EXHIBIT 10.3
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement (the "Agreement") by and between
U.S. Office Products Company, a Delaware corporation (the "Company" or "USOP")
and Xxxxxxxx X. Xxxxxxx ("Employee") is hereby entered into and effective as of
4th day of November, 1997. This Agreement hereby supersedes any other
employment agreements or understandings, written or oral, between the Company
and Employee.
R E C I T A L S
The following statements are true and correct:
Employee and the Company previously entered into an Employment Agreement dated
as of February 23, 1995 (the "Original Agreement").
Employee and the Company desire to amend the Original Agreement in certain
respects.
As of the date of this Agreement, the Company is engaged primarily in the
business of providing office products and other related goods and services.
Employee is employed hereunder by the Company in a confidential relationship
wherein Employee, in the course of his employment with the Company, has and will
continue to become familiar with and aware of information as to the Company's
and its subsidiaries customers, specific manner of doing business, including the
processes, techniques and trade secrets utilized by the Company and its
subsidiaries, and future plans with respect thereto, all of which has been and
will be established and maintained at great expense to the Company and its
subsidiaries; this information is a trade secret and constitutes the valuable
good will of the Company and its subsidiaries.
Therefore, in consideration of the mutual promises, terms, covenants and
conditions set forth herein and the performance of each, the Original Agreement
is hereby amended and restated to read in its entirety as follows:
A G R E E M E N T S
1. Employment and Duties
(a) The Company hereby employs Employee as an executive of the Company and
to serve as Chairman of the Board of Directors of the Company (the "Board"),
assuming Employee's continued membership on the Board. As such, Employee shall
have responsibilities,
duties and authority as determined by the Board, including but not limited
to, the following activities: (i) conducting meetings of the Board (after
consultation with senior management of the Company); (ii) identifying and
pursuing new business and investment opportunities and acquisitions for the
Company; (iii) developing and providing strategic plans and growth analyses;
(iv) providing structuring, capitalization, restructuring, recapitalization,
and reorganization advice and assisting in the implementation thereof; and
(v) as may be directed by the Board, interfacing with the investment and
financial community on an as-needed basis in a senior executive capacity,
including participating in analysts' conference calls, road-shows, and annual
and special meetings of the Company's shareholders. The parties acknowledge
that Employee will be assuming responsibilities with other companies that
will prevent Employee from devoting his full professional time to the
Company. Accordingly, Employee will not be responsible for the day-to-day
oversight of the Company. Notwithstanding the foregoing, Employee shall
continue to abide by his duties of loyalty and care and other fiduciary
responsibilities to the Company, including without limitation that Employee
shall not exploit corporate opportunities of the Company in any way except
for the direct benefit of the Company. Employee hereby accepts this
employment upon the terms and conditions herein contained and agrees to
devote his time, attention and efforts to promote and further the business of
the Company.
(b) Employee shall faithfully adhere to, execute and fulfill all
policies established by the Company.
(c) Nothing in this Agreement shall be construed as prohibiting Employee
from entering into an employment agreement with another entity or serving on
the board of directors of one or more other entities or from making personal
investments in such other entities, provided that no such activities or
investments violate Employee's fiduciary obligations to the Company or the
terms of this Agreement.
2. Compensation. For all services rendered by Employee, the Company
shall compensate Employee as follows:
(a) Base Salary. Effective as of the date hereof, the base salary
payable to Employee shall be $250,000 per year, payable on a regular basis in
accordance with the Company's standard payroll procedures but not less than
monthly. On at least an annual basis, the Board will review Employee's
performance and may make increases to such base salary if, in its discretion,
any such increase is warranted.
(b) Incentive Bonus Plan. Employee shall be eligible to receive a bonus
based on the Company's financial performance and the Employee's contribution
thereto, as determined by the Board or a compensation committee thereof. The
bonus, if any, payable pursuant to this Section 2(b) shall be payable in the
form of cash, stock options, or other non-cash awards (or any combination of
the foregoing), in such proportions, and in such forms, as are determined by
the Board or a compensation committee thereof.
