UNITED STATES SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934

Commission file number 1-10948

OFFICE DEPOT, INC.

Delaware		59-2663954
(State or other jurisdiction of incorporation or organization)		(I.R.S. Employer Identification No.)

2200 Old Germantown Road, Delray Beach, Florida		33445
(Address of principal executive offices)		(Zip Code)

Check the appropriate box below if the Form 8-K is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

Item 1.01 — Amendment of a Material Definitive Agreement

On January 23, 2006, Office Depot, Inc. (the “Company”) entered into an amendment (“Amendment Number Two”) to an Executive Employment Agreement with Carl (Chuck) Rubin, in connection with Mr. Rubin’s promotion to President, North American Retail, from his former position as Executive Vice President, Marketing and Merchandising. Mr. Rubin is a Named Executive Officer of the Company.

Certain key terms of Amendment Number Two are described herein. The description contained herein is qualified in its entirety by the actual language of Amendment Number Two, a copy of which is attached as Exhibit 99.1.1 to this Current Report on Form 8-K (this “Report”). In the event of any conflict between the language of the description contained in this Report and the Amendment, the terms of the Amendment shall govern in all respects. Exhibit as amended by Amendment Number Two, the terms of Mr. Rubin’s Executive Employment remain essentially unchanged, as set forth in prior agreements previously filed with the SEC by the Company.

Title		President, North American Retail
Base Salary		Increased to $575,000 per annum

Item 5.02(b) and (c) — Appointment of Principal Officer; Departure of Principal Officer

Effective January 23, 2006, Carl (Chuck) Rubin has been appointed as President, North American Retail. Mr. Rubin formerly served as Executive Vice President, Marketing and Merchandising, for the Company. In his new capacity, Mr. Rubin will continue to report to Office Depot’s CEO, Steve Odland. Reporting to Rubin will be the Senior Vice Presidents of Merchandising, Marketing, Retail Store Operations, Real Estate and Construction and the Vice President of Copy, Print & Ship.

Mr. Rubin joined Office Depot, Inc. on March 1, 2004. Before joining the Company, Mr. Rubin spent six years with Accenture Ltd., most recently as Partner consulting with the retail industry. Prior to joining Accenture, Mr. Rubin spent six years in specialty retailing and 11 years in department store retailing, where he served as General Merchandise Manager and a member of the Executive Committees for two publicly held companies.

Concurrent with this announcement, the Company also announced that Rick Lepley, its Executive Vice President, North American Retail, and a Named Executive Officer of the Company, has announced his intention to retire from the Company. In connection with Mr. Lepley’s retirement, the Company and Mr. Lepley entered into a letter agreement and a release agreement, copies of which are attached to this Report as Exhibits 99.2.1 and 99.2.2.

A news release, announcing Mr. Rubin’s appointment as President, North American Retail, Mr. Lepley’s planned retirement and certain other matters, was issued on January 23, 2006. A copy of such news release is attached to this Report as Exhibit 99.1.3 and incorporated by this reference.

Item 9.01 — Exhibits

Exhibit 99.1.1		Amendment Number Two to Executive Employment Agreement between Office Depot, Inc. and Carl (Chuck) Rubin
Exhibit 99.1.2.1		Letter Agreement between Office Depot, Inc. and Rick Lepley
Exhibit 99.1.2.2		Release Agreement between Office Depot, Inc. and Rick Lepley
Exhibit 99.1.3		News Release Issued by Office Depot, Inc. on January 23, 2006.

SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

		OFFICE DEPOT, INC.
Date: January 24, 2006		By: /s/ DAVID C. FANNIN
		David C. Fannin
		Executive Vice President and
		General Counsel

Index of Exhibits

Exhibit No.		Description
Exhibit 99.1.1		Amendment Number Two to Executive Employment Agreement between Office Depot, Inc. and Carl (Chuck) Rubin
Exhibit 99.1.2.1		Letter Agreement between Office Depot, Inc. and Rick Lepley
Exhibit 99.1.2.2		Release Agreement between Office Depot, Inc. and Rick Lepley
Exhibit 99.1.3		News Release Issued by Office Depot, Inc. on January 23, 2006.

 Exhibit 99.1.1

SECOND AMENDMENT TO
EXECUTIVE EMPLOYMENT AGREEMENT

(For Executive Officers Who Also Have a Change of Control Employment Agreement)

          THIS SECOND AMENDMENT TO EXECUTIVE EMPLOYMENT AGREEMENT (herein “Amendment Number Two”) is actually made and entered into on the last date reflected below, but is effective as of January 23, 2006, between Office Depot, Inc., a Delaware corporation (the “Company”), and Carl (“Chuck”) Rubin (“Executive”).

