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As filed with the Securities and Exchange Commission on February 4, 1998
Registration No. _________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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OFFICE DEPOT, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 59-2663954
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
2200 OLD GERMANTOWN ROAD, DELRAY BEACH, FLORIDA 33445
(Address of principal executive offices)
OFFICE DEPOT, INC. LONG-TERM EQUITY INCENTIVE PLAN
(Full title of the plan)
MR. BARRY J. GOLDSTEIN
OFFICE DEPOT, INC.
2200 OLD GERMANTOWN ROAD
DELRAY BEACH, FLORIDA 33445
(561) 278-4800
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
COPIES TO:
Toni B. Merrick, Esq.
Kirkland & Ellis
200 East Randolph Drive
Chicago, Illinois 60601
CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Per Aggregate Offering Amount of
to be Registered Registered(1) Share(2) Price(2) Registration Fee(2)
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Common Stock, $.01 4,975,000
par value per share shares $22.435 $116,614,000 $33,822.42
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(1) 4,750,000 shares of the registrant's Common Stock were previously
registered on Form S-8, Registration No. 33-62801 in connection with the
Office Depot, Inc. Omnibus Equity Plan under which no further options or
awards will be granted. In addition, 487,500 shares of the registrant's
Common Stock were previously registered on Form S-8, Registration No.
33-62781 and a prior registration statement in connection with the Office
Depot, Inc. Amended Directors' Stock Option Plan under which no further
options or awards will be granted. In addition to the 4,975,000 shares to
be registered for the first time under this Registration Statement,
registrant is carrying forward any of these shares that remain unissued to
be offered under the Office Depot, Inc. Long-Term Equity Incentive Plan.
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(2) This calculation is made solely for the purpose of determining the amount
of the registration fee and is made pursuant to Rule 457(h) based upon the
average of the high and low sales prices of the registrant's Common Stock
as reported on the New York Stock Exchange on February 2, 1998.
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The purpose of this Registration Statement is to reflect the
adoption of a new stock option plan by registrant and to acknowledge that shares
previously registered under prior plans will be offered under the new plan.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION BY REFERENCE
This Registration Statement relates to 10,212,500 shares of
Common Stock, $.01 par value (the "Common Stock"), of Office Depot,
Inc. (the "Company") to be offered pursuant to the Office Depot, Inc.
Long-Term Equity Incentive Plan (the "Plan"). 5,237,500 of such shares
were previously registered to be offered under the Office Depot, Inc.
Omnibus Equity and the Office Depot, Inc. Amended Directors' Stock
Option Plan (the "Prior Plans"). Registration statements on Form S-8
were filed with the Securities and Exchange Commission under
Registration Nos. 33-62801 and 33-62781 for shares of the Company's
Common Stock to be issued pursuant to the Prior Plans and their
contents are incorporated herein by reference.
In addition to the documents incorporated by reference to the
foregoing, the following documents filed by the Company with the
Securities and Exchange Commission are incorporated herein by reference
except to the extent that any statement or information therein is
modified, superseded or replaced by a statement or information
contained in any subsequently filed document incorporated by reference.
1. Annual Report on Form 10-K for the Fiscal Year ended
December 28, 1996.
2. All other reports filed pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934, as
amended, since the end of the fiscal period covered by
the Registrant document referred to in (1) above.
3. All documents subsequently filed by the Company
pursuant to Section 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934, as amended, prior to
the filing of a post-effective amendment which
indicates that all securities offered hereby have been
sold or which deregisters all securities then remaining
unsold, shall be deemed incorporated by reference in
this Registration Statement and shall be a part hereof
from the date of filing of such documents.
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Item 4. DESCRIPTION OF SECURITIES
Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Office Depot, Inc. is incorporated under the laws of the State
of Delaware. Section 145 of the General Corporation Law of the State of
Delaware ("Section 145") provides that a Delaware corporation may
indemnify any persons who are, or are threatened to be made, parties 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 such corporation), by reason of the fact
that such person is or was an officer, director, employee or agent of
such corporation, or is or was serving at the request of such
corporation as a director, officer, employee or agent of another
corporation or enterprise. The indemnity may include expenses
(including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding, provided such person
acted in good faith and in a manner he reasonably believed to be in or
not opposed to the corporation's best interests and, with respect to
any criminal action or proceeding, had no reasonable cause to believe
that his conduct was illegal. A Delaware corporation may indemnify any
persons who were or are parties, or are threatened to be made a party,
to any threatened, pending or completed action or suit by or in the
right of the corporation by reason of the fact that such person is or
was a director, officer, employee or agent of another corporation or
enterprise. The indemnity may include expenses (including attorney's
fees) actually and reasonably incurred by such person in connection
with the defense or settlement of such action or suit, provided such
person acted in good faith and in a manner he reasonably believed to be
in or not opposed to the corporation's best interests except that no
indemnification is permitted without judicial approval if the officer
or director is adjudged to be liable to the corporation. Where an
officer or director is successful on the merits or otherwise in the
defense of any action referred to above, the corporation must indemnify
him against the expenses which such officer or director has actually
and reasonably incurred.
The Company has included in its Restated Certificate of
Incorporation and bylaws provisions to indemnify its directors and
officers to the fullest extent permitted by the Delaware law, including
in circumstances in which indemnification is otherwise discretionary
under the Delaware law.
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Section 102 of the General Corporation Law of the State of
Delaware allows a corporation to eliminate the personal liability of a
director to the corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, except in cases where the
director breached its duty of loyalty, failed to act in good faith,
engaged in intentional misconduct or a knowing violation of law,
authorized the unlawful payment of a dividend or approved an unlawful
stock redemption or repurchase or obtained an improper personal
benefit. Office Depot's Restated Certificate of Incorporation and
bylaws contain provisions which eliminate directors' personal liability
as set forth above.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
Item 8. EXHIBITS
See "Index to Exhibits."