(c) Executive Perquisites, Benefits and Other Compensation. Employee
shall be entitled to receive additional benefits and compensation from the
Company in such form and to such extent as specified below:
(1) During the Term, Employee shall be entitled to receive such
perquisites and benefits as may be specified from time to time by
the Board, taking into account the time and attention that
Employee devotes to the Company and to other entities.
(2) Reimbursement for all business travel and other out-of-pocket
expenses reasonably incurred by Employee in the performance of
his services pursuant to this Agreement. All reimbursable
expenses shall be appropriately documented in reasonable detail
by Employee upon submission of any request for reimbursement, and
in a format and manner consistent with the Company's expense
reporting policy.
3. Non-Competition Agreement.
(a) Employee will not, during the period of his Employment by or with
the Company, and for a period equal to the longer of (i) two (2) years or
(ii) the period during which Employee is entitled to receive and is receiving
any payment pursuant to paragraph 5(d) hereof, immediately following the
termination of his employment under this Agreement, for any reason
whatsoever, directly or indirectly, for himself or on behalf of or in
conjunction with any other person, persons, company, partnership, corporation
or business of whatever nature:
(i) engage, as an officer, director, shareholder, owner, partner,
joint venturer, or in a managerial capacity, whether as an employee,
independent contractor, consultant or advisor, or as a sales
representative, in any business selling any products or services in direct
competition with the Company within 100 miles of where the Company or where
any of the Company's subsidiaries or affiliates conducts business,
including any territory serviced by the Company or any of such subsidiaries
(the "Territory");
(ii) call upon any person who is, at that time, within the Territory,
an employee of the Company (including the respective subsidiaries and/or
affiliates thereof) in a managerial capacity for the purpose or with the
intent of enticing such employee away from or out of the employ of the
Company (including the respective subsidiaries and/or affiliates thereof),
provided that Employee shall be permitted to call upon and hire any member
of his or her immediate family;
(iii) call upon any person or entity which is, at that time, or
which has been, within one (1) year prior to that time, a customer of the
Company (including the respective subsidiaries and/or affiliates thereof)
within the Territory for the purpose of
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soliciting or selling products or services in direct competition with the
Company (including the respective subsidiaries and/or affiliates thereof)
within the Territory;
(iv) call upon any prospective acquisition candidate, on
Employee's own behalf or on behalf of any competitor, which candidate was
either called upon by the Company (including the respective subsidiaries
and/or affiliates thereof) or for which the Company (including the
respective subsidiaries and/or affiliates thereof) made an acquisition
analysis, for the purpose of acquiring such entity.
In addition to (and not in lieu of) the restriction contained in clause
(ii) above, Employee agrees that, during the period that the restrictions
contained in this Section 3 remain in effect, ad so long as he is employed by,
or otherwise affiliated with, Consolidation Capital Corporation ("CCC"), he
shall not, directly or indirectly, offer employment with CCC to, or otherwise
allow CCC to employ, any person who: (1) is employed by the Company or a
subsidiary of the Company at the time; (2) was so employed by the Company or a
subsidiary of the Company within one (1) year prior to such time; or (3)
provides (or within the prior year provided) substantial service to the Company
or a subsidiary of the Company as part of an entity that is or was a vendor or
other outside service provider to the Company or any subsidiary, excluding only
X. Xxxxxxx Xxxx and Xxxxxxx Xxxxxxx.
Notwithstanding the above, the foregoing covenant shall not be deemed to
prohibit Employee from acquiring capital stock in CCC or serving as an officer,
director or employee or consultant to CCC, or acquiring as an investment not
more than one percent (1%) of the capital stock of a competing business, whose
stock is traded on a national securities exchange or over-the-counter; provided
that such actions do not otherwise breach Employee's obligations hereunder.
