As filed with the Securities and Exchange Commission on November 8, 2013.

File No. 333-            

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 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

Incorporation or Organization)

 

(I.R.S. Employer

Identification No.)

6600 North Military Trail  
Boca Raton, Florida   33496
(Address of Principal Executive Offices)   (Zip Code)

2003 OFFICEMAX INCENTIVE AND PERFORMANCE PLAN

2003 DIRECTOR STOCK COMPENSATION PLAN

DIRECTOR STOCK COMPENSATION PLAN

(Full Title of the Plans)

Elisa D. Garcia C.

Executive Vice President, General Counsel

& Corporate Secretary

6600 North Military Trail

Boca Raton, Florida 33496

(Name and Address of Agent for Service)

(561) 438-4800

(Telephone Number, Including Area Code, of Agent for Service)

 

 

Copies to:

David M. Eaton, Esq.

Kilpatrick Townsend & Stockton LLP

1100 Peachtree Street, N.E.

Atlanta, Georgia 30309-4530

(404) 815-6051

 

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):

 

Large Accelerated Filer   x       Accelerated Filer   ¨   
Non-Accelerated Filer   ¨   (Do not check if a smaller reporting company)    Smaller Reporting Company   ¨   

 

 

Calculation of Registration Fee

 

Title of Securities
to be Registered
  Amount to
Be Registered (1)
    Proposed Maximum  
Offering Price
Per Share (2)
 

  Proposed Maximum  
Aggregate

Offering Price (2)

 

Amount of

Registration Fee (3)

Common Stock, $0.01 par value per share

  47,652,613   $5.56   $264,948,528.30   $34,125.37

 

 

(1) Pursuant to Rule 416(b), the number of shares of Common Stock being registered shall be adjusted to include any additional securities that may become issuable in connection with, or as a result of, stock splits, stock dividends or similar transactions. In addition, see Explanatory Note below.
(2) Determined on the basis of the average of the high and low prices of the Common Stock reported on the New York Stock Exchange on October 31, 2013 in accordance with Rule 457(c) under the Securities Act of 1933, as amended, solely for the purpose of calculating the registration fee pursuant to Rule 457(h) under the Securities Act.
(3) Pursuant to Rule 457(p) under the Securities Act, the total registration fee due is offset by $17,857.86, representing the dollar amount of the filing fee previously paid by OfficeMax Incorporated that corresponds to 10,349,621 unsold shares registered pursuant to OfficeMax Incorporated’s Registration Statement on Form S-8 (File No. 333-189233) filed on June 11, 2013. Consequently, the filing fee transmitted herewith is $16,267.51. As explained in the Explanatory Note below, Office Depot, Inc. is the indirect parent of OfficeMax Incorporated.

 

 

 


EXPLANATORY NOTE

On November 5, 2013, pursuant to the Agreement and Plan of Merger, dated as of February 20, 2013, as amended November 5, 2013, by and among Office Depot, Inc. (the “ Registrant ”), Dogwood Merger Sub Inc., Dogwood Merger Sub LLC, Mapleby Holdings Merger Corporation, Mapleby Merger Corporation and OfficeMax Incorporated (“ OfficeMax ”), OfficeMax became an indirect wholly owned subsidiary of the Registrant (the “ Merger ”).

As a result of the Merger, stock options and other stock-based awards with respect to shares of the common stock, par value $2.50 per share, of OfficeMax (“ OfficeMax Common Stock ”) outstanding under OfficeMax’s 2003 OfficeMax Incentive and Performance Plan, its 2003 Director Stock Compensation Plan and its Director Stock Incentive Plan (collectively, the “ Plans ”) were converted into stock options and other stock-based awards with respect to shares of the common stock, $0.01 par value per share, of the Registrant (“ Registrant Common Stock ”). In addition, pursuant to the listing standards of the New York Stock Exchange, upon which the Registrant Common Stock is listed, shares available under certain equity compensation plans acquired in corporate acquisitions and mergers may be used for certain post-transaction grants. Shares available under such plans may be used for post-transaction grants of options and other awards with respect to equity of the entity that is the listed company after the transaction, either under the pre-existing plan or another plan, subject to certain conditions.

