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.
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 11
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)
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: /s/ Xxxxx X. Xxxxxx
---------------------
Name: Xxxxx X. Xxxxxx
Title: Chairman of the Board
By: /s/ Xxxxx X. Xxxxxxxxx
----------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Secretary
VK Acquisition Corp.
By: /s/ Xxxxx X. Xxxxxx
----------------------
Name: Xxxxx X. Xxxxxx
Title: President
By: /s/ Xxxxx X. Xxxxxxxxx
----------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Secretary
Viking Office Products, Inc.
By: /s/ Xxxxx Xxxxxxx
----------------------
Name: Xxxxx Xxxxxxx
Title: Chairman of the Board
By: /s/ Xxxxxxxxx Xxxxxxxx
----------------------
Name: Xxxxxxxxx Xxxxxxxx
Title: Secretary
