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As filed with the Securities and Exchange Commission on September 20, 1995
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. OMNIBUS EQUITY PLAN
(Full title of the plan)
MR. BARRY J. GOLDSTEIN
OFFICE DEPOT, INC.
2200 OLD GERMANTOWN ROAD
DELRAY BEACH, FLORIDA 33445
(407) 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(1) Price(1) Registration Fee(1)
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Common Stock, $.01
par value per share 0 $0 $290,000 $100
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(1) 6,000,000 shares of the registrant's Common Stock were previously
registered on Form S-8, Registration No. 33-57511 in connection with
the Office Depot, Inc. Stock Option and Stock Appreciation Rights Plan
under which no further options or awards will be granted and 4,750,000
shares remain unissued and not subject to outstanding options under
such plan. Registrant has paid $52,241.00 in connection with this
earlier registration and is carrying forward 4,750,000 of these shares
to be offered under the Office Depot, Inc. Omnibus Equity Plan.
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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 a prior plan will be offered under the new
plan.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION BY REFERENCE
This Registration Statement relates to 4,750,000 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.
Omnibus Equity Plan (the "Plan"). Such shares were previously
intended to be offered under the Office Depot, Inc. Stock Option and
Appreciation Rights Plan (the "Prior Plan"). A registration statement
on Form S-8 was filed with the Securities and Exchange Commission
under Registration No. 33-57511 for shares of the Company's Common
Stock to be issued pursuant to the Prior Plan and its 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 31, 1994.
2. Amendment to Registration Statement on Form S-3 filed
August 11, 1995
3. 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.
4. 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 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 ("GCL") 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 September 18,
1995.
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 September 18, 1995.
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/ Barry J. Goldstein Chief Financial Officer and Executive Vice
------------------------------------------ President-Finance (Principal Financial
Barry J. Goldstein Officer)
/s/ Mark D. Begelman Director
------------------------------------------
Mark D. Begelman
/s/ Denis Defforey Director
------------------------------------------
Denis Defforey
/s/ W. Scott Hedrick Director
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W. Scott Hedrick
/s/ John B. Mumford Director
------------------------------------------
John B. Mumford
/s/ Michael J. Myers Director
------------------------------------------
Michael J. Myers
/s/ Peter J. Solomon Director
------------------------------------------
Peter J. Solomon
/s/ Alan L. Wurtzel Director
------------------------------------------
Alan L. Wurtzel
/s/ Cynthia C. Turk Director
------------------------------------------
Cynthia C. Turk
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INDEX TO EXHIBITS
SEQUENTIALLY
EXHIBIT NUMBERED
NO. DESCRIPTION OF EXHIBIT PAGE*
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4.1 Omnibus Equity Plan effective April 1, 1995
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
2
OFFICE DEPOT, INC. OMNIBUS EQUITY PLAN
ARTICLE 1. GENERAL
1.1 Purpose. The purpose of the Office Depot, Inc.
Omnibus Equity Plan (the "Plan") is to provide for certain officers, directors
and key personnel, as defined in Section 1.3, of Office Depot, Inc. (the
"Company") and certain of its Affiliates, and individuals who provide
significant services for the benefit of the Company and certain of its
Affiliates, with an equity-based incentive to maintain and enhance the
performance and profitability of the Company. It is the further purpose of
this Plan to permit the granting of options and stock appreciation rights that
will constitute performance-based compensation for certain executive officers,
as described in section 162(m) of the internal Revenue Code of 1986, as amended
(the "Code"), and regulations promulgated thereunder.
1.2 Administration.
(a) The Plan shall be administered by the Compensation
Committee (the "Committee") of the Board of Directors of the Company (the
"Board"), which Committee shall consist of two or more directors. It is
intended that the directors appointed to serve on the Committee shall be
"disinterested persons" (within the meaning of Rule 16b-3 promulgated under the
Securities Exchange Act of 1934 (the "Act")) and "outside directors" (within
the meaning of Code section 162(m)), so long as satisfaction of such
classifications is required for the exemptions set forth in such Rule and
section; provided, however, that the mere fact that a Committee member shall
fail to qualify under either of these requirements shall not invalidate any
award made by the Committee which award is otherwise validly made under the
Plan. The members of the Committee shall be appointed by, and may be changed
at any time and from time to time in the discretion of, the Board.
(b) The determination of the Committee on all matters
relating to the Plan or any Plan agreement shall be conclusive.
(c) No member of the Committee shall be liable for any
action or determination made in good faith with respect to the Plan or any
award hereunder.
(d) Notwithstanding anything to the contrary contained
herein: the Board may, in its sole discretion, at any time and from time to
time, resolve to administer the Plan, in which case, the term Committee as used
herein shall be deemed to mean the Board.
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(e) The Company shall bear all costs, including
attorneys' and accountants' fees and expenses, of administering the Plan.
