{"id":38622,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/change-of-control-agreement-office-depot-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"change-of-control-agreement-office-depot-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/change-of-control-agreement-office-depot-inc.html","title":{"rendered":"Change of Control Agreement – Office Depot, Inc."},"content":{"rendered":"

Change in Control Agreement <\/strong><\/p>\n

THIS CHANGE IN CONTROL AGREEMENT is made by and between Office Depot, Inc., a
\nDelaware corporation (the “Company”), and Neil R. Austrian (the “Executive”) and
\nis dated as of the date signed by the Executive.<\/p>\n

The Board of Directors of the Company (the “Board”) has determined that it is
\nin the best interests of the Company and its shareholders to assure that the
\nCompany will have the continued dedication of the Executive, notwithstanding the
\npossibility, threat or occurrence of a Change in Control (as defined below) of
\nthe Company. The Board believes it is imperative to diminish the inevitable
\ndistraction of the Executive by virtue of the personal uncertainties and risks
\ncreated by a pending or threatened Change in Control and to encourage the
\nExecutive153s full attention and dedication to the Company currently and in the
\nevent of any threatened or pending Change in Control, and to provide the
\nExecutive with compensation and benefits arrangements upon a Change in Control
\nwhich ensure that the compensation and benefits expectations of the Executive
\nwill be satisfied and which are competitive with those of other corporations.
\nTherefore, in order to accomplish these objectives, the Board has caused the
\nCompany to enter into this Agreement.<\/p>\n

NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:<\/p>\n

1. Certain Definitions<\/u>. (a) The “Effective Date” shall mean the first
\ndate during a Change in Control Period (as defined in Section 1(b)) on which a
\nChange in Control (as defined in Section 2) occurs. Anything in this Agreement
\nto the contrary notwithstanding, if a Change in Control occurs and if the
\nExecutive153s employment with the Company is terminated prior to the date on which
\nthe Change in Control occurs, and if it is reasonably demonstrated by the
\nExecutive that such termination of employment (i) was at the request of a third
\nparty who has taken steps reasonably calculated to effect a Change in Control or
\n(ii) otherwise arose in connection with or anticipation of a Change in Control,
\nthen for all purposes of this Agreement the “Effective Date” shall mean the date
\nimmediately prior to the date of such termination of employment.<\/p>\n

(b) The “Change in Control Period” shall mean the period commencing on the
\ndate this Agreement is signed by the Executive or the first day following the
\nexpiration of an Employment Period, and ending on the next December 31 after
\nsuch date; provided that, on each such first December 31, and on each annual
\nanniversary of such date (such date and each annual anniversary thereof shall be
\nhereinafter referred to as the “Renewal Date”), unless previously terminated,
\nthe Change in Control Period shall be automatically extended for one additional
\nyear, from year to year unless at least 60 days prior to any Renewal Date, the
\nCompany shall give notice to the Executive that the Change in Control Period
\nshall not be so extended, in which case this Agreement shall terminate on such
\nnext December 31 (the “Expiration Date”).<\/p>\n

(c) An “Exempt Person” shall mean any employee benefit plan of the Company or
\na subsidiary or a trustee or other administrator or fiduciary holding securities
\nunder an employee benefit plan of the Company or a subsidiary.<\/p>\n

– 1 –<\/p>\n

\n

2. For purposes of this Agreement, “CHANGE IN CONTROL” means the occurrence
\nof one of the following events after the date of this Agreement:<\/p>\n

(a) if any “person” or “group” as those terms are used in Sections 12(d) and
\n13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (a
\n“Person”), other than an Exempt Person, is or becomes the “beneficial owner” (as
\ndefined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
\nsecurities of the Company representing 30% or more (the “CIC percentage”) of the
\ncombined voting power of the Company153s then outstanding securities; provided,
\nhowever, that if such Person first obtains the approval of the Board to acquire
\nthe CIC percentage, then no Change in Control shall be deemed to have occurred
\nunless and until such Person obtains a CIC percentage ownership of the combined
\nvoting power of the Company153s then outstanding securities without having first
\nobtained the approval of the Board; or<\/p>\n

(b) if any Person, other than an Exempt Person, is or becomes the “beneficial
\nowner” (as defined in Rule 13d-3 under the Exchange Act), directly or
\nindirectly, of securities of the Company representing greater than 50% of the
\ncombined voting power of the Company153s then outstanding securities, whether or
\nnot the Board shall have first given its approval to such acquisition; or<\/p>\n

(c) during any period of two consecutive years, individuals who at the
\nbeginning of such period constitute the Board and any new Directors whose
\nelection by the Board or nomination for election by the Company153s stockholders
\nwas approved by at least two-thirds of the Directors then still in office who
\neither were Directors at the beginning of the period or whose election was
\npreviously so approved, cease for any reason to constitute a majority thereof;
\nor<\/p>\n

(d) the consummation of a merger or consolidation of the Company with any
\nother corporation; provided, however, a Change in Control shall not be deemed to
\nhave occurred: (i) if such merger or consolidation would result in all or a
\nportion of the voting securities of the Company outstanding immediately prior
\nthereto continuing to represent (either by remaining outstanding or by being
\nconverted into voting securities of the surviving entity) either directly or
\nindirectly more than 50% of the combined voting power of the voting securities
\nof the Company or such surviving entity outstanding immediately after such
\nmerger or consolidation, or (ii) if the corporate existence of the Company is
\nnot affected and following the merger or consolidation, the majority of the
\nCompany153s Executive Committee, or if no such body then exists, the majority of
\nthe Chief Executive Officer, Chief Financial Officer and Presidents (or other
\nheads, regardless of title) of the principal operating units of the Company
\nretain their positions with the Company (disregarding any such executive whose
\nemployment terminates for reasons other than due to a termination by the Company
\nwithout cause or a termination by such executive for good reason) and the
\nDirectors of the Company prior to such merger or consolidation constitute at
\nleast a majority of the Board of the Company or the entity that directly or
\nindirectly controls the Company after such merger or consolidation; or<\/p>\n

