Exhibit 10.2
 
AMENDED AND RESTATED SEVERANCE BENEFITS AGREEMENT
 


Mr. John Mahoney


c/o Staples, Inc.


500 Staples
Drive


Framingham, MA
01702


 


Dear Mr. Mahoney:
 


You are
employed by Staples, Inc. and/or one of its subsidiaries (“Staples”) and
entered into a Severance Benefits Agreement with Staples on September 9,
1996, as amended by the Agreement to Extend Term of Severance Benefits
Agreement with Staples on October 14, 2000 (the “Prior Agreements”). This
letter agreement (this “Agreement”) amends and restates the Prior Agreements in
their entirety. Staples agrees to provide you with the severance benefits set
forth in this Agreement if your employment is terminated under the
circumstances described below:


 


1.                                      Term
of Agreement. The term of this Agreement shall begin on the date it is
signed and shall continue in full force and effect until such time as you or
Staples has delivered to the other 90-days advance written notice of your or
its election to terminate this Agreement. This Agreement is not a contract to
employ you for a definite time period, it being acknowledged that your
employment is “at will” and that either you or Staples may terminate the
employment relationship at any time.


 


2.                                      Notice of Termination and other Matters.
Any termination of your employment, whether by you or Staples, will be
communicated by written notice (“Notice of Termination”) to the other party.
The Notice of Termination will specify the provisions of this Agreement, if
any, upon which termination is based and its effective date, which in no case
will be more than 180 days after the Notice of Termination. All notices and
communications provided for in this Agreement will be in writing and will be
effective when delivered or mailed by U.S. registered or certified mail, return
receipt requested, postage prepaid, addressed to the Chairman of Staples, 500
Staples Drive, Framingham, MA 01702, and to you at the address shown above or
to such other address as either Staples or you may have furnished to the
other in writing.


 


3.                                      Compensation
Upon Termination. Staples will provide you with the severance benefits
listed below in the event of a Qualified Termination. A “Qualified Termination”
means your employment is terminated for any reason other than because (i) you
die or become Disabled, (ii) Staples terminates you for “Cause,” or (iii) you
resign without “Good Reason.”


 


(a)  Staples will pay you 18 months
severance pay, in equal monthly installments. Your monthly severance payments
will equal the sum of (i) your monthly base salary rate in effect
immediately prior to the Qualified Termination (or any higher rate in effect
within the 90 days prior to the Notice of Termination) plus (ii) one-twelfth
of an amount equal to the average annual bonus


 

















 


paid to (or accrued for) you by Staples during the three full fiscal
years preceding such Qualified Termination. Annual salary rates will be
prorated where applicable and annual bonus averages will be computed on years
available if less than three years. Any partial year bonus you have earned will
be annualized.


 


(b) Staples will provide you with 18
months of life, dental, accident and group health insurance benefits
substantially similar to those available to similarly situated officers (but
not disability insurance); provided, however, that Staples will not provide any
such benefit for any portion of this period that you receive an equivalent
benefit from another party.


 


(c) The vesting schedule of any
outstanding options to purchase shares of Staples’ Common Stock, shares of
restricted Staples’ Common Stock and/or any other equity-based awards will not
be accelerated in the event of a Qualified Termination, unless specifically
provided to the contrary in the respective option, restricted stock or other
equity agreements.


 


(d) Staples will provide you with 6
additional months of the benefits set forth in paragraphs (a) and (b) above
if such Qualified Termination is within two years after a Change in Control.


 


You will not be entitled to any of the compensation or benefits set
forth in this Section 3 if Staples determines, within 60 days after your
termination, that your conduct prior to your termination would have warranted a
discharge for “Cause,” or if, after your termination, you have violated the
terms of any non-competition or confidentiality provision contained in any
employment, consulting, advisory, non-disclosure, non-competition or other
similar agreement between you and Staples.


 


4.                                      Definitions.
For the purposes of this Agreement, the terms listed below are defined as
follows:


 


(a) Change in Control. A
“Change in Control” will be deemed to have occurred only if any of the
following events occur:


 


(i) any “person,” as such term is used
in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934,
as amended (the “Exchange Act”), (other than Staples, any trustee or other
fiduciary holding securities under an employee benefit plan of Staples, or any
corporation owned directly or indirectly by the stockholders of Staples in
substantially the same proportion as their ownership of stock of Staples) is or
becomes the “beneficial owner” (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of Staples representing
30% or more of the combined voting power of Staples’ then outstanding
securities;


 


