Active Participant’s Compensation and the earnings dollar limit multiplied by 2%.

An Active Participant must be in the active employ of an Employer on December 31 of the Plan Year to receive credit for a Mirror Retirement Account Contribution for that Plan Year; provided, however, that an Active Participant who had a Separation from Service before December 31 of said year shall receive credit for one-twelfth of the Mirror Retirement Account contribution for each month or part of a month employed during the Plan Year if he or she terminated:

 

  (a) At or after age 65;

 

10


  (b) Due to a permanent and total disability within the meaning of the Social Security Act, provided the participant either (i) has qualified for disability insurance benefits under such Act, or (ii) in the opinion of the organization that administers the Corporation’s disability plans has a disability which would entitle him to such disability insurance benefits except for the fact that he does not have sufficient quarters of coverage or has not satisfied any age requirements under such law;

 

  (c) Due to death;

 

  (d) Due to job restructuring, reduction in force or unit closing determined by the Company entitling the Participant to serverance pay under the Company’s then existing Separation Pay Plan; or

 

  (e) At or after age 55 with 15 years of service.

An Associate shall not have a right or claim to any of the amounts contributed as a Mirror Retirement Account Contribution if the Associate is summarily dismissed, or otherwise has an involuntary Separation from Service due to a summary dismissal as defined by the Company’s policies and procedures (including resignation in lieu thereof), unless the Benefits Administration Committee, in its sole discrection, determines that such Associate shall be eligible for such benefits notwithstanding such summary dismissal.

 

3.06 Mirror Discretionary Contribution

Pursuant to Section 3.03 of the Savings Plan, a Discretionary Contribution shall be credited for each Active Participant to the Company Account in the Mirror Plan in accordance with the calculated deferral percentage of the Active Participant and in a manner deemed appropriate by the Human Resources and Compensation Committee.

An Active Participant must be in the active employ of an Employer on December 31 of the Plan Year to receive credit for a Mirror Discretionary Contribution for that Plan Year; provided, however, that an Active Participant who had a Separation from Service before December 31 of said year shall receive credit for one-twelfth of the Mirror Discretionary Contribution for each month employed during the Plan Year if he or she terminated:

 

  (a) At or after age 65;

 

  (b) Due to a permanent and total disability within the meaning of the Social Security Act, provided the participant either (i) has qualified for disability insurance benefits under such Act, or (ii) in the opinion of the organization that administers the Corporation’s disability plans has a disability which would entitle him to such disability insurance benefits except for the fact that he does not have sufficient quarters of coverage or has not satisfied any age requirements under such law;

 

  (c) Due to death;

 

  (d) Due to a job restructuring, reduction in force or unit closing determined by the Company entitling the Participant to serverance pay under the Company’s then existing Separation Pay Plan; or

 

  (e) At or after age 55 with 15 years of service.

 

11


An Associate shall not have a right or claim to any of the amounts contributed as a Mirror Discretionary Contribution if the Associate is summarily dismissed, or otherwise has an involuntary Separation from Service due to a summary dismissal as defined by the Company’s policies and procedures (including resignation in lieu thereof), unless the Benefits Administration Committee, in its sole discrection, determines that such Associate shall be eligible for such benefits notwithstanding such summary dismissal.

 

12


ARTICLE FOUR

TRANSFERS

 

4.01 Personal Accounts

A Participant may elect, once in each calendar day of the Plan Year, to transfer an amount (in whole percentages) equal to the value of all or part of his or her units in his or her Personal Accounts within any one or more of the Mirror Investment Funds to another one or more of his or her Personal Accounts within the Mirror Investment Funds. The value of such units shall be determined as of the Valuation Date. A transfer is effective only if made in the manner determined by the Plan Administrator.

 

4.02 Company Accounts

A Participant may elect, once in each calendar day of the Plan Year, to transfer an amount (in whole percentages) equal to the value of all or part of his or her units in his or her Company Accounts within any one or more of the Mirror Investment Funds to another one or more of his or her Company Accounts within the Mirror Investment Funds. The value of such units shall be determined as of the Valuation Date. A transfer is effective only if made in the manner determined by the Plan Administrator.

Notwithstanding any other provision of the Plan, a Participant who wishes to make transfers from both his or her Personal Accounts and Company Accounts during the same day, must do so as part of the same transaction.

 

13


ARTICLE FIVE

VESTING

 

5.01 Personal Accounts

A Participant shall be 100% vested in the value of his or her Personal Accounts within his or her Mirror Investment Funds at all times without regard to whether he or she is a Participant in the Plan for any future Plan Year.

 

5.02 Company Accounts

(a) This Section 5.02 applies to Mirror Company Matching Contributions described in Section 3.04, Mirror Retirement Account Contributions described in 3.05; and Mirror Discretionary Contributions described in Section 3.06. A Participant shall be 100% vested in the value of his or her Company Accounts within his or her Mirror Investment Funds upon completion of three full years of service, and shall have no vested interest prior to that time, for amounts (including earnings attributable thereto) credited for Plan Years beginning on or after January 1, 2007.

(b) For amounts (including earnings attributable thereto) credited as Mirror Company Matching Contributions for Plan Years before January 1, 2007, such amounts will vest in the same vesting percentage attributable to the value of his or her Company accounts under the Savings Plan based on his or her full years of service (as defined in the Savings Plan) in accordance with the following table:

 

Full years of service

   Vested Percentage  

Less than 1

   0 %

1

   20 %

2

   40 %

3

   60 %

4

   80 %

5 or more

   100 %

Notwithstanding anything in the Plan to the contrary, a Participant will only be entitled to payment of a benefit under the Plan if the Participant’s interest in his benefit is vested at the time payment is scheduled to commence.

(c) Change in Control Plan. If the Board of Directors of the Company exercises its discretion under Section 7.10 to terminate the Plan because of a Change in Control and a Participant is a participant in the J.C. Penney Corporation, Inc. Change in Control Plan (“Change in Control Plan”), the Participant’s non-vested amount in his Company Account will become 100% vested and nonforfeitable without regard to his or her years of service or age. If a Participant who is also a participant in the Change in Control Plan has an “employment termination” following a “change in

 

14


control” as those terms are defined in the Change in Control Plan, his or her interest in the Company Account will become 100% vested and nonforfeitable without regard to his or her years of service or age.

 

5.03 Forfeitures

A Participant who is less than 100% vested in the value of his or her Company Accounts as of his or her Separation from Service shall forfeit the non-vested value of his or her Company Accounts. In the event the Participant subsequently is re-employed by an Employer within five years, the amount forfeited (without earnings) hereunder shall be restored to his or her Company Accounts in the same manner as the amount, if any, forfeited by his or her Savings Plan Company Accounts would be restored by purchasing units in accordance with the Participant’s investment election in effect at the time of his or her Separation from Service using the current market value as of the date of employment.

 

15


ARTICLE SIX

TYPE OF PLAN

 

6.01 Top Hat Plan

The Plan is intended to be a “pension plan” as defined in ERISA and is maintained by the Company on an unfunded basis primarily for the purpose of providing deferred compensation to a select group of management or highly compensated employees. As such, the Plan is intended to be construed so as not to provide income to any Participant or Beneficiary for purposes of the Code prior to actual receipt of benefit payments under the Plan.

In the event that it should subsequently be determined by statute or by regulation or ruling that the Plan is not “a plan which is unfunded and is maintained primarily for the purpose of providing deferred compensation for a select group of management or highly compensated employees” within the meaning of sections 201(2), 301(a)(3), 401 (a)(1), and 4021(b)(6) of ERISA and section 2520.104-24 of Chapter 29 of the Code of Federal Regulations, participation in the Plan shall be restricted by the Plan Administrator to the extent necessary to assure that it will be such a plan within the meaning of such sections.

 

6.02 No Funding

Plan benefits shall be payable solely from the general assets of the Company. The Company shall not be required to, but may at its discretion, segregate or physically set aside any funds or assets attributable to Plan benefits, subject to the limitations of Code section 409A on funding such benefits. The Company shall retain title to and beneficial ownership of all assets of the Company, including any assets which may be used to pay Plan benefits. The cost of the Plan shall be expensed and a book reserve shall be maintained on the Company’s financial statements.

No Participant or Beneficiary shall be deemed to have, pursuant to the Plan, any legal or equitable interest in any specific assets of the Company. To the extent that any Participant or Beneficiary acquires any right to receive Plan benefits, such right shall arise merely as a result of a contractual obligation and shall be no greater than, nor have any preference or priority over, the rights of any general unsecured creditor of the Company.

 

16


ARTICLE SEVEN

DISTRIBUTIONS

 

7.01 Normal Form of Payment

Except as otherwise provided in this Plan, benefits will be paid in the form of five substantially equal annual installments.

 

7.02 Payment Event

The Payment Event for a Participant will be the later of (i) Separation from Service or (ii) January 1, 2008; provided, however, that if a Specified Employee’s Separation from Service (other than by reason of death) occurs prior to January 1, 2008, and the date of such Separation from Service plus six months is after January 1, 2008, Separation from Service will be the deemed Payment Event for such a Specified Employee.

 

7.03 Payment Commencement Date

The Payment Commencement Date for a Participant (including a Specified Employee) whose Payment Event under Section 7.02 is Separation from Service will be the first day of the month following the date of his Separation from Service; provided, however, that the actual time of the first payment to a Specified Employee will be determined in accordance with the provisions of Section 7.04. For all other Participants, the Payment Commencement Date for benefits under will be January 1, 2008, or as soon as practicable thereafter, but no later than the time required for payment under Treasury Regulation section 1.409A-3(d), or its successor. Subsequent installments for all Participants, including Specified Employees, will be paid on the first through fourth anniversaries of the Payment Commencement Date.

For an alternate payee, the Payment Commencement Date will be the applicable commencement date as provided in a domestic relations order that conforms with the requirements of Code section 409A and Treasury Regulation section 1.409A-3(j)(4)(ii), or its successor.

 

7.04 Delay for Specified Employees

If a Participant is a Specified Employee as of the date of his Separation from Service and his Payment Event is Separation from Service (other than by reason of death), payment will not be made before the date that is six months after the date of Separation from Service. The first payment to such a Specified Employee will be paid on the first day of the seventh month following the date of Separation from Service. During this period, interest will accrue in accordance with the Participant’s investment election.

 

17


7.05 Death

If a Participant has a Separation from Service by reason of death, the Participant’s Beneficiary will receive a benefit in the form of five equal annual installments commencing as of the first day of the month after the Participant’s death. If a Participant has a Separation from Service (other than by death) and subsequently dies before payment of his vested benefit has begun under the Plan, the Participant’s Beneficiary will receive the benefit in the form of five equal annual installments payable at the same time as described in Section 7.03 and Section 7.04. In the event of the death of a Participant after his benefit has commenced and before all installments have been paid, the remaining unpaid installments shall be paid to his Beneficiary in accordance with the payment schedule of the Participant. If no Beneficiary has been designated by such a Participant, the Beneficiary will be deemed to be the Spouse for a married Participant and the estate for a single Participant. If the Beneficiary dies before receiving all benefits to which he was entitled under the Plan, the amount shall be paid to the Beneficiary’s estate in accordance with the installment schedule set forth above.

 

7.06 Subsequent Changes in Time and Form of Benefit

No Participant can make a subsequent election to delay a payment or change the form of a payment.

 

7.07 Distribution for an Unforeseeable Emergency

A Participant or Beneficiary entitled to vested benefits under the Plan may request a single-sum distribution to satisfy a severe financial hardship resulting from an unforeseen emergency beyond his control. The distribution shall be limited to the amount necessary to satisfy the severe financial hardship (including any applicable federal, state or local taxes attributable to such distribution), and shall not exceed the current value of vested benefits payable to or on behalf of the Participant or Beneficiary.

An unforeseeable emergency shall have the meaning as that term is defined within Treasury Regulation section 1.409A-3(i)(3), or its successor.

The determination of the existence of a severe financial hardship and the approval of an unforeseeable emergency distribution shall be made by the Chief Human Resources and Administration Officer, (or his successor by title or position) or his delegate except as provided below. Approval shall be given only if, taking into account all of the facts and circumstances, continued deferral of benefits or adherence to the Plan’s payment schedule would result in a severe financial hardship to the Participant or Beneficiary. Approval shall not be granted if such hardship is or may be relieved through insurance, by liquidation of his or her assets (to the extent such liquidation would not itself cause severe financial hardship), or by terminating his or her election to defer. The amount of payment permitted hereunder shall in no event exceed the amount permitted under Treasury Regulation section 1.409A-3(i)(3)(ii), or its successor. Payment of any amount approved hereunder shall be made, subject to the limitations of Section 7.04, if applicable, within 14 days of such approval.

 

18


With respect to a Participant who is subject to Section 16(b) of the Exchange Act, the determination of the existence of a severe financial hardship and the approval of the hardship distribution shall be made by the Human Resources and Compensation Committee.

 

7.08 Fund-Specific Installments or Unforeseeable Emergency Distributions

The payment to a Participant or Beneficiary of installments or an unforeseeable emergency distribution shall reduce the value of his or her accounts in his or her Mirror Investment Fund(s) as designated by the Participant or Beneficiary. In the event the Participant or Beneficiary fails to designate the Mirror Investment Funds from which payment is to be made, the value of Mirror Investment Funds shall be reduced on a pro-rata basis.

 

7.09 Form of Payments

Payment of all benefits from the Plan shall be made only by check. No payments of Company stock shall be permitted.

 

7.10 Change in Control

(a) Authority of the Board of Directors . Upon a Change in Control as defined in Section 7.10(c), the Board of Directors of the Parent Company will have the discretion and the authority to (i) terminate and liquidate the Plan pursuant to its irrevocable action taken within the 30 days preceding or the 12 months following a Change in Control in accordance with Code section 409A, and Treasury Regulation section 1.409A-3(j)(4)(ix)(B), or its successor in which event the benefit of each Participant who is also a participant in the Change in Control Plan will automatically vest as provided in Section 5.02(c); (ii) fund a grantor trust in accordance with the provisions of Section 7.10(b); or (iii) provide that each Participant’s benefit in the Plan will become 100% vested and nonforfeitable as of the date of the Change in Control without regard to his years of service under Section 5.02(a) or (b).

(b) Grantor Trust . To the extent permitted by Code section 409A and the regulations thereunder, the Board of Directors will have the discretion and the authority to transfer assets of the Parent Company, in an amount sufficient to pay benefits that have been earned or vested under the Plan up to the date of the Change in Control, to a grantor trust to be established by the Parent Company for the purpose of paying benefits hereunder; and the Participant’s vested benefits shall thereafter be paid to the Participant from such trust in accordance with the terms of the Plan. On each anniversary date of the date of the Change in Control, the Parent Company shall, to the extent permitted by Code section 409A and the regulations thereunder, transfer to the grantor trust an amount necessary to pay all amounts contributed or vested under the Plan during the preceding twelve months.

 

19


(c) Change in Control Event . For the purpose of determining whether a Change in Control has occurred with respect to a Participant, a Change in Control means a Change in Control within the meaning of Code section 409A and Treasury Regulation section 1.409A-3(i)(5), or its successor, including a change in the ownership of the corporation, a change in the effective control of the corporation, or a change in the ownership of a substantial portion of the assets of the corporation as such terms are defined in Treasury Regulation sections 1.409A-3(i)(5)(v), (vi) and (vii). For this purpose, “corporation” has the meaning given in Treasury Regulation section 1.409A-3(i)(5)(ii), or its successor.

 

7.11 Reemployed Participants

If the Participant is reemployed, his or her scheduled payments under Section 7.01 shall continue. Any additional benefits payable to or on behalf of the Participant because of a subsequent Separation from Service shall be paid in the normal form of payment in accordance with this Article 7. A reemployed Participant will be allowed to make a new election to defer to the extent permitted under Section 2.04 above.

 

7.12 Prohibition on Acceleration of Payment

Except as provided in Code section 409A, Treasury regulation section 1.409A-3(j)(4) or its successor, this Section, Section 7.07, and Section 7.13, neither the Participant nor the Company can accelerate the time or schedule of any payment or amount scheduled to be paid pursuant to the terms of the Plan. The Benefits Administration Committee will have the discretion to accelerate payments in accordance with the provisions of Code section 409A and Treasury Regulation section 1.409A-3(j)(4), or its successor (provided that only the Board of Directors of the Company will have the discretion to accelerate payments in accordance with the provisions of Treasury Regulation section 1.409A-3(j)(4)(ix) or its successor).

 

7.13 Limited Cashouts

If a Participant under this Plan has no benefits due under the Supplemental Retirement Program for Management Profit-Sharing Associates of the J.C. Penney Corporation, Inc. or the J.C. Penney Corporation, Inc. Benefit Restoration Plan, and if a Participant’s or Beneficiary’s benefit under this Plan when combined with the Participant’s or Beneficiary’s benefit under any other agreements, methods, programs, or other arrangements with respect to which deferrals of compensation are treated as having been deferred under a single nonqualified deferred compensation plan under Code section 409A and Treasury Regulation section 1.409A-1(c)(2), or its successor, is equal to or less than the applicable dollar amount under Code section 402(g)(1)(B), in effect for the year of distribution, the Benefits Administration Committee will distribute the benefit in the form of an immediate lump sum payment, provided that the payment results in the

 

20


termination and liquidation of the entirety of the Participant’s interest under this Plan and all other agreements, methods, programs, or other arrangements aggregated with this Plan and is in accordance with Treasury Regulation section 1.409A-3(j)(4)(v), or its successor. In the case of a Specified Employee, the benefit will be paid at the time specified in Section 7.04 with an adjustment for interest in accordance with the Participant’s investment election.

 

21


ARTICLE EIGHT

AMENDMENT AND TERMINATION

 

8.01 Plan Amendment

The Human Resources and Compensation Committee may amend the Plan at any time and from time to time, without prior notice to any Participant or Beneficiary; provided, however, that the Human Resources Committee also may make amendments that relate primarily to the administration of the Plan, are applied in a uniform and consistent manner to all Participants, and are reported to the Human Resources and Compensation Committee.

 

8.02 Plan Termination

The Board of Directors of the Parent Company may terminate or discontinue the Plan at any time. If the Plan is terminated, it shall be on such terms and conditions as the Board of Directors of the Parent Company shall deem appropriate. The Board of Directors of the Parent Company may suspend, discontinue, or terminate the Plan at any time without prior notice or approval. Any termination and liquidation of the Plan, including any termination and liquidation of the Plan upon a Change in Control as provided under Section 7.10 of the Plan, must comply with the provisions of Code section 409A and Treasury Regulation section 1.409A-3(j)(4)(ix), or its successor.

 

22


ARTICLE NINE

MISCELLANEOUS

 

9.01 Plan Administration

The Plan shall be administered under the direction of the Human Resources and Compensation Committee. Except as otherwise provided below, the Benefits Administration Committee shall be considered the Plan Administrator for purposes of ERISA.

The Human Resources and Compensation Committee may delegate all or some of the responsibility for the administration of the Plan to the Human Resources Committee or the Benefits Administration Committee in which case such Committee shall assume such delegated power and authority in administering the Plan to that extent; provided, however, that in no event shall the Human Resources Committee or the Benefits Administration Committee have any power or authority with respect to matters involving a Participant who is a member of the Executive Board of the Company or a Participant who is subject to Section 16(b) of the Exchange Act.

The Plan Administrator has the authority and discretion to construe and interpret the Plan in a manner consistent with the requirements of Code Section 409A. As part of this authority, the Plan Administrator has the discretion to resolve inconsistencies or ambiguities in the language of the Plan, to supply omissions from or correct deficiencies in the language of the Plan, and to adopt rules for the administration of the Plan which are not inconsistent with the terms of the Plan. The Plan Administrator also has the authority and discretion to resolve all questions of fact relating to any claim for benefits as to any matter for which the Plan Administrator has responsibility. All determinations of the Plan Administrator are final and binding on all parties.

Each person considered to be a fiduciary with respect to the Plan shall have only those powers and responsibilities as are specifically given that person under this Plan. It is intended that each such person shall be responsible for the proper exercise of his or her own powers and responsibilities, and shall not be responsible for any act or failure to act of any other person considered to be a fiduciary or any act or failure to act of any person considered to be a non-fiduciary.

 

9.02 Plan Expenses

All Plan administration expenses incurred by the Company or the Plan Administrator shall be paid by the Company.

 

9.03 Effect on Other Benefits

Participation in the Plan shall not reduce any welfare benefits or retirement benefits offered by the Company, except that the amounts deferred under the Plan and any Plan benefits shall not be considered “Compensation” for purposes of the Savings Plan.

 

23


9.04 No Guarantee of Employment

Neither participation in the Plan nor any action taken under the Plan shall confer upon a Participant any right to continue in the employ of an Employer or affect the right of such Employer to terminate the Participant’s employment at any time.

 

9.05 Disclaimer of Liability

The Employer shall be solely responsible for the payment of Plan benefits hereunder. The members of the Human Resources and Compensation Committee, the Human Resources Committee, and the Benefits Administration Committee and the officers, directors, employees, or agents of the Company or any other Employer, shall not be liable for such benefits. Unless otherwise required by law, no such person shall be liable for any action or failure to act, except where such act or omission constitutes gross negligence or willful or intentional misconduct.

 

9.06 Severability

If any provision of the Plan shall be held invalid or unenforceable, such invalidity or unenforceability shall apply only to that provision, and shall not affect or render invalid or unenforceable any other provision of the Plan. In such event, the Plan shall be administered and construed as if such invalid or unenforceable provision were not contained herein. If the application of any Plan provision to any Participant or Beneficiary shall be held invalid or unenforceable, the application of such provision to any other Participant or Beneficiary shall not in any manner be affected thereby.

 

9.07 Successors

The Plan and any election to defer shall be binding on (i) the Company and its successors and assigns, (ii) any Employer and its successors and assigns, (iii) each Participant, (iv) each Beneficiary, and (v) the heirs, distributees, and legal representatives of each Participant and Beneficiary.

 

9.08 Governing Law

Except to the extent that the Plan may be subject to the provisions of ERISA or the Code, the Plan shall be construed and enforced according to the laws of the State of Texas without giving effect to the conflict of laws principles thereof. In the event limitations imposed by ERISA on legal actions do not apply, the laws of the State of Texas shall apply, and a cause of action under the Plan must be brought no later than four years after the date the action accrues.

 

24


9.09 Construction

As used herein, the masculine shall include the feminine, the singular shall include the plural, and vice versa, unless the context clearly indicates otherwise. Titles and headings herein are for convenience only and shall not be considered in construing the Plan. The words “hereof,” “hereunder”, and other similar compounds of the word “here” shall mean and refer to the entire Plan and not to any particular provision or Section.

 

9.10 Taxes

Any taxes imposed on Plan benefits shall be the sole responsibility of the Participant or Beneficiary. The Company shall deduct from Plan benefits any federal taxes, state taxes, local taxes, or other taxes required to be withheld. The Company shall, unless the Plan Administrator elects otherwise, withhold such taxes at the applicable flat rate percentage. The Company shall also deduct from any payment of Compensation, including any cash incentive payments, on the date such payment would have been made if not deferred under this Plan Social Security and Medicare taxes or other taxes required to be withheld on such date. Deductions hereunder shall comply with the requirements of Treasury Regulation section 1.409A-3(j)(4)(vi) and (xi), or its successor, to the extent applicable.

 

9.11 Non-Assignabilty

Unless otherwise required by law, and prior to distribution to a Participant or Beneficiary, Plan benefits shall not be subject to assignment, transfer, sale, pledge, encumbrance, alienation, or charge by such Participant or Beneficiary, and any attempt to do so shall be void. Plan benefits shall not be liable for or subject to garnishment, attachment, execution, or levy, or liable for or subject to the debts, contracts, or liabilities of the Participant or Beneficiary; provided, however, that the Company may offset from the payment of any Plan benefits to a Participant or Beneficiary amounts owed by the Participant to an Employer, in all events subject to the requirements of Code section 409A.

 

9.12 Claims Procedure

If a Participant, or an authorized representative of a Participant, (“claimant”) does not receive the benefits which the claimant believes he or she is entitled to receive under the Plan, the claimant may file a claim for benefits with the Chief Human Resources and Administration Officer (or his or her delegate). All claims must be made in writing no later than the time prescribed by Treasury Regulation section 1.409A-3(g), or its successor, and must be signed by the claimant or the claimant’s authorized representative. If the claimant does not furnish sufficient information to determine the validity of the claim, the Chief Human Resources and Administration Officer (or his or her delegate) will indicate to the claimant in writing any additional information which is required.

 

25


Each claim will be approved or disapproved by the Chief Human Resources and Administration Officer (or his or her delegate) within 60 days following receipt of the information necessary to process the claim, unless special circumstances require an extension of time for processing, in which case a decision will be rendered as soon as possible but not later than 120 days after receipt of the information necessary to process the claim. Notice of the extension must be provided to the claimant or the claimant’s authorized representative before the expiration of the original 60-day period and indicate the special circumstances requiring the extension of time and the date by which the Plan expects to make a determination.

