-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, LLj6wqKtnqBcvyoqao7SCKgtBeXi7wnQj4rcefhsrYiLamWipIfTbr+GaKEhHFjH fTCqvGqrgd0MEKwvYQusVQ== 0000950135-98-005273.txt : 19980930 0000950135-98-005273.hdr.sgml : 19980930 ACCESSION NUMBER: 0000950135-98-005273 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19980929 EFFECTIVENESS DATE: 19980929 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: STAPLES INC CENTRAL INDEX KEY: 0000791519 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-MISCELLANEOUS SHOPPING GOODS STORES [5940] IRS NUMBER: 042896127 STATE OF INCORPORATION: DE FISCAL YEAR END: 0127 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-64545 FILM NUMBER: 98717267 BUSINESS ADDRESS: STREET 1: ONE RESEARCH DR STREET 2: P O BOX 9328 CITY: WESTBOROUGH STATE: MA ZIP: 01581 BUSINESS PHONE: 5083708500 S-8 1 STAPLES, INC. 1 As filed with the Securities and Exchange Commission on September 29, 1998 Registration No. 333- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 Staples, Inc. ------------------------------------------------------ (Exact name of registrant as specified in its charter) Delaware 04-2896127 - ------------------------------- ------------------- (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) One Research Drive, Westborough, Massachusetts 01581-5114 --------------------------------------------------------- (Address of principal executive offices) (Zip Code) STAPLES, INC. 1998 EMPLOYEE STOCK PURCHASE PLAN ----------------------------------------------- (Full title of the plans) John J. Mahoney Executive Vice President, Chief Administrative Officer and Chief Financial Officer Staples, Inc. One Research Drive Westborough, Massachusetts 01581-5114 --------------------------------------- (Name and address of agent for service) (508) 370-8500 ------------------------------------------------------------- (Telephone number, including area code, of agent for service) CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------------- Title of Securities to Amount to be Proposed Proposed Amount of be Registered Registered Maximum Maximum Registration Offering Price Aggregate Fee (1) Per Share (1) Offering Price(1) - -------------------------------------------------------------------------------------- Common Stock, 4,000,000 $29.5625 $118,250,000 $34,883.75 $.0006 par value shares - --------------------------------------------------------------------------------------
(1) Estimated solely for the purpose of calculating the registration fee, and based on the average of the high and low prices of the Common Stock as reported by the Nasdaq National Market on September 25, 1998, in accordance with Rules 457(c) and (h) of the Securities Act of 1933, as amended. Page 1 of 13 pages. Exhibit Index begins on page 9. 2 PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS The information required by Part I is included in documents sent or given to participants in the Staples, Inc. 1998 Employee Stock Purchase Plan pursuant to Rule 428(b)(1) of the Securities Act of 1933, as amended (the "Securities Act"). PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE. Staples, Inc., a Delaware corporation (the "Company" or the "Registrant"), is subject to the informational and reporting requirements of Sections 13(a), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance therewith files reports, proxy statements and other information with the Securities and Exchange Commission (the "Commission"). The following documents, which are on file with the Commission, are incorporated in this Registration Statement by reference: (1) The Registrant's latest annual report filed pursuant to Sections 13(a) or 15(d) of the Exchange Act or the latest prospectus filed pursuant to Rule 424(b) under the Securities Act that contains audited financial statements for the Registrant's latest fiscal year for which such statements have been filed. (2) All other reports filed pursuant to Sections 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the document referred to in (1) above. (3) The description of the Common Stock, $.0006 par value per share of the Registrant ("Common Stock"), contained in a registration statement filed under the Exchange Act, including any amendment or report filed for the purpose of updating such description. 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 shares of Common Stock offered hereby have been sold or which deregisters all shares of Common Stock then remaining unsold, shall be deemed to be incorporated by reference herein and to be part hereof from the date of the filing of such documents. Item 4. DESCRIPTION OF SECURITIES. Not applicable. -2- 3 Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not applicable. Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Section 145 of the General Corporation Law of the State of Delaware provides that a corporation has the power to indemnify a director, officer, employee or agent of the corporation and certain other persons serving at the request of the corporation in related capacities against amounts paid and expenses incurred in connection with an action or proceeding to which he is or is threatened to be made a party by reason of such position, if such person shall have acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, in any criminal proceeding, if such person had no reasonable cause to believe his conduct was unlawful, provided that, in the case of actions brought by or in the right of the corporation, no indemnification shall be made with respect to any matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the adjudicating court determines that such indemnification is proper under the circumstances. The Company's Restated Certificate of Incorporation, as amended, provides that the Company shall indemnify its directors and officers to the fullest extent permitted by the Delaware General Corporation Law. The Company's Restated Certificate of Incorporation also provides that no director shall be liable to the Company or its stockholders for monetary damages for breach of his fiduciary duty as a director, except for liability (i) for any breach of the director's duty of loyalty to the Company or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law or (iv) for any transaction in which the director derived an improper personal benefit. The Amended and Restated By-Laws of the Company contain provisions to the effect that each director, officer and employee of the Company shall be indemnified by the Company against liabilities and expenses in connection with any legal proceedings to which he may be made a party or with which he may become involved or threatened by reason of having been an officer, director or employee of the Company or of any other organization at the request of the Company. The provisions include indemnification with respect to matters covered by a settlement. Any such indemnification shall be made only if the Board of Directors determines by a majority vote of a quorum consisting of disinterested directors (or, if such quorum is not obtainable, or if the Board of Directors directs, by independent legal counsel) or by stockholders, that indemnification is proper in the circumstances because the person seeking indemnification has met applicable standards of conduct. It must be determined that the director, officer or employee acted in good faith with the -3- 4 reasonable belief that his action was in or not opposed to the best interests of the Company, and, with respect to any criminal action or proceeding, he had no reasonable cause to believe his conduct was unlawful. The Company has a directors and officers liability policy that insures the Company's officers and directors against certain liabilities. Item 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. Item 8. EXHIBITS. The Exhibit Index immediately preceding the exhibits is incorporated herein by reference. Item 9. UNDERTAKINGS. 1. The Registrant hereby undertakes: (a) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) To include, if required, 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; 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; PROVIDED, HOWEVER that paragraphs (i) and (ii) do not apply if the registration statement is on Form S-3 or Form S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement. -4- 5 (b) 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. (c) 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. 2. The 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 in the initial bona fide offering thereof. 3. 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 Securities and Exchange 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. -5- 6 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Town of Westborough, Commonwealth of Massachusetts, on September 29, 1998. STAPLES, INC. By: /s/ Thomas G. Stemberg ------------------------------------- Thomas G. Stemberg Chairman of the Board, President and Chief Executive Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that we, the undersigned officers and directors of Staples, Inc. hereby severally constitute Thomas G. Stemberg, John J. Mahoney, and Patrick J. Rondeau, 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 filed herewith and any and all amendments to said Registration Statement, and generally to do all such things in our names and in our capacities as officers and directors to enable Staples, 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. -6- 7 Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and on the 29th day of September, 1998. Signatures Capacity ---------- -------- /s/ Thomas