1.3 Persons Eligible for Awards. Awards under the Plan
may be made to such officers, directors and executive, managerial or
professional employees ("key personnel") of the Company or its Affiliates, and
individuals who provide significant services for the benefit of the Company or
its Affiliates, as the Committee shall from time to time in its sole discretion
select; provided, that officers who are not employees of the Company or any of
its Affiliates shall not be eligible to receive awards under the Plan, and
provided, further, that directors who are not, and were not during the previous
year, (i) a director of the Company or any of its Affiliates who was granted or
awarded equity securities pursuant to the Office Depot, Inc. Stock Option and
Stock Appreciation Rights Plan or any other plan of the Company or any of its
Affiliates (other than the Office Depot, Inc. Amended Directors Stock Option
Plan or (ii) an officer or employee of the Company or any of its Affiliates,
shall not be eligible to receive awards under the Plan.
1.4 Types of Awards Under Plan.
(a) Awards may be made under the Plan in the form of (i)
stock options ("options"), (ii) stock appreciation rights related to an option
("related stock appreciation rights"), (iii) stock appreciation rights not
related to any option ("unrelated stock appreciation rights") and (iv)
restricted stock awards ("restricted stock awards"), all as more fully set
forth in Sections 2 and 3.
(b) Options granted under the Plan may be either
"nonqualified" stock options subject to the provisions of Code section 83 or
(ii) options intended to qualify for incentive stock option treatment described
in Code section 422.
(c) All options when granted are intended to be
nonqualified stock options, unless the applicable Plan agreement explicitly
states that the option is intended to be an incentive stock option. If an
option is intended to be an incentive stock option, and if for any reason such
option (or any portion thereof) shall not qualify as an incentive stock option,
then, to the extent of such nonqualification, such option (or portion) shall be
regarded as a nonqualified stock option appropriately granted under the Plan,
provided that such option (or portion) otherwise meets the Plan's requirements
relating to nonqualified stock options.
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1.5 Shares Available for Awards.
(a) Subject to Section 4.5 (relating to adjustments upon
changes in capitalization), as of any date the total number of shares of Common
Stock with respect to which awards may be granted under the Plan, shall equal
the excess (if any) of 4,725,000 shares, over (i) the number of shares of
Common Stock subject to outstanding awards, (ii) the number of shares in
respect of which options and stock appreciation rights have been exercised, and
(iii) the number of shares issued subject to forfeiture restrictions which have
lapsed.
In accordance with (and without limitation upon) the preceding
sentence, awards may be granted in respect of the following shares of Common
Stock: shares covered by previously granted awards that have expired,
terminated or been canceled for any reason whatsoever (other than by reason of
exercise or vesting) and with respect to which shares a grantee has received no
benefits of ownership (other than voting rights and dividends that were
forfeited on such expiration, termination or cancellation).
As a further limitation in addition to the foregoing, the
total number of shares of Common Stock with respect to which restricted stock
awards may vest under the Plan shall not exceed (subject to adjustments under
Section 4.5) 2 percent of the number of shares of Common Stock issued and
outstanding on the date the Plan is initially approved by the stockholders of
the Company.
(b) In any calendar year, a continuing employee of the
Company eligible for awards under the Plan may not be granted options and/or
unrelated stock appreciation rights under the Plan covering a total of more
than 250,000 shares of Common Stock; and an employee of the Company eligible
for awards under the Plan who was not an employee of the Company prior to such
year may not be granted options and/or unrelated stock appreciation rights
under the Plan covering a total of more than 400,000 shares of Common Stock.
(c) The aggregate fair market value (as of the effective
date of grant of incentive stock options) of Common Stock with respect to which
incentive stock options granted to a grantee under the Plan are exercisable for
the first time by such grantee during any calendar year shall not exceed
$100,000.
(d) Shares of Common Stock that shall be subject to
issuance pursuant to the Plan shall be authorized and unissued, treasury or
reacquired shares of Common Stock or any combination thereof.
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(e) Without limiting the generality of the foregoing, 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 4.5.
1.6 Definitions of Certain Terms.
(a) The term "Affiliate" as used herein means any person
or entity which, at the time of reference, directly, or indirectly through one
or more intermediaries, controls, is controlled by, or is under common control
with, the Company.
(b) The term "Common Stock" as used herein means the
shares of common stock of the Company as constituted on the effective date of
the Plan, and any other shares into which such common stock shall thereafter be
changed by reason of a recapitalization, merger, consolidation, split-up,
combination, exchange of shares or the like.
