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Exhibit 10.3
AGREEMENT
THIS AGREEMENT is made and entered into as of July 17th, 2000 by and between
OFFICE DEPOT, INC., a Delaware corporation (the "COMPANY"), and XXXXX X.
XXXXXXXXX ("EXECUTIVE"), with reference to the following:
A. Executive has been employed by the Company as its Executive
Vice President & Chief Financial Officer pursuant to an
Employment Agreement, dated as of October 21, 1997 and a
Change in Control Agreement dated September 1996 (collectively
the "Employment Agreement"), a copy of which is attached
hereto as ATTACHMENT A.
B. Executive and the Company have decided to terminate the
Employment Agreement (except with respect to the Change in
Control provisions thereof, referred to in section 2(h)
below), pursuant to the Executive's desire to retire from
active employment by the Company ("Retirement") and to replace
the Employment Agreement with this Agreement.
C. Executive and the Company desire by this Agreement to set
forth certain understandings between themselves regarding
Executive's Retirement and certain other agreements reached by
them and to resolve any claims which Executive might have
against the Company for any reason whatsoever.
D. Executive and the Company also desire by this Agreement to set
forth certain additional understandings between them regarding
restrictions on Executive's ability to compete with the
Company.
In consideration of the mutual covenants contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. RETIREMENT OF EXECUTIVE.
Effective upon the date of the appointment of his successor as Chief Financial
Officer of the Company (or on such other date as to which the Company and
Executive shall mutually agree, but at Executive's option not later than October
31, 2000), Executive shall retire from the Company and also shall, as of such
date, resign all offices held by him in the Company or in any
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Subsidiary (1) of the Company. The parties agree to execute a letter
memorializing the date of such retirement and resignations and agree that the
date contained in such letter shall be the "Effective Date" for purposes of
measuring the Term of this Agreement. However, this Agreement shall have legal
force and effect upon execution hereof by each of the parties.
2. CONTINUATION OF BASE SALARY AND BENEFITS; BONUS; STOCK OPTIONS. During the
Term of this Agreement, defined below, the Company shall provide the following
to Executive; provided that Executive does not violate any material provision of
this Agreement or of any of the agreements attached to this Agreement and
incorporated by reference herein which material violation remains uncured beyond
any applicable cure period:
(a) Executive's base salary of $525,000 shall continue for the
period through and including the second anniversary of the
Effective Date , payable in accordance with the Company's
general payroll practices, as in effect on the Effective Date,
and subject to applicable withholdings as required by law.
Such period from the Effective Date through and including the
second anniversary of the Effective Date is herein referred to
as the "Term" of this Agreement.
(b) Executive shall receive an amount equivalent to his "target
bonus" ($315,000) for the years 2000 and 2001, payable not
later than March 1, 2001 for the year 2000 and March 1, 2002
for the year 2001. He shall not receive a bonus attributable
to the year 2002.
(c) In addition to the base salary and target bonus amounts
referred to above, in accordance with the prior practices of
the Company with respect to executives who leave the Company
and execute agreements comparable to this Agreement, providing
among other things for a release of the Company from all
liabilities and claims for liabilities and other
consideration, Executive's matching deferred bonus account
with Xxxxxxx Xxxxx & Company, which would vest by its terms on
December 31, 2000, shall vest in full on and as of such date.
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1 For purposes of this Agreement, "SUBSIDIARY" shall mean any corporation of
which the securities having a majority of the voting power in electing directors
are, at the time of determination, owned by the Company, directly or through one
of more Subsidiaries.
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(d) During the Term of this Agreement (and for any additional time
specified on ATTACHMENT B hereto), Executive shall be eligible
to receive those benefits which are set forth on ATTACHMENT B
to this Agreement.
(e) During the Term of this Agreement and for the period ending on
the last day of January, 2003, Executive shall continue to be
treated as an "employee of the Company " for purposes of the
vesting and exercisability of his outstanding stock options in
accordance with the terms of the applicable stock option plans
and agreements between Executive and the Company; PROVIDED
HOWEVER, that Executive shall not be eligible for any future
stock option grants from and after the date of this Agreement.
In addition, the period of time during which Executive may
exercise stock options held by him shall extend for a period
of twelve (12) months following the end of the Term of this
Agreement (but not later than the expiration of any such stock
option grant).
(f) Executive shall not be considered an "employee of the Company"
for purposes of any benefit plan of the Company which is not
in effect on the date hereof.
