ex10-45formexecsevagmt.htm


    
       

       

      
         


        
          
            	
                    Borders
      Group, Inc.

                    100
      Phoenix Drive

                    Ann
      Arbor, MI  48108

                     

                    t:
      734-477-1100

                    f:
      734-477-1370

                    www.bordersgroupinc.com

                  	
                     

                  


          

          


        

      

    


    April 29,
2008

    


    


    
      	
               
      

            	
              Name

            


    

    


    


    


    
      	
               
      

            	
              Dear
      Name:

            


    

    


    This
letter will confirm our understanding concerning your employment with Borders
Group, Inc. (the “Company”).  You are sometimes referred to herein as
the “Executive.”

    


    
      	
              1.

            	
              Subject
      to all of the other provisions of this agreement, if your employment with
      the Company is terminated by the Company other than for Cause or
      Disability, or by you for Good Reason, the Company will pay to
      you:

            


    

    


    
      	
               
      

            	
              (a)

            	
              Your
      base salary through the month during which termination occurred, plus any
      other amount due you at the time of termination under any bonus plan of
      the Company; and

            


    

    


    
      	
               
      

            	
              (b)

            	
              Monthly
      severance payments for the period specified in Section 5 equal to (i) your
      monthly base salary at the time of termination, plus (ii) 1/12th
      of the “target” bonus amount targeted for you for the fiscal year in which
      termination occurred.

            


    

    


    No
payments shall be made under this agreement if your employment with the Company
is terminated because of your death or is terminated by the Company for Cause or
Disability or if you terminate your employment for any reason other than Good
Reason.

     

    2.           Subject
to all of the other provisions of this agreement, if your employment is
terminated by the Company other than for Cause or Disability, or by you for Good
Reason, during the one-year period following a Change in Control, the monthly
severance payments to be made to you under Section 1(b) shall be for an extended
period as specified in Section 5 and shall be based upon (a) your monthly base
salary at the time of termination or immediately prior to the Change in Control,
whichever base salary amount is greater, plus (b) 1/12th of the
“target” bonus amount targeted for you for the fiscal year in which termination
occurred or the fiscal year immediately prior to the Change in Control,
whichever bonus amount is greater.

     

    3.           You
agree to make reasonable efforts to seek (and to immediately notify the Company
of) other employment and to the extent that you receive compensation from other
employment, the severance payments provided herein shall be correspondingly
reduced.  Notwithstanding the foregoing, this Section 3 shall have no
application with respect to terminations of employment that occur as of, or
following, a Change in Control.

     

    4.           All
payments hereunder shall be subject to applicable withholding and
deductions.

     

    5.           Monthly
severance payments shall commence in the month following termination and shall
continue for twelve months or, in the case of payments under Section 2, for
twenty-four months; provided however, that, if the monthly payment period would
otherwise extend beyond the later of: (i) March 15th of the
year following the calendar year in which your termination of employment occurs,
or (ii) 2 1/2 months following the end of the fiscal year in which your
termination of employment occurs, an amount equal to the sum of all of the
remaining payments that would have been made to you in monthly installments
shall, in lieu thereof, be paid to you in one lump sum on the last day of the
month immediately preceding the month in which the later of the dates specified
in (i) or (ii) above falls. In calculating the amount of any lump sum payment,
it shall be assumed that any income that you are earning from other employment
on the payment date would continue for the remainder of the applicable period
following your termination of employment. No repayment shall be required if your
income increases after the lump-sum payment date, and no additional payments
shall be made by the Company after the lump sum payment.

     

    6.           Termination
by the Company for “Cause” means termination based on (i) conduct which is a
material violation of Company policy or which is fraudulent or unlawful or which
materially interferes with your ability to perform your duties, (ii) misconduct
which damages or injures the Company or substantially damages the Company’s
reputation, or (iii) gross negligence in the performance of, or willful failure
to perform, your duties and responsibilities.