At the time of the closing of the Merger, OfficeMax had: (i) stock options and other stock-based awards with respect to 7,365,105 shares of OfficeMax Common Stock outstanding under the Plans; and (ii) 10,349,621 shares of OfficeMax Common Stock available for grant under its 2003 OfficeMax Incentive and Performance Plan, for a total of 17,714,726 shares of OfficeMax Common Stock. As adjusted for the exchange ratio in connection with the Merger, this equates to the 47,652,613 shares of the Registrant’s Common Stock registered hereby.

PART I

INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS

The Registrant files this Registration Statement on Form S-8 in connection with the Plans. The documents containing the information specified in Part I of Form S-8 will be sent or given to each participant in the Plans as specified by Rule 428(b)(1) of the Securities Act of 1933, as amended (the “ Securities Act ”). These documents and the documents incorporated by reference herein pursuant to Item 3 of Part II hereof, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.


PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

ITEM 3. Incorporation of Documents by Reference.

The Registrant hereby incorporates by reference into this Registration Statement the following:

(a) The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 29, 2012, filed with the Securities and Exchange Commission (the “ Commission ”) pursuant to the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), on February 20, 2013, as amended by Amendment No. 1 thereto filed with the Commission on April 26, 2013;

(b) All other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the report referenced in Item 3(a) above, including the Registrant’s Quarterly Reports on Form 10-Q for the quarterly periods ended: March 30, 2013 filed with the Commission on April 30, 2013, June 29, 2013, filed with the Commission on July 30, 2013, and September 30, 2013 filed with the Commission on November 5, 2013; and the Registrant’s Current Reports on Form 8-K filed with the Commission on January 4, 2013, January 24, 2013, February 22, 2013 (two filings), February 26, 2013, March 6, 2013, April 11, 2013, April 25, 2013, April 30, 2013 (three filings), May 31, 2013, June 7, 2013, June 11, 2013, June 18, 2013, June, 27, 2013, July 8, 2013, July 11, 2013, July 30, 2013, August 21, 2013, 2013, August 26, 2013, September 12, 2013, November 5, 2013 and November 7, 2013 (except for Item 7.01 of such Current Report dated November 7, 2013); and

(c) All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, from the date of filing of such documents.

Any statement contained herein or in a document all or a portion of which is incorporated or deemed to be incorporated by reference herein 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 document which also is or is deemed to be incorporated by reference herein 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.

Not applicable.

 

ITEM 5. Interests of Named Experts and Counsel.

None.


ITEM 6. Indemnification of Directors and Officers.

The Registrant is a Delaware corporation subject to the applicable indemnification provisions of the General Corporation Law of the State of Delaware (the “ DGCL ”). Under Section 145 of the DGCL, each director and officer of the Registrant may be indemnified by the Registrant against all expenses and liabilities (including attorney’s fees, judgments, fines and amounts paid in settlement) actually or reasonably incurred in connection with the defense or settlement of any threatened, pending or completed legal proceedings in which he or she is involved by reason of the fact that he or she is or was a director or officer of the Registrant if such director or officer acted in good faith and in a manner that he or she reasonably believed to be in or not opposed to the best interests of the Registrant and, with respect to any criminal action or proceeding, if he or she had no reasonable cause to believe that his or her conduct was unlawful. If the legal proceeding, however, is by or in the right of the Registrant, the director or officer may not be indemnified in respect of any claim, issue or matter as to which he or she shall have been adjudged to be liable to the Registrant unless a court determines otherwise.

The Registrant’s Amended and Restated Bylaws provide for indemnification of the Registrant’s directors and officers, to the fullest extent permitted by the DGCL, for all expenses, liability and loss (including reasonable amounts paid in settlement) incurred in defending actions brought against them arising out of the performance of their duties. In addition, the Registrant may purchase and maintain insurance on its own behalf and on behalf of any person who is or was a director, officer, employee, fiduciary or agent of the Registrant or is serving or has served in such capacity for another business organization or entity at the Registrant’s request, against any liability asserted against such person and incurred in such capacity, or arising out of such person’s status as such, whether or not the registrant would have the power to indemnify such person against such liability under the provisions of Article VI of the registrant’s Amended and Restated Bylaws.