(e) the sale or disposition by the Company of all or substantially all the
\nCompany153s assets, other than a sale to an Exempt Person; or<\/p>\n

(f) the stockholders of the Company approve a plan of complete liquidation or
\ndissolution of the Company.<\/p>\n

– 2 –<\/p>\n

\n

Notwithstanding anything herein, for the avoidance of doubt, for purposes of
\ndetermining whether any Change in Control occurs after the date of this
\nAgreement, any sale or transfer by BC Partners Ltd. (“BC Partners”) or their
\naffiliates of equity interests in the Company (other than a sale occurring
\ntogether with one or more other shareholders of the Company acting as a group as
\npart of a single transaction) shall be disregarded, and any acquisition or
\ncontinued holding by BC Partners or their affiliates of equity interests in the
\nCompany shall be disregarded for purposes of Section 2(a).<\/p>\n

3. Employment Period<\/u>. The Company hereby agrees to continue the
\nExecutive in its employ, and the Executive hereby agrees to remain in the employ
\nof the Company subject to the terms and conditions of this Agreement, for each
\nperiod commencing on an Effective Date and ending on the first anniversary of
\nsuch date (an “Employment Period”). Such period may be extended in writing by
\nthe mutual agreement of the Company and Executive at any time prior to such
\nfirst anniversary. During an Employment Period, this Agreement shall exclusively
\ngovern the terms of the compensation and benefits the Executive shall be
\nentitled to receive notwithstanding any other agreement or arrangement between
\nthe parties with respect to the subject matter hereof. Notwithstanding the prior
\nsentence, to the extent the Executive would otherwise be entitled to receive a
\nretention bonus or similar payment (“Retention Payment”) under another agreement
\nwith the Company if this Agreement did not otherwise control during the
\nEmployment Period, such Retention Payment shall be payable to Executive under
\nthe terms of such other agreement in addition to any benefits payable to
\nExecutive pursuant to this Agreement. Upon expiration of an Employment Period, a
\nnew Change in Control Period shall commence pursuant to Section 1(b); and unless
\notherwise provided herein, this Agreement does not terminate and remains subject
\nto future Change in Control occurrences. In the event that the Expiration Date
\noccurs prior to the Effective Date for an Employment Period, this Agreement
\nshall terminate as of the Expiration Date; and the Company shall have no further
\nobligations to the Executive hereunder.<\/p>\n

4. Terms of Employment<\/u>. (a) Position and Duties<\/u>. (i) During an
\nEmployment Period, (A) the Executive153s position (including status, offices,
\ntitles and reporting requirements), authority, duties and responsibilities shall
\nbe at least commensurate in all material respects with the most significant of
\nthose held, exercised and assigned at any time during the 120-day period
\nimmediately preceding the Effective Date and (B) the Executive153s services shall
\nbe performed at the location where the Executive was employed immediately
\npreceding the Effective Date or any office or location less than 35 miles from
\nsuch location.<\/p>\n

(ii) During an Employment Period, and excluding any periods of vacation and
\nsick leave to which the Executive is entitled, the Executive agrees to devote
\nreasonable attention and time during normal business hours to the business and
\naffairs of the Company and, to the extent necessary to discharge the
\nresponsibilities assigned to the Executive hereunder, to use the Executive153s
\nreasonable best efforts to perform faithfully and efficiently such
\nresponsibilities. During an Employment Period it shall not be a violation of
\nthis Agreement for the Executive to (A) serve on corporate, civic or charitable
\nboards or committees, (B) deliver lectures, fulfill speaking engagements or
\nteach at educational institutions, and (C) manage personal investments, so long
\nas such activities do not significantly interfere with the performance of the
\nExecutive153s responsibilities as an employee of the Company in accordance with
\nthis Agreement. It is expressly understood and agreed that to the extent that
\nany such activities have been conducted by the Executive prior to the Effective
\nDate, the continued conduct of such activities (or the conduct of activities
\nsimilar in nature and scope thereto) subsequent to the Effective Date shall not
\nthereafter be deemed to interfere with the performance of the Executive153s
\nresponsibilities to the Company.<\/p>\n

– 3 –<\/p>\n

\n

(b) Compensation<\/u>. (i) Base Salary<\/u>. During an Employment Period,
\nthe Executive shall receive an annual base salary, including any applicable car
\nallowance (“Annual Base Salary”), which shall be paid in installments in
\naccordance with the Company153s standard payroll practices for salary, at least
\nequal to twelve times the highest monthly base salary and car allowance paid or
\npayable, including any base salary which has been earned but deferred, to the
\nExecutive by the Company and its affiliated companies in respect of the
\ntwelve-month period immediately preceding the month in which the Effective Date
\noccurs. During an Employment Period, the Annual Base Salary shall be reviewed no
\nmore than 12 months after the last salary increase awarded to the Executive
\nprior to the Effective Date and thereafter at least annually. Any increase in
\nAnnual Base Salary shall not serve to limit or reduce any other obligation to
\nthe Executive under this Agreement. Annual Base Salary shall not be reduced
\nafter any such increase and the term Annual Base Salary as utilized in this
\nAgreement shall refer to Annual Base Salary as so increased. As used in this
\nAgreement, the term “affiliated companies” shall include any company controlled
\nby, controlling or under common control with the Company.<\/p>\n

(ii) Annual Bonus<\/u>. In addition to Annual Base Salary, the Executive
\nshall be awarded, for each fiscal year ending during an Employment Period, an
\nannual bonus (the “Annual Bonus”) in cash at least equal to the Executive153s
\nhighest bonus under the Company153s annual bonus plans, or any comparable bonus
\nunder any predecessor or successor plan or plans, for the last three full fiscal
\nyears prior to the Effective Date (annualized in the event that the Executive
\nwas not employed by the Company for the whole of such fiscal year).
\nNotwithstanding the previous sentence, the Executive shall be awarded the Annual
\nBonus only if the Executive is employed by the Company at the end of the
\napplicable fiscal year ending during an Employment Period. Each such Annual
\nBonus shall be paid in the fiscal year next following the fiscal year for which
\nthe Annual Bonus is awarded, no later than the fifteenth day of the third month
\nof such fiscal year, unless the Executive shall elect to defer the receipt of
\nsuch Annual Bonus pursuant to the terms of any deferred compensation arrangement
\nmaintained by the Company that permits such deferral.<\/p>\n