(c) Except as otherwise determined by the Committee in
its sole discretion, the "fair market value" as of any date and in respect of
any share of Common Stock shall be:
(i) if the Common Stock is listed for trading on
the New York Stock Exchange, the closing price, regular way,
of the Common Stock as reported on the New York Stock Exchange
Composite Tape, or if no such reported sale of the Common
Stock shall have occurred on such date, on the next preceding
date on which there was such a reported sale; or
(ii) if the Common Stock is not so listed but is
listed on another national securities exchange or authorized
for quotation on the National Association of Securities
Dealers Inc.'s NASDAQ National Market System ("NASDAQ/NMS"),
the closing price, regular way, of the
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Common Stock on such exchange or NASDAQ/NMS, as the case may
be, on which the largest number of shares of Common Stock have
been traded in the aggregate on the preceding twenty trading
days, or, if no such reported sale of the Stock shall have
occurred on such date on such exchange or NASDAQ/NMS, as the
case may be, on the preceding date on which there was such a
reported sale on such exchange or NASDAQ/NMS, as the case may
be; or
(iii) if the Common Stock is not listed for trading
on a national securities exchange or authorized for quotation
on NASDAQ/NMS, the average of the closing bid and asked prices
as reported by the National Association of Securities Dealers
Automated Quotation System ("NASDAQ") or, if no such prices
shall have been so reported for such date, on the next
preceding date for which such prices were so reported.
1.7 Agreements Evidencing Awards.
(a) Options, stock appreciation rights and restricted
stock awards granted under the Plan shall be evidenced by written agreements.
Other awards granted under the Plan shall be evidenced by written agreements to
the extent the Committee may in its sole discretion deem necessary or
desirable. Any such written agreements shall (i) contain such provisions not
inconsistent with the terms of the Plan as the Committee may in its sole
discretion deem necessary or desirable and (ii) be referred to herein as "Plan
agreements."
(b) Each Plan agreement shall set forth the number of
shares of Common Stock subject to the award granted thereby.
(c) Each Plan agreement with respect to the granting of a
related stock appreciation right shall set forth the number of shares of Common
Stock subject to the related option which shall also be subject to the related
stock appreciation right granted thereby.
(d) Each Plan agreement with respect to the granting of
an option shall set forth the amount (the "option exercise price") payable by
the grantee to the Company in connection with the exercise of the option
evidenced thereby. The option exercise price per share shall not be less than
the fair market value of a share of Common Stock on the date the option is
granted.
(e) Each Plan agreement with respect to a stock
appreciation right shall set forth the amount (the "appreciation base") over
which appreciation will be measured upon exercise of
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the stock appreciation right evidenced thereby. The appreciation base per
share of Common Stock subject to a stock appreciation right shall not be less
than (i) in the case of an unrelated stock appreciation right, the fair market
value of a share of Common Stock on the date the stock appreciation right is
granted, or (ii) in the case of a related stock appreciation right, the option
exercise price per share of Common Stock subject to the related option.
ARTICLE 2. STOCK OPTIONS AND STOCK APPRECIATION RIGHTS
2.1 Grant of Stock Options. The Committee may grant
options to purchase shares of Common Stock in such amounts and subject to such
terms and conditions as the Committee shall from time to time in its sole
discretion determine, subject to the terms of the Plan.
2.2 Grant of Stock Appreciation Rights.
(a) Related Stock Appreciation Rights. The Committee may
grant a related stock appreciation right in connection with all or any part of
an option granted under the Plan, either at the time the related option is
granted or any time thereafter prior to the exercise, termination or
cancellation of such option, and subject to such terms and conditions as the
Committee shall from time to time in its sole discretion determine, subject to
the terms of the Plan. The grantee of a related stock appreciation right
shall, subject to the terms of the Plan and the applicable Plan agreement, have
the right to surrender to the Company for cancellation all or a portion of the
related option granted under the Plan, but only to the extent that such option
is then exercisable, and to be paid therefor an amount equal to the excess (if
any) of (i) the aggregate fair market value of the shares of Common Stock
subject to such option or portion thereof (determined as of the date of
exercise of such stock appreciation right), over (ii) the aggregate
appreciation base (determined pursuant to Section 1. 7 (e)) of the shares of
Common Stock subject to such stock appreciation right or portion thereof.
(b) Unrelated Stock Appreciation Rights. The Committee
may grant an unrelated stock appreciation right in such amount and subject to
such terms and conditions as the Committee shall from time to time in its sole
discretion determine, subject to the terms of the Plan. The grantee of an
unrelated stock appreciation right shall, subject to the terms of the Plan and
the applicable Plan agreement, have the right to surrender to the Company for
cancellation all or a portion of such stock appreciation right, but only to the
extent that such stock appreciation right is then exercisable, and to be paid
therefor an amount equal to the excess
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(if any) of: (i) the aggregate fair market value of the shares of Common Stock
subject to such stock appreciation right or portion thereof (determined as of
the date of exercise of such stock appreciation right); over (ii) the aggregate
appreciation base (determined pursuant to Section 1.7(e)) of the shares of
Common Stock subject to such stock appreciation right or portion thereof.
