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As filed with the Securities and Exchange Commission on June 7, 1999.
Registration No. ________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
OFFICE DEPOT, INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 59-2663954
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
2200 OLD GERMANTOWN ROAD
DELRAY BEACH, FLORIDA 33445
(Address of Principal Executive Offices)
OFFICE DEPOT, INC.
1999 EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plan)
DAVID C. FANNIN Telephone number,
SENIOR VICE PRESIDENT, GENERAL including area code,
COUNSEL & CORPORATE SECRETARY of agent for service:
2200 OLD GERMANTOWN ROAD (561) 438-4800
DELRAY BEACH, FLORIDA 33445
(Name and Address of Agent For Service)
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CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered(1) Per Share(2) Price(2) Fee
- --------------------------------------------------------------------------------
Common Stock,
par value $0.01
per share 1,125,000 Shares $21.125 $23,765,625 $6607.00
================================================================================
1 An undetermined number of additional shares may be issued if the anti-
dilution adjustment provisions of the plan becomes operative.
2 Estimated solely for the purpose of calculating the registration fee in
accordance with Rules 457(c) and (h) under the Securities Act of 1933 on the
basis of the average of the high and low prices of the Common Stock as quoted
on the New York Stock Exchange on June 2, 1999.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
---------------------------------------
The following documents, which have been filed by Office
Depot, Inc. (the "Company") with the Securities and Exchange Commission pursuant
to the Securities Exchange Act of 1934, as amended (the "1934 Act"), are
incorporated by reference into this Registration Statement:
(1) The Annual Report of the Company on Form 10-K for the year
ended December 26, 1998.
(2) The Quarterly Report of the Company on Form 10-Q for the
quarter ended March 27, 1999.
(3) The description of the Company's Common Stock contained in
the Company's Registration Statement on Form 8-A filed with the Commission
pursuant to Section 12 of the 1934 Act.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the 1934 Act, after the effective date of
this Registration Statement and prior to the filing of a post-effective
amendment that indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof from the date of filing of such documents (such documents, and the
documents enumerated above, being hereinafter referred to as "Incorporated
Documents"); provided, however, that the documents enumerated above or
subsequently filed by the registrant pursuant to Section 13(a), 13(c), 14 and
15(d) of the 1934 Act in each year during which the offering made by this
Registration Statement is in effect prior to the filing with the Commission of
the registrant's Annual Report on Form 10-K covering such year shall not be
Incorporated Documents or be incorporated by reference in this Registration
Statement or be a part hereof from and after the filing of such Annual Report on
Form 10-K.
Any statement contained in an Incorporated Document shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any other subsequently
filed Incorporated Document modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
-------------------------
The securities to be offered are registered under Section
12(b) of the 1934 Act.
Item 5. Interest of Named Experts and Counsel.
-------------------------------------
None.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
Section 145 of the Delaware General Corporation Law and the
Amended and Restated By-laws of the Company provide for indemnification of
directors and officers for expenses (including reasonable amounts paid in
settlement) incurred in defending actions brought against them.
The Company's Restated Certificate of Incorporation, as
amended, contains a provision that eliminates, to the fullest extent permitted
by Delaware law, the personal liability of each director of the Company to the
Company and its stockholders for monetary damages for certain breaches of
fiduciary duty. This provision does not affect the director's liability for
monetary damages for breaches of the duty of loyalty, actions or omissions not
in good faith, knowing violation of law or intentional misconduct, willful or
negligent conduct in approving an unlawful dividend, stock repurchase or
redemption or obtaining any improper personal benefit.
The Company maintains directors and officers liability
insurance covering all directors and officers of the Company against claims
arising out of the performance of their duties.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not applicable.
Item 8. Exhibits.
--------
Reference is made to the Exhibit Index.
Item 9. Undertakings.
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The registrant hereby undertakes:
(1) 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.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, as amended (the "1933 Act"), 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.
(3) That, for the purposes of determining any liability under
the 1933 Act, each filing of the registrant's annual report pursuant to Section
13(a) or Section 15(d) of the 1934 Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the 1934 Act)
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.
(4) 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.
(5) Insofar as indemnification for liabilities arising under
the 1933 Act may be permitted to directors, officers and controlling persons of
the registrant pursuant to the provisions described in Item 6 or otherwise, the
registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the 1933 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 its 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 1933 Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the undersigned registrant certifies that it has reasonable grounds to
believe that it meets all of the 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 the 2nd day of June, 1999.
OFFICE DEPOT, INC.
