Release Agreement and Covenant Not to Sue
Exhibit 99.1.2.2
Release Agreement and Covenant Not to Xxx
This Release Agreement and Covenant Not to Xxx is made and given as of the 13th of
January 2006, by Xxxx Xxxxxx (“Executive”), in favor of and for the benefit of Office Depot, Inc.
(the “Company”) (collectively the “Parties”) (the “Release Agreement”).
Recitals
| A. | Executive and the Company are parties to an Employment Agreement originally dated March 22, 2004 (the “Employment Agreement”), which Employment Agreement is being terminated by mutual agreement between the Parties as of May 1, 2006 (the “Retirement Date”). The following provisions of the Employment Agreement, however, shall survive the Retirement Date and are specifically incorporated in this Release Agreement: Sections 5, 6, 8, and 9 through 19 for an unlimited time, and Section 7 for eighteen (18) months after the Retirement Date. To the extent that there is any conflict between the Terms of the Employment Agreement and this Release Agreement, the terms of the Release Agreement shall control; and |
| B. | As a condition of receipt of the benefits provided under the Employment Agreement and the payments and benefits being provided to Executive, including without limitation the severance benefits and other consideration provided by the Company to Executive and by Executive to the Company, the receipt and sufficiency of which are acknowledged by the Parties, the Parties have agreed to enter into this Release Agreement. |
Now therefore, in consideration of the foregoing recitals and other good and valuable
consideration, the parties hereby agree as follows:
1. Benefits and Consideration. Notwithstanding any term contrary in the Employment
Agreement or otherwise, Executive and the Company agree to the following payment of monies,
benefits and other terms.
a. The Company will pay to Executive the lump sum amount of $1,035,000 million, less
applicable taxes and other deductions required by law (the “Lump Sum”). Such Lump Sum
payment shall be made in full on November 3, 2006. In the event of Executive’s death or
disability prior to payment of the Lump Sum, said payment shall be disbursed to Executive’s
estate in accordance with Executive’s Last Will And Testament or applicable law in the
event of death, or to Executive’s personal representative in the
event of disability.
b. Executive shall have until November 5, 2007, in which to exercise any and all stock options
that are vested as of the Retirement Date.
c. The remaining installments of Executive’s Retention Restricted Stock award will be
delivered, less applicable taxes and other deductions required by law, on November 3, 2006.
d. All stock options scheduled to vest through and including May 1, 2006 shall continue to
vest.
e. Executive will receive his regularly scheduled pay through the Retirement Date and will
remain bonus eligible for 2005 performance, based upon the Company’s executive bonus plan.
2. Section 409A Amendment. At all times from and after January 1, 2005, this Release
Agreement and the Employment Agreement between you and the Company shall be operated in accordance
with the requirements of Section 409A of Internal Revenue Code. Any action that may be taken (and,
to the extent possible, any action actually taken) by you and the Company shall not be taken (or
shall be void and without effect), if such action violates the requirements of Section 409A of the
Internal Revenue Code. If the failure to take an action with respect to this Release Agreement
and/or the Employment Agreement would violate Section 409A of the Internal Revenue Code, then to
the extent it is possible thereby to avoid a violation of Section 409A of the Internal Revenue
Code, the rights and effects under this Release Agreement and/or the Employment Agreement, as
applicable, shall be altered to avoid such violation. Any provision
in this Release Agreement or the
Employment Agreement that is determined to violate the requirements of Section
409A of the Internal Revenue Code shall be void and without effect. In addition, any provision
that is required to appear in this Release Agreement or the Employment Agreement to satisfy the
requirements of Section 409A of the Internal Revenue Code, but that is not expressly set forth,
shall be deemed to be set forth therein, and this Release Agreement and/or the Employment
Agreement, as applicable, shall be administered in all respects as if such provision were expressly
set forth. In all cases, the provisions of this paragraph shall apply notwithstanding any contrary
provision of this Release Agreement and/or the Employment Agreement that is not contained in this
paragraph. The Employment Agreement is hereby amended to include this paragraph.