Item 9. UNDERTAKINGS
1. The undersigned Registrants hereby undertake that, for
purposes of determining any liability under the Securities Act of 1933,
each filing of the Registrants' annual reports pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of the Plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) that is incorporated by
reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
2. The undersigned Registrants hereby undertake (a) to file,
during any period in which offers or sales are being made, a
post-effective amendment to this registration statement to include any
material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material
change to such information in the registration statement; (b) that, for
the purpose of determining any liability under the Securities Act of
1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof; and (c) to remove from registration
by means of a post-effective amendment any of the securities being
registered which remain unsold at the termination of the offering.
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3. Insofar as indemnification for liabilities arising under
the Securities Act of 1933 (the "Act") may be permitted to directors,
officers and controlling persons of the Registrants pursuant to the
foregoing provisions, or otherwise, the Registrants have been advised
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and
is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrants of expenses incurred or paid by a director, officer or
controlling person of the Registrants in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered,
the Registrants will, unless in the opinion of their respective counsel
the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the filing requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Delray Beach, State of Florida on
February 4, 1998.
OFFICE DEPOT, INC.
By: /s/ David I. Fuente
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David I. Fuente
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on February 4, 1998.
SIGNATURE CAPACITY
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/s/ David I. Fuente Chairman of the Board and Chief Executive
- ------------------------------------ Officer (Principal Executive Officer)
David I. Fuente
/s/ John C. Macatee President and Chief Operating Officer and
- ------------------------------------ Director
John C. Macatee
/s/ Barry J. Goldstein Chief Financial Officer and Executive Vice
- ------------------------------------ President-Finance (Principal Financial Officer)
Barry J. Goldstein
/s/ Cynthia R. Cohen Director
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Cynthia R. Cohen
/s/ W. Scott Hedrick Director
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W. Scott Hedrick
/s/ James L. Heskett Director
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James L. Heskett
/s/ Michael J. Myers Director
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Michael J. Myers
/s/ Frank P. Scruggs, Jr. Director
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Frank P. Scruggs, Jr.
/s/ Peter J. Solomon Director
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Peter J. Solomon
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INDEX TO EXHIBITS
SEQUENTIALLY
EXHIBIT NUMBERED
NO. DESCRIPTION OF EXHIBIT PAGE*
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4.1 Long-Term Equity Incentive Plan effective October 1, 1997
5.1 Opinion of Kirkland & Ellis
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Kirkland & Ellis (contained in
their opinion filed as Item 5.1)
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EXHIBIT 4.1
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OFFICE DEPOT, INC.
LONG-TERM EQUITY INCENTIVE PLAN
1. PURPOSE.
This plan shall be known as the Office Depot, Inc. Long-Term
Equity Incentive Plan (the "Plan"). The purpose of the Plan shall be to promote
the long-term growth and profitability of Office Depot, Inc. (the "Company") and
its Subsidiaries by (i) providing certain directors, officers and key employees
of, and certain other key individuals who perform services for, the Company and
its Subsidiaries with incentives to maximize stockholder value and otherwise
contribute to the success of the Company and (ii) enabling the Company to
attract, retain and reward the best available persons for positions of
substantial responsibility. Grants of incentive or nonqualified stock options,
stock appreciation rights ("SARs"), either alone or in tandem with options,
restricted stock, performance awards, or any combination of the foregoing may be
made under the Plan.
2. DEFINITIONS.
2.1 "BOARD OF DIRECTORS" and "BOARD" mean the board of
directors of Office Depot.
2.2 "CAUSE" means the occurrence of one of the following
events:
(a) Conviction of a felony or any crime or offense lesser
than a felony involving the property of the Company or a Subsidiary; or
(b) Conduct that has caused demonstrable and serious
injury to the Company or a Subsidiary, monetary or otherwise; or
(c) Willful refusal to perform or substantial disregard of
duties properly assigned, as determined by the Company; or
(iv) Breach of duty of loyalty to the Company or a
Subsidiary or other act of fraud or dishonesty with respect to the Company or a
Subsidiary.
2.3 "CHANGE IN CONTROL" means, except as may otherwise be
provided by the Committee, the occurrence of one of the following events:
(a) if any "person" or "group" as those terms are used in
Sections 13(d) and 14(d) of the Exchange Act, other than an Exempt Person, is or
becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of securities of the Company representing 50% or
more of the combined voting power of the Company's then outstanding securities;
or
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(b) during any period of two consecutive years,
individuals who at the beginning of such period constitute the Board and any new
directors whose election by the Board or nomination for election by the
Company's stockholders was approved by at least two-thirds of the directors then
still in office who either were directors at the beginning of the period or
whose election was previously so approved, cease for any reason to constitute a
majority thereof; or
(c) the stockholders of the Company approve a merger or
consolidation of the Company with any other corporation; provided, however, a
Change of Control shall not be deemed to have occurred (A) if such merger or
consolidation would result in all or a portion of the voting securities of the
Company outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) either directly or indirectly more than 50% of the combined
voting power of the voting securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation, or (B) if the
corporate existence of the Company is not affected and following the merger or
consolidation the Company's chief executive officers retain their positions with
the Company and the directors of the Company prior to such merger or
consolidation constitute at least a majority of the board of the Company or the
entity that directly or indirectly controls the Company after such merger or
consolidation; or
(d) the stockholders of the Company approve a plan of
complete liquidation of the Company or an agreement for the sale or disposition
by the Company of all or substantially all the Company's assets, other than a
sale to an Exempt Person.
