Exhibit 10.8
LOANOUT AGREEMENT
This LOANOUT AGREEMENT is dated as of February 23, 1999
(the "AGREEMENT"), by and among U.S. Office Products Company, a Delaware
corporation (the "COMPANY"), and Xxxxxxx, Dubilier & Rice, Inc., a Delaware
corporation ("CD&R"),
W I T N E S S E T H:
WHEREAS, the Company and CD&R are parties to a Consulting
Agreement, dated as of June 10, 1998 (the "CONSULTING AGREEMENT"), and to an
Indemnification Agreement, dated as of June 10, 1998 (the "INDEMNIFICATION
AGREEMENT"), among CDR-PC Acquisition, L.L.C., the Company, CD&R and Xxxxxxx &
Dubilier & Rice Fund V Limited Partnership;
WHEREAS, the Company desires to obtain the services of Xx.
Xxxxxxx X. Xxxxxx ("XXXXXX"), an employee of CD&R, to perform the functions of
Chief Executive Officer of the Company, and CD&R is willing to make such
services available to the Company upon and subject to the terms and conditions
hereof; and
WHEREAS, this Agreement has been approved by the Board of
Directors of the Company, including a majority of the disinterested directors;
NOW, THEREFORE, in consideration of the foregoing premises and
the respective agreements hereinafter set forth and the mutual benefits to be
derived here from, the parties hereto hereby agree as follows:
1. SERVICES, ETC.
CD&R shall make the services of Xxxxxx available to the
Company, and the Company shall make use of the services of Xxxxxx to serve as
Chief Executive Officer of the Company, commencing and effective as of
February 23, 1999, until the expiration of the Term (as defined in Section 2
hereof). Xxxxxx shall be available to render such services on a basis
mutually agreeable to the Company, CD&R and Xxxxxx. Without limiting the
foregoing, Xxxxxx will continue to serve as an employee of CD&R and may serve
as an officer or director of CD&R or other corporations or entities and
devote such time to performing such services as Xxxxxx, in his sole
discretion, shall deem necessary or appropriate. The services of Xxxxxx to be
made available to the Company and its subsidiaries hereunder shall be deemed
part of the services provided by CD&R pursuant to the Consulting Agreement.
No separate or additional consideration shall be payable hereunder for the
services of Xxxxxx, beyond that payable under the Consulting Agreement.
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2. TERM.
(a) This Agreement shall be effective as of February 23,
1999. The term of this Agreement (the "TERM") shall commence on February 23,
1999 and shall terminate on the earliest to occur of (i) the termination of
the Consulting Agreement, (ii) the date that is ten (10) business days
following delivery of written notice of such termination by any party hereto
to the other parties hereto, (iii) the election of a successor Chief
Executive Officer of the Company by the Board of Directors of the Company in
accordance with its by-laws, and (iv) Xxxxxx'x death, permanent disability or
resignation from his employment with CD&R.
(b) The expiration of the Term shall not affect the continuing
effectiveness of the Consulting Agreement or the Indemnification Agreement, each
of which shall continue to be in full force and effect and enforceable in
accordance with their respective terms. Without limiting the foregoing, the
Company shall continue to, and shall be obligated to, pay and reimburse all
fees, expenses and other amounts as and when due under the Consulting Agreement
and the Indemnification Agreement and perform all their other obligations
thereunder.
3. INDEMNIFICATION.
All performance by, and all actions or omissions of, CD&R or
Xxxxxx under or in respect of this Agreement shall be deemed to be pursuant to
the Consulting Agreement, and each of CD&R and Xxxxxx shall be entitled to the
benefits of the indemnification and other provisions of the Consulting Agreement
and the Indemnification Agreement.
4. INDEPENDENT CONTRACTOR STATUS.
CD&R and the Company agree that the furnishing of Xxxxxx'x
services hereunder by CD&R is solely as an independent contractor, with CD&R
retaining control over and responsibility for its own operations and personnel,
including Xxxxxx. Neither CD&R nor any of its directors, officers, employees or
agents (including Xxxxxx) shall, solely by virtue of this Agreement or the
arrangements hereunder, be considered employees, principals, partners,
co-venturers or agents of the Company.
5. NOTICES.
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Any notice or other communication required or permitted to be
given or made under this Agreement by one party to the other parties shall be in
writing and shall be deemed to have been duly given and to be effective (i) on
the date of delivery if delivered personally or (ii) when sent if sent by
prepaid telegram, or mailed first-class, postage prepaid, by registered or
certified mail or confirmed facsimile transmission, as follows (or to such other
address as shall be given in writing by one party to the other parties in
accordance herewith):
If to the Company to:
U.S. Office Products Company
0000 Xxxxxx Xxxxxxxxx Xxxxxx, X.X.
Suite 600 East
Washington, D.C. 20007
ATTN: Xxxx X. Director
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
With a copy to:
Xxxxxx, Xxxxxx & Xxxxxxxxx
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
ATTN: Xxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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If to CD&R to:
Xxxxxxx, Dubilier & Rice, Inc.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
With a copy to:
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
6. GENERAL.
(a) ENTIRE AGREEMENT. This Agreement together with the
Consulting Agreement and the Indemnification Agreement (i) contain the complete
and entire understanding and agreement of CD&R and the Company with respect to
the subject matter hereof, and (ii) supersede all prior and contemporaneous
understandings, conditions and agreements, oral or written, express or implied,
in respect of the subject matter hereof, including but not limited to in respect
of the furnishing of the services of Xxxxxx in connection with the subject
matter hereof. There are no representations or warranties of Xxxxxx or CD&R in
connection with this Agreement or the services to be made available hereunder,
except as expressly made and contained in this Agreement.