In the event the Chief Human Resources and Administration Officer (or his or her delegate) denies a claim for benefits in whole or in part, the Chief Human Resources and Administration Officer (or his or her delegate) will notify the claimant in writing of the denial of the claim. Such notice by the Chief Human Resources and Administration Officer (or his or her delegate) will also set forth, in a manner calculated to be understood by the claimant, the specific reasons for such denial, the specific Plan provisions on which the denial is based, a description of any additional material or information necessary to perfect the claim, with an explanation of why such material or information is necessary, and an explanation of the Plan’s claim review procedures as set forth below.

A claimant may appeal a denial of his or her claim by requesting a review of the decision by the Plan Administrator or a person designated by the Plan Administrator, which person will be a named fiduciary under Section 402(a)(2) of ERISA for purposes of this Article. An appeal must be submitted in writing within 60 days after the denial and must (i) request a review of the claim for benefits under the Plan, (ii) set forth all the grounds upon which the claimant’s request for review is based and any facts, documents, records, or other information in support thereof, and (iii) set forth any issues or comments which the claimant deems pertinent to the appeal.

The Plan Administrator or the named fiduciary designated by the Plan Administrator will make a full and fair review of each appeal and any written materials submitted in connection with the appeal, without regard to whether the information was submitted under the initial claim determination. The Plan Administrator or the named fiduciary designated by the Plan Administrator will act upon each appeal within 60 days after receipt thereof, unless special circumstances require an extension of the time for processing, in which case a decision will be rendered as soon as possible but not later than 120 days after the appeal is received. Notice of the extension must be provided to the claimant or the claimant’s authorized representative before the expiration of the original 60-day period and indicate the special circumstances requiring the extension of time and the date by which the Plan expects to make a determination. The claimant will be given the opportunity to review pertinent documents or materials upon submission of a written request to the Plan Administrator or named fiduciary, provided the Plan Administrator or named fiduciary finds the requested documents or materials are pertinent to the appeal.

On the basis of its review, the Plan Administrator or named fiduciary will make an independent determination of the claimant’s eligibility for benefits under the Plan. The decision of the Plan Administrator or named fiduciary on any claim for benefits will be final and conclusive upon all parties thereto. In the event the Plan Administrator or named fiduciary denies

 

26


an appeal in whole or in part, the Plan Administrator or named fiduciary will give written or electronic notice of the decision to the claimant or the claimant’s authorized representative, which notice will set forth, in a manner calculated to be understood by the claimant, the specific reasons for such denial and which will make specific reference to the pertinent Plan provisions on which the decision was based and provide any other additional information, as applicable, required by 29 Code of Federal Regulations 2560.503-1, or its successor.

If the claimant’s claim or appeal is approved, any resulting payment of benefits will be made no later than the time prescribed for payment of benefits by Treasury Regulation section 1.409A-3(g), or its successor.

 

27


Exhibit A

Examples of Mirror Company Matching Contribution

 

   Example One:     

(a)

   Gross Compensation    250,000    

(b)

   401(a)(17) Compensation    220,000    

(c)

   Incentive Compensation    50,000    

(d)

   Mirror Plan Election for Compensation below 401(a)(17)    5.00 %  

(e)

   Mirror Plan Election for Compensation above 401(a)(17)    10.00 %  

(f)

   Mirror Plan Election for Incentive Compensation below 401(a)(17)    5.00 %  

(g)

   Mirror Plan Election for Incentive Compensation above 401(a)(17)    5.00 %  

(h)

   Match Percentage    0.50    
Post 2005 FORMULA

(i)

   Mirror Plan calculated deferrals for compensation below 401(a)(17): ((b)-(c))*(d)    8,500    

(j)

   Mirror Plan calculated deferrals for Incentive Compensation: (c)*(f)    2,500    

(k)

   Mirror Plan calculated deferrals for compensation above 401(a)(17): ((a)-(b))*(e)    3,000    

(l)

   Lesser or Gross Compensation or 401(a)(17) Compensation minus Mirror Plan calculated deferrals for compensation below 401(a)(17) times 6%: If (a)<(b) then ((a)-(i)-(j))*.06, if (a)>(b) then (b)-(i)-(j)*.06    12,540    

(m)

   equals total calculated deferral amount: (i)+(j)+(k)+(l)    26,540    

(n)

   Lesser of calculated percentage or 6% of gross comp: If (w)/(a)<6% then (a)*(m)/(a), if (m)/(a)>6% then (a)*6%    15,000    

(o)

   Times match rate: (n)*(h)      7,500

(p)

   LESS     

(q)

   401(a)(17) Compensation minus Mirror Plan calculated deferrals for compensation below 401(a)(17) times 6%: (l)    12,540    

(r)

   Times match rate: (q)*(h)      6,270

Total Mirror Plan contributions new formula: (o)-(r)

 

  1,230

 

28


Exhibit A

Examples of Mirror Company Matching Contribution

 

   Example Two:     

(a)

   Gross Compensation    150,000    

(b)

   401(a)(17) Compensation    220,000    

(c)

   Incentive Compensation    20,000    

(d)

   Mirror Plan Election for Compensation below 401(a)(17)    3.00 %  

(e)

   Mirror Plan Election for Compensation above 401(a)(17)    0.00 %  

(f)

   Mirror Plan Election for Incentive Compensation below 401(a)(17)    1.00 %  

(g)

   Mirror Plan Election for Incentive Compensation above 401(a)(17)    0.00 %  

(h)

   Match Percentage    0.50    
Post 2005 FORMULA

(i)

   Mirror Plan calculated deferrals for compensation below 401(a)(17): ((a)-(c))*(d)    3,900    

(j)

   Mirror Plan calculated deferrals for Incentive Compensation: (c)*(f)    200    

(k)

   Mirror Plan calculated deferrals for compensation above 401(a)(17): ((a)-(b))*(e)    0    

(l)

   Lesser or Gross Compensation or 401(a)(17) Compensation minus Mirror Plan calculated deferrals for compensation below 401(a)(17) times 6%: If (a)<(b) then ((a)-(i)-(j))*.06, if (a)>(b) then (b)-(i)-(j)*.06    8,754    

(m)

   equals total calculated deferral amount: (i)+(j)+(k)+(l)    12,854    

(n)

   Lesser of calculated percentage or 6% of gross comp: If (w)/(a)<6% then (a)*(m)/(a), if (m)/(a)>6% then (a)*6%    9,000    

(o)

   Times match rate: (n)*(h)      4,500

(p)

   LESS     

(q)

   401(a)(17) Compensation minus Mirror Plan calculated deferrals for compensation below 401(a)(17) times 6%: (l)    8,754    

(r)

   Times match rate: (q)*(h)      4,377

Total Mirror Plan contributions new formula: (o)-(r)

 

  123

 

29


Exhibit A

Examples of Mirror Company Matching Contribution

 

   Example Three:     
(a)    Gross Compensation    2,000,000    
(b)    401(a)(17) Compensation    220,000    
(c)    Incentive Compensation    300,000    
(d)    Mirror Plan Election for Compensation below 401(a)(17)    3.00 %  
(e)    Mirror Plan Election for Compensation above 401(a)(17)    5.00 %  
(f)    Mirror Plan Election for Incentive Compensation below 401(a)(17)    0.00 %  
(g)    Mirror Plan Election for Incentive Compensation above 401(a)(17)    10.00 %  
(h)    Match Percentage    0.50    
Post 2005 FORMULA
(i)    Mirror Plan calculated deferrals for compensation below 401(a)(17): ((b)-(c))*(e)    6,600    
(j)    Mirror Plan calculated deferrals for Incentive Compensation: (c)*(g)    30,000    
(k)    Mirror Plan calculated deferrals for compensation above 401(a)(17): ((a)-(b)-(c))*(e)    74,000    
(l)    Lesser of Gross Compensation or 401(a)(17) Compensation minus Mirror Plan calculated deferrals for compensation below 401(a)(17) times 6%: If (a)<(b) then ((a)-(i))*.06, if (a)>(b) then (b)-(i)*.06    12,804    
(m)    equals total calculated deferral amount: (i)+(j)+(k)+(l)    123,404    
(n)    Lesser of calculated percentage or 6% of gross comp: If (w)/(a)<6% then (a)*(m)/(a), if (m)/(a)>6% then (a)*6%    120,000    
(o)    Times match rate: (n)*(h)      60,000
(p)    LESS     
(q)    401(a)(17) Compensation minus Mirror Plan calculated deferrals for compensation below 401(a)(17) times 6%: (l)    12,804    
(r)    Times match rate: (q)*(h)      6,402

Total Mirror Plan contributions new formula: (o)-(r)

 

  53,598

Note: If a participant hits the compensation limit before his incentive compensation is paid (as in the above example), the formula is changed to use the appropriate percentage election and so that the deferrals on the Incentive Compensation do not reduce the compensation used in the Savings Plan.

 

30


Exhibit A

Examples of Mirror Company Matching Contribution

 

   Example Four:     

(a)

   Gross Compensation    450,000    

(b)

   401(a)(17) Compensation    220,000    

(c)

   Incentive Compensation    50,000    

(d)

   Mirror Plan Election for Compensation below 401(a)(17)    6.00 %  

(e)

   Mirror Plan Election for Compensation above 401(a)(17)    6.00 %  

(f)

   Mirror Plan Election for Incentive Compensation below 401(a)(17)    6.00 %  

(g)

   Mirror Plan Election for Incentive Compensation above 401(a)(17)    0.00 %  

(h)

   Match Percentage    0.50    
Post 2005 FORMULA

(i)

   Mirror Plan calculated deferrals for compensation below 401(a)(17): ((b)-(c))*(d)    10,200    

(j)

   Mirror Plan calculated deferrals for Incentive Compensation: (c)*(f)    3,000    

(k)

   Mirror Plan calculated deferrals for compensation above 401(a)(17): ((a)-(b))*(e)    13,800    

(l)

   Lesser or Gross Compensation or 401(a)(17) Compensation minus Mirror Plan calculated deferrals for compensation below 401(a)(17) times 6%: If (a)<(b) then ((a)-(i)-(j))*.06, if (a)>(b) then (b)-(i)-(j)*.06    12,408    

(m)

   equals total calculated deferral amount: (i)+(j)+(k)+(l)    39,408    

(n)

   Lesser of calculated percentage or 6% of gross comp: If (w)/(a)<6% then (a)*(m)/(a), if (m)/(a)>6% then (a)*6%    27,000    

(o)

   Times match rate: (n)*(h)      13,500

(p)

   LESS     

(q)

   401(a)(17) Compensation minus Mirror Plan calculated deferrals for compensation below 401(a)(17) times 6%: (l)    12,408    

(r)

   Times match rate: (q)*(h)      6,204

Total Mirror Plan contributions new formula: (o)-(r)

 

  7,296

 

31


Exhibit A

Examples of Mirror Company Matching Contribution

 

   Example Five:     
(a)    Gross Compensation    150,000    
(b)    401(a)(17) Compensation    220,000    
(c)    Incentive Compensation    50,000    
(d)    Mirror Plan Election for Compensation below 401(a)(17)    1.00 %  
(e)    Mirror Plan Election for Compensation above 401(a)(17)    0.00 %  
(f)    Mirror Plan Election for Incentive Compensation below 401(a)(17)    1.00 %  
(g)    Mirror Plan Election for Incentive Compensation above 401(a)(17)    0.00 %  
(h)    Match Percentage    0.50    
Post 2005 FORMULA
(i)    Mirror Plan calculated deferrals for compensation below 401(a)(17): ((a)-(c))*(d)    1,000    
(j)    Mirror Plan calculated deferrals for Incentive Compensation: (c)*(f)    500    
(k)    Mirror Plan calculated deferrals for compensation above 401(a)(17): ((a)-(b))*(e)    0    
(l)    Lesser or Gross Compensation or 401(a)(17) Compensation minus Mirror Plan calculated deferrals for compensation below 401(a)(17) times 6%: If (a)<(b) then ((a)-(i)-(j))*.06, if (a)>(b) then (b)-(i)-(j)*.06    8,910    
(m)    equals total calculated deferral amount: (i)+(j)+(k)+(l)    10,410    
(n)    Lesser of calculated percentage or 6% of gross comp: If (w)/(a)<6% then (a)*(m)/(a), if (m)/(a)>6% then (a)*6%    9,000    
(o)    Times match rate: (n)*(h)      4,500
(p)    LESS     
(q)    401(a)(17) Compensation minus Mirror Plan calculated deferrals for compensation below 401(a)(17) times 6%: (l)    8,910    
(r)    Times match rate: (q)*(h)      4,455

Total Mirror Plan contributions new formula: (o)-(r)

 

  45

 

32


Exhibit A

Examples of Mirror Company Matching Contribution

 

   Example Six:     

(a)

   Gross Compensation    150,000    

(b)

   401(a)(17) Compensation    220,000    

(c)

   Incentive Compensation    50,000    

(d)

   Mirror Plan Election for Compensation below 401(a)(17)    4.00 %  

(e)

   Mirror Plan Election for Compensation above 401(a)(17)    0.00 %  

(f)

   Mirror Plan Election for Incentive Compensation below 401(a)(17)    0.00 %  

(g)

   Mirror Plan Election for Incentive Compensation above 401(a)(17)    0.00 %  

(h)

   Match Percentage    0.50    
Post 2005 FORMULA

(i)

   Mirror Plan calculated deferrals for compensation below 401(a)(17): ((a)-(c))*(d)    4,000    

(j)

   Mirror Plan calculated deferrals for Incentive Compensation: (c)*(f)    0    

(k)

   Mirror Plan calculated deferrals for compensation above 401(a)(17): ((a)-(b))*(e)    0    

(l)

   Lesser or Gross Compensation or 401(a)(17) Compensation minus Mirror Plan calculated deferrals for compensation below 401(a)(17) times 6%: If (a)<(b) then ((a)-(i)-(j))*.06, if (a)>(b) then (b)-(i)-(j)*.06    8,760    

(m)

   equals total calculated deferral amount: (i)+(j)+(k)+(l)    12,760    

(n)

   Lesser of calculated percentage or 6% of gross comp: If (w)/(a)<6% then (a)*(m)/(a), if (m)/(a)>6% then (a)*6%    9,000    

(o)

   Times match rate: (n)*(h)      4,500

(p)

   LESS     

(q)

   401(a)(17) Compensation minus Mirror Plan calculated deferrals for compensation below 401(a)(17) times 6%: (l)    8,760    

(r)

   Times match rate: (q)*(h)      4,380

Total Mirror Plan contributions new formula: (o)-(r)

 

  120

 

33


Exhibit A

Examples of Mirror Company Matching Contribution

 

   Example Seven:     
(a)    Gross Compensation    150,000    
(b)    401(a)(17) Compensation    220,000    
(c)    Incentive Compensation    50,000    
(d)    Mirror Plan Election for Compensation below 401(a)(17)    2.00 %  
(e)    Mirror Plan Election for Compensation above 401(a)(17)    0.00 %  
(f)    Mirror Plan Election for Incentive Compensation below 401(a)(17)    6.00 %  
(g)    Mirror Plan Election for Incentive Compensation above 401(a)(17)    0.00 %  
(h)    Match Percentage    0.50    
Post 2005 FORMULA
(i)    Mirror Plan calculated deferrals for compensation below 401(a)(17): ((a)-(c))*(d)    2,000    
(j)    Mirror Plan calculated deferrals for Incentive Compensation: (c)*(f)    3,000    
(k)    Mirror Plan calculated deferrals for compensation above 401(a)(17): ((a)-(b))*(e)    0    
(l)    Lesser or Gross Compensation or 401(a)(17) Compensation minus Mirror Plan calculated deferrals for compensation below 401(a)(17) times 6%: If (a)<(b) then ((a)-(i)-(j))*.06, if (a)>(b) then (b)-(i)-(j)*.06    8,700    
(m)    equals total calculated deferral amount: (i)+(j)+(k)+(l)    13,700    
(n)    Lesser of calculated percentage or 6% of gross comp: If (w)/(a)<6% then (a)*(m)/(a), if (m)/(a)>6% then (a)*6%    9,000    
(o)    Times match rate: (n)*(h)      4,500
(p)    LESS     
(q)    401(a)(17) Compensation minus Mirror Plan calculated deferrals for compensation below 401(a)(17) times 6%: (l)    8,700    
(r)    Times match rate: (q)*(h)      4,350

Total Mirror Plan contributions new formula: (o)-(r)

 

  150

 

34


Exhibit A

Examples of Mirror Company Matching Contribution

 

   Example Eight:     
(a)    Gross Compensation    200,000    
(b)    401(a)(17) Compensation    220,000    
(c)    Incentive Compensation    50,000    
(d)    Mirror Plan Election for Compensation below 401(a)(17)    1.00 %  
(e)    Mirror Plan Election for Compensation above 401(a)(17)    0.00 %  
(f)    Mirror Plan Election for Incentive Compensation below 401(a)(17)    1.00 %  
(g)    Mirror Plan Election for Incentive Compensation above 401(a)(17)    0.00 %  
(h)    Match Percentage    0.50    
Post 2005 FORMULA
(i)    Mirror Plan calculated deferrals for compensation below 401(a)(17): ((a)-(c))*(d)    1,500    
(j)    Mirror Plan calculated deferrals for Incentive Compensation: (c)*(f)    500    
(k)    Mirror Plan calculated deferrals for compensation above 401(a)(17): ((a)-(b))*(e)    0    
(l)    Lesser or Gross Compensation or 401(a)(17) Compensation minus Mirror Plan calculated deferrals for compensation below 401(a)(17) times 6%: If (a)<(b) then ((a)-(i)-(j))*.06, if (a)>(b) then (b)-(i)-(j)*.06    11,880    
(m)    equals total calculated deferral amount: (i)+(j)+(k)+(l)    13,880    
(n)    Lesser of calculated percentage or 6% of gross comp: If (w)/(a)<6% then (a)*(m)/(a), if (m)/(a)>6% then (a)*6%    12,000    
(o)    Times match rate: (n)*(h)      6,000
(p)    LESS     
(q)    401(a)(17) Compensation minus Mirror Plan calculated deferrals for compensation below 401(a)(17) times 6%: (l)    11,880    
(r)    Times match rate: (q)*(h)      5,940

Total Mirror Plan contributions new formula: (o)-(r)

 

  60

 

35


Exhibit A

Examples of Mirror Company Matching Contribution

 

   Example Nine:     

(a)

   Gross Compensation    450,000    

(b)

   401(a)(17) Compensation    220,000    

(c)

   Incentive Compensation    50,000    

(d)

   Mirror Plan Election for Compensation below 401(a)(17)    14.00 %  

(e)

   Mirror Plan Election for Compensation above 401(a)(17)    0.00 %  

(f)

   Mirror Plan Election for Incentive Compensation below 401(a)(17)    10.00 %  

(g)

   Mirror Plan Election for Incentive Compensation above 401(a)(17)    0.00 %  

(h)

   Match Percentage    0.50    
Post 2005 FORMULA

(i)

   Mirror Plan calculated deferrals for compensation below 401(a)(17): ((b)-(c))*(d)    23,800    

(j)

   Mirror Plan calculated deferrals for Incentive Compensation: (c)*(f)    5,000    

(k)

   Mirror Plan calculated deferrals for compensation above 401(a)(17): ((a)-(b))*(e)    0    

(l)

   Lesser or Gross Compensation or 401(a)(17) Compensation minus Mirror Plan calculated deferrals for compensation below 401(a)(17) times 6%: If (a)<(b) then ((a)-(i)-(j))*.06, if (a)>(b) then (b)-(i)-(j)*.06    11,472    

(m)

   equals total calculated deferral amount: (i)+(j)+(k)+(l)    40,272    

(n)

   Lesser of calculated percentage or 6% of gross comp: If (w)/(a)<6% then (a)*(m)/(a), if (m)/(a)>6% then (a)*6%    27,000    

(o)

   Times match rate: (n)*(h)      13,500

(p)

   LESS     

(q)

   401(a)(17) Compensation minus Mirror Plan calculated deferrals for compensation below 401(a)(17) times 6%: (l)    11,472    

(r)

   Times match rate: (q)*(h)      5,736

Total Mirror Plan contributions new formula: (o)-(r)

 

  7,764

 

36


Appendix A

DOCUMENT HISTORY

This document contains the plans adopted on July 8, 1998 by the J. C. Penney Company, Inc. Board of Directors effective January 1, 1999 as amended on the dates and under the authorities noted below:

 

December 11, 1998    Human Resources Committee
January 1, 1999    Effective Date
July 14, 1999    Board of Directors
December 10, 1999    Human Resources Committee
December 11, 2000    Human Resources Committee
March 22, 2001    Human Resources and Compensation Committee
June 1, 2001    Director of Human Resources
October 10, 2001    Human Resources Committee
January, 27, 2002    Chief HR and Admin. Officer
June 1, 2002    Director of Human Resources
November 14, 2006    Human Resources and Compensation Committee
February 28, 2007    Human Resources and Compensation Committee
September 20, 2007    Human Resources and Compensation Committee
December 31, 2007    Human Resources and Compensation Committee
December 9, 2008    Human Resources and Compensation Committee

 

37

EXHIBIT 10.62

J. C. Penney Company, Inc.

Deferred Compensation Plan for Directors

As amended and restated effective February 27, 2008

and As Further Amended Through December 10, 2008

 

1. Purpose of Plan

The purpose of the J. C. Penney Company, Inc. Deferred Compensation Plan for Directors (“Plan”) is to provide a procedure whereby a member of the Board of Directors of J. C. Penney Company, Inc. (“Company”) who is not an associate of the Company or any of its subsidiaries (“Director”) may defer the payment of all or a specified portion of the compensation payable to the Director for services as a Director, including the annual retainer, meeting fees, and fees payable to a Director for services above and beyond those services in connection with his or her Board and committee responsibilities (“Fees”). Deferred Fees will be subject to Social Security Self-Employment tax in the year the Fees are paid irrespective of when such Fees are earned. A Director who elects to defer the payment of Fees will be eligible to make a deductible Keogh Plan contribution with respect to such Fees in the year such Fees are actually paid to the Director.

2. Administration

The Plan shall be administered by a committee (“Committee”) consisting of one or more persons appointed from time to time by the Board of Directors out of those members of the Board of Directors who have never been participants under the Plan. The Committee shall have plenary authority in its discretion, but subject to the express provisions of the Plan, to interpret the Plan, to prescribe, amend, and rescind rules and regulations relating to it, and to make all other determinations deemed necessary or advisable for the administration of the Plan. The determinations of the Committee on the foregoing matters shall be conclusive and binding on all interested parties.

3. Election to Defer

3.1 A Director may elect annually to defer payment of all or a specified portion of any unearned Fees. This election to defer must be made by December 31 of the calendar year prior to the calendar year that the election becomes effective for the Fees earned in such calendar year, and the election shall become irrevocable on December 31 of the year in which the election is made. Such election shall be effective January 1 of the calendar year following the calendar year of election. For purposes of Section 3.1 and 3.2, Fees will be treated as earned in the period during which the services giving rise to such Fees are performed.

3.2 A newly eligible Director may make an election to defer payment of all or a specified portion of any unearned Fees for the current year of appointment if the election is made within 30 days of the effective date of election to the Board. A Director will not be treated as newly eligible if the Director is otherwise eligible to participate in an agreement, method, program, or other arrangement that would be aggregated with this Plan under section 409A of the Internal Revenue Code of 1986, as amended (“Code”) or Treasury Regulation section 1.409A-1(c)(2), or its successor. A Director who has terminated board service and is subsequently re-elected to the Board will be deemed to be newly eligible to the extent permitted under Code section 409A or Treasury Regulation section 1.409A-2(a)(7), or its successor. If the election to defer is not made within 30 days, or the Director is not otherwise newly eligible, the Director will be allowed to make an election for the deferral of unearned Fees for the following year in accordance with Section 3.1 above.

 

1

 

JCPenney Board of Directors Compensation and Benefit Programs


3.3 A Director’s election to defer will remain in effect from year to year until he or she files a new election in accordance with Section 3.1 or gives notice to terminate such election. In order for a termination of an election to become effective for a calendar year, the notice to terminate the election must be received prior to the election becoming irrevocable on the preceding December 31. An election to defer cannot be terminated once the election becomes effective for the calendar year, except due to an unforeseeable emergency as defined in Section 6.2.

4. Directors’ Accounts

4.1 There shall be established for each Director participating in the Plan an account on the books of the Company, to be designated as such Director’s deferred compensation account (“Account”). Unless and until a Change of Control (as defined hereinafter) shall be deemed to have occurred, all amounts deferred pursuant to the Plan, together with any further amounts accrued thereon, as hereinafter provided, shall be held in the general funds of the Company and shall be credited to the Director’s Account. The Company shall furnish quarterly or upon request to each participating Director a statement of such Director’s Account.

4.2 Change in Control.

(a) In the event a Change in Control (as defined in Section 4.2(c) below) shall be deemed to have occurred, the Company’s liability for benefits under the Plan shall be funded under an irrevocable trust, to the extent permitted under Code section 409A, and as described in Section 4.2(b) below, which shall be subject to the claims of the Company’s general creditors so that Eligible Directors will not be currently taxed upon the funding of such benefits.