(g) In the event of the disability of Executive during the Term,
all payments hereunder shall continue to be paid to him or to
his personal representative. In the event of the death of
Executive during the Term, the Company shall have the option
to continue to make the payments provided, or to pay the
entire remaining obligation to Executive hereunder in a lump
sum (without discount) to Executive's estate. In either event
the Company shall continue to provide the benefits described
on ATTACHMENT B to this Agreement.
(h) In the event of a Change in Control of the Company, as set
forth on ATTACHMENT E to this Agreement, then the provisions
of such ATTACHMENT E, pertaining to Change in Control, shall
take effect and shall override any provisions of this
Agreement to the contrary.
3. CONFIDENTIAL INFORMATION. Executive acknowledges that all the
information, observations and data obtained by Executive while employed by the
Company and its Subsidiaries concerning the business or affairs of the Company
or any Subsidiary ("CONFIDENTIAL INFORMATION") are the property of the Company.
Therefore, Executive agrees that Executive shall
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not disclose to any unauthorized person or use for Executive's own purposes any
Confidential Information without the prior written consent of the Company's
Chief Executive Officer, unless and to the extent that the aforementioned
matters become generally known to and available for use by the public other than
as a result of Executive's acts or omissions. Executive shall deliver to the
Company at the Effective Date, or at such other time as the Company may request,
all memoranda, notes, plans, records, reports, computer tapes, printouts and
software and other documents and data (and copies thereof) in any form or medium
relating to the Confidential Information, Work Product (as defined below) of the
business of the Company or any Subsidiary which Executive may then possess or
have under Executive's control. The provisions of this paragraph 3 shall survive
the termination of this Agreement for an unlimited period of time.
4. INVENTIONS AND PATENTS. Executive acknowledges that all inventions,
innovations, improvements, developments, methods, designs, analyses, drawings,
reports and all similar or related information (whether or not patentable) that
relate to the Company's or any of its Subsidiaries' actual or anticipated
business, research and development or existing or future products or services
and that are conceived, developed or made by Executive while employed by the
Company and its Subsidiaries ("WORK PRODUCT") belong to the Company or such
Subsidiary. Executive shall promptly perform all actions reasonably requested by
the Company (whether during or after the Term) to establish and confirm such
ownership (including, without limitation, assignments, consents, powers of
attorney and other instruments).
5. NON-COMPETE, NON-SOLICITATION. Executive acknowledges that during
the course of Executive's employment with the Company he has, become familiar
with the trade secrets of the Company and its Subsidiaries and that the Company
has a special, unique and extraordinary interest in Executive's not competing
with the businesses of the Company and/or its Subsidiaries. To this end, the
parties are executing on the date hereof the Non-Competition and
Non-Solicitation Agreement attached hereto as ATTACHMENT C.
6. EXECUTIVE'S RELEASE OF LIABILITIES. In consideration of the benefits
provided, and to be provided to Executive, he hereby agrees to execute and
deliver to the Company on the Effective Date, a release of liabilities
("Release") in the form of ATTACHMENT D to this Agreement. Executive understands
and agrees that the continuation of benefits under this Agreement is dependent
upon his execution of such Release and his non-repudiation of such Release
within seven (7) days after his execution of the same.
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7. SURVIVAL. Paragraphs 3, 4 and 5 and paragraphs 9 through 11 hereof
shall survive and continue in full force in accordance with their terms
notwithstanding any termination of the Term. In addition, any provisions of the
Employment Agreement which are expressly incorporated by reference herein, or in
any Attachment to this Agreement, shall survive the execution and delivery of
this Agreement.
8. NOTICES. Any notice provided for in this Agreement shall be in
writing and shall be either personally delivered, or mailed by first class mail,
return receipt requested, to the recipient at the address below indicated:
NOTICES TO EXECUTIVE:
Xxxxx X. Xxxxxxxxx
0000 X. X. 00xx Xxxxxx
Xxxxx Xxxxxxx, XX 00000
NOTICES TO THE COMPANY:
Office Depot, Inc.
0000 Xxx Xxxxxxxxxx Xxxx
Xxxxxx Xxxxx, Xxxxxxx 00000
Attention: Executive Vice President - Human Resources
and
Office Depot, Inc.
0000 Xxx Xxxxxxxxxx Xxxx
Xxxxxx Xxxxx, Xxxxxxx 00000
Attention: General Counsel
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party. Any
notice under this Agreement shall be deemed to have been given when so delivered
or mailed.
