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EXHIBIT 2.2
FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER
First Amendment (the "First Amendment"), dated as of August 13, 1998,
by and among Office Depot, Inc., a Delaware corporation ("Depot"), VK
Acquisition Corp., a California corporation and a direct, wholly-owned
subsidiary of Depot ("Sub"), and Viking Office Products, Inc., a California
corporation ("Viking") to Agreement and Plan of Merger (the "Merger Agreement"),
dated May 18, 1998, between Depot, Sub and Viking.
RECITALS
The Board of Directors of each of Depot, Sub and Viking have approved
the terms of this First Amendment to the Merger Agreement. Depot, Sub and Viking
desire to enter into this First Amendment, and the proposed First Amendment is
in compliance with the terms of Section 8.04 of the Merger Agreement relating to
amendments to the Merger Agreement. This amendment precedes approval by the
stockholders of Viking and Depot of the matters presented in connection with the
Merger (as defined in the Merger Agreement).
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
ARTICLE I
CERTAIN MODIFICATIONS TO THE MERGER AGREEMENT
Section 1.1 AMENDMENT OF SECTION 3.17 AND THE
VIKING DISCLOSURE SCHEDULE.
(a) Section 3.17 of the Merger Agreement is hereby amended to delete
the word "Neither" in the first line thereof and to substitute in its place
"Except as disclosed in Section 3.17 of the Viking Disclosure Schedule,
neither".
(b) The Viking Disclosure Schedule to the Merger Agreement is hereby
amended to add the following to the end of such schedule:
"Schedule 3.17
1. Employees of Viking Direct France, S.A.R.L., a subsidiary of Viking,
are party to a collective bargaining agreement.
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2. Employees of Viking Office Products Pty Limited are members of a
labor union as prescribed by Australian law. Such union activity is ordinary
course for like businesses in Australia."
Section 1.2. AMENDMENT OF SECTION 8.03(C). Section 8.03(c)
of the Merger Agreement is hereby amended to read in its entirety as follows:
"(c) Upon the earliest to occur of the following events:
(i) the termination of this Agreement by Depot
pursuant to Section 8.01(d), if prior to the Viking Stockholders'
Meeting a proposal for an Alternative Transaction (as defined below)
reasonably capable of being performed involving Viking or which is a
Superior Proposal shall have been made; or
(ii) the termination of this Agreement by Depot
pursuant to Section 8.01(e),
Viking shall pay to Depot a termination fee of $28,500,000 and, in the
event an Alternative Transaction involving Viking is consummated within 12
months after such termination, Viking shall pay to Depot an additional fee
of $47,500,000.
Viking's payment of a termination fee pursuant to this
subsection shall be the sole and exclusive remedy of Depot against Viking
and any of its Subsidiaries and their respective directors, officers,
employees, agents, advisors or other representatives with respect to the
occurrences giving rise to such payment (other than as set forth in the
Viking Stock Option Agreement); provided such limit shall not limit
liability for a willful breach of this Agreement."
ARTICLE II
MISCELLANEOUS
Section 2.1 TERMS AND CONDITIONS. Except as specifically modified
herein, all other terms and conditions of the Merger Agreement shall remain in
full force and effect.
Section 2.2 BINDING EFFECT OF AMENDMENT TO MERGER AGREEMENT. This First
Amendment is an amendment to the Merger Agreement and, as provided therein, will
be binding on all the parties thereto.
Section 2.3 COUNTERPARTS. This First Amendment may be executed in two
or more counterparts, all of which shall be considered one and the same
agreement and shall become effective when two or more counterparts have been
signed by each of the parties and delivered to the other parties, it being
understood that all parties need not sign the same counterpart.
(SIGNATURE PAGE FOLLOWS)
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to be signed by their respective officers thereunto duly authorized as of the
date first written above.
Office Depot, Inc.
By: _____________________
Name: Xxxxx X. Xxxxxx
Title: Chairman of the Board
By: _____________________
Name: Xxxxx X. Xxxxxxxxx
Title: Secretary
VK Acquisition Corp.
By: _____________________
Name: Xxxxx X. Xxxxxx
Title: President
By: _____________________
Name: Xxxxx X. Xxxxxxxxx
Title: Secretary
Viking Office Products, Inc.
By: _____________________
Name: Xxxxx Xxxxxxx
Title: Chairman of the Board
By: _____________________
Name: Xxxxxxxxx Xxxxxxxx
Title: Secretary