(b) Grantor Trust . To the extent permitted by Code section 409A and the regulations thereunder, the Board of Directors will have the authority to transfer assets of the Company, or its affiliates or subsidiaries in an amount sufficient to pay benefits that have accrued under the Plan up to the date of a Change in Control, as described in Section 4.2(c), to a grantor trust to be established by the Company for the purpose of paying benefits hereunder; and the Director’s Account shall thereafter be paid to the Director from such trust in accordance with the terms of the Plan. On each anniversary date of the date of the Change of Control, to the extent permitted by Code section 409A and the regulations thereunder, the Company shall transfer to the grantor trust an amount necessary to pay all benefits accrued under the Plan during the preceding twelve months.

(c) Change in Control Event . For the purpose of determining whether a Change in Control has occurred with respect to the Plan, a Change in Control means a Change in Control within the meaning of Code section 409A and Treasury Regulation section 1.409A-3(i)(5), or its successor, including a change in the ownership of the corporation, a change in the effective control of the corporation, or a change in the ownership of a substantial portion of the assets of the corporation as such terms are defined in Treasury Regulation sections 1.409A-3(i)(5)(v), (vi) and (vii). For this purpose, “corporation” has the meaning given in Treasury Regulation section 1.409A-3(i)(5)(ii), or its successor.

4.3 If a Director should make the one-time election under the J. C. Penney Company, Inc. Retirement Plan for Non-Associate Directors to cease participation in that plan and to transfer his or her accrued benefit under that plan to this Plan, the amount so transferred, together with any further amounts accrued thereon (“Retirement Transfer”), shall be a part of the Director’s Account. Notwithstanding the foregoing, no Retirement Transfers to this Plan shall be made after 1997.

 

2

 

JCPenney Board of Directors Compensation and Benefit Programs


4.4 A Director may elect that all but not a part of the balance in his or her Account be determined by reference to one of the following factors (“Factors”):

(a) the addition of interest, to be accrued during each such quarter and to be credited to such Account on the first business day following the end of such quarter on the basis of the average balance in such Account during such quarter, at a rate equal, also at such Director’s election, to either;

(1) the average annual rate payable for one-year United States Treasury Notes issued during such quarter, or

(2) the annual rate in effect for such quarter under the Interest income Account of the J. C. Penney Corporation, Inc. Savings, Profit-Sharing, and Stock Ownership Plan, or

(3) the year to date average of the Moody’s Single A Corporate Bond Yield compounded quarterly; or

(b) a number of units (“Units”), to be determined and valued in accordance with the fair market value of shares of the Company’s Common Stock of 50¢ par value (“Common Stock”), the method of such determination and valuation being set forth in Attachment A to the Plan.

4.5 The Director’s election as to the Factor to be referenced to determine the balance in his or her Account and any change in such election, shall be effective on the first day of the calendar quarter following receipt by the Secretary of the Company, or his or her designee, of written notice thereof; provided, however, that in the absence of any such election, the Factor for a Director’s Account shall be deemed to be the Savings Plan Interest Income Account described in Section 4.4(a)(2).

5. Payment from Directors’ Accounts

5.1 For amounts commencing distribution on or after January 1, 2008, a Director may receive payment from his or her Director’s Account due to separation from service on the Board, death, unforeseeable emergency, or disability. The Director’s Account will be paid in a single lump sum on the first day of the month (or as soon as practicable thereafter, but no later than the time required for payment under Treasury Regulation section 1.409A-3(d), or its successor) following the earlier of: (a) a separation from service within the meaning of Code section 409A and Treasury Regulation section 1.409A-1(h), or its successor, from the Board; or (b) death; or (c); unforeseeable emergency within the meaning of Code section 409A and Treasury Regulation section 1.409A-3(i)(3), or its successor, or (d) disability within the meaning of Code section 409A and Treasury Regulation section 1.409A-3(i)4), or its successor. Notwithstanding the foregoing or anything in Sections 5.5, 6.2, and 6.3 to the contrary, in the event the Account of a Director who should become a specified employee (as defined below) becomes payable due to the Director’s separation from service (as defined above) for reasons other than due to the Director’s death, payment of the Director’s Account shall be made the first day of the 7 th month following the month in which occurs the Director’s separation from service. A specified employee shall have the meaning within Code section 409A and as determined in accordance with the rules of the Board of Directors in resolutions dated December 12, 2007.

5.2 Notwithstanding the foregoing, if an election to defer is made on or after September 25, 1984 and on or before December 31, 2004, and the distribution of the balance of these accounts began before January 1, 2008 and will not be completely distributed as of January 1, 2008, payment of the balance in a Director’s Account shall be made in 10 annual installments. Any installment payments owed to a Director, as of January 1, 2008, shall be paid on the first business day of 2008 (or as soon as practicable thereafter, but no later than the time required for payment under Treasury Regulation section 1.409A-3(d), or its successor) and of each succeeding calendar year until the entire remaining balance in a Director’s Account shall have been paid. During any period in which a balance remains in a Director’s Account, such remaining balance shall continue to be determined by the Factor which is then in effect for such Director until further changed by such Director. When a Director is to receive the balance of his or her Account in annual installments, each

 

3

 

JCPenney Board of Directors Compensation and Benefit Programs


such annual installment shall be a fraction of the balance in such Account on the date such annual installment is to be paid, the numerator of which is one and the denominator of which is the total number of installments then remaining to be paid.

5.3 A director shall not have the right to elect a subsequent deferral of payment to a date beyond the payment event. Any payments from a Director’s Account shall be made in cash, and in no event shall shares of Company Stock be issued to a Director, even if such Director shall have elected to have the value of his or her Account determined by reference to the Unit Factor.

5.4 Except as provided in Code section 409A, Treasury Regulation section 1.409A-3(j)(4) or its successor, this Section, and Section 5.5, neither the Director nor the Company can accelerate the time or schedule of any payment or amount scheduled to be paid pursuant to the terms of the Plan. The Committee will have the discretion to accelerate payments in accordance with the provisions of Code section 409A and Treasury Regulation section 1.409A-3(j)(4), or its successor (provided that only the Board of Directors of the Company will have the discretion to accelerate payments in accordance with the provisions of Treasury Regulation section 1.409A-3(j)(4)(ix) or its successor).

5.5 If a Director’s Account when combined with the Director’s interest in any other agreements, methods, programs, or other arrangements with respect to which deferrals of compensation are treated as having been deferred under a single nonqualified deferred compensation plan under Code section 409A and Treasury Regulation section 1.409A-1(c)(2), or its successor, is equal to or less than the applicable dollar amount under Code section 402(g)(1)(B), in effect for the year of distribution, the Committee will distribute the benefit in the form of an immediate lump sum payment, provided that the payment results in the termination and liquidation of the entirety of the Director’s interest under this Plan and all other agreements, methods, programs, or other arrangements aggregated with this Plan and is in accordance with Treasury Regulation section 1.409A-3(j)(4)(v), or its successor.

6. Payment in Event of Death, Unforeseeable Emergency, or Disability

6.1 If a Director should die before the balance in his or her Account shall have been paid in full, the balance of the Director’s Account then remaining shall be paid in a single lump sum to his or her designated beneficiary or beneficiaries on the first day of the month following the Director’s date of death, or, if later, as soon as administratively feasible after satisfactory proof of death is received by the Secretary of the Company, but in all event within the time required by Code section 409A and Treasury Regulation section 1.409A-3(d), or its successor. A Director may designate one or more beneficiaries (which may be an entity other than a natural person) to receive any payments to be made upon the Director’s death. At any time, and from time to time, any such designation may be changed or canceled by the Director without notice to or the consent of any beneficiary. Any such designation, change, or cancellation shall be effective upon receipt by the Secretary of the Company of written notice thereof. If a Director designates more than one beneficiary, any payments to such beneficiaries shall be made in equal shares unless the Director has designated otherwise. If no beneficiary has been named by the Director, or if the designated beneficiary or beneficiaries shall have predeceased him or her, or shall no longer exist, the balance shall be paid to the Director’s estate.

6.2 A Director may request a single-sum distribution to satisfy a severe financial hardship resulting from an unforeseeable emergency beyond his control. The distribution shall be limited to the amount necessary to satisfy the severe financial hardship (including any applicable federal, state or local taxes attributable to such distribution), and shall not exceed the current value of the Director’s Account. An unforeseeable emergency shall have the meaning as is defined within Treasury Regulation section 1.409A-3(i)(3), or its successor. The determination of the existence of a severe financial hardship and the approval of an unforeseeable emergency distribution shall be made by the Committee, and any payment hereunder shall be made within 14 days (or as soon as practicable thereafter, but no later than the time required for payment under Treasury Regulation section 1.409A-3(d), or its successor) following such approval by the Committee. Approval shall be given only if, taking into account all of the facts and

 

4

 

JCPenney Board of Directors Compensation and Benefit Programs


circumstances, continued deferral of benefits or adherence to the Plan’s payment schedule would result in a severe financial hardship to the Participant or Beneficiary. Approval shall not be granted if such hardship is or may be relieved through insurance, by liquidation of his or her assets (to the extent such liquidation would not itself cause severe financial hardship), or by terminating his or her election to defer. The amount of payment permitted hereunder shall in no event exceed the amount permitted under Treasury Regulation section 1.409A-3(i)(3)(ii), or its successor.

6.3 Upon a Director’s disability, the Committee shall direct the Company to pay in a lump sum to a Director the balance of the Director’s Account on the first day of the month (or as soon as practicable thereafter, but no later than the time required for payment under Treasury Regulation section 1.409A-3(d), or its successor) following the determination of the existence of a disability. Disability shall have the meaning as that term is defined within Treasury Regulation section 1.409A-3(i)(4), or its successor. The determination of the existence of a disability shall be made by the Committee.

7. Termination of Election to Defer

A Director may on an annual basis terminate his or her election to defer payment of Fees only if the election has not become irrevocable and effective (except in the event of an unforeseeable emergency). Such termination shall become effective on the following January 1 following any year after receipt of written notice of such election to terminate deferrals by the Secretary of the Company, or his or her designee; provided, however, that any balance in the Account of a Director prior to the effective date of termination of an election to defer shall not be affected thereby and shall be paid only in accordance with Sections 5 and 6. A Director who has filed a termination of election to defer or whose election to defer has been terminated in accordance with Section 6 may thereafter again file an election to defer in accordance with Section 3.

8. Nonassignability

During a Director’s lifetime, the right to the balance in his or her Account shall not be transferable or assignable. Nothing contained in the Plan shall create, or be deemed to create, a trust, actual or constructive, for the benefit of a Director or his or her beneficiary, or shall give, or be deemed to give, to any Director or his or her beneficiary any interest in any specific assets of the Company.

9. Amendment

The Board of Directors of the Company may, at any time, without the consent of the participants, amend, suspend, or terminate the Plan. Subject to the terms of this Plan, including Section 5.4, and any applicable laws and regulations, no amendment, suspension, or termination of the Plan shall operate to annul an election already in effect for the then current calendar year or for any preceding calendar year and Fees shall continue to be deferred until the end of such current calendar year in accordance with a Director’s then current election; and the balance in the Director’s Account shall continue to be payable in accordance with a Director’s then current election and, until paid, to be measured by a factor to be determined from time to time by the Committee.

10. Governing Law

The Plan shall be construed and enforced according to the laws of the State of New York, and all the provisions thereof shall be administered according to the laws of said State.

 

5

 

JCPenney Board of Directors Compensation and Benefit Programs


11. Severability of Provisions

If any of the provisions of the Plan or the application thereof to any Director shall be held invalid, neither the remainder of the Plan nor its application to any other Director shall be affected thereby.

12. Effective Date

The amended and restated Plan shall become effective at 11:59 p.m. on December 31, 2007. This Plan was originally adopted on August 28, 1979; and was amended on September 25, 1984; June 28, 1988; February 28, 1989; July 8, 1992; and April 9, 1997.

 

6

 

JCPenney Board of Directors Compensation and Benefit Programs


Attachment A

General

Units shall be measured by reference to the fair market value of a share of Company Stock.

Fair Market Value

For purposes of the Plan, the fair market value (“Fair Market Value”) of a share of Company Stock shall be the closing market price for that date as reported in the composite transaction table covering transactions of New York Stock Exchange listed-securities or such other amount as the Plan Committee shall ascertain reasonably to represent such Fair Market Value.

Calculation of Units

The number of Units, to be calculated to the nearest thousandth of a Unit, shall be determined (1) on the effective date of the election of the Unit Factor, by dividing (a) the balance, if any, then in a Director’s account by (b) the Fair Market Value of a Share of Company Stock on the last trading day prior to the date of election of such Factor and (2) as to Fees deferred thereafter, by dividing (a) the amount of such deferred Fees on any date on which such Fees would otherwise have been paid by (b) the Fair Market Value of a share of Company Stock on the last trading day prior to the date such deferred Fees would otherwise have been paid.

Cash Dividends

Whenever a cash dividend is paid on a share of Company Stock, the number of Units in a Director’s Account shall be increased by a number determined by dividing (1) the product of (a) the number of such Units times (b) an amount equal to the amount of the cash dividend paid on a share of Company Stock by (2) the Fair Market Value of a share of Company Stock on the last trading date prior to the appropriate dividend payment date.

Adjustments

In the event of any change in the outstanding Company Stock by reason of a stock dividend, stock split, recapitalization, merger, consolidation, combination or exchange of shares, spin-off, distribution to holders of Company Stock (other than cash dividends), or the like, the Plan Committee shall adjust appropriately the number of Units credited to a Director’s Account.

Valuation of Account Balance Referenced to Units

If a Director has elected to have his or her Account balance determined by reference to the Unit Factor, then the value at any time of the balance in such Account shall be determined by multiplying (1) the number of Units in such Account by (2) the Fair Market Value of a share of Company Stock on the last trading day prior to the date such value is determined.

 

7

 

JCPenney Board of Directors Compensation and Benefit Programs

EXHIBIT 10.63

SUPPLEMENTAL RETIREMENT PROGRAM FOR

MANAGEMENT PROFIT-SHARING ASSOCIATES OF

J. C. PENNEY CORPORATION, INC.

AS AMENDED AND RESTATED EFFECTIVE DECEMBER 31, 2007 at 11:59 p.m.

and As Further Amended Through December 9, 2008

 

1


SUPPLEMENTAL RETIREMENT PROGRAM FOR

MANAGEMENT PROFIT-SHARING ASSOCIATES OF

J. C. PENNEY CORPORATION, INC.

Adopted Effective January 1, 1978

As Amended and Restated Effective December 31, 2007 at 11:59 p.m.

and As Further Amended Through December 9, 2008

TABLE OF CONTENTS

 

Article

   Page

ARTICLE I. INTRODUCTION

   4

ARTICLE II. DEFINITIONS

   5

ARTICLE III. PARTICIPATION

   15

ARTICLE IV. BENEFITS

   16
   (1)    At Early, Traditional, or Late Retirement Date    16
   (2)    Minimum Benefit    19
   (3)    Social Security Make-up    20
   (4)    Death Benefit    20
   (5)    Life Insurance Coverage    21
   (6)    Change in Control Plan    22

ARTICLE V. FORM AND COMMENCEMENT OF BENEFIT PAYMENTS

   23
   (1)    Form of Benefit Payments    23
   (2)    Payment Events    23
   (3)    Payment Commencement Date    23
   (4)    Delay for Specified Employees    23
   (5)    Subsequent Changes in Time and Form of Payment    24
   (6)    Prohibition on Acceleration of Payment    24
   (7)    Limited Cashouts    24
   (8)    Delta Benefit    24

ARTICLE VI. ADMINISTRATION

   26

ARTICLE VII. TYPE OF PLAN

   27

ARTICLE VIII. MISCELLANEOUS

   28
   (1)    Additional Credited Service and Other Adjustments    28
   (2)    Amendment and Termination    29

 

2


   (3)    Rights of Associates    30
   (4)    Mistaken Information    30
   (5)    Liability    30
   (6)    Benefits for Reemployed Eligible Management Associates    31
   (7)    Construction    31
   (8)    Non-assignability of Benefits    31
   (9)    Governing Law    31
   (10)    Transferred Eligible Management Associates    31
   (11)    Change in Control Plan    32

ARTICLE IX. CLAIMS PROCEDURES

   33

APPENDIX I

   35

 

3


SUPPLEMENTAL RETIREMENT PROGRAM FOR

MANAGEMENT PROFIT-SHARING ASSOCIATES OF

J. C. PENNEY CORPORATION, INC.

Adopted Effective January 1, 1978

Amended and Restated Effective December 31, 2007, at 11:59:59 p.m.

and As Further Amended Through December 9, 2008

 

ARTICLE I. INTRODUCTION

The Supplemental Retirement Program for Management Profit-Sharing Associates of J. C. Penney Corporation, Inc. is a plan maintained primarily for the purpose of providing deferred compensation for a select group of management or highly compensated associates. This document amends and restates the Plan, originally adopted effective January 1, 1978.

With respect to any Eligible Management Associate who terminated employment prior to August 1, 1995, benefits payable to such Eligible Management Associates are determined pursuant to the terms and conditions of the Supplemental Retirement Program for Management Profit-Sharing Associates of J. C. Penney Company, Inc. in effect as of July 31, 1995.

The provisions of the Plan as amended and restated herein will apply to the entire benefit of each Eligible Management Associate who is an Eligible Management Associate on or after the Effective Date and each Eligible Management Associate who had a Separation from Service prior to the Effective Date and had not commenced receiving benefit payments under the Plan as of the Effective Date. For all other Eligible Management Associates who have commenced receiving benefits under the Plan as of the Effective Date, the provisions of the Plan as in effect at the time each such Eligible Management Associate commenced receiving benefits will continue to be applicable. Unless otherwise indicated, no provision of the Plan as amended and restated shall amend any provision of the Plan as in effect on October 3, 2004, (the “previous Plan”) and amendments to the previous Plan adopted after that date.

 

4


ARTICLE II. DEFINITIONS

For the purpose of this Plan the following terms shall have the following meanings:

Actuarial Equivalent or Actuarially Equivalent : A form of benefit payment under which the aggregate payments expected to be received are equal in value to the aggregate payments expected to be received under a different form of benefit payment using the interest rate and other factors set forth in this Section.

(a) This paragraph applies to determine the present value of a Plan Benefit payable to an Eligible Management Associate or a Spouse in the form of five annual installments or an immediate lump sum payment. “Actuarial Equivalent” or “Actuarially Equivalent” means an amount equal to the present value of the monthly Plan Benefit payable on the applicable Payment Commencement Date to the Eligible Management Associate in the form of a Single Life Annuity, or to the Spouse in the form of a “qualified preretirement survivor annuity” as that term is defined in Paragraph 4 of Article IV, calculated by using the Applicable Interest Rate and the Applicable Mortality Table.

(b) This paragraph applies to determine the present value of a Plan Benefit payable to an alternate payee pursuant to a domestic relations order. “Actuarial Equivalent” or “Actuarially Equivalent” means an amount calculated applying the methodology in Subparagraph (a) above using the alternate payee’s applicable commencement date calculated by using the Applicable Interest Rate and the Applicable Mortality Table.

Applicable Interest Rate : If an Eligible Management Associate has a Separation from Service prior to the Effective Date, or for a Beneficiary or Spouse of an Eligible Management Associate who dies prior to the Effective Date, the Applicable Interest Rate is the annual rate of interest on 30-year Treasury securities for the month of August, 2006, plus one percent. If an Eligible Management Associate has a Separation from Service after the Effective date, the adjusted first, second, and third segment rates under Code section 417(e)(3)(C) and (D), determined with regard to the 2008 through 2011 phase-in provision of Code section 417(e)(3)(D)(iii), for the month of August preceding a Payment Commencement Date occurring during the next following January 1 through June 30 period and for the month of February preceding a Payment Commencement Date occurring during the next following July 1 through December 31 period. Notwithstanding the foregoing, for purposes of calculating the phase-in of the Applicable Interest Rate, 1% will be added to the annual rate of interest on 30-year Treasury securities for the above-determined month.

Applicable Mortality Table : If an Eligible Management Associate has a Separation from Service prior to the Effective Date, or for a Beneficiary or Spouse of an Eligible Management Associate who dies prior to the Effective Date, the Applicable Mortality Table is the mortality table as prescribed by the Secretary of the Treasury under Code section 417(e)(3) as in effect for August, 2006. If an Eligible Management Associate has a Separation from Service after the Effective Date, the Applicable Mortality Table is the mortality table as prescribed by the Secretary of the Treasury under Code section 417(e)(3) for the Plan Year containing the Payment Commencement Date.

Associate : Any person who is employed by a Controlled Group Member if the relationship between a Controlled Group Member and such person would constitute the legal relationship of employer and employee, including an officer who may or may not be a director, but excluding a director serving only in that capacity, and excluding any employee of a Controlled Group Member substantially all the operations of which are outside the United States unless United States Social Security contributions are made on behalf of such employee.

 

5


Average Final Compensation : The average annual Compensation of an Eligible Management Associate in respect of the three calendar years of his highest Compensation determined by taking into account (a) the Compensation attributable to the Eligible Management Associate’s Credited Service in the calendar year in which occurs such Early Retirement Date, Traditional Retirement Date, or Late Retirement Date, as the case may be, and (b) the Compensation during either of the following, whichever is appropriate:

 

(i) the 9 full calendar years of Final Service immediately preceding the calendar year in which occurs the Eligible Management Associate’s Early Retirement Date, Traditional Retirement Date, or Late Retirement Date, as the case may be; or

 

(ii) if such Eligible Management Associate has less than 9 full calendar years of Final Service, the entire number of full calendar years of such Final Service immediately preceding the calendar year in which occurs the Eligible Management Associate’s Early Retirement Date, Traditional Retirement Date, or Late Retirement Date, as the case may be.

If such Eligible Management Associate has less than three full calendar years of Final Service prior to the calendar year in which occurs his Early Retirement Date, Traditional Retirement Date, or Late Retirement Date, Average Final Compensation shall mean the aggregate Compensation earned with respect to the Eligible Management Associate’s Final Service immediately preceding the calendar year in which occurs his Early Retirement Date, Traditional Retirement Date or Late Retirement Date, divided by the total number of full months of such Final Service, multiplied by 12.

Benefit Commencement Date : The date upon which payment of a Pension Plan Participant’s retirement benefit is scheduled to begin pursuant to the terms of the Pension Plan.

Benefit Restoration Plan : The J. C. Penney Corporation, Inc. Benefit Restoration Plan, as amended from time to time.

Benefits Administration Committee : The committee appointed by the Human Resources Committee and authorized by Article VI to administer the Plan.

Board of Directors : Board of Directors of the Parent Company.

Code : The Internal Revenue Code of 1986, as amended from time to time. References to “regulations” are to regulations published by the Secretary of the Treasury under applicable provisions of the Code, unless otherwise expressly indicated.

Company : Prior to January 27, 2002, J. C. Penney Company, Inc., a Delaware corporation, and on and after January 27, 2002, J. C. Penney Corporation, Inc., a Delaware corporation. The term “Company” will also include any successor employer, if the successor employer expressly agrees in writing as of the effective date of succession to continue the Plan.

 

6


Company Account(s) : The account(s) of that name and any successor account(s) and/or fund(s) established and maintained pursuant to the Savings and Profit-Sharing Retirement Plan prior to January 1, 1999, the Savings, Profit-Sharing and Stock Ownership Plan, and the Mirror Savings Plans in which are reflected all Company contributions allocated to an Eligible Management Associate together with all assets attributable thereto.

Compensation : The total cash remuneration (including Profit Incentive Compensation) paid to an Associate by the Company or a Participating Employer, or, for the purpose of determining Average Final Compensation only, by a Controlled Group Member, that qualifies as wages as defined in Code Section 3401(a), determined without regard to any reduction for workers’ compensation and state disability insurance reimbursements, and all other compensation payments for which the Company or a Participating Employer or other Controlled Group Member is required to furnish the Associate a written statement under Code Sections 6041(d), 6051(a)(3) and 6052, reduced by the following items:

(a) all expatriate and foreign service allowances, including without limitation cost-of-living adjustments;

(b) tax gross-up payments;

(c) noncash prizes;

(d) income attributable to employer-provided group term life insurance;

(e) income recognized with respect to stock options and stock awards;

(f) tax equalizations payments;

(g) taxable and nontaxable relocation payments;

(h) payments of deferred amounts under any nonqualified plan of deferred compensation;

(i) special payments made to an Associate under the Performance Unit Plan in the year of retirement or disability;

(j) severance pay, outplacement pay, and/or critical pay;

(k) third-party disability payments;

(l) home sale bonus payments;

(m) mortgage interest assistance payments;

(n) senior management perquisites, tax preparation fees, and allowances for travel from Alaska and Hawaii;

(o) legal settlements constituting back pay or other wage payments;

(p) non-associate travel reimbursements;

 

7


(q) clothing allowance payments; and

(r) payments made pursuant to a non-compete agreement.

