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EXHIBIT 10.13
AGREEMENT
AGREEMENT, dated as of April 15, 1998, between OFFICE CENTRE
CORPORATION, a Delaware corporation having its principal place of business at 00
Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Company") and XXXXXX
XXXXXXXXXXX, an individual residing at 000 Xxxxxxxxxx Xxxxx, Xxxxxxxxxx,
Xxxxxxxxxxxxx 00000 (the "Shareholder").
W I T N E S S E T H:
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WHEREAS, on this date, the Shareholder is the owner of
1,847,608 shares of the Company's common stock, $.001 par value (the "Common
Stock");
WHEREAS, the Company intends to make an initial public
offering of shares of Common Stock (the "IPO") pursuant to the Securities Act of
1933, as amended (the "Securities Act"); and
WHEREAS, in order to facilitate the IPO and as an inducement
to the Company to pursue the IPO, the parties are entering into this Agreement
to establish various rights and obligations in connection with the transfer of
the Common Stock held by the Shareholder upon the terms and conditions herein.
NOW, THEREFORE, in consideration of the premises and the
mutual promises and covenants contained herein and for other good and valuable
consideration, receipt of which is hereby acknowledged, the parties agree as
follows:
1. RESTRICTIONS ON TRANSFER.
(a) At all times from the date hereof until the date of the
closing of the IPO (the "IPO Closing Date"), the Shareholder shall not directly
or indirectly sell, assign, pledge, hypothecate, give or transfer (each, a
"Transfer") any Common Stock to any person or entity.
(b) The Shareholder hereby agrees to execute and deliver any
"lock-up" agreement or other agreement restricting the transfer of his shares of
Common Stock as may be requested by the underwriters in connection with the IPO
(the "Lock-up Agreement") provided such Lock-up Agreement contains the same
terms and conditions as the Lock-up Agreements applicable to other founding
shareholders of the Company.
(c) From and after the date of termination of the Lock-up
Agreement (the "Lock-up Termination Date"), the Shareholder hereby agrees that
he shall not Transfer any shares of Common Stock that were subject to the
Lock-up Agreement (the "Lock-up Shares") except as follows:
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(i) From the date of the Lock-up Termination Date
through the date which is 6 months from the Lock-up Termination Date, the
Shareholder may Transfer up to 25% of the initial Lock-up Shares;
(ii) From the date which is 6 months from the Lock-up
Termination Date through the date which is 12 months from the Lock-up
Termination Date, the Shareholder may Transfer up to 25% of the Lock-up
Shares;
(iii) From the date which is 12 months from the
Lock-up Termination Date through the date which is 18 months from the Lock-up
Termination Date, the Shareholder may Transfer up to 25% of the Lock-up
Shares;
(iv) From the date which is 18 months from the
Lock-up Termination Date through the date which is 24 months from the Lock-up
Termination Date, the Shareholder may Transfer up to 25% of the Lock-up Shares;
and
(v) After the date which is 24 months after Lock-up
Termination Date, the Shareholder may Transfer up to 100% of the Lock-up Shares.
All transfers permitted pursuant to this Section 1(c) shall be made only (i) in
transactions which are exempt from registration under Section 5 of the
Securities Act (provided that the transferee agrees in writing to become a party
to the Agreement and to be bound by the restrictions contained herein); and (ii)
through brokerage transactions as defined in Rule 144(g) under the Securities
Act and, if required, otherwise in accordance with Rule 144 under the Securities
Act ("Rule 144").
(d) Notwithstanding anything contained in Section 1(a) or
Section 1(c) above to the contrary: (i) the Shareholder may Transfer the shares
of Common Stock to a family trust, family limited partnership or other similar
vehicle established and maintained by the Shareholder for tax and/or estate
planning purposes; provided, that as a condition to any such Transfer, the
transferee agrees in writing to be bound by the terms of this Agreement; and
(ii) Transfers of shares of Common Stock by the Shareholder made in accordance
with Section 1(c) above are subject to applicable federal and state securities
laws, including, without limitation, any applicable holding period, volume
limitation and other restrictions set forth in Rule 144.
(e) Any Transfer not expressly permitted by the terms and
provisions of this Agreement shall be void ab initio.