          Company and Executive are parties to an existing Employment Agreement dated as of March 1, 2004”), (as previously amended by Amendment Number Two, dated as of July 15, 2004, the “Existing Agreement), and they desire herein to amend certain provisions of the Existing Agreement (as previously amended), to reflect his promotion to a new position with expanded duties and responsibilities as set forth in this Amendment Number Two.

          This Amendment Number Two supersedes and replaces any and all prior agreements between the parties with respect to Executive’s employment by the Company, including any letter agreements, written or oral understandings, with the understanding that the entirety of the agreement between the parties with respect to Executive’s employment by the Company is set forth herein, with the sole exception of the Change of Control Employment Agreement described below.

          In consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

          1. Employment.

          (a) The Company shall continue to employ Executive, and Executive hereby accepts continued employment with the Company, upon the terms and conditions set forth in the Existing Agreement, as amended by this Amendment Number Two (said Existing Agreement, as amended by this Amendment Number Two being hereinafter referred to as the “Employment Agreement” or as “this Agreement”) for the period beginning on the effective date hereof and ending as provided in paragraph 4 hereof (the “Employment Term”).

          (b) The parties also have previously entered into an Employment Agreement dated as of March 1, 2004, by and between the Company and the Executive (the “Change of Control Employment Agreement”) which, by its terms, takes effect during the “Employment Period” as defined in such agreement. During any such Employment Period under the Change of Control Employment Agreement, the terms and provisions of the Change of Control Employment Agreement shall control to the extent such terms and provisions are in conflict with

the terms and provisions of this Agreement. In addition, during such Employment Period, the Employment Term hereunder shall be tolled and upon expiration of the Employment Period under the Change of Control Employment Agreement the Employment Term hereunder shall recommence.

          2. Position and Duties.

          (a) During the Employment Term, Executive shall serve as President, North American Retail and shall have the normal duties, responsibilities and authority attendant to such positions, subject to the power of the Company’s Chairman and Chief Executive Officer (“CEO”) the Board of Directors (the “Board”) to expand or limit such duties, responsibilities and authority.

          (b) Executive shall report to the CEO (or to such other person as the CEO or the Board may designate in the future, such as a Global President or a Chief Operating Officer, in the event such position(s) is/are created in the future). Executive shall devote Executive’s best efforts and Executive’s full business time and attention (except for permitted vacation periods and reasonable periods of illness or other incapacity) to the business and affairs of the Company and its Subsidiaries; provided that Executive shall, with the prior written approval of the CEO, be allowed to serve as (i) a director or officer of any non-profit organization including trade, civic, educational or charitable organizations, or (ii) a director of any corporation which is not competing with the Company or any of its Subsidiaries in the office product and office supply industry so long as such duties do not materially interfere with the performance of Executive’s duties or responsibilities under this Agreement. Executive shall perform Executive’s duties and responsibilities under this Agreement to the best of Executive’s abilities in a diligent, trustworthy, businesslike and efficient manner.

          (c) Executive shall be based at or in the vicinity of the Company’s headquarters but may be required to travel as necessary to perform Executive’s duties and responsibilities under this Agreement.

          (d) For purposes of this Agreement, “Subsidiaries” shall mean any corporation of which the securities having a majority of the voting power in electing directors are, at the time of determination, owned by the Company, directly or through one of more Subsidiaries.

          3. Base Salary and Benefits.

          (a) In his newly expanded position, Executive’s base salary shall be $575,000 per annum (the “Base Salary”), which salary shall be payable in regular installments in accordance with the Company’s general payroll practices and shall be subject to customary withholding. Executive’s Base Salary shall be reviewed at least annually by the Compensation Committee of the Board and shall be subject to adjustment, but not reduction, as they shall determine based on among other things, market practice and performance. In addition, during the Employment Term, Executive shall be entitled to participate in the Company’s Long Term Incentive Plan.

          (b) In addition to the Base Salary, Executive shall be entitled to participate in the Company’s Management Incentive Plan (the “Bonus Plan”) as administered by the Compensation Committee of the Board of Directors. If the Board or the Compensation Committee modifies such Bonus Plan during the Employment Term, Executive shall continue to participate at a level no lower than the highest level established for any officer of the Company then at Executive’s level. At the discretion of the Board or the Compensation Committee, Executive may be offered from time to time the opportunity to participate in other bonus plans of the Company in lieu of the Bonus Plan and, if Executive chooses to participate in such plan or plans, the provisions of this paragraph 3(b) shall be tolled during the period of such participation.

