Exhibit 10.7
EMPLOYEE BENEFITS SERVICES AND LIABILITIES AGREEMENT
This EMPLOYEE BENEFITS SERVICES AND LIABILITIES AGREEMENT dated as of
June 9, 1998 (the "Benefits Agreement"), between U.S. OFFICE PRODUCTS COMPANY, a
Delaware corporation (the "Company"), WORKFLOW MANAGEMENT, INC., a Delaware
corporation and wholly owned subsidiary of the Company ("Printco"), SCHOOL
SPECIALTY, INC., a Delaware corporation and wholly owned subsidiary of the
Company ("Schoolco"), AZTEC TECHNOLOGY PARTNERS, INC., a Delaware corporation
and wholly owned subsidiary of the Company ("Techco"), and NAVIGANT
INTERNATIONAL, INC., a Delaware corporation and wholly owned subsidiary of the
Company ("Travelco") pursuant to the agreement and plan of distribution dated as
of June 9, 1998 (the "Distribution Agreement") among Company, Printco, Schoolco,
Techco, and Travelco.
WHEREAS, the Board of Directors of the Company has determined that it
is appropriate and desirable to enter into the Benefits Agreement as an
Ancillary Agreement under the Distribution Agreement; and
WHEREAS, each of the Company, Printco, Schoolco, Techco, and Travelco
has determined that it is necessary and desirable to allocate and assign
responsibility for certain employee benefit liabilities in respect of the
activities of the businesses of such entities on and following the Distribution
Date.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the Company, Printco, Schoolco, Techco, and Travelco agree as
follows:
1. PURPOSE AND DEFINITIONS
a. Purpose. The purpose of this Benefits Agreement is to set
forth the agreement of the Company, Printco, Schoolco, Techco, and Travelco
regarding the allocation and assignment of the respective rights and obligations
of each before and after the Distributions with respect to their current and
former employees and with respect to benefits and compensation matters.
b. Definitions. In addition to the terms defined elsewhere in
the text or in the Distribution Agreement, as used in this Benefits Agreement,
the following terms have the following meanings:
"Distributed Company Employees" shall mean the Printco
Employees, Schoolco Employees, Techco Employees, and Travelco Employees,
collectively.
"Employee" shall mean, as to the Company and each
Distributed Company, an individual who is employed (including an individual
who is not actively employed because of an approved disability, lay-off with
right of recall or an authorized leave of absence (or who is receiving salary
continuation severance payments)) by the Company or the specified Distributed
Company or any of their respective Subsidiaries (other than, for the Company,
any Distributed Company or its Subsidiaries) immediately before the
Distribution.
"ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended.
"Former Employee" shall mean a former employee of the
Company or the specified Distributed Company or any of their respective
Subsidiaries (other than, for the Company, any Distributed Company or its
Subsidiaries) whose employment terminated before the Distribution.
"Individual" shall mean each Employee and Former
Employee. Solely for purposes of Section 3(b), "Individual" shall also
include unsuccessful applicants for employment.
"Stand-Alone Plan" shall mean each benefit or
compensation plan, program, policy, or arrangement currently or formerly
maintained for the exclusive benefit of all or some Individuals with respect
to the Company or the applicable Distributed Company.
2. EMPLOYEES. Effective as of the Distribution Date and unless
otherwise provided by the Distribution Agreement, each Company Employee, Printco
Employee, Schoolco Employee, Travelco Employee, and Techco Employee will remain
an employee of his or her respective employer. Nothing contained in this Section
2 confers on any such person any right to continued employment, whether before
or after the Distribution Date, nor does it detract from or otherwise amend any
employment agreement currently in force, except as specifically noted.