(c) Payment. Payment due to the grantee upon exercise of
a stock appreciation right shall be made in cash and/or in Common Stock (valued
at the fair market value thereof as of the date of exercise) as determined by
the Committee in its sole discretion.
2.3 Exercise of Related Stock Appreciation Right Reduces
Shares Subject to Option. Upon any exercise of a related stock appreciation
right or any portion thereof, the number of shares of Common Stock subject to
the related option shall be reduced by the number of shares of Common Stock in
respect of which such stock appreciation right shall have been exercised.
2.4 Exercisability of Options and Stock Appreciation
Rights. Subject to the other provisions of the Plan:
(a) Exercisability Determined by Plan Agreement. Each
Plan agreement shall set forth the period during which and the conditions
subject to which the option or stock appreciation right evidenced thereby shall
be exercisable, as determined by the Committee in its discretion.
(b) Exercise of Related Stock Appreciation Right. Unless
the applicable Plan agreement otherwise provides, a related stock appreciation
right shall be exercisable at any time during the period that the related
option may be exercised.
(c) Partial Exercise Permitted. Unless the applicable
Plan agreement otherwise provides, an option or stock appreciation right
granted under the Plan may be exercised from time to time as to all or part of
the full number of shares as to which such option or stock appreciation right
shall then be exercisable.
(d) Notice of Exercise; Exercise Date.
(i) An option or stock appreciation right shall
be exercisable by the filing of a written notice of exercise
with the Company, on such form and in such manner as the
Committee shall in its sole discretion prescribe, and by
payment in accordance with Section 2.6.
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(ii) Unless the applicable Plan agreement
otherwise provides, or the Committee in its sole discretion
otherwise determines, the date of exercise of an option or
stock appreciation right shall be the date the Company
receives such written notice of exercise and payment.
2.5 Limitation on Exercise. Notwithstanding any other
provision of the Plan, no Plan agreement shall permit an incentive stock option
to be exercisable more than 10 years after the date of grant.
2.6 Payment of Option Price.
(a) Tender Due Upon Notice of Exercise. Unless the
applicable Plan agreement otherwise provides or the Committee in its sole
discretion otherwise determines, any written notice of exercise of an option
shall be accompanied by payment of the full purchase price for the shares being
purchased.
(b) Manner of Payment. Payment of the option exercise
price shall be made in any combination of the following:
(i) by certified or official bank check payable
to the Company (or the equivalent thereof acceptable to the
Committee);
(ii) by personal check (subject to collection),
which may in the Committee's discretion be deemed conditional;
(iii) if and to the extent provided in the
applicable Plan agreement, by delivery of previously acquired
shares of Common Stock owned by the grantee for at least six
months (or such other period as the Committee may prescribe)
having a fair market value (determined as of the option
exercise date) equal to the portion of the option exercise
price being paid thereby, provided that the Committee may
require the grantee to furnish an opinion of counsel
acceptable to the Committee to the effect that such delivery
would not result in the grantee incurring any liability under
Section 16(b) of the Act and does not require any Consent (as
defined in Section 4.2); and
(iv) with the consent of the Committee in its sole
discretion, by the full recourse promissory note and agreement
of the grantee providing for payment with interest on the
unpaid balance accruing at a rate not less than that needed to
avoid the imputation of income
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under Code section 7872 and upon such terms and conditions
(including the security, if any, therefor) as the Committee
may determine.
(c) Cashless Exercise. Payment in accordance with
Section 2.6(b) may be deemed to be satisfied, if and to the extent provided in
the applicable Plan agreement, by delivery to the Company of an assignment of a
sufficient amount of the proceeds from the sale of Common Stock acquired upon
exercise to pay for all of the Common Stock acquired upon exercise and an
authorization to the broker or selling agent to pay that amount to the Company,
which sale shall be made at the grantee's direction at the time of exercise,
provided that the Committee may require the grantee to furnish an opinion of
counsel acceptable to the Committee to the effect that such delivery would not
result in the grantee incurring any liability under Section 16 of the Act and
does not require any Consent (as defined in Section 4.2).
(d) Issuance of Shares. As soon as practicable after
receipt of full payment, the Company shall, subject to the provisions of
Section 4.2, deliver to the grantee one or more certificates for the shares of
Common Stock so purchased, which certificates may bear such legends as the
Company may deem appropriate concerning restrictions on the disposition of the
shares in accordance with applicable securities laws, rules and regulations or
otherwise.
2.7 Default Rules Concerning Termination of Employment.
Subject to the other provisions of the Plan and unless the
applicable Plan agreement otherwise provides:
(a) General Rule. All options and stock appreciation
rights granted to a grantee shall terminate upon the grantee's termination of
employment or ceasing to provide other significant services for any reason
except to the extent post-employment or other provision of service exercise of
the option or stock appreciation right is permitted in accordance with this
Section 2.7.