9. MISCELLANEOUS PROVISIONS.
A. SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision
of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule
in any jurisdiction, such invalidity, illegality or
unenforceability shall not affect any other provision or any
other jurisdiction, but this Agreement shall be reformed,
construed and enforced in such jurisdiction as if such
invalid, illegal or unenforceable provision had never been
contained herein.
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B. COMPLETE AGREEMENT. This Agreement and those documents
expressly referred to herein and other documents of even date
herewith embody the complete agreement and understanding among
the parties and supersede and preempt any prior
understandings, agreements or representations by or among the
parties, written or oral, which may have related to the
subject matter hereof in any way.
C. NO STRICT CONSTRUCTION; NO WAIVER. The language used in this
Agreement shall be deemed to be the language chosen by the
parties hereto to express their mutual intent, and no rule of
strict construction shall be applied against any party,
including by reason of the fact that such party or its legal
counsel drafted this Agreement. No failure of either party to
insist upon strict performance of any provision of this
Agreement shall be deemed a waiver of that or of any other
right of such party hereunder.
D. COUNTERPARTS. This Agreement may be executed in separate
counterparts, each of which is deemed to be an original and
all of which taken together constitute one and the same
agreement.
E. SUCCESSORS AND ASSIGNS. This Agreement is intended to bind and
inure to the benefit of and be enforceable by Executive, the
Company and their respective heirs, successors and assigns,
except that Executive may not assign Executive's rights or
delegate Executive's obligations hereunder without the prior
written consent of the Company. Without limiting the preceding
sentence, this Agreement shall be binding upon any successor
of the Company by purchase, merger or otherwise, and the
Company shall require any successor (whether direct or
indirect) to all or substantially all of the business and/or
assets of the Company to expressly assume and agree to perform
this Agreement.
F. CHOICE OF LAW. All issues and questions concerning the
construction, validity, enforcement and interpretation of this
Agreement and the exhibits and schedules hereto shall be
governed by, and construed in accordance with, the laws of the
State of Florida, without giving effect to any choice of law
or conflict of law rules or provisions (whether of the State
of Florida or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the
State of Florida.
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G. AMENDMENT AND WAIVER. The provisions of this Agreement may be
amended or waived only with the prior written consent of the
Company and Executive, and no course of conduct or failure or
delay in enforcing the provisions of this Agreement shall
affect the validity, binding effect or enforceability of this
Agreement.
H. INCORPORATION BY REFERENCE. The attachments to this Agreement
are incorporated by reference and made a part hereof as if set
forth at length herein.
I. FURTHER ASSURANCES; COOPERATION. In the event either party is
required to execute any other documentation subsequent to the
execution of this Agreement for the purpose of giving effect
to any provision hereof (for example, any letters of
resignation by Executive from offices held by him or other
similar administrative or executory documentation), then each
of the Company and Executive hereby agrees to provide such
documentation. In addition, each party hereby agrees to
cooperate with the other in any matters in which the parties
may have an interest. For example, Executive hereby agrees to
provide assistance and testimony, as may be required, in any
litigation in which the Company may be involved and as to
which his assistance or testimony may be helpful. The Company
agree to cooperate in scheduling such matters so as not to
interfere with Executive's other activities, including any
employment in which he may be engaged.
10. ARBITRATION. Except as to any controversy or claim which Executive elects by
written notice to the Company, to have adjudicated by a court of competent
jurisdiction, any dispute or controversy between the Company and Executive
arising out of or relating to this Agreement or the breach of this Agreement
shall be settled by arbitration administered by the American Arbitration
Association ("AAA") in accordance with its Commercial Arbitration Rules then in
effect, and judgment on the award rendered by the arbitrator may be entered in
any court having jurisdiction thereof. Any arbitration shall be held before a
single arbitrator who shall be selected by the mutual agreement of the Company
and Executive, unless the parties are unable to agree to an arbitrator, in which
case the arbitrator will be selected under the procedures of the AAA. The
arbitrator shall have the authority to award any remedy or relief that a court
of competent jurisdiction could order or grant, including, without limitation,
the issuance of an injunction. However, either party may, without inconsistency
with this arbitration provision, apply to any court otherwise having
jurisdiction over such dispute or controversy and seek interim provisional,
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injunctive or other equitable relief until the arbitration award is rendered or
the controversy is otherwise resolved. Except as necessary in court proceedings
to enforce this arbitration provision or an award rendered hereunder, or to
obtain interim relief, or as may otherwise be required by law, neither a party
nor an arbitrator may disclose the existence, content or results of any
arbitration hereunder without the prior written consent of the Company and
Executive. The Company and Executive acknowledge that this Agreement evidences a
transaction involving interstate commerce. Notwithstanding any choice of law
provision included in this Agreement, the United States Federal Arbitration Act
shall govern the interpretation and enforcement of this arbitration provision.