In addition, Compensation includes any contributions made by a Participating Employer or other Controlled Group Member on behalf of an Associate pursuant to a deferral election under any employee benefit plan containing a cash or deferred arrangement under Code Section 401(k), and any amounts that would have been received as cash but for an election to receive benefits under a cafeteria plan meeting the requirements of Code Section 125, and amounts deferred by an Associate under the Mirror Savings Plans.

Each annual payment to an Associate from the Profit Incentive Compensation shall be deemed to have been made in the calendar year immediately preceding the year in which payment was actually made. For purposes of calculating a Plan Benefit at the time of Payment Commencement Date, the Profit Incentive Compensation earned during the year of Separation from Service shall be calculated as zero at the time of Separation from Service. For purposes of calculating a Delta Benefit as provided in Paragraph 8 of Article V, the amount of the Profit Incentive Compensation shall be the amount actually paid.

For all purposes under the Plan, the Benefits Administration Committee, in its discretion, may exclude additional items from “Compensation” under the Plan.

An Associate who is in the service of the Armed Forces of the United States during any period in which his reemployment rights are guaranteed by law will be considered to have received the same rate of Compensation during his absence he was receiving immediately prior to his absence, provided he returns to employment with a Controlled Group Member within the time such rights are guaranteed.

Controlled Group : The Company and all other corporations, trades and businesses, the employees of which, together with employees of the Company, are required by the first sentence of subsection (b) , by subsection (c) , by subsection (m), or by subsection (o) of Code section 414 to be treated as if they were employed by a single employer. For purposes of determining if a Separation from Service has occurred, the Controlled Group will be determined under Code sections 414(b) and 414(c) and Treasury Regulation section 1.414(c)-2 by using the language “at least 50 percent” instead of “at least 80 percent” each place it appears in Code section 1563(a)(1),(2), and (3).

Controlled Group Member : Each corporation or unincorporated trade or business that is or was a member of a Controlled Group, but only during such period as it is or was such a member.

Credited Service : The years of credited service, up to a total maximum of 40 years, credited to an Eligible Management Associate (a) under the terms of the Pension Plan, determined without regard to any yearly limitation imposed by the terms of the Pension Plan (excluding any periods of Disability Service), and (b) under Paragraph (1) of Article VIII.

Disability Service : The years of disability service credited to an Eligible Management Associate under the terms of the Pension Plan.

 

8


Early Retirement Age : The first date on which an Eligible Management Associate has attained age 55 and has completed at least 15 years of Service.

Early Retirement Date : The first day of the month immediately following the date on which an Eligible Management Associate Separates from Service after having attained Early Retirement Age but before attainment of such Eligible Management Associate’s Traditional Retirement Age.

Effective Date : December 31, 2007 at 11:59 p.m.

Eligible Management Associate : An Associate (excluding an Associate who retired from (i) a Participating Employer before January 1, 1978, or (ii) J. C. Penney Life Insurance Company or J. C. Penney Casualty Insurance Company on or after January 1, 1990) classified under the Company’s personnel policy as a management associate who has reached Early Retirement Age, or Traditional Retirement Age, and who is participating in a Profit Incentive Compensation program or other profit sharing compensation program (other than the Savings and Profit-Sharing Retirement Plan or the Savings, Profit-Sharing and Stock Ownership Plan) of a Participating Employer on his Traditional Retirement Date or Early Retirement Date or Late Retirement Date. Notwithstanding the preceding sentence, the Benefits Administration Committee reserves the right to waive, in its discretion, one or more of the requirements of this paragraph on a case by case basis for any Associate age 55 who was participating in a Profit Incentive Compensation program on December 31, 1995.

ERISA : Employee Retirement Income Security Act of 1974, as amended from time to time.

Estimated Social Security Benefit : (1) For purposes of the benefit provided in Paragraph (3) of Article IV the monthly benefit the Eligible Management Associate would receive under the Social Security Act at age 62 based on the following assumptions:

 

  (i) All compensation earned (a) prior to the later of 1951 or the year the Eligible Management Associate attains age 22 or (b) in the year in which the Eligible Management Associate Separates from Service if such separation occurs prior to the last day of the calendar year will be disregarded;

 

  (ii) Earnings for the years prior to the Eligible Management Associate’s employment with the Participating Employer are in the same proportion to the Taxable Wage Base in effect for the prior years as that which the first full year of earnings bore to the Taxable Wage Base in existence at that time;

 

9


  (iii) Earnings are averaged over a number of full calendar years as determined by the following:

 

Year of Birth

   Number of Full
Calendar Years

1925

   31

1926

   32

1927

   33

1928

   34

After 1928

   35

If the Eligible Management Associate’s total calendar years of earnings determined under clauses (i) and (ii) above exceed the number of full years of earnings that are to be averaged based on the year of such Eligible Management Associate’s birth, one or more of the Eligible Management Associate’s lowest years of earnings will be disregarded until his total years of earnings equals the number of full years of earnings that are to be averaged based on the year of such Eligible Management Associate’s birth.

 

  (iv) Social Security indexing factors used are those actually used by the Social Security Administration in determining the Eligible Management Associate’s Social Security benefit, and if those factors are not available, the latest published factors will be used.

 

(2) For Eligible Management Associates who reach Traditional Retirement Age on or prior to August 1, 2000, for purposes of clause (iii) of Subparagraph (b) of Paragraph (1) of Article IV the lesser of the benefit determined under (A) or (B) below:

(A) The product of (a) multiplied by (b) with (a) being the monthly benefit the Eligible Management Associate would receive under the Social Security Act at age 62, or if retirement is later than age 62, the benefit payable at actual retirement, based on the following assumptions:

 

  (i) The benefit is based solely on the compensation earned during the Eligible Management Associate’s calendar years of service and disregarding the Eligible Management Associate’s last calendar year of service if less than a full year and disregarding completely all other years;

 

  (ii) Earnings are averaged over the number of years of actual credited service, as defined in the Pension Plan;

 

  (iii) Social Security indexing factors used are those actually used by the Social Security Administration in determining the Eligible Management Associate’s social security benefit, and if those factors are not available, the latest published factors will be used;

 

  and (b) being a fraction, not exceeding one, the numerator of which is the Eligible Management Associate’s years of credited service, as defined by the Pension Plan and the denominator of which is 30.

 

10


(B) The monthly benefit the Eligible Management Associate would receive under the Social Security Act at age 62, or if retirement is later than age 62, the benefit payable at actual retirement, based on the following assumptions:

 

  (i) All compensation earned (a) prior to the later of 1951 or the year the Eligible Management Associate attains age 22 or (b) in the year in which the Eligible Management Associate Separates from Service if such separation occurs prior to the last day of the calendar year will be disregarded;

 

  (ii) The Eligible Management Associate earned no compensation for calendar years before the Eligible Management Associate was employed by the Participating Employer, which years will be included in the calculation as years of zero earnings;

 

  (iii) Earnings are averaged over a number of full calendar years as determined by the following:

 

Year of Birth

   Number of Full
Calendar Years

1925

   31

1926

   32

1927

   33

1928

   34

After 1928

   35

If the Eligible Management Associate’s total calendar years of earnings determined under clauses (i) and (ii) above exceed the number of full years of earnings that are to be averaged based on year of such Eligible Management Associate’s birth, one or more of the Eligible Management Associate’s lowest years of earnings will be disregarded until his total years of earnings equals the number of full years of earnings that are to be averaged based on the year of such Eligible Management Associate’s birth.

 

  (iv) Social Security indexing factors used are those actually used by the Social Security Administration in determining the Eligible Management Associate’s Social Security benefit, and, if those factors are not available, the latest published factors will be used.

For Eligible Management Associates who reach Traditional Retirement Age after August 1, 2000, for purposes of clause (iii) of Subparagraph (b) of Paragraph (1) of Article IV, Estimated Social Security Benefit shall be determined under (B) above.

Final Service : An Eligible Management Associate’s years of Credited Service plus, if he becomes an Associate of a Controlled Group member that is not a Participating Employer, the years of Service with such Controlled Group Member that are credited to the Associate after he ceases earning Credited Service. Calendar years that include a period of Disability Service will not be included in the determination of Final Service. Calendar years of Service or of Credited Service that are interrupted by a Separation from Service or by one or more years in which the Eligible Management Associate did not receive Compensation for the entire year will be considered to be consecutive for purposes of determining consecutive years of Final Service.

 

11


Human Resources and Compensation Committee : The Human Resources and Compensation Committee of the Board of Directors.

Human Resources Committee : The Human Resources Committee of the Company.

Interest Income Account(s) : The account(s) of that name and any successor account(s) and/or fund(s) established and maintained pursuant to the Savings and Profit-Sharing Retirement Plan and/or the Savings, Profit-Sharing and Stock Ownership Plan.

Late Retirement Date : The first day of the month immediately following the date on which an Eligible Management Associate Separates from Service after having attained Traditional Retirement Age.

Matched Deposits : An Eligible Management Associate’s deposits, not in excess of 6% of his compensation (as defined in the Savings and Profit-Sharing Retirement Plan, the Savings, Profit-Sharing and Stock Ownership Plan and the Mirror Savings Plans), made pursuant to the Savings and Profit-Sharing Retirement Plan, the Savings, Profit-Sharing and Stock Ownership Plan, and the Mirror Savings Plans.

Mirror Savings Plans : The J.C. Penney Corporation Mirror Savings Plan, as amended from time to time.

Parent Company : J. C. Penney Company, Inc., a Delaware corporation, and any successor corporation.

Participating Employer : The Company and any other Controlled Group Member or organizational unit of the Company or of a Controlled Group Member which is designated as a Participating Employer under the Plan by the Human Resources Committee; provided, however, that if such designation would substantially increase the cost of the Plan to the Company, such designation shall be subject to the sole discretion of the Board of Directors.

Payment Commencement Date : The date upon which payment of an Eligible Management Associate’s Plan Benefit is scheduled to begin as determined under Article V, Paragraph 3.

Payment Events : The event set forth in Paragraph 2 of Article V upon which an amount of deferred compensation under this Plan may be paid.

Penney Stock (Company) Account : The account(s) of that name and any successor account(s) and/or fund(s) established and maintained pursuant to the Savings and Profit-Sharing Retirement Plan and/or the Savings, Profit-Sharing and Stock Ownership Plan.

Pension Plan : The J. C. Penney Corporation, Inc. Pension Plan, as amended from time to time.

 

12


Pension Plan Participant : An Associate or former Associate who is treated as a participant under the Pension Plan.

Performance Unit Plan : J. C. Penney Company, Inc. 1984 Performance Unit Plan, as amended from time to time, as in existence prior to February 1, 1998 when terminated effective January 31, 1998.

Plan : Prior to January 27, 2002, the Supplemental Retirement Program for Management Profit-Sharing Associates of J. C. Penney Company, Inc., as amended from time to time, and on and after January 27, 2002, the Supplemental Retirement Program for Management Profit-Sharing Associates of J. C. Penney Corporation, Inc. as amended from time to time.

Plan Benefit: The benefit payable to an Eligible Management Associate on his Early Retirement Date, Traditional Retirement Date or Late Retirement date, determined in accordance with the provisions of Article IV of this Plan, or, where applicable, the qualified preretirement survivor annuity, as defined in Article IV, payable to a Spouse.

Profit Incentive Compensation : The share of store profits to which an Associate is entitled as a store manager or as a member of a store’s management staff; the management incentive compensation to which a management Associate is entitled; the regional or district incentive compensation to which a regional or district office Associate is entitled; and, if so determined by the Human Resources Committee, any other compensation based on profits (excluding any Company contributions to and benefits under the Savings and Profit-Sharing Retirement Plan and Savings, Profit-Sharing and Stock Ownership Plan) to which an Associate of a Participating Employer, or, for the purpose of determining Average Final Compensation only, a Controlled Group Member who is not a Participating Employer, is entitled.

Retirement Date : The first day of the month immediately following the date on which an Eligible Management Associate Separates from Service after having attained Early Retirement Age or Traditional Retirement Age.

Savings, Profit-Sharing and Stock Ownership Plan : The J. C. Penney Corporation, Inc. Savings, Profit-Sharing and Stock Ownership Plan, as amended from time to time.

Separation from Service or Separates from Service : means the date an Eligible Management Associate dies, retires, or otherwise has a termination of employment from the Controlled Group, within the meaning of Code section 409A and Treasury Regulation section 1.409A-1(h), or its successor, taking into account the definition of Controlled Group for such purpose in this Article II, after having attained age 55 and 15 years of Credited Service or age 60.

Service : The period of time credited to an Eligible Management Associate as service under the terms of the Pension Plan.

Single Life Annuity : An annuity with no ancillary benefits, consisting of equal monthly payments beginning as of a designated commencement date and ending with the monthly payment due immediately prior to his death.

 

13


Specified Employee : An Eligible Management Associate who is a “specified employee” within the meaning of Code section 409A, as determined in accordance with the rules specified by the Board of Directors in resolutions dated December 12, 2007.

Spouse : The individual to whom an Eligible Management Associate is legally married under the laws of the State (within the meaning of section 3(10) of ERISA) in which the Eligible Management Associate is domiciled, or if domiciled outside the United States, under the laws of the State of Texas subject to federal legal requirements.

Traditional Retirement Age : The date on which an Eligible Management Associate attains age 60.

Traditional Retirement Date : The first day of the month immediately following the date an Eligible Management Associate attains Traditional Retirement Age if such Eligible Management Associate Separates from Service on such date.

Valuation Date : With respect to the Company Accounts, excluding the Penney Stock (Company) Account, each day of the calendar year. With respect to the Penney Stock (Company) Account(s), each day of a calendar year on which the New York Stock Exchange is open. If the New York Stock Exchange is closed, the Penney Stock (Company) Account(s) will have the same value as of the last immediately preceding day the Exchange was open.

 

14


ARTICLE III. PARTICIPATION

Each Eligible Management Associate shall participate in the Plan as of such Eligible Management Associate’s Early Retirement Date, Traditional Retirement Date, or Late Retirement Date, as the case may be; provided, however, that such Eligible Management Associate who has a Separation from Service in the month of December shall commence participation in the Plan as of the last day of that December. Notwithstanding the preceding sentence, and except as otherwise provided in Paragraph (8) of Article IV, effective on and after January 1, 1996, any Associate who, on December 31, 1995, was not classified as management or who was not in a Profit Incentive Compensation program shall not be considered an Eligible Management Associate and shall not participate in the Plan.

 

15


ARTICLE IV. BENEFITS

An Eligible Management Associate shall be entitled to a Plan Benefit equal to an amount determined as follows:

(1) At Early, Traditional, or Late Retirement Date : The annual amount of benefit payable from the Plan to an Eligible Management Associate commencing on such Eligible Management Associate’s Early Retirement Date, Traditional Retirement Date, or Late Retirement Date, as the case may be, shall be:

(a)  the sum of

 

  (i) 3% of the Eligible Management Associate’s Average Final Compensation multiplied by such Eligible Management Associate’s Credited Service not in excess of 10 years;

plus

 

  (ii) 1% of the Eligible Management Associate’s Average Final Compensation multiplied by such Eligible Management Associate’s Credited Service in excess of 10 years but not in excess of 30 years;

plus

 

 

(iii)

 1 / 2 of 1% of the Eligible Management Associate’s Average Final Compensation multiplied by such Eligible Management Associate’s Credited Service in excess of 30 years but not in excess of 40 years;

less

 

 

(iv)

 1 / 3 of 1% for each month by which the Eligible Management Associate’s Early Retirement Date shall precede such Eligible Management Associate’s Traditional Retirement Date multiplied by the Eligible Management Associate’s Average Final Compensation;

less

(b)  the sum of

 

  (i) the single-life, no-death-benefit annuity equivalent of (a) the annual amount of pension payable pursuant to the Pension Plan (disregarding Disability Service) assuming that the Eligible Management Associate’s Benefit Commencement Date is the first day of the month immediately following the date of such Eligible Management Associate’s Separation from Service, (b) the amount payable pursuant to the terms of a domestic relations order qualified under Code Section 414(p), (A) from the Pension Plan and (B) from benefits accrued pursuant to Section 4.1 of the Benefit Restoration Plan and (c) the accrued benefit payable pursuant to Section 4.1 of the Benefit Restoration Plan;

plus

 

  (ii) the single-life, no-death-benefit annuity equivalent, as of the Valuation Date which is the next trading date of the New York Stock Exchange following the Eligible Management Associate’s Separation from Service, of

 

  (a) the value of all assets allocated to the Eligible Management Associate in the Company Account(s) under the Savings, Profit-Sharing and Stock Ownership Plan, including such assets allocated to him under the Savings and Profit-Sharing Retirement Plan prior to January 1, 1999; and

 

16


  (b) the value of any additional assets which would have been allocated to the Eligible Management Associate’s Company Account(s) under the Savings and Profit-Sharing Retirement Plan, the Savings, Profit-Sharing and Stock Ownership Plan, and the Mirror Savings Plans, had such Eligible Management Associate made all further permissible Matched Deposits up to 6% of his compensation (as such term is defined in each said plan) under each said plan and had he not made any withdrawals of taxed Matched Deposits from the plans prior to January 1, 1989; and

 

  (c) the value of dividends attributable to units in his Company Account (within the meaning of the Savings, Profit-Sharing and Stock Ownership Plan) and distributed to the Eligible Management Associate pursuant to Section 9.04 of the Savings, Profit-Sharing and Stock Ownership Plan; and

 

  (d) the value of any amounts payable pursuant to the terms of a domestic relations order qualified under Code Section 414(p) out of such Eligible Management Associate’s Company Account(s) from the Savings, Profit-Sharing and Stock Ownership Plan and/or the Mirror Savings Plan; and

 

  (e) the value of benefits payable to the Eligible Management Associate (or another person on behalf of the Eligible Management Associate from (A) his annual benefit limit make-up account pursuant to paragraph (2) of Article IV of the Benefit Restoration Plan prior to January 1, 1999, and (B) his Company Accounts under the Mirror Savings Plan;

plus

 

 

(iii)

50% (less  1 / 4 of 1% for each month by which the Eligible Management Associate’s Early Retirement Date shall precede such Eligible Management Associate’s Traditional Retirement Date) of the Eligible Management Associate’s Estimated Social Security Benefit;

plus

 

  (iv) to the extent permitted by Code section 409A, in the case of an Eligible Management Associate whose Credited Service is increased pursuant to Paragraph (1) of Article VIII, the amount of annual retirement benefit (or any commutations thereof or substitutions therefrom) payable to an Eligible Management Associate from any other employer, but only to the extent determined by the Benefits Administration Committee, expressed in the form of a single-life, no-death-benefit annuity equivalent (as determined by the Benefits Administration Committee), commencing on such Eligible Management Associate’s Separation from Service. The dollar amount of any reduction under this clause (iv) shall be determined by the Benefits Administration Committee at the time of the Credited Service increase under Paragraph (1) of Article VIII.

 

17


In determining the amount referred to in clause (ii) of subparagraph (b) of this Paragraph (1) of this Article IV, it shall be deemed that:

 

  (i) an Eligible Management Associate who has not, at all times when he was eligible to participate in the Savings, Profit-Sharing and Stock Ownership Plan and the Mirror Savings Plan, contributed an amount sufficient to share, to the maximum extent, in the Company contribution to such Plan or such predecessor plan has so contributed and that an Eligible Management Associate who did not share, to the maximum extent, in Company contributions for which he was eligible under the Savings and Profit-Sharing Retirement Plan due to any withdrawal of taxed Matched Deposits, be deemed not to have any such withdrawal;

 

  (ii) the share of any such Company contribution deemed to have been credited to an Eligible Management Associate pursuant to this Paragraph for plan years ending before January 1, 1989 shall be deemed to have experienced the same rate of dividends, earnings, and change in value as the actual rate of dividends, earnings, and change in value experienced by the Penney Stock (Company) Account under the Savings and Profit-Sharing Retirement Plan from the time such share of a Company contribution is deemed to have been credited for said plan years and that the value of this said amount as of December 31, 1988 under the Savings and Profit-Sharing Retirement Plan, plus the share of any such Company contribution deemed to have been credited to an Eligible Management Associate pursuant to this Paragraph for plan years beginning after December 31, 1988 shall be deemed to have experienced the same rate of earnings and change in value experienced by the Interest Income Account under the Savings, Profit-Sharing and Stock Ownership Plan from the time such share of a Company contribution is deemed to have been credited for said plan years;

 

  (iii) the value of the amount of the Company Account(s) and annual limit make-up account paid out pursuant to a domestic relations order qualified under Section 414(p) of the Code deemed to have been credited to an Eligible Management Associate pursuant to this Paragraph shall be deemed to have experienced the same rate of earnings and change in value experienced by the Interest Income Account under the Savings, Profit-Sharing and Stock Ownership Plan from the time such amount is deemed to have been credited; and

 

  (iv) the rates used to determine the single-life, no-death-benefit annuity equivalent shall be determined in accordance with the Applicable Interest Rate and Applicable Mortality Table.

 

18


(2) Minimum Benefit : In no event will the amount payable to an Eligible Management Associate under Paragraph (1) of this Article IV at such Eligible Management Associate’s Traditional Retirement Date or Late Retirement Date, as the case may be, be less than the difference between:

 

  (A) the amount of pension payable pursuant to the early retirement pension benefit provision of the Pension Plan (determined without regard to any compensation or benefit limits imposed by the Code) that would be applicable if the Eligible Management Associate elected to receive benefits pursuant to that provision prior to such Eligible Management Associate’s normal retirement date, as defined in the Pension Plan (disregarding Disability Service, if any, and including as Credited Service any increase granted under Article VIII hereof) assuming the Eligible Management Associate’s Benefit Commencement Date is the first day of the month immediately following the day of such Eligible Management Associate’s Separation from Service under this Plan, and

 

  (B) the amount of pension payable pursuant to the early retirement pension benefit provision of the Pension Plan (determined without regard to any compensation or benefit limits imposed by the Code) that would be applicable if the Eligible Management Associate did not elect to receive benefits pursuant to that provision prior to the Eligible Management Associate’s normal retirement date, as defined in the Pension Plan (disregarding Disability Service, if any, and including as Credited Service any increase granted under Article VIII hereof).

In no event will the amount payable under Paragraph (1) of this Article IV to an Eligible Management Associate who:

 

  (a) Separates from Service on his Early Retirement Date within one year prior to his Traditional Retirement Date and who is granted additional Credited Service pursuant to Paragraph (1) of Article VIII at his Early Retirement Date, or

 

  (b) Separates from Service because of a unit closing, job restructuring, or reduction in force and is designated as an individual termination by the Chief Human Resources and Administration Officer of the Company, or his delegate or successor, in accordance with Paragraph (1) of Article VIII and who is granted deemed additional months of Credited Service thereunder

be less than the difference between:

(A) the amount of pension that would be payable (determined without regard to any compensation or benefit limits imposed by the Code) at such Eligible Management Associate’s normal retirement date, as defined by the Pension Plan (disregarding Disability Service, if any, and including as Credited Service, as defined by the Pension Plan, any increase granted under Article VIII hereof), and

(B) the amount of pension payable pursuant to the early retirement pension benefit provision of the Pension Plan (determined without regard to any compensation or benefit limits imposed by the Code) that would be applicable if the Eligible

 

19


Management Associate elected to receive benefits pursuant to that provision prior to such Eligible Management Associate’s normal retirement date, as defined by the Pension Plan (disregarding Disability Service, if any, and excluding as Credited Service any increase granted under Article VIII hereof) assuming the Eligible Management Associate’s Benefit Commencement Date is the first day of the month following such associate’s Separation from Service, but in no event prior to the date such associate reaches age 59.

(3) Social Security Make-up : In addition to any other benefit payable under this Plan, a benefit equal to the Estimated Social Security Benefit shall be payable in to an Eligible Management Associate commencing on such Eligible Management Associate’s Traditional Retirement Date or Late Retirement Date up to age 62, as the case may be, (or, for an Eligible Management Associate who Separates from Service within one year prior to his Traditional Retirement Date and who is granted any adjustment pursuant to either clause (i) or (ii) of Paragraph (1) of Article VIII, on his Early Retirement Date).

An Eligible Management Associate, who, on his Separation from Service, is entitled to disability benefits under the United States Social Security laws, shall not be eligible for any Social Security make-up benefits provided for in this paragraph.

(4) Death Benefit : For purposes of the benefit provided by Paragraphs 1 and 2 of Article IV, if an Eligible Management Associate who has a vested interest in his benefit is married at the time such Eligible Management Associate has a Separation from Service by reason of death, the Eligible Management Associate’s Spouse will receive a benefit in the form of five equal annual installments commencing as of the first day of the month after the Eligible Management Associate’s death. The amount of such death benefit will be calculated to be Actuarially Equivalent by reference to the Single Life Annuity that would be payable to the Spouse as a “qualified preretirement survivor annuity” based on the Eligible Management Associate’s Plan Benefit in Paragraphs 1 and 2 of Article IV and such amount will be adjusted to reflect payment over five years in the manner described in Paragraph 1 of Article V. For these purposes, a “qualified preretirement survivor annuity” means a monthly annuity for the life of the Spouse of a deceased Eligible Management Associate equal to the monthly annuity that the Spouse would have received under a qualified joint and survivor annuity, with the survivor annuity being equal to 100% of the amount of the monthly annuity payable during the joint lives of the Eligible Management Associate and his Spouse if the Eligible Management Associate dies on or after the day he attains Early Retirement Age or Traditional Retirement Age. The calculation of the qualified joint and survivor annuity shall be determined by reference to the factors used under Exhibit E to Appendix I to the Pension Plan, or its successor. No benefit under this Plan will be payable to a single Eligible Management Associate who has a Separation from Service due to death.

