Exhibit 10.2


 


STAPLES,
INC.


 


Amended and
Restated 

Supplemental Executive Retirement Plan


(as amended
through June 7, 2010)


 


WHEREAS, Staples, Inc. (the “Company”)
heretofore adopted the Staples, Inc. Supplemental Executive Retirement
Plan (the “Plan”), an unfunded plan maintained for the purpose of providing
deferred compensation for a select group of management or highly compensated
employees within the meaning of the United States Code of Federal Regulations Section 2520.104-23
and Sections 201(2), 301(a)(3) and 401(a)(1) of the Employee
Retirement Income Security Act of 1974 (“ERISA”); and


 


WHEREAS, the Company desires to
amend the Plan to satisfy the requirements of Section 409A of the Internal
Revenue Code of 1986, as amended (the “Code);


 


NOW, THEREFORE, effective January 1,
2008, the Plan is amended and restated to comply with Section 409A of the
Code, with the Plan being operated in good faith compliance with Code Section 409A
for the period January 1, 2005 to December 31, 2007.


 


Section 1. 
Purpose of Plan


 


The
purpose of the Plan is to permit certain executives of the Company to elect to
defer receipt of a portion of their annual compensation in supplement to their
pre-tax contributions made to the Staples, Inc. Employees’ 401(k) Savings
Plan (the “401(k) Plan”).


 


The
Plan is intended to qualify as an unfunded, deferred compensation plan for a
select group of management or highly compensated employees under ERISA.


 


The
obligation of the Company to make payments under the Plan constitutes solely an
unsecured (but legally enforceable) promise of the Company to make such
payments, and no person, including any employee, shall have any lien, prior
claim or other security interest in any property of the Company as a result of
this Plan.  Rather, any employee
participating in the Plan shall have the status of a general unsecured creditor
of the Company.  It is the intention of
the parties hereunder that the Plan be unfunded for tax purposes and for
purposes of Title I of ERISA.  The
Company shall be the sole owner and beneficiary of any account provided for
herein below and any property used to measure such account shall remain the
sole and exclusive property of the Company.


 


Section 2. 
Definitions


 


2.1                               “Administrator” means the Committee on Employee Benefit Plans
as described in Section 15.


 


2.2                               “Beneficiary” means the person or entity determined to be a
Participant’s beneficiary pursuant to Section 12.


 


2.3                               “Board” means the board of directors of the Company.


 


2.4                               “Change in Control” means a “change in ownership” of the
Company, a “change in effective control” of the Company, or a “change in the
ownership of a substantial portion of the assets” of the Company (within the
meaning of Section 409A of the Code).


 


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2.5                               “Code” means the Internal Revenue Code of 1986, as amended
from time to time.


 


2.6                               “Company” means Staples, Inc.


 


2.7                               “Compensation” means the annual compensation paid to a Participant
in cash by the Company for the calendar year (after any requisite tax
withholding and payroll deductions), including base pay, other regular
earnings, overtime, shift differentials, commissions, any amounts deferred
under a salary reduction agreement pursuant to the 401(k) Plan or under a “cafeteria
plan” (within the meaning of Section 125 of the Code) maintained by the
Company, but exclusive of payments from the Executive Officer Incentive Plan,
the Key Management Bonus Plan, the Retail Management Bonus Plan and the Long
Term Cash Incentive Plan or any other bonus payments, severance pay, expense
reimbursements, awards, any moving expenses paid by the Company, car allowance,
taxable fringe benefits, group term life insurance over $50,000, expatriate
compensation, exercised stock options and short and long-term disability paid
by a third party.


 


2.8                               “ERISA” means the Employee Retirement Income Security Act
of 1974, as amended from time to time.


 


2.9                               “401(k) Plan” means the Staples, Inc. Employees’ 401(k) Savings
Plan, as amended from time to time.


 


2.10                        “Participant” means an employee of the Company who is eligible to
participate in the Plan pursuant to Section 2.


 


2.11                        “Plan” means the Staples, Inc. Supplemental Executive
Retirement Plan, as set forth herein and as amended from time to time.


