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As filed with the Securities and Exchange Commission on September 16, 1998
Registration No. 333-________
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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)
VIKING OFFICE PRODUCTS, INC. 1994 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
MR. BARRY J. GOLDSTEIN
OFFICE DEPOT, INC.
2200 OLD GERMANTOWN ROAD
DELRAY BEACH, FLORIDA 33445
(561) 438-4800
(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
par value per share 100,000 shares $21.375 $2,137,500 $630.56
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(1) Pursuant to Rule 416, this Registration Statement shall be deemed to
cover any additional shares of Common Stock which may be issuable
pursuant to the antidilution provisions of the plan.
(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
September 15, 1998.
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The purpose of this Registration Statement is to reflect the
registration of shares of common stock, $.01 par value, of Office Depot, Inc.
(the "Company") (the "Common Stock") to be offered pursuant to the Viking Office
Products, Inc. 1994 Employee Stock Purchase Plan (the "Plan").
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION BY REFERENCE
This Registration Statement relates to 100,000 shares of
Common Stock to be offered pursuant to the Plan.
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 27, 1997.
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.
Item 4. DESCRIPTION OF SECURITIES
Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
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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. 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
those circumstances in which indemnification is otherwise discretionary
under the Delaware law.
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.
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Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
Item 8. EXHIBITS
See "Index to Exhibits."
Item 9. UNDERTAKINGS
1. The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933,
each filing of the Registrant's 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 Registrant hereby undertakes (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.
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 Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has 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
Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant 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 Registrant 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
THE REGISTRANT. 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 15, 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 September 15, 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
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John C. Macatee
/s/ BARRY J. GOLDSTEIN Chief Financial Officer and Executive Vice
- -------------------------------- President-Finance (Principal Financial Officer)
Barry J. Goldstein
/s/ IRWIN HELFORD Vice Chairman and Director
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Irwin Helford
/s/ M. BRUCE NELSON Corporate Executive Officer and Director
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M. Bruce Nelson
/s/ LEE A. AULT, III Director
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Lee A. Ault, III
/s/ NEIL R. AUSTRIAN Director
- -------------------------------
Neil R. Austrian
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/s/ CYNTHIA R. COHEN Director
- ------------------------------
Cynthia R. Cohen
/s/ W. SCOTT HEDRICK Director
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W. Scott Hedrick
/s/ JAMES L. HESKETT Director
- ------------------------------
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
THE PLAN. Pursuant to the requirements of the Securities Act
of 1933, the Plan Administrator 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 15, 1998.
By: /s/ DAVID I. FUENTE
---------------------------
David I. Fuente
Compensation Committee
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INDEX TO EXHIBITS
SEQUENTIALLY
EXHIBIT NUMBERED
NO. DESCRIPTION OF EXHIBIT PAGE
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4.1 Viking Office Products, Inc. 1994 Employee Stock Purchase Plan 8
5.1 Opinion of Kirkland & Ellis 18
23.1 Independent Auditors' Consent 20
23.2 Consent of Kirkland & Ellis (contained in their opinion ------
filed as Item 5.1)
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EXHIBIT 4.1
VIKING OFFICE PRODUCTS, INC.
1994 EMPLOYEE STOCK PURCHASE PLAN
RESTATED AS OF SEPTEMBER 16, 1998
1. PURPOSE.
This Viking Office Products, Inc. 1994 Employee Stock Purchase
Plan (the "Plan") is intended as an incentive to encourage stock ownership by
employees of Viking Office Products, Inc., a California corporation ("Viking")
which is a wholly owned subsidiary of Office Depot, Inc., a Delaware corporation
("Office Depot"), and Subsidiaries which it may have from time to time (Viking
and its Subsidiaries together being referred to herein as the "Company"), so
that they may acquire a proprietary interest, or increase their proprietary
interest, in the Company through ownership of stock of Office Depot and to
encourage them to remain in the employ of the Company and its Subsidiaries.
"Subsidiary" shall mean each corporation which (i) is or becomes a "subsidiary
corporation" of Viking, within the definition contained in Section 424(f) of the
Internal Revenue Code of 1986, as amended (the "Code"), (ii) conducts its
principal business operations in the United States, and (iii) is designated to
have its employees participate in this Plan by the Committee (as defined below).
It is further intended that the Plan qualify as an "employee stock purchase
plan" within the meaning of Section 423 of the Code.
