Attached files
| file | filename |
|---|---|
| 8-K - FORM 8-K - ODP Corp | d629988d8k.htm |
| EX-10.1 - EX-10.1 - ODP Corp | d629988dex101.htm |
| EX-10.3 - EX-10.3 - ODP Corp | d629988dex103.htm |
| EX-10.4 - EX-10.4 - ODP Corp | d629988dex104.htm |
| EX-99.1 - EX-99.1 - ODP Corp | d629988dex991.htm |
| EX-99.2 - EX-99.2 - ODP Corp | d629988dex992.htm |
Exhibit 10.2
2013 NON-QUALIFIED STOCK OPTION AWARD AGREEMENT
We are pleased to advise you that the Compensation Committee (the “Committee”) of the Board of Directors of Office Depot, Inc. (the “Company”) has on November 12, 2013 (the “Grant Date”) granted you a non-qualified stock option award (the “Option”) pursuant to the Office Depot, Inc. 2007 Long-Term Incentive Plan (the “Plan”). Capitalized terms used but not defined in this 2013 Non-Qualified Stock Option Award Agreement (the “Agreement”) have the meanings given to them in the Plan. This award is subject to federal and local law and the requirements of the New York Stock Exchange.
| 1. | Option |
The Option provides you with the opportunity to purchase One Million Five Hundred Thousand (1,500,000) shares of the Company’s common stock (“Option Shares”), at an option price per share of $5.21 payable upon exercise, pursuant to the provisions and restrictions contained in the Plan and this Agreement. The option price per share is equal to the Fair Market Value of a share of the Company’s common stock on the Grant Date. Your Option will expire at the close of business on November 12, 2023 (the “Expiration Date”), subject to earlier expiration upon the termination of your employment as provided below. Your Option is not intended to be an “incentive stock option” within the meaning of Section 422 of the Code.
| 2. | Vesting and Exercise |
| a. | Normal Vesting and Exercise. The Option will vest and become exercisable with respect to thirty-three percent (33%) of the Option Shares on each of the first and second anniversaries of the Grant Date (in each case rounded down to the next highest whole number of Option Shares) and all remaining Option Shares on the third anniversary of the Grant Date, provided that you are continuously employed by the Company or any Subsidiary from the Grant Date until each such anniversary date (the “Vesting Period”). |
| b. | Effect on Vesting and Exercise of Employment Termination. Notwithstanding paragraph 2(a) above, the following vesting and exercise rules will apply if your employment with the Company and its Subsidiaries terminates before you have exercised your Option for all of your Option Shares: |
| i) | Death or Disability. If you terminate employment with the Company and its Subsidiaries due to death or Disability, the Option will fully vest and become exercisable as to all Option Shares (to the extent the Option has not previously vested and become exercisable) on the date of such employment termination and will remain exercisable by you (in the case of Disability) or your beneficiary, surviving spouse, or estate, as applicable (in the case of death) at any time until, and will automatically be forfeited and cancelled |
| upon, the earlier of the date which is 12 months after the date of your death or Disability, as applicable, or the Expiration Date. As used herein, the term “Disability” shall have the meaning set out in the Employment Agreement between you and the Company dated as of November 12, 2013 (the “Employment Agreement”). The determination of Disability must be final under the Employment Agreement prior to the date on which the Option would otherwise cease to be exercisable to be recognized under this Agreement. This definition of “Disability” applies in lieu of the definition set out in the Plan. |
| ii) | Termination of Employment without Cause or for Good Reason Prior to Change in Control. In the event of your involuntary termination of employment with the Company and its Subsidiaries without Cause or your termination of employment with the Company and its Subsidiaries for Good Reason, in either case prior to the effective date of a Change in Control, the Option will vest and become exercisable with respect to the portion of the Option that is scheduled to vest during the 12-month period following the date of your employment termination pursuant to paragraph 2(a) above on the date of your termination of employment and the portion of the Option which is vested and exercisable on the date of your employment termination will remain exercisable at any time, and will automatically be forfeited and cancelled upon, the earlier of the date which is 12 months after the date of your employment termination or the Expiration Date. The portion of the Option which is not vested and exercisable on the date of your employment termination will be forfeited and cancelled on the date of your employment termination. |
| iii) | Termination of Employment without Cause or for Good Reason Following Change in Control. In the event of your involuntary termination of employment with the Company and its Subsidiaries without Cause or your termination of employment with the Company and its Subsidiaries for Good Reason, in either case within 12 months after the effective date of a Change in Control, the Option will fully vest and become exercisable (to the extent not already fully vested and exercisable) on the date of your employment termination and will remain exercisable at any time, and will automatically be forfeited and cancelled upon, the earlier of the date which is 12 months after the date of your employment termination or the Expiration Date. In the event of your involuntary separation from service with the Company and its Subsidiaries without Cause or your separation from service with the Company and its Subsidiaries for Good Reason, in either case more than 12 months after the effective date of a Change in Control, the treatment specified in paragraph 2(b)(ii) above shall apply to the Option. However, in either case, if the Option is not assumed, substituted or otherwise continued on an equivalent basis by the surviving entity in the Change in Control, the Option shall become fully vested on the effective date of the Change in Control and shall be cancelled in exchange for a cash payment in an amount |
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| equal to (i) the excess of the Fair Market Value per share of the Company’s common stock subject to the Award immediately prior to the effective date of the Change in Control over the per share exercise price, multiplied by (ii) the number of shares of Company common stock subject to the Option. |
| iv) | Cause. If your employment is terminated by the Company or a Subsidiary for Cause, the Option will be forfeited with respect to all Option Shares immediately upon your termination of employment regardless of whether the Option is then vested and exercisable with respect to all or any portion of the Option Shares. |