3. GENERAL PRINCIPLES. Except as otherwise provided in this Benefits
Agreement, as of the Distribution Date:
a. Each party will remain or become responsible for its
respective Stand-Alone Plans.
b. The Company, Printco, Schoolco, Techco, and Travelco each will
be allocated Liability for employment-related claims regardless of when filed
(including, but not limited to, harassment and discrimination) based upon
whether the claimant was at the time the claim arose, respectively, a Company
Individual, Printco Individual, Schoolco Individual, Techco Individual, or
Travelco Individual.
c. Except as specifically provided herein, as of and after the
Distribution Date, all Liabilities with respect to employee benefit plans,
programs, or arrangements relating to (i) Company Former Employees that
presently are Company liabilities will be retained by the
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Company, (ii) Printco Former Employees that presently are Company or Printco
liabilities will be retained or assumed by Printco, as applicable, (iii)
Schoolco Former Employees that presently are Company or Schoolco liabilities
will be retained or assumed by Schoolco, as applicable, (iv) Techco Former
Employees that presently are Company or Techco liabilities will be retained or
assumed by Techco, as applicable, and (v) Travelco Former Employees that
presently are Company or Travelco liabilities will be retained or assumed by
Travelco, as applicable.
d. Except to the extent recognition of past service credit would
result in a duplication of benefits, the Company, Printco, Schoolco, Techco,
and Travelco each will give past service credit under its applicable benefit
plans, programs, policies and arrangements to participants therein to the
extent their past service credit was recognized under the comparable benefit
plan, program, policy, or arrangement of the Company or its Subsidiaries in
which the Employee participated immediately before the Distribution Date.
e. No provision of this Benefits Agreement requires any of the
parties to continue any plan, program, policy, or arrangement for any period
of time after the Distributions.
f. Each party will amend its respective plans, programs,
policies, and arrangements (whether newly established, assumed, or retained)
to the extent necessary to reflect the provisions of this Benefits Agreement.
g. Any Company Employee, Printco Employee, Schoolco Employee,
Techco Employee, or Travelco Employee who continues in employment with the
Company, Printco, Schoolco, Techco, or Travelco or any related Subsidiaries
following the Distribution Date will not be deemed to have terminated
employment solely as a result of the Distribution for purposes of any benefit
or compensation plan, program, policy, or arrangement maintained by the
Company, Printco, Schoolco, Techco, or Travelco.
h. The Company will release any third party beneficiary rights it
may have to enforce employment agreements assumed or retained by the
Distributed Companies (other than with respect to the Company's
"Information," as defined in those agreements).
4. 401(k) PLAN
a. The Company will retain sponsorship of the U.S. Office
Products 401(k) Retirement Plan (the "Company 401(k) Plan").
b. Effective as of or as soon as practicable after the
Distribution, the Distributed Companies will each establish new qualified
401(k) plans covering each Distributed Company and all or substantially all
of its Subsidiaries in the United States. Distributed Company Employees will
cease participation in the Company 401(k) Plan effective as close in time
before the Distribution Date as is reasonably practicable. Distributed
Company Employees who have outstanding participant loans under the Company
401(k) Plan will be permitted to continue
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making loan payments to the Company 401(k) Plan until such time as the loans are
transferred to the Distributed Company's 401(k) Plan.
c. Upon receipt by the Company and each of the Distributed
Companies of favorable determination letters from the Internal Revenue
Service to the effect that a newly established plan meets the requirements
for qualification under Section 401(a) of the Code (or as the parties
otherwise mutually agree), the Company will cause to be transferred to the
trusts established under the newly-established 401(k) plans, the respective
account balances (including any related loans and qualified domestic
relations orders) and related assets of that employer's Employees. Upon such
transfer, Printco, Schoolco, Techco, and Travelco will assume the related
liabilities.
5. MEDICAL PLANS
a. Effective as of the Distribution Date, each of the Distributed
Companies will assume or retain sponsorship of their respective Stand-Alone
Plans that are medical (including dental) plans and arrangements and will
assume or retain responsibility for continuation health coverage under ERISA
Section 601 et seq. with respect to their respective Individuals.
b. To the extent permitted under any applicable indemnity, health
maintenance organization or stop-loss contracts, any newly established health
plans will waive waiting periods, pre-existing conditions to the extent
waived or satisfied under the applicable Stand-Alone Plan, and credit
deductible/copayments satisfied by Employees, if any, who are transferring
among the respective employers in connection with the Distributions. The
Company will use its best efforts to assist the Distributed Companies in
their negotiations with any third parties to accomplish the waiver of such
waiting periods and pre-existing conditions and the crediting of such
deductibles and co-payments.