2. ADMINISTRATION.
2.1 The Plan shall be administered by the Compensation
Committee (the "Committee") of Office Depot's Board of Directors (the "Board").
The Committee shall select one of its members as Chairman and shall act by vote
of a majority of a quorum or by unanimous written consent. A majority of its
members shall constitute a quorum. The Committee shall be governed by the
provisions of Office Depot's Bylaws and of Delaware law applicable to the Board,
except as otherwise provided herein or determined by the Board.
2.2 The Committee shall have full and complete authority, in
its discretion, but subject to the express provisions of the Plan: to designate
which corporations shall be "Subsidiaries" under this Plan, to determine when
the first offering shall be made; to determine the aggregate number of shares of
common stock, $.01 par value, of Office Depot ("Common Stock"), to be made
available for each offering, and to adopt such rules and regulations and to make
all other interpretations, constructions or determinations deemed necessary or
desirable for the administration of the Plan in its discretion. All
interpretations and constructions of the Plan by the Committee, and all of its
actions hereunder, shall be binding and conclusive on all persons for all
purposes.
2.3 The Company hereby agrees to indemnify and hold harmless
each Committee member and each employee of the Company, and the estate and heirs
of such Committee member or employee, against all claims, liabilities, expenses,
penalties, damages or other pecuniary losses, including legal fees, which such
Committee member or employee or his or her estate or heirs may suffer as a
result of his or her responsibilities, obligations or duties in connection with
the Plan, to the extent that insurance, if any, does not cover the payment of
such items.
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3. ELIGIBILITY.
3.1 Each regular full-time U.S. employee of the Company shall
be eligible to participate in the Plan, provided such employee has been employed
continuously by the Company for at least 90 days as of the Effective Date or any
subsequent Offering Date (in each case as defined in paragraph 4 below).
3.2 The term "employee" shall have the same meaning as the
term "employee" as defined in Treasury Regulation Section 1.421-7(h), and shall
include officers, directors who are also employees and employees on Participant
Leaves of Absence (as defined in paragraph 22), but shall exclude employees
whose customary employment is for less than 20 hours per week or for less than
five months in any calendar year.
3.3 Any provision of the Plan to the contrary notwithstanding,
no employee shall be granted an award:
(a) if, immediately after the grant, such employee would
own stock, and/or hold outstanding options to
purchase stock, possessing 5% or more of the total
combined voting power or value of all classes of
stock of Office Depot or of any subsidiary or parent
of Office Depot, determinations of employee stock
ownership being made for this purpose in accordance
with Section 424(d) of the Code; or
(b) which permits such employee's rights to purchase
stock under all employee stock purchase plans (within
the meaning of Section 423 of the Code) of Office
Depot or of any subsidiary or parent of Office Depot
to accrue at a rate which exceeds $25,000 in fair
market value of such stock (determined at the time
the award is made) for each calendar year in which
such award would be outstanding at any time, within
the meaning of Section 423(b)(8) of the Code.
4. OFFERING DATES.
The Plan will be implemented by a continuous series of
offerings, each of which shall commence on the first business day after the
completion of the immediately prior offering (the "Offering Date") and shall
terminate six months after the applicable Offering Date (the "Termination
Date"). The first offering shall be made as soon after shareholder approval of
the Plan as is determined by the Committee in its sole discretion (the
"Effective Date"). No offering shall be made if in the opinion of the Committee,
the Common Stock available under the Plan has been so substantially exhausted as
to make an offering to all eligible employees impractical under the Plan.
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5. PARTICIPATION.
An eligible employee may become a participant by completing
and filing an authorization for a payroll deduction on the form provided by the
Committee. Payroll deductions shall become effective on the first Offering Date
after a participant has filed an authorization and shall terminate upon the
earlier to occur of (i) the participant's request to have payroll deductions
discontinued, as set forth in paragraph 6.3, or (ii) the ceasing for any reason
of the participant to meet the eligibility requirements of paragraph 3, in which
event the provisions of paragraph 9.2 shall apply. Each participant will receive
an award on each Offering Date, and all participants will have the same rights
and privileges under the Plan.