The Registrant’s Restated Certificate of Incorporation, as amended, contains a provision that eliminates, to the fullest extent permitted by the DGCL, the personal liability of each director of the Registrant to the Registrant 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 foregoing indemnity and insurance provisions have the effect of reducing directors’ and officers’ exposure to personal liability for actions taken in connection with their respective positions.

The Registrant has obtained liability insurance policies under which the Registrant’s directors and officers are insured, within the limits and subject to the limitations of the policies, against certain expenses in connection with the defense of certain actions, suits or proceedings, and certain liabilities which might be imposed as a result of certain actions, suits or proceedings, arising out of the performance of their duties.


ITEM 7. Exemption From Registration Claimed.

Not applicable.

 

ITEM 8. Exhibits.

The exhibits included as part of this Registration Statement are as follows:

 

Exhibit Number

  

Description

5.1    Opinion of Counsel to Registrant
23.1    Consent of Counsel to Registrant (included in Exhibit 5.1)
23.2    Consent of Deloitte & Touche LLP, independent registered public accounting firm of Office Depot, Inc.
23.3    Consent of Galaz, Yamazaki, Ruiz Urquiza, S.C. (Member of Deloitte Touche Tohmatsu Limited), independent registered public accounting firm of Office Depot de México, S.A. de C.V. and its subsidiaries
24.1    Power of Attorney (included with signature page)
99.1    2003 OfficeMax Incentive and Performance Plan (amended and restated effective as of April 29, 2013) (incorporated by reference to Appendix A to the Definitive Proxy Statement of OfficeMax filed with the Commission on March 19, 2013 (File No. 1-5057))
99.2    Amendment to the 2003 Officemax Incentive and Performance Plan dated November 6, 2013
99.3    2003 Director Stock Compensation Plan, as amended through September 26, 2003 (incorporated by reference to Exhibit 10.26 to the Annual Report on Form 10-K of OfficeMax for the year ended December 31, 2003 filed with the Commission on March 2, 2004 (File No. 1-5057))


99.4    Director Stock Compensation Plan, as amended through September 26, 2003 (incorporated by reference to Exhibit 10.17 to the Annual Report on Form 10-K of OfficeMax for the year ended December 31, 2003 filed with the Commission on March 2, 2004 (File No. 1-5057))
99.5    Amendment to the OfficeMax 2003 Director Stock Compensation Plan and the OfficeMax Director Stock Compensation Plan dated November 6, 2013

 

ITEM 9. Undertakings.

(a) The undersigned 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:

(i) To include any prospectus required by Section 10(a)(3) of the Securities Act;

(ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement; and

(iii) 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, 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) 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.

(b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an


employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange 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.

(c) Insofar as indemnification for liabilities arising under the Securities 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 Commission such indemnification is against public policy as expressed in the Securities 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 Securities Act and will be governed by the final adjudication of such issue.


SIGNATURES

Pursuant to the requirements of the Securities Act, the 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 Boca Raton, State of Florida, on November 8, 2013.

 

OFFICE DEPOT, INC.
By:  

/s/ Elisa D. Garcia C.

  Elisa D. Garcia C.
  Executive Vice President,
  General Counsel & Corporate Secretary

POWER OF ATTORNEY

Each person whose signature appears below hereby severally and individually constitutes and appoints Elisa D. Garcia C., Matthew R. Broad, Susan Wagner-Fleming and Darlene Quashie Henry, each of them severally, the true and lawful attorneys and agents of each of us to execute in the name, place and stead of each of us (individually and in any capacity stated below) any and all amendments to this Registration Statement on Form S-8 and any subsequent registration statement filed by the Registrant pursuant to Rule 462(b) of the Securities Act or to Instruction E to Form S-8, in each case which relates to this Registration Statement, and all instruments necessary or advisable in connection therewith and to file the same with the Commission, each of said attorneys and agents to have the power to act with or without the others and to have full power and authority to do and perform in the name and on behalf of each of the undersigned every act whatsoever necessary or advisable to be done in the premises as fully and to all intents and purposes as any of the undersigned might or could do in person, and we hereby ratify and confirm our signatures as they may be signed by our said attorneys and agents or each of them to any and all such amendments and instruments.