2. LEGEND. At all times during the term of this Agreement all
certificates representing shares of Common Stock owned by the Shareholder shall
have conspicuously written, stamped or printed thereon the following legend:
"THE SHARES OF STOCK REPRESENTED BY THIS
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CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, AND MUST BE HELD INDEFINITELY UNLESS
SUBSEQUENTLY REGISTERED UNDER SAID ACT OR UNLESS AN EXEMPTION
FROM SUCH REGISTRATION IS AVAILABLE. THE SALE, ASSIGNMENT,
PLEDGE, ENCUMBRANCE, GIFT OR OTHER TRANSFER OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO THE TERMS AND
CONDITIONS OF AN AGREEMENT, DATED AS OF APRIL 15, 1998, AMONG
THE CORPORATION AND CERTAIN HOLDERS OF SHARES OF THE STOCK OF
SUCH CORPORATION. SUCH AGREEMENT RESTRICTS TRANSFER OF THE
SHARES EVIDENCED BY THIS CERTIFICATE. COPIES OF SUCH AGREEMENT
MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE
HOLDER OF RECORD OF THIS CERTIFICATE TO THE SECRETARY OF THE
CORPORATION."
3. SALE OF SHARES IN THE IPO. Except as hereinafter provided,
the Company shall include in the Registration Statement filed with respect to
the IPO up to 50% of the shares of Common Stock of the Company owned by the
Shareholder, which shares will be included in such Registration Statement at the
same price (and subject to the same underwriters' discounts and commissions) as
the shares of Common Stock sold by the Company, Xxxxxxxx X. Xxxxx and the Xxxxx
XXX Trust in the IPO. Notwithstanding the foregoing, if the representative of
the underwriters for the IPO determines, in its sole and absolute discretion,
that, due to market or other conditions, the successful completion of the IPO
could be adversely affected by the inclusion in the IPO of all, or any portion
whatsoever, of the shares of Common Stock owned by the Shareholder, then the
Company shall reduce the percentage of the shares of Common Stock owned by the
Shareholder which are to be included in the IPO from 50% to such percentage
(which may be zero) as the representative of the underwriters so determines;
provided, however, in no event may such reduction result in Xxxxxxxx X. Xxxxx
and The Xxxxx XXX Trust, in the aggregate, selling a higher percentage of his
shares of Common Stock in the IPO than the percentage sold by the Shareholder.
If shares of Common Stock of the Company are to be sold by the Shareholder in
the IPO: (i) the Shareholder shall cooperate with the Company and the
underwriters selected by the Company for the IPO in the preparation of the
Registration Statement, to the extent reasonably requested by the Company, the
underwriters or their representative; (ii) the Shareholder promptly shall
provide the Company and the underwriters with information about himself for
inclusion in the Registration Statement; (iii) the Shareholder shall execute an
underwriting agreement with the underwriters, in substantially the form
attached, with respect to the sale of his shares in the IPO; and (iv) the
Shareholder shall pay his proportionate share of the IPO expenses (including,
without limitation, the Company's legal and accounting fees, printing expenses
and blue sky fees and expenses) on the basis of the number of shares he sells in
the IPO as compared with the total number of shares sold
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in the IPO. The Shareholder shall be solely responsible for the fees of any
counsel retained by the Shareholder in connection with the Registration
Statement and any transfer taxes or underwriting discounts, commissions or fees
applicable to the shares sold by the Shareholder pursuant thereto.
4. NONCOMPETITION; CONFIDENTIALITY.
(a) For and in consideration of the agreements of the Company
set forth herein, the Shareholder agrees that he will not, for a period of five
years beginning on the date hereof (the "Non-Competition Term"), directly or
indirectly, own, manage, operate, join, control, be employed by, or participate
in the ownership, management, operation or control, or be connected in any
manner (including, but not limited to, holding the positions of stockholder
(excepting less than 1% stock holdings for investment purposes in securities of
publicly held and traded companies), member, director, officer, consultant,
independent contractor, employee, partner or investor) with, any person or
entity engaged in a business or operation in the United States of America,
Canada or Europe which operates any office products distribution business(es)
and/or office products buying group(s) or is a consolidator of any of the
foregoing businesses. The Shareholder agrees that, during the Non-Competition
Term, he will not interfere with the Company's or its subsidiaries' relationship
with, or endeavor to employ or entice away from the Company or any of its
subsidiaries, any person or entity who or which is an employee, customer or
supplier, or maintains a business relationship with, the Company or any of its
subsidiaries.
(b) The Shareholder agrees and understands that given his
positions with the Company and its subsidiaries, the Shareholder has been
exposed to and has received information relating to the confidential affairs of
the Company and its subsidiaries, including, but not limited to, business and
marketing plans, strategies, customer information, other information concerning
the products, promotions, development, financing, expansion plans, business
policies and practices, and other forms of information considered by the Company
and its subsidiaries to be confidential and in the nature of trade secrets. The
Shareholder agrees that, during the Non-Competition Term and thereafter, he will
keep such information confidential and not disclose such information, either
directly or indirectly, to any person or entity without the prior written
consent of the Company, unless required to do so by law or court order and then
only to the extent so required. This confidentiality covenant has no temporal,
geographical or territorial restriction. Upon the request to the Company, the
Shareholder promptly will supply to the Company, all property, keys, notes,
memoranda, writings, lists, files, reports, customer lists, correspondence,
tapes, disks, cards, surveys, maps, logs, technical data or any documents
relating to the Company, its subsidiaries or their respective businesses which
have been produced by, received by or otherwise submitted to the Shareholder
during or prior to the Non-Competition Term.