G. Stemberg Chairman of the Board, - ------------------------- President and Chief Executive Officer Thomas G. Stemberg (Principal Executive Officer) /s/ John J. Mahoney Executive Vice President - Finance - ------------------------- and Chief Financial Officer John J. Mahoney (Principal Financial Officer) /s/ Robert K. Mayerson Senior Vice President - ------------------------- and Corporate Controller Robert K. Mayerson (Principal Accounting Officer) /s/ Basil L. Anderson Director - ------------------------- Basil L. Anderson /s/ Mary Elizabeth Burton Director - ------------------------- Mary Elizabeth Burton /s/ W. Lawrence Heisey Director - ------------------------- W. Lawrence Heisey /s/ James L. Moody, Jr. Director - ------------------------- James L. Moody, Jr. /s/ Rowland T. Moriarty Director - ------------------------- Rowland T. Moriarty -7- 8 /s/ Robert C. Nakasone Director - ------------------------- Robert C. Nakasone /s/ W. Mitt Romney Director - ------------------------- W. Mitt Romney /s/ Martin Trust Director - ------------------------- Martin Trust /s/ Paul F. Walsh Director - ------------------------- Paul F. Walsh -8- 9 EXHIBIT INDEX Exhibit Number Exhibit - ------- ------- 5.1 Opinion of Hale and Dorr LLP 23.1 Consent of Hale and Dorr LLP (included in Exhibit 5.1) 23.2 Consent of Ernst & Young LLP 23.3 Consent of Kupferberg, Goldberg & Neimark, LLC 24.1 Power of Attorney (included in the signature pages of this Registration Statement) -9- EX-5.1 2 OPINION OF HALE & DORR LLP 1 EXHIBIT 5.1 HALE AND DORR LLP 60 STATE STREET BOSTON, MA 02109 September 29, 1998 Staples, Inc. One Research Drive Westborough, MA 01581-5114 Re: Staples, Inc. 1998 Employee Stock Purchase Plan ----------------------------------------------- Ladies and Gentlemen: We have assisted in the preparation of a Registration Statement on Form S-8 (the "Registration Statement") to be filed with the Securities and Exchange Commission relating to 4,000,000 shares of Common Stock, $.0006 par value per share (the "Shares"), of Staples, Inc., a Delaware corporation (the "Company"), issuable under the Staples, Inc. 1998 Employee Stock Purchase Plan (the "Plan"). We have examined the Restated Certificate of Incorporation of the Company and the Amended and Restated By-Laws of the Company, each as amended to date, and originals, or copies certified to our satisfaction, of all pertinent records of the meetings of the directors and stockholders of the Company, the Registration Statement and such other documents relating to the Company as we have deemed material for the purposes of this opinion. In examination of the foregoing documents, we have assumed the genuineness of all signatures and the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified or photostatic copies and the authenticity of the originals of such latter documents. Based on the foregoing, we are of the opinion that the Company has duly authorized for issuance the shares of its Common Stock covered by the Registration Statement to be issued under the Plan, as described in the Registration Statement, and such shares, when issued in accordance with the terms of the Plan, will be legally issued, fully paid and nonassessable. -10- 2 Staples, Inc. September 29, 1998 Page 2 We hereby consent to the filing of this opinion with the Securities and Exchange Commission in connection with the Registration Statement. Very truly yours, /s/ Hale and Dorr LLP HALE AND DORR LLP -11- EX-23.2 3 CONSENT OF ERNST & YOUNG LLP 1 EXHIBIT 23.2 CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS We consent to the incorporation by reference in the Registration Statement on Form S-8 pertaining to the Staples, Inc. 1998 Employee Stock Purchase Plan of our report dated June 29, 1998 with respect to the consolidated financial statements of Staples, Inc. included in its Current Report on Form 8-K dated July 1, 1998, filed with the Securities and Exchange Commission. /s/ Ernst & Young LLP ERNST & YOUNG LLP Boston, Massachusetts September 24, 1998 EX-23.3 4 CONSENT OF KUPFERBERG, GOLDBERG & NEIMARK, LLC 1 EXHIBIT 23.3 CONSENT OF KUPFERBERG, GOLDBERG & NEIMARK, LLC, INDEPENDENT AUDITORS We consent to the incorporation by reference in the Registration Statement on Form S-8 pertaining to Staples, Inc. 1998 Employee Stock Purchase Plan of our report dated February 24, 1998 with respect to the consolidated financial statements of Quill Corporation and Subsidiary as of December 31, 1997 and 1996, and for each of the three years in the period ended December 31, 1997, included in the Current Report on Form 8-K dated July 1, 1998, of Staples, Inc. filed with the Securities and Exchange Commission. /s/ Kupferberg, Goldberg & Neimark, LLC KUPFERBERG, GOLDBERG & NEIMARK, LLC Chicago, Illinois September 25, 1998 -2- -----END PRIVACY-ENHANCED MESSAGE-----