(b) Termination for Cause. All options and stock
appreciation rights granted to a grantee shall terminate and expire on the day
a grantee's employment or other provision of service is terminated for cause,
the grantee resigns or ceases to provide services for cause or the grantee has
committed an act or omission upon which the Company could have terminated the
grantee's employment or other provision of service for cause.
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11
(c) Regular Termination; Leaves of Absence. If the
grantee's employment or other provision of service terminates for reasons other
than as provided in subsections (b), (d), or (f) of this Section 2.7, the
portion of options and stock appreciation rights granted to such grantee which
were exercisable immediately prior to such termination may be exercised until
the earlier of 90 days after the grantee's termination and the date on which
such options and stock appreciation rights terminate or expire in accordance
with the provisions of the Plan (other than this Section 2.7) and the Plan
agreement; provided, that the Committee may, in its sole discretion, determine
such other period for exercise in the case of a grantee whose employment
terminates solely because the grantee's employer ceases to be an Affiliate or
the grantee transfers employment with the Company's consent to a purchaser of a
business disposed of by the Company. The Committee may, in 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 the Plan, and (ii) the impact, if any, of any such
leave on outstanding awards under the Plan.
(d) Retirement. If a grantee's employment terminates by
reason of retirement (as defined in any tax-qualified defined benefit pension
plan maintained by the Company or any Affiliate in which the grantee
participates) the options and stock appreciation rights exercisable by the
grantee immediately prior to the grantee's retirement shall be exercisable by
the grantee until the earlier of 18 months after the grantee's retirement and
the date on which such options and stock appreciation rights terminate or
expire in accordance with the provisions of the Plan (other than this Section
2.7) and the Plan agreement.
(e) Death After Termination. If a grantee's employment
or other provision of service terminates in the manner described in subsections
(c) or (d) of this Section 2.7 and the grantee dies within the period for
exercise provided for therein, the options and stock appreciation rights
exercisable by the grantee immediately prior to the grantee's death shall be
exercisable by the personal representative of the grantee's estate or by the
person to whom such options and stock appreciation rights pass under the
grantee's will (or, if applicable, pursuant to the laws of descent and
distribution) (i) in the case of death following termination of employment
described in subsection (c) of this Section 2.7, until the date on which such
options and stock appreciation rights terminate or expire in accordance with
the provisions of subsection (c) of this Section 2.7, or (ii) in the case of
death following termination of employment described in subsection (d) of this
Section 2.7, until the earlier of 12 months after the grantee's death, and the
date on which such options and
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12
stock appreciation rights terminate or expire in accordance with the provisions
of subsection (d) of this Section 2.7.
(f) Death Before Termination. If a grantee dies while
employed by or providing other services for the Company or any Affiliate, all
options and stock appreciation rights granted to the grantee but not exercised
before the death of the grantee, whether or not exercisable by the grantee
before the grantee's death, shall immediately become and be exercisable by the
personal representative of the grantee's estate or by the person to whom such
options and stock appreciation rights pass under the grantee's will (or, if
applicable, pursuant to the laws of descent and distribution) until the earlier
of 18 months after the grantee's death and the date on which such options or
stock appreciation rights terminate or expire in accordance with the provisions
of the Plan (other than this Section 2.7) and the Plan agreement.
2.8 Special ISO Requirements. In order for a grantee to
receive special tax treatment with respect to stock acquired under an option
intended to be an incentive stock option, the grantee of such option must be,
at all times during the period beginning on the date of grant and ending on the
day three months before the date of exercise of such option, an employee of the
Company or any of the Company's parent or subsidiary corporations (within the
meaning of Code section 424), or of a corporation or a parent or subsidiary
corporation of such corporation issuing or assuming a stock option in a
transaction to which Code section 424(a) applies. If an option granted under
the Plan is intended to be an incentive stock option, and if the grantee, at
the time of grant, owns stock possessing more than 10 percent of the total
combined voting power of all classes of stock of the grantee's employer
corporation or of its parent or subsidiary corporation, then (i) the option
exercise price per share shall in no event be less than 110 percent of the fair
market value of the Common Stock on the date of such grant and (ii) such option
shall not be exercisable after the expiration of five years after the date such
option is granted.
ARTICLE 3. AWARDS OTHER THAN STOCK OPTIONS AND STOCK APPRECIATION RIGHTS
3.1 Restricted Stock Awards.
(a) Grant of Awards. The Committee may grant restricted
stock awards, alone or in tandem with other awards, under the Plan in such
amounts and subject to such terms and conditions as the Committee shall from
time to time in its sole discretion determine. The vesting of a restricted
stock award granted under the Plan may be conditioned upon the completion of a
specified period of employment with the Company or any Affiliate, upon the
attainment
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13
of specified performance goals, and/or upon such other criteria as the
Committee may determine in its sole discretion.
