Exhibit 10.34
STAPLES, INC.
INDEMNIFICATION
AGREEMENT
This Agreement is made as of the
day
of
,
2008, by and between Staples, Inc., a Delaware corporation
(the “Corporation), and
(the “Indemnitee”), a director or officer of the
Corporation.
WHEREAS, it is essential to the
Corporation to retain and attract as directors and officers the
most capable persons available, and
WHEREAS, the increase in corporate
litigation subjects directors and officers to expensive litigation
risks, and
WHEREAS, it is now and has always
been the policy of the Corporation to indemnify its directors and
officers, and
WHEREAS, the Corporation desires the
Indemnitee to serve, or continue to serve, as a director or officer
of the Corporation.
NOW THEREFORE, the Corporation and
the Indemnitee do hereby agree as follows:
1.
Definitions
. As used
in this Agreement:
(a)
The term
“Change in Control” shall mean the occurrence of any
one of the following:
(i)
individuals who,
on the date of this Agreement, constitute the Board (the
“Incumbent Directors”) cease for any reason to
constitute at least a majority of the Board, provided that any
person becoming a director subsequent to the date of this Agreement
whose election or nomination for election was approved by a vote of
at least a majority of the Directors then on the Board (either by a
specific vote or by approval of the proxy statement of the
Corporation in which such person is named as a nominee for
director, without written objection to such nomination) shall be an
Incumbent Director; provided, however, that no individual initially
elected or nominated as a director of the Corporation as a result
of an actual or threatened election contest with respect to
directors or as a result of any other actual or threatened
solicitation of proxies by or on behalf of any person other than
the Board shall be deemed to be an Incumbent Director;
(ii)
any
“person” (as such term is defined in the Securities
Exchange Act of 1934, as amended (the “Exchange Act”)
and as used in Sections 13(d)(3) and 14(d)(2) of the
Exchange Act) is or becomes a “beneficial owner” (as
defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Corporation representing 50% or
more of the combined voting power of the Corporation’s then
outstanding securities eligible to vote for the election of the
Board (the “Corporation Voting Securities”); provided,
however, that the event described in this paragraph (ii) shall
not be deemed to be a Change in Control by virtue of
any of the following
acquisitions: (A) by the Corporation or any subsidiary,
(B) by any employee benefit plan (or related trust) sponsored
or maintained by the Corporation or any subsidiary, (C) by any
underwriter temporarily holding securities pursuant to an offering
of such securities, (D) pursuant to a Non-Qualifying
Transaction, as defined in paragraph (iii), or (E) by any
person of Voting Securities from the Corporation, if a majority of
the Incumbent Board approves in advance the acquisition of
beneficial ownership of 50% or more of Corporation Voting
Securities by such person;
(iii)
the consummation
of a merger, consolidation, statutory share exchange,
reorganization or similar form of corporate transaction involving
the Corporation or any of its subsidiaries that requires the
approval of the Corporation’s stockholders, whether for such
transaction or the issuance of securities in the transaction (a
“Business Combination”), unless immediately following
such Business Combination: (A) more than 50% of the
total voting power of (x) the corporation resulting from such
Business Combination (the “Surviving Corporation”), or
(y) if applicable, the ultimate parent corporation that
directly or indirectly has beneficial ownership of 100% of the
voting securities eligible to elect directors of the Surviving
Corporation (the “Parent Corporation”), is represented
by Corporation Voting Securities that were outstanding immediately
prior to such Business Combination (or, if applicable, is
represented by shares into which such Corporation Voting Securities
were converted pursuant to such Business Combination), and such
voting power among the holders thereof is in substantially the same
proportion as the voting power of such Corporation Voting
Securities among the holders thereof immediately prior to the
Business Combination, (B) no person (other than any employee
benefit plan (or related trust) sponsored or maintained by the
Surviving Corporation or the Parent Corporation), is or becomes the
beneficial owner, directly or indirectly, of 35% or more of the
total voting power of the outstanding voting securities eligible to
elect directors of the Parent Corporation (or, if there is no
Parent Corporation, the Surviving Corporation) and (C) at
least half of the members of the board of directors of the Parent
Corporation (or, if there is no Parent Corporation, the Surviving
Corporation) following the consummation of the Business Combination
were Incumbent Directors at the time of the Board’s approval
of the execution of the initial agreement providing for such
Business Combination (any Business Combination which satisfies all
of the criteria specified in (A), (B) and (C) above shall
be deemed to be a “Non-Qualifying
Transaction”);
(iv)
the stockholders
of the Corporation approve a plan of complete liquidation or
dissolution of the Corporation;
(v)
the consummation
of a sale of all or substantially all of the Corporation’s
assets; or
(vi)
the occurrence of
any other event that the Board determines by a duly approved
resolution constitutes a Change in Control.