6. CAFETERIA PLAN
a. The Company will amend the U.S. Office Products Cafeteria
Compensation Plan (the "Company Cafeteria Plan") to provide for spinning off
to each Distributed Company the portions of the Cafeteria Plan's obligations
and credits that apply to that Distributed Company.
b. Effective as of the Distribution Date, each Distributed
Company will adopt a cafeteria plan substantially identical to the Cafeteria
Plan to receive and implement the obligations and credits spun off from the
Cafeteria Plan.
c. Each Distributed Company will treat as remaining in effect any
elections the Distributed Company Employees made before the Distribution with
respect to the Health Care Reimbursement Plan Benefit, the Dependent Care
Assistance Program Benefit, the Health Insurance Benefit, and, to the extent
offered by the Distributed Company after the Distribution,
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the Dental Insurance Benefit (each "Benefit" having the meaning provided in the
Company Cafeteria Plan).
d. After the spinoffs described in this Section, Distributed
Company Employees will submit any claims for the plan year ending December
31, 1998 to their respective Distributed Company's plan and not to the
Company Cafeteria Plan.
7. SEVERANCE
Effective as of the Distribution Date, the Company, Printco, Schoolco,
Techco, and Travelco each will be liable for any severance pay and benefits
(including salary continuation) owing, as of or after the Distribution Date, to
Company Individuals, Printco Individuals, Schoolco Individuals, Techco
Individuals, and Travelco Individuals, respectively.
8. STOCK OPTIONS
a. The Company will retain the 1994 Amended and Restated USOP
Long-Term Incentive Plan (the "Company Stock Plan") and the obligations under
that plan with respect to stock options granted thereunder that are held by
or in respect of Company Employees.
b. The Distributed Companies will establish stock option plans
under which they will provide options to their respective Employees to
replace any options those employees hold under the Company Stock Plan and
under which they may offer additional options.
c. Any option granted by a Distributed Company in replacement for
an option under the Company Stock Plan will expressly provide that it is
being granted in full satisfaction of, and in substitution for, any and all
Company stock options with respect to which it relates.
9. FOREIGN PLANS
Subject to applicable local law requirements and to the extent
practicable, the respective rights and obligations of the Company, Printco,
Schoolco, Techco, and Travelco (and their respective Subsidiaries) with respect
to plans maintained by the Company and its Subsidiaries immediately before the
Distribution Date outside of the United States will be treated in a manner
consistent with the general principles described in Section 2 of this Benefits
Agreement; provided, however, that nothing herein shall be construed so as to
(A) modify the terms and conditions of employment of any Company Employee,
Printco Employee, Schoolco Employee, Techco Employee, or Travelco Employee who
is employed outside of the United States (a "Foreign Employee") or (B)
constitute an actual or constructive termination of any Foreign Employee's
employment with the Company, Printco, Schoolco, Techco, Travelco, or any of
their respective Subsidiaries, as applicable.
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10. COOPERATION
a. The Company and the Distributed Companies will cooperate in
providing each other and other necessary parties with such data as may be
necessary to administer their respective benefit plans in accordance with the
terms of this Agreement. To that end, each will share, and will cause their
affiliates to share, with each other and their respective agents and vendors
(without obtaining releases) all participant, plan design, and other
information necessary for the efficient and accurate administration of,
compliance with laws and regulations applicable to, and response to
governmental authorities regarding, their respective benefit plans, programs,
and arrangements after the Distribution. Each party to this agreement and
their respective authorized agents will, subject to applicable laws on
confidentiality, be given reasonable and timely access to, and may make
copies of, all information relating to the subjects of this Agreement in the
custody of another party, to the extent necessary for such administration.
b. The Company and the Distributed Companies agree to cooperate
in completing all necessary filings with the Internal Revenue Service,
Department of Labor, and Pension Benefit Guaranty Corporation with respect to
the matters provided herein and will apprise the other parties hereto of any
written or oral communication to or from any such agency with respect thereto
that may bear on such other parties' interests hereunder. The Company will
make all necessary Internal Revenue Service filings for the 1997 plan year
and, if applicable, any "short year" filings for the 1998 plan year, with
respect to the plans (other than Stand-Alone Plans) in which Distributed
Company Employees participated before the Distribution Date.