(b) Payment. Each Plan agreement with respect to a
restricted stock award shall set forth the amount (if any) to be paid by the
grantee with respect to such award. If a grantee makes any payment for a
restricted stock award which does not vest, appropriate payment may be made to
the grantee following the forfeiture of such award on such terms and conditions
as the Committee may determine.
(c) Forfeiture upon Termination of Employment. Unless
the applicable Plan agreement otherwise provides or the Committee otherwise
determines, (i) if a grantee's employment or other provision of service
terminates for any reason (including death) before all of his restricted stock
awards have vested, the unvested portion of such awards shall terminate and
expire upon such termination, and (ii) in the event any condition to the
vesting of restricted stock awards is not satisfied within the period of time
permitted therefor, such unvested shares shall be returned to the Company.
(d) Issuance of Shares. The Committee may provide that
one or more certificates representing restricted stock awards shall be
registered in the grantee's name and bear an appropriate legend specifying that
such shares are not transferable and are subject to the terms and conditions of
the Plan and the applicable Plan agreement, or that such certificate or
certificates shall be held in escrow by the Company on behalf of the grantee
until such shares vest or are forfeited, all on such terms and conditions as
the Committee may determine. Unless the applicable Plan agreement otherwise
provides, no share of restricted stock may be assigned, transferred, otherwise
encumbered or disposed of by the grantee until such share has vested in
accordance with the terms of such award. Subject to the provisions of Section
4.2, as soon as practicable after any restricted stock award shall vest, the
Company shall issue or reissue to the grantee (or to the grantee's designated
beneficiary in the event of the grantee's death) one or more certificates for
the Common Stock represented by such restricted stock award.
(e) Grantees' Rights Regarding Restricted Stock. Unless
the applicable Plan agreement otherwise provides: (i) a grantee may vote and
receive dividends on restricted stock awarded under the Plan; and (ii) any
stock received as a distribution with respect to a restricted stock award shall
be subject to the same restrictions as such restricted stock.
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14
ARTICLE 4. MISCELLANEOUS
4.1 Amendment of the Plan; Modification of Awards.
(a) Plan Amendments. The Board may, without stockholder
approval, at any time and from time to time suspend, discontinue or amend the
Plan in any respect whatsoever, except that no such amendment shall impair any
rights under any award theretofore made under the Plan without the consent of
the grantee of such award. Furthermore, except as and to the extent otherwise
permitted by Section 4.5 or 4.11, no such amendment shall, without stockholder
approval:
(i) materially increase the benefits accruing to
grantees under the Plan;
(ii) increase the maximum number of shares which
may be made subject to awards to an individual as options or
stock appreciation rights in any year;
(iii) materially increase, beyond the amounts set
forth in Section 1.5, the number of shares of Common Stock in
respect of which awards may be issued under the Plan;
(iv) materially modify the designation in Section
1.3 of the classes of persons eligible to receive awards under
the Plan;
(v) provide for the grant of stock options or
stock appreciation rights having an option exercise price or
appreciation base per share of Common Stock less than 100
percent of the fair market value of a share of Common Stock on
the date of grant; or
(vi) extend the term of the Plan beyond the period
set forth in Section 4.13.
(b) Award Modifications. Subject to the terms and
conditions of the Plan (including Section 4.1(a)), the Committee may amend
outstanding Plan agreements with such grantee, including, without limitation,
any amendment which would (i) accelerate the time or times at which an award
may vest or become exercisable and/or (ii) extend the scheduled termination or
expiration date of the award, provided, however, that no modification having a
material adverse effect upon the interest of a grantee in an award shall be
made without the consent of such grantee.
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15
4.2 Restrictions.
(a) Consent Requirements. If the Committee shall at any
time determine that any Consent (as hereinafter defined) is necessary or
desirable as a condition of, or in connection with, the granting of any award
under the Plan, the acquisition, issuance or purchase of shares or other rights
hereunder or the taking of any other action hereunder (each such action being
hereinafter referred to as a "Plan Action"), then such Plan Action shall not be
taken, in whole or in part, unless and until such Consent shall have been
effected or obtained to the full satisfaction of the Committee. Without
limiting the generality of the foregoing, the Committee shall be entitled to
determine not to make any payment whatsoever until Consent has been given if
(i) the Committee may make any payment under the Plan in cash, Common Stock or
both, and (ii) the Committee determines that Consent is necessary or desirable
as a condition of, or in connection with, payment in any one or more of such
forms.
