INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT, dated as of June 10, 1998 (the
"Agreement"), by and among U.S. Office Products Company, a Delaware corporation
(the "Company"), CDR-PC Acquisition, L.L.C., a Delaware limited liability
company ("CDR-PC"), Xxxxxxx, Dubilier & Rice Fund V Limited Partnership, a
Cayman Islands exempted limited partnership (together with any other investment
vehicle managed by CD&R, the "CD&R Fund"), and Xxxxxxx, Dubilier & Rice, Inc., a
Delaware corporation ("CD&R"). Capitalized terms used herein and not otherwise
defined have the meanings set forth in Section 1 of this Agreement.
WHEREAS, the sole member of CDR-PC is the CD&R Fund, and the
CD&R Fund is managed by CD&R, and the general partner of the CD&R Fund is CD&R
Associates V Limited Partnership, a Cayman Islands exempted limited partnership
(together with any general partner of any other investment vehicle managed by
CD&R, "CD&R Associates"), and the general partners of CD&R Associates are CD&R
Investment Associates II, Inc., a Cayman Islands exempted company, CD&R Cayman
Investment Associates, Inc., a Cayman Islands exempted company, and CD&R
Investment Associates, Inc., a Delaware corporation (the general partners of
CD&R Associates (including any Person that may become a general partner thereof
in the future) are collectively referred to herein as "Associates Inc.");
WHEREAS, the Company and CDR-PC have entered into an
Investment Agreement, dated as of January 12, 1998 (as amended by Amendment No.
1 thereto dated as of February 3, 1998, the "Investment Agreement"), providing
for the issuance and sale by the Company to CDR-PC of shares of Common Stock,
Special Warrants and Warrants, subject to the terms and conditions set forth
therein (the "Investment");
WHEREAS, this Agreement is being entered into pursuant to
Section 9.03(h) of the Investment Agreement;
WHEREAS, concurrently with the execution and delivery of this
Agreement, the Company is entering into a Consulting Agreement, dated as of the
date hereof, by and between the Company and CD&R (the "Consulting Agreement");
WHEREAS, in connection with the solicitation by the Company of
proxies of its stockholders to vote in favor of the Investment and a
one-for-four reverse stock split (the "Reverse Stock Split"), the Company
prepared and filed with the Securities and Exchange Commission (the
"Commission") a proxy statement on Schedule 14A, dated April 30, 1998 (as the
same may be amended from time to time, the "Proxy Statement");
WHEREAS, in connection with the offer (the "Tender Offer") by
the Company to purchase 37,037,037 shares of its Common Stock, including shares
issuable upon exercise of options to purchase Common Stock, at $27.00 per share
(or in the case
of shares underlying stock options, $27.00 minus the exercise price per share of
such options), the Company prepared and filed with the Commission a Tender Offer
Statement on Schedule 13E-4, dated May 4, 1998 (as the same may be amended from
time to time, the "Equity 13E-4"), and CDR-PC and the CD&R Fund prepared and
filed with the Commission a Tender Offer Statement on Schedule 14D-1, dated May
4, 1998 (as the same may be amended from time to time, the "14D-1");
WHEREAS, in connection with the distribution (the
"Distributions") by the Company to its stockholders of all of the common stock
of its wholly owned subsidiaries that hold substantially all of the businesses
and assets of, and are responsible for substantially all of the liabilities
associated with, the Company's technology solutions (Aztec Technology Partners,
Inc.), print management (Workflow Management, Inc.), educational supplies
(School Specialty, Inc.) and corporate travel services (Navigant International,
Inc.) businesses (the "Spin-Off Companies"), the Company prepared and filed with
the Commission a Registration Statement on Form S-1 for each of the Spin- Off
Companies, each dated February 19, 1998 (as the same may be amended from time to
time, the "Distribution S-1s");
WHEREAS, in connection with the issuance (the "Spin-Off
Company Primary Offerings") by each of the Spin-Off Companies of additional
shares of their common stock at approximately the same time as the
Distributions, the Company prepared and filed with the Commission a Registration
Statement on Form S-1 for each of the Spin-Off Companies, each dated March 6,
1998 (as the same may be amended from time to time, the "IPO S-1s");
WHEREAS, in connection with the offer (the "2001 Note Exchange
Offer") by the Company to exchange shares of its Common Stock for its 5 1/2%
Convertible Subordinated Notes due 2001, the Company prepared and filed with the
Commission a Registration Statement on Form S-4, dated April 17, 1998 (as the
same may be amended from time to time, the "S-4"), and a Tender Offer Statement
on Schedule 13E-4, dated May 1, 1998 (as the same may be amended from time to
time, the "2001 Debt 13E-4");
WHEREAS, in connection with the offer (the "2003 Note Tender")
by the Company to purchase its 5 1/2% Convertible Subordinated Notes due 2003,
