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Exhibit 10.2
CHAIRMAN'S AGREEMENT
THIS AGREEMENT is made as of the 19th day of September , 2000 between Office
Depot, Inc., a Delaware corporation (the "COMPANY"), and Xxxxx X. Xxxxxx ("Xx.
Xxxxxx"), an individual resident of Boca Raton, Florida.
In consideration of the mutual covenants contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, including the parties' contemporaneously entering into certain
other agreement of even date, the parties hereto agree as follows:
1. RETENTION AS NON-EXECUTIVE CHAIRMAN OF THE BOARD.
The Company hereby retains Xx. Xxxxxx'x services as non-executive
Chairman of the Board of Directors of the Company for a term beginning on the
date hereof and ending ninety (90) days after either party gives written notice
to the other that it wishes to cancel this Agreement (the "Service Period"),
upon the terms and conditions set forth in this Agreement. The Company's Board
of Directors hereby agrees to cause the Nominating Committee of the Board to
nominate Xx. Xxxxxx for election as a Director of the Company at the Company's
Annual Meeting in 2001. This Agreement may be terminated by either party at any
time upon not less than ninety (90) days prior written notice to the other party
as set forth below.
2. DUTIES.
(a) During the Service Period, Xx. Xxxxxx shall serve as the
non-executive Chairman of the Board of Directors of the Company and shall have
the normal duties, responsibilities and authority of such position, as set forth
in Article V of the Bylaws of the Company, attached to this Agreement as
ATTACHMENT A, subject to the power of the Board of Directors to expand or limit
such duties, responsibilities and authority.
(b) Xx. Xxxxxx shall devote reasonable time and efforts in the
discharge of his duties and, among other things, shall use his best efforts to
attend each and every meeting of the Board of Directors and of any committee of
the Board on which he serves. Xx. Xxxxxx shall perform his duties and
responsibilities under this Agreement to the best of his abilities in a
diligent, trustworthy, businesslike and efficient manner.
(c) For purposes of this Agreement, "SUBSIDIARIES" 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) For purposes of this Agreement, Xx. Xxxxxx is a director of the
Company but he is not an employee of the Company.
3. COMPENSATION.
(a) For serving as non-executive Chairman of the Board during the
Service Period, Xx. Xxxxxx shall be paid compensation in weekly installments at
the rate of $ 1 Million per annum through December 31, 2000 and thereafter at
the rate of $250,000 per annum, which amount shall be payable in accordance with
the Company's general practices for payments to its outside directors. Xx.
Xxxxxx shall not receive any other compensation for serving as a Director of the
Company during the Service Period. Subsequent to the Service Period, as long as
Xx. Xxxxxx is a Director of the Company, he shall receive the same compensation
as is provided to outside Directors of the Company.
(b) In addition, the Company shall reimburse Xx. Xxxxxx for all
reasonable and necessary expenses incurred by him in the course of performing
his duties under this Agreement which are consistent with the Company's policies
in effect from time to time with respect to reimbursement of travel and other
business expenses of Directors of the Company.
4. TERMINATION OF SERVICE.
(a) Xx. Xxxxxx'x service as Chairman may be terminated by either Xx.
Xxxxxx or the Company on at least ninety (90) days' prior written notice to the
other or at any time by mutual consent of the parties; PROVIDED FURTHER that the
Service Period shall terminate immediately and automatically upon Xx. Xxxxxx'x
death or permanent disability or incapacity (as determined by the Board of
Directors in its good faith judgment).
(b) In the event Xx. Xxxxxx'x service as Chairman shall be terminated
by the Company for reasons other than his failure to perform his duties as a
director (other than as a result of illness or incapacity), which shall be
deemed his failure to attend at least 75% of the Board meetings and meetings of
any committees of the Board on which he may serve, after notice from the Board,
the Company shall (i) pay Xx. Xxxxxx the amount he would have otherwise received
had he remained the Chairman, through and including the later of (y) December
31, 2000 or (z) ninety (90) days after the Company provides him written notice
of such termination and (ii) and reimburse him for any expenses incurred by him
as of such date.
(c ) In the event of termination of this Agreement or the Service
Period, prior to the vesting of any unvested stock options held by Xx. Xxxxxx
(as set forth on SCHEDULE 2 to the Severance Agreement dated simultaneously
herewith), his stock options shall continue to vest for as long as he is a
Director, and, if the Board shall decline to nominate him for re-election at the
2002 or any subsequent Annual Meeting of the
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Company (provided that Xx. Xxxxxx has attended at least 75% of the meetings of
the Board or of any Board committee on which he serves), or if the stockholders
shall fail to elect Xx. Xxxxxx as a Director at any such meeting, then any
unvested stock options listed on Schedule 2 to the Severance Agreement shall be
100% vested upon the last date Xx. Xxxxxx serves as a Director of the Company.