By: /s/ David I. Fuente
--------------------------------
David I. Fuente, Chairman and
Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of Office Depot,
Inc., hereby severally constitute David I. Fuente and David C. Fannin and each
of them singly, our true and lawful attorneys with full power to them, and each
of them singly, to sign for us and in our names in the capacities indicated
below, the Registration Statement on Form S-8 filed herewith and any and all
amendments (including post-effective amendments) to said Registration Statement,
and generally to do all such things in our name and behalf in the capacities
indicated below to enable Office Depot, Inc. to comply with the provisions of
the Securities Act of 1933, as amended, and all requirements of the Securities
and Exchange Commission, hereby ratifying and confirming our signatures as they
may be signed by our said attorneys, or any of them, to said Registration
Statement and any and all amendments thereto.
Pursuant to the Securities Act of 1933, as amended, this
Registration Statement has been signed by the following persons in the
capacities indicated on the 2nd day of June, 1999.
Signature Title
--------- -----
/s/ David I. Fuente Chairman of the Board and Chief Executive
David I. Fuente Officer (Principal Executive Officer)
/s/ Irwin Helford Vice Chairman and Director
Irwin Helford
/s/ John C. Macatee Director, President and Chief Operating
John C. Macatee Officer
/s/ M. Bruce Nelson Corporate Executive Officer and Director
M. Bruce Nelson
/s/ Barry J. Goldstein Executive Vice President - Finance, Chief
Barry J. Goldstein Financial Officer and Treasurer
(Principal Financial Officer)
/s/ Charles E. Brown Senior Vice President - Finance and
Charles E. Brown Controller (Principal Accounting Officer)
Lee A. Ault, III Director
Lee A. Ault, III
/s/ Neil A. Austrian Director
Neil A. Austrian
/s/ Cynthia R. Cohen Director
Cynthia R. Cohen
/s/ W. Scott Hedrick Director
W. Scott Hedrick
/s/ James L. Heskett Director
James L. Heskett
/s/ Michael J. Myers Director
Michael J. Myers
/s/ Frank P. Scruggs, Jr. Director
Frank P. Scruggs, Jr.
/s/ Peter J. Solomon Director
Peter J. Solomon
EXHIBIT INDEX
Exhibit Number Description
- -------------- -----------
4.3 Restated Certificate of Incorporation, as amended
(incorporated herein by reference to the respective
exhibit to the Registrant's Form 10-Q for the quarterly
period ended September 26, 1998).
4.4 By-Laws of the Registrant as currently in effect
(incorporated herein by reference to the respective
exhibit to Registrant's Form 10-Q filed with the
Commission on August 12, 1996).
5* Opinion (including consent) of McDermott, Will & Emery.
23.1* Consent of Deloitte & Touche LLP.
23.2* Consent of McDermott, Will & Emery (included in
Exhibit 5).
24* Power of Attorney (included on signature page).
*Filed herewith.
McDermott, Will & Emery
227 West Monroe Street
Chicago, Illinois 60606
June 2, 1999
Office Depot, Inc.
2200 Old Germantown Road
Delray Beach, Florida 33445
Re: Office Depot, Inc. 1999 Employee Stock Purchase Plan (the "Plan")
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Ladies and Gentlemen:
We have acted as counsel for Office Depot, Inc. (the "Company") in
connection with the preparation and filing of a Registration Statement on Form
S-8 (the "Registration Statement") for the registration under the Securities Act
of 1933, as amended, of 1,125,000 shares of the Company's Common Stock, $0.01
par value (the "Common Stock"), which may be purchased pursuant to the Plan.
We have examined such documents as we have considered necessary and
have conferred with various officers of the Company and have ascertained or
verified, to our satisfaction, such additional facts as we deemed necessary or
appropriate for the purposes of this opinion.
Based on the foregoing, we are of the opinion that all legal and
corporate proceedings necessary for the authorization, issuance and delivery of
the shares of Common Stock under the Plan have been duly taken, and the related
Common Stock, upon issuance pursuant to the terms of the Plan will be duly
authorized, legally and validly issued, fully paid and nonassessable.
We hereby consent to all references to our Firm in the Registration
Statement and to the filing of this opinion by the company as an Exhibit to the
Registration Statement.
Very truly yours,
/s/ McDermott, Will & Emery
McDermott, Will & Emery
EXHIBIT 23.1
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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 17, 1999 appearing
in the Annual Report on Form 10-K of Office Depot, Inc. for the year ended
December 26, 1998.
/s/DELOITTE & TOUCHE LLP
Certified Public Accountants
Miami, Florida
June 3, 1999