(b) HEADINGS. The headings contained in this Agreement are for
purposes of convenience only and shall not affect the meaning or interpretation
of this Agreement.
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(c) COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original and all of which
shall together constitute one and the same instrument.
(d) BINDING EFFECT; ASSIGNMENT. This Agreement shall be
binding upon and inure to the benefit of the parties to this Agreement and their
respective successors and assigns, PROVIDED that neither CD&R nor the Company
may assign any of its rights or obligations under this Agreement without the
express written consent of the other parties hereto.
(e) GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER, AND IS TO BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ANY CONFLICTS LAWS THAT
WOULD REQUIRE THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. EACH OF THE
COMPANY AND CD&R HEREBY IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK AND THE FEDERAL COURTS OF THE UNITED STATES OF
AMERICA LOCATED IN XXX XXXXX, XXXX XXX XXXXXX XX XXX XXXX SOLELY IN RESPECT OF
THE INTERPRETATION AND ENFORCEMENT OF THE PROVISIONS OF THIS AGREEMENT, AND THE
PARTIES HERETO HEREBY IRREVOCABLY AGREE THAT (i) THE SOLE AND EXCLUSIVE
APPROPRIATE VENUE FOR ANY ACTION, SUIT OR PROCEEDING RELATING TO SUCH
INTERPRETATION AND ENFORCEMENT SHALL BE IN SUCH A COURT, (ii) ALL CLAIMS WITH
RESPECT TO SUCH PROVISIONS SHALL BE HEARD AND DETERMINED EXCLUSIVELY IN SUCH A
COURT, (iii) ANY SUCH COURT SHALL HAVE EXCLUSIVE JURISDICTION OVER THE PERSON OF
SUCH PARTIES AND OVER THE SUBJECT MATTER OF ANY DISPUTE RELATING TO SUCH
PROVISIONS AND (iv) EACH HEREBY WAIVES, AND AGREES NOT TO ASSERT, ANY AND ALL
OBJECTIONS AND DEFENSES BASED ON FORUM, VENUE OR PERSONAL OR SUBJECT MATTER
JURISDICTION AS THEY MAY RELATE TO SUCH AN ACTION, SUIT OR PROCEEDING BEFORE
SUCH A COURT IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION 6(e), PROVIDED
THAT ENFORCEMENT OF A JUDGMENT RENDERED BY SUCH A COURT MAY BE SOUGHT IN ANY
COURT OF COMPETENT JURISDICTION FOR THE ENFORCEMENT THEREOF. EACH OF THE COMPANY
AND CD&R HEREBY CONSENT TO AND GRANT ANY SUCH COURT JURISDICTION OVER THE PERSON
OF SUCH PARTIES AND OVER THE SUBJECT
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MATTER OF ANY SUCH DISPUTE AND AGREE THAT MAILING OF PROCESS OR OTHER PAPERS IN
CONNECTION WITH ANY SUCH ACTION OR PROCEEDING IN THE MANNER PROVIDED IN SECTION
5, OR IN SUCH OTHER MANNER AS MAY BE PERMITTED BY LAW, SHALL BE VALID AND
SUFFICIENT SERVICE THEREOF.
(f) WAIVER OF JURY TRIAL. Each party hereto acknowledges and
agrees that any controversy that may arise under this Agreement is likely to
involve complicated and difficult issues, and therefore it hereby irrevocably
and unconditionally waives any right it may have to a trial by jury in respect
of any litigation directly or indirectly arising out of or relating to this
Agreement, or the breach, termination or validity of this Agreement, or the
transactions contemplated by this Agreement. Each party certifies and
acknowledges that (i) no representative, agent or attorney of any other party
has represented, expressly or otherwise, that such other party would not, in the
event of litigation, seek to enforce the foregoing waiver, (ii) it understands
and has considered the implications of this waiver, (iii) it makes this waiver
voluntarily, and (iv) it has been induced to enter into this Agreement by, among
other things, the mutual waivers and certifications contained in this Section
6(f).
(g) AMENDMENT; WAIVERS. No amendment, modification, supplement
or discharge of this Agreement, and no waiver hereunder, shall be valid or
binding unless set forth in writing and duly executed by the party against whom
enforcement of the amendment, modification, supplement, discharge or waiver is
sought (and in the case of the Company, approved by resolution of the Board of
Directors of the Company). Any such waiver shall constitute a waiver only with
respect to the specific matter described in such writing and shall in no way
impair the rights of the party granting such waiver in any other respect or at
any other time. Neither the waiver by any party hereto of a breach of or a
default under any of the provisions of this Agreement, nor the failure by any
party, on one or more occasions, to enforce any of the provisions of this
Agreement or to exercise any right or privilege hereunder, shall be construed as
a waiver of any other breach or default of a similar nature, or as a waiver of
any of such provisions, rights or privileges hereunder. The rights and remedies
herein provided are cumulative and are not exclusive of any rights or remedies
that any party may otherwise have at law or in equity or otherwise.
IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the date first above written.
U.S. Office Products Company
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By /s/ Xxxx X. Director
-------------------------------------
Name: Xxxx X. Director
Title: Executive Vice President -
Administration and Secretary
XXXXXXX, DUBILIER & RICE, INC.
By /s/ Xxxxx X. Xxxx
-------------------------------------
Name: Xxxxx X. Xxxx
Title: Executive Vice President