3. Releases. In consideration of the payments and other benefits being provided to
Executive by the Company, which are hereby acknowledged and agreed as being over and above any
existing obligations of the Company to Executive as of the date hereof and as constituting
sufficient consideration for his agreements set forth herein, Executive hereby RELEASES and FOREVER
DISCHARGES the Company and all of its subsidiaries, affiliated companies, and their respective
predecessor entities, their present and former officers, directors, shareholders, agents,
employees, legal representatives, successors, trustees, fiduciaries and assigns (individually a
“Released Party” and collectively the “Released Parties”) of and from (and does hereby WAIVE) any
and all rights, claims, grievances or causes of action (or rights to mediation or arbitration)
which Executive has or could assert, or which could be asserted on his behalf (collectively
“Claims”), against the Released Parties from the beginning of time through the date of the signing
of this Release Agreement, including but not limited to those relating in any manner to his hiring,
employment with the Company or any Released Party, or his separation from such employment, whether
by reason of contract or of any state, federal, or local law, ordinance, or rule, except of course,
any rights provided to Executive by this Release Agreement. However, nothing contained in this
Release Agreement shall be construed to release Executive’s vested rights under the terms of any
employee benefit plan (including without limitation any defined contribution retirement plans) of
the Company in effect during his employment with the Company.
Executive agrees that this Release Agreement and the release contained herein further includes but
is not limited to any and all claims arising under the Florida Civil Rights Act of 1992, the
Florida Whistle Blower Act, the Florida Wage Discrimination Law, the Florida Equal Pay Act, the
Florida AIDS Act, the Florida Discrimination on the Basis of Sickle Cell Trait Law, the Florida
OSHA Law, the Florida Wage Payments Laws, Florida’s statutory provisions regarding
retaliation/discrimination for filing a workers’ compensation claim, the Age Discrimination in
Employment Act, the Americans with Disabilities Act of 1990, Title VII of the Civil Rights Act of
1964, the Civil Rights Act of 1991, Sections 1981 through 1988 of Title 42 of the United States
Code, as amended, the Worker Adjustment and Retraining Notification Act, the Xxxxxxxx-Xxxxx Act of
2002, section 409A of the Internal Revenue Code of 1986, as amended, or the Employee Retirement
Income Security Act (ERISA), as amended, or claims growing out of any legal restrictions on the
Company’s right to terminate its employees, or any other statute, rule, regulation, state or local
law, or ordinance, and any and all common law claims of any nature whatsoever.
Executive understands, among other matters, that he is waiving and releasing the Released Parties
from and against any and all Claims, including without limitation, claims for pain and suffering,
emotional distress, compensatory and punitive damages and for employment discrimination based upon
age (including claims under the federal Age Discrimination in Employment Act of 1967, as amended
the “ADEA”) or any comparable state laws. He also understands that he is waiving and releasing any
Claims based upon gender, national origin, race or color, mental or physical handicap or disability
or religious belief.
4. Waiver. Executive also WAIVES ANY AND ALL RIGHTS under the laws of any jurisdiction in
the United States that would or might limit the foregoing release.
5. Covenant Not to Xxx. Executive also COVENANTS NOT TO XXX the Released Parties, or any
Released Party, for any Claims released hereby.
6. Exclusions from Release. Executive is not releasing and hereby expressly retains any
and all rights to which he is entitled under the terms of this Release Agreement. Executive also
excludes from this Release Agreement and retains any claim for
indemnification to which he may be entitled as a former officer and director of the Company,
whether by contract or under applicable law or the Bylaws of the Company, and the Company hereby
affirmatively agrees to honor such indemnification obligations.
7. Confidentiality, Cooperation. Executive acknowledges and agree that the terms and
provisions of this Release Agreement, as well as any and all incidents leading to or resulting from
this Release Agreement, are confidential and that Executive shall not discuss them with any
individual without the prior written consent of the Company’s Executive Vice President – Human
Resources or General Counsel, except this Release Agreement shall not prohibit Executive from
making required confidential disclosures to Executive’s attorney, accountant, or legally required
disclosures to any governmental authority, or discussing the matter with Employee’s respective
immediate family on a need to know basis or as otherwise required by law. Executive further agrees
that all documents, records, techniques, business secrets and other information that have come into
his possession from time to time during his affiliation with the Company shall be deemed to be
confidential and proprietary to the Company and shall be its sole and exclusive property.