If a Eligible Management Associate who has a Separation from Service (other than by death) and who is either married or single at the time of his subsequent death dies before payment of his vested benefit has begun under the Plan, the Eligible Management Associate’s Beneficiary will receive the benefit in the form of five equal annual installments equal to the amount that would have been payable under Paragraph 1 of Article V and at the same time that the Participant would have received his benefit under Paragraphs (3) and (4) of Article V. If no Beneficiary has been designated by such an Eligible Management Associate, the Beneficiary will be deemed to be the Spouse for a married Eligible Management Associate and the estate for a single Eligible Management Associate.

 

20


In the event of the death of an Eligible Management Associate after his benefit has commenced and before all installments have been paid, the remaining unpaid installments shall be paid to his Beneficiary in accordance with the payment schedule of the Eligible Management Associate.

(5) Life Insurance Coverage : Commencing on an Eligible Management Associate’s Traditional Retirement Date or Late Retirement Date, as the case may be, and ending on such Eligible Management Associate’s attainment of age 70, the Company will continue to provide an Eligible Management Associate who has at least 10 years of uninterrupted employment with a Participating Employer with term life insurance coverage at Company expense on a decreasing coverage basis.

The amount of coverage to be provided into retirement shall be equal, at such Eligible Management Associate’s Traditional Retirement Date, to 100% of the amount of coverage being provided to him at Company expense immediately prior to the attainment of his Traditional Retirement Age reduced to 90%, 80%, 70%, 60%, 50%, 40%, 30%, 20%, and 10% of such amount of coverage on the first day of the month following his attainment of age 61, 62, 63, 64, 65, 66, 67, 68, and 69, respectively.

The amount of coverage to be provided at a Late Retirement Date shall be the applicable percentage based upon the Eligible Management Associate’s age on such Late Retirement Date multiplied by the amount of coverage being provided to him at Company expense immediately prior to his Late Retirement Date and decreasing thereafter as provided in the preceding sentence.

If, on the Eligible Management Associate’s Traditional Retirement Date or Late Retirement Date, as the case may be, such Eligible Management Associate is already covered by term life insurance under the Company’s term life insurance plan on account of the Eligible Management Associate’s total disability, such Eligible Management Associate shall not be eligible for any term life insurance coverage provided for in this paragraph. Benefits payable under this Plan will be paid to the beneficiary designated by the Eligible Management Associate as soon as practicable after receipt of a properly submitted claim.

An Eligible Management Associate whose group term life insurance coverage under the Plan terminates because of his attainment of age 70 will have the right to convert his group term life insurance coverage to an individual policy to the extent, and only to the extent, permitted under the group policy applicable to the Eligible Management Associate. Any election to convert to individual coverage must be made within 31 days after the Eligible Management Associate’s coverage under the Plan terminates and must be made in accordance with all requirements specified in such policy. The amount of coverage that may be converted shall be the amount in effect immediately before the Eligible Management Associate attained age 70.

 

21


(6) Change in Control Plan . If the Board of Directors exercises its discretion under Paragraph (11) of Article VIII, to terminate the Plan because of a Change in Control (as defined in Paragraph 11(c)) and an Eligible Management Associate is a participant in the J.C. Penney Corporation, Inc. Change in Control Plan (“Change in Control Plan”), that Eligible Management Associate’s interest in his Plan Benefit will become 100% vested and nonforfeitable without regard to his years of service or age. If a Eligible Management Associate who is also a participant in the Change in Control Plan has an “employment termination” following a “change in control” as those terms are defined in the Change in Control Plan, his interest in his Plan Benefit will become 100% vested and nonforfeitable without regard to his years of service or age; and his Plan Benefit under Paragraph (1) of Article IV will be determined by using his “employment termination” date as his early retirement date.

 

22


ARTICLE V. FORM AND COMMENCEMENT OF BENEFIT PAYMENTS

(1) Form of Benefit Payments . Except as otherwise provided in this Plan, benefits will be paid in the form of five equal annual installments. The present value of such installments will be equal to the Actuarially Equivalent amount determined under Article II. For an Eligible Management Associate who has a Separation from Service after the Effective Date, the amount of such annual installments will be calculated by using only the adjusted first segment rate of the Applicable Interest Rate, determined with regard to the 2008 through 2011 phase-in provisions of Code section 417(e)(3)(D)(iii). For an Eligible Management Associate who has a Separation from Service prior to the Effective Date, the amount of such annual installments will be calculated by using the Applicable Interest Rate that applies to such Eligible Management Associate. The lookback and stability periods set forth in the definition of Applicable Interest Rate will apply in determining the adjustment.

(2) Payment Events . The Payment Event for an Eligible Management Associate will be the later of (i) Separation from Service or (ii) January 1, 2008; provided, however, that if a Specified Employee’s Separation from Service (other than by reason of death) occurs prior to January 1, 2008, and the date of such Separation from Service plus six months is after January 1, 2008, Separation from Service will be the deemed Payment Event for such a Specified Employee.

(3) Payment Commencement Date . The Payment Commencement Date for a Eligible Management Associate (including a Specified Employee) whose Payment Event under Paragraph 2 of this Article V is Separation from Service will be the first day of the month following the date of his Separation from Service; provided, however, that the actual time of the first payment to a Specified Employee will be determined in accordance with the provisions of Paragraph 4 of Article V. For all other Eligible Management Associates, the Payment Commencement Date for benefits under Paragraph 1 of Article IV will be January 1, 2008, or as soon as practicable thereafter, but no later than the time required for payment under Treasury Regulation section 1.409A-3(d), or its successor. Subsequent installments for all Eligible Management Associates, including Specified Employees, will be paid on the first through fourth anniversaries of the Payment Commencement Date.

The Payment Commencement Date in the case of a death benefit will be determined under Paragraph 4 of Article IV. For an alternate payee, the Payment Commencement Date will be the applicable commencement date as provided in a domestic relations order that conforms with the requirements of Code section 409A and Treasury regulation section 1.409A-3(j)(4)(ii), or its successor.

(4) Delay for Specified Employees . If an Eligible Management Associate is a Specified Employee as of the date of his Separation from Service and his Payment Event is Separation from Service (other than by reason of death), payment will not be made before the date that is six months after the date of Separation from Service. The first payment to such a Specified Employee will be paid on the first day of the seventh month following the date of Separation from Service. The initial installment payment to a Specified Employee whose Separation from Service occurs after December 31, 2007, will include an interest adjustment. Such adjustment will be calculated by using only the adjusted first segment rate of the Applicable Interest Rate, determined with regard to the 2008 through 2011 phase-in provisions of Code section 417(e)(3)(D)(iii). The

 

23


lookback and stability periods set forth in the definition of “Applicable Interest Rate” will apply in determining the adjustment. Notwithstanding the foregoing, no interest will be paid to a Specified Employee whose Separation from Service occurs before January 1, 2008. If a Specified Employee dies after a Separation from Service but prior to the expiration of the six-month delay, benefit payments under Article IV will commence to the Beneficiary in accordance with the provisions of Paragraph 4 of Article IV.

(5) Subsequent Changes in Time and Form of Payment . No Eligible Management Associate can make a subsequent election to delay a payment or change the form of payment.

(6) Prohibition on Acceleration of Payment . Except as provided in Code section 409A, Treasury regulation section 1.409A-3(j)(4) or its successor, this Paragraph 6 and Paragraph 7 of this Article, and Paragraph 11 of Article VIII, neither the Eligible Management Associate nor the Company can accelerate the time or schedule of any payment or amount scheduled to be paid pursuant to the terms of the Plan. The Benefits Administration Committee will have the discretion to accelerate payments in accordance with the provisions of Code section 409A and Treasury Regulation section 1.409A-3(j)(4), or its successor (provided that only the Board of Directors of the Parent Company will have the discretion to accelerate payments in accordance with the provisions of Treasury Regulation section 1.409A-3(j)(4)(ix) or its successor).

(7) Limited Cashouts . If the present value, as determined herein, of an Eligible Management Associate’s or Beneficiary’s benefit under Article IV when combined with the present value of an Eligible Management Associate’s or Beneficiary’s interest in any other agreements, methods, programs, or other arrangements with respect to which deferrals of compensation are treated as having been deferred under a single nonqualified deferred compensation plan under Code section 409A and Treasury Regulation section 1.409A-1(c)(2), or its successor, is equal to or less than the applicable dollar amount under Code section 402(g)(1)(B), in effect for the year of distribution, the Benefits Administration Committee of the Company will distribute the benefit in the form of an immediate lump sum payment that is the Actuarial Equivalent of such vested Plan Benefit on the Payment Commencement Date (or, if applicable, the date specified in Paragraph 4 of this Article), provided that the Eligible Management Associate is not also a participant in the Mirror Savings Plan, or its successor, and the payment results in the termination and liquidation of the entirety of the Eligible Management Associate’s interest under this Plan and all other agreements, methods, programs, or other arrangements aggregated with this Plan and is in accordance with Treasury regulation section 1.409A-3(j)(4)(v), or its successor. In the case of a Specified Employee, the benefit will be paid at the time specified in Paragraph 4 of this Article V, with the comparable adjustment for interest as described in Paragraph 4 of this Article.

(8) Delta Benefit . In the event an Eligible Management Associate receives a cash incentive award under the Management Incentive Compensation Plan after payment of his benefit has begun, such Eligible Management Associate shall receive a “delta benefit” equal to the present value of any incremental increase in the Eligible Management Associate’s Plan Benefit attributable to such cash incentive award. Such determination will be made as of the original payment

 

24


commencement date. Such delta benefit shall be payable as a lump sum no later than two and   1 / 2 months following the Plan Year in which the Eligible Management Associate’s right to such cash incentive award is no longer subject to a substantial risk of forfeiture under Treasury Regulation section 1.409A-1.

 

25


ARTICLE VI. ADMINISTRATION

The Benefits Administration Committee will administer the Plan and will have the full authority and discretion to accomplish that purpose, including without limitation, the authority and discretion to:

 

  (i) interpret the Plan in accordance with Code section 409A and correct any defect, supply any omission or reconcile any inconsistency or ambiguity in the Plan in the manner and to the extent that the Benefits Administration Committee deems desirable to carry on the purpose of the Plan;

 

  (ii) resolve all questions relating to the eligibility of Associates to become Eligible Management Associates and the eligibility of Eligible Management Associates to participate in the Plan;

 

  (iii) determine the amount of benefits payable to Eligible Management Associates and authorize and direct the Company with respect to the payment of benefits under the Plan;

 

  (iv) make all other determinations and resolve all questions of fact necessary or advisable for the administration of the Plan; and

 

  (v) make, amend, and rescind such rules as it deems necessary for the proper administration of the Plan.

The Benefits Administration Committee will keep a written record of its action and proceedings regarding the Plan and all dates, records, and documents relating to its administration of the Plan.

Any action taken or determination made by the Benefits Administration Committee will be conclusive on all parties. No member of the Benefits Administration Committee will vote on any matter relating specifically to such member. In the event that a majority of the members of the Benefits Administration Committee will be specifically affected by any action proposed to be taken (as opposed to being affected in the same manner as each other Eligible Management Associate in the Plan), such action will be taken by the Human Resources Committee.

 

26


ARTICLE VII. TYPE OF PLAN

The Plan is a plan which is unfunded. The Plan is maintained by the Company primarily for the purpose of providing deferred compensation for a select group of management or highly compensated employees. The Plan shall be construed according to the provisions of ERISA applicable to such plans. Benefits under the Plan (other than the life insurance benefits referred to in Paragraph (5) of Article IV which may be insured) are paid from the general assets of the Company.

In the event that it should subsequently be determined by statute or by regulation or ruling that the Plan is not “a plan which is unfunded and is maintained primarily for the purpose of providing deferred compensation for a select group of management or highly compensated employees” within the meaning of sections 201(2), 301(a)(3), 401(a)(1), and 4021(b)(6) of ERISA and section 2520.104-24 of Chapter 29 of the Code of Federal Regulations, participation in the Plan shall be restricted by the Benefits Administration Committee to the extent necessary to assure that it will be such a plan within the meaning of such sections.

 

27


ARTICLE VIII. MISCELLANEOUS

(1) Additional Credited Service and Other Adjustments : Any adjustment under this Paragraph (1) to a benefit subject to Code section 409A shall be made only to the extent permitted by Code section 409A.

For all purposes of the Plan, the Credited Service of an Eligible Management Associate may be increased, and with respect to an Eligible Management Associate whose Early Retirement Date is within one year prior to his Traditional Retirement Date, (i) the percentage reduction on account of early retirement referred to in clause (iv) of Subparagraph (a) of Paragraph (1) of Article IV may be decreased or waived, and (ii) the entitlement to and the amount of benefits or coverage referred to in Paragraphs (2), (3), and (5) of Article IV may be adjusted or increased, as the case may be, in the discretion of:

(a) in the case of an Eligible Management Associate other than members of the Company’s executive or senior management committee (or a successor committee then in place) described in Subparagraphs (b) and (c) of this Paragraph (1), the Chairman of the Board or the Chief Human Resources Officer;

(b) in the case of an Eligible Management Associate who is a member of the Company’s executive or senior management committee but who is not a director of the Company, the Human Resources and Compensation Committee; and

(c) in the case of the Chairman of the Board and an Eligible Management Associate who is a member of the Company’s executive or senior management committee and who is also a director of the Company, the Board of Directors.

For purposes of a unit closing, job restructuring or reduction in force, the Chief Human Resources and Administration Officer of the Company, or his delegate or successor, may in his discretion, make adjustments in Credited Service, Service and/or Age, but in no event shall this discretion allow for an amount of the benefit to be less than the Eligible Management Associate would have otherwise received under Article IV. A unit closing, job restructuring or reduction in force shall be determined by the Company entitling the Eligible Management Associate to severance pay under the Company’s then existing Separation Pay Plan.

For the purpose of determining life insurance coverage under paragraph (5) of Article IV, an Eligible Management Associate deemed to have attained Traditional Retirement Age shall be entitled to coverage effective on the first day of the month following his Separation from Service. The amount of such coverage shall be equal to 100% of the amount being provided to him at Company expense immediately prior to his Separation from Service. Said amount shall be reduced in accordance with paragraph (5) of Article IV starting with the first day of the month following his attainment of age 61.

 

28


(2) Amendment and Termination :

(a) The Human Resources and Compensation Committee may amend or modify the Plan at any time, without prior notice; provided, however, that any such amendment or modification which would substantially increase the cost of the Plan to the Company shall require approval of the Board of Directors. The Board of Directors may suspend, discontinue, or terminate and liquidate the Plan at any time without prior notice or approval. Any termination and liquidation of the Plan, including any termination and liquidation of the Plan upon a Change in Control (as defined in Paragraph 11(c) of Article VIII), must comply with the provisions of Code section 409A and Treasury Regulation section 1.409A-3(j)(4)(ix), or its successor. Subject to the foregoing, in no event will any amendment, modification, suspension, discontinuance, or termination adversely affect existing life insurance coverage for retirees or the Plan benefit for any Eligible Management Associate for whom benefit payments have already begun in accordance with the Plan as in effect prior to the effective date of the amendment, modification, suspension, discontinuance, or termination unless otherwise required to comply with applicable law.

(b) For the purpose of termination of the Plan under this paragraph only, the Eligible Management Associate will be deemed to have had a Separation from Service in order to calculate the Plan Benefit, and the amount of the distribution shall be the Actuarial Equivalent of the Plan Benefit. In calculating the Plan Benefit, the date of the deemed Separation from Service will be the actual date of the Plan termination.

(i) If the Plan is terminated, any Eligible Management Associate who, as of the effective date of Plan termination, has reached Traditional Retirement Age but who has not reached age 65 shall be entitled to receive, at his deemed Separation from Service as defined in Paragraph 2(b) of this Article VIII the benefits, if any, to which he would have been entitled under Paragraph (1) or (2) or (3) of Article IV, had he Separated from Service on the day before the effective date of Plan termination.

(ii) If the Plan is terminated, any Eligible Management Associate who, as of the effective date of Plan termination, has reached his Early Retirement Date (assuming a Separation from Service on such date) shall be entitled to receive, at his deemed Separation from Service as defined in Paragraph 2(b) of this Article VIII, the benefits, if any, to which he would have been entitled under Paragraph (1) or (2) or (3) of Article IV calculated as if he had reached his Traditional Retirement Age and Separated from Service on the day before the effective date of Plan termination and disregarding the percentage reduction on account of early retirement referred to in clause (iv) of Subparagraph (a) of Paragraph (1) of Article IV.

(iii) If the Plan is terminated, any Associate who, as of the effective date of Plan termination (a) has reached age 50, (b) has 10 or more years of credited service, as defined by the Pension Plan, and (c) would have been an Eligible Management Associate but for his age or service, and (d) is not otherwise eligible for benefits under this Paragraph (2) of this Article VIII, shall be entitled to receive, at his deemed Separation from Service as defined in Paragraph 2(b) of this Article VIII, a benefit equal to the difference between the amount of pension which would be payable pursuant to the early retirement pension benefit provision of the Pension Plan that would be applicable if the Eligible Management Associate elected to receive benefits pursuant to that provision prior to his normal retirement date, as defined in the Pension Plan (disregarding Disability Service, if any) and the amount of pension payable pursuant to the early retirement pension benefit provision of the Pension Plan that would be applicable if the Eligible

 

29


Management Associate did not elect to receive benefits pursuant to that provision prior to his normal retirement date, as defined in the Pension Plan (disregarding Disability Service, if any) reduced by the percentage derived by dividing the number of months of Credited Service, if any, after Traditional Retirement Date (assuming a separation from Service) by 60.

(c) In no event will any future amendment or modification of the Plan adversely affect the right to Plan benefits which vest on Plan termination as set forth in this Paragraph (2) without the consent of at least 75 percent of the affected Eligible Management Associates unless such amendment or modification is specifically required to comply with applicable law.

(d) Each amendment to the Plan by the Human Resources and Compensation Committee or the Board of Directors will be made only pursuant to unanimous written consent or by majority vote at a meeting. Upon such action by the Human Resources and Compensation Committee or the Board of Directors, the Plan will be deemed amended as of the date specified as the effective date by such action or in the instrument of amendment. The effective date of any amendment may be before, on, or after the date of such action of the Human Resources and Compensation Committee or the Board of Directors.

(3) Rights of Associates : Except for the Associate’s non-forfeitable interest as set forth in Paragraph (2) of this Article VIII, neither the establishment of the Plan nor any action thereafter taken by the Company or any Controlled Group Member or by the Benefits Administration Committee shall be construed as giving to any Associate any vested right to a benefit from the Plan or a right to be retained in employment or any specific position or level of employment with the Company, or any Controlled Group Member. Moreover, no Associate shall have any right or claim to any benefits under this Plan if the Associate is summarily dismissed as defined by the Company’s policies and procedures (including resignation in lieu thereof), unless the Benefits Administration Committee in its discretion determines that such Associate shall be eligible for such benefits notwithstanding such summary dismissal.

(4) Mistaken Information : If any information upon which an Eligible Management Associate’s benefit under the Plan is calculated has been misstated by the Eligible Management Associate or is otherwise mistaken, such benefit shall not be invalidated (unless upon the basis of the correct information the Eligible Management Associate would not have been entitled to a benefit), but the amount of the benefit shall be adjusted to the proper amount determined on the basis of the correct information and, to the extent permitted by Section 409A any overpayments shall be charged against future payments to the Eligible Management Associate or his beneficiary or otherwise required to be repaid by the recipient.

(5) Liability : Neither the Board of Directors (including any committees thereof) or Board of Directors of the Company or of any Participating Employer nor any member of the Benefits Administration Committee or the Human Resources Committee nor any person to whom any of them may delegate any duty or power in connection with administering the Plan shall be personally liable for any action or failure to act with respect to the Plan.

 

30


(6) Benefits for Reemployed Eligible Management Associates : If a retired Eligible Management Associate subsequently is reemployed by a Participating Employer, the payment of benefits hereunder shall continue. Any life insurance coverage in effect pursuant to Paragraph (5) of Article IV shall cease effective on the date a rehired (whether or not participating in a Profit Incentive Compensation program) Associate becomes eligible for coverage under the Company’s term life insurance plan. Upon such Associate’s subsequent Separation from Service he shall be entitled to receive applicable benefits, if any, under Article IV reduced by prior payments from this Plan pursuant to uniform rules approved by the Benefits Administration Committee.

(7) Construction : In determining the meaning of any provision of the Plan, words imparting the masculine gender shall include the feminine and the singular shall include the plural, unless the context requires otherwise. Headings of paragraphs and Articles in the Plan are for convenience only and are not intended to modify or affect the meaning of the substantive provisions of the Plan.

(8) Non-assignability of Benefits : The benefits payable hereunder or the right to receive future benefits under the Plan may not be anticipated, alienated, pledged, encumbered, or subjected to any charge or legal process, and if any attempt is made to do so, or a person eligible for any benefits becomes bankrupt, the interest under the Plan of the person affected may be terminated by the Benefits Administration Committee which, in its sole discretion, may cause the same to be held or applied for the benefit of one or more of the dependents of such person or make any other disposition of such benefits that it deems appropriate, in all events subject to the requirements of Code section 409A.

(9) Governing Law : Except to the extent that the Plan may be subject to the provisions of ERISA, the Plan will be construed and enforced according to the laws of the State of Texas, without giving effect to the conflict of laws principles thereof. Except as otherwise required by ERISA, every right of action by an Associate, former Associate, or beneficiary with respect to the Plan shall be barred after the expiration of three years from the date of Separation of Service of the Eligible Management Associate or the date of receipt of the notice of denial of a claim for benefits, if earlier. In the event ERISA’s limitations on legal actions do not apply, the laws of the State of Texas with respect to limitations of legal actions shall apply and the cause of action must be brought no later than four years after the date the action accrues.

(10) Transferred Eligible Management Associates : In the event of the transfer of an Eligible Management Associate after December 31, 1995 from a Participating Employer to a “non-participating employer” as defined below, said Eligible Management Associate shall continue to be eligible to participate in this Plan in accordance with Article III.

In the event of the transfer of an Eligible Management Associate on or after March 8, 1995 but on or before December 31, 1995 to a non-participating employer, said Eligible Management Associate will continue to be eligible to participate in this Plan in accordance with Article III provided that on December 31, 1995 the Eligible Management Associate (a) is in the employ of the non-participating employer and (b) is not eligible to participate in the Supplemental Retirement Program for Eligible Management Associates of JCPenney Financial Services.

The Service and Compensation of the Eligible Management Associate with the non-participating employer shall be recognized as attributable to a Participating Employer to the

 

31


extent permitted by the Plan in determining benefits under the Plan. A non-participating employer shall mean a participating employer in the Supplemental Retirement Program for Eligible Management Associates of JCPenney Financial Services.

Notwithstanding the foregoing provisions of this Paragraph (10), an entity that ceases to be a member of the Controlled Group immediately after the Closing (as such term is defined in Paragraph (8) of Article IV) will not be a “non-participating employer” for any purpose of this Plan.

(11) Change in Control :

(a) Authority of the Board of Directors . Upon a Change in Control as defined in Paragraph 11(c) of this Article VIII, the Board of Directors of the Parent Company will have the discretion and the authority to (i) terminate and liquidate the Plan pursuant to its irrevocable action taken within the 30 days preceding or the 12 months following a Change in Control and in accordance with Code section 409A, and Treasury Regulation section 1.409A-3(j)(4)(ix)(B), or its successor (in which event the benefit of each Eligible Management Associate who is also a participant in the Change In Control Plan will automatically vest as provided in Article IV, Paragraph 7); (ii) fund a grantor trust in accordance with the provisions of Paragraph 11(b) of this Article VIII; or (iii) provide that each Eligible Management Associate’s benefit in the Plan will become 100% vested and nonforfeitable as of the date of the Change in Control.

(b) Grantor Trust . To the extent permitted by Code section 409A and the regulations thereunder, the Board of Directors will have the discretion and the authority to transfer assets of the Parent Company, in an amount sufficient to pay benefits that have accrued under the Plan up to the date of the Change in Control Event, to a grantor trust to be established by the Parent Company for the purpose of paying benefits hereunder; and the Eligible Management Associate’s vested benefits shall thereafter be paid to the Eligible Management Associate from such trust in accordance with the terms of the Plan. On each anniversary date the Change of Control, the Company shall transfer, to the extent permitted by Code section 409A and the regulations thereunder, to the grantor trust an amount necessary to pay all benefits accrued under the Plan during the preceding twelve months.

