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UNITED STATES
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 November 25, 2003
Commission file number 1-10948
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) (Zip Code)
(561) 438-4800
(Registrant's telephone number, including area code)
Former name or former address, if changed since last report: N/A
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ITEM 5. OTHER EVENTS
On November 25, 2003, the Board of Directors of Office Depot, Inc. (the
"Registrant" and the "Corporation") adopted certain amendments to the
Corporation's Shareholder's Rights Plan (the "Rights Plan"). The amendments (i)
added a "chewable" redemption feature which will allow certain offers to be
accepted by shareholders without interference by the Rights Plan; (ii)
eliminated all provisions--sometimes referred to as "dead hand"
provisions--giving only "Continuing Directors" the right to make decisions under
the Rights Plan; and (iii) eliminated the provision that Staples, Inc., a
Delaware corporation, and its subsidiaries, affiliates and associates, were
"Exempt Persons" under the Rights Plan.
The summary of terms of the amended and restated Shareholder Rights
Plan 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 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
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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 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
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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 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
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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.
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.
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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.
A copy of the amended and restated Rights Agreement is filed herewith
as Exhibit 4. This summary description of the Rights does not purport to be
complete and is qualified in its entirety by reference to the Rights Agreement,
which is hereby incorporated herein by reference.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(c) Exhibits
4 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 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.
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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4 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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