     

    7.           Termination
by you for “Good Reason” means a termination that follows the occurrence of any
of the following: (i) an involuntary relocation that increases your commute by
more than 35 miles, (ii) a material diminution in your base salary (other than
pursuant to across-the-board reductions prior to a Change in Control that apply
uniformly to similarly situated employees generally), (iii) following a Change
in Control, a material diminution in your overall compensation opportunity from
the level in effect immediately prior to the Change in Control, or (iv)
following a Change in Control, a material reduction in your authority, duties,
or responsibilities below the levels in effect immediately prior to the Change
in Control.  Notwithstanding the foregoing, a termination shall be
deemed to be for Good Reason hereunder only if you provide written notice to the
Company of the existence of one or more of the conditions described herein
within 90 days following your knowledge of the initial existence of such
condition, the Company fails to cure such condition during the 30-day period
(the “Cure Period”) following its receipt of such notice, and you terminate
employment within 180 days following the conclusion of the Cure
Period.

     

    8.           Termination
by the Company for “Disability” means termination based on inability to perform
your duties and responsibilities by reason of illness or incapacity for a total
of 180 days in any twelve-month period.

    


    9.           A
“Change in Control” shall mean:

    


    
      	
               
      

            	
              (a)

            	
              The
      acquisition by any individual, entity or group (within the meaning of
      Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as
      amended (the "Exchange Act") (a "Person") of beneficial ownership (within
      the meaning of Rule 13d-3 promulgated under the Exchange Act) of 20% or
      more of either (i) the then outstanding shares of common stock of the
      Company (the "Outstanding Company Common Stock") or (ii) the combined
      voting power of the then outstanding voting securities of the Company
      entitled to vote generally in the election of directors (the "Outstanding
      Company Voting Securities"); provided, however, that for purposes of this
      subsection (a), the following acquisitions shall not constitute a Change
      in Control:  (i) any acquisition directly from the Company, (ii)
      any acquisition by the Company, (iii) any acquisition by any employee
      benefit plan (or related trust) sponsored or maintained by the Company or
      any corporation controlled by the Company or (iv) any acquisition by any
      corporation pursuant to a transaction which complies with clauses (i),
      (ii) and (iii) of subsection (c) of this Section 9;
  or

            


    

    


    
      	
               
      

            	
              (b)

            	
              Individuals
      who, as of the date hereof, constitute the Board (the "Incumbent Board")
      cease for any reason to constitute at least a majority of the Board;
      provided, however, that any individual becoming a director subsequent to
      the date hereof whose election, or nomination for election by the
      Company's shareholders, was approved by a vote of at least a majority of
      the directors then comprising the Incumbent Board shall be considered as
      though such individual were a member of the Incumbent Board, but
      excluding, for this purpose, any such individual whose initial assumption
      of office occurs as a result of an actual or threatened election contest
      with respect to the election or removal of directors or other actual or
      threatened solicitation of proxies or consents by or on behalf of a Person
      other than the Board; or

            


    

    


    
      	
               
      

            	
              (c)

            	
              Consummation
      of a reorganization, merger or consolidation or sale or other disposition
      of all or substantially all of the assets of the Company (a "Business
      Combination"), in each case, unless, following such Business Combination,
      (i) all or substantially all of the individuals and entities who were the
      beneficial owners, respectively, of the Outstanding Company Common Stock
      and Outstanding Company Voting Securities immediately prior to such
      Business Combination beneficially own, directly or indirectly, more than
      60% of, respectively, the then outstanding shares of common stock and the
      combined voting power of the then outstanding voting securities entitled
      to vote generally in the election of directors, as the case may be, of the
      corporation resulting from such Business Combination (including, without
      limitation, a corporation which as a result of such transaction owns the
      Company or all or substantially all of the Company's assets either
      directly or through one or more subsidiaries) in substantially the same
      proportions as their ownership, immediately prior to such Business
      Combination of the Outstanding Company Common Stock and Outstanding
      Company Voting Securities, as the case may be, (ii) no Person (excluding
      any corporation resulting from such Business Combination or any employee
      benefit plan (or related trust) of the Company or such corporation
      resulting from such Business Combination) beneficially owns, directly or
      indirectly, 20% or more of, respectively, the then outstanding shares of
      common stock of the corporation resulting from such Business Combination
      or the combined voting power of the then outstanding voting securities of
      such corporation except to the extent that such ownership existed prior to
      the Business Combination and (iii) at least a majority of the members of
      the board of directors of the corporation resulting from such Business
      Combination were members of the Incumbent Board at the time of the
      execution of the initial agreement, or of the action of the Board,
      providing for such Business Combination;
or

            


    

    


    
      	
               
      

            	
              (d)

            	
              Approval
      by the shareholders of the Company of a complete liquidation or
      dissolution of the Company.