6. PAYROLL DEDUCTIONS.
6.1 At the time a participant files an authorization for a
payroll deduction, he or she shall elect to have deductions made from his or her
Annualized Base Pay, as hereinafter defined, on each payday during the time he
or she is a participant. The minimum deduction permitted hereunder shall be
$5.00 per week, and the maximum deduction shall be 10% of the participant's
Annualized Base Pay. For purposes of the Plan, the term "Annualized Base Pay"
shall mean the participant's current annualized base pay from the Company
(excluding overtime and all other extra compensation such as bonuses and
contributions to pension, profit sharing, health and life insurance and other
plans).
6.2 All payroll deductions made for a participant shall be
credited to his or her account under the Plan and held with other Company funds.
A participant may not make any separate cash payment into such account, except
as provided in paragraph 22.
6.3 A participant may elect to have payroll deductions
completely discontinued at any time, but an election to discontinue payroll
deductions during an offering shall be deemed to be an election to withdraw
pursuant to paragraph 9.1. No change in payroll deductions other than complete
discontinuance can be made during an offering, and, specifically, once an
offering has commenced, a participant may not alter the rate of his or her
payroll deductions for such offering.
7. GRANTING OF AWARDS.
7.1 On each Offering Date, the Committee shall determine the
number of available shares of Common Stock which will be sold to participants in
such offering. On each Offering Date, each participant shall be granted an award
to purchase up to that number of available shares which is equal to the total
number of available shares for such offering multiplied by a fraction, the
numerator of which is the amount of payroll deductions from such participant's
Annualized Base Pay authorized by such participant for the offering period
beginning on such Offering Date, and the denominator of which is the total
amount of payroll deductions from the
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Annualized Base Pay of all participants authorized by such participants for the
offering period beginning on such Offering Date. The purchase price of each such
share shall be the lower of:
(a) 85% of the fair market value per share of the Common
Stock on the Offering Date, or
(b) 85% of the fair market value per share of the Common
Stock on the Termination Date.
7.2 The fair market value of a share of Common Stock shall be
equal to the closing price of the Common Stock for the last preceding day on
which Office Depot's shares were traded, and the method for determining the
closing price shall be determined by the Committee.
8. EXERCISE OF AWARDS.
8.1 Unless a participant gives written notice to the Committee
as hereinafter provided, the participant's award will be exercised automatically
for such participant on the Termination Date for the purchase of as many full
shares of Common Stock (no fractional shares shall be issued under this Plan) as
the accumulated payroll deductions in such participant's account at that time
will purchase at the applicable purchase price (but not to exceed the maximum
number of shares subject to the award), and such shares shall be credited to the
participant's account at such time. The amount remaining in the account of a
participant after the exercise in full of an award shall be carried forward in
the participant's account and be available for the next succeeding offering to
the extent such remaining amount is attributable to fractional shares; such
remaining amount shall be refunded to the participant to the extent it exceeds
the amount attributable to fractional shares.
8.2 No participant may purchase during any calendar year
Common Stock under this and all other employee stock purchase plans (within the
meaning of Section 423 of the Code) of Office Depot having a fair market value
(determined at the time the award is made) in excess of $25,000. When a
participant has purchased the maximum amount of stock which may be purchased in
any calendar year, all amounts credited to such participant's account under the
Plan in excess of the amount applied to the purchase of such stock shall be
returned to the participant, payroll deductions for the participant shall cease
and the participant shall be ineligible to participate in any additional
offering during such calendar year.
8.3 Upon a participant's death, his beneficiary (or executor
or administrator, as determined under paragraph 12) shall have the right to
elect, by written notice given to the Committee before the earlier of the
Termination Date of the current offering or the expiration of a period of 60
days beginning with the date of the participant's death, either to:
(a) withdraw all of the payroll deductions previously
credited to the participant's account, or
(b) apply to the exercise of the participant's award any
amount in such participant's account as of the date
of his death, and thereby purchase
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Common Stock on the Termination Date next following
the date of the participant's death, with any excess
payroll deductions in such account being returned to
such beneficiary (or other person entitled thereto
under paragraph 12) without interest.
If the Committee does not receive any such written notice of election within the
time specified in this paragraph 8.3, the beneficiary (or executor or
administrator, as determined under paragraph 12) shall be deemed to have
automatically elected to exercise the participant's award pursuant to
subparagraph (b) of this paragraph 8.3.
