EXHIBIT 10.2
VIKING STOCK OPTION AGREEMENT
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STOCK OPTION AGREEMENT, dated as of May 18, 1998 (the "Agreement"), between
Office Depot, Inc., a Delaware corporation (the "Grantee"), and Viking Office
Products, Inc., a California corporation (the "Grantor").
WHEREAS, the Grantee, the Grantor and VK Acquisition Corp., a California
corporation and a wholly-owned subsidiary of the Grantee ("Newco"), are entering
into an Agreement and Plan of Merger, dated as of the date hereof (the "Merger
Agreement"), which provides, among other things, for the merger (the "Merger")
of Newco with and into the Grantee;
WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, the Grantee has requested that the Grantor grant to the Grantee an
option to purchase the shares of Common Stock of the Grantor (the "Common
Stock") covered hereby, upon the terms and subject to the conditions hereof; and
WHEREAS, in order to induce the Grantee to enter into the Merger Agreement,
the Grantor is willing to grant the Grantee the requested option.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements set forth herein, the parties hereto agree as follows:
1. The Option; Exercise; Adjustments; Payment of Spread; Termination.
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(a) Contemporaneously herewith the Grantee, Newco and the Grantor are
entering into the Merger Agreement, and Grantor has amended the Viking Rights
Plan (as defined in the Merger Agreement). Subject to the other terms and
conditions set forth herein, the Grantor hereby grants to the Grantee an
irrevocable option (the "Option") to purchase up to 16,929,500 shares
(representing approximately 19.9% of the outstanding shares of Common Stock as
of the date hereof) of Common Stock (the "Shares") at a cash purchase price
equal to $33.60 per Share (the "Purchase Price"). The Option may be exercised by
the Grantee, in whole or in part, at any time, or from time to time, following
the occurrence of one of the events set forth in Section 2(c) hereof and prior
to the termination of the Option in accordance with the terms of this Agreement.
(b) In the event of any change in the number of issued and outstanding
shares of Common Stock by reason of any stock dividend, stock split, split-up,
recapitalization, merger or other change in the corporate or capital structure
of the Grantor, the number of Shares subject to the Option and the purchase
price per Share shall be appropriately adjusted to restore the Grantee to its
rights hereunder, including its right to purchase Shares representing 19.9% of
the capital stock of the Grantor entitled to vote generally for the election of
the directors of the
Grantor which is issued and outstanding immediately prior to the exercise of the
Option at an aggregate purchase price equal to the Purchase Price multiplied by
16,929,500.
(c) In the event the Grantee wishes to exercise the Option, the
Grantee shall send a written notice to the Grantor (the "Exercise Notice")
specifying a date (subject to the requirements of the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, as amended (the "HSR Act")) not later than
10 business days and not earlier than the next business day following the date
such notice is given for the closing of such purchase.
