EXHIBIT 10.8
EXECUTION COPY
AMENDMENT NO. 1 TO THE
STOCK OPTION AGREEMENT
THIS AMENDMENT NO. 1 TO THE STOCK OPTION AGREEMENT (this "Amendment No.
1"), dated as of November 30, 2001, is by and between Temple-Inland Inc., a
Delaware corporation ("Parent") and Xxxxxxx Container Corporation, a Delaware
corporation (the "Company").
W I T N E S S E T H:
WHEREAS, Parent, Temple-Inland Acquisition Corporation, a Delaware
corporation and an indirect wholly-owned subsidiary of Parent ("Merger
Subsidiary"), and the Company, concurrently with the execution and delivery of
this Amendment No. 1, will enter into an Amendment No. 1 to the Agreement and
Plan of Merger, dated as of the date hereof, which amends, among other things,
the Agreement and Plan of Merger, dated as of September 27, 2001 (as amended,
the "Merger Agreement"), and all annexes, schedules, exhibits and attachments
thereto, to reflect the change in the offer price in Merger Subsidiary's Offer
(as defined in the Merger Agreement), from $1.80 to $1.25 per Share; and
WHEREAS, Parent and the Company have entered into a Stock Option Agreement,
dated as of September 27, 2001 (the "Stock Option Agreement"); and
WHEREAS, Parent and the Company have agreed to amend the Stock Option
Agreement as set forth below.
NOW, THEREFORE, in consideration of the foregoing and the representations,
warranties, covenants and agreements contained herein, and intending to be
legally bound hereby, Parent and the Company hereby agree as follows:
1. Definitions. Capitalized terms used and not otherwise defined in this
Amendment No. 1 shall have the respective meanings assigned to such terms in the
Stock Option Agreement.
2. Exercise Price Per Share. The Stock Option Agreement shall be amended as
follows to reflect a reduction from $1.80 to $1.25 in the Exercise Price:
The first sentence of Section 1.1 of the Stock Option Agreement shall
be deleted in its entirety and replaced by the following:
"The Company hereby grants to Parent an irrevocable option (the "Option")
to purchase up to such number of newly-issued shares (the "Shares") of
Class A Common Stock, par value $.0001 per share, of the Company (the
"Company
Common Stock") as is equal to 19.9% of the Shares outstanding on the date
of exercise of the Option at a purchase price per share of $1.25 (the
"Exercise Price"), in the manner set forth in Sections 1.2 and 1.3 of this
Agreement."
3. Representations and Warranties of the Company. The Company represents
and warrants to Parent as follows:
The Company has all requisite corporate power and authority to execute
and deliver this Amendment No. 1. The execution, delivery and performance by the
Company of this Amendment No. 1 have been duly authorized by the Board of
Directors of the Company and no other corporate action on the part of the
Company is necessary to authorize the execution, delivery and performance by
the Company of this Amendment No. 1. This Amendment No. 1 has been duly
executed and delivered by the Company and, assuming due and valid
authorization, execution and delivery thereof by Parent, this Amendment No. 1
is a valid and binding obligation of the Company enforceable against the
Company in accordance with its terms.
4. Representations and Warranties of Parent. Parent represents and
warrants to the Company as follows:
Parent has all requisite corporate power and authority to execute and
deliver this Amendment No. 1. The execution, delivery and performance by Parent
of this Amendment No. 1 have been duly authorized by the Board of Directors of
Parent and no other corporate action on the part of Parent is necessary to
authorize the execution, delivery and performance by Parent of this Amendment
No. 1. This Amendment No. 1 has been duly executed and delivered by Parent and,
assuming due and valid authorization, execution and delivery thereof by the
Company, this Amendment No. 1 is a valid and binding obligation of Parent
enforceable against Parent in accordance with its terms.
5. Miscellaneous.
(a) The headings contained in this Amendment No. 1 are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Amendment No. 1 or the Stock Option Agreement.
(b) This Amendment No. 1 may be executed in one or more counterparts, all
of which shall be considered one and the same agreement and shall become
effective when one or more counterparts have been signed by each party and
delivered to the other party.
(c) This Amendment No. 1 shall be governed by and construed in accordance
with the laws of the State of Delaware without giving effect to the principles
of conflicts of law thereof.
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(d) Except as specifically provided herein, the Stock Option Agreement
shall remain in full force and effect. In the event of any inconsistency
between the provisions of this Amendment No. 1 and any provision of the Stock
Option Agreement, the terms and provisions of this Amendment No. 1 shall govern
and control.
[Signature page follows.]
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IN WITNESS WHEREOF, each of Parent and the Company has caused this
Amendment No. 1 to be executed on its behalf by its respective officer
thereunto duly authorized, all as of the date first above written.
TEMPLE-INLAND INC.
By: /s/ M. XXXXXXX XXXXXX
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Name: M. Xxxxxxx Xxxxxx
Title: Vice President and Chief
Administrative Officer
XXXXXXX CONTAINER CORPORATION
By: /s/ XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
Title: Chief Financial Officer