the Company prepared and filed with the Commission a Tender Offer Statement on
Schedule 13E-4, dated May 5, 1998 (as the same may be amended from time to time,
the "2003 Debt 13E- 4");
WHEREAS, in order to finance the Tender Offer, the 2003 Note
Tender and the other transactions contemplated by the Investment Agreement,
refinance existing
debt and provide liquidity for ongoing business needs, the Company (a) entered
into a Credit Agreement, dated as of June 9, 1998, among the Company, The Chase
Manhattan Bank as Administrative Agent, Bankers Trust Company as Syndication
Agent, Xxxxxxx Xxxxx Capital Corporation as Documentation Agent, Chase
Securities, Inc., and the other lenders named therein, providing for borrowing
of up to a maximum principal amount of $1.225 billion (the "Senior Secured
Credit Facilities"); and (b) offered and sold (the "Senior Subordinated Note
Offering"), in an offering to institutional investors pursuant to Rule 144A
under the Securities Act of 1933, as amended (the "Securities Act"),
$400,000,000 aggregate principal of 9.75% Senior Subordinated Notes due 2008
(the "Senior Subordinated Notes");
WHEREAS, CD&R has performed financial, management advisory and
other services for the Company, including but not limited to providing
assistance in connection with (i) the preparation, negotiation, execution and
delivery of the Distribution Agreement, dated as of June 9, 1998, between the
Company, Workflow Management, Inc., School Specialty, Inc., Aztec Technology
Partners, Inc. and Navigant International, Inc., and other agreements,
instruments and documents relating to the Restructuring Transactions or any
transactions contemplated thereby, (ii) the preparation, filing and circulation
of the Proxy Statement, Equity 13E-4, 2001 Debt 13E-4, 2003 Debt 13E-4, S-4,
Distribution S-1s, and related materials to the stockholders of the Company,
(iii) the retention of various financial and other advisors and consultants in
connection with the Investment, Restructuring Transactions and Securities
Offerings, (iv) the preparation, negotiation, execution and delivery of the
commitment, fee and engagement letters, registration rights and purchase
agreements, credit agreements, indentures and indenture supplements, guarantees,
mortgages, pledge agreements and other security agreements, subscription,
registration rights agreements, exchange agent agreements, and other agreements,
instruments and documents, relating to the Senior Secured Credit Facilities, the
Senior Subordinated Note Offering, or otherwise relating to the Financing or the
other Restructuring Transactions, (v) the preparation and circulation of
information and offering memoranda and other materials in connection with the
Senior Secured Credit Facilities and the Senior Subordinated Note Offering and
(vi) the structuring, implementation and consummation of the foregoing
transactions;
WHEREAS, it is contemplated that the Company will offer (the
"Senior Subordinated Note Exchange Offer") to exchange the Senior Subordinated
Notes for substantially identical notes to be registered on Form S-4;
WHEREAS, the Company or one or more of its Subsidiaries from
time to time in the future (a) may offer and sell or cause to be offered and
sold equity or debt securities (such offerings, together with the Senior
Subordinated Note Exchange Offer, being collectively referred to as the
"Subsequent Offerings"), including without limitation
(i) offerings of shares of common stock of the Company, and/or options to
purchase such shares, to employees, directors, managers and consultants of and
to the Company or any Subsidiary (a "Management Offering"), and (ii) one or more
offerings of debt securities for the purpose of refinancing any indebtedness of
the Company or any Subsidiary or for other corporate purposes, and (b) may
repurchase, redeem or otherwise acquire certain securities (and options in
respect thereof) of the Company or one or more of its Subsidiaries (any such
repurchase or redemption being referred to herein as a "Redemption");
WHEREAS, after giving effect to the Distributions and the
Tender Offer, CDR-PC will be the largest stockholder of the Company; and
WHEREAS, the parties hereto recognize the possibility that
claims might be made against and liabilities incurred by CD&R, CDR-PC, the CD&R
Fund, CD&R Associates, Associates Inc. or related persons or affiliates under
applicable securities laws or otherwise in connection with the Restructuring
Transactions or the Securities Offerings, or relating to other actions or
omissions of or by the Company or its Sub sidiaries, or relating to the
provision by CD&R of management consulting, monitoring and financial advisory
services to the Company or its Subsidiaries, and the parties hereto accordingly
wish to provide for CD&R, CDR-PC, the CD&R Fund, CD&R Associates, Associates
Inc. and related persons and affiliates to be indemnified in respect of any such
claims and liabilities;
NOW, THEREFORE, in consideration of the foregoing premises,
and the mutual agreements and covenants and provisions herein set forth, the
parties hereto hereby agree as follows:
1. Definitions.
(a) "Claim" means with respect to any Indemnitee, any claim
against such Indemnitee involving any Obligation with respect to which such
Indemnitee may be entitled to be defended and indemnified by the Company under
this Agreement.
(b) "Common Stock" means the common stock, par value $.001 per
share, of the Company.
(c) "Financing" means the financing provided for by the Senior
Secured Credit Facilities and the Senior Subordinated Notes.
(d) "Indemnitee" means each of CD&R, CDR-PC, the CD&R Fund,
CD&R Associates, Associates Inc., their respective successors and assigns, and
each of
their respective directors, officers, partners, employees, agents, advisors,
representatives, holders of voting securities and controlling persons (within
the meaning of the Securities Act) and their respective successors and assigns,
and any Person (other than the Company and its Subsidiaries) that controls, is
controlled by, or is under common control with, CD&R, and the directors,
officers, partners, employees, agents, advisors, representatives, holders of
voting securities and controlling persons (within the meaning of the Securities
Act) of such Person and their respective successors and assigns.
(e) "Person" means any individual, partnership, joint venture,
corporation, limited liability company, trust, or unincorporated organization.
(f) "Obligations" means, collectively, any and all claims,
obligations, liabilities, causes of actions, actions, suits, proceedings,
investigations, judgments, decrees, losses, damages, fees, costs and expenses
(including without limitation interest, penalties and fees and disbursements of
attorneys, accountants, investment bankers and other professional advisors), in
each case whether incurred, arising or existing with respect to third parties at
any time or from time to time.
(g) "Related Document" means any agreement, certificate,
instrument or other document to which the Company or any Subsidiary may be a
party or by which it or any of its properties or assets may be bound or affected
from time to time relating in any way to the Restructuring Transactions or any
Securities Offering or any of the transactions contemplated thereby, including
without limitation, in each case as the same may be amended, modified, waived or
supplemented from time to time, (A) any registration statement, including the
S-4, the Distribution S-1s and the IPO S-1s, filed by or on behalf of the
Company or any Subsidiary with the Commission in connection with the
Restructuring Transactions or any Securities Offering, including all exhibits,
financial statements and schedules appended thereto, and any submissions to the
Commission in connection therewith, (B) any prospectus, preliminary or
otherwise, included in such registration statements or otherwise filed by or on
behalf of the Company or any Sub sidiary in connection with the Restructuring
Transactions or any Securities Offering or used to offer or confirm sales of
their respective securities in any Securities Offering, (C) any private
placement or offering memorandum or circular, or other information or materials
distributed by or on behalf of the Company or any Subsidiary or any placement
agent or underwriter in connection with the Restructuring Transactions or any
Securities Offering, (D) any federal, state or foreign securities law or other
governmental or regulatory filings or applications made in connection with any
Securities Offering, the Restructuring Transactions, or any of the transactions
contemplated thereby, (E) any deal-manager, underwriting, subscription,
purchase, stockholders, option or registration rights agreement or plan entered
into or adopted by the Company or any Subsidiary in
connection with the Restructuring Transactions or any Securities Offering, (F)
any quarterly, annual or current reports filed by the Company or any Subsidiary
with the Commission or any prospectus, proxy statement or transaction
statements, including the Proxy Statement, the Equity 13E-4, the 2001 Debt
13E-4, the 2003 Debt 13E-4 and the 14D-1, filed by or on behalf of the Company,
any Subsidiary or any Indemnitee with the Commission in connection with the
Restructuring Transactions or any transaction contemplated thereby, including
all exhibits, financial statements and schedules appended thereto, and any
submission to the Commission in connection therewith.