9. WITHDRAWAL.
9.1 By written notice to the Committee at any time during any
offering, a participant may elect to withdraw all the accumulated payroll
deductions in such participant's account as of the Termination Date of such
offering, without interest. A participant shall be deemed to have elected to
make such a withdrawal if such participant elects to discontinue payroll
deductions completely during an offering as described in paragraph 6.3. A
participant who withdraws all or any part of the amount credited to such
participant's account during an offering, or who elects to discontinue payroll
deductions completely during an offering under paragraph 6.3, shall be deemed to
have given notice of his or her intention to cease to be a participant for that
offering and any succeeding offerings, and all payroll deductions under the Plan
with respect to such participant shall be discontinued; provided, however, that
such participant may become a participant in any succeeding offering for which
he or she is otherwise eligible in accordance with the Plan, if the participant
files with the Committee a new authorization for payroll deductions in
accordance with paragraph 5.
9.2 Upon the ceasing of a participant to meet the eligibility
requirements of paragraph 3, or the termination of the participant's employment
for any reason, including retirement, except as provided in paragraph 8.3, he or
she shall immediately cease to be a participant, any award which he or she may
have been granted under the Plan shall immediately expire and shall not be
exercised, and the payroll deductions and shares previously credited to his or
her account shall be returned to him or her within 30 days after such cessation
or termination, without interest.
10. DELIVERY.
As promptly as practicable after each Termination Date, the
Company will deliver to each participant, as appropriate, any Common Stock
purchased upon the exercise of his or her award and any cash to which he or she
may be entitled.
11. STOCK.
11.1 The stock to be sold to participants under the Plan shall
be Common Stock of Office Depot. The maximum number of shares of Common Stock
which shall be made available for sale under the Plan during all offerings under
the Plan shall be 720,000 shares, subject to adjustment upon changes in
capitalization of Office Depot as provided in paragraph 15; provided
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however, that the maximum number of shares of Common Stock which shall be made
available for sale under the Plan on and after September 16, 1998 is 100,000
shares.
11.2 Stock to be delivered to a participant under the Plan
will be registered in the name of the participant.
11.3 No participant will have any interest in stock covered by
an award until such award has been exercised. Any shares which are subject to
sale pursuant to an award made under the Plan but which are not purchased on the
Termination Date of the related offering shall be available for sale pursuant to
awards made in subsequent offerings under the Plan.
12. DESIGNATION OF BENEFICIARY.
A participant may file with the Committee, and change from
time to time, a written designation of a beneficiary who is to receive any
payroll deductions and shares of Common Stock credited to the participant's
account under the Plan in the event of such participant's death. Upon receipt by
the Committee at the participant's death of proof of the identity and existence
of a beneficiary validly designated by the participant under the Plan, Office
Depot shall deliver such Common Stock and cash to such beneficiary. In the event
of the death of a participant who has not filed a written designation of a
beneficiary, Office Depot shall deliver such cash and Common Stock to the
executor or administrator of the estate of the participant, or, if no such
executor or administrator has been appointed (to the knowledge of the
Committee), at the direction of the Committee acting in its discretion, to the
spouse or to any one or more dependents or relatives of the participant, or, if
no spouse, dependent, or relative is known to the Committee, to such other
person as the Committee may designate. No designated beneficiary shall, prior to
the death of the participant, acquire any interest in the cash or Common Stock
credited to a participant's account under the Plan.
13. TRANSFERABILITY.
Neither awards, payroll deductions credited to a participant's
account nor any rights to receive Common Stock under the Plan may be assigned,
transferred, pledged, or otherwise disposed of in any way by the participant,
except that payroll deductions and shares credited to a participant's account
shall be transferable by will or the laws of descent and distribution or as
provided by paragraph 12. Any attempted assignment, transfer, pledge or other
disposition prohibited by the preceding sentence shall be without effect, except
that the Company may treat such act as an election to withdraw funds in
accordance with paragraph 9.
14. USE OF FUNDS.
All payroll deductions received or held by the Company under
the Plan may be used by the Company for any corporate purpose, and the Company
shall not be obligated to segregate such payroll deductions.
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15. CHANGES IN CAPITALIZATION.
