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EXHIBIT 2.2
AMENDMENT NO. 1
TO
AGREEMENT AND PLAN OF MERGER
This AMENDMENT NO. 1 is entered into as of May 21, 1998 for the purpose
of amending the Agreement and Plan of Merger dated as of April 6, 1998 (the
"Merger Agreement") by and among Staples, Inc., a Delaware corporation (the
"BUYER"), Musketeer Acquisition Corp., a Delaware corporation and a wholly owned
subsidiary of the Buyer (the "TRANSITORY SUBSIDIARY"), Quill Corporation, a
Delaware corporation (the "COMPANY"), and those stockholders of the Company
listed on EXHIBIT A hereto, each of which is a signatory hereto (the "COMPANY
STOCKHOLDERS"). Capitalized terms used herein which are not defined herein shall
have the meanings ascribed to them in the Merger Agreement.
In consideration of the covenants and agreements herein contained and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties amend the Merger Agreement as follows:
1. Article IV of the Merger Agreement is hereby amended to add
the following section:
"4.10 FUNDING OF SETTLEMENT AMOUNTS. The Buyer agrees that, at the
Closing, it shall cause to be paid by the Company, contribute to or otherwise
make available to the Company and/or the Surviving Corporation, immediately
available funds sufficient to satisfy the payment obligation to Xxxxxx Xxxxxx,
as Trustee of the Xxxxxx Xxxxxx Revocable Trust dated May 11, 1983, pursuant to
the Settlement Agreement between such stockholder and the Company dated April 6,
1998, as amended. The Parties agree that such payment is, and shall be, required
to be funded by the Buyer, the Company and/or the Surviving Corporation at or
following the Closing and shall not in any manner be deemed the obligation or
responsibility of any Company
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Stockholder or the Company prior to the Closing. Any amount paid by the Company
in respect of Dissenting Shares shall not reduce the Incremental Amount."
2. Section 7.1 of the Merger Agreement is hereby amended to read
in its entirety as follows:
"7.1 DEMAND REGISTRATION. The Buyer shall use its Reasonable Best
Efforts to file with the Securities and Exchange Commission (the "SEC"), (i)
within 60 days following the Closing, a registration statement on Form S-3 (or
its successors) (or Form S-1, if Form S-3 (or its successor) is then unavailable
to the Buyer) covering the resale to the public by the Rightsholders (as defined
below) of up to 50% of the Registrable Shares (as defined below) (the "INITIAL
STOCKHOLDER REGISTRATION STATEMENT"), and (ii) at the request of any of the
Stockholder Representatives after the first anniversary of the Closing, a second
registration statement on Form S-3 covering the resale to the public by the
Rightsholders of the balance of the Registrable Shares or any portion thereof
(the "SECOND STOCKHOLDER REGISTRATION STATEMENT" and, with the Initial
Stockholder Registration Statement, the "Stockholder Registration Statements").
The Buyer shall use its Reasonable Best Efforts to cause each Stockholder
Registration Statement to be declared effective by the SEC as soon as
practicable after the filing thereof, PROVIDED that the Initial Stockholder
Registration Statement shall not be declared effective until after financial
results covering at least 30 days of combined operations of the Company and the
Buyer after the Effective Time shall have been publicly released. The Buyer
shall use its Reasonable Best Efforts to cause the Stockholder Registration
Statements to remain effective until the second anniversary of the Closing Date
or such earlier time as all of the Registrable Shares covered by the Stockholder
Registration Statements have been sold pursuant thereto. For purposes of this
Agreement, "REGISTRABLE SHARES" shall mean (i) the Merger Shares and (ii) the
shares of Buyer Common Stock issued in the transactions contemplated by the Real
Estate Agreements."
3. Sections 7.2 through 7.10 of the Merger Agreement are hereby
amended by replacing the phrase "Merger Shares", wherever it appears, with the
phrase "Registrable Shares."
4. Section 7.2(b) of the Merger Agreement is hereby amended to
read in its entirety as follows:
"(b) Subject to the provisions of Section 7.2(c), the Buyer
shall offer each Company Stockholder and each person or entity acquiring shares
of Buyer Common Stock in the transactions contemplated by the Real Estate
Agreements
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(collectively, the "RIGHTSHOLDERS") the opportunity to include in such
registration all or such lesser amount of its Registrable Shares (other than
those covered by a Stockholder Registration Statement then in effect) as each
Rightsholder may request. Upon request of one or more such holders given in
writing within 10 days after receipt of the notice described under clause (a)
above, the Buyer, subject to the provisions of clause (d), shall cause any such
Registrable Shares specified by such Rightsholder to be included in the
registration statement."