(d) If an Alternative Transaction involving Grantor is consummated
within twelve months after termination of the Merger Agreement such that the
$50,000,000 fee is payable pursuant to Section 8.03(c) of the Merger Agreement,
then the Grantee may (i) at any time the Option is then exercisable pursuant to
the terms of Section 1(a) hereof elect, in lieu of exercising the Option to
purchase Shares provided in Section 1(a) hereof, to send a written notice to the
Grantor (the "Cash Exercise Notice") specifying a date not later than 20
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business days and not earlier than 10 business days following the date such
notice is given on which date the Grantor shall pay to the Grantee an amount in
cash equal to the Spread (as hereinafter defined) multiplied by all or such
portion of the Shares subject to the Option as Grantee shall specify, or (ii) at
any time prior to 30 days after the first anniversary of the Merger Termination
Date (as defined in Section 1(e)), if the Grantee has exercised the Option and
purchased the Shares hereunder, Grantee may send a written notice to the Grantor
(the "Put Notice") specifying a date not later than 20 business days and not
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earlier than 10 business days following the date such notice is given on which
date the Grantee may sell to the Grantor Shares purchased hereunder and the
Grantor shall pay to the Grantee an amount in cash equal to the higher of (m)
the Alternative Purchase Price (as hereinafter defined) or (n) the average of
the closing sales prices of the shares of Common Stock on Nasdaq for the five
trading days ending five days prior to the date of the Put Notice, multiplied by
the number of such Shares sold by the Grantee to the Grantor on such date (such
purchase and sale to be closed in a manner substantially consistent with the
procedures outlined in Section 3 hereof). As used herein "Spread" shall mean
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the excess, if any, over the Purchase Price of the higher of (x) if applicable,
the highest price per share of Common Stock (including any brokerage
commissions, transfer taxes and soliciting dealers' fees) paid by any person in
an Alternative Transaction (as defined in Section 8.03(g) of the Merger
Agreement) (the "Alternative Purchase Price") or (y) the average of the closing
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sales prices of the shares of Common Stock on the Nasdaq for the five trading
days ending five days prior to the date of the Cash Exercise Notice. If the
Alternative Purchase Price includes any property other than cash, the
Alternative Purchase Price shall be the sum of (A) the fixed cash amount, if
any, included in the Alternative Purchase Price plus (B) the fair market value
of such other property determined in accordance with the procedures set forth in
Section 7(b) (but using the date of the Cash Exercise Notice or the Put Notice,
as the case may be). Upon exercise of the Grantee's right to receive cash
pursuant to Section 1(d)(i) and the payment of such cash to the Grantee, the
obligations of the Grantor to deliver Shares pursuant to Section 3 shall be
terminated
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with respect to such number of Shares for which the Grantee shall have elected
to be paid the Spread.
(e) The right to exercise the Option shall terminate at the earliest
of (i) the Effective Time (as defined in the Merger Agreement), (ii) the
termination of the Merger Agreement pursuant to circumstances under which the
Grantee is not entitled to receive the termination fee pursuant to Section
8.03(c) of the Merger Agreement, (iii) the date on which the Grantee realizes a
Total Profit equal to the Profit Limit (as such terms are defined in Section 10)
and (iv) 180 days after the date (the "Merger Termination Date") on which the
Merger Agreement is terminated (the date referred to in clause (iv) being
hereinafter referred to as the "Option Expiration Date"); provided that if the
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Option cannot be exercised or the Shares cannot be delivered to Grantee upon
such exercise because the conditions set forth in Section 2(a) or Section 2(b)
hereof have not yet been satisfied, the Option Expiration Date shall be extended
until 30 days after such impediment to exercise has been removed.
2. Conditions to Delivery of Shares. The Grantor's obligation to deliver
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Shares upon exercise of the Option is subject only to the conditions that:
(a) No preliminary or permanent injunction or other order issued by
any federal or state court of competent jurisdiction in the United States
prohibiting the delivery of the Shares shall be in effect; and
(b) Any applicable waiting periods under the HSR Act shall have
expired or been terminated; and
(c) The Grantee shall have become entitled to terminate the Merger
Agreement under circumstances that would entitle the Grantee to receive some or
all of the termination fee pursuant to Section 8.03(c) of the Merger Agreement.
3. The Closing.
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(a) Any closing hereunder shall take place on the date specified by
the Grantee in its Exercise Notice at 9:00 A.M., local time, at the offices of
Xxxxxx & Xxxxxxx, 000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx,
or, if the conditions set forth in Section 2(a) or 2(b) have not then been
satisfied, on the second business day following the satisfaction of such
conditions, or at such other time and place as the parties hereto may agree (the
"Closing Date"). On the Closing Date, the Grantor will deliver to the Grantee a
certificate or certificates, duly endorsed (or accompanied by duly executed
stock powers), representing the Shares in the denominations designated by the
Grantee in its Exercise Notice and the Grantee will purchase such Shares from
the Grantor at the price per Share equal to the Purchase Price. Any payment made
by the Grantee to the Grantor, or by the Grantor to the Grantee, pursuant to
this Agreement
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shall be made by certified or official bank check or by wire transfer of federal
funds to a bank designated by the party receiving such funds.