The arbitration proceeding shall be conducted in Palm Beach County, Florida or
such other location to which the parties may agree. The Company shall pay the
costs of any arbitrator appointed hereunder
11. CERTAIN OTHER AGREEMENTS BETWEEN THE PARTIES. (a) Anything in this Agreement
to the contrary notwithstanding and except as set forth below, in the event it
shall be determined that any payment or distribution by the Company to or for
the benefit of Executive (whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement, any schedule to this
Agreement, or otherwise, but determined without regard to any additional
payments required under this Section 11) (a "Payment") would be subject to the
excise tax imposed by Section 4999 of the Code or any interest or penalties are
incurred by Executive with respect to such excise tax (such excise tax, together
with any such interest and penalties, are hereinafter collectively referred to
as the "Excise Tax"), then Executive shall be entitled to receive an additional
payment (a "Gross-Up Payment") in an amount such that after payment by Executive
of all taxes (including any interest or penalties imposed with respect to such
taxes), including, without limitation, any income taxes (and any interest and
penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up
Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise
Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this
Section 11, if it shall be determined that Executive is entitled to a Gross-Up
Payment, but that Executive, after taking into account the Payments and the
Gross-Up Payment, would not receive a net after-tax benefit of at least $50,000
(taking into account both income taxes and any Excise Tax) as compared to the
net after-tax proceeds to Executive resulting from an elimination of the
Gross-Up Payment and a reduction of the Payments, in the aggregate, to an amount
(the "Reduced Amount") such that the receipt of Payments would not give rise to
any Excise Tax, then no Gross-Up Payment shall be made to Executive and the
Payments, in the aggregate, shall be reduced to the Reduced Amount.
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(b) Subject to the provisions of Section 11(c) , all
determinations required to be made under this Section 11, including whether and
when a Gross-Up Payment is required and the amount of such Gross-Up Payment and
the assumptions to be utilized in arriving at such determination, shall be made
by Deloitte & Touche or such other certified public accounting firm as may be
designated by Executive (the "Accounting Firm") which shall provide detailed
supporting calculations both to the Company and Executive within 15 business
days of the receipt of notice from Executive that there has been a Payment, or
such earlier time as is requested by the Company. In the event that the
Accounting Firm is serving as accountant or auditor for the individual, entity
or group effecting a change in control of the Company, Executive shall appoint
another nationally recognized accounting firm to make the determinations
required hereunder (which accounting firm shall then be referred to as the
Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall
be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to
this Section 11(b) , shall be paid by the Company to Executive within five days
of the receipt of the Accounting Firm's determination. Any determination by the
Accounting Firm shall be binding upon the Company and Executive. As a result of
the uncertainty in the application of Section 4999 of the Code at the time of
the initial determination by the Accounting Firm hereunder, it is possible that
Gross-Up Payments which will not have been made by the Company should have been
made ("Underpayment"), consistent with the calculations required to be made
hereunder. In the event that the Company exhausts its remedies pursuant to
Section 11(c) and Executive thereafter is required to make a payment of any
Excise Tax, the Accounting Firm shall determine the amount of the Underpayment
that has occurred and any such Underpayment shall be promptly paid by the
Company to or for the benefit of Executive.
(c) Executive shall notify the Company in writing of any claim
by the Internal Revenue Service that, if successful, would require the payment
by the Company of the Gross-Up Payment. Such notification shall be given as soon
as practicable but no later than ten business days after Executive is informed
in writing of such claim and shall apprise the Company of the nature of such
claim and the date on which such claim is requested to be paid. Executive shall
not pay such claim prior to the expiration of the 30-day period following the
date on which it gives such notice to the Company (or such shorter period ending
on the date that any payment of taxes with respect to such claim is due). If the
Company notifies Executive in writing prior to the expiration of such period
that it desires to contest such claim, Executive shall:
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(i) give the Company any information reasonably requested by
the Company relating to such claim,
(ii) take such action in connection with contesting such claim
as the Company shall reasonably request in writing from time to time,
including, without limitation, accepting legal representation with
respect to such claim by an attorney reasonably selected by the
Company,
(iii ) cooperate with the Company in good faith in order
effectively to contest such claim, and
(iv ) permit the Company to participate in any proceedings
relating to such claim;
provided, however, that the Company shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest and shall indemnify and hold Executive harmless, on an
after-tax basis, for any Excise Tax or income tax (including interest and
penalties with respect thereto) imposed as a result of such representation and
payment of costs and expenses.