In the event Xx. Xxxxxx resigns as a Director prior to such vesting or in the
event he is not nominated for re-election by reason of his having failed to
attend at least 75% of the Board or committee meetings at which his attendance
is expected, then any unvested stock options at the end of his term as a
Director shall expire unvested. Notwithstanding the Company's ability to
terminate this Agreement upon ninety (90) days' notice, the Company's
obligations: (i) as to the Nominating Committee, in Section 1 above, (ii) as to
Director's compensation in Section 3(a) above, (iii) as to the vesting of
previously unvested stock options under this Section 4(c), and (iv) as to the
provision of an office for not less than two (2) years, as set forth in Section
5 below, shall survive and continue in full force and effect, as applicable.
(d) Upon such payment(s) as are set forth above and the option exercise
extension as set forth in Subsection (c ) above, the Company shall have no
further obligation to him except as provided in the Severance Agreement and
except as otherwise provided herein in subsection (e) below.
(e) As set forth in the Severance Agreement, the shares identified
therein (and in SCHEDULE 2 thereto) as the "Retained Shares" shall be and are
deemed to be fully vested.
5. OFFICE. For so long as Xx. Xxxxxx serves as Chairman of the Board of
the Company (but in no event less than two years from the date hereof), the
Company shall provide Xx. Xxxxxx with reasonable office accommodations,
including secretarial/receptionist services and e-mail and voice mail service,
at a location to be mutually determined by the Company and Xx. Xxxxxx in the
Boca Raton/Delray Beach area. During such period of time, Xx. Xxxxxx also may
also maintain a voice mailbox on the voice mail system of the Company. Such
office may be an office with shared secretarial and support services with other
persons, such as the arrangement commonly known as "executive suites" or similar
arrangement.
6. 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:
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NOTICES TO XX. XXXXXX:
ADDRESS: 000 XXXX XXXXX XXXXXX
XXXX XXXXX, XX 00000
NOTICES TO THE COMPANY:
OFFICE DEPOT, INC.
0000 XXXXXXXXXX XXXX
XXXXXX XXXXX, XXXXXXX 00000
ATTENTION: CHIEF EXECUTIVE OFFICER
AND
OFFICE DEPOT, INC.
0000 XXXXXXXXXX XXXX
XXXXXX XXXXX, XXXXXXX 00000
ATTENTION: EXECUTIVE VICE PRESIDENT - HUMAN RESOURCES
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.
7. INCORPORATION OF TERMS BY REFERENCE. The parties hereby agree to
incorporate by reference herein, and by this reference do incorporate by
reference as if set forth at length herein, all the provisions of Sections 20
and 21 of the Severance Agreement of even date herewith.
8. COMPLETE AGREEMENT. Without limitation of Section 6 above, this
Agreement and those documents expressly referred to herein and other documents
of even date herewith, including the Severance Agreement, 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.
9. 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.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
OFFICE DEPOT, INC.
By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title: EVP - Human Resources
XX. XXXXXX
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Date: 9/19/00
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ATTACHMENT A
ARTICLE V OF THE BYLAWS OF OFFICE DEPOT, INC.
ARTICLE V
[AS AMENDED BY ACTION OF THE BOARD OF DIRECTORS, AUGUST 3, 2000]
OFFICERS
SECTION 1. NUMBER AND AUTHORITY. The Board of Directors of the
corporation shall from time to time, elect from its membership, a Chairman of
the Board. He may be a non-executive of the Company, in which event he shall not
be an officer of the corporation. The officers of the corporation shall consist
of at least the following: (1) a Chief Executive Officer, (2) a Chief Financial
Officer, (3) a Secretary and (4) a Treasurer.
The Board of Directors may appoint such other officers and agents,
including but not limited to, one or more Presidents of Divisions or Business
Groups, one or more Executive Vice Presidents, Senior Vice Presidents, Vice
Presidents, Assistant Vice Presidents, Assistant Secretaries and Assistant
Treasurers, as it shall at any time or from time to time deem necessary or
advisable. Pursuant to Section 10 of this Article V, the Board of Directors
hereby delegates to the Chief Executive Officer the right to appoint such Vice
Presidents and Assistant Vice Presidents, Assistant Secretaries and Assistant
Treasurers, as he shall deem appropriate and necessary from to time. The Board
shall elect all other officers.
Any number of offices may be held by the same person, except that
neither the Chief Executive Officer nor any President shall also hold the office
of either Treasurer or Secretary. All officers, as between themselves and the
corporation, shall have such authority and perform such duties in the management
of the business and affairs of the corporation as may be provided in these
Bylaws, or, to the extent not so provided, as may be prescribed by the Board of
Directors or by the Chief Executive Officer.
