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EXHIBIT 99.2
FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER
First Amendment, dated as of September 24, 1999 (the "First Amendment"), to
Agreement and Plan of Merger, dated as of July 13, 1999 (the "Original
Agreement"), by and among Xxxxxxxx NV, a company organized under the laws of the
Kingdom of The Netherlands (the "Buyer"), North Acquisition Corporation, a
Colorado corporation and a wholly owned subsidiary of the Buyer (the "Merger
Subsidiary"), and Corporate Express, Inc., a Colorado corporation (the
"Company"). The Buyer, the Merger Subsidiary, and the Company are referred to
collectively herein as the "Parties."
WHEREAS, the Buyer and the Company deem it advisable and in the best
interests of their respective shareholders to amend the Original Agreement to
modify certain provisions relating to the merger consideration, to eliminate
certain conditions to the consummation of the Merger, and to adjust the amount
payable for Stay-Put Bonuses and the Option Termination Adjustment Amount if
there is a reduction in the number of Company Stock Options or Warrants prior to
the Effective Date;
NOW, THEREFORE, in consideration of the premises and the mutual promises
herein made, and in consideration of the representations, warranties, and
covenants herein contained, the Parties agree as follows.
SECTION 1 General
Except as set forth herein, all provisions of the Original Agreement remain
in full force and effect. All capitalized terms used herein but not defined
herein shall have the meanings given to them in the Original Agreement.
SECTION 2 Changes to Section 2.4(e): Conversion of Company Shares
Section 2.4(e) of the Original Agreement is amended to read in full as
follows:
Conversion of Company Common Shares. At and as of the Effective Time,
each Company Common Share issued and outstanding immediately prior to
the Effective Time (other than any Dissenting Shares) shall by virtue of
the Merger and without any action on the part of the holder thereof, be
converted into the right to receive the sum in cash of $9.70 (the
"Merger Consideration").
SECTION 3 Elimination of Provisions re: Delivery Systems Spinoff
Section 5.4 (Delivery Systems Spinoff), Section 5.5 (NASDAQ Listing),
subsection (b) of Section 5.7 (Delivery Systems Spinoff), the words following
the phrase "the Delivery Systems Dispositions shall have been consummated" in
subsection (f) of Section 6.1 (Conditions to Obligation of the Buyer and the
Merger Subsidiary) and subsection (a) of Section 6.2 (Conditions to Obligation
of the Company) are eliminated in their entirety.
SECTION 4 Dispositions
The first two sentences of Section 5.3 (Dispositions) are combined and
amended to read in full as follows:
The Company has applied or will apply the Sofco Proceeds, the Forms
Sale Proceeds and the proceeds from the Expedited Dispositions and the
Delivery Systems Dispositions to repay indebtedness under the Company's
existing credit facility.
The Buyer agrees and acknowledges that, to the extent that the Expedited
Dispositions and the Delivery Systems Dispositions, as such transactions were
consummated in accordance with the definitive agreements relating to such
transactions (copies of which were provided to the Buyer prior to the date
hereof), vary from the requirements set forth in subsections (a), (c), (d) or
(g) of Section 5.3, the Buyer consents to such variations.
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SECTION 5 Adjustment to Stay-Put Bonuses and Option Termination Adjustment
Amount
(a) The first sentence of Section 5.19 (Stay-Put Bonuses) is hereby amended
to read in full as follows:
At the request of the Buyer and in order to retain key and necessary
employees following the Merger, the Company will award special employee
bonuses ("Stay-Put Bonuses") in an aggregate amount not to exceed $9.0
million plus such portion of the Adjustment Amount allocated at or promptly
following the Effective Date by executive management of the Surviving
Corporation to pay Stay-Put Bonuses. Stay-Put Bonuses shall be awarded for
the purpose of retaining employees that the Company and the Buyer believe
are important to the operation of the Company's business following the
Merger.
(b) The definition of "Option Termination Adjustment Amount" is amended to
read in full as follows:
"Option Termination Adjustment Amount" means (a) $10.0 million plus
(b) such portion of the Adjustment Amount allocated at or promptly after
the Effective Date by executive management of the Surviving Corporation to
the Option Termination Adjustment Amount.
(c) The following defined term is hereby added to Article I (Definitions):
"Adjustment Amount" is the amount by which the aggregate Merger
Consideration that would be payable upon the exercise of all Company Stock
Options or Warrants existing on July 13, 1999 that are terminated or
cancelled prior to the Effective Time (other than under Section 5.17(a) or
5.17(c)) exceeds the aggregate exercise price of all such terminated or
cancelled Company Stock Options or Warrants.
SECTION 6 Operation of Business
The following sentence is added at the end of Section 5.11 (Operation of
Business):
Notwithstanding the foregoing, the Company may pay fees and expenses
and remit other amounts payable (in an aggregate amount not to exceed $9.5
million) in connection with the Expedited Dispositions, the Delivery
Systems Dispositions and the Sofco Disposition, including, but not limited
to: legal fees and expenses; audit fees and expenses; accounting fees and
expenses; consulting fees and expenses; investment banking fees and
expenses; employee retention bonuses; sales and incentive bonuses;
transition incentive bonuses and expense reimbursement.
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IN WITNESS WHEREOF, the Parties hereto have executed this First Amendment
as of the date first above written.
XXXXXXXX NV
By: /s/ Xxxxxx Xxxxxx
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Title: Director, Mergers,
Acquisitions and
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Investments
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NORTH ACQUISITION CORPORATION
By: /s/ Xxxxxx Xxxxxx
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Title: Vice President
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CORPORATE EXPRESS
By: /s/ Xxxx X. Xxxxxx
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Title: Executive Vice President
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