 


2.12                        “Plan Year” means the calendar year.


 


Section 3. 
Eligible Employees


 


The
employees eligible to participate in the Plan shall be those individuals who
qualify under the criteria set forth on Schedule A and who have both attained
age twenty-one (21) and completed “six (6) Months of Service” (as defined,
for purposes of eligibility to participate, under the 401(k) Plan, the
terms of which are incorporated herein by this reference).


 


Section 4.  Election to Defer Compensation


 


An eligible employee may begin participating in the
Plan, as of the first day of the calendar quarter (October 1, January 1,
April 1 or July 1, the “entry date”) coinciding with or next
following the date on which the eligibility requirements (set forth under Section 3)
are first satisfied, by making a deferral election during the thirty (30) day
period immediately preceding such entry date. 
Any such deferral election shall be made in accordance with the
provision of Section 409A of the Code and shall apply only to Compensation
earned after the applicable entry date. In this regard, a Participant may elect
to defer one percent (1%) to one hundred percent (100%) of his Compensation,
less any requisite tax withholding and payroll deductions, for the balance of
the Plan Year.  Any election so made
shall be binding for each following Plan Year, provided that it may be revised
or revoked on or before December 31 for any subsequent Plan Year, or such
earlier date as the Administrator may specify.


 


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A
Participant may elect to defer a specified percentage (from one percent (1%) to
one hundred percent (100%)) of any payments from the Executive Officer
Incentive Plan, the Key Management Bonus Plan and the Retail Management Bonus
Plan (which are intended to qualify as “performance-based compensation” within
the meaning of Section 409(A) of the Code) to be paid on behalf of
the Participant for a fiscal year by filing an election with the Administrator
(pursuant to Section 5) on or prior to the last day of the sixth month of
such fiscal year.


 


A
Participant may elect to defer a specified percentage (from one percent (1%) to
one hundred percent (100%)) of any payments from the Long Term Cash Incentive
Plan, which are intended to qualify as “performance-based compensation” within
the meaning of Section 409A of the Code, to be paid on behalf of the
Participant upon the conclusion of a three (3) fiscal year period, by
filing an election with the Administrator (pursuant to Section 5) on or
prior to the last day of the sixth month of the first fiscal year of the three (3) fiscal
year period.


 


An
otherwise eligible employee who fails to begin participating in the Plan as of
the first possible entry date may not begin participating until the first day
of any following Plan Year.


 


Section 5. 
Accounts


 


Each
Participant may elect to establish a separate “in-service withdrawal account”
for each year of participation, such account to be established and maintained
on the Company’s books and shall record (a) any Compensation deferred by
the Participant under the Plan which the Participant has elected to be credited
into such account, and (b) the allocation of any hypothetical investment
experience. There shall also be established for each Participant a separate “retirement
account” which shall record (a) any Compensation deferred by the
Participant, under the Plan which the Participant has not elected to be
credited to the “in-service withdrawal account” and any Company contributions
made on his behalf under the Plan and (b) the allocation of any hypothetical
investment experience.  Each Participant’s
account hereunder shall be reduced by any distributions made plus any federal,
state and/or local tax withholding and any social security withholding tax as
may be required by law.


 


Section 6. 
Manner of Election


 


Any
election(s) made by a Participant pursuant to this Plan shall be made at
the time(s) and in the manner as the Administrator shall from time to time
prescribe.


 


Section 7. 
Company Contributions


 


Each
year, the Company shall contribute to the Plan on behalf of each Participant, a
matching contribution equal to one hundred percent (100%) of the first four
percent (4%) of the Participant’s Compensation (excluding any bonuses) deferred
under the Plan, and with respect to any bonus payments from the Executive
Officer Incentive Plan, Key Management Bonus Plan and the Retail Management
Bonus Plan deferred under the Plan for the fiscal year, a matching contribution
in an amount equal to one hundred percent (100%) of the first four percent (4%)
of any such bonuses deferred.


 


The
Company reserves the right to make a supplemental matching contribution for any
Participant at the end of the year to ensure the full matching contribution is
received.