(iii) Incentive, Savings and Retirement Plans<\/u>. During an Employment
\nPeriod, the Executive shall be entitled to participate in all incentive, savings
\nand retirement plans, practices, policies and programs applicable generally to
\nother peer Executives of the Company and its affiliated companies, but in no
\nevent shall such plans, practices, policies and programs provide the Executive
\nwith incentive opportunities (measured with respect to both regular and special
\nincentive opportunities, to the extent, if any, that such distinction is
\napplicable), savings opportunities and retirement benefit opportunities, in each
\ncase, less favorable, in the aggregate, than the most favorable of those
\nprovided by the Company and its affiliated companies for the Executive under
\nsuch plans, practices, policies and programs as in effect at any time during the
\n120-day period immediately preceding the Effective Date or if more favorable to
\nthe Executive, those provided generally at any time after the Effective Date to
\nother peer executives of the Company and its affiliated companies.<\/p>\n

(iv) Welfare Benefit Plans<\/u>. During an Employment Period, the Executive
\nand\/or the Executive153s family, as the case may be, shall be eligible for
\nparticipation in and shall receive all benefits under welfare benefit plans,
\npractices, policies and programs provided by the Company and its affiliated
\ncompanies (including, without limitation, medical, prescription, dental,
\ndisability, employee life, group life, accidental death and travel accident
\ninsurance plans and programs) to the extent applicable generally to other peer
\nexecutives of the Company and its affiliated companies, but in no event shall
\nsuch plans, practices, policies and programs provide the Executive with benefits
\nwhich are less favorable, in the aggregate, than the most favorable of such
\nplans, practices, policies and programs in effect for the Executive at any time
\nduring the 120-day period immediately preceding the Effective Date or, if more
\nfavorable to the Executive, those provided generally at any time after the
\nEffective Date to other peer executives of the Company and its affiliated
\ncompanies.<\/p>\n

– 4 –<\/p>\n

\n

(v) Expenses<\/u>. During an Employment Period, the Executive shall be
\nentitled to receive prompt reimbursement for all reasonable expenses incurred by
\nthe Executive in accordance with the most favorable policies, practices and
\nprocedures of the Company and its affiliated companies in effect for the
\nExecutive at any time during the 120-day period immediately preceding the
\nEffective Date or, if more favorable to the Executive, as in effect generally at
\nany time thereafter with respect to other peer executives of the Company and its
\naffiliated companies. To the extent that any such reimbursement does not qualify
\nfor exclusion from Federal income taxation, the Company will make the
\nreimbursement only if the Executive incurs the corresponding expense during an
\nEmployment Period and submits the request for reimbursement no later than two
\nmonths prior to the last day of the calendar year following the calendar year in
\nwhich the expense was incurred so that the Company can make the reimbursement on
\nor before the last day of the calendar year following the calendar year in which
\nthe expense was incurred; the amount of expenses eligible for such reimbursement
\nduring a calendar year will not affect the amount of expenses eligible for such
\nreimbursement in another calendar year, and the right to such reimbursement is
\nnot subject to liquidation or exchange for another benefit from the Company.\n<\/p>\n

(vi) Fringe Benefits<\/u>. During an Employment Period, the Executive shall
\nbe entitled to fringe benefits, including, without limitation, tax and financial
\nplanning services, payment of club dues, and, if applicable, use of an
\nautomobile and payment of related expenses, in accordance with the most
\nfavorable plans, practices, programs and policies of the Company and its
\naffiliated companies in effect for the Executive at any time during the 120-day
\nperiod immediately preceding the Effective Date or, if more favorable to the
\nExecutive, as in effect generally at any time thereafter with respect to other
\npeer executives of the Company and its affiliated companies.<\/p>\n

(vii) Office and Support Staff<\/u>. During an Employment Period, the
\nExecutive shall be entitled to an office or offices of a size and with
\nfurnishings and other appointments, and to exclusive personal secretarial and
\nother assistance, at least equal to the most favorable of the foregoing provided
\nto the Executive by the Company and its affiliated companies at any time during
\nthe 120-day period immediately preceding the Effective Date or, if more
\nfavorable to the Executive, as provided generally at any time thereafter with
\nrespect to other peer executives of the Company and its affiliated companies.\n<\/p>\n

(viii) Vacation<\/u>. During an Employment Period, the Executive shall be
\nentitled to paid vacation in accordance with the most favorable plans, policies,
\nprograms and practices of the Company and its affiliated companies as in effect
\nfor the Executive at any time during the 120-day period immediately preceding
\nthe Effective Date or, if more favorable to the Executive, as in effect
\ngenerally at any time thereafter with respect to other peer executives of the
\nCompany and its affiliated companies.<\/p>\n

5. Termination of Employment<\/u>. (a) Death or Disability<\/u>. The
\nExecutive153s employment shall terminate automatically upon the Executive153s death
\nor Disability during an Employment Period. For purposes of this Agreement,
\n“Disability” shall mean the absence of the Executive from the Executive153s duties
\nwith the Company on a full-time basis for 180 consecutive days as a result of
\nincapacity due to mental or physical illness which is determined to be total and
\npermanent by a physician selected by the Company or its insurers and acceptable
\nto the Executive or the Executive153s legal representative.<\/p>\n

– 5 –<\/p>\n

\n

(b) Cause<\/u>. The Company may terminate the Executive153s employment during
\nan Employment Period for Cause. For purposes of this Agreement, “Cause” shall
\nmean:<\/p>\n