(ii) individuals who constitute the
Board (as of the date hereof, the “Incumbent Board”) cease for any reason to
constitute at least a majority of the Board, provided that any person becoming
a director subsequent to the date hereof whose election, or nomination for
election by Staples’ stockholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board (other than an
election or nomination of an individual whose initial assumption of office is
in connection with an actual or threatened election contest relating to the
election of the directors of Staples, as such terms are used in Rule 14a-11
of Regulation 14A under the Exchange Act) will be, for purposes of this
Agreement, considered as though such person were a member of the Incumbent
Board; or


 


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(iii) the stockholders of Staples
approve a merger or consolidation of Staples with any other corporation, other
than (A) a merger or consolidation which would result in the voting securities
of Staples outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting securities
of the surviving entity) more than 75% of the combined voting power of the
voting securities of Staples or such surviving entity outstanding immediately
after such merger or consolidation or (B) a merger or consolidation
effected to implement a recapitalization of Staples (or similar transaction) in
which no “person” (as hereinabove defined) acquires more than 50% of the
combined voting power of Staples’ then outstanding securities; or


 


(iv) the stockholders of Staples approve
a plan of complete liquidation of Staples or an agreement for the sale or
disposition by Staples of all or substantially all of Staples’ assets.


 


(b) Disabled. You
are “disabled” for the purposes of this Agreement, if you have been absent from
the full-time performance of your duties with Staples for six (6) consecutive
months because of incapacity due to physical or mental illness, and, within
thirty (30) days after being sent a written Notice of Termination, you fail to
resume performance of your essential job duties, with or without reasonable
accommodation.


 


(c) Cause. A
termination for “Cause” by Staples will occur whenever:


 


(i) you willfully fail to substantially
perform your duties with Staples (other than any failure resulting from
incapacity due to physical or mental illness); provided, however, that Staples
has given you a written demand for substantial performance, which specifically
identifies the areas in which your performance is substandard, and you have not
cured such failure within 30 days after delivery of the demand. No act or
failure to act on your part will be deemed “willful” unless you acted or
failed to act without a good faith or reasonable belief that your conduct was
in Staples’ best interest.


 


(ii) you breach any of the terms of the
Proprietary and Confidential Information Agreement or Non-Competition Agreement
(or other similar agreement) between you and Staples, or


 


(iii) you violate the Code of Ethics or
attempt to secure any improper personal profit in connection with the business
of Staples, or


 


(iv) you fail to devote your full
working time to the affairs of Staples except as may be authorized in writing
by Staples’ CEO or other authorized Company official, or


 


(v) you engage in business other than
the business of Staples except as may be authorized in writing by Staples’
CEO or other authorized Company official, or


 


(vi) you engage in misconduct which is
demonstrably and materially injurious to Staples;


 


provided that in each case Staples has given you written notice of its
intent to terminate your employment under this Section 5(c) and an
opportunity to present, in person, to the Executive Vice President of Human
Resources or any other authorized Company official, any objections you may have
to such termination.


 


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(d) Good Reason. A
termination by you for “Good Reason” will occur whenever any of the following
circumstances have taken place, without your written consent within 90 days
prior to your Notice of Termination:


 


(i) your position, duties,
responsibilities, power, title or office was significantly diminished (a change
in your reporting relationship, standing alone, shall not be deemed
significant);


 


(ii) your annual base salary was
reduced;


 


(iii) you were not allowed to
participate in a cash bonus program in a manner substantially consistent with
past practice in light of Staples’ financial performance and attainment of your
specified goals, your participation in any other material compensation plan
(other than any stock option or stock award program which programs are within
the full discretion of the Compensation Committee) was substantially reduced,
both in terms of the amount of benefits provided and the level of participation
relative to other participants; unless such circumstances are fully corrected
prior to the Date of Termination specified in your Notice of Termination;


 


(iv) you were not provided with paid
vacation or other benefits substantially similar to those enjoyed by you under
any of Staples’ life insurance, medical, health and accident, or disability
plans in which you were participating, or Staples took any action which would directly
or indirectly materially reduce any of such benefits or the number of your paid
vacation days; unless such circumstances are fully corrected prior to the Date
of Termination specified in your Notice of Termination;


 


(v) in the event of a Change in Control,
Staples or any person in control of Staples requires you to perform your
principal duties in a new location outside a radius of 50 miles from your
business location at the time of the Change in Control; or


 


(vi) Staples fails to obtain a satisfactory
agreement from any successor to assume and agree to perform this
Agreement, as contemplated in Section 5.


 


Notwithstanding the foregoing, any general reduction of salary or
reduction (or elimination) of other compensation, bonus and/or benefits for its
officers which are substantially comparable for all such officers (but not occurring within 24 months after a Change of Control)
will not be considered “Good Reason.”