(b) The certificates representing the Shares may bear an appropriate
legend relating to the fact that such Shares have not been registered under the
Securities Act of 1933, as amended (the "Securities Act").
4. Representations and Warranties of the Grantor. The Grantor represents
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and warrants to the Grantee that: (a) the Grantor is a corporation duly
organized, validly existing and in good standing under the laws of the State of
California and has the requisite corporate power and authority to enter into and
perform this Agreement; (b) the execution and delivery of this Agreement by the
Grantor and the consummation by it of the transactions contemplated hereby have
been duly authorized by the Board of Directors of the Grantor and this Agreement
has been duly executed and delivered by a duly authorized officer of the Grantor
and constitutes a valid and binding obligation of the Grantor, enforceable in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights, to general equity principles and to
the California General Corporation Law; (c) the Grantor has taken all necessary
corporate action to authorize and reserve the Shares issuable upon exercise of
the Option and the Shares, when issued and delivered by the Grantor upon
exercise of the Option, will be duly authorized, validly issued, fully paid and
non-assessable and free of any lien, security interest or other adverse claim
and free of any preemptive rights; (d) except as otherwise required by the HSR
Act, the execution and delivery of this Agreement by the Grantor and the
consummation by it of the transactions contemplated hereby do not require the
consent, waiver, approval or authorization of or any filing with any person or
public authority and will not violate, require a consent or waiver under, result
in a breach of or the acceleration of any obligation under, or constitute a
default under, any provision of any charter or by-law, indenture, mortgage,
lien, lease, agreement, contract, instrument, order, law, rule, regulation,
stock market rule, judgment, ordinance, decree or restriction by which the
Grantor or any of its subsidiaries or any of their respective properties or
assets is bound; (e) no "fair price", "moratorium", "control share acquisition"
or other form of antitakeover statute or regulation is or shall be applicable to
the acquisition of Shares pursuant to this Agreement; and (f) the Grantor has
taken all corporate action necessary so that the grant and any subsequent
exercise of the Option by the Grantee will not result in the separation or
exercisability of rights under the Rights Agreement, dated as of January 20,
1997 between the Grantor and the American Stock Transfer and Trust Company, as
Rights Agent.
5. Representations and Warranties of the Grantee. The Grantee represents
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and warrants to the Grantor that: (a) the execution and delivery of this
Agreement by the Grantee and the consummation by it of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
on the part of the Grantee and this Agreement has been duly executed and
delivered by a duly authorized officer of the Grantee and constitutes a valid
and binding obligation of the Grantee; and (b) the Grantee is acquiring the
Option and, if and when it
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exercises the Option, will be acquiring the Shares issuable upon the exercise
thereof for its own account and not with a view to distribution or resale in any
manner which would be in violation of the Securities Act.
6. Listing of Shares; HSR Act Filings; Governmental Consents. Subject to
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applicable law and the rules and regulations of the Nasdaq National Market, the
Grantor shall (i) promptly file a notice to list the Shares on the Nasdaq
National Market and (ii) make, as promptly as practicable, all necessary filings
by the Grantor under the HSR Act and use its best efforts to obtain all
necessary approvals thereunder as promptly as practicable; provided, however,
that if the Grantor is unable to effect such listing on the Nasdaq National
Market by the Closing Date, the Grantor will nevertheless be obligated to
deliver the Shares upon the Closing Date. Each of the parties hereto will use
its best efforts to obtain consents of all third parties and governmental
authorities, if any, necessary to the consummation of the transactions
contemplated.