(i) the continued failure of the Executive to perform substantially the
\nExecutive153s duties with the Company or one of its affiliates (other than any
\nsuch failure resulting from incapacity due to physical or mental illness), after
\na written demand for substantial performance is delivered to the Executive by
\nthe Board or the Chief Executive Officer of the Company which specifically
\nidentifies the manner in which the Board or Chief Executive Officer believes
\nthat the Executive has not substantially performed the Executive153s duties, or\n<\/p>\n

(ii) the engaging by the Executive in illegal conduct or gross misconduct in
\nviolation of the Company153s Code of Ethical Behavior.<\/p>\n

Any act, or failure to act, based upon authority given pursuant to a
\nresolution duty adopted by the Board or upon the instructions of the Chief
\nExecutive Officer or a senior officer of the Company or based upon the advice of
\ncounsel for the Company shall be conclusively presumed to be done, or omitted to
\nbe done, by the Executive in good faith and in the best interests of the
\nCompany. The cessation of employment of the Executive shall not be deemed to be
\nfor Cause unless and until there shall have been delivered to the Executive a
\ncopy of a resolution duly adopted by the Company153s Board of Directors, finding
\nthat, in the good faith opinion of the Board, the Executive is guilty of the
\nconduct described in subsection (i) or (ii) above, and specifying the
\nparticulars thereof in detail.<\/p>\n

(c) Good Reason<\/u>. The Executive153s employment may be terminated by the
\nExecutive for Good Reason within the 1 year period following the date of the
\ninitial existence of the event or circumstances constituting Good Reason. For
\npurposes of this Agreement, “Good Reason” shall mean:<\/p>\n

(i) a material diminution in the Executive153s authority, duties or
\nresponsibilities with the Company;<\/p>\n

(ii) a material failure by the Company to comply with any of the provisions
\nof Section 4(b) of this Agreement;<\/p>\n

(iii) a material change in the office or location at which the Company
\nrequires the Executive to based during an Employment Period or the Company153s
\nrequiring the Executive to travel on Company business to a substantially greater
\nextent than required immediately prior to the Effective Date; or<\/p>\n

(iv) any material failure by the Company to comply with and satisfy Section
\n13(c) of this Agreement;<\/p>\n

provided, however, that the Executive will have Good Reason to terminate
\nemployment only if (i) the Executive provides notice to the Chief Executive
\nOfficer of the Company of the existence of the event or circumstances
\nconstituting Good Reason specified in any of the preceding clauses within 90
\ndays of the initial existence of such event or circumstances, and (ii) the
\nCompany does not remedy such event or circumstances within 30 days following
\nreceipt of such notice.<\/p>\n

– 6 –<\/p>\n

\n

(d) Resignation by Executive Without Good Reason or Termination By Company
\nWithout Cause<\/u>. The Executive153s employment may be terminated by the Executive
\nwithout Good Reason or by the Company without Cause during an Employment Period.\n<\/p>\n

(e) Notice of Termination<\/u>. Any termination by the Company for Cause,
\nor by the Executive for Good Reason, shall be communicated by Notice of
\nTermination to the other party hereto given in accordance with Section 14(b) of
\nthis Agreement. For purposes of this Agreement, a “Notice of Termination” means
\na written notice which (i) indicates the specific termination provision in this
\nAgreement relied upon, (ii) to the extent applicable, sets forth in reasonable
\ndetail the facts and circumstances claimed to provide a basis for termination of
\nthe Executive153s employment under the provision so indicated and (iii) if the
\nDate of Termination (as defined below) is other than the date of receipt of such
\nnotice, specifies the termination date (which date shall be not more than thirty
\ndays after the giving of such notice). The failure by the Executive or the
\nCompany to set forth in the Notice of Termination any fact or circumstance which
\ncontributes to a showing of Good Reason or Cause shall not waive any right of
\nthe Executive or the Company, respectively, hereunder or preclude the Executive
\nor the Company, respectively, from asserting such fact or circumstance in
\nenforcing the Executive153s or the Company153s rights hereunder.<\/p>\n

(f) Date of Termination<\/u>. “Date of Termination” means (i) if the
\nExecutive153s employment is terminated by the Company for Cause or by the
\nExecutive for Good Reason, the date of receipt of the Notice of Termination or
\nany later date specified therein, as the case may be, (ii) if the Executive153s
\nemployment is terminated by the Company other than for Cause, the Date of
\nTermination shall be the date on which the Company notifies the Executive of
\nsuch termination, (iii) if the Executive153s employment is terminated by reason of
\ndeath or Disability, the Date of Termination shall be the date of death of the
\nExecutive or the date on which the definition of “Disability” is first satisfied
\nwith respect to the Executive, and (iv) if the Executive is terminated at the
\nrequest of a third party or otherwise in connection with or in anticipation of a
\nChange in Control as described in the last sentence of Section 1(a), the Date of
\nTermination shall be the date on which the corresponding Change in Control
\noccurs.<\/p>\n

6. Obligations of the Company upon Termination<\/u>. (a) Good Reason; By
\nCompany Other Than for Cause<\/u>. If, during an Employment Period, the Company
\nshall terminate the Executive153s employment other than for Cause, or the
\nExecutive shall terminate employment for Good Reason within the 1 year period
\nfollowing the date of the initial existence of the event or circumstances
\nconstituting Good Reason:<\/p>\n

(i) the Company shall pay to the Executive the following amounts:<\/p>\n

A. the sum of (1) the Executive153s Annual Base Salary through the Date of
\nTermination to the extent not theretofore paid which shall be paid in accordance
\nwith the Company153s standard payroll practices for salary, (2) in lieu of any
\nbonus that might otherwise have been payable to the Executive under the
\nCompany153s annual bonus plan(s) for the corresponding bonus period(s) that
\ncontain the Date of Termination, the product of: (x) the Executive153s bonus
\ncalculated at “target” under the Company153s annual bonus plan(s) for the fiscal
\nyear in which the Date of Termination occurs (and annualized for any fiscal year
\nconsisting of less than twelve full months or during which the Executive was
\nemployed for less than twelve full months) (the “Target Annual Bonus”), and (y)
\na fraction, the numerator of<\/p>\n