Without limitation on the foregoing provisions of this Section 11, the Company
shall control all proceedings taken in connection with such contest and, at its
sole option, may pursue or forgo any and all administrative appeals,
proceedings, hearings and conferences with the taxing authority in respect of
such claim and may, at its sole option, either direct Executive to pay the tax
claimed and xxx for a refund or to contest the claim in any permissible manner,
and Executive agrees to prosecute such contest to a determination before any
administrative tribunal, in a court of initial jurisdiction and in one or more
appellate courts, as the Company shall determine; provided, however, that if the
Company directs Executive to pay such claim and xxx for a refund, the Company
shall advance the amount of such payment to Executive, on an interest-free basis
and shall indemnify and hold Executive harmless, on an after-tax basis, from any
Excise Tax or income tax (including interest or penalties with respect thereto)
imposed with respect to such advance or with respect to any imputed income with
respect to such advance; and further provided that any extension of the statute
of limitations relating to payment of taxes for the taxable year of Executive
with respect to which such contested amount is claimed to be due is limited
solely to such contested amount. Furthermore, the Company's control of the
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contest shall be limited to issues with respect to which a Gross-Up Payment
would be payable hereunder and Executive shall be entitled to settle or contest,
as the case may be, any other issue raised by the Internal Revenue Service or
any other taxing authority.
(d) If, after the receipt by Executive of an amount advanced
by the Company pursuant to Section 11(c) above, Executive becomes entitled to
receive any refund with respect to such claim, Executive shall (subject to the
Company's complying with the requirements of Section 11(c) above) promptly pay
to the Company the amount of such refund (together with any interest paid or
credited thereon after taxes applicable thereto). If, after the receipt by
Executive of an amount advanced by the Company pursuant to Section 11(c) , a
determination is made that Executive shall not be entitled to any refund with
respect to such claim and the Company does not notify Executive in writing of
its intent to contest such denial of refund prior to the expiration of 30 days
after such determination, then such advance shall be forgiven and shall not be
required to be repaid and the amount of such advance shall offset, to the extent
thereof, the amount of Gross-Up Payment required to be paid.
* * *
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
OFFICE DEPOT, INC.
By: /s/ Xxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxx
------------------------------
Its: EVP - Human Resources
-------------------------------
/s/ Xxxxx X. Xxxxxxxxx
-----------------------------------
Xxxxx X. Xxxxxxxxx
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ATTACHMENT A
A COPY OF EXECUTIVE'S CURRENT EMPLOYMENT CONTRACT IS ATTACHED TO THIS
AGREEMENT.
Omitted
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ATTACHMENT B
BENEFITS TO WHICH EXECUTIVE IS ENTITLED
1. HEALTH INSURANCE. Executive and his eligible dependents shall be
entitled to the continuation of the same health insurance coverage
Executive and his eligible dependents are receiving on the Effective
Date of the Agreement during the Term of this Agreement. From the end
of the Term of this Agreement until Executive becomes eligible for the
federal Medicare program, or any successor to such program (herein
collectively "Medicare") , the Company shall provide a comparable plan
of health insurance, but such comparable plan may be subject to
co-payments, exclusions and restrictions similar to the Company's PPO
health insurance plans; provided, however, that such comparable plan
shall provide continuous coverage of all conditions covered under the
health insurance plan by which Executive and his eligible dependents
are covered on the Effective Date. From the date on which Executive
becomes eligible for Medicare and ending at the end of Executive's
natural life, the Company shall reimburse Executive and his spouse for
the cost of any policy of Medigap insurance purchased by them,
supplementing coverage provided by Medicare . In the event Executive
should die prior to the death of the person who is his spouse on the
Effective Date of this Agreement, then such spouse shall continue to
receive the health benefits to be provided hereunder to Executive and
his spouse until she becomes eligible for Medicare and thereafter she
shall receive reimbursement for any Medigap insurance purchased by her
from and after such date , during the balance of her natural life.