(b) Because of the difficulty of measuring economic losses to the Company
as a result of a breach of the foregoing covenant, and because of the immediate
and irreparable damage that could be caused to the Company for which they would
have no other adequate remedy, Employee agrees that the foregoing covenant may
be enforced by the Company in the event of breach by him, by injunctions and
restraining orders.
(c) It is agreed by the parties that the foregoing covenants in this
paragraph 3 impose a reasonable restraint on Employee in light of the activities
and business of the Company (including the Company's subsidiaries and/or
affiliates) on the date of the execution of this Agreement and the current plans
of the Company (including the Company's subsidiaries); but it is also the intent
of the Company and Employee that such covenants be construed and enforced in
accordance with the changing activities, business and locations of the Company
(including the Company's other subsidiaries and/or affiliates) throughout the
term of this covenant.
It is further agreed by the parties hereto that, in the event that
Employee shall cease to be employed hereunder, and shall enter into a business
or pursue other activities not in competition with the Company (including the
Company's other subsidiaries and including
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businesses that Employee knows are then being considered by the Company), or
similar activities or business in locations the operation of which, under
such circumstances, does not violate clause (i) of this paragraph 3, and in
any event such new business, activities or location are not in violation of
this paragraph 3 or of Employee's obligations under this paragraph 3, if any,
Employee shall not be chargeable with a violation of this paragraph 3 if the
Company (including the Company's subsidiaries) shall thereafter enter the
same, similar or a competitive (i) business, (ii) course of activities or
(iii) location, as applicable.
(d) The covenants in this paragraph 3 are severable and separate, and
the unenforceability of any specific covenant shall not affect the provisions
of any other covenant. Moreover, in the event any court of competent
jurisdiction shall determine that the scope, time or territorial restrictions
set forth are unreasonable, then it is the intention of the parties that such
restrictions be enforced to the fullest extent which the court deems
reasonable, and the Agreement shall thereby be reformed.
(e) All of the covenants in this paragraph 3 shall be construed as an
agreement independent of any other provision in this Agreement, and the
existence of any claim or cause of action of Employee against the Company,
whether predicated on this Agreement or otherwise, shall not constitute a
defense to the enforcement by the Company of such covenants. It is
specifically agreed that the period of two (2) years stated at the beginning
of this paragraph 3, during which the agreements and covenants of Employee
made in this paragraph 3 shall be effective, shall be computed by excluding
from such computation any time during which Employee is in violation of any
provision of this paragraph 3.
(f) Notwithstanding any of the foregoing, if any applicable law shall
reduce the time period during which Employee shall be prohibited from
engaging in any competitive activity described in paragraph 3(a) hereof, the
period of time for which Employee shall be prohibited pursuant to paragraph
3(a) hereof shall be the maximum time permitted by law. However, in the
event that the time period specified by paragraph 3(a) shall be so reduced,
then, notwithstanding the provisions of paragraph 5(d) hereof, Employee shall
be entitled to receive from the Company his base salary at the rate then in
effect solely for the longer of (i) the time period during which the
provisions of paragraph 3(a) shall be enforceable under the provisions of
such applicable law, or (ii) the time period during which Employee is not
engaging in any competitive activity, but in no event longer than the term
provided in paragraph 5(d).
4. Place of Performance.
(a) Employee understands that he may he requested by the Board to
relocate from his present residence to another geographic location in order
to more efficiently carry out his duties and responsibilities under this
Agreement or as part of a promotion or other increase in duties and
responsibilities. In such event, if Employee agrees to relocate, the Company
will pay all relocation costs to move Employee, his immediate family and
their personal property and effects. Such costs may include, by way of
example, but are not limited to, pre-move visits to search for
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a new residence, investigate schools or for other purposes; temporary lodging
and living costs prior to moving to a new permanent residence; duplicate home
carrying costs; all closing costs on the sale of Employee's present residence
and on the purchase of a comparable residence in the new location; and added
income taxes that Employee may incur if any relocation costs are not
deductible for tax purposes. The general intent of the foregoing is that
Employee shall not personally bear any out-of-pocket cost as a result of the
relocation, with an understanding that Employee will use his best efforts to
incur only those costs which are reasonable and necessary to effect a smooth,
efficient and orderly relocation with minimal disruption to the business
affairs of the Company and the personal life of Employee and his family.