 


In addition to the matching
contribution described above, for any Plan Year, the Company may elect to 


 


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allocate an additional
discretionary contribution to the account of any Participant, or any group of
Participants, as selected by the Board, in any amount and manner as determined
by the Board.


 


Section 8.  Investment of Accounts


 


The Administrator, in its
discretion, may from time to time designate one or more investment media in
which the portion of a Participant’s account representing his deferrals shall
be hypothetically invested.  The
Administrator shall provide the Participant the opportunity to determine how
such portion of the Participant’s account shall be deemed to be hypothetically
invested from among the available investment options, and may permit changes in
those investment directions at whatever frequency it deems appropriate and
within whatever limitations are applicable to any investment option.  As of January 1, 2008, a Participant may
also direct the hypothetical investment of the portion of his account
attributable to any Company contributions made on his behalf, after September 30,
2004.  If a Participant makes an
investment selection, the Administrator may follow such investment selection
but shall not be legally bound to do so.


 


Any Company contributions
made on behalf of a Participant beginning October 1, 2004 through December 31,
2007 were hypothetically invested in insurance contracts designated by the
Administrator. Such rate of interest for each calendar year was the insurer’s
declared crediting rate on such insurance policies, as of December 1 of
the preceding year, plus 125 basis points, with the rate being rounded to the
nearest one tenth of a percent.


 


The portion, if any, of a
Participant’s account derived from Company matching contributions made prior to
October 1, 2004 shall be credited with gains and losses as if it had been
invested in Staples, Inc. common stock, provided however, that a
Participant shall have the same investment diversification rights (except with
respect to the available investment options), as exist under the 401(k) Plan.


 


Beginning with the Plan Year
2011, the portion of any Participant’s account that is hypothetically invested
in an insurance contract’s fixed account shall be credited with a rate of
interest announced by the Administrator at the beginning of the Plan Year.  The Administrator shall choose the rate that
is the higher of (1) the insurance carrier’s fixed account crediting rate
at the beginning of the Plan Year; or (2) the Internal Revenue Service’s mid-term
Applicable Federal Rate (AFR) for January 1 of the Plan Year, compounded
annually.


 


Section 9.  Vested Status of a Participant’s Account


 


A Participant shall at all
times have a nonforfeitable (“vested”) right to the fair market value of any
in-service withdrawal account(s) established under Section 5.


 


Subject to the following
provisions of this Section, if a Participant separates from service with the
Company (within the meaning of Section 409A of the Code) for any reason on
or after his Normal Retirement Age (within the meaning of the 401(k) Plan),
or prior to that date as a result of the Participant’s “disability”, or as a
result of the Participant’s death, such Participant shall have a nonforfeitable
(vested) right to the fair market value of the Participant’s retirement
account.  For this purpose, a Participant
shall be considered “disabled” if he is determined to be “permanently and
totally disabled” by the Social Security Administration.


 


Except as otherwise provided herein below, if a
Participant separates from service with the Company for any other reason other
than Normal Retirement, death, or disability, such Participant shall be
entitled to receive the vested value of his retirement account.  For this purpose, each Participant shall at
all times have a nonforfeitable (vested) right to his retirement account
derived from any Compensation deferred 


 


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pursuant to Section 4.  However, with respect to any Company matching
contributions made on the Participant’s behalf pursuant to Section 7, the
Participant shall have a nonforfeitable (vested) right to a percentage of the
fair market value of such portion of his retirement account as follows:


 


	
  Years of Service

  	
   

  	
  Vested Percentage

  	
   

  
	
  Less than 1 year

  	
   

  	
  0

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  1 year but less than 2 years

  	
   

  	
  20

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  2 years but less than 3 years

  	
   

  	
  40

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  3 years but less than 4 years

  	
   

  	
  60

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  4 years but less than 5 years

  	
   

  	
  80

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  5 years or more

  	
   

  	
  100

  	
  %

  



 


For this purpose, a
Participant shall be credited with Year(s) of Service in accordance with
the terms of the 401(k) Plan as then in effect (as it pertains to vesting
purposes).  Provided, however, that any
member of the Company’s board of directors who is not an employee of the
Company, who subsequently becomes an eligible employee and then a Participant,
shall be credited with any prior service as a director in determining said
Participant’s Year(s) of Service.