Executive agrees to keep confidential and not use or divulge to any other individual or harm or
destroy any of the Company’s confidential information and business secrets, except as required by
law, and that Executive will promptly return to the Company any and all confidential and
proprietary information, and all property, equipment and materials of the Company that are in his
possession or under his control. He will cooperate with the Company, in any litigation or
administrative proceeding involving any matters with which he was involved during his employment
with the Company. The Company shall reimburse Executive for travel and expenses approved in
advance in writing by the Company, which Executive incurred in providing such assistance.
8. No Disparagement. Except as otherwise required by law, Executive agrees that he will
not make any remarks disparaging the conduct or character of the Company or any of its officers,
directors, employees or agents dealing in any manner with his tenure as an executive with the
Company.
9. Executive’s Rights Under Laws Intended for his Benefit in Signing this Release
Agreement. The Company hereby advises Executive that he
should consult with
an attorney before signing this Release Agreement. Executive will have twenty-one (21) calendar
days from
the day he receives this Release Agreement to execute it. Executive agrees that any
modifications, material or otherwise, made to this Release Agreement do not restart or affect in
any manner the original twenty-one (21) day consideration period. If Executive has not executed
this Release Agreement by the twenty-first day, it will be null and void and revoked. Executive
understands and acknowledges that he has seven (7) calendar days following his execution of this
Release Agreement to revoke his acceptance of this Release Agreement (the “Revocation Period”) and
that this Release Agreement shall not become effective or enforceable until the Revocation Period
has expired. If Executive revokes this Release Agreement within the seven (7) calendar days, this
Release Agreement will be null and void. If Executive does not revoke his execution of this
Release Agreement within the seven (7) calendar days, it will become effective as of the date
hereof. Revocation of this Release Agreement must be made by delivering a written notice of
revocation to the Company’s General Counsel. For this revocation to be effective, written notice
must be received by the General Counsel no later than the close of business on the seventh day
after Executive signs this Release Agreement. In addition, Executive understands and acknowledges
that no monies or other benefits will be paid to Executive pursuant to the terms of the Release
Agreement, until the end of the Revocation Period, except for any amounts otherwise required by
law. Should Executive revoke this Release Agreement or refuse to execute this Release Agreement
within the time frame provided herein, Execution will not be entitled to any monies or other
benefits, as prescribed in this Release Agreement. In such case, Executive shall only be entitled
to those severance benefits allowed under Section 4(c) of the Employment Agreement.
Executive acknowledges he has read and fully considered the foregoing Release Agreement and has had
the opportunity to discuss the advisability of entering into this Release Agreement with his
counsel. Executive acknowledges that he in fact has been given at least twenty-one (21) calendar days to review and consider the provisions of this
Release Agreement and that he is voluntarily and knowingly signing this Release Agreement.
10. Miscellaneous. This Release Agreement shall be governed in all respects by the laws
of the State of Florida. This Release Agreement shall not be construed against either party by
virtue of the drafting hereof by the Company. This Release Agreement constitutes the entire
written understanding of the parties with respect to the subject matter hereof, and may not be
modified, amended or revoked except in writing signed by each party. This Release Agreement shall
inure to the benefit and be binding upon the respective successors, heirs, personal representatives
permitted assignees of the parties. The provisions of this Release Agreement may not be assigned
by the Executive without the prior written consent of the Company.
11. Attorneys’ Fees. In any action or proceeding relating to and/or in connection
with this Release Agreement, the prevailing party shall be entitled to recover its reasonable
attorneys’ fees and costs from the other party.
12. Counterparts and Facsimile Signatures: This Agreement may be executed in
multiple counterparts, each of which shall be deemed to be an original, but all of which together
shall constitute one and the same instrument. Facsimile signatures will be considered original
signatures.
In testimony whereof, witness the signatures of the parties as of the date first written above.
Executive
|
Office Depot, Inc. | |
/s/
Xxxx Xxxxxx
|
/s/ Xxxxx X. Xxxxxx | |
Xxxx Xxxxxx
|
Its: EVP, General Counsel | |
| Xxxxx X. Xxxxxx | ||
Date: January 13, 2006
|
Date: January 13, 2006 |