2.4 "CODE" means the Internal Revenue Code of 1986, as
amended.
2.5 "COMMITTEE" means the Compensation Committee of the Board.
The membership of the Committee shall be constituted so as to comply at all
times with the applicable requirements of Rule 16b-3 under the Exchange Act and
Section 162(m) of the Code.
2.6 "COMMON STOCK" means the Common Stock, par value $.01 per
share, of the Company, and any other shares into which such stock may be changed
by reason of a recapitalization, reorganization, merger, consolidation or any
other change in the corporate structure or capital stock of the Company.
2.7 "EXCHANGE ACT" means the Securities Exchange Act of 1934,
as amended.
2.8 "EXEMPT PERSON" means any employee benefit plan of the
Company or a trustee or other administrator or fiduciary holding securities
under an employee benefit plan of the Company.
2.9 "FAIR MARKET VALUE" of a share of Common Stock of the
Company means, as of the date in question, the officially-quoted closing selling
price of the stock (or if no selling price is quoted, the bid price) on the
principal securities exchange on which the Common Stock is then listed for
trading (including for this purpose the Nasdaq National Market) (the "Market")
for the immediately preceding trading day or, if the Common Stock is not then
listed or quoted in the
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Market, the Fair Market Value shall be the fair value of the Common Stock
determined in good faith by the Board; provided, however, that when shares
received upon exercise of an option are immediately sold in the open market, the
net sale price received may be used to determine the Fair Market Value of any
shares used to pay the exercise price or withholding taxes and to compute the
withholding taxes.
2.10 "INCENTIVE STOCK OPTION" means an option conforming to
the requirements of Section 422 of the Code and any successor thereto.
2.11 "NON-EMPLOYEE DIRECTOR" has the meaning given to such
term in Rule 16b-3 under the Exchange Act.
2.12 "NONQUALIFIED STOCK OPTION" means any stock option other
than an Incentive Stock Option.
2.13 "OTHER COMPANY SECURITIES" mean securities of the Company
other than Common Stock, which may include, without limitation, unbundled stock
units or components thereof, debentures, preferred stock, warrants and
securities convertible into or exchangeable for Common Stock or other property.
2.14 "PRIOR PLAN(S)" means the Office Depot, Inc. Omnibus
Equity Plan, the Office Depot, Inc. Directors Stock Option Plan or any other
plan which these plans subsumed or replaced.
2.15 "RETIREMENT" means retirement as defined under any
Company pension plan or retirement program or termination of one's employment on
retirement with the approval of the Committee.
2.16 "SUBSIDIARY" means a corporation or other entity of which
outstanding shares or ownership interests representing 50% or more of the
combined voting power of such corporation or other entity entitled to elect the
management thereof, or such lesser percentage as may be approved by the
Committee, are owned directly or indirectly by the Company.
3. ADMINISTRATION.
The Plan shall be administered by the Committee; provided that
the Board may, in its discretion, at any time and from time to time, resolve to
administer the Plan, in which case the term "Committee" shall be deemed to mean
the Board for all purposes herein. The Committee shall consist of at least two
directors. Subject to the provisions of the Plan, the Committee shall be
authorized to (i) select persons to participate in the Plan, (ii) determine the
form and substance of grants made under the Plan to each participant, and the
conditions and restrictions, if any, subject to which such grants will be made,
(iii) modify the terms of grants made under the Plan, (iv) interpret the Plan
and grants made thereunder, (v) make any adjustments necessary or desirable in
connection with grants made under the Plan to eligible participants located
outside the United States and (vi) adopt, amend, or rescind such rules and
regulations, and make such other determinations, for carrying out the Plan as it
may deem appropriate. Decisions of the Committee on all matters
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relating to the Plan shall be in the Committee's sole discretion and shall be
conclusive and binding on all parties. The validity, construction, and effect of
the Plan and any rules and regulations relating to the Plan shall be determined
in accordance with applicable federal and state laws and rules and regulations
promulgated pursuant thereto. No member of the Committee and no officer of the
Company shall be liable for any action taken or omitted to be taken by such
member, by any other member of the Committee or by any officer of the Company in
connection with the performance of duties under the Plan, except for such
person's own willful misconduct or as expressly provided by statute.
The expenses of the Plan shall be borne by the Company. The
Plan shall not be required to establish any special or separate fund or make any
other segregation of assets to assume the payment of any award under the Plan,
and rights to the payment of such awards shall be no greater than the rights of
the Company's general creditors.
4. SHARES AVAILABLE FOR THE PLAN.
Subject to adjustments as provided in Section 15, as of any
date the total number of shares of Common Stock with respect to which awards may
be granted under the Plan (the "Shares") shall equal the excess (if any) of
10,212,500, over (i) the number of shares of Common Stock subject to outstanding
awards under the Plan or the Prior Plans, (ii) the number of shares of Common
Stock in respect of which options and stock appreciation rights have been
exercised under the Plan or the Prior Plans, and (iii) the number of shares of
Common Stock issued pursuant to performance awards or issued subject to
forfeiture restrictions which have lapsed under the Plan or the Prior Plans.
Such Shares may be in whole or in part authorized and unissued, or shares which
are held by the Company as treasury shares. If any grant under the Plan or any
Prior Plan expires or terminates unexercised, becomes unexercisable or is
forfeited as to any Shares, such unpurchased or forfeited Shares shall
thereafter be available for further grants under the Plan unless, in the case of
options granted under the Plan or any Prior Plan, related SARs are exercised.
Without limiting the generality of the foregoing provisions of
this Section 4 or the generality of the provisions of Sections 3, 6 or 17 or any
other section of this Plan, the Committee may, at any time or from time to time,
and on such terms and conditions (that are consistent with and not in
contravention of the other provisions of this Plan) as the Committee may, in its
sole discretion, determine, enter into agreements (or take other actions with
respect to the options) for new options containing terms (including exercise
prices) more (or less) favorable than the outstanding options.