            


    

    


    10. Payments
shall be reduced to the extent, if any, determined in accordance with the
following provisions:

    


    
      	
               
      

            	
              (a)

            	
              For
      purposes of this Section 10:  (i) a "Payment" shall mean any
      payment or distribution in the nature of compensation to or for the
      benefit of the Executive, whether paid or payable pursuant to this
      Agreement or otherwise; (ii) "Agreement Payment" shall mean a Payment paid
      or payable pursuant to this Agreement (disregarding this Section); (iii)
      “Net After-Tax Receipt” shall mean the Present Value of a Payment net of
      all taxes imposed on the Executive with respect thereto under Sections 1
      and 4999 of the Code and under applicable state and local laws, determined
      by applying the highest marginal rate under Section 1 of the Code and
      under state and local laws which applied to the Executive’s taxable income
      for the immediately preceding taxable year, or such other rate(s) as the
      Executive shall certify, in the Executive’s sole discretion, as likely to
      apply to the Executive in the relevant tax year(s); (iv) "Present Value"
      shall mean such value determined in accordance with Sections
      280G(b)(2)(A)(ii) and 280G(d)(4) of Code; (v) "Reduced Amount" shall mean
      the amount of Agreement Payments that (A) has a Present Value that is less
      than the Present Value of all Agreement Payments and (B) results in
      aggregate Net After-Tax Receipts for all Payments that are greater than
      the Net After-Tax Receipts for all Payments that would result if the
      aggregate Present Value of Agreement Payments were any other amount that
      is less than the Present Value of all Agreement Payments; and (vi) “Code”
      shall mean the Internal Revenue Code of 1986, as
  amended.

            


    

    


    
      	
               
      

            	
              (b)

            	
              Anything
      in the Agreement to the contrary notwithstanding, in the event Ernst &
      Young or such other accounting firm as shall be designated by the Company
      (the "Accounting Firm") shall determine that receipt of all Payments would
      subject the Executive to tax under Section 4999 of the Code, the
      Accounting Firm shall determine whether some amount of Agreement Payments
      meets the definition of “Reduced Amount.”  If the Accounting
      Firm determines that there is a Reduced Amount, then the aggregate
      Agreement Payments shall be reduced to such Reduced
  Amount.

            


    

    


    
      	
               
      

            	
              (c)

            	
              If
      the Accounting Firm determines that aggregate Agreement Payments should be
      reduced to the Reduced Amount, the Company shall promptly give the
      Executive notice to that effect and a copy of the detailed calculation
      thereof. For purposes of reducing the aggregate Agreement Payments to the
      Reduced Amount, only amounts payable under this Agreement (and no other
      Payments) shall be reduced.   The reduction of the
      aggregate Agreement Payments to the Reduced Amount, if applicable, shall
      be made by reducing the amounts payable to the Executive pursuant to
      Section 1(b) (as modified by Section 5) of this Agreement.  All
      determinations made by the Accounting Firm under this Section shall be
      binding upon the Company and the Executive and shall be made within 60
      days of a termination of employment of the Executive.  As
      promptly as practicable following such determination, the Company shall
      pay to or distribute for the benefit of the Executive such Agreement
      Payments as are then due to the Executive under this Agreement and shall
      promptly pay to or distribute for the benefit of the Executive in the
      future such Agreement Payments as become due to the Executive under this
      Agreement.