| v) | Other Termination of Employment. Except as provided otherwise in paragraph 2(b)(i), (ii) and (iii) above, upon the termination of your employment with the Company and its Subsidiaries, the portion of your Option that is unvested on the date of your employment termination will automatically be forfeited and cancelled on the date of your termination of employment and the portion of your Option which is vested and exercisable on the date of your termination of employment will remain exercisable at any time, and will automatically be forfeited and cancelled upon, the earlier of the date which is 12 months after the date of your termination of employment or the Expiration Date. |
| vi) | Definitions. As used herein, the terms “Cause”, “Good Reason” and “Change in Control” shall have the meanings set out in the Employment Agreement. |
| vii) | Death After Termination of Employment. If you die after your employment with the Company and its Subsidiaries has terminated, your Option will be exercisable by your beneficiary, surviving spouse, estate, or any person who acquired such Option by bequest or inheritance within the time frame in (i) above, as applicable. |
| c. | No Other Special Vesting Rights. The provisions of the Plan with respect to accelerated vesting in the event of Retirement (sections 10.5(iii) and 10.7 of the Plan) do not apply to the Option. If all or any portion of the Option is forfeited at any time during the Vesting Period, you will cease to have any rights with respect to such forfeited Option. |
| 3. | Expiration of Option |
In no event shall any part of your Option be exercisable after the Expiration Date.
| 4. | Procedure for Exercise |
You may exercise all or a portion of the Option (to the extent vested) pursuant to the exercise procedures specified by the Company from time to time in Plan documentation distributed to participants, which include remitting payment of the aggregate option price for the Option Shares being purchased pursuant to the prospectus of the Plan.
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| 5. | Transferability of Option |
Except as provided below, the Option (a) is personal to you and, during your lifetime, may be exercised only by you or your guardian or legal representative; and (b) may not be sold, pledged, assigned or transferred in any manner, other than in the case of your death to your beneficiary as determined pursuant to procedures prescribed by the Committee for this purpose or by will or the laws of descent and distribution, and any such purported sale, pledge, assignment or transfer shall be void and of no effect. However, subject to applicable procedures, you may transfer your Option to an immediate family member (i.e., your spouse, child or grandchild), a trust for the benefit of such immediate family members during your lifetime, or a partnership whose only partners are such immediate family members. The transferee shall remain subject to all terms and conditions applicable to the Option prior to the transfer.
| 6. | Conformity with Plan |
Your Option is intended to conform in all respects with, and is subject to, all applicable provisions of the Plan which is incorporated herein by reference. Inconsistencies between this Agreement and the Plan shall be resolved in accordance with the terms of the Plan except as expressly provided otherwise in this Agreement. The Committee reserves its rights to amend or terminate the Plan at any time without your consent; provided, however, that the Option shall not, without your written consent, be adversely affected thereby (except to the extent the Committee reasonably determines that such amendment or termination is necessary or appropriate to comply with applicable law or the rules or regulations of any stock exchange on which the Company’s stock is listed or quoted). All interpretations and determinations of the Committee or its delegate shall be final, binding and conclusive upon you and your legal representatives and any recipient of a transfer of the Option permitted by this Agreement with respect to any question arising hereunder or under the Plan or otherwise, including guidelines, policies or regulations which govern administration of the Plan. By acknowledging this Agreement, you agree to be bound by all of the terms of the Plan and acknowledge availability and accessibility of the Plan document, the Plan Prospectus, and either the Company’s latest annual report to shareholders or annual report on Form 10-K on the Plan and/or Company websites. You understand that you may request paper copies of the foregoing documents by contacting the Company’s Director, Executive Compensation & International Compensation and Benefits.
| 7. | Restrictions on Shares |
If the Committee determines that the listing, registration or qualification upon any securities exchange or under any law of the Option Shares is necessary or desirable as a condition of, or in connection with, the granting of the Option or the issue or purchase of the Option Shares thereunder, no Option Shares may be issued unless such listing,
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registration or qualification is effected free of any conditions not acceptable to the Committee. All certificates for shares of the company’s common stock delivered under the Plan shall be subject to such stop-transfer orders and other restrictions as the Committee may deem advisable under the rules, regulations, and other requirements of the Securities and Exchange Commission, any listing standards of any exchange or self-regulatory organization on which the Company’s common stock is listed, and any applicable federal or state laws; and the Committee may cause a legend or legends to be placed on any such certificates to make appropriate reference to such restrictions. In making such determination, the Committee may rely upon an opinion of counsel for the Company. The Company shall have no liability to deliver any shares under the Plan or make any other distribution of the benefits under the Plan unless such delivery or distribution would comply with all applicable state, federal, and foreign laws (including, without limitation and if applicable, the requirements of the Securities Act of 1933), and any applicable requirements of any securities exchange or similar entity. The Committee shall be permitted to amend this Agreement in its discretion to the extent the Committee determines that such amendment is necessary or desirable to achieve compliance with the Dodd-Frank Wall Street Reform and Consumer Protection Act and the guidance thereunder.