– 7 –<\/p>\n

\n

which is the number of days in the current fiscal year through the Date of
\nTermination, and the denominator of which is 365 which shall be paid in a lump
\nsum payment, less applicable taxes and other deductions required by law, on the
\nfirst pay period following the sixty (60) day anniversary of the Date of
\nTermination, and (3) any accrued vacation pay due under the terms of the
\nCompany153s vacation policy to the extent not theretofore paid which shall be paid
\nat the time specified in the Company153s vacation policy (the sum of the amounts
\ndescribed in clauses (1), (2), and (3) shall be hereinafter referred to as the
\n“Accrued Obligations”); and<\/p>\n

B. the amount equal to the product of: (1) two, and (2) the sum of: (x) the
\nExecutive153s Annual Base Salary, and (y) the Target Annual Bonus, which shall be
\npaid in a lump sum payment, less applicable taxes and other deductions required
\nby law, on the first pay period following the sixty (60) day anniversary of the
\nDate of Termination;<\/p>\n

(ii) the Company shall pay to the Executive the product of: (A) the Company153s
\nmonthly COBRA premium in effect on the Date of Termination under the Company153s
\ngroup health plan for the type of coverage in effect under such plan (e.g.,
\nfamily coverage) for the Executive on the Date of Termination, and (B) 18, which
\nshall be paid in a lump sum payment, less applicable taxes and other deductions
\nrequired by law, on the first pay period following the sixty (60) day
\nanniversary of the Date of Termination;<\/p>\n

(iii) on the first pay period following the sixty (60) day anniversary of the
\nDate of Termination, the Company shall purchase a 24 month executive
\noutplacement services package for the Executive from the provider generally used
\nby the Company for such purposes on the Date of Termination; and<\/p>\n

(iv) to the extent not theretofore paid or provided, the Company shall pay or
\nprovide to the Executive any other amounts or benefits required to be paid or
\nprovided or which the Executive is eligible to receive under any plan, program,
\npolicy, practice, contract or agreement of the Company and its affiliated
\ncompanies in accordance with the terms of the applicable plan, program, policy,
\npractice, contract or agreement, except as expressly provided otherwise by this
\nAgreement (such other amounts and benefits shall be hereinafter referred to as
\nthe “Other Benefits”).<\/p>\n

In the event of the Executive153s termination by the Company other than for
\nCause or a termination by the Executive for Good Reason, the Company shall have
\nno further obligations to the Executive other than as set forth in this Section
\n6(a).<\/p>\n

(b) Death<\/u>. If the Executive153s employment is terminated by reason of
\nthe Executive153s death during an Employment Period, this Agreement shall
\nterminate without further obligations to the Executive153s legal representatives
\nunder this Agreement, other than for payment of the amounts set forth in Section
\n6(a)(i)(A) and the provision of Other Benefits.<\/p>\n

(c) Disability<\/u>. If the Executive153s employment is terminated by reason
\nof the Executive153s Disability during an Employment Period, this Agreement shall
\nterminate without further obligations to the Executive, other than for the
\npayment of the amounts set forth in Section 6(a)(i)(A) and the provision of
\nOther Benefits.<\/p>\n

– 8 –<\/p>\n

\n

(d) Cause; Other than for Good Reason<\/u>. If the Executive153s employment
\nshall be terminated for Cause during an Employment Period, this Agreement shall
\nterminate without further obligations to the Executive other than the payment of
\nthe amounts set forth in Section 6(a)(i)(A)(1) and (3) and the provision of
\nOther Benefits. If the Executive voluntarily terminates employment during an
\nEmployment Period, excluding a termination for Good Reason, this Agreement shall
\nterminate without further obligations to the Executive, other than for the
\npayment of the amounts set forth in Section 6(a)(i)(A)(1) and (3) and the
\nprovision of Other Benefits.<\/p>\n

(e) Release of Claims and Covenant Not to Sue.<\/u> Notwithstanding the
\nforegoing, any amounts due under this Section 6 by Company are contingent upon
\nExecutive executing a customary release and covenant-not-to-sue agreement
\n(“Release”) in favor of the Company, its officers, directors, employees, agents,
\nparent corporation or subsidiaries, affiliates or divisions, its successors,
\nassigns, beneficiaries, servants, legal representatives, insures and heirs, and
\ndelivering such executed Release to the Company and not revoking such Release
\nprior to the expiration of any applicable revocation requirements contained
\ntherein (and in any event, no later than sixty (60) days following the Date of
\nTermination); and provided that such requirements are satisfied, the amounts due
\nunder this Section 6 shall be payable on the first pay period following the
\nsixty (60) day anniversary of the Date of Termination.<\/p>\n

7. Nonexclusivity of Rights<\/u>. Nothing in this Agreement shall prevent
\nor limit the Executive153s continuing or future participation in any plan,
\nprogram, policy or practice provided by the Company or any of its affiliated
\ncompanies and for which the Executive may qualify, nor, subject to Section
\n14(f), shall anything herein limit or otherwise affect such rights as the
\nExecutive may have under any contract or agreement with the Company or any of
\nits affiliated companies. Amounts which are vested benefits or which the
\nExecutive is otherwise entitled to receive under any plan, policy, practice or
\nprogram of or any contract or agreement with the Company or any of its
\naffiliated companies at or subsequent to the Date of Termination shall be
\npayable in accordance with such plan, policy, practice or program or contract or
\nagreement except as expressly provided otherwise by this Agreement.
\nNotwithstanding the foregoing, any payments or benefits that the Executive is
\nentitled to receive under this Agreement shall be in lieu of any severance or
\nother termination benefits under any other Company plan, agreement or
\narrangement. To the extent that the Executive receives other severance or
\ntermination payments from the Company pursuant to another plan or arrangement,
\nthe amounts payable to the Executive under this Agreement shall be reduced by
\nsuch amounts in a manner that complies with Section 10 hereunder.<\/p>\n