          (c) Executive shall be entitled to paid vacation in accordance with the Company’s general payroll practices for officers of the Company then at Executive’s level.

          (d) The Company shall reimburse Executive for all reasonable expenses incurred by Executive in the course of performing Executive’s duties under this Agreement which are consistent with the Company’s policies in effect from time to time with respect to travel, entertainment and other business expenses, subject to the Company’s requirements with respect to reporting and documentation of such expenses.

          (e) Executive will be entitled to all benefits as are, from time to time, maintained for officers of the Company then at Executive’s level, including without limitation: medical, prescription, dental, disability, employee life, group life, accidental death and travel accident insurance plans (collectively, “Insurance Benefits”), profit sharing and retirement benefits.

          4. Term.

          (a) The Employment Term shall end on the eighteen (18) month anniversary of the date of this Agreement; provided that (i) the Employment Term shall be extended for successive periods of one (1) year each (each of which is referred to as an “extension term” of the Employment Term) in the event that written notice of termination hereof is not given by one party hereof to the other at least six months prior to the end of the Employment Term or the then applicable extension term, as the case may be; provided further that (ii) the Employment Term shall terminate prior to such date (A) upon Executive’s death or permanent disability or incapacity (as determined by the Board in its good faith judgment), (B) upon the mutual agreement of the Company and Executive, (C) by the Company’s termination of this Agreement for Cause (as defined below) or without Cause or (D) by Executive’s termination of this Agreement for Good Reason (as defined below) or without Good Reason.

          (b) If the Employment Term is terminated by the Company without Cause or is terminated by the Executive for Good Reason, Executive (and Executive’s family with respect to clause (iii) below) shall be entitled to receive (i) Executive’s Base Salary through the eighteenth month anniversary of such termination and Executive’s Pro Rata Bonus (as defined in paragraph (h) below), if and only if Executive has not breached the provisions of paragraphs 5, 6 and 7 hereof (as determined by a court of competent jurisdiction or by an arbitrator pursuant to paragraph 19 hereof), (ii) vested and earned (in accordance with the Company’s applicable plan or program) but unpaid amounts under incentive plans, deferred compensation plans, and other employer programs of the Company in which Executive is then participating (other than the Pro Rata Bonus), (iii) Insurance Benefits through the eighteenth month anniversary of such termination pursuant to the Company’s insurance programs, as in effect from time to time, to the extent Executive participated immediately prior to the date of such termination; provided that any such continuation of health insurance benefits will run concurrently with and satisfy the continuation coverage requirements of the Consolidated Omnibus Reconciliation Act of 1985 (“COBRA”), and provided further that any health insurance benefits which Executive becomes entitled to receive as a result of any subsequent employment shall serve as primary coverage for Executive and Executive’s family, and (iv) the amount to which the Executive would have been entitled under the Bonus Plan (calculated as if the “target” amount under such plan had been reached, regardless of company performance) had the Executive remained employed through the eighteenth month anniversary of such termination. The amounts payable pursuant to paragraph 4(b)(i) (ii) and (iv) shall be payable, at the Company’s discretion, in one lump sum payment within 30 days following termination of the Employment Term or in any other reasonable manner consistent with the Company’s normal payment policies. No payment of any sum nor the receipt of any benefit shall be due to Executive under this subsection (b) unless and until Executive shall have executed and delivered to the Company a release of any and all claims against the Company and its Subsidiaries (and their respective present and former officers, directors, employees and agents – collectively the “Released Parties”) and a covenant not to sue the Released Parties, all in form and substance as provided by counsel to the Company (the “Release”), which Release shall be reasonable and shall be provided to Executive promptly following termination of the Employment Term, and any waiting period or revocation period provided

by law for the effectiveness of such Release shall have expired without Executive’s having revoked such Release. The parties agree that the form of Release attached hereto is reasonable as of the date of execution of this Agreement, but may be required to be modified to conform to changes in legal requirements. Otherwise, the parties agree that this is the form of Release to be used, as referred to herein. In the event Executive shall decline or fail, except in connection with a good faith dispute about the reasonableness of the form and substance of the Release, to execute and deliver such Release, then Executive shall be entitled to receive only those amounts provided pursuant to subsection 4(c) below provided for an Executive whose employment is terminated by the Company for Cause or by Executive without Good Reason.

