Exhibit 99.2
Confidential Materials omitted and filed separately
with the
Securities and Exchange Commission. Asterisks denote omissions.
IRREVOCABLE UNDERTAKING
This Agreement
is made this third day of June 2008.
BETWEEN:
(1) STAPLES ACQUISITION B.V.,
a company incorporated under the laws of The Netherlands, having its statutory
seat in Amsterdam, The Netherlands (“Staples”);
and
(2) [·], a company
incorporated under the laws of [·], having its office
address at [·] ([·]) (the “Shareholder”).
WHEREAS:
(A) On 19 May 2008
Staples published an offer document (biedingsbericht)
(the “Offer Document”) pursuant to
and subject to the terms and conditions of which Staples made a public offer
(the “Offer”) for inter alia all
issued and outstanding ordinary shares of Corporate Express N.V. (the “CXP Shares”), a public limited liability
company (naamloze vennootschap),
incorporated under the laws of The Netherlands, having its corporate seat in
Maastricht, The Netherlands (“CXP”)
for a cash-only consideration of EUR 8.00 for each CXP Share.
(B) On 21 May 2008
CXP and Lyreco SAS announced their intention to combine both companies (the “Lyreco Transaction”) and on 29 May 2008
the Company announced to convene an extraordinary general meeting of
shareholders on 18 June 2008 (“EGM”) the
record date (the “Record Date”)
for which was set at 17.00 hours CET on 29 May 2008.
(C) Staples
intends to continue to pursue good faith discussions with CXP in relation to
the Offer.
(D) The
Shareholder, either for its own account or on behalf and or for the account of
funds managed by it, holds [·] CXP Shares.
(E) Staples
wishes to secure the tender by the Shareholder in the Offer of the Relevant
Shares (as defined below) and intends to increase its offer price for each CXP
Share to EUR 9.15 (the “Increased Offer Price”)
and to commit to waiving the 75% minimum acceptance condition set out in
section 6.5.1 of the Offer Document if and when at or prior to the Acceptance
Closing Time there have been tendered for acceptance under the Offer such
number of Ordinary Shares, including Ordinary Shares represented by ADSs,
Preference Shares and Bonds that the votes attached to those securities,
together with the votes attached to the same types of securities owned by CXP
and/or Staples and/or any of its affiliates at the Unconditional Date,
represent at least 51% of votes attached to the Ordinary Shares, including
Ordinary Shares represented by ADSs, Preference Shares and Bonds issued and
outstanding at the Unconditional Date (such increase in the offer price and
commitment to waive the relevant condition to the Offer together the “Condition”). For purposes of the calculation of the
percentage of votes
referred to in the preceding sentence, (i) the
Bonds shall be deemed to give right to such number of votes as would have been
the case if they had been converted on the Business Day immediately preceding
the Unconditional Date at a conversion price of EUR 6.87 per Bond, (ii) the
Ordinary Shares, Preference Shares or Bonds shall include any options granted
by Corporate Express to subscribe for Ordinary Shares, Preference Shares or
Bonds, as the case may be, that are not exercised and have not otherwise
resulted in the issue by Corporate Express of such Ordinary Shares, Preference
Shares or Bonds, as the case may be, to the option holders on or prior to the Unconditional
Date and (iii) defined terms used in this clause that are not otherwise
defined in this Agreement shall be deemed to have the meaning ascribed thereto
in the Offer Document.
NOW IT IS HEREBY AGREED AS FOLLOWS:
1. IRREVOCABLE UNDERTAKING
1.1 Conditional upon the
fulfilment of the Condition and subject to the terms of this Agreement the
Shareholder hereby undertakes and agrees to accept the Offer and to tender
under the Offer (the “Irrevocable Undertaking”):
1.1.1 the CXP Shares held by the Shareholder;
and
1.1.2 any CXP Shares and any other
securities to which the Offer relates that the Shareholder acquires after
signing this Agreement but before the expiry of the regular acceptance period
of the Offer.
(the CXP
Shares referred to under (a) and (b) together the “Relevant Shares”).
1.2 The Shareholder hereby
confirms and represents to Staples that:
1.2.1 the Shareholder, either for
its own account or on behalf of and/or for the account of funds managed by it,
owns and holds and has the power to accept the offer and to tender under the
Offer [·] CXP Shares;
1.2.2 it has the power to exercise
the voting rights attached to [·] CXP Shares at the
EGM;
1.2.3 it has all relevant power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby (including the acceptance of the Offer in respect of the
CXP Shares referred to in clause 1.1 above) and there are no restrictions or
limitations pertaining thereto;
1.2.4 it does not hold any other
CXP Shares or any rights to subscribe, purchase or otherwise acquire any other
CXP Shares or other securities of CXP; and
1.2.5 other than specifically
provided for in this Agreement, it is not relying on any representation or
warranty from Staples or any of its affiliates, directors, employees or
advisors.