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 November 8, 2013.

 

/s/ Neil Austrian

Neil Austrian

   Co-Chief Executive Officer

/s/ Ravi Saligram

Ravi Saligram

   Co-Chief Executive Officer

/s/ Michael D. Newman

   Co-Chief Financial Officer
Michael D. Newman   


/s/ Deborah O’Connor

Deborah O’Connor

   Co-Chief Financial Officer and Co-Chief Accounting Officer

/s/ Kim Moehler

   Co-Chief Accounting Officer
Kim Moehler   

/s/ Warren Bryant

   Director
Warren Bryant   

/s/ Rakesh Gangwal

   Co-Chairman and Lead Director
Rakesh Gangwal   

/s/ Cynthia T. Jamison

   Director
Cynthia T. Jamison   

/s/ Francesca Ruiz de Luzuriaga

   Director
Francesca Ruiz de Luzuriaga   

/s/ V. James Marino

   Director
V. James Marino   

/s/ Michael J. Massey

   Director
Michael J. Massey   

/s/ Jeffrey C. Smith

   Director
Jeffrey C. Smith   

/s/ David M. Szymanski

   Director
David M. Szymanski   

/s/ Nigel Travis

   Co-Chairman and Lead Director
Nigel Travis   

/s/ Joseph S. Vassalluzzo

   Director
Joseph S. Vassalluzzo   


INDEX TO EXHIBITS FILED HEREWITH

 

Exhibit Number

  

Description

5.1    Opinion of Counsel to Registrant
23.1    Consent of Counsel to Registrant (included in Exhibit 5.1)
23.2    Consent of Deloitte & Touche LLP, independent registered public accounting firm of Office Depot, Inc.
23.3    Consent of Galaz, Yamazaki, Ruiz Urquiza, S.C. (Member of Deloitte Touche Tohmatsu Limited), independent registered public accounting firm of Office Depot de México, S.A. de C.V. and its subsidiaries
24.1    Power of Attorney (included with signature page)
99.2    Amendment to the 2003 Officemax Incentive and Performance Plan dated November 6, 2013
99.5    Amendment to the OfficeMax 2003 Director Stock Compensation Plan and the OfficeMax Director Stock Compensation Plan dated November 6, 2013

EXHIBIT 5.1

 

LOGO

Suite 2800, 1100 Peachtree Street

Atlanta, GA 30309-4528

t 404 815 6500 f 404 815 6555

November 7, 2013

Office Depot, Inc.

6600 North Military Trail

Boca Raton, Florida 33496

 

  Re: Form S-8 Registration Statement

Ladies and Gentlemen:

We have acted as counsel for Office Depot, Inc., a Delaware corporation (the “ Company ”) in connection with the preparation and filing of a registration statement on Form S-8 (together with all exhibits thereto, the “ Registration Statement ”) relating to the registration by the Company of 47,796,504 shares of the Company’s Common Stock, Par Value $0.01 Per Share (the “ Shares ”) issuable by the Company in accordance with the 2003 OfficeMax Incentive and Performance Plan, the 2003 Director Stock Compensation Plan and the Director Stock Compensation Plan (collectively, the “ Plans ”). This opinion letter is rendered pursuant to Item 8 of Form S-8 and Item 601(b)(5) of the Commission’s Regulation S-K.