(b) Consent Defined. The term "Consent" as used herein
with respect to any Plan Action means (i) any and all listings, registrations
or qualifications in respect thereof upon any securities exchange or other
self-regulatory organization or under any federal, state or local law, rule or
regulation, (ii) the expiration, elimination or satisfaction of any
prohibitions, restrictions or limitations under any federal, state or local
law, rule or regulation or the rules of any securities exchange or other
self-regulatory organization, (iii) any and all written agreements and
representations by the grantee with respect to the disposition of shares, or
with respect to any other matter, which the Committee shall deem necessary or
desirable to comply with the terms of any such listing, registration or
qualification or to obtain an exemption from the requirement that any such
listing, qualification or registration be made, and (iv) any and all consents,
clearances and approvals in respect of a Plan Action by any governmental or
other regulatory bodies or any parties to any loan agreements or other
contractual obligations of the Company or any Affiliate.
4.3 Nontransferability. No award granted to any grantee
under the Plan or under any Plan agreement shall be assignable or transferable
by the grantee other than by will or the laws of descent and distribution or
pursuant to a qualified domestic relations order as defined by the Code or
Title I of the Employee Retirement Income Security Act, as amended, or the
rules thereunder. During the lifetime of the grantee, all rights with respect
to any award granted to the grantee under the Plan or under any Plan agreement
shall be exercisable only by the grantee.
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16
4.4 Withholding Taxes.
(a) Whenever under the Plan shares of Common Stock are to
be delivered pursuant to an award, the Committee may require as a condition of
delivery that the grantee remit an amount sufficient to satisfy all federal,
state and other governmental withholding tax requirements related thereto.
Whenever cash is to be paid under the Plan (whether upon the exercise of a
stock appreciation right or otherwise), the Company may, as a condition of its
payment, deduct therefrom, or from any salary or other payments due to the
grantee, an amount sufficient to satisfy all federal, state and other
governmental withholding tax requirements related thereto or to the delivery of
any shares of Common Stock under the Plan.
(b) Without limiting the generality of the foregoing, (i)
a grantee may elect to satisfy all or part of the foregoing withholding
requirements by delivery of unrestricted shares of Common Stock owned by the
grantee for at least six months (or such other period as the Committee may
determine) having a fair market value (determined as of the date of such
delivery by the grantee) equal to all or part of the amount to be so withheld,
provided that the Committee may require, as a condition of accepting any such
delivery, the grantee to furnish an opinion of counsel acceptable to the
Committee to the effect that such delivery would not result in the grantee
incurring any liability under Section 16(b) of the Act and (ii) the Committee
may permit any such delivery to be made by withholding shares of Common Stock
from the shares otherwise issuable pursuant to the award giving rise to the tax
withholding obligation (in which event the date of delivery shall be deemed the
date such award was exercised).
4.5 Adjustments Upon Changes in Capitalization. If and
to the extent specified by the Committee, the number of shares of Common Stock
which may be issued pursuant to awards under the Plan, the maximum number of
options and/or unrelated stock appreciation rights which may be granted to any
one person in any year, the number of shares of Common Stock subject to awards,
the 2 percent limitation on the number of shares of Common Stock which may vest
in respect of restricted stock awards under Section 1.5(a) above, the option
exercise price and appreciation base of options and stock appreciation rights
theretofore granted under the Plan, and the amount payable by a grantee in
respect of an award, shall be appropriately adjusted (as the Committee may
determine) for any change in the number of issued shares of Common Stock
resulting from the subdivision or combination of shares of Common Stock or
other capital adjustments, or the payment of a stock dividend after the
effective date of the Plan, or other change in such shares of Common Stock
effected without receipt of consideration by the Company; provided that any
awards covering fractional shares of
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17
Common Stock resulting from any such adjustment shall be eliminated and
provided further, that each incentive stock option granted under the Plan shall
not be adjusted in a manner that causes such option to fail to continue to
qualify as an "incentive stock option" within the meaning of Code section 422.
Adjustments under this Section shall be made by the Committee, whose
determination as to what adjustments shall be made, and the extent thereof,
shall be final, binding and conclusive.
4.6 Right of Discharge Reserved. Nothing in the Plan or
in any Plan agreement shall confer upon any person the right to continue in the
employment of the Company or an Affiliate or affect any right which the Company
or an Affiliate may have to terminate the employment of such person.
4.7 No Rights as a Stockholder. No grantee or other
person shall have any of the rights of a stockholder of the Company with
respect to shares subject to an award until the issuance of a stock certificate
to him for such shares. Except as otherwise provided in Section 4.5, no
adjustment shall be made for dividends, distributions or other rights (whether
ordinary or extraordinary, and whether in cash, securities or other property)
for which the record date is prior to the date such stock certificate is
issued. In the case of a grantee of an award which has not yet vested, the
grantee shall have the rights of a stockholder of the Company if and only to
the extent provided in the applicable Plan agreement.
4.8 Nature of Payments.
(a) Any and all awards or payments hereunder shall be
granted, issued, delivered or paid, as the case may be, in consideration of
services performed for the Company or for its Affiliates by the grantee.
