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:
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Years of Service
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Vested Percentage
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Le
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