7. Right of First Refusal. If the Grantee, at any time prior to the
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earlier of (a) the occurrence of a Change in Control Event (as defined herein)
or (b) 30 days after the first anniversary of the Merger Termination Date, seeks
to sell all or any part of the Shares (i) in a transaction registered under the
Securities Act (other than in a registered public offering in which the
underwriters are instructed to achieve a broad public distribution) or (ii) in a
transaction not required to be registered under the Securities Act (other than
in a transfer by operation of law upon consummation of a merger), it shall give
the Grantor (or a designee of the Grantor) the opportunity, in the following
manner, to purchase such Shares:
(a) The Grantee shall give notice to the Grantor in writing of its
intent to sell Shares (a "Disposition Notice"), specifying the number of Shares
to be sold, the price and, if applicable, the material terms of any agreement
relating thereto. For purposes of this Section 7, if the Disposition Notice is
given with respect to the sale of the Shares pursuant to a tender or exchange
officer, it shall be assumed that all Shares tendered will be accepted for
payment. The Disposition Notice may be given at any time, including prior to the
giving of any Exercise Notice.
(b) The Grantor or its designee shall have the right, exercisable by
written notice given to the Grantee within five business days after receipt of a
Disposition Notice (or, if applicable, in the case of a proposed sale pursuant
to a tender or exchange offer for shares of Common Stock, by written notice
given to the Grantee at least two business days prior to the then announced
expiration date of such tender or exchange offer (the "Expiration Date") if such
Disposition Notice was given at least four business days prior to such
Expiration Date), to purchase all, but not less than all, of the Shares
specified in the Disposition Notice at the price set forth in the Disposition
Notice. If the purchase price specified in the Disposition Notice includes any
property other than cash, the purchase price to be paid by the Grantor shall be
an amount of cash equal to the sum of (i) the cash included in the purchase
price plus (ii) the fair market value
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of such other property at the date of the Disposition Notice. If such other
property consists of securities with an existing public trading market, the
average closing price (or the average closing bid and asked price if closing
prices are unavailable) for such securities on their principal public trading
market for the five trading days ending five days prior to the date of the
Disposition Notice shall be deemed to equal the fair market value of such
property. If such other property consists of something other than cash or
securities with an existing public trading market and, at the time of the
closing referred to in paragraph (c) below, agreement on the value of such other
property has not been reached, the higher of (i) the cash included in the
purchase price and (ii) the average closing price of the Common Stock on the
Nasdaq National Market for the five trading days ending five days prior to the
date of the Disposition Notice shall be used as the per share purchase price;
provided, however, that promptly after the closing, the Grantee and the Grantor
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or its designee, as the case may be, shall settle any additional amounts to be
paid or returned as a result of the determination of fair market value of such
other property made by a nationally recognized investment banking firm selected
by the Grantor and approved by the Grantee within 30 days of the closing. Such
determination shall be final and binding on all parties hereto. If, at the time
of the purchase of any Shares by the Grantor (or its designee) pursuant to this
Section 7, a tender or exchange offer is outstanding, then the Grantor (or its
designee) shall agree at the time of such purchase to promptly pay to Grantee
from time to time such additional amounts, if any, so that the consideration
received by Grantee with respect to each Share shall be equal to the highest
price paid for a share of Common Stock pursuant to such tender or exchange, or
pursuant to any other tender or exchange offer outstanding at any time such
tender or exchange offer is outstanding.
(c) If the Grantor exercises its right of first refusal hereunder, the
closing of the purchase of the Shares with respect to which such right has been
exercised shall take place within five business days after the notice of such
exercise (or, if applicable, in the case of a tender or exchange offer, no later
than one business day prior to the expiration date of the offer if written
notice was given within the time set forth in the parenthetical in the first
sentence of paragraph (b) above); provided, however, that at any time prior to
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the closing of the purchase of Shares hereunder, the Grantee may determine not
to sell the Shares and revoke the Disposition Notice and, by so doing, cancel
the Grantor's right of first refusal with respect to the disposition in
question. The Grantor (or its designee) shall pay for the Shares in immediately
available funds.
