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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A/A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(B) OR (G) OF THE
SECURITIES EXCHANGE ACT OF 1934
OFFICE DEPOT, INC.
(Exact name of registrant as specified in its charter)
Delaware 59-2663954
(State of incorporation or organization) (I.R.S. Employer
Identification No.)
2200 Old Germantown Road, Delray Beach, Florida 33445
(Address of principal executive offices) (Zip Code)
If this Form relates to the registration of a class of securities pursuant to
Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c),check the following box. [X]
If this Form relates to the registration of a class of securities pursuant to
Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), check the following box.[ ]
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
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Preferred Stock Purchase Rights, New York Stock Exchange, Inc.
with respect to Common Stock,
par value $.01 per share
Securities to be registered pursuant to Section 12(g) of the Act:
None
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(Title of Class)
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ITEM 1. DESCRIPTION OF SECURITIES TO BE REGISTERED.
On November 25, 2003, the Board of Directors of Office Depot, Inc. (the
"Registrant" and the "Corporation") adopted certain amendments to the Rights
Agreement, dated as of September 4, 1996, between the Corporation, as issuer and
Mellon Investor Services L.L.C., as Rights Agent (the "Rights Agreement"). The
amendments (i) added a "chewable" redemption feature which will allow certain
offers to be accepted by shareholders without interference by the Rights
Agreement; (ii) eliminated all provisions--sometimes referred to as "dead hand"
provisions--giving only "Continuing Directors" the right to make decisions under
the Rights Agreement; and (iii) eliminated the provision that Staples, Inc., a
Delaware corporation, and its subsidiaries, affiliates and associates, were
"Exempt Persons" under the Rights Agreement.
The following summary of the Rights Agreement, as amended, replaces the
description of the Rights Agreement contained in Item 1 of the Corporation's
Registration Statement on Form 8-A dated September 6, 1996. Please note,
however, that this description is only a summary and is not complete, and should
be read together with the amended and restated Rights Agreement, a copy of which
has been filed with the Securities and Exchange Commission as an exhibit to this
Registration Statement. Copies of the Rights Agreement are available free of
charge from the Corporation.
The summary of terms of the amended and restated Rights Agreement are
as follows:
On September 3, 1996, the Board of Directors of the
Corporation authorized the issuance of one preferred share purchase
right (a "Right") for each outstanding share of common stock, par value
$.01 per share (the "Common Stock"), of the Corporation. The
distribution was payable to the stockholders of record at the close of
business on September 16, 1996 (the "Record Date"), and with respect to
all shares of Common Stock that become outstanding after the Record
Date and prior to the earliest of the Distribution Date (as defined
below), the redemption of the Rights, the exchange of the Rights, and
the expiration of the Rights (and, in certain cases, following the
Distribution Date). Each Right entitles the registered holder to
purchase from the Corporation one one-thousandth of a share of a Junior
Participating Preferred Stock, Series A, par value $.01 per share, of
the Corporation (the "Preferred Shares") at a price of $95.00 per one
one-thousandth of a Preferred Share (the "Purchase Price"), subject to
adjustment. The description and terms of the Rights are set forth in a
Rights Agreement, amended and restated (the "Rights Agreement"),
between the Corporation and Mellon Investor Services, L.L.C., as Rights
Agent (the "Rights Agent").
Until the earlier to occur of (i) the expiration of the
Corporation's redemption rights following the date of public disclosure
that a person or group other than certain exempt persons (an "Acquiring
Person"), together with persons affiliated or associated with such
Acquiring Person (other than those that are exempt persons), has
acquired, or obtained the right to acquire, beneficial
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ownership of 20% or more of the outstanding Common Stock (the "Stock
Acquisition Date") or (ii) the tenth business day after the date of
commencement or public disclosure of an intention to commence a tender
offer or exchange offer by a person other than an exempt person if,
upon consummation of the offer, such person could acquire beneficial
ownership of 20% or more of the outstanding Common Stock (the earlier
of such dates being called the "Distribution Date"), the Rights will be
evidenced by Common Stock certificates and not by separate
certificates. The Rights Agreement provides that, until the
Distribution Date (or earlier redemption, exchange or expiration of the
Rights), the Rights will be transferred with and only with the Common
Stock. Until the Distribution Date (or earlier redemption, exchange or
expiration of the Rights), new Common Stock certificates issued after
the Record Date, upon transfer or new issuance of the Common Stock,
will contain a notation incorporating the Rights Agreement by
reference. Until the Distribution Date (or earlier redemption, exchange
or expiration of the Rights) the surrender for transfer of any
certificate for Common Stock, with or without such notation or a copy
of this Summary of Rights being attached thereto, will also constitute
the transfer of the Rights associated with the Common Stock represented
by such certificate. As soon as practicable following the Distribution
Date, separate certificates evidencing the Rights ("Right
Certificates") will be mailed to holders of record of the Common Stock
as of the close of business on the Distribution Date, and such separate
Right Certificates alone will evidence the Rights.