As such counsel, we have examined originals or copies, certified or otherwise identified to our satisfaction, of (i) the Registration Statement, to be filed with the Securities and Exchange Commission (the “ Commission ”) under the Securities Act of 1933, as amended (the “ Securities Act ”), on the date hereof; (ii) the Plans; (iii) the certificate of incorporation of the Company; (iv) the bylaws of the Company, as amended; (v) certain resolutions of the Board of Directors of the Company; (vi) such records of the Company and such agreements, certificates and receipts of public officials, certificates of officers or other representatives of the Company and others as we have deemed relevant; and (vii) such other documents, instruments, certificates and records as we have deemed necessary or appropriate as a basis for the opinions set forth below.

In all such examinations, we have assumed the genuineness of signatures on original documents and the conformity to such original documents of all copies submitted to us as certified, conformed or photographic copies, and as to certificates of public officials, we have assumed the same to have been properly given and to be accurate.

Based upon the foregoing and subject to the limitations, qualifications and assumptions set forth herein, we are of the opinion that the Shares to be issued under the Plans are duly authorized and, when issued by the Company in accordance with the terms of the Plans, will be validly issued, fully paid and nonassessable.

 

 

ATLANTA   AUGUSTA   CHARLOTTE   DENVER   LOS ANGELES   NEW YORK   RALEIGH   SAN DIEGO   SAN FRANCISCO

SEATTLE   SHANGHAI   SILICON VALLEY   STOCKHOLM   TOKYO   WALNUT CREEK   WASHINGTON   WINSTON-SALEM


The opinions expressed herein are limited in all respects to the Delaware General Corporation Law, and no opinion is expressed with respect to the laws of any other jurisdiction or any effect which such laws may have on the opinions expressed herein. This opinion is limited to the matters stated herein, and no opinion is implied or may be inferred beyond the matters expressly stated herein.

We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving this consent, we do not thereby admit that we are “experts” within the meaning of the Securities Act, or other rules and regulations of the Commission promulgated thereunder.

 

Sincerely,
KILPATRICK TOWNSEND & STOCKTON LLP
By:  

/s/ David M. Eaton

  David M. Eaton, a Partner

EXHIBIT 23.2

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We consent to the incorporation by reference in the Registration Statement on Form S-8 of Office Depot, Inc. (the “ Company ”) of our report relating to the financial statements of the Company dated February 20, 2013 and April 30, 2013 as to the effects of (i) the change in accounting principle described in Note A, and (ii) changes in reportable segment presentation described in Note A, Note B, and Note O (which report expresses an unqualified opinion and includes an explanatory paragraph relating to the effects of the change in accounting principle and changes in reportable segment presentation) appearing in Current Report on Form 8-K dated April 30, 2013, and our reports dated February 20, 2013, relating to the financial statement schedule of the Company, and the effectiveness of the Company’s internal control over financial reporting, appearing in the Annual Report on Form 10-K of the Company for the year ended December 29, 2012.

 

/s/ DELOITTE & TOUCHE LLP
Boca Raton, Florida
November 7, 2013

EXHIBIT 23.3

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We consent to the incorporation by reference in this Registration Statement on Form S-8 of Office Depot, Inc., of our report dated February 15, 2013 and November 7, 2013 with respect to Note 16, relating to the consolidated financial statements of Office Depot de México, S. A. de C. V. (which report expresses an unqualified opinion and includes an explanatory paragraph relating to the differences between Mexican Financial Reporting Standards and accounting principles generally accepted in the United States of America), appearing in Current Report on Form 8-K of Office Depot, Inc. dated November 7, 2013.

/s/Ma. Isabel Romero Miranda

Galaz, Yamazaki, Ruiz Urquiza, S. C.