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1.3 The Shareholder’s irrevocable
acceptance of the Offer in respect of the Relevant Shares shall be made
ultimately on the last day of the tender period (aanmeldingstermijn) of the Offer.
1.4 The Relevant Shares shall be
tendered with full title guarantee free from any charge, pledge, lien,
restriction, right of first refusal, right of pre-emption, or other encumbrance
or security interest, or another type of preferential arrangement having
similar effect (collectively, “Liens”)
and shall be delivered with all rights attaching to the Relevant Shares at the
date of settlement of the Offer as described in the Offer Document (the “Settlement Date”).
1.5 Unless and until the Offer
lapses or is withdrawn or the Shareholder’s obligations under the Irrevocable
Undertaking lapse in accordance with the terms of this Agreement, the
Shareholder will, unless specifically permitted by this Agreement, not:
1.5.1 sell, transfer, grant any
option over or otherwise dispose of, or bring about a transaction in, any of
the Relevant Shares or any interest in any of the Relevant Shares, except under
the Offer; or
1.5.2 do anything that can
reasonably be expected to cause the Shareholder not to be able to exercise the
voting rights attached to the Relevant Shares at any general meeting of
shareholders of CXP that may take place between the date hereof and the date on
which this Agreement is terminated; or
1.5.3 grant any Lien over or in respect
of any of the Relevant Shares or any interest in any of the Relevant Shares; or
1.5.4 withdraw the tender or
tenders referred to in clause 1.1, except when expressly permitted to do so in
accordance with clause 2.3.
1.6 The Shareholder hereby undertakes
to validly register the CXP Shares referred to in clause 1.2.2 above prior to
the registration date set by CXP in the convening notice for the EGM or any
adjourned or rescheduled subsequent meeting and to follow in any and all
general meetings of shareholders of CXP (including, without limitation, the
EGM) the written voting instructions of Staples with respect to the approval of
the Lyreco Transaction or any and all elements thereof or relating thereto.
2. TERMINATION OF IRREVOCABLE UNDERTAKING
2.1 The Irrevocable Undertaking
and the obligations set out in clauses 1.5 and 1.6 of this Agreement shall
lapse immediately if:
2.1.1 Staples has not publicly
announced that it (a) increased its offer price for each CXP Share to the
Increased Offer Price and (b) committed to waive as contemplated in
Recital (E), in both cases within one business day following the signing of
this Agreement.
2.1.2 the Offer is not declared
unconditional in accordance with its terms and conditions prior to the last of
any of the following dates:
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(a) 2 July 2008; or
(b) in case the acceptance period
of the Offer is extended in accordance with applicable Dutch takeover
regulations, three business days after the final date of such extended
acceptance period; or
(c) in case simultaneously with the
withdrawal or expiry of the Offer Staples announces that it intends to make a
new offer at an offer price per CXP Share equal or higher than the Increased
Offer Price and such new offer is launched within three weeks of that
announcement, three business days after the final date of the acceptance period
or extended acceptance period of such new offer, provided that the Shareholder
may nevertheless terminate this Agreement if in that period of three weeks
Staples has not confirmed in writing to the Shareholder that it is still
pursuing the new offer within five days after a written request from a
Shareholder to this effect;
2.1.3 without prejudice to
sub-clause 2.1.2(c) above, the Offer is withdrawn or a new offer is
launched at an offer price lower than the Increased Offer Price; or
2.1.4 any public bid in respect of
the CXP Shares is made by a third party at an offer price per CXP Share that is
at least [**] higher than the Increased Offer Price or a transaction is being
agreed by CXP with a third party with a similar (intended) effect as such
public bid (i.e., either a legal merger in which the Company is the
disappearing party or any transaction involving a transfer of all or virtually all
of the assets of CXP and a liquidation or informal liquidation of CXP) and
which is made at a price per CXP Share, or generates net proceeds to the
Shareholders, which in the reasonable opinion of the Shareholder is that is at
least [**] higher than the Increased Offer Price (a “Higher Competing Offer”), provided however that such
alternative transaction may not have
financing, regulatory or other conditions that are on the whole
materially less certain to be satisfied than the equivalent conditions of the
Offer or that would be reasonably likely to result in material delays in the
consummation of that alternative transaction.
2.2 If a Higher Competing Offer
is made, the Shareholder will give the opportunity to Staples to make a new
offer at a price which is higher than the Higher Competing Offer (a “New Offer”), provided that if Staples
announces its intention to make a New Offer within 5 business days of the date
on which the Higher Competing Offer is made, the irrevocable undertaking will
stay in place but the irrevocable undertaking is amended to the effect that the
irrevocable undertaking will then lapse if a subsequent higher competing offer
is made that meets the thresholds and other conditions for a higher offer set
out in clause 2.1.4 above as compared to the New Offer.
