Office Depot 2011 Annual Report Download - page 189

the Employer delivers the release to Executive) and (ii) not revoke the release within any seven-day revocation period that applies to
Executive under the Age Discrimination in Employment Act of 1967, as amended; the total period of time described in (i) and
(ii) above is the “Release Period.” If Executive has not executed and delivered the release to the Company, and the release has not
become irrevocable, as specified above, the Company’s obligations under this Section 3.2 will terminate. Otherwise, the Company
will make payment of the amount payable under this Section 3.2 to Executive within fifteen (15) days after the expiration of the
Release Period.
3.3 Section 409A. Any Retention Payment paid pursuant to Sections 3.1 or 3.2 is intended to constitute a payment pursuant to
the “short-term deferral” exception under Code Section 409A as set forth in Section 1.409A-1(b)(4) of the Treasury Regulations, and
this Agreement shall be interpreted consistent with such intent. To the extent applicable, this Agreement shall at all times be operated
in accordance with the requirements of Code Section 409A, including any applicable exceptions. The Company shall have authority
to take action, or refrain from taking any action, with respect to the payments and benefits under this Agreement that is reasonably
necessary to comply with Code Section 409A. If, at the time of Executive’s separation from service (within the meaning of Code
Section 409A), (i) Executive is a specified employee (within the meaning of Code Section 409A and using the identification
methodology selected by the Company from time to time) and (ii) the Company shall make a good faith determination that an amount
payable hereunder constitutes nonqualified deferred compensation (within the meaning of Code Section 409A) the payment of which
is required to be delayed pursuant to the six-month delay rule set forth in Code Section 409A in order to avoid taxes or penalties
under Code Section 409A, then the Company shall not pay such amount on the otherwise scheduled payment date but shall instead
accumulate such amount and pay it on the first business day after such six-month period. Any payment under Section 3.2 shall be
triggered only by a “separation from service” within the meaning of Code Section 409A.
4.1 Non-Exclusivity of Rights. Nothing in this Agreement shall prevent or limit Executive’s continuing or future participation in
any plan, practice, policy or program provided by the Company for which Executive may qualify, nor shall anything in this
Agreement limit or otherwise affect any rights Executive may have under any contract or agreement with the Company.
4.2 Withholding. The Company may deduct and withhold from any amounts payable under this Agreement such federal, state,
local, foreign or other taxes as are required to be withheld pursuant to any applicable law or regulation.
4.3 Assignment. This Agreement is personal to Executive and, without the prior written consent of the Company, shall not be
assignable by Executive otherwise than by will or the laws of descent and distribution, and any assignment in violation of this
Agreement shall be void.
4.4 Successors; Binding Agreement. In addition to any obligations imposed by law upon any successor to the Company, the
Company will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company, to expressly assume and agree to perform this Agreement, in the same
manner and to the same extent that the Company would be required to perform it if no such succession had taken place.
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4. MISCELLANEOUS