(d) If the Grantor does not exercise its right of first refusal
hereunder within the time specified for such exercise, the Grantee shall be free
for 90 days following the expiration of such time for exercise to sell the
Shares (or enter into an agreement to sell the Shares) specified in the
Disposition Notice, at the price specified in the Disposition Notice or any
price in excess thereof and otherwise on substantially the same terms set forth
in the Disposition Notice; provided, that if such sale is not consummated within
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such 90-day period (or the agreement to
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sell entered into in such 90 day period is not thereafter performed in
accordance with its terms), then the provisions of this Section 7 will again
apply to the sale of such Shares.
(e) For purposes of the Agreement, a "Change in Control Event" shall
be deemed to have occurred if (i) any person has a n acquired beneficial
ownership of more than 50% (excluding the Shares) of the outstanding shares of
Common Stock or (ii) the Grantor shall have entered into an agreement, including
without limitation an agreement in principle, providing for a merger or other
business combination involving the Grantor or the acquisition of 30% or more of
the assets of the Grantor and its subsidiaries, taken as a whole.
8. Repurchase of Shares. If a Change in Control Event has not occurred
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prior to the first anniversary date of the Merger Termination Date, then
beginning on such anniversary date, the Grantor shall have the right to purchase
(the "Repurchase Right") all, but not less than all, of the Shares at the
greater of (i) the Purchase Price, or (ii) the average closing price of the
Common Stock on the Nasdaq National Market for the five trading days ending five
days prior to the date the Grantor gives written notice of its intention to
exercise the Repurchase Right. If the Grantor does not exercise the Repurchase
Right within 30 days following the first anniversary of the Merger Termination
Date, the Repurchase Right shall terminate. In the event the Grantor wishes to
exercise the Repurchase Right, the Grantor shall send a written notice to the
Grantee specifying a date (not later than 10 business days and not earlier than
two business days following the date such notice is given) for the closing of
such purchase.
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9. Registration Rights.
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(a) In the event that the Grantee shall desire to sell any of the
Shares within three years after the purchase of such Shares pursuant hereto, and
such sale requires, in the opinion of counsel to the Grantee, which option shall
be reasonably satisfactory to the Grantor and its counsel, registration of such
Shares under the Securities Act, the Grantor will cooperate with the Grantee and
any underwriters registering such Shares for resale, including, without
limitation, promptly filing a registration statement which complies with the
requirements of applicable federal and state securities laws and entering into
an underwriting agreement with such underwriters upon such terms and conditions
as are customarily contained in underwriting agreements with respect to
secondary distributions; provided that the Grantor shall not be required to have
declared effective more than two registration statements hereunder and shall be
entitled to delay the filing or effectiveness of any registration statement for
up to 120 days if the offering would, in the judgment of the Board of Directors
of the Grantor, require premature disclosure of any material corporate
development or otherwise interfere with or adversely affect any pending or
proposed offering of securities of the Grantor or any other material transaction
involving the Grantor.
(b) If the Common Stock is registered pursuant to the provisions of
this Section 9, the Grantor agrees (i) to furnish copies of the registration
statement and the prospectus relating to the Shares covered thereby in such
numbers as the Grantee may from time to time reasonably request and (ii) if any
event shall occur as a result of which it becomes necessary to amend or
supplement any registration statement or prospectus, to prepare and file under
the applicable securities laws such amendments and supplements as may be
necessary to keep available for at least 90 days a prospectus covering the
Common Stock meeting the requirements of such securities laws, and to furnish to
the Grantee such numbers of copies of the registration statement and prospectus
as amended or supplemented as may reasonably be requested. The Grantor shall
bear the cost of the registration, including, but not limited to, all
registration and filing fees, printing expenses, and fees and disbursements of
counsel and accountants for the Grantor, except that the Grantee shall pay the
fees and disbursements of its counsel and the underwriting fees and selling
commissions applicable to the Shares sold by the Grantee. The Grantor shall
indemnify and hold harmless Grantee, its affiliates and its officers and
directors from and against any and all losses, claims, damages, liabilities and
expenses arising out of or based upon any statements contained in, omissions or
alleged omissions from, each registration statement filed pursuant to this
paragraph; provided, however, that this provision does not apply to any loss,
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liability, claim, damage or expense to the extent it arises out of any statement
or omission made in reliance upon and in conformity with written information
furnished to the Grantor by the Grantee, its affiliates or its officers
expressly for use in any registration statement (or any amendment thereto) or
any preliminary prospectus filed pursuant to this paragraph. The Grantor shall
also indemnify and hold harmless each underwriter and each person who controls
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any underwriter within the meaning of either the Securities Act or the
Securities Exchange Act of 1934 against any and all losses, claims, damages,
liabilities and expenses arising out of or based upon any statements contained
in, omissions or alleged omissions from, each registration statement filed
pursuant to this paragraph; provided, however, that this provision does not
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apply to any loss, liability, claim, damage or expense to the extent it arises
out of any statement or omission made in reliance upon and in conformity with
written information furnished to the Grantor by the underwriters expressly for
use in any registration statement (or any amendment thereto) or any preliminary
prospectus filed pursuant to this paragraph.