(h) "Restructuring Transactions" means the Investment, the
Tender Offer, the Distributions, the other transactions contemplated by the
Investment Agreement, the Spin-Off Company Primary Offerings, the Reverse Stock
Split, the 2001 Note Exchange Offer, the 2003 Note Tender, the Financing and the
Senior Subordinated Note Offering.
(i) "Securities Offerings" means the 2001 Note Exchange Offer,
the Spin-Off Company Primary Offerings, the Senior Subordinated Note Offering,
the Senior Subordinated Note Exchange Offer, any Redemption, any Management
Offering and any other Subsequent Offering.
(j) "Special Warrants" means rights to receive additional
shares of Common Stock equal to 24.9% (after giving effect to issuance of such
additional shares upon exercise of the Special Warrants) of (a) the additional
shares that are issuable upon conversion of any 2001 Notes that remain
outstanding on the date hereof and (b) shares of Common Stock issued pursuant to
(i) the Amendment to Stock Purchase Agreement, dated as of June 20, 1996, by and
between the Company and Xxxx Xxxxxx, as the same may be amended from time to
time, or (ii) any security, option, warrant, call, subscription, right,
contract, commitment, arrangement or understanding in existence on January 12,
1998 or June 10, 1998 but not disclosed on the Revised Option Schedule, dated
June 10, 1998 and delivered to CDR-PC on such date, listing options, warrants,
convertible securities and other rights relating to capital stock of the
Company.
(k) "Subsidiary" means each corporation or other person or
entity in which the Company owns or controls, directly or indirectly, capital
stock or other equity interests representing at least 25% of the outstanding
voting stock or other equity interests.
(l) "Warrants" means rights to purchase one share of Common
Stock for (i) each share of Common Stock purchased by CDR-PC under the
Investment Agreement and (ii) each share of Common Stock into which the Special
Warrants
become exercisable.
2. Indemnification.
(a) The Company agrees to indemnify, defend and hold harmless
each Indemnitee:
(i) from and against any and all Obligations in any way resulting
from, arising out of or in connection with, based upon or relating to
(A) the Securities Act, the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), or any other applicable securities or
other laws, in connection with any Restructuring Transaction, any
Securities Offering, any Related Document or any of the transactions
contemplated thereby, (B) any other action or failure to act of the
Company or any Subsidiary or any of their predecessors, whether such
action or failure has occurred or is yet to occur or (C) except to the
extent that any such Obligation is found in a final judgment by a
court of competent jurisdiction to have resulted from the gross
negligence or wilful or intentional misconduct of any of the
Indemnitees, the performance by CD&R of management consulting,
monitoring, financial advisory or other services for the Company or
any Subsidiary (whether performed prior to the date hereof, hereafter,
pursuant to the Consulting Agreement or otherwise); and
(ii) to the fullest extent permitted by applicable law, from
and against any and all Obligations in any way resulting from, arising
out of or in connection with, based upon or relating to (A) the fact
that such Indemnitee is or was a director or an officer of the Company
or any Subsidiary, as the case may be, or is or was serving at the
request of such corporation as a director, officer, employee or agent
of or advisor or consultant to another corporation, partnership, joint
venture, trust or other enterprise or (B) any breach or alleged breach
by such Indemnitee of his or her fiduciary duty as a director or an
officer of the Company or any Subsidiary, as the case may be;
in each case including but not limited to any and all reasonable fees,
costs and expenses (including without limitation reasonable fees and
disbursements of attorneys) incurred by or on behalf of any Indemnitee
in asserting, exercising or enforcing any of its rights, powers,
privileges or remedies in respect of this Agreement or the Consulting
Agreement.
(b) Without in any way limiting the foregoing Section 2(a),
the Company agrees to indemnify, defend and hold harmless each Indemnitee from
and against any and all Obligations resulting from, arising out of or in
connection with, based
upon or relating to liabilities under the Securities Act, the Exchange Act or
any other applicable securities or other laws, rules or regulations in
connection with (i) the inaccuracy or breach of or default under any
representation, warranty, covenant or agreement in any Related Document, (ii)
any untrue statement or alleged untrue statement of a material fact contained in
any Related Document or (iii) any omission or alleged omission to state in any
Related Document a material fact required to be stated therein or necessary to
make the statements therein not misleading.