            


    

    


    
      	
               
      

            	
              (d)

            	
              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 amounts will have been paid or distributed by the
      Company to or for the benefit of the Executive pursuant to this Agreement
      which should not have been so paid or distributed ("Overpayment") or that
      additional amounts which will have not been paid or distributed by the
      Company to or for the benefit of the Executive pursuant to this Agreement
      could have been so paid or distributed ("Underpayment"), in each case,
      consistent with the calculation of the Reduced Amount
      hereunder.  In the event that the Accounting Firm, based upon
      the assertion of a deficiency by the Internal Revenue Service against
      either the Company or the Executive which the Accounting Firm believes has
      a high probability of success determines that an Overpayment has been
      made, any such Overpayment paid or distributed by the Company to or for
      the benefit of the Executive shall be repaid to the Company together with
      interest at the applicable federal rate provided for in Section 7872(f)(2)
      of the Code; provided,
      however, that no such amount shall be payable by the Executive to the
      Company if and to the extent such  payment would not either
      reduce the amount on which the Executive is subject to tax under
      Section 1 and Section 4999 of the Code or generate a refund of such
      taxes.  In the event that the Accounting Firm, based upon
      controlling precedent or substantial authority, determines that an
      Underpayment has occurred, any such Underpayment shall be promptly paid by
      the Company to or for the benefit of the Executive together with interest
      at the applicable federal rate provided for in Section 7872(f)(2) of the
      Code.

            


    

    


    
      	
              (e)  

            	
              All
      fees and expenses of the Accounting Firm in implementing the provisions of
      this Section 10 shall be borne by the
Company.

            


    

    


    11.           The
obligation to make the payments hereunder is conditioned upon your execution,
delivery to the Company and non-revocation of a release, in form reasonably
satisfactory to the Company within 60 days after the date of your termination of
employment, of any claims you may have as a result of your employment or
termination of employment under any federal, state or local law, excluding any
claim for benefits which may be due you in normal course under any employee
benefit plan of the Company which provides benefits after termination of
employment.

     

    12.           You
agree that any right to receive severance payments hereunder will cease if
during the one-year period following your termination of employment you directly
or indirectly become an employee, director, advisor of, or otherwise affiliated
with, any other entity or enterprise whose business is in competition with the
business of the Company or any of its subsidiaries or affiliates.

    


    13.           The
severance payments hereunder may not be transferred, assigned or encumbered in
any manner, either voluntarily or involuntarily.  In the event of your
death after your employment has been terminated by the Company other than for
Cause or Disability, or by you for Good Reason, any payments then or thereafter
due hereunder will be made to your estate.

    


    14.           The
payments provided hereunder shall constitute the exclusive payments due you
from, and the exclusive obligation of, the Company in the event of any
termination of your employment, except for any benefits which may be due you in
normal course under any employee benefit plan of the Company which provides
benefits after termination of employment, it being understood and agreed that no
severance plan shall be deemed to be an employee benefit plan for this
purpose.

    


    15.           Notwithstanding
anything herein to the contrary, your employment with the Company is terminable
at will with or without cause; subject, however, to the obligations of the
Company under this agreement.

    


    16.           If
a dispute arises concerning any provisions of this agreement, it shall be
resolved by arbitration in Ann Arbor, Michigan in accordance with the rules of
the American Arbitration Association.  Judgment on the award rendered
may be entered in any court having jurisdiction and enforced
accordingly.

    


    17.           This
letter agreement sets forth the entire understanding with respect to the subject
matter hereof and supersedes all prior agreements, written or oral or express or
implied, between you and the Company or any subsidiary or other affiliate of the
Company as to such subject matter.  This letter agreement may not be
amended, nor may any provision hereof be modified or waived, except by an
instrument in writing duly signed by you and the Company.

    


    18.           If
any provision of this letter agreement, or any application thereof to any
circumstances, is invalid, in whole or in part, such provision or application
shall to that extent be severable and shall not affect other provisions or
applications of this letter agreement.

    


     

    Please
indicate your agreement by signing below and retain one copy for your
records.

    


     

    Agreed and
Accepted:                                                                Sincerely,

    


    BORDERS GROUP, INC.

    


    


    By:                                                      

    Name                                                                                     
Name:  Daniel T. Smith

                                                                                                                   
Its:  Executive
Vice President, HumanResources

    
 


    
      
        
          
            	 
      
	 
      
	
                    Borders,
      Inc. and Walden Book Company, Inc. are subsidiaries of Borders Group,
      Inc.