5. PARTICIPATION.
Participation in the Plan shall be limited to those directors
(including Non-Employee Directors), officers (including non-employee officers)
and key employees of, and other key individuals performing services for, the
Company and its Subsidiaries selected by the Committee (including participants
located outside the United States). Nothing in the Plan or in any grant
thereunder shall confer any right on a participant to continue in the employ of
or the performance of services for the Company or shall interfere in any way
with the right of the Company to terminate the employment or performance of
services of a participant at any time. By accepting any award
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under the Plan, each participant and each person claiming under or through him
or her shall be conclusively deemed to have indicated his or her acceptance and
ratification of, and consent to, any action taken under the Plan by the Company,
the Board or the Committee.
Incentive Stock Options or Nonqualified Stock Options, SARs ,
alone or in tandem with options, restricted stock awards, performance awards, or
any combination thereof, may be granted to such persons and for such number of
Shares as the Committee shall determine (such individuals to whom grants are
made being sometimes herein called "optionees" or "grantees," as the case may
be). Determinations made by the Committee under the Plan need not be uniform and
may be made selectively among eligible individuals under the Plan, whether or
not such individuals are similarly situated. A grant of any type made hereunder
in any one year to an eligible participant shall neither guarantee nor preclude
a further grant of that or any other type to such participant in that year or
subsequent years.
6. INCENTIVE AND NONQUALIFIED OPTIONS.
The Committee may from time to time grant to eligible
participants Incentive Stock Options, Nonqualified Stock Options, or any
combination thereof; provided that the Committee may grant Incentive Stock
Options only to eligible employees of the Company or its subsidiaries (as
defined for this purpose in Section 424(f) of the Code). In any one calendar
year, the Committee shall not grant to any one participant, options or SARs to
purchase a number of shares of Common Stock in excess of 500,000 shares;
provided, however, notwithstanding the foregoing, if an eligible participant was
not an employee of the Company prior to January 1 of such calendar year, the
Committee may grant such participant options or SARs to purchase a number of
shares of Common Stock not to exceed 750,000 shares during such calendar year.
The options granted shall take such form as the Committee shall determine,
subject to the following terms and conditions.
It is the Company's intent that Nonqualified Stock Options
granted under the Plan not be classified as Incentive Stock Options, that
Incentive Stock Options be consistent with and contain or be deemed to contain
all provisions required under Section 422 of the Code and any successor thereto,
and that any ambiguities in construction be interpreted in order to effectuate
such intent. If an Incentive Stock Option granted under the Plan does not
qualify as such for any reason, then to the extent of such nonqualification, the
stock option represented thereby shall be regarded as a Nonqualified Stock
Option duly granted under the Plan, provided that such stock option otherwise
meets the Plan's requirements for Nonqualified Stock Options.
6.1 PRICE. The price per Share deliverable upon the exercise
of each option ("exercise price") shall be established by the Committee, except
that in the case of the grant of any Incentive Stock Option, the exercise price
may not be less than 100% of the Fair Market Value of a share of Common Stock as
of the date of grant of the option, and in the case of the grant of any
Incentive Stock Option to an employee who, at the time of the grant, owns more
than 10% of the total combined voting power of all classes of stock of the
Company or any of its Subsidiaries, the exercise price may not be less than 110%
of the Fair Market Value of a share of Common Stock as of the date of grant of
the option, in each case unless otherwise permitted by Section 422 of the Code.
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6.2 PAYMENT. Options may be exercised, in whole or in part,
upon payment of the exercise price of the Shares to be acquired. Unless
otherwise determined by the Committee, payment shall be made (i) in cash
(including check, bank draft or money order), (ii) by delivery of outstanding
shares of Common Stock with a Fair Market Value on the date of exercise equal to
the aggregate exercise price payable with respect to the options' exercise,
(iii) by simultaneous sale through a broker reasonably acceptable to the
Committee of Shares acquired on exercise, as permitted under Regulation T of the
Federal Reserve Board, (iv) by authorizing the Company to withhold from issuance
a number of Shares issuable upon exercise of the options which, when multiplied
by the Fair Market Value of a share of Common Stock on the date of exercise is
equal to the aggregate exercise price payable with respect to the options so
exercised or (v) by any combination of the foregoing. Options may also be
exercised upon payment of the exercise price of the Shares to be acquired by
delivery of the optionee's promissory note, but only to the extent specifically
approved by and in accordance with the policies of the Committee.
In the event a grantee elects to pay the exercise price
payable with respect to an option pursuant to clause (ii) above, (A) only a
whole number of share(s) of Common Stock (and not fractional shares of Common
Stock) may be tendered in payment, (B) such grantee must present evidence
acceptable to the Company that he or she has owned any such shares of Common
Stock tendered in payment of the exercise price (and that such tendered shares
of Common Stock have not been subject to any substantial risk of forfeiture) for
at least six months prior to the date of exercise, and (C) Common Stock must be
delivered to the Company. Delivery for this purpose may, at the election of the
grantee, be made either by (A) physical delivery of the certificate(s) for all
such shares of Common Stock tendered in payment of the price, accompanied by
duly executed instruments of transfer in a form acceptable to the Company, or
(B) direction to the grantee's broker to transfer, by book entry, such shares of
Common Stock from a brokerage account of the grantee to a brokerage account
specified by the Company. When payment of the exercise price is made by delivery
of Common Stock, the difference, if any, between the aggregate exercise price
payable with respect to the option being exercised and the Fair Market Value of
the share(s) of Common Stock tendered in payment (plus any applicable taxes)
shall be paid in cash. No grantee may tender shares of Common Stock having a
Fair Market Value exceeding the aggregate exercise price payable with respect to
the option being exercised (plus any applicable taxes).