Member of Deloitte Touche Tohmatsu Limited

México City, México

November 7, 2013

Exhibit 99.2

AMENDMENT

TO THE

2003 OFFICEMAX INCENTIVE AND PERFORMANCE PLAN

Amended and Restated Effective as of April 29, 2013

WHEREAS , OfficeMax Incorporated (“OfficeMax”) previously established the 2003 OfficeMax Incentive and Performance Plan (the “Plan”), which was last amended and restated effective as of April 29, 2013; and

WHEREAS, OfficeMax has entered into an Agreement and Plan of Merger by and among Office Depot, Inc. (the “Company”), Dogwood Merger Sub Inc., Dogwood Merger Sub LLC, Mapleby Holdings Merger Corporation, Mapleby Merger Corporation and OfficeMax, dated as of February 20, 2013 (the “Merger Agreement”) pursuant to which a series of transactions occurred and a subsidiary of the Company merged with and into Mapleby Holdings Merger Corporation (the parent company of OfficeMax Incorporated) (the “Merger”); and

WHEREAS , in connection with the Merger, the Board of Directors of OfficeMax (or a committee thereof) approved the assumption of the Plan by the Company and provided that the Company’s Board of Director’s and/or Compensation Committee will have the authority to amend the Plan; and

WHEREAS , the Company’s Board of Directors has delegated to Elisa Garcia, Michael Allison and Richelle Aschenbrenner (the “Authorized Officers”) the authority and responsibility, individually and jointly, for amending the Plan to make any changes they determine to be necessary or desirable to reflect the Merger; and

WHEREAS , the Company desires to amend the Plan to reflect the assumption of the Plan by the Company, to adjust the various share limits in the Plan to reflect the adjustments of the stock in the Merger, to clarify the individuals who are eligible to receives grants under the Plan, and to make other amendments to reflect the Merger.

NOW, THEREFORE , the Plan is amended as follows effective on the date hereof:

 

1) Section 2.8 of the Plan is hereby amended by replacing “Executive Compensation Committee” with “Compensation Committee”.

 

2) Section 2.9 of the Plan is hereby amended by deleting it in its entirety and replacing it with the following:

“2.9 “Company” means OfficeMax Incorporated, a Delaware Corporation. Effective as of the Merger Effective Date, Company means Office Depot, Inc., a Delaware corporation.”

 

3) Section 2 of the Plan is hereby amended by adding the following new Sections 2.14A, 2.14B and 2.14C immediately after existing Section 2.14:

 

1


“2.14A “Merger” shall mean the merger of a subsidiary of Office Depot, Inc. with and into Mapleby Holdings Merger Corporation (the parent company of OfficeMax Incorporated) pursuant to the Merger Agreement.

2.14B “Merger Agreement” shall mean the Agreement and Plan of Merger by and among the Company, Dogwood Merger Sub Inc., Dogwood Merger Sub LLC, Mapleby Holdings Merger Corporation, Mapleby Merger Corporation and OfficeMax Incorporated, dated as of February 20, 2013.

2.14C “Merger Effective Date” shall mean the effective date of the Merger.”

 

4) Section 2.17 of the Plan is hereby amended by adding the following at the end thereof:

“Effective as of the Merger Effective Date, Participant shall not include any individual who was an employee or director of Office Depot, Inc. or a subsidiary of Office Depot, Inc. immediately prior to the Merger Effective Date. All individuals who were employees or directors of Office Depot, Inc. or a subsidiary of Office Depot, Inc. immediately prior to the Merger Effective Date shall be ineligible to receive Awards under this Plan.”

 

5) Section 2.26 of the Plan is hereby amended by deleting “par value $2.50 per share” effective as of the Merger Effective Date.

 

6) Section 3 of the Plan is hereby amended by adding the following new Section 3.5 to the end thereof:

“3.5 Adjustment for Merger. In accordance with the adjustment provisions of Section 3.4, as a result of the Merger, all Awards outstanding as of the Merger Effective Date shall be adjusted as provided in the Merger Agreement and all share limits in Section 3.3 shall be adjusted by multiplying such limits by 2.69. With respect to the adjustment of the maximum number of shares available for grant of Awards under the Plan and the maximum number of shares that may be issued as Incentive Stock Options under the Plan as provided in Section 3.1, only the number of shares remaining available for grant as of the Merger Effective Date shall be multiplied by 2.69 to determine the adjusted remaining shares available for grant.”

 

7) In all respects not above amended, the Plan is hereby ratified and confirmed.

* * * * *

IN WITNESS WHEREOF , the Company has caused this Amendment to the Plan to be executed by its duly authorized representative this 6 day of November, 2013.