11. NO THIRD PARTY BENEFICIARIES.
Notwithstanding anything to the contrary herein, this Benefits
Agreement is solely for the benefit of the Company and the Distributed
Companies. There shall be no third party beneficiaries under this Benefits
Agreement, including, without limitation, any Company Individual, Printco
Individual, Schoolco Individual, Techco Individual, or Travelco Individual.
12. INCORPORATION BY REFERENCE.
This Benefits Agreement is part of the Distribution Agreement, and
shall be incorporated by reference into the Distribution Agreement as if set
forth fully therein. Without limiting the generality of the foregoing, the
parties acknowledge and agree that all provisions of the Distribution Agreement
relating to Indemnification, Dispute Resolution, Notices, and the other
provisions labeled "Miscellaneous" in the Distribution Agreement shall apply
with respect to the matters described herein as if such terms were incorporated
herein and a part hereof.
13. TAX DEDUCTIONS
Except as otherwise provided in Section 5 of the Tax Allocation
Agreement dated June 9, 1998 between the Company, Printco, Schoolco, Techco and
Travelco, the parties intend that the party that actually bears the cost
(whether directly or indirectly) of making a payment with respect
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to, or (except as provided below) whose stock is used to satisfy, a liability
governed by this Agreement will be entitled to any and all tax benefits
associated therewith, including the benefit of taking an income tax deduction
with respect to such payment or satisfaction, and will be obligated to satisfy
all tax withholding obligations with respect there, and the parties agree to
take no action inconsistent with such intention. Notwithstanding that intent,
the parties recognize that it is possible that the Internal Revenue Service or
another taxing authority will take a different position. Therefore, the parties
agree that
if any of them is notified by the IRS or another taxing authority that it
is taking or proposes to take a different position, the party receiving
such notice will notify any others affected by the notice; and
if, when, and to the extent that one party or its Subsidiary receives a tax
benefit as a result of a payment made by another party to satisfy a
liability governed by this Agreement, the benefiting party will pay or
cause its Subsidiary to pay the other party an amount equal to the "net tax
benefit" (as defined below) realized by the benefiting party, as and when
realized.
For this purpose, the "net tax benefit" to either party resulting from payment
or satisfaction of a liability will be deemed to equal the excess of (a) the
taxes that would have been paid by such party if such party had not paid or
satisfied such liability over (b) the taxes that the party actually pays.
14. MISCELLANEOUS
a. Complete Agreement; Construction. This Benefits Agreement,
including all Exhibits attached hereto, constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes
all previous negotiations, commitments, and writings with respect to such
subject matter.
b. Supersession. In the event of any conflict between any of the terms
of this Benefits Agreement and the terms of either Distribution Agreement, the
terms of this Benefits Agreement will govern.
15. OTHER ACTIONS. The parties hereto shall take such other and further
actions as may be necessary or appropriate to carry out this Benefits Agreement.
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IN WITNESS WHEREOF, the parties have caused this Benefits Agreement to
be executed by their duly authorized officers as of the day and year first
written above.
U.S. OFFICE PRODUCTS COMPANY
by
/s/ Xxxx X. Director
-------------------------
Name: Xxxx X. Director
Title: Executive Vice President -
Administration
WORKFLOW MANAGEMENT, INC.
by
/s/ Xxxxxx X. X'Xxxxxxxx
-------------------------
Name: Xxxxxx X. X'Xxxxxxxx
Title: President
SCHOOL SPECIALTY, INC.
by
/s/ Xxxxxx X. Xxxxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: President
AZTEC TECHNOLOGY PARTNERS, INC.
by
/s/ Xxxxx X. Xxxxxxxxx
-------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Chairman
NAVIGANT INTERNATIONAL, INC.
by
/s/ Xxxxxx X. Xxxxx
-------------------------
Name: Xxxxxx X. Xxxxx
Title: President
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