SECTION 2. ELECTION AND TERM OF OFFICE. The officers of the corporation
shall be elected at least once annually by the Board of Directors. Vacancies may
be filled or new offices created and filled at any meeting of the Board of
Directors. Each officer shall hold office until the next annual meeting of the
Board of Directors or until a successor is duly elected and qualified or until
his or her earlier resignation or removal as herein provided.
SECTION 3. REMOVAL. All officers and agents shall hold office at the
pleasure of the Board of Directors, and any officer or agent elected or
appointed by the Board of Directors may be removed at any time by the Board of
Directors for cause or without cause at any regular or special meeting, but such
removal shall be without prejudice to the contract rights, if any, of the person
so removed.
SECTION 4. VACANCIES. Any vacancy occurring in any office because of
death, resignation, removal, disqualification or otherwise, may be filled by
resolution of the Board of Directors.
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SECTION 5. COMPENSATION. Compensation of all officers and agents shall
be fixed by or in the manner prescribed by the Board of Directors, and no
officer shall be prevented from receiving such compensation by virtue of his or
her also being a director of the corporation.
SECTION 6. CHAIRMAN OF THE BOARD. The Chairman of the Board shall
preside at all meetings of the directors, or he may delegate such duties to the
Chief Executive Officer. The Chairman shall perform such other duties as are
required of him by the Board of Directors and shall have no other duties except
such as are delegated to him by the Board.
SECTION 7. CHIEF EXECUTIVE OFFICER. The Chief Executive Officer of the
corporation shall have the general charge of the business and affairs of the
corporation and shall oversee the management of the business of the corporation.
In the absence of the Chairman, or if designated to do so by the Board of
Directors, he shall preside at all meetings of the stockholders and of the
directors and shall exercise the other powers and perform the other duties of
the Chairman or designate the executive officers of the corporation by whom such
other powers shall be exercised and other duties performed. He shall see to it
that all resolutions and orders of the Board of Directors are carried into
effect, and he shall have full power of delegation in so doing. He shall have
such other powers and perform such other duties as the Board of Directors or
these Bylaws may, from time to time, prescribe. The Chief Executive Officer
shall have the power to execute any and all instruments and documents on behalf
of the corporation and to delegate to any other officer of the corporation the
power to execute any and all such instruments and documents.
SECTION 8. SECRETARY. The Secretary shall attend all meetings of the
Board of Directors and its committees and all meetings of the stockholders and
shall record all the proceedings of the meetings in a book or books to be kept
for that purpose; he shall see that all notices required to be given by these
Bylaws or by law are duly given in accordance with the provisions of these
Bylaws or as required by law; he shall be the custodian of the records and of
the corporate seal or seals of the corporation; he shall have authority to affix
the corporate seal or seals to all documents, the execution of which, on behalf
of the corporation, under its seal, is duly authorized, and when so affixed it
may be attested by his signature; and in general, he shall perform all duties
incident to the office of the Secretary of a corporation, and such other duties
as the Board of Directors or the Chief Executive Officer may from time to time
prescribe.
SECTION 9. TREASURER. The Treasurer shall have charge of and be
responsible for all funds, securities, receipts and disbursements of the
corporation and shall deposit, or cause to be deposited, all moneys and other
valuable effects in the name and to the credit of the corporation in such banks,
trust companies, or other depositories as shall from time to time be selected by
the Board of Directors. He shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation; he shall render to the
Chairman of the Board and to each member of the Board of Directors, whenever
requested, an account of the Treasurer's actions and of the financial condition
of the corporation. The Treasurer shall perform all of the duties incident to
the office of the Treasurer of a corporation, and have such other powers and
perform such other duties as the Board of Directors may, from time to time,
prescribe. In the event the corporation shall fail to have a Treasurer at any
time, then the duties of the Treasurer may be assumed and performed by the Chief
Financial Officer and delegated by him to one or more assistant Treasurers.
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SECTION 10. OTHER OFFICERS, ASSISTANT OFFICERS AND AGENTS. The Board of
Directors may also elect or may delegate to the Chief Executive Officer the
power to appoint such other officers, assistant officers and agents, as it may
at any time or from time to time deem advisable, and any officers so elected or
appointed shall have such authority and perform such duties as the Board of
Directors or the Chief Executive Officer may from time to time prescribe.
SECTION 11. RESERVATION OF AUTHORITY. All other powers not expressly
delegated or provided for herein, or in the Delaware General Corporation Law to
any officer, are expressly reserved to the Board of Directors and may be
delegated by it to any officer by resolution adopted from time to time by the
Board of Directors.
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