Exhibit 10.4


 


Amendment
to Executive Officer Incentive Plan


 


WHEREAS, Staples, Inc. (“Staples”) heretofore adopted
the Staples, Inc. Executive Officer Incentive Plan (the “Incentive Plan”);
and


 


WHEREAS, Staples reserved the right to amend the Incentive
Plan; and


 


WHEREAS, Staples desires to amend the Incentive Plan to
reflect Staples’ recoupment policy.


 


NOW, THEREFORE, the Incentive Plan is hereby amended,
effective January 1, 2010, as follows:


 


A new Section VII.
shall be added to the Incentive Plan:


 


VII.         Forfeiture
and Recovery for Misconduct


 


A.            Right
of Recovery


 


Notwithstanding any other provision of this Incentive Plan to the
contrary, if the Board of Directors of Staples (or its authorized designee, the
“Board”) determines during the Recovery Period (as defined below) that a Plan
Participant has engaged in Misconduct (as defined below), the Board, subject to
the limitations set forth in this Section VII., may in its sole discretion
(1) terminate such Plan Participant’s participation in the Incentive Plan,
or with respect to any award under the Incentive Plan, and treat any
outstanding award as forfeited, (2) require forfeiture, in whole or in
part, of payment of any award that has been previously approved for payment
under this Incentive Plan which remains in whole or in part unpaid, and/or (3) demand
that the Plan Participant pay to Staples in cash the amount described in Section VII.B.;
provided, however, that in the event the Board determines during the Recovery
Period that the Plan Participant engaged in Misconduct as described in clause (D) of
the definition of Misconduct) (“Restatement Misconduct”), the Board shall in
all circumstances, in addition to any other recovery action taken, require
forfeiture and demand repayment pursuant hereto.


 


“Recovery Period” means (1) if the Misconduct relates to
Restatement Misconduct, or the Misconduct consists of acts or omissions
relating to Staples’ financial matters that in the discretion of the Board are
reasonably unlikely to be discovered prior to the end of the fiscal year in
which the Misconduct occurred and the completion of the outside audit of
Staples’ annual financial statements, the period during which the Plan
Participant is employed by Staples and the period ending 18 months after the
Plan Participant’s last day of employment; (2) if the Misconduct relates 


 

















 


to
the breach of any agreement between the Plan Participant and Staples, the term
of the agreement and the period ending six months following the expiration of
the agreement, and (3) in all other cases, the period during which the
Plan Participant is employed by Staples and the period ending six months after
the Plan Participant’s last day of employment. 
If during the Recovery Period the Board gives written notice to the Plan
Participant of potential Misconduct, the Recovery Period shall be extended for
such reasonable time as the Board may specify is appropriate for it to make a
final determination of Misconduct and seek enforcement of any of its remedies
described above.  Staples’ rights pursuant
to this Section VII. shall terminate on the effective date of a Change in
Control (as defined in the Staples, Inc. 2010 Long-Term Cash Incentive
Plan) and no Recovery Period shall extend beyond that date except with respect
to any Plan Participant for which the Board prior to such Change in Control
gave written notice to such Plan Participant of potential Misconduct.


 


For purposes of administratively enforcing its rights under this Section VII.,
during any period for which potential Misconduct has been identified by
Staples, the Board may (1) suspend such Plan Participant’s participation
in the Incentive Plan, or with respect to any award under the Incentive Plan,
or (2) temporarily withhold, in whole or in part, payment of any award
that has been previously approved by the Board for payment under this Incentive
Plan which remains in whole or in part unpaid.


 


B.            Amount
of Recovery


 


With respect to Misconduct described in clause (A) of the
definition of Misconduct (breach of agreement) and clause (B) of such
definition (violation of Code of Ethics), and in addition to its right to
effect a termination of participation and a forfeiture of outstanding awards
under this Incentive Plan, the Board may recover from the Plan Participant the
amount of any payments made to the Plan Participant under this Incentive Plan
during the last 12 months of employment with Staples.


 


With respect to Misconduct described in clause (C) of the
definition of Misconduct (intentional deceitful acts), and in addition to its
right to effect a termination of participation and a forfeiture of outstanding
awards under this Incentive Plan, the Board may recover from the Plan
Participant the greater of (1) the amount paid to the Plan Participant
with respect to any award made under this Incentive Plan with a fiscal year
that includes any period during which the Misconduct occurred, or with a fiscal
year which was directly impacted by the Misconduct, or (2) the amount
determined by the Board in its sole discretion to represent the financial 


 

















 


impact
of the Misconduct upon Staples; provided, however, that such recovery amount
shall be reduced by the value of any forfeited outstanding awards under this
Incentive Plan (value to be determined by the Target Award for such awards) and
any amounts recovered from the Plan Participant under Staples’ cash bonus plans
and other short term or long term incentive plans as a result of such
Misconduct.


 


With respect to Restatement Misconduct, and in addition to its right to
effect a termination of participation and a forfeiture of outstanding awards
under this Incentive Plan, the Board shall seek to recover the entire amount
paid to the Plan Participant with respect to any award made under this
Incentive Plan in the twenty-four (24) month period following the first public
issuance of the financial statements that are the subject of an accounting
restatement relating to the Misconduct.


 


The term “recover” or “recovered” shall include, but shall not be
limited to, any right of set-off, reduction, recoupment, off-set, forfeiture,
or other attempt by Staples to withhold or claim payment of an award or any
proceeds thereof.  Staples’ right of
forfeiture and recovery of awards shall not limit any other right or remedy
available to Staples for a Plan Participant’s Misconduct, whether in law or
equity, including but not limited to injunctive relief, terminating the Plan
Participant’s employment with Staples, or taking other legal action against the
Plan Participant.


 


The amount that may be recovered under this Section VII. shall be
determined on a gross basis without reduction for taxes paid or payable by a
Plan Participant.


 


C.            Definition
of Misconduct


 


“Misconduct,” as determined by Staples (which determination shall be
conclusive), shall mean:


 


(A)          Breach by the Plan Participant of any provision of
any employment, consulting, advisory, proprietary information, non-disclosure,
non-competition, non-solicitation or other similar agreement between the Plan
Participant and Staples, including, without limitation, the Proprietary and
Confidential Information Agreement and/or the Non-Compete and Non-Solicitation
Agreement; or


 


(B)           Violation by the Plan Participant of the Code of
Ethics; or


 

















 


(C)           The Plan Participant’s engagement in intentional
deceitful act(s) that results in (i) an improper personal benefit, or
(ii) injury to Staples; or


 


(D)          The Plan Participant’s engagement in fraud or
willful misconduct (not acting in good faith or with reasonable belief that
conduct was in the best interests of Staples) that significantly contributes to
Staples preparing a material financial restatement, other than a restatement of
financial statements that became materially inaccurate because of revisions to
generally accepted accounting principles.


 


For purposes of this Section VII. regarding forfeiture and
recovery for Misconduct, any reference therein to Staples (other than with
respect to defining the Board of Directors) shall also include any entity that
Staples directly or indirectly controls.


 


Except as hereinabove amended, the provisions of the
Incentive Plan shall continue in full force and effect.


 


IN WITNESS WHEREOF, the Employer, by its duly
authorized officer, has caused this Amendment to be executed on the 18th day of May, 2010.


 


 


	
   

  	
  STAPLES,
  INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Shira D. Goodman