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5. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDER. The
Shareholder hereby represents and warrants to the Company as follows:
(a) The Shareholder has the legal capacity to execute, deliver
and perform this Agreement. This Agreement constitutes the legal, valid and
binding obligation of the Shareholder, enforceable against the Shareholder in
accordance with its terms.
(b) Neither the execution and delivery by the Shareholder of
this Agreement nor the performance by the Shareholder of his obligations
hereunder will (i) violate, be in conflict with, require the consent of any
other party to, or constitute a breach of, any contract, agreement, arrangement
or understanding to which the Shareholder is a party or is otherwise bound, or
(ii) violate or conflict with, any law or any judgment, decree or order of any
governmental authority to which the Shareholder may be subject or bound.
(c) As of the date hereof, the Shareholder owns of record and
beneficially 1,847,608 shares of Common Stock and no other shares of common
stock of the Company, and such shares of Common Stock are owned free and clear
of any lien, encumbrance, pledge or restriction other than the restrictions
imposed on the Common Stock by this Agreement or under the Company's charter or
bylaws. As of the date hereof, the Shareholder has no options, warrants,
subscriptions, calls, preemptive or any other rights whatsoever for the purchase
or receipt of capital stock of the Company.
6. TERMINATION. This Agreement shall terminate upon the
earlier of (i) the mutual agreement of the parties hereto or (ii) December 31,
1998, if the IPO is not consummated by such date, whereupon all obligations of
the parties under this Agreement shall terminate.
7. RELEASE AND INDEMNITY.
(a) For and in consideration of the agreements of the Company
set forth herein, Shareholder hereby releases and forever discharges the Company
and its subsidiaries (now and in the future) and their respective affiliates,
absolutely and forever, of and from any and all direct or indirect liabilities,
claims, losses, damages, costs, expenses, deficiencies, obligations,
responsibilities, demands, benefits, accounts, liens, rights of action, claims
for relief, and causes of action, of every nature and kind whatsoever, in law
and in equity, known or unknown, fixed or unfixed, xxxxxx or inchoate,
liquidated or unliquidated, secured or unsecured, accrued, absolute, contingent
or otherwise (collectively, "Claims"), which the Shareholder had, has, or may
have against any of them for, upon or by reason of any matter, cause or thing
whatsoever from the beginning of the world to the date hereof other than the
rights of Shareholder arising under (i) this Agreement; or (ii) the Employment
Agreement of even date between Shareholder and the Company (the "Employment
Agreement").
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(b) For an in consideration of the agreements of Shareholder
set forth herein, the Company and its subsidiaries (the "Company Releasors"),
hereby release and forever discharge Shareholder (now and in the future) and his
heirs and estate, absolutely and forever, of and from any and all Claims, which
they and their affiliates had, have, or may have against the Shareholder and his
heirs and estate for, upon or by reason of any matter, cause or thing whatsoever
from the beginning of the world to the date hereof other than (i) the rights of
the Company or its subsidiaries arising under this Agreement; (ii) the rights of
the Company under the Employment Agreement; or (iii) embezzlement, fraud,
wrongful taking or misappropriation of property, theft or any other crime
involving dishonesty.
(c) Each party hereby represents that he or it has not
transferred, conveyed or assigned any Claim or any portion thereof or interest
therein. Each party further represents that in executing this release it or he
has not relied upon any representation or statement made by any other party with
regard to the subject matter, basis or effect of this release, except such
representations as are set forth in this Agreement.
8. INDEMNIFICATION. In the event the Shareholder breaches any
of the representations or warranties set forth in Section 5 above, then the
Shareholder shall indemnify the Company from and against the entirety of any
loss, liability or expense (including reasonable attorneys' fees) the Company
may suffer or incur resulting from, arising out of, relating to, in the nature
of or caused by the breach. In the event the Company breaches any of the
representations or warranties set forth in this Agreement, then the Company
shall indemnify the Shareholder from and against the entirety of any loss,
liability or expense (including reasonable attorneys' fees) the Shareholder may
suffer or incur resulting from, arising out of, relating to, in the nature of or
caused by the breach.
9. INJUNCTIVE RELIEF. The Shareholder acknowledges that any
breach or imminent breach by the Shareholder of the covenants, terms or
provisions of this Agreement (other than the representations and warranties set
forth in SECTION 5 above) may cause irreparable injury and harm to the Company,
and that remedies at law for the breach or imminent breach may be inadequate.