(c) Change in Control Event . For the purpose of determining whether a Change in Control has occurred with respect to a Eligible Management Associate, a Change in Control means a change in control within the meaning of Code section 409A and Treasury Regulation

 

32


section 1.409A-3(i)(5), or its successor, including a change in the ownership of the corporation, a change in the effective control of the corporation, or a change in the ownership of a substantial portion of the assets of the corporation. For this purpose, “corporation” has the meaning given in Treasury Regulation section 1.409A-3(i)(5)(ii), or its successor.

ARTICLE IX. CLAIMS PROCEDURES

If an Associate, or an authorized representative of an Associate, does not receive the benefits which he believes he is entitled to receive under the Plan, he may file a claim for benefits with the Benefits Administration Committee or its delegate. All claims will be made in writing no later than the time prescribed by Treasury Regulation section 1.409A-3(g), or its successor, and will be signed by the claimant or the claimant’s authorized representative. If the claimant does not furnish sufficient information to determine the validity of the claim, the Benefits Administration Committee or its delegate will advise the claimant in writing of any additional information that is required.

Each claim will be approved or disapproved by the Benefits Administration Committee or its delegate within 60 days following the receipt of the information necessary to process the claim, unless special circumstances require an extension of the time for processing, in which case a decision will be rendered as soon as possible but not later than 120 days after receipt of the information necessary to process the claim. Notice of the extension must be provided to the claimant or the claimant’s authorized representative before the expiration of the original 60-day period and indicate the special circumstances requiring the extension of time and the date by which the Plan expects to make a determination.

In the event the Benefits Administration Committee or its delegate denies a claim for benefits in whole or in part, the Benefits Administration Committee or its delegate will notify the claimant in writing of the denial of the claim. Such notice by the Benefits Administration Committee or its delegate will also set forth, in a manner calculated to be understood by the claimant, the specific reasons for such denial, the specific Plan provisions on which the denial is based, and a description of any additional material or information necessary to perfect the claim, with an explanation of why such material or information is necessary and an explanation of the Plan’s claim review procedure as set forth below.

A claimant may appeal a denial of his claim by requesting a review of the decision by the Benefits Administration Committee or a person designated by the Benefits Administration Committee, which person will be a named fiduciary under Section 402(a) (2) of ERISA for purposes of this Article IX. An appeal must be submitted in writing within 60 days after the denial and must (i) request a review of the claim for benefits under the Plan; (ii) set forth all of the grounds upon which claimant’s request for review is based and any facts, documents, records, or other information in support thereof; and (iii) set forth any issues or comments which the claimant deems pertinent to the appeal.

The Benefits Administration Committee or the named fiduciary designated by the Benefits Administration Committee will make a full and fair review of each appeal and any written materials submitted in connection with the appeal, without regard to whether the information was submitted under the initial claim determination. The Benefits Administration Committee or the named fiduciary designated by the Benefits Administration Committee will act upon each appeal within 60 days after receipt thereof unless special circumstances require an

 

33


extension of the time for processing, in which case a decision will be rendered as soon as possible but not later than 120 days after the appeal is received. Notice of the extension must be provided to the claimant or the claimant’s authorized representative before the expiration of the original 60-day period and indicate the special circumstances requiring the extension of time and the date by which the Plan expects to make a determination. The claimant will be given the opportunity to review pertinent documents or materials upon submission of a written request to the Benefits Administration Committee or named fiduciary, provided the Benefits Administration Committee or named fiduciary finds the requested documents or materials are pertinent to the appeal.

On the basis of its review, the Benefits Administration Committee or named fiduciary will make an independent determination of the claimant’s eligibility for benefits under the Plan. The decision of the Benefits Administration Committee or named fiduciary on any claim for benefits will be final and conclusive upon all parties thereto. In the event the Benefits Administration Committee or named fiduciary denies an appeal in whole or in part, it will give written or electronic notice of the decision to the claimant or the claimant’s authorized representative, which notice will set forth in a manner calculated to be understood by the claimant the specific reasons for such denial and which will make specific reference to the pertinent Plan provisions on which the decision was based and provide other additional information, as applicable, required by 29 Code of Federal Regulations section 2560.503-1, or its successor.

If the claimant’s claim or appeal is approved, any resulting payment of benefits will be made no later than the time prescribed for payment of benefits by Treasury Regulation section 1.409A-3(g), or its successor.

 

34


APPENDIX I

Participating Employers

J. C. Penney Corporation, Inc.

JCP Logistics L.P.

(from and after February 1, 1999)

JCP Media L.P.

(from and after February 1, 1999)

JCP Overseas Services, Inc.

(from and after July 1, 1996)

J. C. Penney Private Brands, Inc.

(from and after January 1, 2000)

JCP Procurement L.P.

(from and after February 1, 1999)

JCP Publications Corp.

(formerly JCP Media Corporation)

(from and after April 3, 1996)

JCPenney Puerto Rico, Inc.

JCP Receivables, Inc.

The Original Arizona Jean Company

 

35

EXHIBIT 10.64

J. C. PENNEY CORPORATION, INC.

BENEFIT RESTORATION PLAN

AS AMENDED AND RESTATED

EFFECTIVE December 31, 2007

and As Further Amended Through December 9, 2008


TABLE OF CONTENTS

 

Article

   Page

Article 1 Introduction

   1

Article 2 Definitions

   2

Article 3 Participation

   8

Article 4 Benefits

   9

Article 5 Form and Commencement of Benefit Payments

   12

Article 6 Administration

   15

Article 7 Type of Plan

   16

Article 8 Change in Control

   17

Article 9 Miscellaneous

   18

Article 10 Claims Procedures

   20

Appendix I. Participating Employers

   22


J. C. PENNEY CORPORATION, INC.

BENEFIT RESTORATION PLAN

ARTICLE 1

INTRODUCTION

J. C. Penney Corporation, Inc., a Delaware corporation (formerly, J. C. Penney Company, Inc.), amends and completely restates the J. C. Penney Corporation, Inc. Benefit Restoration Plan (formerly the J. C. Penney Company, Inc. Benefit Restoration Plan) effective as of 11:59 P.M. on December 31, 2007. The Plan is maintained by the Company primarily for the purpose of providing benefits for eligible Associates in excess of the limit on benefits and contributions imposed by Code section 415 and the compensation limit under Code section 401(a)(17).

This document amends and completely restates the portion of the Supplemental Retirement Program for Management Profit-Sharing Associates of J. C. Penney Corporation, Inc. that provided benefits that would have been payable under the J. C. Penney Corporation, Inc. Pension Plan and the J. C. Penney Corporation, Inc. Savings, Profit-Sharing and Stock Ownership Plan but for the limits on benefits, contributions, and compensation imposed on retirement plans qualified under the Code. With respect to Associates who terminated employment prior to August 1, 1995, benefits payable to such Associates are determined pursuant to the terms and conditions of the Supplemental Retirement Program for Management Profit-Sharing Associates of J. C. Penney Corporation, Inc. in effect as of July 31, 1995.

The provisions of the Plan as amended and restated herein will apply to the entire benefit of each Participant who is an Associate on or after the Effective Date and each Participant who had a Separation from Service prior to the Effective Date and had not commenced receiving benefit payments under the Plan as of the Effective Date. For all other Participants who have commenced receiving benefits under the Plan as of the Effective Date, the provisions of the Plan as in effect at the time each such Participant commenced receiving benefits will continue to be applicable. Unless otherwise indicated, no provision of the Plan as amended and restated shall amend any provision of the Plan as in effect on October 3, 2004 (“previous Plan”) and amendments to the previous Plan adopted after that date.

Words and phrases with initial capital letters used throughout the Plan are defined in Article 2.

 

1


ARTICLE 2

DEFINITIONS

2.1 Actuarial Equivalent or Actuarially Equivalent means a form of benefit payment under which the aggregate payments expected to be received are equal in value to the aggregate payments expected to be received under a different form of benefit payment using the interest rate and other factors set forth in this Section.

(a) This paragraph applies to determine the present value of a Plan Benefit payable to a Participant or a Spouse in the form of five annual installments or an immediate lump sum payment. “Actuarial Equivalent” or “Actuarially Equivalent” means an amount equal to the greater of (i) the present value of the monthly Plan Benefit payable on the applicable Payment Commencement Date to the Participant in the form of a Single Life Annuity, or to the Spouse in the form of a “qualified preretirement survivor annuity” as defined in Section 4.2, calculated by using the Applicable Interest Rate, the Applicable Mortality Table, and the applicable Early Retirement Factors or Early Reduction Factors or (ii) the present value of the Plan Benefit payable as a Single Life Annuity to the Participant or as a qualified preretirement survivor annuity to the Spouse on the Participant’s Normal Retirement Date (or the present value of the late Plan Benefit, if applicable, payable to a Participant on the first day of the month immediately following the Participant’s Separation from Service during any month after the month in which he attains Normal Retirement Age) calculated by using the Applicable Interest Rate and the Applicable Mortality Table.

(b) This paragraph applies to determine the present value of a Plan Benefit payable to an alternate payee pursuant to a domestic relations order. “Actuarial Equivalent” or “Actuarially Equivalent” means an amount calculated applying the methodology in Section 2.1(a) using the alternate payee’s applicable commencement date, the Applicable Interest Rate, the Applicable Mortality Table, and the applicable Early Retirement Factors or Early Reduction Factors.

(c) For purposes of Section 2.14, “Actuarial Equivalent” or “Actuarially Equivalent” will be determined using the Applicable Interest Rate under Section 2.2 and the Applicable Mortality Table under Section 2.3.

2.2 Applicable Interest Rate means, for a Participant who has a Separation from Service after the Effective Date, the adjusted first, second, and third segment rates under Code section 417(e)(3)(C) and (D), determined with regard to the 2008 through 2011 phase-in provisions of Code section 417(e)(3)(D)(iii), for the month of August preceding a Payment Commencement Date occurring during the next following January 1 through June 30 period and for the month of February preceding a Payment Commencement Date occurring during the next following July 1 through December 31 period. Notwithstanding the foregoing, for purposes of calculating the phase-in of the Applicable Interest Rate, 1% will be added to the annual rate of interest on 30-year Treasury securities for the above-determined month. If a Participant has a Separation from Service prior to the Effective Date, the Applicable Interest Rate is the annual rate of interest on 30-year Treasury securities for the month of August, 2006, plus 1%.

 

2


2.3 Applicable Mortality Table means, for a Participant who has a Separation from Service after the Effective Date, the mortality table as prescribed by the Secretary of the Treasury under Code section 417(e)(3)for the Plan Year containing the Payment Commencement Date. If a Participant has a Separation from Service prior to the Effective Date, the Applicable Mortality Table is the mortality table as prescribed by the Secretary of the Treasury under Code section 417(e)(3) as in effect for August, 2006.

2.4 Associate means any person who is employed by a Controlled Group Member if the relationship between a Controlled Group Member and such person would constitute the legal relationship of employer and employee, including an officer who may or may not be a director, but excluding a director serving only in that capacity, and excluding any employee of a Controlled Group Member substantially all the operations of which are outside the United States unless United States Social Security contributions are made on behalf of such employee.

2.5 Beneficiary means one or more persons or entities, including contingent Beneficiaries, entitled to receive a distribution of a Participant’s interest in the Plan in the event of his death.

2.6 Benefits Administration Committee means the committee appointed by the Human Resources Committee and authorized by Article 6 to administer the Plan.

2.7 Board of Directors means the Board of Directors of the Parent Company.

2.8 Change in Control Plan means the J. C. Penney Corporation, Inc. Change in Control Plan, as amended from time to time.

2.9 Code means the Internal Revenue Code of 1986, as amended from time to time. References to “regulations” are to regulations published by the Secretary of the Treasury under applicable provisions of the Code, unless otherwise expressly indicated.

2.10 Company means the J. C. Penney Corporation, Inc., a Delaware corporation. The term “Company” will also include any successor employer, if the successor employer expressly agrees in writing as of the effective date of succession to continue the Plan.

2.11 Controlled Group means the Company and all other corporations, trades, and businesses, the employees of which, together with employees of the Company, are required by the first sentence of subsection (b), by subsection (c), by subsection (m), or by subsection (o) of Code section 414 to be treated as if they were employed by a single employer. For purposes of

 

3


determining if a Separation from Service has occurred, the Controlled Group will be determined under Code sections 414(b) and 414(c) and Treasury Regulation section 1.414(c) – 2 by using the language “at least 50 percent” instead of “at least 80 percent” each place it appears in Code section 1563(a)(1), (2), and (3).

2.12 Controlled Group Member means each corporation or unincorporated trade or business that is or was a member of a Controlled Group, but only during such period as it is or was such a member.

2.13 Early Retirement Age means the date on which a Participant (i) has attained age 55 and has completed at least 15 years of service (as determined under the Pension Plan) or (ii) if the Participant first participated in the Pension Plan prior to January 1, 1989, has attained age 60 without regard to his years of service.

2.14 Early Reduction Factors mean the factors set forth in this Section for use under Section 2.1 for a Participant (or Spouse or alternate payee) whose Payment Event is before the Participant’s Early Retirement Age. If a Payment Event is before the Participant’s Early Retirement Age, the factors used in the present value calculations under Sections 2.1(a)(i) and 2.1(b) for each month that a Payment Commencement Date is earlier than the date the Participant would have attained Normal Retirement Age will be equal to 0.5833% for each month between the ages of 65 and 60, 0.4167% for each month between the ages of 60 and 55, and for each month before age 55, such factors that will result in a Plan Benefit (or, if applicable, a qualified preretirement survivor annuity) that is Actuarially Equivalent to a Plan Benefit (or, if applicable a qualified preretirement survivor annuity) commencing at age 55. For these purposes, a “qualified preretirement survivor annuity” shall be an annuity as defined in Section 4.2.

2.15 Early Retirement Factors mean the factors set forth in this Section for use under Section 2.1 for a Participant (or Spouse or alternate payee) whose Payment Event occurs on or after the Participant’s Early Retirement Age. If a Payment Event is on or after the Participant’s Early Retirement Age, the factors used in the present value calculation under Sections 2.1(a)(i) and 2.1(b) will be equal to 0.3333% for each month between the ages of 65 and 60, and by 0.4167% for each month between the ages of 60 and 55 that the Payment Commencement Date is earlier than the date the Participant would have attained Normal Retirement Age.

2.16 Effective Date means December 31, 2007, at 11:59 P.M.

2.17 ERISA means the Employee Retirement Income Security Act of 1974, as amended from time to time.

2.18 Human Resources Committee means the Human Resources Committee of the Company.

 

4


2.19 Human Resources and Compensation Committee means the Human Resources and Compensation Committee of the Board of Directors.

2.20 Normal Retirement Age means age 65.

2.21 Normal Retirement Benefit means the retirement benefit payable to a Participant on the Normal Retirement Date, determined in accordance with the applicable provisions of Article 4 of the Pension Plan.

2.22 Normal Retirement Date means the first day of the month immediately following a Participant’s attainment of age 65.

2.23 Parent Company means the J. C. Penney Company, Inc., a Delaware corporation, and any successor corporation.

2.24 Participant means an eligible Associate or former Associate of a Participating Employer who has satisfied the conditions for participating in the Plan as set forth in Article 3 and who has not received a complete distribution of benefits.

2.25 Participating Employer means the Company and any other Controlled Group Member or organizational unit of the Company or of a Controlled Group Member which is designated as a Participating Employer under the Plan by the Human Resources Committee or the board of directors of the Company; provided, however, that if any such designation would substantially increase the cost of the Plan to the Company, such designation shall be subject to the sole discretion of the Board of Directors.

2.26 Payment Commencement Date means the date upon which payment of a Plan Benefit is scheduled to begin as determined under Section 5.3.

2.27 Payment Event means the event set forth in Section 5.2 upon which an amount of deferred compensation under this Plan may be paid.

2.28 Pension Benefit means the amount of a Participant’s Normal Retirement Benefit payable to a Participant pursuant to the provisions of the Pension Plan on his Normal Retirement Date (or if the Participant has attained age 65, the late retirement benefit payable under Section 4.6, or its successor, of the Pension Plan as of the first day of the month immediately following his Separation from Service) which the Participant has earned as of the first day of the month immediately following his Separation from Service.

 

5


2.29 Pension Plan means the J. C. Penney Corporation, Inc. Pension Plan (formerly, the J. C. Penney Company, Inc. Pension Plan) adopted effective February 1, 1966, as amended from time to time.

2.30 Pension Plan Participant means an Associate or former Associate who is treated as a participant under the Pension Plan.

2.31 Plan means the J. C. Penney Corporation, Inc. Benefit Restoration Plan(formerly, the J. C. Penney Company, Inc. Benefit Restoration Plan) adopted effective August 1, 1995, as amended from time to time.

2.32 Plan Benefit means the benefit payable to a Participant on his Normal Retirement Date, determined in accordance with the provisions of Article 4 of this Plan or, where applicable, the qualified preretirement survivor annuity, as defined in Section 4.2, payable to a Spouse on the Participant’s Normal Retirement Date, as the case may be.

2.33 Plan Year means the twelve-month period beginning on January 1 and ending on December 31 of each calendar year.

2.34 Prior Plan means the Supplemental Retirement Program for Management Profit-Sharing Associates of J. C. Penney Corporation, Inc. (formerly the Supplemental Retirement Program for Management Profit-Sharing Associates of J. C. Penney Company, Inc.)as in effect on July 31, 1995.

2.35 Separation from Service means the date an Associate dies, retires, or otherwise has a termination of employment from the Controlled Group within the meaning of Code section 409A and Treasury Regulation section 1.409A-1(h), or its successor, taking into account the definition of Controlled Group for such purpose in Section 2.11.

2.36 Single Life Annuity means an annuity with no ancillary benefits, consisting of equal monthly payments beginning as of a designated commencement date and ending with the monthly payment due immediately prior to his death.

2.37 Specified Employee means a “specified employee” within the meaning of Code section 409A and Treasury Regulation section 1.409A-1(i), or its successor, as determined in accordance with the rules specified by the Board of Directors in resolutions dated December 12, 2007.

 

6


2.38 Spouse means the individual to whom an Associate is legally married under the laws of the State (within the meaning of section 3(10) of ERISA) in which the Associate is domiciled, or if domiciled outside the United States, under the laws of the State of Texas, subject to federal legal requirements.

2.39 Unrestricted Benefit means the Pension Benefit determined without applying the provisions of the Pension Plan relating to the limitation on compensation under Code section 401(a)(17) or the limitation on benefits under Code section 415.

 

7


ARTICLE 3

PARTICIPATION

For purposes of Section 4.1, any Associate of a Participating Employer who is a Pension Plan Participant on or after August 1, 1995, and whose retirement pension benefit payable pursuant to the terms of the Pension Plan is limited by operation of the annual benefit limits under Code section 415 or the compensation limits under Code section 401(a)(17) shall be a Participant in the Plan. In addition, an active or former Associate for whom a benefit was accrued under Paragraph (2) of Article III of the Prior Plan and whose benefit under Paragraph (2) of Article III under the Prior Plan had not been completely distributed to such Associate at July 31, 1995, will also be a Participant in the Plan.

 

8


ARTICLE 4

BENEFITS

4.1 Pension Plan Participant Benefit . A Participant shall be entitled to a Plan Benefit equal in amount to his Unrestricted Benefit less his Pension Benefit.

Additionally, a benefit shall be accrued for each Participant for whom a benefit was accrued under Paragraph (2) of Article III of the Prior Plan at July 31, 1995, and whose accrued benefit had not been completely distributed from the Prior Plan. The value of the Participant’s Prior Plan benefit under Paragraph (2) of Article III determined as of July 31, 1995, will become an accrued benefit under this Plan and will be distributed to the Participant pursuant to the terms of this Plan. The distribution to a Participant from this Plan of such Prior Plan accrued benefit will completely discharge the Company and each other Participating Employer from any further liability for such benefit.

4.2 Death Benefit . If a Participant who has a vested interest in his benefit is married at the time such Participant has a Separation from Service by reason of death, the Participant’s Spouse will receive a benefit in the form of five equal annual installments commencing as of the first day of the month after the Participant’s death. The amount of such death benefit will be calculated under Section 2.1(a) by reference to the Single Life Annuity that would be payable to the Spouse as a “qualified preretirement survivor annuity” based on the Participant’s Plan Benefit, and such amount then will be adjusted to reflect payment over five years in the manner described in Section 5.1. For these purposes, a “qualified preretirement survivor annuity” means a monthly annuity for the life of the Spouse of a deceased Participant equal to the monthly annuity that the Spouse would have received under a qualified joint and survivor annuity, with the survivor annuity being equal to 100% of the amount of the monthly annuity payable during the joint lives of the Participant and his Spouse if the Participant dies on or after the day he attains Early Retirement Age or Normal Retirement Age and 50% if the Participant dies prior to the day he attains Early Retirement Age. The calculation of the qualified joint and survivor annuity shall be determined by reference to the factors used under Exhibits E and G to Appendix I to the Pension Plan, or their successors, to convert an immediate single life annuity to a joint and 50% or 100% survivor annuity, as appropriate. No benefit under this Plan will be payable to a single Participant who has a Separation from Service due to death.

If a Participant who has a Separation from Service (other than by death) and who is either married or single at the time of his subsequent death dies before payment of his vested benefit has begun under the Plan, the Participant’s Beneficiary will receive the benefit in the form of five equal annual installments equal to the amount that would have been payable to a Participant under Section 5.1 and at the same time the Participant would have received his benefit under Sections 5.3 and 5.4. If no Beneficiary has been designated by such a Participant, the Beneficiary will be deemed to be the Spouse for a married Participant and the estate for a single Participant.

In the event of the death of a Participant after his benefit has commenced and before all installments have been paid, the remaining unpaid installments shall be paid to his Beneficiary in accordance with the payment schedule of the Participant.

 

9


4.3 Vested Benefit .

(a) Vesting Schedule . For purposes of the benefit provided by Section 4.1, the interest of each Participant in his benefit will become vested and nonforfeitable in accordance with the following schedule:

 

Years of Service

   Percentage Vested and
Nonforfeitable

Less than 5

   0

5 or more

   100

For purposes of this Section 4.3, a Participant will have the same number of years of service under this Plan as the Participant has under the Pension Plan. Notwithstanding anything in the Plan to the contrary, a Participant will only be entitled to payment of a benefit under the Plan if the Participant’s interest in his benefit is vested at the time payment is scheduled to commence.

(b) Accelerated Vesting . A Participant’s interest in his benefit will become 100% vested and nonforfeitable without regard to his years of service on his attainment of Normal Retirement Age while he is an Associate. Notwithstanding the foregoing, a Participant who attains age 60 while an Associate will become fully vested in his benefit without regard to his years of service if he became a participant in the Pension Plan before January 1, 1989, or if he was a participant in the JCPenney Financial Services Pension Plan.

(c) Change in Control Plan . If the Board of Directors exercises its discretion under Section 8.1 to terminate the Plan because of a Change in Control (as defined in Section 8.3) and a Participant is a participant in the Change in Control Plan, the Participant’s interest in his Plan Benefit will become 100% vested and nonforfeitable without regard to his years of service or age. If a Participant who is also a participant in the Change in Control Plan has an “employment termination” following a “change in control” as those terms are defined in the Change in Control Plan, his interest in his Plan Benefit will become 100% vested and nonforfeitable without regard to his years of service or age.

 

10


4.4 Qualified Unit Closings . A Participant who has an involuntary Separation from Service as a result of a Qualified Unit Closing (as hereinafter defined) will receive credit for additional months of service and additional months of age, based on the Participant’s years of service (before applying the provisions of this Section) in accordance with the schedule set forth below, solely for purposes of determining whether the Participant has attained Early Retirement Age or Normal Retirement Age at his Separation from Service, and not for purposes of determining the amount of the Participant’s Plan Benefit or for any other purpose.

 

Years of Service at

Separation from Service

   Months of Additional
Age and Service

Less than 10

   0

At least 10 but less than 15

   12

At least 15 but less than 20

   18

20 or more

   24

For purposes of this Section, a Qualified Unit Closing means the complete or partial discontinuance of business at a store or other business unit of a Participating Employer, provided the Associates employed at the store or other business unit are eligible for separation pay.

 

11


ARTICLE 5

FORM AND COMMENCEMENT OF BENEFIT PAYMENTS

5.1 Form of Benefit Payments . Except as otherwise provided in this Plan, benefits will be paid in the form of five equal annual installments. The present value of such installments will be equal to the amount determined under Section 2.1. For a Participant who has a Separation from Service after the Effective Date, the amount of such annual installments will be calculated by using only the adjusted first segment rate of the Applicable Interest Rate, determined with regard to the 2008 through 2011 phase-in provisions of Code section 417(e)(3)(D)(iii). For a Participant who has a Separation from Service prior to the Effective Date, the amount of such annual installments will be calculated by using the Applicable Interest Rate under Section 2.2 that applies to such Participant. The lookback and stability periods set forth in Section 2.2 will apply in determining the adjustment.

5.2 Payment Events . The Payment Event for a Participant will be the later of (i) Separation from Service or (ii) January 1, 2008; provided, however, that if a Specified Employee’s Separation from Service (other than by reason of death) occurs prior to January 1, 2008, and the date of such Separation from Service plus six months is after January 1, 2008, Separation from Service will be the deemed Payment Event for such a Specified Employee.