10. Profit Limitation.
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(a) Notwithstanding any other provision of this Agreement, in no
event shall the Grantee's Total Profit (as hereinafter defined) exceed $125
million (the "Profit Limit") and, if it otherwise would exceed such amount, the
Grantee, at its sole election, shall either (i) deliver to the Grantor for
cancellation Shares previously purchased by Grantee, (ii) pay cash or other
consideration to the Grantor, or (iii) undertake any combination thereof, so
that Grantee's Total Profit shall not exceed the Profit Limit after taking into
account the foregoing actions.
(b) Notwithstanding any other provision of this Agreement, the Option
may not be exercised for a number of Shares as would, as of the date of the
Exercise Notice, result in a Notional Total Profit (as defined below) of more
than the Profit Limit and, if exercise of the Option otherwise would exceed the
Profit Limit, the Grantee, at its discretion, may increase the Purchase Price
for that number of Shares set forth in the Exercise Notice so that the Notional
Total Profit shall not exceed the Profit Limit; provided, that nothing in this
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sentence shall restrict any exercise of the Option permitted hereby on any
subsequent date at the Purchase Price set forth in Section 1(a) hereof.
(c) As used herein, the term "Total Profit" shall mean the aggregate
amount (before taxes) of the following: (i) the amount of cash received by
Grantee pursuant to Section 8.03(c) of the Merger Agreement, (ii) (x) the amount
received by Grantee pursuant to the Grantor's repurchase of Shares pursuant to
Sections 1(d), 7 or 8 hereof, less (y) the Grantee's purchase price for such
Shares, (iii) the amount received by Grantee in respect of a Cash Exercise
Notice pursuant to Section 1(d) hereof, and (iv) (x) the net cash amounts
received by Grantee pursuant to the sale of Shares (or any other securities into
which such Shares are converted or exchanged) to any unaffiliated party, less
(y) the Grantee's purchase price for such Shares.
(d) As used herein, the term "Notional Total Profit" with respect to
any number of Shares as to which Grantee may propose to exercise the Option
shall be the Total Profit determined as of the date of the Exercise Notice
assuming that the Option were exercised on such date for such number of Shares
and assuming that such Shares, together with all other Shares held by Grantee
and its affiliates as of such date, were sold for cash at the closing market
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price for the Common Stock as of the close of business on the preceding trading
day (less customary brokerage commissions).
11. Expenses. Each party hereto shall pay its own expenses incurred in
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connection with this Agreement, except as otherwise specifically provided
herein.