Accordingly, in the event of a breach hereof by the Shareholder, or in the event
that the Company, in good faith and upon reasonable cause, determines that a
breach hereof appears imminent, the Company shall be entitled to obtain specific
performance, temporary and permanent injunctive relief and such other relief to
which it may be entitled at law or in equity without the necessity of posting
bond or of proving actual damage. The Company shall be entitled to recover all
reasonable costs and attorneys' fees incurred by it in the event it is
successful in obtaining any such relief. In the event that the Company is
unsuccessful in obtaining any relief under this section, then the Company shall
reimburse the Shareholder for his reasonable costs and attorneys' fees incurred
in defense of such action.
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10. MISCELLANEOUS.
(a) This Agreement may not be amended, modified, supplemented
or waived except by a written instrument signed by either of the parties hereto
(or, in the case of a waiver, by the party granting such waiver). No waiver of
any of the terms or provisions of this Agreement shall be deemed to be or shall
constitute a waiver of any other term or provision hereof (whether or not
similar), nor shall such waiver constitute a continuing waiver. No failure of a
party hereto to insist upon strict compliance by another party hereto with any
obligation, covenant, agreement or condition contained in this Agreement shall
operate as a waiver of, or estoppel with respect to, any subsequent or other
failure.
(b) All notices, requests, demands and other communications
required or permitted under this Agreement shall be in writing and mailed or
facsimiled or delivered by hand or courier service to the appropriate address
set forth in the preamble hereto. All notices and other communications required
or permitted under this Agreement which are addressed as provided herein (i) if
delivered personally against proper receipt or by confirmed facsimile
transmission shall be effective upon delivery and (ii) if delivered (A) by
certified or registered mail with postage prepaid shall be effective five
business days or (B) by Federal Express or similar courier service with courier
fees paid by the sender, shall be effective two business days following the date
when mailed or couriered, as the case may be. Either party hereto may from time
to time change its address for the purpose of notices to such party by a similar
notice specifying a new address, but no such change shall be deemed to have been
given until it is actually received by the party sought to be charged with its
contents.
(c) This Agreement may not be assigned by the Shareholder
without the prior written consent of the Company. This Agreement shall be
binding upon the heirs, personal representatives, successors, assigns and
affiliates of each party hereto.
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(d) This Agreement shall be governed by the laws of the State
of New York, without giving effect to the conflicts of laws principles thereof.
Each party to this Agreement hereby irrevocably submits to the exclusive
jurisdiction of any New York State or Federal Court sitting or located in the
County of New York (a "New York Court") in any action arising out of or relating
to this Agreement, and each such party hereby irrevocably agrees that all claims
in respect of such action shall be heard and determined in such New York Court.
Each party, to the extent permitted by applicable laws, hereby expressly waives
any defense or objection to jurisdiction or venue based on the doctrine of FORUM
NON CONVENIENS, and stipulates that any New York Court shall have IN PERSONAM
jurisdiction and venue over such party for the purpose of litigating any dispute
or controversy between the parties arising out of or related to this Agreement.
In the event any party shall commence or maintain any action arising out of or
related to this Agreement in a forum other than a New York Court, the other
party shall be entitled to request the dismissal or stay of such action, and
each such party stipulates for itself that such action shall be dismissed or
stayed. To the extent that any party to this Agreement has or hereafter may
acquire any immunity from jurisdiction of any New York Court or from any legal
process (whether through service or notice, attachment prior to judgment,
attachment in aid of execution or otherwise) with respect to itself or its
property, each such party hereby irrevocably waives such immunity. Each party
irrevocably consents to the service of process of any of the New York Courts in
any such action by any means permitted by the rules applicable in such New York
Court.
(e) This Agreement embodies the entire agreement and
understanding among the parties hereto with respect to the subject matter hereof
and supersedes all prior agreements, commitments, arrangements, negotiations or
understandings, whether oral or written, between the parties hereto. There are
no agreements, covenants or undertakings with respect to the subject matter of
this Agreement other than those expressly set forth or referred to herein.
(f) This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which, when
taken together, shall constitute one and the same instrument.
(g) In case any one or more of the provisions contained in
this Agreement shall be adjudged invalid, illegal or unenforceable by a New York
Court of competent jurisdiction, such invalidity, illegality or unenforceability
shall be limited to such provisions and the remainder of this Agreement shall be
valid and binding upon the Company and the Shareholder; provided, however, that
in the event a particular provision of this Agreement is determined to be
unreasonable by such New York Court, the parties agree to use their best efforts
to reform that provision in such a manner so as to preserve as closely as
possible the original intent of the parties.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
OFFICE CENTRE CORPORATION
By: /s/X.X. Xxxxxx, Xx.
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Xxxxxx X. Xxxxxx, Xx.
/s/Xxxxxx Xxxxxxxxxxx
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Xxxxxx Xxxxxxxxxxx