5.3 Payment Commencement Date . The Payment Commencement Date for a Participant (including a Specified Employee) whose Payment Event under Section 5.2 is Separation from Service will be the first day of the month following the date of his Separation from Service; provided, however, that the actual time of the first payment to a Specified Employee will be determined in accordance with the provisions of Section 5.4. For all other Participants, the Payment Commencement Date for benefits under Section 4.1 will be January 1, 2008, or as soon as practicable thereafter, but no later than the time required for payment under Treasury Regulation section 1.409A-3(d), or its successor. Subsequent installments for all Participants, including Specified Employees, will be paid on the first through fourth anniversaries of the Payment Commencement Date.

The Payment Commencement Date in the case of a death benefit will be determined under Section 4.2. For an alternate payee, the Payment Commencement Date will be the applicable commencement date as provided in a domestic relations order that conforms with the requirements of Code section 409A and Treasury Regulation section 1.409A-3(j)(4)(ii), or its successor.

 

12


5.4 Delay for Specified Employees . If a Participant is a Specified Employee as of the date of his Separation from Service and his Payment Event is Separation from Service (other than by reason of death), payment will not be made before the date that is six months after the date of Separation from Service. The first payment to such a Specified Employee will be paid on the first day of the seventh month following the date of Separation from Service. The initial installment payment to a Specified Employee whose Separation from Service occurs after December 31, 2007, will include an interest adjustment. Such adjustment will be calculated by using only the adjusted first segment rate of the Applicable Interest Rate, determined with regard to the 2008 through 2011 phase-in provisions of Code section 417(e)(3)(D)(iii). The lookback and stability periods set forth in Section 2.2 will apply in determining the adjustment. Notwithstanding the foregoing, no interest will be paid to a Specified Employee whose Separation from Service occurs before January 1, 2008. If a Specified Employee dies after a Separation from Service but prior to the expiration of the six-month delay, benefit payments under Section 4.2 will commence to the Beneficiary in accordance with the provisions of Section 4.2.

5.5 Subsequent Changes in Time and Form of Payment . No Participant can make a subsequent election to delay a payment or change the form of payment.

5.6 Prohibition on Acceleration of Payment . Except as provided in Code section 409A, Treasury regulation section 1.409A-3(j)(4) or its successor, this Section, Section 5.7, and Article 8, neither the Participant nor the Company can accelerate the time or schedule of any payment or amount scheduled to be paid pursuant to the terms of the Plan. The Benefits Administration Committee will have the discretion to accelerate payments in accordance with the provisions of Code section 409A and Treasury Regulation section 1.409A-3(j)(4), or its successor (provided that only the Board of Directors will have the discretion to accelerate payment in accordance with the provisions of Treasury Regulation section 1.409A-3(j)(4)(ix), or its successor).

5.7 Limited Cashouts . If the present value, as determined herein, of a Participant’s or Beneficiary’s benefit under Sections 4.1 or 4.2, when combined with the present value of a Participant’s or Beneficiary’s interest in any other agreements, methods, programs, or other arrangements with respect to which deferrals of compensation are treated as having been deferred under a single nonqualified deferred compensation plan under Code section 409A and Treasury Regulation section 1.409A-1(c)(2), or its successor, is equal to or less than the applicable dollar

 

13


amount under Code section 402(g)(1)(B), in effect for the year of distribution, the Benefits Administration Committee will distribute the benefit in the form of an immediate lump sum payment that is the Actuarial Equivalent of such vested Plan Benefit on the Payment Commencement Date, provided that the Participant is not also a Participant in the J. C. Penney Corporation, Inc. Mirror Savings Plan, or its successor, and the payment results in the termination and liquidation of the entirety of the Participant’s interest under this Plan and all other agreements, methods, programs, or other arrangements aggregated with this Plan and is in accordance with Treasury regulation section 1.409A-3(j)(4)(v), or its successor. In the case of a Specified Employee, the benefit will be paid at the time specified in Section 5.4, with the comparable adjustment for interest as described in Section 5.4.

 

14


ARTICLE 6

ADMINISTRATION

The Benefits Administration Committee will administer the Plan and will have the full authority and discretion to accomplish that purpose, including without limitation, the authority and discretion to

 

(i) interpret the Plan in a manner consistent with the requirements of Code section 409A (and the regulations thereunder) and correct any defect, supply any omission or reconcile any inconsistency or ambiguity in the Plan in the manner and to the extent that the Benefits Administration Committee deems desirable to carry on the purpose of the Plan consistent with Code section 409A and the regulations thereunder;

 

(ii) resolve all questions relating to the eligibility of Associates to become or continue as Participants;

 

(iii) determine the amount of benefits payable to Participants and authorize and direct the Company with respect to the payment of benefits under the Plan;

 

(iv) make all other determinations and resolve all questions of fact necessary or advisable for the administration of the Plan; and

 

(v) make, amend, and rescind such rules as it deems necessary for the proper administration of the Plan.

The Benefits Administration Committee will keep a written record of its actions and proceedings regarding the Plan and all dates, records, and documents relating to its administration of the Plan.

Any action taken or determination made by the Benefits Administration Committee will be conclusive on all parties. No member of the Benefits Administration Committee will vote on any matter relating specifically to such member. In the event that a majority of the members of the Benefits Administration Committee will be specifically affected by any action proposed to be taken (as opposed to being affected in the same manner as each other Participant in the Plan), such action will be taken by the Human Resources Committee.

 

15


ARTICLE 7

TYPE OF PLAN

The Plan is a plan which is unfunded. Benefits under the Plan are paid from the general assets of the Company.

The portion of this Plan in Section 4.1 which comprises the benefit determined due to the limit on annual benefits under the Pension Plan imposed by Code section 415 constitutes a separable part of this Plan which is maintained by the Company solely for the purpose of providing benefits for certain Associates in excess of the limitations on benefits imposed by Code section 415. This separable portion of the Plan shall be construed according to the provisions of ERISA applicable to such plans.

The remaining portion of the Plan is maintained by the Company primarily for the purpose of providing deferred compensation for a select group of management or highly compensated employees. The Plan shall be construed according to the provisions of ERISA applicable to such plans.

In the event that it should subsequently be determined by statute or by regulation or ruling that the Plan is not “a plan which is unfunded and is maintained primarily for the purpose of providing deferred compensation for a select group of management or highly compensated employees” within the meaning of sections 201(2), 301(a)(3), 401(a)(1), and 4021(b)(6) of ERISA, participation in the Plan shall be restricted by the Benefits Administration Committee to the extent necessary to assure that it will be such a plan within the meaning of such sections.

 

16


ARTICLE 8

CHANGE IN CONTROL

8.1 Authority of the Board of Directors . Upon a Change in Control as defined in Section 8.3, the Board of Directors will have the discretion and the authority to (i) terminate and liquidate the Plan pursuant to its irrevocable action taken within the 30 days preceding or the 12 months following a Change in Control and in accordance with Code section 409A and Treasury Regulation section 1.409A-3(j)(4)(ix)(B), or its successor (in which event the benefit of each Participant who is also a participant in the Change in Control Plan will automatically vest as provided in Section 4.3(c)); (ii) fund a grantor trust in accordance with the provisions of Section 8.2; or (iii) provide that each Participant’s benefit in the Plan will become 100% vested and nonforfeitable as of the date of the Change in Control without regard to his years of service under the Pension Plan.

8.2 Grantor Trust . To the extent permitted by Code section 409A and the regulations thereunder, the Board of Directors will have the discretion and the authority to transfer assets of the Parent Company, in an amount sufficient to pay benefits that have accrued under the Plan up to the date of the Change in Control, to a grantor trust to be established by the Parent Company for the purpose of paying benefits hereunder; and the Participant’s vested benefits shall thereafter be paid to the Participant from such trust in accordance with the terms of the Plan. On each anniversary date of the date of the Change in Control, the Parent Company shall transfer , to the extent permitted by Code section 409A and the regulations thereunder, to the grantor trust an amount necessary to pay all benefits accrued under the Plan during the preceding twelve months.

8.3 Change in Control Event . For the purpose of determining whether a Change in Control has occurred with respect to a Participant, a Change in Control means a change in control event within the meaning of Code section 409A and Treasury Regulation section 1.409A-3(i)(5), or its successor, including a change in the ownership of the corporation, a change in the effective control of the corporation, or a change in the ownership of a substantial portion of the assets of the corporation as such events are defined in Treasury Regulation sections 1.409A-3(i)(5)(v), (vi), and (vii). For this purpose, “corporation” has the meaning given in Treasury Regulation section 1.409A-3(i)(5)(ii), or its successor.

 

17


ARTICLE 9

MISCELLANEOUS

9.1 Amendment and Termination . The Human Resources and Compensation Committee may amend or modify the Plan at any time, without prior notice; provided, however, that any such amendment or modification which would substantially increase the cost of the Plan to the Company shall require approval of the Board of Directors.

The Board of Directors may suspend, discontinue, or terminate the Plan at any time without prior notice or approval. Any termination and liquidation of the Plan, including any termination and liquidation of the Plan upon a Change in Control, must comply with the provisions of Code section 409A and Treasury Regulation section 1.409A-3(j)(4)(ix), or its successor.

Subject to the foregoing, in no event will any amendment, modification, suspension, discontinuance, or termination adversely affect the Plan Benefit payable pursuant to Section 4.1 for any Participant for whom benefit payments have already begun in accordance with the Plan as in effect prior to the effective date of the amendment, modification, suspension, discontinuance, or termination unless otherwise required to comply with applicable law.

Each amendment to the Plan by the Human Resources and Compensation Committee or the Board of Directors will be made only pursuant to unanimous written consent or by majority vote at a meeting. Upon such action by the Human Resources and Compensation Committee or the Board of Directors, the Plan will be deemed amended as of the date specified as the effective date by such action or in the instrument of amendment. The effective date of any amendment may be before, on, or after the date of such action of the Human Resources and Compensation Committee or the Board of Directors.

9.2 Rights of Associates . Neither the establishment of the Plan nor any action thereafter taken by the Company, the Parent Company, or any Controlled Group Member or by the Benefits Administration Committee shall be construed as giving to any Associate any vested right to a benefit from the Plan or a right to be retained in employment or any specific position or level of employment with the Company or any Controlled Group Member. Moreover, no Associate shall have any right or claim to any benefits under this Plan if the Associate has an involuntary Separation from Service due to a summary dismissal as defined in the Company’s policies and procedures, including resignation in lieu thereof, unless the Benefits Administration Committee, in its discretion, determines that such Associate shall be eligible for such benefits notwithstanding such summary dismissal.

 

18


9.3 Mistaken Information . If any information upon which a Participant’s benefit under the Plan is calculated has been misstated by the Participant or is otherwise mistaken, such benefit shall not be invalidated (unless upon the basis of the correct information the Participant would not have been entitled to a benefit), but the amount of the benefit shall be adjusted to the proper amount determined on the basis of the correct information and, to the extent permitted by Code section 409A, any overpayments shall be charged against future payments to the Participant or his Beneficiary or otherwise required to be repaid by the recipient.

9.4 Liability . Neither the Board of Directors (including any committees thereof) of the Parent Company, the Company, or of any Participating Employer, nor any member of the Benefits Administration Committee or the Human Resources Committee nor any person to whom any of them may delegate any duty or power in connection with administering the Plan shall be personally liable for any action or failure to act with respect to the Plan.

9.5 Reemployed Participant . If a retired Participant again becomes an Associate of a Participating Employer, the payment of benefits hereunder shall continue. Upon such Associate’s subsequent Separation from Service, he shall be entitled to receive any applicable benefits, if any, under Article 4 pursuant to the provisions of this Plan, reduced by prior payments from this Plan.

9.6 Construction . In determining the meaning of any provision of the Plan, words imparting the masculine gender shall include the feminine and the singular shall include the plural, unless the context requires otherwise. Headings of Articles, Sections and Subsections in the Plan are for convenience and reference only and are not intended to modify or affect the meaning of the substantive provisions of the Plan.

9.7 Non-assignability of Benefits . The benefits payable hereunder or the right to receive future benefits under the Plan may not be anticipated, alienated, pledged, encumbered, or subjected to any charge or legal process, and if any attempt is made to do so, or a person eligible for any benefits becomes bankrupt, the interest under the Plan of the person affected may be terminated by the Benefits Administration Committee which, in its sole discretion, may cause the same to be held or applied for the benefit of one or more of the dependents of such person or make any other disposition of such benefits that it deems appropriate, in all events subject to the requirements of Code section 409A.

9.8 Governing Law . Except to the extent that the Plan may be subject to the provisions of ERISA, the Plan will be construed and enforced according to the laws of the State of Texas, without giving effect to the conflict of laws principles thereof. Except as otherwise required by ERISA, every right of action by a Participant, former Participant, or Beneficiary with respect to the Plan shall be barred after the expiration of three years from the date of Separation from Service of the Participant or the date of receipt of the notice of denial of a claim for benefits, if earlier. In the event ERISA’s limitations on legal actions do not apply, the laws of the State of Texas with respect to limitations of legal actions shall apply and the cause of action must be brought no later than four years after the date the action accrues.

 

19


ARTICLE 10

CLAIMS PROCEDURES

If an Associate, or an authorized representative of an Associate, does not receive the benefits which he believes he is entitled to receive under the Plan, he may file a claim for benefits with the Benefits Administration Committee or its delegate. All claims will be made in writing no later than the time prescribed by Treasury Regulation section 1.409A-3(g), or its successor, and will be signed by the claimant or the claimant’s authorized representative. If the claimant does not furnish sufficient information to determine the validity of the claim, the Benefits Administration Committee or its delegate will advise the claimant in writing of any additional information that is required.

Each claim will be approved or disapproved by the Benefits Administration Committee or its delegate within 60 days following the receipt of the information necessary to process the claim, unless special circumstances require an extension of time for processing, in which case a decision will be rendered as soon as possible but not later than 120 days after receipt of the information necessary to process the claim. Notice of the extension must be provided to the claimant or the claimant’s authorized representative before the expiration of the original 60-day period and indicate the special circumstances requiring the extension of time and the date by which the Plan expects to make a determination.

In the event the Benefits Administration Committee or its delegate denies a claim for benefits in whole or in part, the Benefits Administration Committee or its delegate will notify the claimant in writing of the denial of the claim. Such notice by the Benefits Administration Committee or its delegate will also set forth, in a manner calculated to be understood by the claimant, the specific reasons for such denial, the specific Plan provisions on which the denial is based, and a description of any additional material or information necessary to perfect the claim, with an explanation of why such material or information is necessary and an explanation of the Plan’s claim review procedure as set forth below.

A claimant may appeal a denial of his claim by requesting a review of the decision by the Benefits Administration Committee or a person designated by the Benefits Administration Committee, which person will be a named fiduciary under Section 402(a)(2) of ERISA for purposes of this Article. An appeal must be submitted in writing within 60 days after the denial and must (i) request a review of the claim for benefits under the Plan, (ii) set forth all of the grounds upon which claimant’s request for review is based and any facts, documents, records, or other information in support thereof, and (iii) set forth any issues or comments which the claimant deems pertinent to the appeal. The Benefits Administration Committee or the named fiduciary designated by the Benefits Administration Committee will make a full and fair review of each appeal and any written materials submitted in connection with the appeal, without regard to whether the information was submitted under the initial claim determination. The Benefits Administration Committee or the named fiduciary designated by the Benefits Administration Committee will act upon each appeal within 60 days after receipt thereof unless special circumstances require an extension of the time for processing, in which case a decision will be rendered as soon as possible but not later than 120 days after the appeal is received. Notice of the extension must be provided to the claimant or the

 

20


claimant’s authorized representative before the expiration of the original 60-day period and indicate the special circumstances requiring the extension of time and the date by which the Plan expects to make a determination. The claimant will be given the opportunity to review pertinent documents or materials upon submission of a written request to the Benefits Administration Committee or named fiduciary, provided the Benefits Administration Committee or named fiduciary finds the requested documents or materials are pertinent to the appeal.

On the basis of its review, the Benefits Administration Committee or named fiduciary will make an independent determination of the claimant’s eligibility for benefits under the Plan. The decision of the Benefits Administration Committee or named fiduciary on any claim for benefits will be final and conclusive upon all parties thereto. In the event the Benefits Administration Committee or named fiduciary denies an appeal in whole or in part, it will give written or electronic notice of the decision to the claimant or the claimant’s authorized representative, which notice will set forth in a manner calculated to be understood by the claimant the specific reasons for such denial and which will make specific reference to the pertinent Plan provisions on which the decision was based and provide other additional information, as applicable, required by 29 Code of Federal Regulations section 2560.503-1, or its successor.

If the claimant’s claim or appeal is approved, any resulting payment of benefits will be made no later than the time prescribed for payment of benefits by Treasury Regulation section 1.409A-3(g), or its successor.

 

21


APPENDIX I

Participating Employers

J. C. Penney Corporation, Inc.

J.C. Penney Funding Corporation

J. C. Penney Private Brands, Inc.

JCP Receivables, Inc.

JCPenney Puerto Rico, Inc.

JCP Logistics L.P.

JCP Media L.P.

JCP Overseas Services, Inc.

JCP Procurement L.P.

JCP Publications Corp.

(formerly JCP Media Corporation)

The Original Arizona Jean Company

 

22

EXHIBIT 10.65

J. C. Penney Company, Inc.

2005 Equity Compensation Plan

As Amended through December 10, 2008


J. C. PENNEY COMPANY, INC.

2005 EQUITY COMPENSATION PLAN

INTRODUCTION

1.  Purposes of Plan. The general purposes of this 2005 Equity Compensation Plan (“Plan”) are to provide associates and non-associate directors of J. C. Penney Company, Inc., its subsidiaries and affiliates, or any unit thereof (together referred to herein as “Company”), an opportunity to increase their proprietary interests as stockholders in order to motivate them to continue and increase their efforts on the Company’s behalf to sustain its progress, growth, and profitability, and to assist the Company in continuing to attract and retain associates and non-associate directors capable of assuring the Company’s future success. Terms and conditions of awards shall be governed by the terms of this Plan along with the Plan Determinations (“Determinations”) as approved by the Human Resources and Compensation Committee of the Company, and the Notice of Grant of the particular award. This Plan permits the grant of stock options, stock appreciation rights, restricted stock and stock units, stock, and cash incentive awards, each as will be subject to such conditions based upon continued employment, passage of time or satisfaction of performance criteria as shall be specified pursuant to the Plan or set by the Committee (as defined in Section 5 below).

2.  Shares Subject to Plan.

(a)  Reserved Shares. The maximum number of shares of J. C. Penney Company, Inc. Common Stock of 50¢ par value (“Common Stock”) upon which options to purchase shares of Common Stock (“Stock Options”), stock appreciation rights (“SARs”), or awards of Common Stock or share units (“Stock Awards”), (“Stock Options,” “SARs,” and “Stock Awards” herein collectively called “Equity Awards”), may be issued under the Plan is 14,400,000 shares, plus up to 2,800,000 shares which on May 31, 2005 are reserved but not then subject to awards under the Company’s 2001 Equity Compensation Plan (referred to herein as the “Prior Plan”). In no event may more than: (i) 30% of the shares reserved for issuance under the Plan be issued as Stock Awards over the term of the Plan; (ii) 5,000,000 shares of Common Stock be issued pursuant to incentive stock options (“ISOs”) within the meaning of Section 422 of the Internal Revenue Code of 1986, and any regulations promulgated thereunder, or any similar successor statute or regulation, as in effect from time to time (“Code”) over the term of the Plan; or (iii) 1,000,000 shares of Common Stock be issued as Stock Awards that are intended to qualify as performance-based compensation for purposes of Section 162(m) of the Code in any one year for any one Associate Participant. Notwithstanding anything contained herein to the contrary, the number of Equity Awards, singly (as defined in Section 4 below) or in combination, granted to any associate or non-associate director in any two consecutive fiscal years shall not in the aggregate exceed 3,000,000.

(b)  Share Accounting. Common Stock issuable under the Plan may be, in whole or in part, as determined by the J. C. Penney Company, Inc. Board of Directors (“Board of Directors” or “Board”), authorized but unissued shares, reacquired or treasury shares, or shares available from prior plans. If any Stock Option or SAR granted under the Plan (or any prior Plan) expires or terminates for any reason without having been exercised in full, or if any Stock Award is not earned in full, the unpurchased or unearned shares will again be available for use under the Plan. Also, the pool of shares available under the Plan will not be reduced if any Equity Award is paid in cash rather than shares of Common Stock. “Common Stock” includes any security issued in substitution, exchange, or in lieu thereof. Also, any option to purchase securities assumed in an acquisition of another company will not be included in the pool of shares available under the Plan.

3.  Cash Incentive Awards. The Committee may grant cash incentive awards (“Cash Incentive Awards”) to Associate Participants on such terms and conditions as the Committee may determine, but in all instances in compliance with Section 409A of the Code or any exemptions thereto. Cash Incentive Awards are performance-based (see Section 9 below), annual or long-term awards that are expressed in U.S. currency. Cash Incentive Awards to any individual associate may not exceed the product of $1,500,000 and the number of years in the Performance Cycle (as defined in Section 9 below). (Equity Awards and Cash Incentive Awards are herein collectively referred to as “Awards”.)

4.  Eligibility and Bases of Participation. Under the Plan: (i) Awards may be made to such associates, including officers and associate directors of the Company, as the Committee (as hereinafter defined) may determine (“Associate Participants”); and (ii) Equity Awards will be made pursuant to Section 13 below, to individuals who serve as non-associate directors of the Company (“Non-Associate Director Participants” and, together with Associate Participants, “Participants”). In determining the Associate Participants who are to receive Awards and the number of shares covered by any Award, the Committee may take into account the nature of the services rendered by the Associate Participants, their contributions to the Company’s success, their position levels and salaries, and such other factors as the Committee, in its discretion, may deem relevant in light of the purposes of the Plan.

 

A-1


5.  Administration of Plan. The Plan will be administered by, or under the direction of, a committee (“Committee”) of the Board of Directors constituted in such a manner as to comply at all times with Rule 16b-3 or any successor rule (“Rule 16b-3”) promulgated by the Securities and Exchange Commission (“SEC”) under the Securities Exchange Act of 1934, as in effect from time to time (“Exchange Act”) and Section 162(m) of the Code. The Committee shall administer the Plan so as to comply at all times with the Exchange Act and the Code, and shall otherwise have plenary authority to interpret the Plan and to make all determinations specified in or permitted by the Plan or deemed necessary or desirable for its administration or for the conduct of the Committee’s business. All interpretations and determinations of the Committee may be made on an individual or group basis, and shall be final, conclusive, and binding on all interested parties. The Committee may delegate, to the fullest extent permitted by law, its responsibilities under the Plan to persons other than its members, subject to such terms and conditions as it may determine, other than: (i) the making of grants and awards under the Plan to individuals subject to Section 16 of the Exchange Act; and (ii) regarding performance-based Awards intended to be qualified under Section 162(m) of the Code. With respect to Participants subject to Section 16 of the Exchange Act, transactions under the Plan are intended to comply with all applicable conditions of Rule 16b-3. To the extent any provision of the Plan or any action by the Committee or its delagatee fails to so comply, such provision or action will, without further action by any person, be deemed to be automatically amended to the extent necessary to effect compliance with Rule 16b-3, provided that if such provision or action cannot be amended to effect such compliance, such provision or action will be deemed null and void, to the extent permitted by law and deemed advisable by the relevant authority. Each Award to a Participant subject to Section 16 of the Exchange Act under this Plan will be deemed issued subject to the foregoing qualification. Further, except as otherwise specifically provided in the Notice of Grant or the Determinations, Awards under this Plan are intended to be exempt from Section 409A of the Code and the Plan shall be interpreted accordingly.

ASSOCIATE PARTICIPANT AWARDS

6. Stock Options.

(a)  Grants. The Committee may grant Stock Options to Associate Participants on such terms and conditions as the Committee may determine. These Stock Options may be ISOs within the meaning of Section 422 or any successor provision of the Code, or non-qualified stock options within the meaning of the Code (“NSOs”), or a combination of both; provided, however, that an Associate Participant must be an associate of the Company or its subsidiaries in order to receive an ISO grant. In no event, however, may an Associate Participant be given an ISO grant which first becomes exercisable in any calendar year which, when added to all other ISO grants held by such Associate Participant that first become exercisable in that calendar year, causes the aggregate dollar amount of such ISO grants to exceed $100,000. The date of grant of each Stock Option will be the date specified by the Committee; provided, however, that such date of grant may not be prior to the date of such action by the Committee.

(b)  Payment Methods. The option price (and, as provided in Section 15 of the Plan, any applicable taxes thereon) of the shares as to which a Stock Option is exercised will be paid in such manner as the Committee may determine in accordance with the Plan’s purposes, including: (i) in cash; (ii) in shares of Common Stock that have been held for a period of at least six months and a day; or (iii) in any combination of (i) or (ii) above. Each Stock Option will have such terms and conditions for its exercise, including the manner and effective date of such exercise, as the Committee may determine, except as otherwise specifically provided herein. However, a Stock Option grant or its equivalent may not vest in whole in less than three years from the date of grant (although individual options may vest in equal annual installments over a period of not less than three years) except in certain limited situations such as for new hires, retirement and similar situations warranting a shorter or no vesting period, as may be determined by the Committee, and, if the grant is performance-based, the restriction must be for at least one year.