8. Full Settlement<\/u>. The Company153s obligation to make the payments
\nprovided for in this Agreement and otherwise to perform its obligations
\nhereunder shall not be affected by any set-off, counterclaim, recoupment,
\ndefense or other claim, right or action which the Company may have against the
\nExecutive or others. In no event shall the Executive be obligated to seek other
\nemployment or take any other action by way of mitigation of the amounts payable
\nto the Executive under any of the provisions of this Agreement and such amounts
\nshall not be reduced whether or not the Executive obtains other employment. The
\nCompany agrees to pay or reimburse the Executive, to the fullest extent
\npermitted by law, all legal fees and expenses which the Executive may reasonably
\nincur as a result of any contest by the Company, the Executive or others of the
\nvalidity or enforceability of, or liability under, any provision of this
\nAgreement or any guarantee of performance thereof (including as a result of any
\ncontest by the Executive about the amount of any payment pursuant to this
\nAgreement), plus in each case interest on any delayed payment at the applicable
\nFederal rate provided for in Section 7872(f)(2)(A) of the Internal Revenue Code
\nof 1986, as amended (the “Code”), in each case, provided that, the Executive
\nprevails on any substantive<\/p>\n

– 9 –<\/p>\n

\n

issue in such proceeding. To the extent that any such reimbursement does not
\nqualify for exclusion from Federal income taxation, the Company will make the
\nreimbursement only if the Executive incurs the corresponding expense during the
\nterm of this Agreement or the period of two years thereafter and submits the
\nrequest for reimbursement no later than two months prior to the last day of the
\ncalendar year following the calendar year in which the expense was incurred so
\nthat the Company can make the reimbursement on or before the last day of the
\ncalendar year following the calendar year in which the expense was incurred; the
\namount of expenses eligible for such reimbursement during a calendar year will
\nnot affect the amount of expenses eligible for such reimbursement in another
\ncalendar year, and the right to such reimbursement is not subject to liquidation
\nor exchange for another benefit from the Company. However, in the event the
\nExecutive is a “specified employee” on the Executive153s Date of Termination (as
\ndetermined by the Company in accordance with rules established by the Company in
\nwriting in advance of the “specified employee identification date” that relates
\nto the date of the Executive153s “separation from service”), and to the extent
\nthat any portion of such reimbursements or any other payments due to the
\nExecutive were triggered by the Executive153s “separation from service,” then to
\nthe extent necessary to comply with Section 409A(a)(2)(B)(i) of the Code, such
\nreimbursements or other payments shall be paid no earlier than the date that is
\nsix months after the date of such “separation from service” (if the Executive
\ndies after the Executive153s separation from service but before such
\nreimbursements or payments have been made, such reimbursements or payments will
\nbe paid to the Executive153s estate in a lump sum without regard to any six-month
\ndelay that otherwise applies to specified employees). For purposes of this
\nAgreement, “specified employee” shall be defined as provided in Section
\n409A(a)(2)(B)(i) of the Code, “specified employee identification date” shall be
\ndefined as provided in Treasury Regulation \u00a71.409A-1(i), and “separation from
\nservice” shall be defined as provided in Section 409A(a)(2)(A)(i) of the Code.\n<\/p>\n

9. Section 280G<\/u>. (a) In the event that part or all of the
\nconsideration, compensation or benefits to be paid to Executive under this
\nAgreement together with the aggregate present value of payments, consideration,
\ncompensation and benefits under all other plans, arrangements and agreements
\napplicable to Executive, constitute “excess parachute payments” under Section
\n280G(b) of the Code subject to an excise tax under Section 4999 of the Code
\n(collectively, the “Parachute Amount”) the amount of excess parachute payments
\nwhich would otherwise be payable to Executive or for Executive153s benefit under
\nthis Agreement shall be reduced to the extent necessary so that no amount of the
\nParachute Amount is subject to an excise tax under Section 4999 (the “Reduced
\nAmount”); provided that such amounts shall not be so reduced if, without such
\nreduction, Executive would be entitled to receive and retain, on a net after tax
\nbasis (including, without limitation, after any excise taxes payable under
\nSection 4999), an amount of the Parachute Amount which is greater than the
\namount, on a net after tax basis, that Executive would be entitled to retain
\nupon receipt of the Reduced Amount.<\/p>\n

(b) If the determination made pursuant to Section 9(a) results in a reduction
\nof the payments that would otherwise be paid to Executive except for the
\napplication of Section 9(a), such reduction in payments due under this Agreement
\nshall be first applied to reduce any cash severance payments that Executive
\nwould otherwise be entitled to receive hereunder and shall thereafter be applied
\nto reduce other payments and benefits in a manner that would not result in
\nsubjecting Executive to additional taxation under Section 409A of the Code.
\nWithin ten days following such determination, but not later than thirty days
\nfollowing the date of the event under Section 280G(b)(2)(A)(i), the Company
\nshall pay or distribute to Executive or for Executive153s benefit such amounts as
\nare then due to Executive under this Agreement and shall promptly pay or
\ndistribute to Executive or for his benefit in the future such amounts as become
\ndue to Executive under this Agreement.<\/p>\n

– 10 –<\/p>\n

\n

10. Code Section 409A<\/u>. It is intended, and this Agreement will be so
\nconstrued, that any amounts payable under this Agreement and the Company153s and
\nthe Executive153s exercise of authority or discretion hereunder shall either be
\nexempt from or comply with the provisions of Section 409A of the Code and the
\ntreasury regulations relating thereto so as not to subject the Executive to the
\npayment of interest and\/or any tax penalty that may be imposed under Section
\n409A of the Code. Executive acknowledges and agrees that the Company has made no
\nrepresentation to Executive as to the tax treatment of the compensation and
\nbenefits provided pursuant to this Agreement and that Executive is solely
\nresponsible for all taxes due with respect to such compensation and benefits.\n<\/p>\n