The Rights will first become exercisable after the
Distribution Date (unless sooner redeemed or exchanged). The Rights
will expire at the close of business on September 16, 2006 (the
"Expiration Date"), unless earlier redeemed or exchanged by the
Corporation as described below.
The Purchase Price payable, and the number of Preferred Shares
or other securities, cash or other property issuable, upon exercise of
the Rights are subject to adjustment from time to time to prevent
dilution (i) in the event of a stock dividend or distribution on, or a
subdivision, combination or reclassification of, the Preferred Shares,
(ii) upon the grant to holders of the Preferred Shares of certain
rights, options or warrants to subscribe for Preferred Shares or
securities convertible into Preferred Shares at less than the current
market price of the Preferred Shares or (iii) upon the distribution to
holders of the Preferred Shares of evidences of indebtedness or assets
(excluding regular periodic cash dividends out of earnings or retained
earnings) or of subscription rights or warrants (other than those
referred to above). In addition, the Purchase Price payable and the
number of Preferred Shares purchasable on exercise of a Right is
subject to adjustment in the event that the Corporation should (i)
declare or pay any dividend on the Common Stock payable in Common Stock
or (ii) effect a subdivision or combination of the Common Stock into a
different number of shares of Common Stock.
In the event that a person becomes an Acquiring Person,
proper provision shall be made so that each holder of a Right, other
than Rights that are or were beneficially owned by the Acquiring
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Person and certain related persons and transferees (which will
thereafter be void), shall thereafter have the right to receive upon
exercise of such Right that number of shares of Common Stock (or
other securities) having at the time of such transaction a market
value of two times the exercise price of the Right. In the event that
the Corporation is involved in a merger or other business combination
transaction where the Corporation is not the surviving corporation or
where Common Stock is changed or exchanged or in a transaction or
transactions in which 50% or more of its consolidated assets or
earning power are sold, proper provision shall be made so that each
holder of a Right (other than any Acquiring Person and certain
related persons or transferees) shall thereafter have the right to
receive, upon the exercise thereof at the then current exercise price
of the Right, that number of shares of common stock of the acquiring
corporation which at the time of such transaction would have a market
value of two times the exercise price of the Right. In addition, the
Corporation's Board of Directors has the option of exchanging all or
part of the Rights (excluding void Rights) for an equal number of
shares of Common Stock in the manner described in the Rights
Agreement.
With certain exceptions, no adjustment in the Purchase Price
will be required until cumulative adjustments require an adjustment of
at least 1% in such Purchase Price. No fractional Preferred Shares will
be issued (other than fractions which are integral multiples of one
one-thousandth of a Preferred Share, which may, at the election of the
Corporation, be evidenced by depositary receipts) and in lieu thereof,
an adjustment in cash will be made based on the market price of the
Preferred Shares on the last trading date prior to the date of
exercise.
At any time prior to public disclosure that an Acquiring
Person has become such, the Board of Directors of the Corporation may
redeem the Rights in whole, but not in part, at a price of $.01 per
Right (the "Redemption Price"), payable in cash, shares (including
fractional shares) of Common Stock or any other form of consideration
deemed appropriate by the Board of Directors. In addition, in the
event (x) the Corporation receives a "Qualifying Offer", meaning an
offer which (among other things) (i) is for all of the Corporation's
Common Stock, (ii) consists of cash and/or marketable securities,
(iii) includes a firm commitment letter from an established financial
institution stating that the offeror has the money to pay any cash
included in the offer, (iv) has a non-waivable condition that the
offeror must own at least two-thirds of the Corporation's Common Stock
after the consummation of the offer, (v) stays open for at least 60
business days and is extended in the event of a price increase or a
competing offer, (vi) commits the offeror to buying all other shares
of the Corporation Common Stock at a prices not less than the original
offer, and (vii) if the original offer is unsuccessful, prohibits the
original offeror from making another offer for the Corporation's
equity securities for 6 months, unless a subsequent Qualifying Offer
which is at least 10% higher than the original offer is made by an
unrelated third party, and (y) the Corporation receives a Special
Meeting Notice from the holders of at least 10% of the shares of
Common Stock then outstanding (other than the shares of Common Stock
held by the Person making the Qualifying Offer and
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such Person's affiliates and associates), then the Corporation's
Board of Directors is required to call a special stockholder
meeting the purpose of which is to allow the stockholders to vote
on a resolution to redeem the Rights Agreement (a "Special Meeting").
