Executive Employment Agreement/ Carl Rubin



 






EXHIBIT 10.11




EXECUTIVE EMPLOYMENT AGREEMENT

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




     THIS AGREEMENT is made as of March 1, 2004 between Office Depot, Inc., a Delaware
corporation (the “Company”), and Carl Rubin (“Executive”).



     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 employ Executive, and Executive hereby accepts employment with the
Company, upon the terms and conditions set forth in this Agreement for the period beginning on the
date hereof and ending as provided in paragraph 4 hereof (the “Employment Term”).



     (b) The parties hereto have entered into an Employment Agreement dated as of (same date as
this agreement) 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 Period, Executive shall serve as Executive Vice President, Chief
Merchandising Officer and shall have the normal duties, responsibilities and authority attendant to
such position, subject to the power of the Company’s Chairman and Chief Executive Officer
(“CEO”), its President, North America (“President”) or the Board of Directors (the
“Board”) to expand or limit such duties, responsibilities and authority.



     (b) Executive shall report to the President, North America or to such other person(s)
of comparable or greater duties, responsibilities, and authority as the CEO may direct from time to
time, and 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



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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) Initially, Executive’s base salary shall be $450,000.00 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.



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     (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



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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



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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 position
(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, and excluding further any change in the reporting relationships of the Executive as
directed by the CEO or the Board, unless such change results in Executive reporting to a position
with lesser duties, responsibilities, and authority than the President, North America;



          (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



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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



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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
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



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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 Agreement by the Company, this Agreement shall be the valid and binding
obligation of Executive, enforceable in accordance with its terms. Executive hereby acknowledges
and represents that Executive has had an opportunity to consult with independent legal counsel
regarding Executive’s rights and obligations under this Agreement and that Executive fully
understands the terms and conditions contained herein.



     9. Survival. Paragraphs 5, 6 and 7 and paragraphs 9 through 16 shall survive and
continue in full force in accordance with their terms notwithstanding any termination of the
Employment Term.



     10. Notices. Any notice provided for in this Agreement shall be in writing and shall
be either personally delivered, or mailed by first class mail, return receipt requested, to the
recipient at the address below indicated:




		
	      	Notices to Executive:


Carl Rubin

12001 Brewster Drive

Tampa, FL 33626


Or to such other residential address as may be reflected in the employment records
of the Company


Notices to the Company:


Office Depot, Inc.

2200 Old Germantown Road

Delray Beach, Florida 33445

Attention: Chairman and Chief Executive Officer


and


Office Depot, Inc.

2200 Old Germantown Road

Delray Beach, Florida 33445

Attention: Executive Vice President — Human Resources





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or such other address or to the attention of such other person as the recipient party shall have
specified by prior written notice to the sending party. Any notice under this Agreement shall be
deemed to have been given when so delivered or mailed.



     11. Severability. Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law, but if any provision
of this Agreement is held to be invalid, illegal or unenforceable in any respect under any
applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall
not affect any other provision or any other jurisdiction, but this Agreement shall be reformed,
construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision
had never been contained herein.



     12. Complete Agreement. This Agreement and those documents expressly referred to
herein and other documents of even date herewith embody the complete agreement and understanding
among the parties and supersede and preempt any prior understandings, agreements or representations
by or among the parties, written or oral, which may have related to the subject matter hereof in
any way (provided, however that during the “Employment Period,” as defined in the Change of Control
Employment Agreement, the terms and provision of the Change of Control Employment Agreement shall
be effective and shall control to the extent there is any conflict between such agreement and this
Agreement).



     13. No Strict Construction. The language used in this Agreement shall be deemed to be
the language chosen by the parties hereto to express their mutual intent, and no rule of strict
construction shall be applied against any party.



     14. Counterparts. This Agreement may be executed in separate counterparts, each of
which is deemed to be an original and all of which taken together constitute one and the same
agreement.



