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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): May 27, 1997
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OFFICE DEPOT, INC
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(Exact name of registrant as specified in its charter)
DELAWARE 59-2663954
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(State of other jurisdiction of incorporation) (IRS Employer Identification Number)
1-10948
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(Commission File Number)
2200 OLD GERMANTOWN ROAD, DELRAY BEACH, FLORIDA 33445
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (561) 278-4800
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ITEM 5. OTHER EVENTS.
On May 27, 1997, Office Depot, Inc. ("Office Depot"), Staples, Inc.
("Staples") and Marlin Acquisition Corp., a wholly-owned subsidiary of Staples
("Marlin") executed Amendment No. 2 (the "Second Amendment") to the Agreement
and Plan of Merger by and among Office Depot, Staples and Marlin dated as of
September 4, 1996 (the "Merger Agreement"), which modified the Merger Agreement
in two respects. First, Section 8.01(b) of the Merger Agreement was amended to
provide that either Office Depot or Staples may terminate the Merger Agreement
if the Merger of Marlin with and into Office Depot (the "Merger") has not been
consummated by June 30, 1997 (provided that the right to so terminate the Merger
Agreement will not be available to any party whose failure to fulfill any
obligation under the Merger Agreement has caused the failure of the Merger to
occur on or before such date); prior to such amendment, such termination right
would have arisen if the Merger had not been consummated by May 31, 1997.
Second, the Second Amendment established an additional termination right, which
provides that (i) either Office Depot or Staples may terminate the Merger
Agreement at any time during the period commencing upon the issuance of a ruling
on the Federal Trade Commission's (the "FTC") motion for a preliminary
injunction prohibiting consummation of the Merger (the "Preliminary Injunction
Motion") and ending at 11:59 p.m. (Eastern standard time) on the fourth full
business day following the day on which a written ruling on the Preliminary
Injunction Motion is first published, and (ii) neither Office Depot nor Staples
shall be obligated to consummate the Merger prior to the expiration of the
termination right set forth in the preceding clause (i). This four business day
period will provide each of Office Depot and Staples with the opportunity to
review the basis for any denial by the United States District Court for the
District of Columbia of the Preliminary Injunction Motion and to determine
whether it would be in the best interests of their respective stockholders to
consummate the Merger despite an appeal by the FTC of the Court's decision with
respect to the Preliminary Injunction Motion or the institution or possible
institution by the FTC of an administrative proceeding challenging the Merger. A
copy of the Second Amendment is attached as Exhibit 99.1 to this Current Report
on Form 8-K, and the foregoing summary is qualified in its entirety by reference
to such copy of the Second Amendment.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
OFFICE DEPOT, INC.
(Registrant)
Dated: May 30, 1997 By: /s/ Barry J. Goldstein
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Barry J. Goldstein
Executive Vice President--Finance,
Chief Financial Officer and Secretary
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INDEX TO EXHIBITS
Exhibit
Number
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99.1 Amendment No. 2 dated as of May 27, 1997 to Agreement and Plan of Merger dated
September 4, 1996 by and among Office Depot, Inc., Staples, Inc. and Marlin
Acquisition Corp.
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EXHIBIT 99.1
Amendment No. 2 to Agreement and Plan of Merger
This Amendment No. 2 dated as of May 27, 1997 to Agreement and Plan of
Merger dated as of September 4, 1996, as amended (the "Merger Agreement"),
among Staples, Inc. ("Staples"), Marlin Acquisition Corp. ("Sub") and Office
Depot, Inc. ("Office Depot").
WHEREAS, Staples, Sub and Office Depot desire to amend the Merger
Agreement upon the terms set forth below.
NOW, THEREFORE, for valuable consideration, the receipt of which is
hereby acknowledged, the parties agree as follows:
1. Section 8.01(b) of the Merger Agreement is hereby amended to read
in its entirety as follows:
"(b) by either Staples or Office Depot if the Merger shall
not have been consummated by June 30, 1997 (the "Outside Date"),
provided that the right to terminate this Agreement under this Section
8.01(b) will not be available to any party whose failure to fulfill any
obligation under this Agreement has been the cause of or resulted in
the failure of the Merger to occur on or before such date; or"
2. The following new Section 8.06 is hereby added to the Merger
Agreement immediately after Section 8.05:
"Section 8.06. Additional Termination Right. Notwithstanding
anything to the contrary in this Agreement, (i) Staples and Office
Depot shall each have the right to terminate this Agreement, by
written notice to the other, whether before or after approval of the
matters presented in connection with the Merger by the stockholders of
Office Depot or Staples, at any time during the period commencing upon
the issuance by the United States District Court for the District of
Columbia (the "District Court") in Civil Action No. 97-701 of its
ruling disposing of the FTC's motion for a preliminary injunction with
respect to the Merger and ending at 11:59 p.m. (Boston time) on the
fourth business day following the day on which the written ruling of
the District Court disposing of such motion is first published, and
(ii) neither Staples nor Office Depot shall be under any obligation to
effect the Merger prior to the expiration of the termination right set
forth in clause (i) of this Section 8.06."
3. Except as amended hereby, the Merger Agreement shall remain in full
force and effect in accordance with its terms.
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WHEREAS, Staples, Sub and Office Depot have caused this Amendment to be
signed by the respective officers thereunto duly authorized as of the date first
above written.
STAPLES, INC.
By: /s/ Thomas G. Sternberg
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MARLIN ACQUISITION CORP.
By: /s/ Thomas G. Sternberg
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OFFICE DEPOT, INC.
By: /s/ David L. Fuente
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