11. Non-Competition<\/u>. (a) Executive acknowledges that in the course of
\nExecutive153s employment with the Company, Executive shall become familiar with
\nthe Company153s trade secrets and with other Confidential Information (as defined
\nin Section 12) concerning the Company and its subsidiaries and that Executive153s
\nservices shall be of special, unique and extraordinary value to the Company and
\nits subsidiaries. Therefore, and in consideration of the payments made to
\nExecutive hereunder, Executive agrees as follows:<\/p>\n

(i) During an Employment Period and, except as provided below, for a period
\nof one year following the Date of Termination of Executive153s employment with the
\nCompany (“Restricted Period”), Executive shall not directly, or indirectly
\nthrough another entity, enter the employ of, or render any services to, or own
\nor have any interest in, manage, control, participate in, consult with, or in
\nany manner engage in any business for any Competitor, as such Competitor153s
\nbusiness exists or is in process on the Date of Termination of Executive153s
\nemployment with the Company, within any geographical area in which the Company
\nor any of its subsidiaries engage in such businesses on the Date of Termination
\nof Executive153s employment with the Company. A “Competitor” shall be defined as
\nan office products reseller and specifically excludes a business selling office
\nproducts and supplies as a minor portion of its business and any business that
\notherwise would be a direct competitor if the total annual sales of office
\nproducts and supplies for any such business is less than 10% of such business153
\ntotal gross sales;<\/p>\n

(ii) During the Restricted Period, Executive will not directly or indirectly
\nthrough another entity:<\/p>\n

(A) induce or attempt to induce any employee of the Company or any subsidiary
\nto leave the employ of the Company or such subsidiary, or in any way interfere
\nwith the relationship between the Company or any subsidiary and any employee
\nthereof; or<\/p>\n

(B) hire any person who was, at any time during the six-month period prior to
\nthe Executive153s Date of Termination, an employee of the Company or any
\nsubsidiary at any time during an Employment Period; or<\/p>\n

(C) induce or attempt to induce any customer, supplier, licensee, licensor,
\nfranchisee or other business relation of the Company or any subsidiary to cease
\ndoing business with the Company or such subsidiary, or in any way interfere with
\nthe relationship between any such customer, supplier, licensee, or business
\nrelation and the Company or any subsidiary (including, without limitation,
\nmaking any negative statements or communications abut the Company or its
\nsubsidiaries).<\/p>\n

– 11 –<\/p>\n

\n

(iii) Nothing herein shall prohibit Executive from being a passive owner of
\nnot more than 2% of the outstanding stock of any class of a corporation that is
\npublicly traded, so long as Executive has no active participation in the
\nbusiness of such corporation.<\/p>\n

(b) It is expressly understood and agreed that although Executive and the
\nCompany consider the restrictions contained in this Section 11 to be reasonable,
\nif, at the time of enforcement of this Agreement, any court shall hold that the
\nduration, scope or geographical restrictions stated herein are unreasonable
\nunder the circumstances then existing, the parties agree that it is their mutual
\ndesire and intent that the Company shall be afforded the maximum duration, scope
\nor area reasonable under such circumstances, and each of them hereby requests
\nsuch court to reform this Agreement so that the maximum duration, scope and
\ngeographical restrictions available under applicable law at the time of
\nenforcement of this Agreement shall be substituted by such court for the stated
\nduration, scope or geographical area stated herein and that the court shall be
\nallowed to revise the restrictions contained in this Agreement to such
\nprovisions as are deemed reasonable by the court at the time such enforcement is
\nrequested.<\/p>\n

Alternatively, if any court of competent jurisdiction finds that any
\nrestriction contained in this Agreement is unenforceable, and such restriction
\ncannot be amended so as to make it enforceable, such finding shall not affect
\nthe enforceability of any of the other restrictions contained herein.<\/p>\n

12. Confidentiality; Work Product.<\/u> (a) Confidential
\nInformation<\/u>. Executive acknowledges that the information, observations and
\ndata obtained by Executive while employed by the Company and its subsidiaries
\nconcerning the business or affairs of the Company or any subsidiary of the
\nCompany (“Confidential Information”) are the property of the Company or such
\nsubsidiary. Therefore, Executive agrees that Executive shall not disclose to any
\nunauthorized person or use for Executive153s own purposes any Confidential
\nInformation without the prior written consent of the Company, unless and to the
\nextent that: (i) such disclosure is necessary (in Executive153s reasonable
\njudgment) for Executive to discharge Executive153s duties set forth in Section
\n4(a) of this Agreement during an Employment Period, or (ii) the aforementioned
\nmatters become generally known to and available for use by the public other than
\nas a result of Executive153s acts or omissions. Executive shall deliver to the
\nCompany at the termination of Executive153s employment, or at any other time the
\nCompany may request, all memoranda, notes, plans, records, reports, computer
\ntapes, disks, printouts and software and other documents and data (and copies
\nthereof) relating to the Confidential Information, Work Product (as defined
\nbelow) or the business of the Company or any subsidiary which Executive may then
\npossess or have under Executive153s control.<\/p>\n

(b) Work Product<\/u>.<\/p>\n

(i) Executive acknowledges that all inventions, innovations, improvements,
\ndevelopments, methods, designs, analyses, drawings, reports and all similar or
\nrelated information (whether or not patentable) which relate to the Company153s or
\nany of its subsidiaries153 actual or anticipated business, research and
\ndevelopment or existing or future products or services and which are conceived,
\ndeveloped or made by Executive while employed by the Company and its
\nsubsidiaries (“Work Product”) belong to the Company and\/or such subsidiary.
\nExecutive shall promptly disclose such Work Product to the Company and perform
\nall actions reasonably requested by the Company (whether during or after
\nemployment) to establish and confirm such ownership (including, without
\nlimitation, the execution of assignments, consents, powers of attorney and other
\ninstruments).<\/p>\n