15.1 The number and class of shares of stock covered by each
outstanding award, the purchase price per share thereof, and the maximum number
and class of shares of stock issuable upon exercise of all awards under the Plan
shall be proportionately adjusted in the event of any increase or decrease in
the number of the issued shares of Common Stock of Office Depot which results
from a split-up or consolidation of shares, payment of a stock dividend or
dividends exceeding a total of 5% for which the record dates occur in any one
fiscal year, a recapitalization (other than the conversion of convertible
securities according to their terms), a combination of shares or other like
capital adjustment, so that upon exercise of the award, the participant shall
receive the number and class of shares such participant would have received had
such participant been the holder of the number of shares of Common Stock for
which the award is being exercised upon the date of such change or increase or
decrease in the number of issued shares of Office Depot. If any adjustment
hereunder would create a fractional share or a right to acquire a fractional
share, such fractional share shall be disregarded and the number of shares
available under this Plan or the number of shares to which any optionee is
entitled shall be the next lower number of whole shares, rounding all fractions
downward.
15.2 Upon a reorganization, merger or consolidation of Office
Depot with one or more corporations as a result of which Office Depot is not the
surviving corporation or in which Office Depot survives as a wholly-owned
subsidiary of another corporation, or upon a sale of all or substantially all of
the property of Office Depot to another corporation, or any dividend or
distribution to shareholders of more than ten percent (10%) of Office Depot's
assets, adequate adjustment or other provisions shall be made by Office Depot or
other party to such transaction so that there shall remain and/or be substituted
for the Common Stock subject to each award, the shares, securities, cash or
assets which would have been issuable in respect of such award, as if the
participant had been the owner of such Common Stock as of the applicable date.
Any shares, securities, cash or assets so substituted shall be subject to
similar successive adjustments.
16. SECURITIES REGISTRATION.
16.1 If Office Depot shall deem it necessary to register under
the Securities Act of 1933, as amended (the "Securities Act"), or other
applicable statutes any shares with respect to which an award shall have been
made, then Office Depot will use reasonable efforts to maintain the
effectiveness of a Registration Statement under the Securities Act before
delivery of such shares. If the shares of stock of Office Depot shall be listed
on any national securities exchange at the time of exercise of any award, then
whenever required, Office Depot shall make prompt application for the listing on
such stock exchange of such shares, at the sole expense of Office Depot.
16.2 Notwithstanding any other provision of this Plan or any
award hereunder, Office Depot shall be under no obligation to issue shares under
the Plan while, in the opinion of its counsel, any applicable legal requirement
for the issuance of such shares may not be satisfied, including but not limited
to the requirements of the Securities Act and Delaware or other state securities
laws. Office Depot shall use its best efforts to satisfy all such applicable
legal requirements. If any shares are issued upon exercise of an award under the
Plan without registration under the Securities Act, then the award shares shall
bear a suitable restrictive legend and the
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acceptance of such Award Shares shall be subject to the execution of an
investment letter by the participant, in form and substance satisfactory to the
Committee.
17. AMENDMENT OR TERMINATION.
The Board may at any time terminate or amend the Plan. No such
termination shall affect awards previously made, nor may an amendment make any
change in any award theretofore granted which would adversely affect the rights
of any participant, nor may an amendment be made without prior approval of the
shareholders of Office Depot if such amendment would:
(a) Permit the sale of more shares of Common Stock than
are authorized under paragraph 11 of the Plan;
(b) Effect any change in the designation of eligible
employees under paragraph 3 of the Plan; or
(c) Materially increase the benefits accruing to
participants under the Plan.
18. APPLICATION OF PROCEEDS.
Proceeds from the sale of award shares shall constitute a part
of the general funds of Office Depot.
19. SUCCESSORS IN INTEREST.
The provisions of this Plan and the actions of the Committee
shall be binding on all heirs and successors of the Company, Office Depot and
each participant.
20. WITHHOLDING TAXES.
Office Depot and the Company shall have the right at the time
of purchase of any shares of Common Stock hereunder to make adequate provision
for any federal, state, local or foreign taxes which it believes are or may be
required by law to be withheld with respect to such purchase, to ensure the
payment of any such taxes, including by withholding from the participant's
salary.
21. CONTINUED EMPLOYMENT.
This Plan and awards hereunder shall not impose any obligation
on Office Depot or the Company to continue to employ any participant. Moreover,
no provision of this Plan or any document executed or delivered pursuant hereto
shall be deemed modified in any way by any employment contract between a
participant (or other employee) and the Company.