(b) No such awards and payments shall be considered
special incentive payments to the grantee or, unless otherwise determined by
the Committee, be taken into account in computing the grantee's salary or
compensation for the purposes of determining any benefits under (i) any
pension, retirement, life insurance or other benefit plan of the Company or any
Affiliate or (ii) any agreement between the Company or any Affiliate and the
grantee.
(c) By accepting an award under the Plan, the grantee
shall thereby waive any claim to continued exercise or vesting of an award or
to damages or severance entitlement related to noncontinuation of the award
beyond the period provided herein or in the applicable Plan agreement,
notwithstanding any contrary provision in any written employment contract with
the grantee,
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18
whether any such contract is executed before or after the grant date of the
award.
4.9 Non-Uniform Determinations. The Committee's
determinations under the Plan need not be uniform and may be made by it
selectively among persons who receive, or are eligible to receive, awards under
the Plan (whether or not such persons are similarly situated). Without
limiting the generality of the foregoing, the Committee shall be entitled,
among other things, to make non-uniform and selective determinations, and to
enter into non-uniform and selective Plan agreements, as to (a) the persons to
receive awards under the Plan, (b) the terms and provisions of awards under the
Plan, (c) the exercise by the Committee of its discretion in respect of the
exercise of stock appreciation rights pursuant to the terms of the Plan, and
(d) the treatment of leaves of absence pursuant to Section 2.7(c).
4.10 Other Payments or Awards. Nothing contained in the
Plan shall be deemed in any way to limit or restrict the Company, any Affiliate
or the Committee from making any award or payment to any person under any other
plan, arrangement or understanding, whether now existing or hereafter in
effect.
4.11 Reorganization.
(a) In the event that the Company is merged or
consolidated with another corporation and, whether or not the Company shall be
the surviving corporation, there shall be any change in the shares of Common
Stock by reason of such merger or consolidation, or in the event that all or
substantially all of the assets of the Company are acquired by another person,
or in the event of a reorganization or liquidation of the Company (each such
event being hereinafter referred to as a "Reorganization Event") or in the
event that the Board shall propose that the Company enter into a Reorganization
Event, then the Committee may in its discretion, by written notice to a
grantee, provide that any one or more of the following conditions shall apply:
(a) the options or stock appreciation rights shall become immediately
exercisable by any grantees who are employed by or provide services to the
Company or any of its Affiliates at the time of the Reorganization Event and
that such options or stock appreciation rights shall terminate if not exercised
prior to the date of the Reorganization Event or other prescribed period of
time, (b) the options or stock appreciation rights shall be assumed by the
successor entity or a parent of such successor entity or (c) substantially
equivalent options or stock appreciation rights shall be substituted by the
successor entity or a parent of such successor entity. The Committee also may
in its discretion by written notice to a grantee provide that all or some of
the restrictions on any of the
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19
grantee's awards may lapse in the event of a Reorganization Event upon such
terms and conditions as the Committee may determine.
(b) Whenever deemed appropriate by the Committee, the
actions referred to in Section 4.1 l(a) may be made conditional upon the
consummation of the applicable Reorganization Event.
4.12 Section Headings. The section headings contained
herein are for the purposes of convenience only and are not intended to define
or limit the contents of said sections.
4.13 Effective Date and Term of Plan.
(a) The Plan shall be deemed adopted and become effective
upon the approval thereof by the Board or such other date as the Board shall
determine, in each case subject to the approval of a majority of the Company's
shareholders.
(b) The Plan shall terminate upon the earlier of (i) 10
years after the earlier of the date on which it becomes effective or is
approved by the Company's shareholders, and no awards shall thereafter be made
under the Plan and (ii) such date as the Board shall determine.
Notwithstanding the foregoing, all awards made under the Plan prior to such
termination date shall remain in effect until such awards have been satisfied
or terminated in accordance with the terms and provisions of the Plan and the
applicable Plan agreement.
4.14 Governing Law. The Plan shall be governed by the
laws of the State of Delaware without giving effect to any choice of laws
provisions.
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1
EXHIBIT 5.1
2
To Call Writer Direct
312 861-2000
September 15, 1995
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 an offering pursuant to the Office Depot, Inc.
Omnibus Equity Plan (the "Plan") of up to 4,750,000 shares of the Company's
Common Stock, $0.01 par value (the "Registered Shares"), which were previously
registered under Registration No. 33-57511 in connection with the Office Depot,
Inc. Stock Option and Stock Appreciation Rights Plan.
Subject to the limitations stated in this letter, it is our
opinion that Registered Shares issued by the Company upon exercise of any
option duly authorized and granted under the Plan will upon such delivery and
receipt by the Company of all consideration owed to the Company under the terms
of that option and 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 issuance 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.
September 15, 1995
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 reports dated February 14, 1995,
appearing in and incorporated by reference in the Annual Report on Form 10-K of
Office Depot, Inc. for the year ended December 31, 1994.
Deloitte & Touche LLP
Fort Lauderdale, Florida
September 20, 1995