(b) Notwithstanding the above, if Employee is requested by the Board to
relocate and Employee refuses, such refusal shall not constitute "cause" for
termination of this Agreement under the terms of paragraph 5(c).
5. Term; Termination; Rights on Termination. The term of this
Agreement shall begin on the date hereof and continue for two (2) years (the
"Initial Term"), and, unless terminated as herein provided, shall be extended
at the end of each year beginning at the end of the first year of the Initial
Term hereof for a period of one year on the same terms and conditions
contained herein, such that the term (the "Term") of this Agreement shall
extend for a period of two years from the date of each such extension. This
Agreement and Employee's employment may be terminated in any one of the
following ways:
(a) Death. The death of Employee shall immediately terminate the
Agreement with no severance compensation due to Employee's estate.
(b) Disability. If, as a result of incapacity due to physical or mental
illness or injury, Employee shall have been absent from his full-time duties
hereunder for four (4) consecutive months, then thirty (30) days after
written notice to the Employee. (which notice may occur before or after the
end of such four (4) month period, but which shall not be effective earlier
than the last day of such four (4) month period), the Company may terminate
Employee's employment hereunder provided Employee is unable to resume his
full-time duties at the conclusion of such notice period. Also, Employee may
terminate his employment hereunder if his health should become impaired to an
extent that makes the continued performance of his duties hereunder hazardous
to his physical or mental health or his life, provided that Employee shall
have furnished the Company with a written statement from a qualified doctor
to such effect and provided, further, that, at the Company's request made
within thirty (30) days of the date of such written statement, Employee shall
submit to an examination by a doctor selected by the Company who is
reasonably acceptable to Employee or Employee's doctor and such doctor shall
have concurred in the conclusion of Employee's doctor. Subject to paragraph
3(f) hereof and the last paragraph of this paragraph 5, in the event this
Agreement is terminated as a result of Employee's disability, Employee shall
receive from the Company the base salary at the rate then in effect for
whatever time period is remaining under the Term of this Agreement, payable
over such term.
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(c) Good Cause. The Company may terminate the Agreement ten (10) days
after written notice to Employee for good cause, which shall be: (1)
Employee's willful, material and irreparable breach of this Agreement; (2)
Employee's gross negligence in the performance or intentional nonperformance
(continuing for ten (10) days after receipt of written notice of need to
cure) of any of Employee's material duties and responsibilities hereunder;
(3) Employee's unwillingness or failure to perform his duties satisfactorily
(as determined by the Board) in accordance with the provisions specified
herein and such unwillingness or failure is not cured by Employee within ten
(10) days of written notice thereof; (4) Employee's willful dishonesty, fraud
or misconduct with respect to, or disparagement of, the business or affairs
of the Company which materially and adversely affects the operations or
reputation of the Company; (5) Employee's conviction of a felony or other
crime involving moral turpitude; or (6) alcohol or illegal drug abuse by
Employee. In the event of a termination for good cause, as enumerated above,
Employee shall have no right to any severance compensation.
(d) Without Cause. At any time after the commencement of employment,
Employee may, without cause, terminate this Agreement and Employee's
employment, effective thirty (30) days after written notice is provided to
the Company. Should Employee be terminated by the Company without cause,
subject to paragraph 3(f) hereof and the last paragraph of this paragraph 5,
Employee shall receive from the Company the base salary at the rate then in
effect for whatever time period is remaining under the Term of this Agreement
payable over the term of such payment. If Employee resigns or otherwise
terminates his employment without cause pursuant to this paragraph 5(d),
Employee shall receive no severance compensation.
(e) Change in Control of the Company. Refer to paragraph 17 below.