2. SPLIT DOLLAR LIFE INSURANCE. The Company shall continue the policy of
split dollar life insurance on the life of Executive bearing Policy #
13287193 and having a death benefit of $1 million, through and
including the final date for which premiums are required to be paid
(i.e. through and including 12-31-2004). The Company shall not continue
the second policy of split dollar life insurance on the life of
Executive bearing Policy # (000000) 00 000 000 and having death benefit
of $400,000.
3. OTHER BENEFITS. During the Term, Executive shall continue to enjoy the
other executive benefits to which he currently is entitled, including
without limitation, automobile allowance, tax and financial planning,
participation in other health and welfare plans, if any, use of
cellular telephone and laptop computer.
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4. OUTPLACEMENT BENEFITS. If Executive wishes to receive such benefits, he
shall be entitled to a program of outplacement benefits, including
counseling, an office location, etc.
IT IS EXPRESSLY UNDERSTOOD THAT ALL BENEFITS PAYABLE TO EXECUTIVE WHICH ARE
SUBJECT TO FEDERAL, STATE OR LOCAL INCOME TAXATION SHALL BE PROVIDED NET OF ANY
REQUIRED WITHHOLDING FOR SUCH TAXES, FICA AND MEDICARE PAYMENTS AND ALL OTHER
APPLICABLE WITHHOLDING AMOUNTS.
OFFICE DEPOT, INC. EXECUTIVE
By /s/ Xxxxxx Xxxxxxx /s/ Xxxxx X. Xxxxxxxxx
------------------------------------- --------------------------------
XXXXXX XXXXXXX XXXXX X. XXXXXXXXX
EXECUTIVE VICE PRESIDENT -
HUMAN RESOURCES
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ATTACHMENT C
AGREEMENT OF NON-COMPETITION, NON-SOLICITATION AND NO-HIRE
This Agreement of Non-Competition, Non-Solicitation and No-Hire (this
"Noncompete Agreement") is made and entered into this 17th day of July, 2000 by
and between Office Depot, Inc., a Delaware corporation (the "Company") and Xxxxx
X. Xxxxxxxxx (the "Executive").
RECITALS
A. The Company and Executive are on this date entering into certain
agreements pertaining to Executive's retirement from the Company; and
B. Executive acknowledges that during the course of his employment as a
very senior executive officer of the Company and as such being fully
familiar with the most sensitive, confidential and proprietary
information of the Company ("Confidential Information"); and
C. Executive has been requested by the Company to enter into this
Noncompete Agreement as a condition to the Company's being willing to
enter into the other Agreements being entered into contemporaneously
herewith; and
D. The parties are willing to abide by the terms and provisions of this
Noncompete Agreement;
AGREEMENT
NOW THEREFORE, in consideration of the foregoing recitals, which are
incorporated by reference and made a part hereof, the payment to Executive
referred to in Section 1 below, and other good and valuable consideration, the
parties hereby agree as follows:
1. PAYMENT TO EXECUTIVE; AGREEMENT OF NON-COMPETITION. For and in
consideration of the payments being made to Executive pursuant to
Section 1 of the Agreement to which this Attachment C is attached (the
"Main Agreement"), receipt and sufficiency of which are hereby
acknowledged, and allocating from such payments, the sum of Three
Hundred Thousand Dollars ($300,000) specifically to this Non-Compete
Agreement, Executive acknowledges that in the course of Executive's
employment with the Company Executive has become familiar with the
Company's trade secrets and with other Confidential Information
concerning the Company and its Subsidiaries and that Executive's
services have been of a special, unique and extraordinary value to the
Company and its Subsidiaries. Therefore, and in consideration of the
payment(s) being made to Executive referred to above, Executive agrees
that, during the Term of the Main Agreement and for a period of one
year thereafter, (as used herein, the "NONCOMPETE PERIOD"), Executive
shall not directly or indirectly own or have any interest in, manage,
control, participate in, consult with, render services for, or in any
manner engage in any business competing with the businesses of the
Company or its Subsidiaries, as such businesses exist or are in process
on the Effective Date of the Main Agreement, within any geographical
area in which the Company or its Subsidiaries engage in such businesses
on the Effective Date of the Main Agreement or at any time during the
Term of the Main Agreement. Nothing herein shall prohibit Executive
from being a passive owner of not more than 2% of the outstanding stock
of any class of a corporation which is publicly traded, so long as
Executive has no active participation in the business of such
corporation.
