Form 8-K filed on August 21, 2020, the compensation committee of the HD Supply Board capped the aggregate amount of the 2020 AIP to 50% of the payout
based on the full year threshold, target, above target and maximum payout opportunity, and, if earned, the bonus will be payable in March 2021 and will be calculated without taking into consideration the temporary salary reductions that were
implemented as part of the companys response to the COVID-19 pandemic. The company has not determined which of the foregoing alternatives will be implemented with regard to the 2020 AIP. Assuming that
such pro-rated 2020 AIP bonuses are paid and that the Effective Time occurred on November 20, 2020, the amounts that would be payable to each executive officer under the 2020 AIP are as follows:
Mr. DeAngelo, $1,049,395; Mr. Levitt, $293,346; Mr. McDevitt, $225,726; Mr. Paulsen, $289,633; and Ms. Stevens, $207,210.
Future Arrangements with Parent
It is possible that Affected Employees, including the executive officers, will enter into new compensation agreements, arrangements or
understandings with Parent or the Surviving Corporation. As of the date of this Schedule 14D-9, Parent has informed the company that none of the companys current executive officers have entered into any
such agreement, arrangement or understanding with Parent or its affiliates regarding employment with the Surviving Corporation. Although it is possible that the company, Parent or the Surviving Corporation may enter into such employment, retention
or consultancy agreements, arrangements or understandings with the companys executive officers and certain other key employees, as of the date of this Schedule 14D-9, there can be no assurance that any
parties will reach an agreement. Neither the Offer nor the Merger is conditioned upon any executive officer or director of the company entering into any agreement, arrangement or understanding with Parent.
Director and Officers Exculpation, Indemnification and Insurance
Section 102(b)(7) of the DGCL permits a corporation to include in its certificate of incorporation a provision eliminating or limiting the
personal liability of a director to the corporation or its shareholders for monetary damages for breach of fiduciary duty as a director, except where the director breached his or her duty of loyalty, failed to act in good faith, engaged in
intentional misconduct or knowingly violated a law, authorized the payment of a dividend or approved a stock repurchase or redemption in violation of Delaware law, or engaged in a transaction from which the director derived an improper personal
benefit. As permitted by Section 102(b)(7) of the DGCL, the companys amended and restated certificate of incorporation eliminates the personal liability of the companys directors to the company or its Shareholders for monetary
damages for breach of fiduciary duty as a director to the fullest extent permitted by the DGCL.
Section 145(a) of the DGCL provides
that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation) by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such
action, suit or proceeding if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable
cause to believe the persons conduct was unlawful.
Section 145(b) of the DGCL provides that a corporation may indemnify any
person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that the person is or was a
director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses
(including attorneys fees) actually and reasonably incurred by the person in connection with the defense or
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