Upon termination of this Agreement for any reason provided above, Employee
shall be entitled to receive all compensation earned and all benefits and
reimbursements due through the effective date of termination. Additional
compensation subsequent to termination, if any, will be due and payable to
Employee only to the extent and in the manner expressly provided above. All
other rights and obligations of the Company and Employee under this Agreement
shall cease as of the effective date of termination, except that the
Company's obligations under paragraph 9 herein and Employee's obligations
under paragraphs 3, 6, 7, 8 and 10 herein shall survive such termination in
accordance with their terms.
If termination of Employee's employment arises out of the Company's failure
to pay Employee on a timely basis the amounts to which he is entitled under
this Agreement or as a result of any other breach of this Agreement by the
Company, and such non-payment or other breach is not cured by the Company
within thirty (30) days (or ten (10) days in the case of non-payment) after
written notice thereof to the Company, as determined by a court of competent
jurisdiction or pursuant to the provisions of paragraph 15 below, the Company
shall pay all amounts and damages to which Employee may be entitled as a
result of such breach, including interest thereon and all reasonable legal
fees and expenses and other costs incurred by Employee to enforce his
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rights hereunder. Further, none of the provisions of paragraph 3 shall apply
in the event this Agreement is terminated as a result of a breach by the
Company.
In the event that Employee secures employment during the period that any payment
is continuing pursuant to the provisions of this paragraph 5, the amounts to be
paid hereunder shall be reduced by the amount of Employee's earnings from such
other employment.
(f) Options. The rights relating to Employee's options for capital stock
of the Company shall be governed by the terms and conditions of the Company's
amended and restated 1994 long-term incentive plan, it being understood and
agreed that upon or after Employee's termination of employment with the Company
for any reason, including termination without cause, his options shall only be
exercisable if and to the extent that they had become exercisable before such
termination and shall remain exercisable only to the extent provided by that
plan.
6. Return of Company Property. All records, designs, patents, business
plans, financial statements, manuals, memoranda, lists and other property
delivered to or compiled by Employee by or on behalf of the Company
(including the respective subsidiaries thereof) or their representatives,
vendors or customers which pertain to the business of the Company (including
the respective subsidiaries thereof) shall be and remain the property of the
Company, and be subject at all times to its discretion and control.
Likewise, all correspondence, reports, records, charts, advertising materials
and other similar data pertaining to the business, activities or future plans
of the Company which in collected by Employee shall be delivered promptly to
the Company without request by it upon termination of Employee's employment.
7. Inventions. Employee shall disclose promptly to the Company any and
all significant conceptions and ideas for inventions, improvements and
valuable discoveries, whether patentable or not, which are conceived or made
by Employee, solely or jointly with another, during the period of employment
or within one (1) year thereafter, and which are directly related to the
business or activities of the Company and which Employee conceives as a
result of his employment by the Company. Employee hereby assigns and agrees
to assign all his interests therein to the Company or its nominee. Whenever
requested to do so by the Company, Employee shall execute any and all
applications, assignments or other instruments that the Company shall deem
necessary to apply for and obtain Letters Patent of the United States or any
foreign country or to otherwise protect the Company's interest therein.
8. Trade Secrets. Employee agrees that he will not, during or after
the term of this Agreement with the Company, disclose the specific terms of
the Company's (including the respective subsidiaries thereof) relationships
or agreements with their respective significant vendors or customers or any
other significant and material trade secret of the Company (including the
respective subsidiaries thereof) whether in existence or proposed, to any
person, firm, partnership, corporation or business for any reason or purpose
whatsoever.
9. Indemnification. In the event Employee is made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or
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investigative (other than an action by the Company against Employee), by
reason of the fact that he is or was performing services under this Agreement
then the Company shall indemnify Employee against all expenses (including
attorneys', fees), judgments, fines and amounts paid in settlement, as
actually and reasonably incurred by Employee in connection therewith to the
fullest extent provided by Delaware law and in accordance with the Company's
By-laws.