 


With respect to any
additional discretionary contributions made on the Participant’s behalf pursuant
to Section 7, the Participant shall have a nonforfeitable (vested) right
to a percentage of the fair market value of such portion of his retirement
account in accordance with the vesting schedule established by the
Administrator at the time such additional discretionary contribution is made by
the Company.


 


The nonvested portion of a
Participant’s retirement account, as determined above, shall be forfeited as of
the Participant’s separation from service. 
If any contributions have been made to a trust with respect to such
account, the forfeited portion shall remain in such trust and be used to fund
future contributions by the Company and/or used to pay Plan administrative
expenses


 


Section 10.  Payment of a Participant’s Account


 


Each Participant may also
elect, on the election form used to make his or her initial deferral election
hereunder, or through such other method acceptable to the Administrator, either
of the following modes of distribution for his retirement account:


 


(a)          a single lump sum payment;
or


 


(b)         annual installments over a
period of up to fifteen (15) years, the amount of each installment to equal the
balance of the Participant’s vested retirement account as of the date of the
distribution divided by the number of installments remaining to be paid.  Each subsequent installment shall be made in
the calendar month containing the one (1) year anniversary of the prior
payment.   Such installment election
however, shall be given effect only if the Participant separates from service
after having both attained age fifty-five (55) and completed five (5) years
of service (as measured from date of hire and each anniversary date, without
regard to hours).


 


If a Participant does not
otherwise have a valid distribution election on file, or if the balance of the
Participant’s retirement account does not exceed the amount in effect for the
applicable year under Code 


 


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Section 402(g)(1)(B) as
of the date of the Participant’s separation from service, the Participant’s
vested retirement account shall be distributed in a lump sum payment.


 


Any Participant, who on or
before December 31, 2003 elected annual cash installments over a period
not exceeding five (5) years, shall retain the right to have his vested retirement
account distributed in the manner so elected, without regard to age or service.


 


Upon a Participant’s separation from service
with the Company (within the meaning of Section 409A of the Code),
distribution of the Participant’s vested retirement account shall normally be
made or commence in the calendar month following the month in which the
separation from service occurs; provided, however, that, to the extent
permitted under Section 409A of the Code, in the event that it is not
administratively feasible to have payment made at that time, distribution can
be made at a later date within the same calendar year; and provided further
that, if the Company is subject to the provisions of Section 409A(2)(B)(i) of
the Code, and if the Participant is a “specified employee” of the Company (as
determined under said Section 409A), distribution shall be made or
commence in the seventh (7th) calendar month following the month in which the separation from
service occurs; provided, however, that, to the extent permitted under Section 409A
of the Code, in the event that it is not administratively feasible to have
payment made at that time, distribution can be made at a later date within the
same calendar year. For purposes of identifying a “specified employee,” the definition
of compensation under Section 1.415(c)-2(d)(2) of the Income Tax
Regulations shall apply, the specified employee identification date shall be December 31,
and the specified employee effective date shall be the first day of the fourth
month following such identification date.


 


Subject to the following
provisions of this Section, a Participant may elect to change the mode of
distribution for his retirement account, subject to the following conditions: (i) any
such election may not take effect until twelve (12) months after the date on
which the election is made; and (ii) the payment with respect to such
election must be deferred for a period of at least five (5) years from the
date on which payment would otherwise have been made or commenced; and (iii) in
the event of an installment election, the election shall be given effect only
if the Participant separates from service after having both attained age
fifty-five (55) and completed five (5) years of service (as measured from
the Participant’s date of hire and each anniversary date, without regard to
hours).


