Exhibit 10.39


 


Amendment
to Severance Benefits Agreement (Amendment A)


 


John J. Mahoney


c/o Staples, Inc.


500 Staples Drive


Framingham, MA 
01702


 


Dear John:


 


You are a party to a Severance Benefits Agreement (“Agreement”)
with Staples, Inc. and/or one of its subsidiaries (“Staples”). Under the
Agreement, Staples agrees to provide you with the severance benefits set forth
in the Agreement if your employment is terminated under the circumstances
described in the Agreement.


 


To avoid certain tax penalties under the new federal
tax law governing deferred compensation (commonly referred to as Section 409A),
you have elected to keep the definition of “Good Reason” as set forth in your
Agreement, and wait six months following your termination before receiving any severance
payments otherwise payable under the Agreement should you be among the 50
highest compensated associates of Staples at the time of your severance.


 


Specifically, you agree to the addition of the
following language to your Agreement effective January 1, 2009, which
shall otherwise remain in full force and effect in accordance with its terms:


 


You and Staples intend that this
Agreement comply with the requirements of Section 409A of the Internal
Revenue Code (“Section 409A”) so that any payments and benefits provided
by the Agreement do not subject you to penalty taxes and interest imposed for
noncompliance with Section 409A. Accordingly, the following rules shall
apply with respect to the payments and benefits to be provided to you under
this Agreement:


 


(i)                      Each installment of the payments and benefits
provided under this Agreement shall be treated as a “separate payment” for
purposes of Section 409A. Neither Staples nor you shall have the right to
accelerate or defer the delivery of any such payments or benefits except to the
extent specifically permitted or required by Section 409;


 


(ii)                  The life, dental, accident
and group health insurance benefits to be provided to you during your severance
period under this Agreement as described above shall be treated as exempt “reimbursements
and certain other separation payments” within the meaning of Treasury
Regulation Section 1.409A-1(b)(9)(v), and any reimbursement or payment
with respect to such benefits shall be made not later


 

















 


than December 31
of the second calendar year following the year in which you are terminated;


 


(iii)              If, as of the date of your “separation
from service” from Staples, you are not a “specified employee” (each within the
meaning of Section 409A which generally defines a “specified employee” as
an employee who is among Staples’ 50 most highly compensated officers), then
each installment of the payments and benefits shall be made on the dates and
terms set forth in this Agreement;


 


(iv)                If, as of the date of your “separation
from service” from Staples, you are a “specified employee”, then each
installment of the payments and benefits due under this Agreement that would,
absent this subsection, be paid within the six-month period following your “separation
from service” from Staples shall not be paid until the date that is six months
and one day following your separation from service and any subsequent
installments, if any, being paid in accordance with the dates and terms set
forth herein.  Any such delayed payments
shall bear interest from the date of your separation from service to the date
of payment at an annual rate equal to the prime rate as set forth in the
Eastern edition of the The Wall Street Journal on the date of your separation
from service;


 


(v)                    You and Staples further agree to make such revisions
to this Agreement as may be required to conform the provisions of the Agreement
to the requirements of Section 409A and any regulations or other Internal
Revenue Service guidance issued thereunder. Staples shall have no liability for
any tax or penalty imposed on you by Section 409A.


 


If this letter sets forth our agreement, kindly sign
and return to Staples the enclosed copy of this letter no later than December 31,
2008.


 


	
   

  	
  Sincerely,

  
	
   

  	
   

  
	
   

  	
  STAPLES, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Susan S. Hoyt

  
	
   

  	
   

  	
  Susan S. Hoyt

  
	
   

  	
   

  	
  Executive Vice President

  
	
   

  	
   

  	
  Human Resources

  



 


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 23 day of December 2008.


 


	
  /s/ John J. Mahoney

  	
   

  
	
  (Associate Signature)