10. No Prior Agreements. Employee hereby represents and warrants to the
Company that the execution of this Agreement by Employee and his employment
by the Company and the performance of his duties hereunder will not violate
or be a breach of any agreement with a former employer, client or any other
person or entity. Further, Employee agrees to indemnify the Company for any
claim, including, but not limited to, attorneys' fees and expenses of
investigation, by any such third party that such third party may now have or
may hereafter come to have against the Company based upon or arising out of
any non-competition agreement, invention or secrecy agreement between
Employee and such third party which was in existence as of the date of this
Agreement.
11. Assignment; Binding Effect. Employee understands that he has been
selected for employment by the Company on the basis of his personal
qualifications, experience and skills. Employee agrees, therefore, he cannot
assign all or any portion of his performance under this Agreement. Subject
to the preceding two (2) sentences, this Agreement shall be binding upon,
inure to the benefit of and be enforceable by the parties hereto and their
respective heirs, legal representatives, successors and assigns.
12. Complete Agreement. This Agreement is not a promise of future
employment. Employee has no oral representations, understandings or
agreements with the Company or any of its officers, directors or
representatives covering the same subject matter as this Agreement. This
written Agreement is the final, complete and exclusive statement and
expression of the agreement between the Company and Employee and of all the
terms of this Agreement, and it cannot be varied, contradicted or
supplemented by evidence of any prior or contemporaneous oral or written
agreements. This written Agreement may not be later modified except by a
further writing signed by a duly authorized officer of the Company and
Employee, and no term of this Agreement may be waived except by writing
signed by the party waiving the benefit of such term.
13. Notice. Whenever any notice is required hereunder, it shall be
given in writing addressed as follows:
To the Company: U.S. Office Products Company
0000 Xxxxxx Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attention: General Counsel
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To Employee: Xxxxxxxx X. Xxxxxxx
0000 00xx Xx., X.X.
Xxxxxxxxxx, X.X. 00000
Notice shall be deemed given and effective three (3) days after the deposit
in the U.S. mail of a writing addressed as above and sent first class mail,
certified, return receipt requested, or when actually received. Either party
may change the address for notice by notifying the other party of such change
in accordance with this paragraph 13.
14. Severability; Headings. If any portion of this Agreement is held
invalid or inoperative, the other portions of this Agreement shall be deemed
valid and operative and, so far as is reasonable and possible, effect shall
be given to the intent manifested by the portion held invalid or inoperative.
This severability provision shall be in addition to, and not in place of,
the provisions of Section 3(d) hereof. The paragraph headings herein are for
reference purposes only and are not intended in any way to describe,
interpret, define or limit the extent or intent of the Agreement or of any
part hereof .
15. Arbitration. Any unresolved dispute or controversy arising under or
in connection with this Agreement shall be settled exclusively by
arbitration, conducted in accordance with the rules of the American
Arbitration Association then in effect. The arbitrators shall not have the
authority to add to, detract from, or modify any provision hereof nor to
award punitive damages to any injured party. The arbitrators shall have the
authority to order back-pay, severance compensation, reimbursement of costs,
including those incurred to enforce this Agreement, and interest thereon in
the event the arbitrators determine that Employee was terminated without
disability or good cause, as defined in paragraphs 5(b) and 5(c) ,
respectively, or that the Company has otherwise materially breached this
Agreement. A decision by a majority of the arbitration panel shall be final
and binding. Judgment may be entered on the arbitrators' award in any court
having jurisdiction. The direct expense of any arbitration proceeding shall
be borne by the Company. The arbitration proceeding shall be held in the
city where the Company's corporate headquarters is located. Notwithstanding
the foregoing, the Company shall be entitled to seek injunctive or other
equitable relief, as contemplated by Section 3(b) above, from any court of
competent jurisdiction, without the need to resort to arbitration.
16. Governing Law. This Agreement shall in all respects be construed
according to the laws of the State of Delaware.
17. Change in Control.
(a) Unless he elects to terminate this Agreement pursuant to (c) below,
Employee understands and acknowledges that the Company may be merged or
consolidated with or into another entity and that such entity shall
automatically succeed to the rights and obligations of the Company hereunder.