 


Subject to the following
provisions of this Section, any “in-service” withdrawal account(s) established
for a Participant under Section 5 shall be distributed in a lump sum
payment on the date designated by the Participant as part of his annual
deferral election with respect to which the in-service withdrawal account was
established under the Plan, which date may not be earlier than five years
following the year of the deferral election. However, a Participant may elect
to extend any in-service withdrawal date for a period of not less than 5 years;
provided such election was made at least 12 months prior to the date on which
the payment would otherwise have been made.


 


Provided, however, that a
Participant shall be permitted to make withdrawal and/or distribution elections
in 2006 and 2007 subject to the provisions of IRS Notice 2006-79 and withdrawal
and/or distribution elections in 2008 subject to the provisions of IRS Notice
2007-86 or any subsequent guidance.


 


Notwithstanding the foregoing provisions of this Section 10,
if distribution of a Participant’s vested retirement account is to be made or
commence prior to the selected distribution date of any in-service withdrawal
account, any remaining in-service withdrawal account(s) shall be
distributed at the same time and in the same manner as the Participant’s
retirement account.


 


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Section 11.  Death Benefit


 


In the event of the death of
a Participant while in the employ of the Company or any “affiliate” thereof,
vesting in the Participant’s retirement account shall be one hundred percent
(100%), if not otherwise one hundred percent (100%) vested under Section 9,
with the fair market value of the Participant’s retirement account, (and any
outstanding in-service withdrawal account(s)), being distributed to the
Participant’s Beneficiary in a lump-sum cash payment. In the event of the death
of a Participant after termination of employment, but prior to the complete
distribution of his vested account under the Plan, the balance of the
Participant’s vested retirement account (and any remaining in-service
withdrawal account(s)) shall be distributed to the Participant’s Beneficiary in
a lump-sum payment.


 


Any such lump sum death
benefit shall be distributed in the calendar month following the calendar month
of the Participants death; provided, however, that, to the extent permitted
under Section 409A of the Code, in the event that it is not
administratively feasible to have payment made at that time, distribution can
be made at a later date within the same calendar year.


 


Section 12.  Beneficiary Designation


 


A Participant’s Beneficiary
hereunder shall be the same person or persons designated by the Participant under
the 401(k) Plan unless a separate Beneficiary designation has been
established under the Plan in the manner prescribed by the Administrator.


 


In the absence of any such
designation, or if no designated Beneficiary survives the Participant, any
amounts payable following the Participant’s death shall be paid to the
Participant’s surviving spouse, or if none, to the Participant’s estate.


 


Section 13. 
Domestic Relations Orders


 


If a domestic relations
order issued by any court of proper authority directs assignment of all or any
portion of a Participant’s vested account(s) to the Participant’s spouse
or former spouse as part of a divorce settlement, the portion so assigned shall
be distributed, in a lump-sum, to the spouse or former spouse within ninety (90)
days following the close of the Plan Year in which the order was received by
the Administrator or, if later, following the close of the Plan Year in which
the order clearly specifies the amount to be assigned and any other terms
necessary to comply with such order and with the provisions of Code Section 409A.


 


Section 14. 
Distribution in the event of Unforeseeable Emergency


 


In
the event of an “unforeseeable emergency” (within the meaning of Section 409A
of the Code), a Participant may, by filing a written election with the
Administrator, elect to receive a distribution from the Plan in an amount not
to exceed the lesser of (i) the fair market value of the Participant’s
vested retirement account or (ii) the amount necessary to satisfy the
unforeseeable emergency, subject to ordinary income tax withholding.


 


Section 15.  Administration


 


The Committee on Employee
Benefit Plans, as constituted pursuant to the terms of the 401(k) Plan
(the “Administrator”), shall have the general authority to control and manage
the operation and administration of the Plan. 
In connection herewith, the Administrator shall also have the following
powers and duties:  (1) to adopt rules and
regulations necessary for the performance of its duties under the Plan; (2) to
construe the Plan and to decide all questions arising under the Plan; (3) to
act for the Company in connection with any administrative or judicial
proceeding affecting the Plan; (4) to employ, subject to the requirements
of the financial officers of the Company, persons to render accounting,
actuarial, legal, 


 


7

















 


investment or insurance
advice and to rely on such advice; (5) to determine the eligibility of
Participants to receive benefits and the amount of benefits to which any
Participant or Beneficiary may be entitled under the Plan and to enforce the
claims procedure set forth in Section 16; and (6) such other
responsibilities as are provided for under the terms of this Plan.