In the event a grantee elects to pay the exercise price
payable with respect to an option pursuant to clause (iv) above, (A) only a
whole number of Share(s) (and not fractional Shares) may be withheld in payment
and (B) such grantee must present evidence acceptable to the Company that he or
she has owned a number of shares of Common Stock at least equal to the number of
Shares to be withheld in payment of the exercise price (and that such owned
shares of Common Stock have not been subject to any substantial risk of
forfeiture) for at least six months prior to the date of exercise. When payment
of the exercise price is made by withholding of Shares, the difference, if any,
between the aggregate exercise price payable with respect to the option being
exercised and the Fair Market Value of the Share(s) withheld in payment (plus
any applicable taxes) shall be paid in cash. No grantee may authorize the
withholding of Shares having a Fair Market Value exceeding the aggregate
exercise price payable with respect to the option being exercised (plus any
applicable taxes). Any withheld Shares shall no longer be issuable under such
option.
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6.3 TERMS OF OPTIONS. The term during which each option may be
exercised shall be determined by the Committee, but, except as otherwise
provided herein, in no event shall an option be exercisable in whole or in part,
in the case of a Nonqualified Stock Option or an Incentive Stock Option (other
than as described below), more than ten years from the date it is granted or, in
the case of an Incentive Stock Option granted to an employee who at the time of
the grant owns more than 10% of the total combined voting power of all classes
of stock of the Company or any of its Subsidiaries, if required by the Code,
more than five years from the date it is granted. All rights to purchase Shares
pursuant to an option shall, unless sooner terminated, expire at the date
designated by the Committee. The Committee shall determine the date on which
each option shall become exercisable and may provide that an option shall become
exercisable in installments. The Shares constituting each installment may be
purchased in whole or in part at any time after such installment becomes
exercisable, subject to such minimum exercise requirements as may be designated
by the Committee. Unless otherwise provided herein or in the terms of the
related grant, an optionee may exercise an option only if he or she is, and has
continuously since the date the option was granted, been a director, officer or
employee of or performed other services for the Company or a Subsidiary. Prior
to the exercise of an option and delivery of the Shares represented thereby, the
optionee shall have no rights as a stockholder with respect to any Shares
covered by such outstanding option (including any dividend or voting rights).
6.4 LIMITATIONS ON GRANTS. If required by the Code, the
aggregate Fair Market Value (determined as of the grant date) of Shares for
which an Incentive Stock Option is exercisable for the first time during any
calendar year under all equity incentive plans of the Company and its Subsidiary
Corporations (as defined in Section 424 of the Code) may not exceed $100,000.
6.5 TERMINATION; CHANGE IN CONTROL. Except as may otherwise be
provided by the Committee:
(a) If a participant ceases to be a director, officer or
employee of, or to perform other services for, the Company and any Subsidiary
due to the death of the participant, all of the participant's options and SARs
shall become fully vested and exercisable and shall remain so for a period of 24
months from the date of such death but in no event after the expiration date of
the options or SARs.
(b) If a participant ceases to be a director, officer or
employee of, or to perform other services for, the Company and any Subsidiary
upon the occurrence of his or her Retirement, (A) all of the participant's
options and SARs that were exercisable on the date of Retirement shall remain
exercisable for, and shall otherwise terminate at the end of, a period of up to
90 days after the date of Retirement, but in no event after the expiration date
of the options or SARs and (B) all of the participant's options and SARs that
were not exercisable on the date of Retirement shall be forfeited immediately
upon such Retirement.
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9
(c) If a participant ceases to be a director, officer or
employee of, or to perform other services for, the Company or a Subsidiary due
to Cause, all of the participant's options and SARs shall be forfeited
immediately upon such cessation, whether or not then exercisable.
(d) If a participant ceases to be a director, officer or
employee of, or to otherwise perform services for, the Company or a Subsidiary
for any reason other than death, Retirement or Cause, (A) all of the
participant's options and SARs that were exercisable on the date of such
cessation shall remain exercisable for, and shall otherwise terminate at the end
of, a period of 90 days after the date of such cessation, but in no event after
the expiration date of the options or SARs and (B) all of the participant's
options and SARs that were not exercisable on the date of such cessation shall
be forfeited immediately upon such cessation. The Committee may, at its sole
discretion, determine (i) whether any leave of absence (including short-term or
long-term disability or medical leave) shall constitute a termination of
employment for purposes of this Plan and (ii) the impact, if any, of any such
leave on outstanding awards under the Plan.
(e) If there is a Change in Control, all of the
participant's options and SARs shall become fully vested and exercisable
immediately prior to such Change in Control and shall remain so until the
expiration date of the options and SARs.
6.6 GRANT OF RELOAD OPTIONS. The Committee may provide (either
at the time of grant or exercise of an option), in its discretion, for the grant
to a grantee who exercises all or any portion of an option ("Exercised Options")
and who pays all or part of such exercise price with shares of Common Stock, of
an additional option (a "Reload Option") for a number of shares of Common Stock
equal to the sum (the "Reload Number") of the number of shares of Common Stock
tendered or withheld in payment of such exercise price for the Exercised Options
plus, if so provided by the Committee, the number of shares of Common Stock, if
any, tendered or withheld by the grantee or withheld by the Company in
connection with the exercise of the Exercised Options to satisfy any federal,
state or local tax withholding requirements. The terms of each Reload Option,
including the date of its expiration and the terms and conditions of its
exercisability and transferability, shall be the same as the terms of the
Exercised Option to which it relates, except that (i) the grant date for each
Reload Option shall be the date of exercise of the Exercised Option to which it
relates and (ii) the exercise price for each Reload Option shall be the Fair
Market Value of the Common Stock on the grant date of the Reload Option.