     15. Successors and Assigns. This Agreement is intended to bind and inure to the
benefit of and be enforceable by Executive, the Company and their respective heirs, successors and
assigns, except that Executive may not assign Executive’s rights or delegate Executive’s
obligations hereunder without the prior written consent of the Company.



     16. Choice of Law. All issues and questions concerning the construction, validity,
enforcement and interpretation of this Agreement and the exhibits and schedules hereto shall be
governed by, and construed in accordance with, the laws of the State of Florida, without giving
effect to any choice of law or conflict of law rules or provisions (whether of the State of Florida
or any other jurisdiction) that would cause the application of the laws of any jurisdiction other
than the State of Florida.



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     17. Amendment and Waiver. The provisions of this Agreement may be amended or waived
only with the prior written consent of the Company and Executive, and no course of conduct or
failure or delay in enforcing the provisions of this Agreement shall affect the validity, binding
effect or enforceability of this Agreement.



     18. Confidentiality of this Agreement. The parties agree that the terms of this
Agreement are confidential. Executive shall not divulge or publicize the terms hereof except as
may be necessary to enforce the promises, covenants and/or understandings contained herein or as
either party may be required to do so by law, court order, subpoena or other judicial action or
government taxing authorities. Executive may disclose the contents of this Agreement to his
immediate family, attorneys and accountants, provided however, that any further disclosure of the
terms of this Agreement by any of these persons to anyone not included within the terms of this
paragraph may be deemed a breach of the Agreement by Executive.



     19. Arbitration Provisions. Except as to the right of the Company or the Executive to
resort to any court of competent jurisdiction to obtain injunctive relief or specific enforcement
of the parties’ obligations under this Employment Agreement (or otherwise), any dispute or
controversy between the Company and Executive arising out of or relating to Executive’s employment
or termination of employment, this Agreement or the breach of this Agreement, including but not
limited to disputes involving discrimination arising under common law, and/or federal, state and
local laws, shall be settled by arbitration administered by the American Arbitration Association
(“AAA”) in accordance with its National Rules for the Resolution of Employment Disputes
then in effect, and judgment on the award rendered by the arbitrator may be entered in any court
having jurisdiction thereof. Any arbitration shall be held before a single arbitrator who shall be
selected by the mutual agreement of the Company and Executive, unless the parties are unable to
agree to an arbitrator, in which case the arbitrator will be selected under the procedures of the
AAA. The arbitrator shall have the authority to award any remedy or relief that a court of
competent jurisdiction could order or grant, including, without limitation, the issuance of an
injunction. Executive agrees to abide by and accept the final decision of the arbitrator as to the
ultimate resolution of any and all covered disputes and understands that arbitration replaces any
right to trial by a judge or jury. However, either party may, without inconsistency with this
arbitration provision, apply to any court otherwise having jurisdiction over such dispute or
controversy and seek interim provisional, injunctive or other equitable relief until the
arbitration award is rendered or the controversy is otherwise resolved. Except as necessary in
court proceedings to enforce this arbitration provision or an award rendered hereunder, or to
obtain interim relief, or as may otherwise be required by law, neither a party nor an arbitrator
may disclose the existence, content or results of any arbitration hereunder without the prior
written consent of the Company and Executive. The Company and Executive acknowledge that this
Agreement evidences a transaction involving interstate commerce. Notwithstanding any choice of law
provision included in this Agreement, the United States Federal Arbitration Act shall govern the
interpretation and enforcement of this arbitration provision. The arbitration proceeding shall be
conducted in Palm Beach County, Florida unless
the parties mutually agree to another location. The Company shall pay the costs of any
arbitrator appointed hereunder.



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     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.


	 	 	 	 	 
	 	OFFICE DEPOT, INC.

 	 
	 	By:  	/s/ BRUCE NELSON 	 
	 	Name:  	Bruce Nelson	 
	 	Its:  	Chairman and CEO	 



	 	 	 	 	 
	 	EXECUTIVE






	 	
/s/ CARL RUBIN

	 	
Name: Carl Rubin

	 
	 
	 	
3/1/04

	 	
Date:

	 	 	 





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