5. Sections 7.2(c) through 7.10 of the Merger Agreement are
hereby amended by replacing the phrases "Company Stockholder" and "Company
Stockholders", wherever they appear, with the phrases "Rightsholder" and
"Rightsholders", respectively.
6. Section 9.2 of the Merger Agreement is hereby amended to read
in its entirety as follows:
"9.2. THIRD PARTY BENEFICIARIES. This Agreement (other than Sections
4.8 and 4.10 and Article VII) shall not confer any rights or remedies upon any
person other than the Parties and their respective successors, heirs,
representatives and permitted assigns."
7. Article IX of the Merger Agreement is hereby amended to add
the following section:
"9.14. TRUSTEE EXCULPATION. When this Agreement is executed by the
trustee of any trust, such execution is by the trustee, not individually but
solely as trustee in the exercise of and under the power and authority conferred
upon and invested in such trustee, and it is expressly understood and agreed
that nothing herein contained shall be construed as creating any liability on
any such trustee personally to pay any amounts required to be paid hereunder, or
to perform any covenant, either express or implied, contained herein, all such
liability, if any, being expressly waived by the Parties by their execution
hereof (provided that this shall not be construed to relieve the trust of any
such liability).
8. This Amendment may be executed in two or more counterparts,
each of which shall be deemed an original but all of which together shall
constitute one and the same instrument. This Agreement may be executed by
facsimile signature.
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date first above written.
STAPLES, INC.
By: /s/ Xxxx X. Xxxxxxx
-------------------------------------
Title:
----------------------------------
MUSKETEER ACQUISITION CORP.
By: /s/ Xxxx X. Xxxxxxx
-------------------------------------
Title:
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QUILL CORPORATION
By: /s/ Xxxx Xxxxxx
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Title: President
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Xxxx Xxxxxx as trustee of the Xxxx Xxxxxx
Trust dated January 18, 1984
By: /s/ Xxxx Xxxxxx
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Xxxxxx X. Xxxxxx as trustee of the
Xxxxxx X. Xxxxxx Trust dated
January 21, 1983
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
THE NORTHERN TRUST
COMPANY, AS
TRUSTEE OF EACH OF
EACH OF THE TRUSTS
LISTED BELOW:
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
-----------------------------------
Title: Vice President
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Xxxx Xxxxxx Family Trust #1 dated May
31, 1983 F/B/O Xxxxxx X. Xxxxxxxxx
Xxxx Xxxxxx Family Trust #1 dated May
31, 1983 F/B/O Xxxxxx X. Ring
Xxxx Xxxxxx Family Trust #2 dated May
31, 1983
Xxxxxx X. Xxxxxx Family Trust #1 dated
May 21, 1983 F/B/O Xxxxxx Xxxxxxx
Xxxxxx
Xxxxxx X. Xxxxxx Family Trust #1 dated
May 21, 1983 F/B/O Xxxx Xxxxx Xxxxxx
Xxxxxx X. Xxxxxx Family Trust #1 dated
May 21, 1983 F/B/O Xxxxxx Xxxx Xxxxxx
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Xxxxxx X. Xxxxxx Family Trust #2 dated
May 21, 1983
Xxxx Xxxxxx 1991 Term Trust #3 dated
July 31, 1991
Xxxxxx X. Xxxxxx 1991 Term Trust #3
dated July 31, 1991
Xxxx Xxxxxx Family Trust #2 dated
May 31, 1983 F/B/O Xxxxxx X.
Xxxxxxxxx
Xxxx Xxxxxx Family Trust #2 dated May
31, 1983 F/B/O Xxxxxx X. Ring
Xxxxxx X. Xxxxxx Family Trust #2 dated
May 31, 1983 F/B/O Xxxx Xxxxx Xxxxxx
Xxxxxx X. Xxxxxx Family Trust #2 dated
May 31, 1983 F/B/O Xxxxxx Xxxx Xxxxxx
Xxxx Xxxxxx Family Trust #4 dated July
31, 1991 F/B/O Xxxxxx X. Xxxxxxxxx
Xxxx Xxxxxx Family Trust #4 dated July
31, 1991 F/B/O Xxxxxx X. Ring
Xxxxxx X. Xxxxxx Family Trust #4 dated
July 31, 1991 F/B/O Xxxx Xxxxx Xxxxxx
Xxxxxx X. Xxxxxx Family Trust #4 dated
July 31, 1991 F/B/O Xxxxxx Xxxx Xxxxxx
Xxxxxx X. Xxxxxx Family Trust #4 dated
July 31, 1991 F/B/O Xxxxxx Xxxxxxx
Xxxxxx
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