          (c) If the Employment Term is terminated by the Company for Cause or by the Executive without Good Reason, Executive shall be entitled to receive (i) Executive’s Base Salary through the date of such termination and (ii) vested and earned (in accordance with the Company’s applicable plan or program) but unpaid amounts under incentive plans, health and welfare plans, deferred compensation plans, and other employer programs of the Company which Executive participates; provided, however, that Executive shall not be entitled to payment of a Pro Rata Bonus.

          (d) If the Employment Term is terminated upon Executive’s death or permanent disability or incapacity (as determined by the Board in its good faith judgment), Executive, or Executive’s estate if applicable, shall be entitled to receive the sum of (i) Executive’s Base Salary through the date of such termination and Executive’s Pro Rata Bonus (as defined in paragraph (h) below) and (ii) vested and earned (in accordance with the Company’s applicable plan or program) but unpaid amounts under incentive plans, health and welfare plans, deferred compensation plans, and other employer programs of the Company which Executive participates. The amounts payable pursuant to this paragraph 4(d) shall be payable, at the Company’s discretion, in one lump sum payment within 30 days following termination of the Employment Term or in any other manner consistent with the Company’s normal payment policies.

          (e) Except as otherwise provided herein, fringe benefits and bonuses (if any) which accrue or become payable after the termination of the Employment Term shall cease upon such termination.

          (f) For purposes of this Agreement, “Cause” shall mean the willful engaging by the Executive in illegal conduct or gross misconduct, but only to the extent such conduct or misconduct is materially and demonstrably injurious to the Company in violation of the Company’s Code of Ethical Behavior.

Any act, or failure to act, based upon authority given pursuant to a resolution duly adopted by the Board or upon the instructions of the CEO or based upon the advice of counsel for the Company shall be conclusively presumed to be done, or omitted to be done, by the Executive in

good faith and in the best interests of the Company. The cessation of employment of the Executive shall not be deemed to be for Cause unless and until there shall have been delivered to the Executive a copy of a resolution duly adopted by the Company’s Board of Directors, finding that, in the good faith opinion of the Board, and after reasonable notice is given to the Executive and the Executive is given an opportunity, together with counsel, to be heard before the Board, the Executive is guilty of the conduct described in paragraph (f) above, and specifying the particulars thereof in detail.

          (g) For purposes of this Agreement, “Good Reason” shall mean:

               (i) the assignment to the Executive of any duties inconsistent with the Executive’s positions (including status, offices, titles and reporting requirements), authority, duties or responsibilities as contemplated by paragraph 2 of this Agreement, or any other action by the Company which results in a diminution in such position, authority, duties or responsibilities, excluding for this purpose an isolated, insubstantial and inadvertent action not taken in bad faith and which is remedied by the Company promptly after receipt of notice thereof given by the Executive; provided, however, that for purposes of this section, Executive’s being asked to report to a Global President or a Chief Operating Officer, or such other comparable officer as the CEO or the Board may designate, shall not constitute Good Reason;

               (ii) any failure by the Company to comply with any of the material provisions of this Agreement, including without limitation paragraph 3, other than an isolated, insubstantial and inadvertent failure not occurring in bad faith and which is remedied by the Company promptly after receipt of notice thereof given by the Executive;

               (iii) the Company’s requiring the Executive to be based at any location other than as provided in paragraph 2(c) hereof; or

               (iv) any purported termination by the Company of the Executive’s employment otherwise than as expressly permitted by this Agreement; or

               (v) any determination by a court of competent jurisdiction or an arbitrator that Executive is barred, for any reason, from working with the Company.

          (h) For purposes of this Agreement, “Pro Rata Bonus” shall mean the sum of (i) the pro rata portion (calculated as if the “target” amount under such plan has been reached) under any current annual incentive plan from the beginning of the year of termination through the date of termination and (ii) if and to the extent Executive is vested, the pro rata portion (calculated as if the “target” amount under such plan has been reached) under any long-term incentive plan or performance plan from the beginning of the period of determination through the date of termination.

          5. Confidential Information. Executive acknowledges that the information, observations and data obtained by Executive while employed by the Company and its Subsidiaries concerning the business or affairs of the Company or any other Subsidiary (“Confidential Information”) are the property of the Company or such Subsidiary. Therefore, Executive agrees that Executive shall not disclose to any unauthorized person or use for Executive’s own purposes any Confidential Information without the prior written consent of the CEO, unless and to the extent that the aforementioned matters become generally known to and available for use by the public other than as a result of Executive’s acts or omissions. Executive shall deliver to the Company at the termination of the Employment Term, or at any other time the Company may request, all memoranda, notes, plans, records, reports, computer tapes, printouts and software and other documents and data (and copies thereof) in any form or medium relating to the Confidential Information, Work Product (as defined below) or the business of the Company or any Subsidiary that Executive may then possess or have under Executive’s control.