| 8. | Non-Compete, Confidentiality, and Non-Solicitation Requirements |
Your Option is also subject to your complying with and not breaching the non-compete, confidentiality, and non-solicitation covenants in your Employment Agreement.
| 9. | Section 409A |
It is intended, and this Agreement shall be construed, so that the Option shall be exempt from Section 409A of the Internal Revenue Code of 1986, as amended, pursuant to Treasury Regulation Section 1.409A-1(b)(5)(i)(A).
| 10. | Employment and Successors |
Nothing in the Plan or this Agreement shall serve to modify or amend any employment agreement you may have with the Company or any Subsidiary or to interfere with or limit in any way the right of the Company or any Subsidiary to terminate your employment at any time, or confer upon you any right to continue in the employ of the Company or any Subsidiary for any period of time or to continue your present or any other rate of compensation subject to the terms of any employment agreement you may have with the Company. The grant of your Option shall not give you any right to any additional awards under the Plan or any other compensation plan the Company has adopted or may adopt. The agreements contained in this Agreement shall be binding upon and inure to the benefit of any successor of the Company.
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| 11. | Withholding |
As a condition of exercise of your Option, you are required to pay to the Company all applicable federal, state, local or other taxes, domestic or foreign, with respect to the Option (the “Required Tax Payments”) pursuant to the method you elect at the time of exercise from among the methods made available by the Committee for this purpose.
| 12. | Amendment |
The Committee may amend this Agreement by a writing that specifically states that it is amending this Agreement, so long as a copy of such amendment is delivered to you, provided that no such amendment shall adversely affect in a material way your rights hereunder without your written consent (except to the extent the Committee reasonably determines that such amendment or termination is necessary or appropriate to comply with applicable law or the rules or regulations of any stock exchange on which the Company’s stock is listed or quoted). Without limiting the foregoing, the Committee reserves the right to change, by written notice to you, the provisions of the Option or this Agreement in any way it may deem necessary or advisable to carry out the purpose of the grant of the Option as a result of any change in applicable law or regulation or any future law, regulation, ruling, or judicial decisions; provided that, any such change shall be applicable only to that portion of an Option that is then subject to restrictions as provided herein.
| 13. | Notices |
Any notice to be given under the terms of this Agreement to the Company shall be addressed to the Company as follows:
Office Depot, Inc.
c/o Vice President, Global Compensation, Benefits, and HRIM
6600 North Military Trail, C278
Boca Raton, FL 33496
Any notice to be given under the terms of this Agreement to you shall be addressed to you at the address listed in the Company’s records. By a notice given pursuant to this Section, either party may designate a different address for notices. Any notice shall be deemed to have been duly given when personally delivered (addressed as specified above) or when enclosed in a properly sealed envelope (addressed as specified above) and deposited, postage prepaid, with the U.S. postal service or an express mail company.
| 14. | Severability |
If all or ny part of this Agreement or the Plan is declared by any court or governmental authority to be unlawful or invalid, such unlawfulness or invalidity shall not invalidate any portion of this Agreement or the Plan not declared to be unlawful or invalid. Any section of this Agreement (or part of such a section) so declared to be unlawful or invalid shall, if possible, be construed in a manner that will give effect to the terms of such section or part of a section to the fullest extent possible while remaining lawful and valid.
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| 15. | Entire Agreement |
This Agreement contains the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements or understandings, oral or written, with respect to the subject matter herein. By acknowledging this Agreement, you accept the Option in full satisfaction of any and all obligations of the Company to grant equity compensation awards to you as of the date hereof.
| 16. | Governing Law |
This Agreement will be governed by and enforced in accordance with the laws of the State of Florida, without giving effect to its conflicts of laws rules or the principles of the choice of law.
| 17. | No Rights as Shareholder |
You shall have no voting, dividend or any other rights as a stockholder of the Company with respect to the Option Shares, unless and to the extent that you exercise the Option provided hereunder and the Option Shares are registered in your name as owner.
| 18. | Venue |
Any action or proceeding seeking to enforce any provision of or based on any right arising out of this Agreement may be brought against you or the Company only in the courts of the State of Florida or, if it has or can acquire jurisdiction, in the United States District Court for the Southern District of Florida, West Palm Beach Division; and you and the Company consent to the jurisdiction of such courts in any such action or proceeding and waive any objection to venue laid therein.
To confirm your understanding and acknowledgment of the terms contained in this Agreement, please sign and date this Agreement below.
Very truly yours,
OFFICE DEPOT, INC.
| Acknowledged: |
| /s/ Roland C. Smith |
| Roland C. Smith |
Date: 11/13/13
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