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2. NON-SOLICITATION; NO-HIRE; NON-INTERFERENCE. During the Noncompete
Period, Executive shall not directly, or indirectly through another
entity, (i) induce or attempt to induce any employee of the Company or
any Subsidiary to leave the employ of the Company or such Subsidiary,
or in any way interfere with the relationship between the Company or
any Subsidiary and any employee thereof, (ii) hire any person who was
an employee of the Company or any Subsidiary at the time of termination
of the Employment Term or (iii) induce or attempt to induce any
customer, supplier, licensee, licensor, franchisee or other business
relation of the Company or any Subsidiary to cease doing business with
the Company or such Subsidiary, or in any way interfere with the
relationship between any such customer, supplier, licensee or business
relation and the Company or any Subsidiary (including, without
limitation, making any negative statements or communications about the
Company or its Subsidiaries).
3. REFORMATION OF THIS AGREEMENT. If, at the time of enforcement of this
Noncompete Agreement, any court shall hold that the duration, scope or
geographical restrictions stated herein are unreasonable under the
circumstances then existing, the parties agree that it is their mutual
desire and intent that the Company shall be afforded the maximum
duration, scope or area reasonable under such circumstances, and each
of them hereby requests such court to reform this Agreement so that the
maximum duration, scope and geographical restrictions available under
applicable law at the time of enforcement of this Agreement shall be
substituted by such court for the stated duration, scope or
geographical area stated herein and that the court shall be allowed to
revise the restrictions contained in this Noncompete Agreement to such
provisions as are deemed reasonable by the court at the time such
enforcement is requested.
4. INJUNCTIVE RELIEF. In the event of the breach or any threatened breach
by Executive of any of the provisions of this Noncompete Agreement, the
Company, in addition and supplementary to any and all other rights and
remedies existing in its favor, may apply to any court of law or equity
of competent jurisdiction for specific performance and/or injunctive or
other relief in order to enforce this Noncompete Agreement or to
prevent any violations or threatened violations of the provisions
hereof (without being required to post any bond or other security to
secure such relief). In addition, in the event of any alleged breach or
violation by Executive of this Noncompete Agreement, the Noncompete
Period shall be tolled until such breach or violation has been duly
cured and thereafter the Noncompete Period shall be extended for an
additional period of time equivalent to the time during which Executive
was in breach of this Noncompete Agreement. This provision overrides
the Arbitration provisions of the Main Agreement.
5. INCORPORATION OF TERMS BY REFERENCE. The provisions of the following
number sections of the Main Agreement are incorporated by reference as
if set forth at length herein and shall be deemed to constitute a part
hereof notwithstanding the earlier termination of such Agreement:
Sections 8,9 and 10 of the Main Agreement are incorporated by this
reference.
IN TESTIMONY WHEREOF, the parties have signed this NONCOMPETE AGREEMENT this
17th day of July, 2000.
EXECUTIVE OFFICE DEPOT, INC.
/s/ Xxxxx X. Xxxxxxxxx By: /s/ Xxxxxx Xxxxxxx
------------------------------ ----------------------------------------
Xxxxx X. Xxxxxxxxx Name: Xxxxxx Xxxxxxx
Title: Executive Vice President
- Human Resources
JULY 17, 2000 - FINAL
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ATTACHMENT D
RELEASE AGREEMENT AND COVENANT NOT TO XXX
This Agreement is made and given this 17th day of July, 2000 by Xxxxx X.
Xxxxxxxxx ("Executive") in favor of and for the benefit of Office Depot, Inc.
(the "Company") and certain other parties as more fully set forth below.
RECITALS
A. Executive and the Company have entered into a certain Agreement (the
"Main Agreement") dated July 17th, 2000, to which this Release
Agreement and Covenant Not to Xxx is attached, and pursuant to which
Executive is retiring as Executive Vice President and Chief Financial
Officer of the Company; and
B. As a condition of the payments and benefits being provided to
Executive, receipt and sufficiency of which are acknowledged by
Executive, the Company has required, and Executive is willing to
provide this Release Agreement.
NOW THEREFORE, in consideration of the foregoing recitals and other good and
valuable consideration, the parties hereby agree as follows:
1. 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 and their respective predecessor entities, 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) (collectively "Claims) which Executive has or could assert, or
which could be asserted on his behalf, against the Released Parties, relating in
any manner to his hiring, employment with the Company or any Released Party, his
separation from such employment, whether by reason of contract or of any state,
federal or local law, ordinance or rule.