In the event that the Special Meeting is not held on or prior
to the sixtieth (60th) day following receipt of the Special Meeting
Notice (the "Outside Date") or if, at the Special Meeting, the holders
of a majority of the shares of Common Stock outstanding as of the
record date for the Special Meeting selected by the Board of Directors
of the Corporation shall vote in favor of the redemption resolution and
provided that no person or entity has become an Acquiring Person prior
to the redemption date referred to below, then all of the Rights shall
be deemed redeemed by such failure to hold the Special Meeting or such
shareholder action, as the case may be, at the Redemption Price,
effective as of the close of business on the tenth (10th) business day
following the Outside Date (if the Special Meeting is not held on or
prior to such date) or the date on which the results of the vote on the
redemption resolution at the Special Meeting are certified as official,
as the case may be. Immediately upon redemption of the Rights, the
ability of holders to exercise the Rights will terminate and the only
rights of such holders will be to receive the Redemption Price.
At any time prior to public disclosure that an Acquiring
Person has become such, the Board of Directors of the Corporation may
amend or supplement the Rights Agreement without the approval of the
Rights Agent or any holder of the Rights, except for an amendment or
supplement which would change the Redemption Price, provide for an
earlier expiration date of the Rights or change the Purchase Price.
Thereafter, the Board of Directors of the Corporation may amend or
supplement the Rights Agreement without such approval only to cure
ambiguity, correct or supplement any defective or inconsistent
provision or change or supplement the Rights Agreement in any manner
which shall not adversely affect the interests of the holders of the
Rights (other than an Acquiring Person or an affiliate or associate
thereof). Immediately upon the action of the Board of Directors
providing for any amendment or supplement, such amendment or supplement
will be deemed effective.
The Preferred Shares purchasable upon exercise of the Rights
will not be redeemable. Each Preferred Share will be entitled to a
minimum preferential quarterly dividend payment equal to the greater of
$25 per share and 1,000 times the dividend declared per Common Share.
In the event of liquidation, the holders of the Preferred Shares will
be entitled to a minimum preferential liquidation payment equal to the
greater of $100 per share and 1,000 times the payment made per Common
Share. Each Preferred Share will have 1,000 votes per share, voting
together with the Common Stock. In the event of any merger,
consolidation or other transaction in which Common Stock are exchanged,
each Preferred Share will be entitled to receive 1,000 times the amount
received per Common Share.
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The Rights have certain anti-takeover effects. The Rights may
cause substantial dilution to a person or group other than an exempt
person that attempts to acquire the Corporation on terms not approved
by the Board, except pursuant to an offer conditioned on a substantial
number of Rights being acquired. The Rights should not interfere with
any merger or other business combination approved by the Board of
Directors prior to the time a person or group other than an exempt
person has acquired beneficial ownership of 20% or more of the Common
Stock, because until such time the Rights may generally be redeemed by
the Corporation at $.01 per Right.
Until a Right is exercised, the holder thereof, as such, will
have no rights as a stockholder of the Corporation, including, without
limitation, the right to vote or to receive dividends.
ITEM 2. EXHIBITS
1. Rights Agreement, dated as of September 4, 1996, as amended and
restated as of November 25, 2003, between the Corporation, as issuer
and Mellon Investor Services, L.L.C., as Rights Agent, which includes
as Exhibit B thereto the form of Right Certificate.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized.
OFFICE DEPOT, INC.
Date: November 25, 2003 By: /s/ DAVID C. FANNIN
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David C. Fannin
Executive Vice President and
General Counsel
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Exhibit Index
Exhibit
No. Description
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1. Rights Agreement, dated as of September 4, 1996, as amended
and restated as of November 25, 2003, between the Corporation,
as issuer and Mellon Investor Services, L.L.C., as Rights
Agent, which includes as Exhibit B thereto the form of Right
Certificate.
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