– 12 –<\/p>\n

\n

(ii) Notwithstanding the obligations set forth in Section 11 and this Section
\n12, after termination of Executive153s employment with the Company, Executive
\nshall be free to use Residuals of the Company153s Confidential Information and
\nWork Product for any purpose, subject only to its obligations with respect to
\ndisclosure set forth herein and any copyrights and patents of the Company. The
\nterm “Residuals” means information in non-tangible form that may be retained in
\nthe unaided memory of Executive derived from the Company153s Confidential
\nInformation and Work Product to which Executive has had access during his or her
\nemployment with the Company. Executive may not retain or use the documents and
\nother tangible materials containing the Company153s Confidential Information or
\nWork Product after the termination of his or her employment with the Company.\n<\/p>\n

(c) Cooperation<\/u>. Executive shall provide Executive153s reasonable
\ncooperation in connection with any action or proceeding (or any appeal from any
\naction or proceeding) which relates to events occurring during Executive153s
\nemployment. If occurring after the Date of Termination, the Company shall
\nadvance to Executive all transportation, lodging, meal, and other reasonable
\ncosts incurred by Executive therefore.<\/p>\n

(d) The provisions of this Section 12 shall survive the termination of
\nExecutive153s employment for any reason.<\/p>\n

13. Successors<\/u>. (a) This Agreement is personal to the Executive and
\nwithout the prior written consent of the Company shall not be assignable by the
\nExecutive otherwise than by will or the laws of descent and distribution. This
\nAgreement shall inure to the benefit of and be enforceable by the Executive153s
\nlegal representatives.<\/p>\n

(b) This Agreement shall inure to the benefit of and be binding upon the
\nCompany and its successors and assigns.<\/p>\n

(c) The Company will require any successor (whether direct or indirect, by
\npurchase, merger, consolidation or otherwise) to all or substantially all of the
\nbusiness and\/or assets of the Company to assume expressly and agree to perform
\nthis Agreement in the same manner and to the same extent that the Company would
\nbe required to perform it if no such succession had taken place, unless such
\nassumption occurs by operation of law. As used in this Agreement, “Company”
\nshall mean the Company as hereinbefore defined and any successor to its business
\nand\/or assets as aforesaid which assumes and agrees to perform this Agreement by
\noperation of law, or otherwise.<\/p>\n

14. Miscellaneous<\/u>. (a) This Agreement shall be governed by and
\nconstrued in accordance with the laws of the State of Florida, without reference
\nto principles of conflict of laws. The captions of this Agreement are not part
\nof the provisions hereof and shall have no force or effect. This Agreement may
\nnot be amended or modified otherwise than by a written agreement executed by the
\nparties hereto or their respective successors and legal representatives.<\/p>\n

– 13 –<\/p>\n

\n

(b) All notices and other communications hereunder shall be in writing and
\nshall be given by hand delivery to the other party or by registered or certified
\nmail, return receipt requested, postage prepaid, addressed as follows:<\/p>\n

If to the Executive<\/u>:<\/p>\n

Neil R. Austrian<\/p>\n

Office Depot, Inc.<\/p>\n

6600 North Military Trail<\/p>\n

Boca Raton, Florida 33496<\/p>\n

If to the Company<\/u>:<\/p>\n

Office Depot, Inc.<\/p>\n

6600 North Military Trail<\/p>\n

Boca Raton, Florida 33496<\/p>\n

Attention: Chief Executive Officer<\/p>\n

or to such other address as either party shall have furnished to the other in
\nwriting in accordance herewith. Notice and communications shall be effective
\nwhen actually received by the addressee.<\/p>\n

(c) The invalidity or unenforceability of any provision of this Agreement
\nshall not affect the validity or enforceability of any other provision of this
\nAgreement.<\/p>\n

(d) The Company may withhold from any amounts payable under this Agreement
\nsuch Federal, state, local or foreign taxes as shall be required to be withheld
\npursuant to any applicable law or regulation.<\/p>\n

(e) The Executive153s or the Company153s failure to insist upon strict compliance
\nwith any provision of this Agreement or the failure to assert any right the
\nExecutive or the Company may have hereunder, including, without limitations the
\nright of the Executive to terminate employment for Good Reason pursuant to
\nSection 5(c)(i)-(v) of this Agreement, shall not be deemed to be a waiver of
\nsuch provision or right or any other provision or right of this Agreement.<\/p>\n

(f) The Executive and the Company acknowledge that, except as may otherwise
\nbe provided under any other written agreement between the Executive and the
\nCompany, the employment of the Executive by the Company is “at will” and,
\nsubject to Section 1(a) hereof, prior to the Effective Date, the Executive153s
\nemployment and\/or this Agreement may be terminated by either the Executive or
\nthe Company at any time prior to the Effective Date, in which case the Executive
\nshall have no further rights under this Agreement. During an Employment Period,
\nthis Agreement shall supersede any other agreement between the parties with
\nrespect to the subject matter hereof, except as specifically provided otherwise
\nin Section 3.<\/p>\n

* * * * *<\/p>\n

– 14 –<\/p>\n

\n

IN WITNESS WHEREOF, the Executive has hereunto set the Executive153s hand and,
\npursuant to the authorization from its Board of Directors, the Company has
\ncaused these presents to be executed in its name on its behalf, all as of the
\nday and year first above written.<\/p>\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

\/s\/ Neil R. Austrian<\/p>\n<\/td>\n<\/tr>\n

\n

Executive: Neil R. Austrian<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/tr>\n
\n

Date: May 23, 2011<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/tr>\n
\n

OFFICE DEPOT, INC.<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/tr>\n
\n

By:<\/p>\n<\/td>\n

<\/td>\n\n

\/s\/ Daisy Vanderlinde<\/p>\n<\/td>\n<\/tr>\n

\n

Daisy Vanderlinde<\/p>\n<\/td>\n<\/tr>\n

\n

Its: Executive Vice President:Human Resources<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/tr>\n
\n

Date: May 23, 2011<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

– 15 –<\/p><\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8401],"corporate_contracts_industries":[9501],"corporate_contracts_types":[9539,9544],"class_list":["post-38622","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-office-depot-inc","corporate_contracts_industries-retail__misc","corporate_contracts_types-compensation","corporate_contracts_types-compensation__employment"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/38622","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=38622"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=38622"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=38622"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=38622"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}