2. 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 and waiver. Executive understands, among other matters, that he is
waiving and releasing the Released Parties from and against any and all 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 - "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. Executive expressly waives and
releases any right to reinstatement by the Company or any Released Party.
3. COVENANT NOT TO XXX. Executive also COVENANTS NOT TO XXX the Released
Parties, or any Released Party, for any Claims released hereby.
4. 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
Agreement and/or the Main Agreement,
JULY 17, 2000 - FINAL
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including without limitation the payments due to him under the Main Agreement.
Executive also excludes from this Release 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 the Delaware statutes or the Bylaws of
the Company, and the Company hereby affirmatively agrees to honor such
indemnification obligations.
5. RESIGNATIONS. To the extent he has not already done so, Executive hereby
resigns any and all offices held by him in the Company or in any Subsidiary of
the Company, as such terms are defined in the Main Agreement.
6. EXECUTIVE ACKNOWLEDGES THAT THE COMPANY HAS GIVEN HIM ADEQUATE TIME WITHIN
WHICH TO CONSIDER THIS AGREEMENT AND HAS ADVISED HIM IN WRITING TO CONSULT WITH
COUNSEL BEFORE SIGNING THIS AGREEMENT, AND EXECUTIVE HAS HAD AMPLE OPPORTUNITY
TO CONSULT WITH COUNSEL PRIOR TO SIGNING THIS AGREEMENT. EXECUTIVE ACKNOWLEDGES
THAT HE UNDERSTANDS THIS AGREEMENT AND HAS ENTERED INTO THIS AGREEMENT FREELY
AND VOLUNTARILY.
7. THE PARTIES ACKNOWLEDGE THAT FOR A PERIOD OF SEVEN (7) DAYS FOLLOWING THE
EXECUTION OF THIS AGREEMENT BY EXECUTIVE, I.E. ON OR PRIOR TO JULY 24, 2000,
EXECUTIVE MAY REVOKE THIS AGREEMENT. SUCH REVOCATION SHALL BE MADE IN WRITING
AND DELIVERED TO THE EXECUTIVE VICE PRESIDENT, HUMAN RESOURCES, OF THE COMPANY.
IF NOT SO REVOKED IN WRITING SO DELIVERED ON OR BEFORE SUCH DATE, THIS AGREEMENT
SHALL THEREAFTER BE IRREVOCABLE.
8. INCORPORATION BY REFERENCE. The following provisions of the Main Agreement
are incorporated by this reference as if set forth herein: Section 8, 9 and 10.
EXECUTIVE OFFICE DEPOT, INC.
/s/ Xxxxx X. Xxxxxxxxx /s/ Xxxxxx Xxxxxxx
-------------------------- ---------------------------------------
Xxxxx X. Xxxxxxxxx Xxxxxx Xxxxxxx
EVP- Human Resources
JULY 17, 2000 - FINAL
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ATTACHMENT E
PROVISIONS RELATING TO CHANGE IN CONTROL
The Parties hereby agree that the provisions of the following sections of the
Agreement between Executive and the Company dated September 1996 (the "CIC
Agreement") are incorporated by reference herein:
Sections 1, 2, 6, 8, 9 and 11.
In the event of a Change in Control of the Company, as defined in Section 2 of
the CIC Agreement, during the Term of the Agreement to which this Attachment E
is appended (the "Main Agreement"), then thirty (30) days following the event
resulting in such Change in Control, Executive shall be deemed to have
terminated his employment with the Company for "Good Reason" within the meaning
of Section 6 of the CIC Agreement. Accordingly, the Company shall pay to
Executive the benefits provided by Section 6 of the CIC Agreement, in a lump
sum, less the dollar amount of any and all cash payments then and theretofore
paid to Executive under the Main Agreement, It is further agreed that Executive
shall continue to be entitled to the benefits of Section 2(d) and 2(g) of the
Main Agreement (and of Attachment B thereto) in accordance with the terms
thereof, and the obligations to provide such benefits shall be continuously
binding upon any successor entity to the Company following such Change in
Control.
OFFICE DEPOT, INC.
By /s/ XXXXXX XXXXXXX /s/ XXXXX X. XXXXXXXXX
------------------------------- -------------------------------
XXXXXX XXXXXXX XXXXX X. XXXXXXXXX
EVP - HUMAN RESOURCES
JULY 17, 2000 - FINAL
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