(b)
The term
“Corporate Status” shall mean the status of a person
who is or was, or has agreed to become, a director or officer of
the Corporation, or is or was serving, or has agreed to serve, at
the request of the Corporation, as a director, officer, fiduciary,
partner, trustee, member, employee or agent of, or in a similar
capacity with, another corporation, partnership, joint venture,
trust, limited liability company or other enterprise.
2
(c)
The term
“Expenses” shall include, without limitation,
reasonable attorneys’ fees, retainers, court costs,
transcript costs, fees and expenses of experts, travel expenses,
duplicating costs, printing and binding costs, telephone charges,
postage, delivery service fees and other disbursements or expenses
of the types customarily incurred in connection with
investigations, judicial or administrative proceedings or appeals
and which are consistent with those paid by the Corporation in
accordance with its General and Billing Guidelines for Outside
Counsel (which upon request will be provided to the Indemnitee),
but shall not include the amount of judgments, fines or penalties
against Indemnitee or amounts paid in settlement in connection with
such matters.
(d)
The term
“Independent Counsel” shall mean a law firm, or a
member of a law firm, that is experienced in matters of corporation
law and neither currently is, nor in the past five years has been,
retained to represent: (i) the Corporation or the
Indemnitee in any matter material to either such party or
(ii) any other party to the Proceeding giving rise to a claim
for indemnification hereunder. Notwithstanding the foregoing,
the term “Independent Counsel” shall not include any
person who, under the applicable standards of professional conduct
then prevailing, would have a conflict of interest in representing
either the Corporation or the Indemnitee in an action to determine
the Indemnitee’s rights under this Agreement. The
Corporation agrees to pay the Expenses of the Independent Counsel
referred to above and to fully indemnify such counsel against any
and all Expenses, claims, liabilities and damages arising out of or
relating to this Agreement or its engagement pursuant
hereto.
(e)
References to
“other enterprise” shall include employee benefit
plans; references to “fines” shall include any excise
tax assessed with respect to any employee benefit plan; references
to “serving at the request of the Corporation” shall
include any service as a director, officer, employee or agent of
the Corporation which imposes duties on, or involves services by,
such director, officer, employee, or agent with respect to an
employee benefit plan, its participants, or beneficiaries; and a
person who acted in good faith and in a manner such person
reasonably believed to be in the interests of the participants and
beneficiaries of an employee benefit plan shall be deemed to have
acted in a manner “not opposed to the best interests of the
Corporation” as referred to in this Agreement.
(f)
The term
“Proceeding” shall include any threatened, pending or
completed action, suit, arbitration, alternative dispute resolution
proceeding, administrative hearing or other proceeding, whether
brought by or in the right of the Corporation or otherwise and
whether of a civil, criminal, administrative or investigative
nature, and any appeal therefrom.
2.
Indemnity of
Indemnitee . The Corporation shall
indemnify the Indemnitee in connection with any Proceeding as to
which the Indemnitee is, was or is threatened to be made a party
(or is otherwise involved) by reason of the Indemnitee’s
Corporate Status, to the fullest extent permitted by law (as such
may be amended from time to time). In furtherance of the
foregoing and without limiting the generality thereof:
(a)
Indemnification in
Third-Party Proceedings . The Corporation
shall indemnify the Indemnitee in accordance with the provisions of
this Section 2(a) if the Indemnitee was or is a party to
or threatened to be made a party to or otherwise involved in any
Proceeding (other than a Proceeding by or in the right of the
Corporation to procure a judgment in its favor
3
or a Proceeding referred to
in Section 5 below) by reason of the Indemnitee’s
Corporate Status or by reason of any action alleged to have been
taken or omitted in connection therewith, against all Expenses,
judgments, fines, penalties and amounts paid in settlement actually
and reasonably incurred by or on behalf of the Indemnitee in
connection with such Proceeding, if the Indemnitee acted in good
faith and in a manner which the Indemnitee reasonably believed to
be in, or not opposed to, the best interests of the Corporation
and, with respect to any criminal Proceeding, had no reasonable
cause to believe that his or her conduct was unlawful.