7. STOCK APPRECIATION RIGHTS.
The Committee shall have the authority to grant SARs under
this Plan, either alone or to any optionee in tandem with options (either at the
time of grant of the related option or thereafter by amendment to an outstanding
option). SARs shall be subject to such terms and conditions as the Committee may
specify.
No SAR may be exercised unless the Fair Market Value of a
share of Common Stock of the Company on the date of exercise exceeds the
exercise price of the SAR or, in the
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10
case of SARs granted in tandem with options, any options to which the SARs
correspond. Prior to the exercise of the SAR and delivery of the cash and/or
Shares represented thereby, the participant shall have no rights as a
stockholder with respect to Shares covered by such outstanding SAR (including
any dividend or voting rights).
SARs granted in tandem with options shall be exercisable only
when, to the extent and on the conditions that any related option is
exercisable. The exercise of an option shall result in an immediate forfeiture
of any related SAR to the extent the option is exercised, and the exercise of an
SAR shall cause an immediate forfeiture of any related option to the extent the
SAR is exercised.
Upon the exercise of an SAR, the participant shall be entitled
to a distribution in an amount equal to the difference between the Fair Market
Value of a share of Common Stock on the date of exercise and the exercise price
of the SAR or, in the case of SARs granted in tandem with options, any option to
which the SAR is related, multiplied by the number of Shares as to which the SAR
is exercised (less any applicable taxes). The Committee shall decide whether
such distribution shall be in cash, in Shares having a Fair Market Value equal
to such amount, in Other Company Securities having a Fair Market Value equal to
such amount or in a combination thereof.
All SARs will be exercised automatically on the last day prior
to the expiration date of the SAR or, in the case of SARs granted in tandem with
options, any related option, so long as the Fair Market Value of a share of
Common Stock on that date exceeds the exercise price of the SAR or any related
option, as applicable. An SAR granted in tandem with options shall expire at the
same time as any related option expires and shall be transferable only when, and
under the same conditions as, any related option is transferable.
8. RESTRICTED STOCK.
The Committee may at any time and from time to time grant
Shares of restricted stock under the Plan to such participants and in such
amounts as it determines. Each grant of restricted stock shall specify the
applicable restrictions on such Shares, the duration of such restrictions (which
shall be at least 1 year except as otherwise provided in the third paragraph of
this Section 8), and the time or times at which such restrictions shall lapse
with respect to all or a specified number of Shares that are part of the grant.
The participant will be required to pay the Company the
aggregate par value of any Shares of restricted stock (or such larger amount as
the Board may determine to constitute capital under Section 154 of the Delaware
General Corporation Law, as amended) within ten days of the date of grant,
unless such Shares of restricted stock are treasury shares. Unless otherwise
determined by the Committee, certificates representing Shares of restricted
stock granted under the Plan will be held in escrow by the Company on the
participant's behalf during any period of restriction thereon and will bear an
appropriate legend specifying the applicable restrictions thereon, and the
participant will be required to execute a blank stock power therefor. Except as
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11
otherwise provided by the Committee, during such period of restriction the
participant shall have all of the rights of a holder of Common Stock, including
but not limited to the rights to receive dividends and to vote, and any stock or
other securities received as a distribution with respect to such participant's
restricted stock shall be subject to the same restrictions as then in effect for
the restricted stock.
Except as may otherwise be provided by the Committee, (a)
immediately prior to a Change in Control or at such time as a participant ceases
to be a director, officer or employee of, or to otherwise perform services for,
the Company and its Subsidiaries due to death or Retirement during any period of
restriction, all restrictions on Shares granted to such participant shall lapse,
and (b) at such time as a participant ceases to be a director, officer or
employee of, or to otherwise perform services for, the Company or its
Subsidiaries for any other reason, all Shares of restricted stock granted to
such participant on which the restrictions have not lapsed shall be immediately
forfeited to the Company.
9. PERFORMANCE AWARDS.
Performance awards may be granted to participants at any time
and from time to time as determined by the Committee. The Committee shall have
complete discretion in determining the size and composition of performance
awards so granted to a participant and the appropriate period over which
performance is to be measured (a "performance cycle"). Performance awards may
include (i) specific dollar-value target awards (ii) performance units, the
value of each such unit being determined by the Committee at the time of
issuance, and/or (iii) performance Shares, the value of each such Share being
equal to the Fair Market Value of a share of Common Stock.
The value of each performance award may be fixed or it may be
permitted to fluctuate based on a performance factor (e.g., return on equity)
selected by the Committee.
The Committee shall establish performance goals and objectives
for each performance cycle on the basis of one or more of the following five
measurements of the Company's performance for the relevant period, as such
measurements may be adjusted for merger costs as presented on the Company's
audited financial statements: pre-tax earnings, net earnings, earnings per
share, return on assets and return on equity. During any performance cycle, the
Committee shall have the authority to adjust the performance goals and
objectives for such cycle for such reasons as it deems equitable to the extent
permitted under Section 162(m) of the Code.
The Committee shall determine the portion of each performance
award that is earned by a participant on the basis of the Company's performance
over the performance cycle in relation to the performance goals for such cycle.
The earned portion of a performance award may be paid out in Shares, cash, Other
Company Securities, or any combination thereof, as the Committee may determine.
