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As filed with the Securities and Exchange Commission
on September 30, 1997
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
Staples, Inc.
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(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
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(Address of principal executive offices) (Zip Code)
STAPLES, INC. SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
----------------------------------------------------
(Full title of the plans)
Peter M. Schwarzenbach, Esq.
Vice President and General Counsel
Staples, Inc.
One Research Drive
Westborough, Massachusetts 01581-5114
-------------------------------------
(Name and address of agent for service)
(508) 370-8500
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(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------
Title of Securities to Amount to be Proposed Maximum Proposed Maximum Amount of Registration
be Registered Registered (1) Offering Price Per Aggregate Offering Fee (2)
Share (2) Price (2)
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.0006 100,000 shares $27.09 $2,709,000 $935.00
par value
- -----------------------------------------------------------------------------------------------------------------------
</TABLE>
In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
Registration Statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the employee benefit plan(s) described herein.
(1) The Staples, Inc. Supplemental Executive Retirement Plan (the "Plan")
permits contributions to be used to purchase shares of the Registrant's
Common Stock in the open market. The number of shares registered represents
a three-year estimate, based on the estimated aggregate amount of employee
and employer contributions to the Plan during such three-year period, of
the maximum number of shares which would be issuable, based on the average
of the high and low prices of the Common Stock on the Nasdaq National
Market on September 23, 1997.
(2) 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 23, 1997, in accordance
with Rules 457(c) and (h) of the Securities Act of 1933, as amended.
Page 1 of 12 pages.
Exhibit Index begins on page 9.
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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. 401(k) Supplemental Executive Retirement
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.
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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
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<PAGE> 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.
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(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.
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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 30, 1997.
STAPLES, INC.
By: /s/ Thomas G. Stemberg
---------------------------
Thomas G. Stemberg
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, Peter M. Schwarzenbach 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.
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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 dates indicated.
<TABLE>
<CAPTION>
SIGNATURES CAPACITY DATE
<S> <C> <C>
/s/ Thomas G. Stemberg Chief Executive Officer September 30, 1997
- ----------------------------- and Director
Thomas G. Stemberg
/s/ Martin E. Hanaka President, Chief Operating September 30, 1997
- ----------------------------- Officer and Director
Martin E. Hanaka
/s/ John J. Mahoney Executive Vice President September 30, 1997
- ----------------------------- and Chief Financial Officer
John J. Mahoney (Principal Financial Officer)
/s. Robert K. Mayerson Senior Vice President-Finance September 30, 1997
- ----------------------------- and Corporate Controller
Robert K. Mayerson (Principal Accounting Officer)
/s/ Basil L. Anderson Director September 30, 1997
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Basil L. Anderson
/s/ Mary Elizabeth Burton Director September 30, 1997
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Mary Elizabeth Burton
Director
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W. Lawrence Heisey
/s/ James L. Moody Director September 30, 1997
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James L. Moody
/s/ Rowland T. Moriarty Director September 30, 1997
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Rowland T. Moriarty
</TABLE>
-7-
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<TABLE>
<CAPTION>
<S> <C> <C>
/s/ Robert C. Nakasone Director September 30, 1997
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Robert C. Nakasone
Director
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W. Mitt Romney
Director
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Martin Trust
Director
/s/ Paul F. Walsh September 30, 1997
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Paul F. Walsh
</TABLE>
-8-
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EXHIBIT INDEX
Exhibit
Number Exhibit Page
- ------ ------- ----
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
24.1 Power of Attorney (included in the signature pages of this
Registration Statement)
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EXHIBIT 5.1
HALE AND DORR LLP
60 STATE STREET
BOSTON, MA 02109
September 30, 1997
Staples, Inc.
One Research Drive
Westborough, MA 01581-5114
Re: Staples, Inc. Supplemental Executive Retirement 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 100,000 shares of Common Stock, $.0006 par value per
share (the "Shares"), of Staples, Inc., a Delaware corporation (the "Company"),
issuable under the Staples, Inc. Supplemental Executive Retirement 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.
<PAGE> 2
Staples, Inc.
September 30, 1997
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
<PAGE> 1
EXHIBIT 23.2
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement
on Form S-8 pertaining to the Staples, Inc. Supplemental Executive Retirement
Plan of our report dated March 3, 1997 (except for Note B, as to which the date
is April 22, 1997), with respect to the consolidated financial statements of
Staples, Inc. included in its Annual Report (Form 10-K) for the fiscal year
ended February 1, 1997, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
ERNST & YOUNG LLP
Boston, Massachusetts
September 25, 1997