(c) Notwithstanding the foregoing provisions of this Section
2, the Company shall not be obligated to indemnify any Indemnitee from and
against any such Obligation to the extent that such Obligation arises out of or
is based upon an untrue statement or omission made in a Related Document in
reliance upon and in conformity with written information furnished by any of the
Indemnitees to the Company expressly for use in the preparation of such Related
Document.
3. Contribution.
(a) Except to the extent that Section 3(b) is applicable, if
for any reason the indemnity provided for in Section 2(a) is unavailable or is
insufficient to hold harmless any Indemnitee from any of the Obligations covered
by such indemnity, then the Company shall contribute to the amount paid or
payable by such Indemnitee as a result of such Obligation in such proportion as
is appropriate to reflect (i) the relative fault of the Company and the
Subsidiaries, on the one hand, and the Indemnitees, on the other, in connection
with the state of facts giving rise to such Obligation, (ii) if such Obligation
results from, arises out of, is based upon or relates to the Restructuring
Transactions or any Securities Offering, the relative benefits received by the
Company and the Subsidiaries, on the one hand, and the Indemnitees, on the
other, from such Restructuring Transaction or Securities Offering and (iii) if
required by applicable law, any other relevant equitable considerations.
(b) If for any reason the indemnity specifically provided for
in Section 2(b) is unavailable or is insufficient to hold harmless any
Indemnitee from any of the Ob ligations covered by such indemnity, then the
Company shall contribute to the amount paid or payable by the Indemnitees as a
result of such Obligation in such proportion as is appropriate to reflect (i)
the relative fault of the Company and the Subsidiaries, on the one hand, and the
Indemnitees, on the other, in connection with the information contained in or
omitted from any Related Document, which inclusion or omission resulted in the
inaccuracy or breach of or default under any representation, warranty, covenant
or agreement therein, or which information is or is alleged to be untrue,
required to be stated therein or necessary to make the statements therein not
misleading, (ii) the relative benefits received by the Company and the
Subsidiaries, on the one hand, and the Indemnitees, on the other, from such
Restructuring Transaction or Securities Offering and (iii) if required by
applicable law, any other relevant equitable considerations.
(c) For purposes of Section 3(a), the relative fault of the
Company and the Subsidiaries, on the one hand, and of the Indemnitees, on the
other, shall be determined by reference to, among other things, their respective
relative intent, knowledge, access to information and opportunity to correct the
state of facts giving rise to such Obligation. For purposes of Section 3(b), the
relative fault of the Company and the Subsidiaries on the one hand, and of the
Indemnitees, on the other, shall be deter mined by reference to, among other
things, (i) whether the included or omitted information relates to information
supplied by the Company or the Subsidiaries on the one hand, or by the
Indemnitees, on the other, and (ii) their respective relative intent, knowledge,
access to information and opportunity to correct such inaccuracy, breach,
default, untrue or alleged untrue statement, or omission or alleged omission.
For purposes of Section 3(a) or 3(b), the relative benefits received by the
Company and the Subsidiaries, on the one hand, and the Indemnitees, on the
other, shall be determined by weighing the direct monetary proceeds to the
Company and the Subsidiaries, on the one hand, and the Indemnitees, on the
other, from such Securities Offering.
(d) The parties hereto acknowledge and agree that it would not
be just and equitable if contributions pursuant to Section 3(a) or 3(b) were
determined by pro rata allocation or by any other method of allocation that does
not take into account the equitable considerations referred to in such
respective Section. The Company shall not be liable under Section 3(a) or 3(b),
as applicable, for contribution to the amount paid or payable by any Indemnitee
except to the extent and under such circumstances as the Company would have been
liable to indemnify, defend and hold harmless such Indemnitee under the
corresponding Section 2(a) or 2(b) (in either case as interpreted by Section
2(c)), as applicable, if such indemnity were enforceable under applicable law.
No Indemnitee shall be entitled to contribution from the Company with respect to
any Obligation covered by the indemnity specifically provided for in Section
2(b) in the event that such Indemnitee is finally determined to be guilty of
fraudulent misrepresen tation (within the meaning of Section 11(f) of the
Securities Act) in connection with such Obligation and the Company is not guilty
of such fraudulent misrepresentation.