 


5.                                      Successors;
Binding Agreement. Staples will require any successor (whether direct,
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of its business or assets expressly to assume and agree to
perform this Agreement to the same extent that Staples would be required
to perform it if no such succession had taken place. Any failure to obtain
an assumption of this Agreement prior to the effectiveness of any succession
will be a breach of this Agreement and will entitle you to compensation in the
same amount and on the same terms as you would be entitled hereunder. As used
in this Agreement, “Staples” means Staples as defined above and any successor
to its business or assets as aforesaid which assumes and agrees to perform this
Agreement by operation of law, or otherwise. This Agreement will


 


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inure to the benefit of and be enforceable by your personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees. If you should die while any amount would still be payable
to you hereunder if you had continued to live, all such amounts, unless
otherwise provided herein, will be paid in accordance with the terms of this
Agreement to your devisee, legatee or other designee or if there is no such
designee, to your estate.


 


6.                                      Arbitration.
The parties agree that any legal disputes (including but not limited to
claims arising under federal or state statute, contract, tort, or public
policy) that may occur between you and Staples, and that arise out of, or
are related in any way to, your employment with or termination of employment
from Staples or the termination of this Agreement, and which disputes cannot be
resolved informally, will be resolved exclusively though final and binding
arbitration. The parties will be precluded from raising in any other forum,
including, but not limited to, any federal or state court of law, or equity,
any claim which could be raised in arbitration; provided, however that nothing
in this Agreement precludes you from filing a charge or from participating in
an administrative investigation of a charge before an appropriate government
agency or Staples from initiating an arbitration over a matter covered by this
Agreement.


 


Each party may demand arbitration, no later than three hundred
(300) days after the date on which the claim arose, by submitting to the other
party a written demand which states: (i) the claim asserted, (ii) the
facts alleged, (iii) the applicable statute or principal of law (e.g.,
breach of contract) upon which the demand is based, and (iv) the remedy
sought. Any response to such demand must be made, in writing, within twenty
(20) days after receiving the demand, and will specifically admit or deny each
factual allegation.


 


The arbitration will be conducted in accordance with the Rules for
Employment Arbitration of the American Arbitration Association (AAA) and any
arbitration will take place in Framingham, Massachusetts. Each party will bear
its own costs and attorney’s fees. The arbitrator will have the power to award
any types of legal or equitable relief that would be available in a court of
competent jurisdiction, including, but not limited to, the costs of
arbitration, attorney’s fees, emotional distress damages, and punitive damages
for causes of action when such damages are available under law. Any relief or
recovery to which you are entitled from any claims arising out of your
employment, termination, or any claim of unlawful discrimination will be
limited to that awarded by the arbitrator.


 


7.                                      Waiver
of Jury Trial. If any claim arising out of your employment or
termination is found not to be subject to final and binding arbitration, the
parties agree to waive any right to a jury trial if such claim is filed in
court.


 


8.                                      Miscellaneous.


 


(a)                                  The invalidity or
unenforceability of any provision of this Agreement will not affect the
validity or enforceability of any other provision of this Agreement, which will
remain in full force and effect.


 


(b)                                 The validity,
interpretation, construction and performance of this Agreement will be governed
by the laws of the Commonwealth of Massachusetts.


 


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(c)                                  No waiver by you or
Staples at any time of any breach of, or compliance with, any provision of this
Agreement to be performed by Staples or you, respectively, will be deemed a
waiver of that or any other provision at any subsequent time.


 


(d)                                 You must execute a
legally enforceable separation agreement and general release in a form acceptable
to Staples prior to the receipt of any payments or benefits set forth above. Any
payments made to you will be paid net of any applicable withholding required
under federal, state or local law.


 


(e)                                  This Agreement is the
exclusive agreement with respect to the severance benefits payable to you in
the event of a termination of your employment. All prior negotiations and
agreements, including without limitation the Prior Agreements, are hereby
merged into this Agreement.


 


[continued on next page]


 


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If this Agreement sets forth our agreement,
kindly sign and return to Staples the enclosed copy of this Agreement.


 


 


	
   

  	
  Sincerely,

  
	
   

  	
   

  
	
   

  	
  STAPLES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Susan S. Hoyt

  	
   

  
	
   

  	
   

  	
  Susan S. Hoyt

  
	
   

  	
   

  	
  Executive Vice President,

  
	
   

  	
   

  	
  Human Resources

  



 


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I have been advised of my right to consult with counsel regarding this
Agreement and have decided to sign below knowingly, voluntarily, and free from
duress or coercion.


 


Agreed to this 13th day of March, 2006


 


 


	
    /s/ John J. Mahoney

  	
   

  
	
  John J. Mahoney

  
	
  Vice Chairman and

  
	
  Chief Financial Officer

  



 


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