(c)  Option Price/Repricing. The option price per share of Common Stock purchasable under a Stock Option will be determined by the Committee (or, for Associate Participants not subject to Section 16 of the Exchange Act, its delagatee, pursuant to Section 5 above) at the time of grant; provided, however, no such price may be less than 100% of the “fair market value” of the shares of Common Stock covered by the grant on such date. Also, in no event may any Stock Option exercise price be reset from its original grant price.

“Fair market value” of the Common Stock on any date will be the closing price on such date as reported in the composite transaction table covering transactions of New York Stock Exchange listed securities, or if such Exchange is closed,

 

A-2


or if the Common Stock does not trade on such date, the closing price reported in the composite transaction table on the last trading date immediately preceding such date, or such other amount as the Committee may ascertain reasonably to represent such fair market value; provided however, that such determination shall be in accordance with the requirements of Treasury Regulation section 1.409A-1(b)(5)(iv), or its successor.

(d)  Exercise of Stock Options. Each Stock Option will become exercisable upon such date as the Committee may determine, or as provided in Sections 10 or 11 of the Plan, and may be exercised thereafter at any time during its term, as to any or all full shares which have become purchasable under the provisions of the Stock Option. The term of each Stock Option may not exceed: (i) 10 years in the case of an ISO or such other term as may be required for the Stock Option to constitute an ISO under the Code; and (ii) in the case of a NSO, 10 years or such shorter period of time as determined by the Committee on the date of grant (“exercise period”), in each case measured from the date of its grant. Except as provided in Section 11 or 14 of the Plan, a Stock Option may be exercised only by the Associate Participant, and only if the Associate Participant is then an associate of the Company, or of a subsidiary or affiliate of the Company.

7.  Stock Awards. The Committee may grant a Stock Award (including any associated dividend equivalent right or share unit equal in value to such Stock Award) to Associate Participants on such terms and conditions as the Committee may determine. The Committee may determine the types of Stock Awards made, the number of shares, share units, or dividend equivalent rights covered by such awards, and any other terms and conditions relating to the Stock Awards as it deems appropriate, including any vesting conditions necessary to comply with the laws of the State of Delaware. However, a Stock Award or its equivalent that is restricted may not vest in whole in less than three years from the date of grant (although individual Stock Award shares may vest in equal annual installments over a period of not less than three years) except in certain limited situations such as for new hires, retirement and similar situations warranting a shorter or no vesting period, as may be determined by the Committee.

Any dividend equivalent paid as part of a restricted stock unit award will be reinvested in additional restricted stock units that will accumulate over the vesting period of the underlying restricted stock units and vest, if ever, concurrently with the underlying restricted stock units. Subject to Section 22, payment of a restricted stock unit award and any dividend equivalents thereto will be made no later than 2  1 / 2 months following the end of the Company’s fiscal year in which the restricted stock unit award vests.

8.  Stock Appreciation Rights. The Committee may grant SARs covering shares of Common Stock to Associate Participants on such terms and conditions as the Committee may determine. The Committee may cancel or place limits on the term of or amount payable by the Company upon exercise of any SAR at any time prior to exercise. SARs may be granted independently or in tandem with any other Award under the Plan. Tandem SARs may be granted concurrently with or subsequent to the grant of the related Award. An SAR will entitle an Associate Participant to receive an amount no greater than the excess of the fair market value of a share of Common Stock on the date of exercise over the SAR exercise price, multiplied by the number of shares of Common Stock with respect to which the SAR will have been exercised. Such payment may be made by the Company only in shares of Common Stock. The SAR exercise price will be determined by the Committee at the time of grant; provided, however, that no such price may be less than 100% of the fair market value of the shares of Common Stock covered by the grant on such date. Upon exercise of a tandem SAR, in whole or in part, the related Award will be canceled or forfeited automatically to the extent of the number of shares covered by such exercise and, conversely, if a tandem Award is exercised, forfeited, or terminated, as the case may be, for any reason, in whole or in part, the related SAR will be canceled automatically to the extent of the number of shares covered by such exercise, forfeiture, or termination.

9.  Performance-Based Awards. Any Award granted pursuant to the Plan may be in the form of a performance-based award made through the application of Performance Goals and Performance Cycles, which are defined as follows:

(a)  “Performance Cycle” means the period selected by the Committee during which the performance of the Company or any Associate Participant is measured for the purpose of determining the extent to which an Award subject to Performance Goals has been earned. A Performance Cycle may not be less than one year.

(b)  “Performance Goals” means the objectives for the Company or any Associate Participant that may be established by the Committee for a Performance Cycle with respect to any Performance-Based Award contingently awarded under the Plan. The Performance Goals for Awards that are intended to constitute “performance-based” compensation within the meaning of Section 162(m) of the Code shall be based on one or more of the following criteria: earnings per share, total stockholder return, operating income, net income, cash flow, gross profit, gross profit return on investment, return on equity, return on capital, sales, revenue, gross margin, and gross margin return on investment.

 

A-3


(c)  Vesting. A Performance-Based Award, other than a restricted Equity Award, may not vest, or be deemed to be earned, in whole in less than three years from the date of grant (though portions of an individual award may vest or be deemed to be earned in equal annual installments over a period of not less than three years). A Performance-Based Award to be paid out as a restricted Equity Award may not have a vesting period of less than one year. Subject to Section 22, payment of any portion of a Cash Incentive Award and all earnings will be made no later than 2  1 / 2 months following the end of the Company’s fiscal year in which the Cash Incentive Award vests.

10.  Change in Control. For purposes of this Section 10, all references to “Company” are to J. C. Penney Company, Inc. Upon a Change in Control of the Company, each Associate Participant will have the right to exercise any and all Stock Options and SARs held by the Associate Participant, and all Stock Awards will immediately vest, be deemed to have been earned and any Performance Goal for the then applicable Performance Cycle met, on such terms and conditions as may be determined by the Committee at the time of the grant or award provided, further, that any vested Stock Awards that are restricted stock units or vested Cash Incentive Awards, shall be distributed no later than the deadline for distribution specified in Sections 7 and 9 above. The Committee may exercise discretion to terminate the Plan upon a Change in Control event and distribute amounts within 12 months of the Change of Control event.

For purposes of the Plan, a “Change in Control” is defined by Section 409A of the Code, and any regulations and guidance promulgated under this Section as set forth in the Committee’s determinations for the applicable grants under the Plan.

11.  Changes in Employment Status, Death. In the event of an Associate Participant’s termination of employment, layoff, incapacity or death (regardless of whether the deceased was employed at death), the Committee may determine the terms and conditions applicable to any Award previously granted to the Associate Participant and not then exercised or earned in full, as the case may be, including, without limitation: (i) the duration of any exercise period following such event (which may not exceed the original exercise period for a Stock Option or SAR, or if shorter, the tenth anniversary of the original date of grant); (ii) any necessary or appropriate authorization to the Associate Participant’s legatee, distributee, guardian, legal representative, or other third party, as the Committee may determine; or (iii) the circumstances under which all or part of such Stock Options and SARs may be terminated and any unearned Stock Awards forfeited or Cash Incentive Awards paid. All determinations by the Committee with respect to the foregoing shall be final, conclusive, and binding on all interested parties.

12.  Right to Continued Employment. Nothing in the Plan shall confer on an Associate Participant any right to continue in the employ of the Company or any of its subsidiaries or affiliates or affect in any way the right of the Company or any of its subsidiaries or affiliates to terminate such Associate Participant’s employment without prior notice at any time for any reason or for no reason.

NON-ASSOCIATE DIRECTOR PARTICIPANT AWARDS

13.  Annual Awards

(a)  General Provisions. Subject to the terms and conditions of this section, each person who is serving as a non-associate director of the Company on the date of grant of an Equity Award (including any former Associate Participant) (“Non-Associate Director Participant”) will automatically be awarded an Annual Equity Award in an amount which the Board of Directors determines, based upon the advice of outside consultants, to be competitive by industry standards, and pursuant to such terms, conditions, and restrictions as determined by the Board of Directors (the “Annual Equity Award”). These Annual Equity Awards will begin in 2006 (except for any pro rata award for a newly elected director which may occur at any time on or after the effective date of the Plan) and continue through May 31, 2010, unless earlier terminated by the Board of Directors. The date of each Annual Equity Award will be the third full trading date following the later of: (i) the date on which the Annual Meeting of the Company’s stockholders, or any adjournment thereof, is held (“Annual Meeting”); or (ii) the date on which the Company’s earnings for the fiscal quarter immediately preceding such Annual Meeting date are released to the public. Also, Equity Awards in a pro rata amount of the Annual Equity Award for that year, based on the date of election, will automatically be granted to each individual (other than a former Company Associate Participant) who is first elected a Non-Associate Director after May 31, 2005, on the third full trading date following the effective date of such election.

(b)  Right to Tender, Exchange. A Non-Associate Director Participant (including for purposes of this paragraph a Non-Associate Director Participant’s guardian or legal representative) will have, with respect to any shares covered by an Annual Equity Award and any shares already received pursuant to an Annual Equity Award under this Plan, the right to: (i) tender or exchange any such shares in the event of any tender offer or exchange within the meaning of Section 14(d) of the Exchange Act or any plan of merger approved by the Board; and (ii) sell or exercise any option, right, warrant, or similar

 

A-4


property derived from or attributable to such shares after such option, right, warrant, or similar property becomes transferable or exercisable. If any shares covered by an Annual Equity Award are tendered or exchanged or any option, right, warrant, or similar property attributable thereto is sold, exercised, or redeemed for value, the cash and/or property received will be delivered to the Company (or its successor) and held subject to the restrictions of the Plan as if it were the stock itself.

(c)  Non-Transferability. A Non-Associate Director Participant may not transfer, sell, assign, pledge, or otherwise encumber or dispose of any shares of Common Stock received in connection with an Annual Equity Award prior to the time his or her service as a director expires or is terminated, other than by will or the laws of descent and distribution or by such other means as the Committee, in its discretion, may approve from time to time and any attempt to do so will be void.

(d)  Non-Associate Director Participant’s Termination. If a Non-Associate Director Participant’s service as a director of the Company terminates on account of any act of: (i) fraud or intentional misrepresentation; or (ii) embezzlement, misappropriation, or conversion of assets or opportunities of the Company or any subsidiary of the Company, such termination will be considered a “Non-Qualifying Termination.” All other terminations, including termination by reason of death, will be considered “Qualifying Terminations”. In the event of a Non-Qualifying Termination, all outstanding restricted Awards made pursuant to this Section will be forfeited or canceled, as the case may be.

(e)  Stock In Lieu of Cash. A Non-Associate Director Participant may also elect to receive Common Stock in lieu of the cash compensation payable for services rendered as a director, so long as such election is made in accordance with Section 16 of the Exchange Act and on such other terms and conditions as may be determined from time to time by the Board of Directors. Any such Common Stock issued to a Non-Associate Director Participant in lieu of cash compensation will automatically vest (become non-forfeitable and freely transferable) in the Non-Associate Director Participant on the date of issuance.

GENERAL

14.  Transferability. No unearned Award, or any portion thereof, granted under the Plan may be assigned or transferred other than by will or the laws of descent and distribution or by such other means as the Committee, in its discretion, may approve from time to time and any attempt to do so will be void. No Stock Option or SAR will be exercisable during the Associate Participant’s lifetime except by the Associate Participant or the Associate Participant’s guardian or legal representative, or other third party, as the Committee may determine.

15.  Taxes. The Company has the right to deduct from any cash payment made under the Plan, or otherwise, to any Associate Participant, including an Associate Participant subject to Section 16 of the Exchange Act, any federal, state, or local taxes of any kind required by law to be withheld by it (“Withholding Obligation”) with respect to such payment. The Withholding Obligation will be limited to the minimum statutory rate. The Company’s obligation to deliver shares of Common Stock pursuant to any Award under the Plan is conditioned on the payment by the Associate Participant to the Company of any Withholding Obligation arising therefrom. The Company may withhold, in satisfaction of all or a portion of such Withholding Obligation referred to in the preceding sentence, that number of shares of Common Stock having an aggregate fair market value sufficient to satisfy the amount of such obligation.

16. Changes in Capitalization and Similar Changes. In the event of any change in the number of shares of Common Stock outstanding, or the assumption and conversion of outstanding Awards, by reason of a stock dividend, stock split, acquisition, recapitalization, reclassification, merger, consolidation, combination or exchange of shares, spin-off, distribution to holders of Common Stock (other than normal cash dividends), an equitable and proportionate adjustment shall be made to: (1) the option price under each unexercised Stock Option; (2) the exercise price under each unexercised SAR; and (3) the number and class of shares which may be issued on exercise of Stock Options and SARs granted and for Stock Awards, including restricted stock units, and any remaining shares reserved under the Plan. Any such adjustment with respect to each Stock Option or SAR shall be consistent with the requirements applicable to exempt stock rights under Treasury Regulations section 1.409A-1(b)(5) or its successor. Any adjustment with respect to ISOs shall also conform to the requirements of Section 422 of the Code.

17.  Stockholder Rights. A Participant (including for purposes of this Section, a Participant’s legatee, distributee, guardian, legal representative, or other third party, as the Committee may determine) will have no stockholder rights with respect to any shares subject to an Award until such shares are issued to such Participant. Shares will be deemed issued on the date on which they are registered in the Participant’s (as this term is defined in the preceding sentence) name on the Company stock records.

 

A-5


18.  Effective Date. The Plan will become effective on June 1, 2005, subject to approval by the affirmative vote of the holders of a majority of the outstanding stock of the Company having general voting power at the Company’s 2005 Annual Meeting of Stockholders.

19.  Termination and Amendment. No Award may be made under the Plan after May 31, 2010. The Board of Directors may terminate the Plan or make such amendments as it deems advisable, including, but not limited to, any amendments to conform to or reflect any change in any law, regulation, or ruling applicable to an Award or the Plan, provided, however, that the Board of Directors may not, without approval by affirmative vote of the holders of a majority of the outstanding stock of the Company having general voting power: (i) take any action which will increase the aggregate number of shares of Common Stock which may be issued under the Plan (except for adjustments pursuant to Sections 2 and 16 of the Plan); (ii) decrease the grant or exercise price of any Award to less than fair market value of its underlying Common Stock on the date of grant; (iii) change the individual award limits found in Sections 2 and 3 or any other maximum limit included in the Plan to comply with requirements for performance-based compensation under Section 162(m) of the Code; (iv) change the separate limit for ISOs set forth in Section 2; (v) change the class of Associate Participants eligible for Awards under Section 4; or (vi) change the performance criteria applicable to Performance-Based Awards under Section 9. Except as otherwise provided in or permitted by the Plan or by the terms, if any, of an Award under the Plan, no termination or amendment of the Plan or change in the terms of an outstanding Award may adversely affect the rights of the holder of any Award without the consent of the holder.

20.  Severability of Provisions. If any provision of this Plan becomes or is deemed invalid, illegal, or unenforceable in any jurisdiction, or if any such provision would, in the sole determination of the Committee, disqualify the Plan or any Award under any law deemed applicable by the Committee, such provision will be construed or deemed amended to conform to applicable law or if, in the sole determination of the Committee, such provision cannot be so construed or so deemed amended without materially altering the intent of the Plan, such provision will be stricken and the remainder of the Plan will remain in full force and effect.

21.  Governing Law. This Plan will be governed by the internal laws of the State of Delaware, regardless of the dictates of Delaware conflict of laws provisions.

22. Deferred Payments . Unless specifically provided for in the Notice of Grant or the Determinations, no Equity Award shall provide any feature for the deferral of compensation as defined by Treasury Regulation section 1.409A-1(b). Any deferral will be for such period and in accordance with the terms and conditions as the Committee may determine and must be in compliance with Code Section 409A. The terms and conditions applicable to such deferral and the terms and conditions evidencing compliance with Code Section 409A shall be set forth in the Notice of Grant or the Determinations. The method of payment for, and type and character of, any Award may not be altered by any deferral permitted under this Section unless specifically permitted under Code Section 409A and the Treasury Regulations thereunder.

 

A-6

EXHIBIT 10.66

2009 Base Salaries, 2009 Target Incentive Opportunity

Percentages and 2009 Equity Awards for Named Executive Officers

 

Named Executive Officer

   2009
Base
Salary
   2009
Target
Incentive Award
Opportunity

(% of base salary)
  2009
Equity Awards
        Stock
Options

(#)
   Performance
Units

(#)

Myron E. Ullman, III

Chairman and Chief Executive

Officer

   $ 1,500,000    125%   255,183    149,161

Robert B. Cavanaugh

Executive Vice President,

Chief Financial Officer

   $ 700,000      75%   115,630    N/A

Ken C. Hicks

President and

Chief Merchandising Officer

   $ 900,000    100%   264,354    N/A

Michael T. Theilmann

Executive Vice President,

Chief Human Resources and

Administration Officer

   $ 600,000      75%   100,877    N/A

Thomas M. Nealon

Executive Vice President,

Chief Information Officer

   $ 525,000      50%   59,809    N/A

EXHIBIT 12

J. C. Penney Company, Inc.

Computation of Ratios of Earnings to Fixed Charges and Preferred Stock Dividends

(Unaudited)

 

($ in millions)    52 Weeks
Ended
1/31/09
    52 Weeks
Ended
2/2/08
    53 Weeks
Ended
2/3/07
    52 Weeks
Ended
1/28/06
    52 Weeks
Ended
1/29/05
 

Income from continuing operations before income taxes

   $ 910     $ 1,723     $ 1,792     $ 1,444     $ 1,005  
                                        

Plus: fixed charges

          

Interest expense, net

     225       153       130       169       223  

Add back: interest income included in net interest

     32       108       136       111       63  

Bond premiums and unamortized costs

     -       12       -       18       47  

Estimated interest within rental expense

     89       75       69       65       55  

Capitalized interest

     10       10       5       6       4  

Preferred stock dividend requirement

     -       -       -       -       18  
                                        

Total fixed charges

     356       358       340       369       410  

Less: capitalized interest

     (10 )     (10 )     (5 )     (6 )     (4 )

Less: preferred stock dividend requirement

     -       -       -       -       (18 )
                                        

Total earnings available for fixed charges

   $ 1,256     $ 2,071     $ 2,127     $ 1,807     $ 1,393  
                                        

Ratio of available income to fixed charges and preferred stock dividends

     3.5       5.8       6.3       4.9       3.4  
                                        

EXHIBIT 21

SUBSIDIARIES OF THE REGISTRANT

Set forth below is a direct subsidiary of the Company as of March 16, 2009. All of the voting securities of this subsidiary are owned by the Company.

Subsidiaries

J. C. Penney Corporation, Inc. (Delaware)

The names of other subsidiaries have been omitted because these unnamed subsidiaries, considered in the aggregate as a single subsidiary, do not constitute a significant subsidiary.

EXHIBIT 23

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

The Board of Directors

J. C. Penney Company, Inc.:

We consent to the incorporation by reference in the registration statements on Form S-8 (Registration Nos. 33-28390, 33-66070, 333-33343, 333-27329, 333-62066 and 333-125356) and on Form S-3 (Registration Nos. 333-103147-01 and 333-142317-01) of J. C. Penney Company, Inc. of our reports dated March 30, 2009, with respect to the consolidated balance sheets of J. C. Penney Company, Inc. and Subsidiaries as of January 31, 2009 and February 2, 2008, and the related consolidated statements of operations, stockholders’ equity and cash flows for each of the years in the three-year period ended January 31, 2009, and the effectiveness of internal control over financial reporting as of January 31, 2009, which reports appear in the January 31, 2009 Annual Report on Form 10-K of J. C. Penney Company, Inc. Our report refers to the adoption of the provisions of Financial Accounting Standards Board’s (FASB) Statement of Financial Accounting Standards (SFAS) No. 157, “Fair Value Measurements” in fiscal year 2008, the measurement date provisions of SFAS No. 158, “Employers’ Accounting for Defined Benefit Pension and Other Postretirement Plans” on February 2, 2008, the recognition and disclosure provisions of SFAS No. 158 on February 3, 2007, and FASB Interpretation No. 48 “Accounting for Uncertainty in Income Taxes” on February 4, 2007.

LOGO

Dallas, Texas

March 30, 2009

EXHIBIT 24

POWER OF ATTORNEY

KNOW ALL MEN BY THESE PRESENTS THAT each of the undersigned directors and officers of J. C. PENNEY COMPANY, INC., a Delaware corporation, which will file with the Securities and Exchange Commission, Washington, D.C. (“Commission”), under the provisions of the Securities Exchange Act of 1934, as amended, its Annual Report on Form 10-K for the 52 weeks ended January 31, 2009, hereby constitutes and appoints D. P. Miller, J. L. Dhillon, and R. B. Cavanaugh, and each of them, his or her true and lawful attorneys-in-fact and agents, with full power to each of them to act without the others, for him or her and in his or her name, place and stead, in any and all capacities, to sign said Annual Report, which is about to be filed, and any and all subsequent amendments to said Annual Report (“Annual Report”), and to file said Annual Report so signed, and any and all subsequent amendments thereto so signed, with all exhibits thereto, and any and all documents in connection therewith, and to appear before the Commission in connection with any matter relating to said Annual Report, hereby granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform any and all acts and things requisite and necessary to be done in and about the premises as fully and to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that such attorneys-in-fact and agents, or any of them, may lawfully do or cause to be done by virtue hereof.

IN WITNESS WHEREOF, the undersigned have executed this Power of Attorney effective as of the 26th day of March, 2009.

 

/s/ M. E. Ullman, III

  

/s/ K. C. Hicks

M. E. Ullman, III    K. C. Hicks

Chairman of the Board and

Chief Executive Officer

(principal executive officer);

Director

  

President and

Chief Merchandising Officer;

Director

/s/ R. B. Cavanaugh

  

/s/ D. P. Miller

R. B. Cavanaugh    D. P. Miller

Executive Vice President and

Chief Financial Officer

(principal financial officer)

  

Senior Vice President and Controller

(principal accounting officer)

/s/ C. C. Barrett

  

/s/ M. A. Burns

C. C. Barrett    M. A. Burns
Director    Director

/s/ M. K. Clark

  

/s/ T. J. Engibous

M. K. Clark    T. J. Engibous
Director    Director

/s/ K. B. Foster

  

/s/ B. Osborne

K. B. Foster    B. Osborne
Director    Director

/s/ L. H. Roberts

  

/s/ J. G. Teruel

L. H. Roberts

   J. G. Teruel

Director

   Director

/s/ R. G. Turner

  

/s/ M. E. West

R. G. Turner

   M. E. West

Director

   Director

EXHIBIT 31.1

CERTIFICATION

I, Myron E. Ullman, III, certify that:

 

1. I have reviewed this annual report on Form 10-K of J. C. Penney Company, Inc.;

 

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

 

4. The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

 

  (a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

  (b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

 

  (c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

  (d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

 

5. The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

 

  (a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and


  (b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

Date: March 31, 2009

 

/s/ Myron E. Ullman, III

Myron E. Ullman, III
Chairman and
Chief Executive Officer

EXHIBIT 31.2

CERTIFICATION

I, Robert B. Cavanaugh, certify that:

 

1. I have reviewed this annual report on Form 10-K of J. C. Penney Company, Inc.;

 

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

 

4. The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

 

  (a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

  (b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

 

  (c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

  (d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

 

5. The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

 

  (a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and


  (b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

Date: March 31, 2009

 

/s/ Robert B. Cavanaugh

Robert B. Cavanaugh

Executive Vice President and

Chief Financial Officer

EXHIBIT 32.1

CERTIFICATION PURSUANT TO

18 U.S.C. SECTION 1350,

AS ADOPTED PURSUANT TO

SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

In connection with the Annual Report of J. C. Penney Company, Inc. (the “Company”) on Form 10-K for the period ending January 31, 2009 (the “Report”), I, Myron E. Ullman, III, Chairman and Chief Executive Officer of the Company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that to my knowledge:

 

  (1) the Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and

 

  (2) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

DATED this 31st day of March 2009.

 

/s/ Myron E. Ullman, III

Myron E. Ullman, III

Chairman and

Chief Executive Officer

EXHIBIT 32.2

CERTIFICATION PURSUANT TO

18 U.S.C. SECTION 1350,

AS ADOPTED PURSUANT TO

SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

In connection with the Annual Report of J. C. Penney Company, Inc. (the “Company”) on Form 10-K for the period ending January 31, 2009 (the “Report”), I, Robert B. Cavanaugh, Executive Vice President and Chief Financial Officer of the Company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that to my knowledge:

 

  (1) the Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and

 

  (2) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

DATED this 31st day of March 2009.

 

/s/ Robert B. Cavanaugh

Robert B. Cavanaugh

Executive Vice President and

Chief Financial Officer