          6. Inventions and Patents. Executive acknowledges that all inventions, innovations, improvements, developments, methods, designs, analyses, drawings, reports and all similar or related information (whether or not patentable) that relate to the Company’s or any of its Subsidiaries’ actual or anticipated business, research and development or existing or future products or services and that are conceived, developed or made by Executive while employed by the Company and its Subsidiaries (“Work Product”) belong to the Company or such Subsidiary. Executive shall promptly disclose such Work Product to the CEO and perform all actions reasonably requested by the CEO (whether during or after the Employment Term) to establish and confirm such ownership (including, without limitation, assignments, consents, powers of attorney and other instruments).

          7. Non-Compete, Non-Solicitation.

          (a) In further consideration of the compensation to be paid to Executive hereunder, Executive acknowledges that in the course of Executive’s employment with the Company Executive shall become familiar with the Company’s trade secrets and with other Confidential Information concerning the Company and its Subsidiaries and that Executive’s services shall be of special, unique and extraordinary value to the Company and its Subsidiaries. Therefore, Executive agrees that, during the Employment Term and for a period of eighteen (18) months thereafter (the “Noncompete Period”), Executive shall not directly or indirectly own any interest in, manage, control, participate in, consult with, render services for, or in any manner engage in any business competing with the businesses of the Company or its Subsidiaries, as such businesses exist or are in process on the date of the termination of Executive’s employment, within any geographical area in which the Company or its Subsidiaries engage or plan to engage in such businesses. Nothing herein shall prohibit Executive from being a passive owner of not more than 2% of the outstanding stock of any class of a corporation which is publicly traded, so long as Executive has no active participation in the business of such corporation. The Company presently does not enforce this paragraph 7(a) in California. However, Executive is still required to sign this Agreement since Executive may already work, or may work in the future, in a state

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where this paragraph 7(a) is fully enforceable. Moreover, the Company reserves its right to enforce this paragraph 7(a) in all other states in which it is enforceable, and in California in the future, to reflect any legislative or legal developments which will permit its enforcement to the fullest extent permitted by California law.

          (b) During the Noncompete Period, Executive shall not directly or indirectly through another entity (i) induce or attempt to induce any employee of the Company or any Subsidiary to leave the employ of the Company or such Subsidiary, or in any way interfere with the relationship between the Company or any Subsidiary and any employee thereof, (ii) hire any person who was an employee of the Company or any Subsidiary at any time during the Employment Term or (iii) induce or attempt to induce any customer, supplier, licensee, licensor, franchisee or other business relation of the Company or any Subsidiary to cease doing business with the Company or such Subsidiary, or in any way interfere with the relationship between any such customer, supplier, licensee, licensor, franchisee, or business relation and the Company or any Subsidiary (including, without limitation, making any negative statements or communications about the Company or its Subsidiaries).

          (c) The provisions of this paragraph 7 will be enforced to the fullest extent permitted by the law in the state in which Executive resides or is employed at the time of the enforcement of the provision. If, at the time of enforcement of this paragraph 7, a court shall hold that the duration, scope or area restrictions stated herein are unreasonable under circumstances then existing, the parties agree that the maximum duration, scope or area reasonable under such circumstances shall be substituted for the stated duration, scope or area and that the court shall be allowed to revise the restrictions contained herein to cover the maximum period, scope and area permitted by law. Executive agrees that the restrictions contained in this paragraph 7 are reasonable.

          (d) In the event of the breach or a threatened breach by Executive of any of the provisions of this paragraph 7, the Company, in addition and supplementary to other rights and remedies existing in its favor, may apply to any court of law or equity of competent jurisdiction for specific performance and/or injunctive or other relief in order to enforce or prevent any violations of the provisions hereof (without posting a bond or other security). In addition, in the event of a breach or violation by Executive of this paragraph 7 (as determined by a court of competent jurisdiction or an arbitrator pursuant to paragraph 19 hereof), the Noncompete Period shall be tolled until such breach or violation has been duly cured.

          8. Executive’s Representations. Executive hereby represents and warrants to the Company that (i) the execution, delivery and performance of this Agreement by Executive do not and shall not conflict with, breach, violate or cause a default under any contract, agreement, instrument, order, judgment or decree to which Executive is a party or by which Executive is bound, except as previously disclosed to the Company, (ii) Executive is not a party to or bound by any employment agreement, noncompete agreement or confidentiality agreement with any other person or entity, except as previously disclosed to the Company, and (iii) upon the execution and delivery of this

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