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12
A participant must be a director, officer or employee of, or
otherwise perform services for, the Company or its Subsidiaries at the end of
the performance cycle in order to be entitled to payment of a performance award
issued in respect of such cycle; provided, however, that, except as otherwise
provided by the Committee, (a) if a participant ceases to be a director, officer
or employee of, or to otherwise perform services for, the Company and its
Subsidiaries upon his or her death or Retirement prior to the end of the
performance cycle, the participant shall earn a proportionate portion of the
performance award based upon the elapsed portion of the performance cycle and
the Company's performance over that portion of such cycle and (b) in the event
of a Change in Control, a participant shall earn no less than the portion of the
performance award that the participant would have earned if the performance
cycle(s) had terminated as of the date of the Change in Control.
10. WITHHOLDING TAXES.
(a) PARTICIPANT ELECTION. The Committee may provide that a participant
may be permitted to elect to deliver shares of Common Stock (or have the Company
withhold shares acquired upon exercise of an option or SAR or deliverable upon
grant or vesting of restricted stock, as the case may be) to satisfy, in whole
or in part, the amount the Company is required to withhold for taxes in
connection with the exercise of an option or SAR or the delivery of restricted
stock upon grant or vesting, as the case may be. Such election must be made on
or before the date the amount of tax to be withheld is determined. Once made,
the election shall be irrevocable. The fair market value of the shares to be
withheld or delivered will be the Fair Market Value as of the date the amount of
tax to be withheld is determined. In the event a participant elects to deliver
shares of Common Stock pursuant to this Section 10(a), such delivery must be
made subject to the conditions and pursuant to the procedures set forth in
Section 6(b) with respect to the delivery of Common Stock in payment of the
exercise price of options.
(b) COMPANY REQUIREMENT. The Company may require, as a condition to any
grant or exercise under the Plan, to the payment of any SAR or to the delivery
of certificates for Shares issued hereunder, that the grantee make provision for
the payment to the Company, either pursuant to Section 10(a) or this Section
10(b), of any federal, state or local taxes of any kind required by law to be
withheld with respect to any grant or payment or any delivery of Shares. The
Company, to the extent permitted or required by law, shall have the right to
deduct from any payment of any kind (including salary or bonus) otherwise due to
a grantee, an amount equal to any federal, state or local taxes of any kind
required by law to be withheld with respect to any grant or payment or to the
delivery of Shares under the Plan, or to retain or sell without notice a
sufficient number of the Shares to be issued to such grantee to cover any such
taxes, the payment of which has not otherwise been provided for in accordance
with the terms of the Plan, provided that the Company shall not sell any such
Shares if such sale would be considered a sale by such grantee for purposes of
Section 16 of the Exchange Act that is not exempt from matching thereunder.
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13
11. WRITTEN AGREEMENT; VESTING.
Each employee to whom a grant is made under the Plan shall
enter into a written agreement with the Company that shall contain such
provisions, including without limitation vesting requirements, consistent with
the provisions of the Plan, as may be approved by the Committee. Unless the
Committee may otherwise provide and except as otherwise provided in Sections 6,
7, 8 and 9 in connection with a Change of Control or certain occurrences of
termination, no grant under this Plan may be exercised, and no restrictions
relating thereto may lapse, within six months of the date such grant is made.
12. TRANSFERABILITY.
Unless the Committee determines otherwise, no option, SAR,
performance award, or restricted stock granted under the Plan shall be
transferable by a participant otherwise than by will or the laws of descent and
distribution or pursuant to a qualified domestic relations order as defined by
the Code. Unless the Committee determines otherwise, an option, SAR, or
performance award may be exercised only by the optionee or grantee thereof or
his guardian or legal representative; provided that Incentive Stock Options may
be exercised by such guardian or legal representative only if permitted by the
Code and any regulations promulgated thereunder.
13. LISTING, REGISTRATION AND QUALIFICATION.
If the Committee determines that the listing, registration or
qualification upon any securities exchange or under any law of Shares subject to
any option, SAR, performance award or restricted stock grant is necessary or
desirable as a condition of, or in connection with, the granting of same or the
issue or purchase of Shares thereunder, no such option or SAR may be exercised
in whole or in part, no such performance award may be paid out and no Shares may
be issued unless such listing, registration or qualification is effected free of
any conditions not acceptable to the Committee.
It is the intent of the Company that the Plan comply in all
respects with Section 162(m) of the Code, that awards made hereunder comply in
all respects with Rule 16b-3 under the Exchange Act, that any ambiguities or
inconsistencies in construction of the Plan be interpreted to give effect to
such intention and that if any provision of the Plan is found not to be in
compliance with Section 162(m), such provision shall be deemed null and void to
the extent required to permit the Plan to comply with Section 162(m), as the
case may be.
14. TRANSFER OF EMPLOYEE.
The transfer of an employee from the Company to a Subsidiary,
from a Subsidiary to the Company, or from one Subsidiary to another shall not be
considered a termination of employment; nor shall it be considered a termination
of employment if an employee is placed on military, disability or sick leave or
such other leave of absence which is considered by the Committee as continuing
intact the employment relationship.
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14
15. ADJUSTMENTS.
In the event of a reorganization, recapitalization, stock
split, stock dividend, combination of shares, merger, consolidation,
distribution of assets, or any other change in the corporate structure or shares
of the Company, the Committee shall make such adjustment as it deems appropriate
in the number and kind of Shares or other property reserved for issuance under
the Plan, in the number and kind of Shares or other property covered by grants
previously made under the Plan, and in the exercise price of outstanding options
and SARs. Any such adjustment shall be final, conclusive and binding for all
purposes of the Plan. In the event of any merger, consolidation or other
reorganization in which the Company is not the surviving or continuing
corporation or in which a Change in Control is to occur, all of the Company's
obligations regarding options, SARs performance awards, and restricted stock
that were granted hereunder and that are outstanding on the date of such event
shall, on such terms as may be approved by the Committee prior to such event, be
assumed by the surviving or continuing corporation or canceled in exchange for
property (including cash).