4. Indemnification Procedures.
(a) Whenever any Indemnitee shall have actual knowledge of the
reasonable likelihood of the assertion of a Claim, CD&R (acting on its own
behalf or, if requested by any such Indemnitee other than itself, on behalf of
such Indemnitee) or such Indemnitee shall notify the Company in writing of the
Claim (the "Notice of Claim") with
reasonable promptness after such Indemnitee has such knowledge relating to
such Claim and has notified CD&R thereof. The Notice of Claim shall specify
all material facts known to CD&R (or if given by such Indemnitee, such
Indemnitee) that may give rise to such Claim and the monetary amount or an
estimate of the monetary amount of the Obligation involved if CD&R (or if
given by such Indemnitee, such Indemnitee) has knowledge of such amount or a
reasonable basis for making such an estimate. The failure of CD&R to give
such Notice of Claim shall not relieve the Company of its indemnification
obligations under this Agreement except to the extent that such omission
results in a failure of actual notice to the Company and it is materially
injured as a result of the failure to give such Notice of Claim. The Company
shall, at its expense, undertake the defense of such Claim with attorneys of
its own choosing reasonably satisfactory to CD&R. CD&R may participate in
such defense with counsel of CD&R's choosing at its own expense. In the event
that the Company does not undertake the defense of the Claim within a
reasonable time after CD&R has given the Notice of Claim, or in the event
that CD&R shall in good faith determine that, in the defense of any claim,
the interests of the Company may be in conflict with those of any Indemnitee,
CD&R may, at the expense of the Company and after giving notice to the
Company of such action, (i) undertake the defense of the Claim and (ii) with
the consent of the Company (which shall not be unreasonably withheld or
delayed), compromise or settle the Claim, all for the account of and at the
risk of the Company. In the defense of any Claim, (x) the Company shall act
diligently and in good faith and (y) the Company shall not (where it is in
control of such Claim), except with the consent of CD&R, and CD&R shall not
(where it is in control of such Claim), except with the consent of the
Company, consent to entry of any judgment or enter into any settlement that
includes any injunctive or other non-monetary relief, or that does not
include as an unconditional term thereof the giving by the person or persons
asserting such Claim to such Indemnitee of a release from all liability with
respect to such Claim. In each case, CD&R and each Indemnitee seeking
indemnification hereunder will cooperate with the Company, so long as the
Company is conducting the defense of the Claim, in the preparation for and
the prosecution of the defense of such Claim, including making available
evidence within the control of CD&R or such Indemnitee, as the case may be,
and persons needed as witnesses who are employed by CD&R or such Indemnitee,
as the case may be, in each case as reasonably needed for such defense and at
cost, which cost, to the extent reasonably incurred, shall be paid by the
Company.
(b) The Company hereby agrees to advance reasonable costs and
expenses, including attorney's fees, incurred by CD&R (acting on its own behalf
or, if requested by any such Indemnitee other than itself, on behalf of such
Indemnitee) in defending any Claim in advance of the final disposition of such
Claim upon receipt of an undertaking by or on behalf of CD&R to repay amounts so
advanced if it shall ultimately be determined that CD&R or such Indemnitee is
not entitled to be indemnified by the Company as authorized by this Agreement.
(c) CD&R shall notify the Company in writing of the amount of
any Claim actually paid by CD&R (the "Notice of Payment") in accordance with
this Agreement. The amount of any Claim actually paid by CD&R shall bear simple
interest at the rate equal to Chase Manhattan Bank's prime rate as of the date
of such payment plus 2% per annum, from the date the Company receives the Notice
of Payment to the date on which the Company shall repay the amount of such Claim
plus interest thereon, if any, to CD&R.
5. Certain Covenants; Other Indemnities. The rights of each
Indemnitee to be indemnified under any other agreement, document, certificate or
instrument or applicable law, including without limitation the Investment
Agreement, are independent of and in addition to any rights of such Indemnitee
to be indemnified under this Agreement. The rights of each Indemnitee and the
obligations of the Company here under shall remain in full force and effect
regardless of any investigation made by or on behalf of such Indemnitee. The
Company shall implement and maintain in full force and effect any and all
corporate articles or charter and by-law provisions that may be necessary or
appropriate to enable it to carry out its obligations hereunder to the fullest
extent permitted by applicable corporate law, including without limitation a
provision of its certificate of incorporation eliminating liability of a
director for breach of fiduciary duty to the fullest extent permitted by
applicable corporate law, as it may be amended from time to time.