12. Specific Performance. The Grantor acknowledges that if the Grantor
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fails to perform any of its obligations under this Agreement, immediate and
irreparable harm or injury would be caused to the Grantee for which money
damages would not be an adequate remedy. In such event, the Grantor agrees that
the Grantee shall have the right, in addition to any other rights it may have,
to specific performance of this Agreement. Accordingly, if the Grantee should
institute an action or proceeding seeking specific enforcement of the provisions
hereof, the Grantor hereby waives the claim or defense that the Grantee has an
adequate remedy at law and hereby agrees not to assert in any such action or
proceeding the claim or defense that such a remedy at law exists. The Grantor
further agrees to waive any requirement for the securing or posting of any bond
in connection with obtaining any such equitable relief.
13. Notice. All notices, requests, demands and other communications
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hereunder shall be deemed to have been duly given and made if in writing and if
served by personal delivery upon the party for whom it is intended or delivered
by registered or certified mail, return receipt requested, or if sent by
facsimile transmission, upon receipt of oral confirmation that such transmission
has been received, to the person at the address set forth below, or such other
address as may be designated in writing hereafter, in the same manner, by such
person.
If to the Grantor: Viking Office Products, Inc.
000 Xxxx 000xx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxxx, President
Telecopy: (000) 000-0000
With a copy to: Xxxxxx & Xxxxxxx
000 X Xxxxxx, Xxxxx 0000
Xxx Xxxxx, XX 00000-0000
Attn: Xxxx Xxxxxx Xxxxxx, Esq.
Telecopy: (000) 000-0000
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If to the Grantee: Office Depot, Inc.
0000 Xxx Xxxxxxxxxx Xxxx
Xxxxxx Xxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxxxxxxx, Executive Vice President
Telecopy: (000) 000-0000
With a copy to: Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx X. Xxxx, Esq.
Telecopy: (000) 000-0000
14. Parties in Interest. Nothing in this Agreement, express or
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implied, is intended to confer upon any person other than the Grantor or the
Grantee, or their successors or assigns, any rights or remedies under or by
reason of this Agreement.
15. Entire Agreement; Amendments. This Agreement, together with the
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Merger Agreement and the other documents referred to therein, contains the
entire agreement between the parties hereto with respect to the subject matter
hereof and supersedes all prior and contemporaneous agreements and
understandings, oral or written, with respect to such transactions. The terms
of this Agreement may be amended, modified or waived only by an agreement in
writing signed by the party against whom such amendment, modification or waiver
is sought to be enforced.
16. Assignment. No party to this Agreement may assign any of its
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rights or obligations under this Agreement without the prior written consent of
the other party hereto, except that the Grantee may assign its rights and
obligations hereunder to any direct or indirect wholly-owned subsidiary of the
Grantee (provided that such assignment shall not relieve the Grantee of its
obligations hereunder if such transferee does not perform such obligations). Any
Shares sold or transferred by the Grantee to any other person or entity in
compliance with the terms hereof (other than a direct or indirect wholly-owned
subsidiary of the Grantee) shall no longer have the benefit of the rights
provided for herein with respect to such Shares (including without limitation
those set forth in Sections 1(d) and 9) and shall no longer be subject to the
restrictions or rights in favor of the Grantor provided for herein with respect
to such Shares (including without limitation those set forth in Sections 7 and
8).
17. Headings. The section headings herein are for convenience only
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and shall not affect the construction of this Agreement.
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18. Counterparts. This Agreement may be executed in any number of
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counterparts, each of which, when executed, shall be deemed to be an original
and all of which together shall constitute one and the same document.
19. Governing Law. This Agreement shall be governed by and construed
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in accordance with the laws of the State of Delaware (regardless of the laws
that might otherwise govern under applicable Delaware principles of conflicts of
law).
20. Survival. All representations and warranties contained in this
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Agreement shall survive delivery of and payment for the Shares.
21. Severability. If any term, provision, covenant or restriction of
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this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
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IN WITNESS WHEREOF, the Grantee and the Grantor have caused this Agreement
to be duly executed and delivered on the day and year first above written.
OFFICE DEPOT, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
-------------------------
Title: Secretary
VIKING OFFICE PRODUCTS, INC.
By: /s/ Xxxxx Xxxxxxx
--------------------
Title: Chief Executive Officer
13