 

OFFICE DEPOT, INC.
By:   /s/ Richelle Aschenbrenner
 

Richelle Aschenbrenner

Vice President, Global Compensation, Benefits & HRIM

 

2

Exhibit 99.5

AMENDMENT

TO THE

OFFICEMAX 2003 DIRECTOR STOCK COMPENSATION PLAN

And the

OFFICEMAX DIRECTOR STOCK COMPENSATION PLAN

WHEREAS , OfficeMax Incorporated (“OfficeMax”) previously established the OfficeMax 2003 Director Stock Compensation Plan and the OfficeMax Director Stock Compensation Plan (each, a “Plan” and together, the “Plans”), as amended from time to time; and

WHEREAS, OfficeMax has entered into an Agreement and Plan of Merger by and among Office Depot, Inc. (the “Company”), Dogwood Merger Sub Inc., Dogwood Merger Sub LLC, Mapleby Holdings Merger Corporation, Mapleby Merger Corporation and OfficeMax, dated as of February 20, 2013 (the “Merger Agreement”) pursuant to which a series of transactions occurred and a subsidiary of the Company merged with and into Mapleby Holdings Merger Corporation (the parent company of OfficeMax Incorporated) (the “Merger”); and

WHEREAS , in connection with the Merger, the Board of Directors of OfficeMax (or a committee thereof) approved the assumption of the Plans by the Company and provided that the Company’s Board of Director’s and/or Compensation Committee will have the authority to amend the Plans; and

WHEREAS , the Company’s Board of Directors has delegated to Elisa Garcia, Michael Allison and Richelle Aschenbrenner (the “Authorized Officers”) the authority and responsibility, individually and jointly, for amending the Plans to make any changes they determine to be necessary or desirable to reflect the Merger; and

WHEREAS , the Company desires to amend the Plans to reflect the assumption of the Plans by the Company and to make other amendments to reflect the Merger.

NOW, THEREFORE , each Plan is amended as follows effective on the date hereof:

 

1) All references in the Plan to the “Company” shall mean Office Depot, Inc., a Delaware corporation, or its successor.

 

2) All references in the Plan to the “Executive Compensation Committee” shall mean and shall be replaced with “Compensation Committee”.

 

3) Section 2.1 of each Plan is hereby amended by deleting “$2.50 par value”.

 

1


4) Each Plan is hereby amended by adding the following as a new Section 5 at the end of the Plan.

“5. Consequences of Merger .

5.1 As used in the Plan, the following definitions apply to the terms indicated below:

5.1.1 “Merger” shall mean the merger of a subsidiary of Office Depot, Inc. with and into Mapleby Holdings Merger Corporation (the parent company of OfficeMax Incorporated) pursuant to the Merger Agreement.

5.1.2 “Merger Agreement” shall mean the Agreement and Plan of Merger by and among the Company, Dogwood Merger Sub Inc., Dogwood Merger Sub LLC, Mapleby Holdings Merger Corporation, Mapleby Merger Corporation and OfficeMax Incorporated, dated as of February 20, 2013.

5.1.3 “Merger Effective Date” shall mean the effective date of the Merger.

5.2 No additional Options may be granted under this Plan. All Options outstanding as of the Merger Effective Date shall be adjusted as provided in the Merger Agreement (which shall include an adjustment to the number of shares subject to the Option and an adjustment to the Option Price). The maximum number of shares that may be issued pursuant to Options granted under this Plan shall be adjusted to reflect and to include the adjusted shares that may be issued pursuant to the outstanding Options.”

 

5) In all respects not above amended, the Plan is hereby ratified and confirmed.

* * * * *

IN WITNESS WHEREOF , the Company has caused this Amendment to the Plan to be executed by its duly authorized representative this 6 day of November, 2013.

 

OFFICE DEPOT, INC.
By:   /s/ Richelle Aschenbrenner
 

Richelle Aschenbrenner

Vice President, Global Compensation, Benefits & HRIM

 

2