 


In connection with the
administration of the Plan, any two of the Chief Executive Officer, President,
Chief Financial Officer, Treasurer, Secretary or Executive Vice President —
Human Resources of Staples, Inc., acting jointly, by and on behalf of the
Company, are hereby authorized:


 


(1)                            to negotiate,
fix and vary the terms of, and to execute and deliver, contracts, agreements,
indentures, trusts, assignments, concessions, licenses, options, and all other
similar instruments;


 


(2)                            to appoint
trustees and to engage any agents or contractors, including banks, insurance
brokers, and attorneys;


 


(3)                            to amend or
terminate the Plan;


 


(4)                            to otherwise do
all acts and things necessary or suitable in connection with the exercise of
any of the aforementioned powers;


 


provided, however, that no such authorization
shall extend to any implementation, amendment, approval, or modification of the
Plan which is reserved to the Board or stockholders of the Company by the Plan,
statute, rule or regulation, including without limitation, rules promulgated
under Section 16 of the Securities and Exchange Act of 1934.


 


Section 16. 
Claims Procedure


 


(a)                            Application for
Benefits.  The Administrator shall
furnish to each Participant information about the benefits to which he or she
is entitled under the Plan.  The
Administrator may require any person claiming benefits under the Plan to submit
a written application, together with such documents, evidence, and information
as it considers necessary to process the claim.


 


(b)                           Action on
Application.  Within ninety (90) days
after receipt of an application and all necessary documents and information,
the Administrator shall furnish the claimant with a written notice of its
decision.  If the Administrator denies
the claim in whole or in part, the notice will set forth (1) specific reasons
for the denial, with specific reference to Plan provisions upon which the
denial is based; (2) a description of any additional information or
material necessary to process the application with an explanation why such
material or information is necessary; and (3) an explanation of the Plan’s
claim review procedure.


 


If special circumstances
require an extension of time for processing the claim, the Administrator shall
furnish the claimant written notice of the extension before the end of the
initial ninety (90)-day period.  In no
event shall the extension exceed a period of ninety (90) days from the end of
the initial period.  The notice shall
explain the circumstances requiring an extension of time and the date by which
the Administrator expects to render a decision.


 


(c)                            Claim
Review.  The claimant who does not agree
with the decision rendered on his application may request that the
Administrator review the decision.  The
request must be made within sixty (60) days after the claimant receives the
decision, or if the application has neither been approved nor denied within the
ninety (90)-day period specified in subsection (b), then the request must be
made within sixty (60) days after expiration of the ninety (90)-day period.


 


8

















 


Each request for review must be in writing and addressed to the
Administrator.  Concurrently with filing
the request for review, or within the sixty (60) days request period, the
claimant may submit in writing to the Administrator a statement of the issues
raised by his appeal and supporting arguments and comments.


 


During the pendency of his
appeal, the claimant may inspect all documents which are reasonably pertinent
to his case, upon reasonable notice to the Administrator.  However, under no circumstance shall the
Administrator be required to disclose to any claimant information concerning
any person other than the Participant whose benefit is being claimed, to the
extent such information is normally treated as confidential.


 


Where the Administrator believes that the issues raised by the claimant’s
appeal may be more efficiently or fairly processed by taking testimony of the
claimant or others, it shall set the matter for oral hearing and give the
claimant reasonable notice of the time and place.  Whether or not an oral hearing is scheduled,
the Administrator shall proceed promptly to resolve all issues raised by the
claimant’s appeal and shall render a written decision on the merits, with a
statement of the reasons and references to the pertinent supporting provisions
of the Plan, within sixty (60) days following receipt of the claimant’s request
for review.