2.3 If this Irrevocable
Undertaking lapses, the Shareholder shall be entitled to withdraw their
acceptance of the Offer referred to in clause 1.1 and shall have no claim
against
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Staples
and Staples shall have no claim against the Shareholder, provided that such
lapse of the Shareholder’s obligations hereunder shall not affect any rights or
liabilities under this Agreement in respect of prior breaches of it.
2.4 Furthermore,
in the event that CXP would issue Preference Shares B, the Irrevocable
Undertaking and related rights and obligations as set out in this Agreement
would automatically be adjusted as follows:
(a) the undertakings set out
in clause 1.5 would lapse; and
(b) the Irrevocable
Undertaking in clause 1.1 and the voting commitments set out in clause 1.6 in
conjunction with clause 1.2.2 would only apply to such number of CXP Shares as
would actually be owned and held by the Shareholder as at the Acceptance
Closing Date or, as the case may be, the record date for the relevant EGM
3. MISCELLANEOUS
3.1 Except where the context
requires otherwise, in this Agreement the expression the “Offer” extends to any (i) improved or (ii) revised
offer at the same or higher offer price, by Staples whether voluntary or
mandatory.
3.2 Staples warrants that in
entering into this Irrevocable it is acting in conformity with all relevant
Dutch and US corporate laws and Dutch and EU Takeover codes and that it will
make all necessary disclosures to the relevant regulators, CXP and to the
market as required by the such laws and regulations.
3.3 Staples shall, on the day of
the announcement of the Increased Offer Price, procure that the existence of
this Agreement [and the identity of the Shareholder](1), shall be made public
in a press release published on its website.
3.4 Amendments or additions to
this Agreement must be in writing and signed by or on behalf of each party.
3.5 Each party shall pay its own
costs and expenses incurred in the preparation, execution and enforcement of
this Agreement.
3.6 This Agreement is without
prejudice to any relevant legal and regulatory provisions in The Netherlands,
the United Kingdom, the United States of America or other relevant
jurisdictions regarding inter alia, notification of securities transactions and
prevention of insider trading that may apply to Staples and/or the Shareholder.
3.7 This Agreement and the
documents referred to herein contain the whole agreement between the parties
relating to the Offer and supersede all previous agreements, whether oral or in
writing, between the parties relating to such transactions and other matters.
(1) The bracketed language only applies to
holders of 5% or more of the CXP Shares.
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3.8 Except as expressly stated in
this Agreement, the terms of this Agreement may be enforced only by a party to
this Agreement or a party’s permitted assigns or successors. In the event any
third party stipulation (derdenbeding)
contained in this undertaking is accepted by any third party, such third party
will not become a party to this Agreement.
4. ASSIGNMENT
A party may
not assign, encumber, dispose of or otherwise transfer any of its rights under
this Agreement in whole or in part without having obtained the other party’s
prior written consent, provided that (i) if and when an affiliate of
Staples makes a new offer for CXP Shares as contemplated in this Agreement,
Staples may assign its rights under this Agreement to that affiliate and (ii) the
Shareholder may transfer some or all of the Relevant Shares to one or more
funds advised by the Shareholder or any investment manager related to the
Shareholder within the Shareholder’s investment management group, provided that
such transferee agrees to be bound by the obligations of the Shareholder under
this Agreement. In the case of such transfer the Shareholder and the transferee
are jointly and severally liable with respect to the Shareholder’s obligations
under this Agreement.
5. NOTICES
A notice or
other communication under or in connection with this Agreement shall be in
writing and shall be delivered personally or sent by registered express mail
(and air mail if overseas) or by fax to the party due to receive the notice or
communication, at its address or fax number set out hereunder or another
address specified by that party by written notice to the others.
Staples
Acquisition B.V
Jool-Hulstraat 24
1327 HA Almere
The Netherlands
|
Attention:
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The
management board
|
|
Fax number:
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+31 (0) 36
547 8002
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With a copy
to:
Staples, Inc
500 Staples
Drive Framingham,
MA 01702
United States
of America
|
Attention:
|
Kristin
Campbell
|
|
Fax number:
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+1 508 253
1116
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[·]
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Attention:
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[·]
|
|
Fax number:
|
[·]
|
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6. GOVERNING LAW AND JURISDICTION
This Agreement
is governed by, and shall be construed in accordance with, the laws of England
and Wales. Any dispute arising out of or in connection with this Agreement
shall be referred to and finally settled by arbitration under the LCIA Rules,
which rules are deemed to be incorporated by reference into this clause.
The arbitral tribunal will be composed of three arbitrators appointed in
accordance with those Rules. The place of arbitration will be London, United
Kingdom. The language of the arbitration will be English. Notwithstanding the foregoing, any party may
file an application in any court of competent jurisdiction seeking injunctive
or other forms of interim relief.
AS AGREED AND SIGNED in two counterparts
on the date first above written.
STAPLES ACQUISITION B.V.
[·]
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