EXHIBIT 99.1
Amendment No. 2 to Agreement and Plan of Merger
This Amendment No. 2 dated as of May 27, 1997 to Agreement and Plan of
Merger dated as of September 4, 1996, as amended (the "Merger Agreement"), among
Staples, Inc. ("Staples"), Xxxxxx Acquisition Corp. ("Sub") and Office Depot,
Inc. ("Office Depot").
WHEREAS, Staples, Sub and Office Depot desire to amend the Merger
Agreement upon the terms set forth below.
NOW, THEREFORE, for valuable consideration, the receipt of which is
hereby acknowledged, the parties agree as follows:
1. Section 8.01(b) of the Merger Agreement is hereby amended to read in
its entirety as follows:
"(b) by either Staples or Office Depot if the Merger shall not
have been consummated by June 30, 1997 (the "Outside Date"), provided
that the right to terminate this Agreement under this Section 8.01(b)
will not be available to any party whose failure to fulfill any
obligation under this Agreement has been the cause of or resulted in
the failure of the Merger to occur on or before such date; or"
2. The following new Section 8.06 is hereby added to the Merger
Agreement immediately after Section 8.05:
"Section 8.06. Additional Termination Right. Notwithstanding
anything to the contrary in this Agreement, (i) Staples and Office
Depot shall each have the right to terminate this Agreement, by written
notice to the other, whether before or after approval of the matters
presented in connection with the Merger by the stockholders of Office
Depot or Staples, at any time during the period commencing upon the
issuance by the United States District Court for the District of
Columbia (the "District Court") in Civil Action No. 97-701 of its
ruling disposing of the FTC's motion for a preliminary injunction with
respect to the Merger and ending at 11:59 p.m. (Boston time) on the
fourth business day following the day on which the written ruling of
the District Court disposing of such motion is first published, and
(ii) neither Staples nor Office Depot shall be under any obligation to
effect the Merger prior to the expiration of the termination right set
forth in clause (i) of this Section 8.06."
3. Except as amended hereby, the Merger Agreement shall remain in full
force and effect in accordance with its terms.
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WHEREAS, Staples, Sub and Office Depot have caused this Amendment to be
signed by the respective officers thereunto duly authorized as of the date first
above written.
STAPLES, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
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XXXXXX ACQUISITION CORP.
By: /s/ Xxxxxx X. Xxxxxxxx
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OFFICE DEPOT, INC.
By: /s/ Xxxxx X. Xxxxxx
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