 


If
special circumstances require an extension of time, the Administrator shall
render a decision as soon as possible, but not later than one hundred and
twenty (120) days after receipt of the request for review.  If an extension is required, the
Administrator shall furnish to the claimant written notice of the extension,
including an explanation of the circumstances requiring the extension, before
the extension period begins.


 


Section 17. 
Securing Payment of Plan Benefits


 


The
Plan shall be operated at all times as an unfunded plan as required under
ERISA.  However, the Company reserves the
right to take reasonable steps to secure the payment of Plan benefits to the
greatest extent possible without compromising the unfunded status of the
Plan.  Those steps may include, but is
not limited to, the establishment of an irrevocable nonqualified grantor trust
(within the meaning of subpart E, part I, subchapter J, chapter 1, subtitle A
of the Code).


 


Section 18. 
Amendment


 


The Company, by resolution
of the Board, shall have the right to amend, suspend or terminate the Plan at
any time subject to the provisions of Section 409A of the Code; provided,
however, that, subject to the provisions of Section 15, any two of the
Chief Executive Officer, President, Chief Financial Officer, Treasurer,
Secretary or Executive Vice President — Human Resources of Staples, Inc.,
acting jointly, by and on behalf of the Company shall have such right. Provided
however, that any termination of the Plan, with respect to some or all of the
Participants, and any resulting distribution of the account balances of such
affected Participants, shall be made in accordance with the provisions of Section 409A
of the Code and shall not constitute the impairment of such Participant’s
rights hereunder.


 


Section 19.  No Liability


 


No member of the Board or of
the committee serving as the Administrator, and no officer or employee of the
Company shall be liable to any person for any action taken or omitted in
connection with the administration of the Plan unless attributable to his own
fraud or willful misconduct; nor shall the Company be liable to any person for
any such action unless attributable to fraud or willful misconduct on the part
of the Administrator or a director, officer or employee of the Company.


 


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Section 20.  No Assignment


 


Except as otherwise provided herein, a Participant’s
right to the amount credited to his or her account(s) under the Plan shall
not be subject in any manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance, attachment or garnishment by creditors of the
Participant or the Participant’s Beneficiary. 
Provided, however, that the Company shall have the unrestricted right to
set off against or recover out of any payments or benefits becoming payable to
or for the benefit of a Participant, at the time such payments or benefits
otherwise become payable hereunder, any amounts owed or owing to the Company by
such Participant.


 


Section 21. 
Successors and Assigns


 


The provisions of this Plan
shall be binding upon and inure to the benefit of the Company, its successors
and assigns, and the Participant, his beneficiaries, heirs, legal
representatives and assigns.


 


Section 22.  No
Contract of Employment


 


Nothing
contained herein shall be construed as a contract of employment between a
Participant and the Company, or as a right of the Participant to continue in
employment with the Company, or as a limitation of the right of the Company to
discharge the Participant at any time, with or without cause.


 


Section 23. 
Termination of Plan Upon Change in Control


 


The
Company may elect to terminate the Plan within thirty (30) days preceding or
the twelve (12) months following a Change in Control, subject to the provisions
of Section 409A of the Code).  For
this purpose, the Plan shall be treated as terminated only if substantially
similar arrangements sponsored by the Company are terminated, so that all
Participants in the Plan and all participants under substantially similar
arrangements are required to receive all amounts deferred under the terminated
arrangements within twelve (12) months of the date of termination of the
arrangements.


 


Section 24. 
Governing Law


 


This
Plan shall be interpreted in a manner consistent with Code Section 409A
and the guidance issued thereunder by the Department of the Treasury and the
Internal Revenue Service and shall also be subject to and construed in
accordance with the provisions of ERISA, where applicable, and otherwise by the
laws of the Commonwealth of Massachusetts, without regard to the conflict of
law provisions of any jurisdiction.


 


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SCHEDULE A


 


Any
employee at Grade Level of 41 and above, except as otherwise specified by the
Board.  However, as of September 1,
2009, any participating employee or any employee who at the time of a grade
level change to an ineligible grade is participating in the Plan shall remain
an eligible participant until such time as they terminate employment with the
Company.


 


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