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In the event of a Change in Control, Employee may, at his sole
discretion, elect to terminate this Agreement by providing written notice to
the Company at least five (5) business days after the closing of the
transaction giving rise to the Change in Control. In such case, the
applicable provisions of paragraph 5(d) will apply as though the Company had
terminated the Agreement without cause; however, under such circumstances,
Employee shall be entitled to continue to receive his base salary at the rate
then in effect for whatever time period is remaining under the Term of this
Agreement or for two (2) years, whichever amount is greater, payable over the
term of such payment and the non-competition provisions of paragraph 3 shall
all apply for a period equal to the duration of such payment.
(b) In the event of a Change in Control, Employee will be given
sufficient time and opportunity to elect whether to exercise all or any of
his vested options to purchase USOP Common Stock including any options with
accelerated vesting under the provisions of USOP's Stock Option Plan, such
that he may convert the options to shares of USOP Common Stock at or prior to
the closing of the transaction giving rise to the Change in Control, if he so
desires.
(c) A "Change in Control" shall be deemed to have occurred if:
(i) any person, other than the Company or an employee benefit plan of
the Company, acquires directly or indirectly the Beneficial Ownership (as
defined in Section 13(d) of the Securities Exchange Act of 1934, as
amended) of any voting security of the Company and immediately after such
acquisition such person is, directly or indirectly, the Beneficial Owner of
voting securities representing 50% or more of the total voting power of all
of the then-outstanding voting securities of the Company;
(ii) the individuals (A) who, as of the closing date of the Company's
initial public offering, constitute the Board of Directors of the Company
(the "Original Directors") or (B) who thereafter are elected to the Board
of Directors of the Company and whose election, or nomination for election,
to the Board of Directors of the Company was approved by a vote of at least
two-thirds (2/3) of the Original Directors then still in office (such
directors becoming "Additional Original Directors" immediately following
their election) or (C) who are elected to the Board of Directors of the
Company and whose election, or nomination for elections to the Board of
Directors of the Company was approved by a vote of at least two-thirds
(2/3) of the original Directors and Additional Original Directors then
still in office (such directors also becoming "Additional Original
Directors" immediately following their election) (such individuals being
the "Continuing Directors"), cease for any reason to constitute a majority
of the members of the Board of Directors of the Company;
(iii) the stockholders of the Company shall approve a merger,
consolidation, recapitalization, or reorganization of the Company, a
reverse stock split of outstanding voting security or consummation of any
such transaction if stockholder approval is not
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sought or obtained, other than any such transaction which would result in
at least 75% of the total voting power represented by the voting
securities of the surviving entity outstanding immediately after such
transaction being beneficially owned by at least 75% of the holders of
outstanding voting securities of the Company immediately prior to the
transactions with the voting power of each such continuing holder
relative to other such continuing holders not substantially altered in
the transaction; or
(iv) the stockholders of the Company shall approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition by
the Company of all or a substantial portion of the Company's assets (i.e.,
50% or more of the total assets of the Company).
(d) Employee must be notified in writing by the Company at any time that
the Company or any member of its Board anticipates that a Change in Control
may take place.
(e) Employee shall be reimbursed by the Company or its successor for any
excise taxes that Employee incurs under Section 4999 of the Internal Revenue
Code of 1986 as a result of any Change in Control. Such amount will be due
and payable by the Company or its successor within ten (10) days after
Employee delivers a written request for reimbursement accompanied by a copy
of his tax return(s) showing the excise tax actually incurred by Employee.
[Execution Page Following]
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IN WITNESS WHEREOF, the Company and Employee have duly executed this
Agreement as of the date first above written:
U.S. OFFICE PRODUCTS COMPANY
By: /s/Xxxxxxx X. Xxxxx
-----------------------------
Title:
XXXXXXXX X. XXXXXXX
/s/Xxxxxxxxx X. Xxxxxxx
-----------------------------
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