6. Notices. All notices and other communications hereunder
shall be in writing and shall be delivered by certified or registered mail
(first class postage prepaid and return receipt requested), facsimile, overnight
courier or hand delivery, as follows:
If to the Company, to:
U.S. Office Products Company
0000 Xxxxxx Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 000 Xxxx
Xxxxxxxxxx, X.X. 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxx X. Director
with a copy to:
Xxxxxx, Xxxxxx & Xxxxxxxxx
0000 X. Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx
If to CDR-PC, to:
CDR-PC Acquisition, L.L.C.
c/o Clayton, Dubilier & Rice
Fund V Limited Partnership
0000 Xxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxx
with a copy to:
Xxxxxxx, Dubilier & Rice, Inc.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxx
if to the CD&R Fund, to:
Xxxxxxx, Dubilier & Rice
Fund V Limited Partnership
0000 Xxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxx
with a copy to:
Xxxxxxx, Dubilier & Rice, Inc.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxx
if to CD&R or any other Indemnitee to:
Xxxxxxx, Dubilier & Rice, Inc.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxx
or to such other address or such other person as the Company, CDR-PC, the CD&R
Fund or CD&R, as the case may be, shall have designated by notice to the other
parties hereto. All communications hereunder shall be effective upon receipt by
the party to which they are addressed. A copy of any notice or other
communication given under this Agreement shall also be given to:
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxx
7. Governing Law. This Agreement shall be governed in all
respects, including as to validity, interpretation and effect, by the law of the
State of New York without giving effect to its principles or rules of conflict
of laws to the extent such principles or rules would require or permit the
application of the laws of another jurisdiction, except to the extent that the
corporate law of another jurisdiction specifically and mandatorily applies, in
which case such law shall apply.
8. Severability. If any provision or provisions of this
Agreement shall be held to be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions hereof shall not in any
way be affected or impaired thereby.
9. Miscellaneous. The headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. This Agreement shall be binding upon and inure
to the benefit of each party hereto and its successors and permitted assigns,
and each other Indemnitee, but neither this Agreement nor any right, interest or
obligation hereunder shall be assigned, whether by operation of law or
otherwise, by the Company, without the prior written consent of CDR-PC, the CD&R
Fund and CD&R. This Agreement is not intended to confer any right or remedy
hereunder upon any person other than each of the parties hereto and their
respective successors and permitted assigns and each other Indemnitee. No
amendment, modification, supplement or discharge of this Agreement, and no
waiver hereunder shall be valid and binding unless set forth in writing and duly
executed by the party or other Indemnitee against whom enforcement of the
amendment, modification, supplement or discharge is sought. Neither the waiver
by any of the parties hereto or any other Indemnitee of a breach of or a default
under any of the provisions of this Agreement, nor the failure by any party
hereto or any other Indemnitee on one or more occasions, to enforce any of the
provisions of this Agreement or to exercise any right, powers 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 provisions hereof, or any rights, powers
or privileges hereunder. The rights and remedies herein provided are cumulative
and are not exclusive of any rights or remedies that any party or other
Indemnitee may otherwise have at law or in equity or otherwise. This Agreement
may be executed in several counterparts, each of which shall be deemed an
original, and all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement by their authorized representatives as of the date first above
written.
U.S. OFFICE PRODUCTS COMPANY
By: /s/ Xxxx X. Director
--------------------------------------
Name: Xxxx X. Director
Title: Executive Vice President--Administration,
General Counsel and Secretary
CDR-PC ACQUISITION, L.L.C.
By: /s/ Xxxxx X. Xxxx
--------------------------------------
Name: Xxxxx X. Xxxx
Title: Executive Vice President
XXXXXXX, DUBILIER & RICE
FUND V LIMITED PARTNERSHIP
By: CD&R Associates V Limited Partnership,
the General Partner
By: CD&R Investment Associates II, Inc.,
its managing general partner
By: /s/ Xxxxxx X. Xxxx, III
--------------------------------
Name: Xxxxxx X. Xxxx, III
Title: Chairman
XXXXXXX, DUBILIER & RICE, INC.
By: /s/ Xxxxxx X. Xxxx, III
--------------------------------
Name: Xxxxxx L, Rice, III
Title: Chairman