Without limitation of the foregoing, in connection with any
transaction of the type specified by clause (iii) of the definition of a Change
in Control in Section 2(c), the Committee may, in its discretion, (i) cancel any
or all outstanding options under the Plan in consideration for payment to the
holders thereof of an amount equal to the portion of the consideration that
would have been payable to such holders pursuant to such transaction if their
options had been fully exercised immediately prior to such transaction, less the
aggregate exercise price that would have been payable therefor, or (ii) if the
amount that would have been payable to the option holders pursuant to such
transaction if their options had been fully exercised immediately prior thereto
would be less than the aggregate exercise price that would have been payable
therefor, cancel any or all such options for no consideration or payment of any
kind. Payment of any amount payable pursuant to the preceding sentence may be
made in cash or, in the event that the consideration to be received in such
transaction includes securities or other property, in cash and/or securities or
other property in the Committee's discretion.
16. TERMINATION AND MODIFICATION OF THE PLAN.
The Board of Directors or the Committee, without approval of
the stockholders, may modify or terminate the Plan, except that no modification
shall become effective without prior approval of the stockholders of the Company
if stockholder approval would be required for continued compliance with the
performance-based compensation exception of Section 162(m) of the Code or any
listing requirement of the principal stock exchange on which the Common Stock is
then listed.
17. AMENDMENT OR SUBSTITUTION OF AWARDS UNDER THE PLAN.
The terms of any outstanding award under the Plan may be
amended from time to time by the Committee in its discretion in any manner that
it deems appropriate (including, but not limited to, acceleration of the date of
exercise of any award and/or payments thereunder or
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of the date of lapse of restrictions on Shares); provided that, except as
otherwise provided in Section 15, no such amendment shall adversely affect in a
material manner any right of a participant under the award without his or her
written consent. The Committee may, with the grantee's consent, cancel any award
under the Plan and issue a new award in substitution therefor upon such terms as
the Committee may in its sole discretion determine, provided that the
substituted award shall satisfy all applicable Plan requirements as of the date
such new award is made; and further provided, notwithstanding the foregoing or
any other provision of this Plan, that in no event shall an option or stock
appreciation right be granted in substitution for a previously granted option or
stock appreciation right, with the old award being canceled or surrendered as a
condition of receiving the new award, if the new award would have a lower option
exercise price or stock appreciation right appreciation base than the award it
replaces. The foregoing is not intended to prevent equitable adjustment of
awards upon the occurrence of certain events as herein provided, for example,
without limitation, adjustments pursuant to Section 15.
18. COMMENCEMENT DATE; TERMINATION DATE.
The date of commencement of the Plan shall be October 1, 1997,
subject to approval by the stockholders of the Company. Unless previously
terminated upon the adoption of a resolution of the Board terminating the Plan,
no Incentive Stock Options shall be issued under this plan after the close of
business on September 30, 2007. No termination of the Plan shall materially and
adversely affect any of the rights or obligations of any person, without his
consent, under any grant of options or other incentives theretofore granted
under the Plan.
19. GOVERNING LAW.
The Plan shall be governed by the corporate laws of the State
of Delaware, without giving effect to any choice of law provisions.
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EXHIBIT 5.1
2
To Call Writer Direct
312 861-2000
January 22, 1998
Office Depot, Inc.
2200 Old Germantown Road
Delray Beach, FL 33445
Ladies and Gentlemen:
We have acted as counsel to you (the "Company") in connection
with the preparation of a Registration Statement on Form S-8 (the "Registration
Statement") pertaining to the registration under the Securities Act of 1933 of
an offering of an additional 4,975,000 shares of the Company's Common Stock,
$0.01 par value (the "Registered Shares") pursuant to the Office Depot, Inc.
Long- Term Equity Incentive Plan (the "Plan").
Subject to the limitations stated in this letter, it is our
opinion that Registered Shares issued by the Company for purchase under the Plan
will upon such delivery and receipt by the Company of all consideration owed to
the Company under the terms of the Plan be validly issued, fully paid and
nonassessable.
We have relied without independent investigation upon an
assurance from the Company's Secretary that the number of shares which the
Company is authorized to issue in its Certificate of Incorporation exceeds the
number of shares outstanding and the number of shares which the Company is
obligated to issue (or had otherwise reserved for issuance) for any purposes
other than issu ance in connection with options granted under the Plan by at
least the number of shares which may be issued in connection with the Plan, and
we have assumed that such condition will remain true at all future times
relevant to this opinion. We have assumed that the Company will cause
certificates representing Registered Shares issued in the future to be properly
executed and delivered and will take all other actions appropriate for the
issuance of such shares. We express no opinion regarding any shares reacquired
by the Company after initial issuance. Our opinion does not cover any law other
than the Delaware Corporation Law.
3
Office Depot, Inc.
January 22, 1998
Page 2
We do not find it necessary for the purposes of this opinion,
and accordingly do not purport to cover herein, the application of securities of
"Blue Sky" laws of the various states to the offer or sale of the Registered
Shares.
We consent to the filing of this letter as an exhibit to the
Registration Statement. In giving this consent, we do not thereby admit that we
come within the category of persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder.
Sincerely yours,
/s/ Kirkland & Ellis
KIRKLAND & ELLIS
1
EXHIBIT 23.1
2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Office Depot, Inc. on Form S-8 of our report dated February 25, 1997 (March 10,
1997 as to Note B) appearing in the Annual Report on Form 10-K of Office Depot,
Inc. for the year ended December 28, 1996.
DELOITTE & TOUCHE LLP
Certified Public Accountants
Fort Lauderdale, Florida
February 4, 1998