9
22. LEAVES OF ABSENCE.
22.1 For purposes of participation in this Plan, a person on
leave of absence shall be deemed to be an employee for the first 90 days of such
leave of absence, or, if longer, the period for which the participant's
reemployment is guaranteed by statute (a "Participant Leave Of Absence"). Such
employee's employment for all purposes of this Plan, and such employee's
participation in this Plan and right to exercise any award, shall be deemed to
have terminated at the close of business on the last day of such Participant
Leave Of Absence and the provisions of paragraph 6.3 shall apply, unless such
employee returns to employment (as defined in paragraph 3.2) before the close of
business on such last day. Termination by the Company of any employee's leave of
absence, other than termination of such leave of absence on return to employment
(as defined in paragraph 3.2), shall terminate such employee's employment for
all purposes of this Plan, and shall terminate such employee's participation in
the Plan and right to exercise any award, and the provisions of paragraph 6.3
shall apply.
22.2 While a participant is on a Participant Leave Of Absence
treated as employment under the provisions of paragraph 22.1, such participant
shall have the right to continue participation in the Plan, and to apply to the
exercise of awards (i) any amounts in such participant's account as of the
commencement of such Participant Leave Of Absence, (ii) any amounts which the
participant authorizes the Company to deduct from any payments made by the
Company to such participant during such Participant Leave Of Absence, and (iii)
any amounts paid by the participant to the Company to the extent that the
amounts set forth in clauses (i) and (ii) of this sentence are less than the
amounts such participant could have had deducted from his Annualized Base Pay if
he had actually worked for the Company during the period of his Participant
Leave Of Absence.
23. TERM OF PLAN.
This Plan was adopted by the Board as of September 29, 1994,
shall be effective upon approval by the shareholders of Viking and shall
terminate on March 31, 2000. No award shall be made under the Plan after such
termination, but awards made prior thereto shall be unaffected by such
termination.
24. GOVERNING LAW.
The Plan shall be construed in accordance with, and governed
by, the laws of the State of Delaware.
25. RELATIONSHIP TO OTHER EMPLOYEE BENEFIT PLANS.
The excess of the fair market value of Common Stock purchased
hereunder on its date of purchase over the amount actually paid for such Common
Stock hereunder shall not be deemed to be salary or other compensation to any
participant for purposes of any pension, thrift, profit-sharing, stock option or
any other employee benefit plan now maintained or hereafter adopted by Office
Depot or its subsidiaries.
10
26. OTHER DOCUMENTS.
All documents prepared, executed or delivered in connection
with this Plan shall be, in substance and form, as established and modified by
the Committee or by persons under its direction and supervision; provided,
however, that all such documents shall be subject in every respect to the
provisions of this Plan, and in the event of any conflict between the terms of
any such document and this Plan, the provisions of this Plan shall prevail.
27. NOTICES.
All notices or other communications by a participant to the
Committee under or in connection with the Plan shall be deemed to have been duly
given when received in the form specified by the Committee at the location or by
the person designated by the Committee for the receipt thereof.
28. SEVERABILITY.
If any of the provisions of the Plan shall be held invalid,
the remainder of the Plan shall not be affected thereby.
IN WITNESS WHEREOF, this document has been executed as of the
16th day of September, 1998.
VIKING OFFICE PRODUCTS, INC.
By:
/s/ M. BRUCE NELSON
-----------------------------------
M. Bruce Nelson
Corporate Executive Officer
OFFICE DEPOT, INC.
By:
/s/ DAVID I. FUENTE
-----------------------------------
David I. Fuente
Chief Executive Officer
1
EXHIBIT 5.1
To Call Writer Direct
312 861-2000
September 16, 1998
Office Depot, Inc.
2200 Old Germantown Road
Delray Beach, FL 33445
Ladies and Gentlemen:
We have acted as counsel to Office Depot, Inc. (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 100,000 shares of the Company's Common Stock,
$0.01 par value (the "Registered Shares") pursuant to the Viking Office
Products, Inc. 1994 Employee Stock Purchase Plan, as amended (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 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.
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.
2
Office Depot, Inc.
September 16, 1998
Page 2
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
1
EXHIBIT 23.1
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 12, 1998 appearing
in the Annual Report on Form 10-K of Office Depot, Inc. for the year ended
December 27, 1997.
/s/ DELOITTE & TOUCHE LLP
Certified Public Accountants
Miami, Florida
September 14, 1998