(b)
Indemnification in
Proceedings by or in the Right of the Corporation
. The
Corporation shall indemnify the Indemnitee in accordance with the
provisions of this Section 2(b) if the Indemnitee was or
is a party to or threatened to be made a party to or otherwise
involved in any Proceeding by or in the right of the Corporation to
procure a judgment in its favor by reason of the Indemnitee’s
Corporate Status or by reason of any action alleged to have been
taken or omitted in connection therewith, against all Expenses and,
to the extent permitted by law, amounts paid in settlement actually
and reasonably incurred by or on behalf of the Indemnitee in
connection with such Proceeding, if the Indemnitee acted in good
faith and in a manner which the Indemnitee reasonably believed to
be in, or not opposed to, the best interests of the Corporation,
except that, if applicable law so requires, no indemnification
shall be made under this Section 2(b) in respect of any
claim, issue or matter as to which the Indemnitee shall have been
adjudged to be liable to the Corporation, unless, and only to the
extent, that the Court of Chancery of Delaware or the court in
which such action or suit was brought shall determine upon
application that, despite the adjudication of such liability but in
view of all the circumstances of the case, the Indemnitee is fairly
and reasonably entitled to indemnity for such Expenses as the Court
of Chancery or such other court shall deem proper.
3.
Indemnification of Expenses
of Successful Party . Notwithstanding any
other provision of this Agreement, to the extent that the
Indemnitee has been successful, on the merits or otherwise, in
defense of any Proceeding or in defense of any claim, issue or
matter therein (other than a Proceeding referred to in
Section 5), the Indemnitee shall be indemnified against all
Expenses actually and reasonably incurred by or on behalf of the
Indemnitee in connection therewith. In the event any
attorneys’ fees, costs or expenses are awarded to the
Indemnitee in the successful defense of any Proceeding or in
defense of any claim, issue or matter, the Indemnitee will promptly
reimburse the Corporation for such fees, costs or expenses as
awarded.
4.
Indemnification for Expenses
of a Witness . To the extent that
the Indemnitee is, by reason of the Indemnitee’s Corporate
Status, a witness in any Proceeding to which the Indemnitee is not
a party, the Indemnitee shall be indemnified against all Expenses
actually and reasonably incurred by or on behalf of the Indemnitee
in connection therewith.
5.
Exceptions to
Right of Indemnification . Notwithstanding
anything to the contrary to this Agreement, except as set forth in
Section 9,
(a)
the Corporation
shall not indemnify the Indemnitee under this Agreement in
connection with a Proceeding (or part thereof) initiated by the
Indemnitee unless (i) the initiation thereof was approved by
the Board of Directors of the Corporation or (ii) the
Proceeding was commenced following a Change in Control;
and
4
(b)
the Corporation
shall not indemnify the Indemnitee to the extent the Indemnitee is
reimbursed from the proceeds of insurance, and in the event the
Corporation makes any indemnification payments to the Indemnitee
and the Indemnitee is subsequently reimbursed from the proceeds of
insurance, the Indemnitee shall promptly refund such
indemnification payments to the Corporation to the extent of such
insurance reimbursement.
6.
Notification
and Defense of Claim .
(a)
The Indemnitee
shall notify the Corporation in writing as soon as practicable of
any Proceeding for which indemnity will or could be sought and
provide the Corporation with a copy of any summons, citation,
subpoena, complaint, indictment, information or other document
relating to such Proceeding with which Indemnitee is served.
The failure to so notify the Corporation will not relieve the
Corporation from any liability that it may have to Indemnitee
(i) except to the extent the failure adversely affects the
Corporation’s rights, legal position, ability to defend or
ability to
|
