Exhibit 10.3
BT OFFICE PRODUCTS INTERNATIONAL
Riverwalk, Suite 590
2150 East Lake Cook Road
Buffalo Grove, IL 60089
June 25, 1996
Mr. Howard L. Brown
290 Westwind Court
Norwood, NJ 07648
Dear Howard:
This letter will confirm our mutual agreement regarding the
terms and conditions of the termination of your employment with BT OFFICE
PRODUCTS INTERNATIONAL, INC. (the "Company") and constitutes an agreement
between you and the Company.
1. You hereby resign your position as Vice President and
Regional President - Northeast Region effective the date hereof (the "Effective
Date") and as an employee of the Company effective July 18, 1996 (the
"Termination Date"). The letter from the Company to you dated June 12, 1996
purporting to furnish written notice under Section 3(b) of your employment
agreement dated as of January 1, 1995 is hereby withdrawn as void and is of no
further force and effect.
2. Subject to your strict performance of the covenants and
agreements hereunder, including, without limitation, the covenants and
agreements in Paragraphs 7 and 8 hereof, the Company agrees to make payments to
you in the aggregate amount of $175,000, to be paid in five installments of
$35,000.00, to be paid by check mailed to you at the address provided by
Paragraph 13 below on or before the dates six, nine, twelve, fifteen and
eighteen months, respectively, after the Effective Date.
3. Pursuant to the Company's 1995 Stock Option Plan (the
"Option Plan") and the Option Agreement (the "Option Agreement") dated July 18,
1995 between you and the Company, options to purchase 52,500 shares will vest on
July 18, 1996. Notwithstanding anything in the Option Plan or Option Agreement
to the contrary, such options will terminate on October 16, 1996. The unvested
balance of your options are hereby terminated and cancelled.
4. Except to the extent required by state or federal
law, you and the Company each agree to refrain from making any
public statements regarding the other which are disparaging of
Mr. Howard L. Brown -2- June 25, 1996
the other. Statements made in the course of a governmental or legal proceeding
shall not be deemed to be public statements. Each of the Company and you agree
to keep the amount of any payments made hereunder confidential and disclose such
information to no one, except for each party's attorneys and accountants and
except as may be required by law.
5. You acknowledge that you have opted not to participate in
the Company's health insurance plan and that, accordingly, you have no rights to
any coverage or continuation of coverage thereunder, including, without
limitation, any benefits available under the federal Consolidated Budget
Reconciliation Act or any similar state law.
6. (a) The Company shall promptly pay you $13,461.00 in full
consideration of your earned and unused vacation benefits. You shall be paid
your salary through the date hereof in accordance with the normal payroll
practices of the Company.
(b) The Company will reimburse you for all reasonable and
customary business expenses incurred by you in performing your duties as Vice
President and Regional President - Northeast Region prior to June 12, 1996, upon
receipt of reasonably itemized documentation as required by the Internal Revenue
Code and approval by the Company. You shall have no rights to any additional
payments in respect of your "perk" allowance except that the Company shall
reimburse you for your expenses in respect of your automobile lease and cellular
telephone through June 25, 1996 upon receipt of proper documentation.
(c) Any payments made under Paragraph 2 hereof or under
this Paragraph 6 shall be subject to applicable withholding taxes but in no
event shall any amount payable under this Paragraph 6 be reduced for any other
reason.
7. (a) You recognize and acknowledge that the Company's
marketing methods, forms, customer lists, price schedules, pricing systems,
product lists, catalogues and similar proprietary information, as the same may
exist from time to time, to the extent that these marketing methods, forms,
customer lists, price schedules, pricing systems, product lists, catalogues and
similar proprietary information are not publicly available, are valuable and
unique assets of the Company. You agree that you will not at any time, directly
or indirectly, use any of the foregoing for your own purposes or disclose any of
the foregoing information or any part thereof to any person or entity for any
reason or purpose whatsoever. In the event of a breach, or threatened breach, by
you of the provisions of this Paragraph 8, the Company shall, in addition to all
Mr. Howard L. Brown -3- June 25, 1996
other available remedies, be entitled to an injunction restraining you from
disclosing, in whole or in part, any of the foregoing information or from
rendering any services to any person or entity to whom the foregoing
information, in whole or in part, has been disclosed and/or threatened to be
disclosed.
(b) You hereby agree that any and all improvements,
inventions, discoveries, formulae, processes, methods, know-how, confidential
data, trade secrets and other proprietary information (collectively, "Work
Product") within the scope of the Business (as defined below) of the Company or
any affiliate of the Company which you have conceived or made during your
employment with the Company shall be and are the sole and exclusive property of
the Company.
8. (a) You acknowledge that, during your employment with the
Company, you have gained valuable and proprietary information regarding the
Company and its respective operations and customers. Accordingly, in
consideration of the covenants and agreements of the Company under this letter,
you covenant and agree that, for a period of eighteen (18) consecutive months
starting on the Effective Date (the "Term"), you will not directly or indirectly
through any other person or entity
(i) engage in any business or activity that competes
with the office products (including, without limitation, office
furniture, office equipment, office supplies, printing and advertising
specialties, tape, labels and other adhesive products, desk and
telephone accessories, writing instruments, paper products and filing
supplies, printing and related business forms, ribbons and computer
supplies, school supplies and items described in the United Stationers
annual office supplies catalogs and flyers) business of the Company and
its subsidiaries (the "Business") or own, operate, manage, join,
control, participate in the ownership, management, operation or control
of, or be paid or employed by or act as consultant, agent, distributor,
sales representative or contractor for, any business entity or activity
which is engaged in the Business; or
(ii) solicit any sales to or other business of any
person or entity which during the term of your employment with the
Company was a customer or at the time of termination of your employment
is an active prospect of the Company or any of its subsidiaries in
connection with the Business; or
(iii) hire, or attempt to hire (or assist anyone
else in hiring or attempting to hire) for employment or as
Mr. Howard L. Brown -4- June 25, 1996
an independent sales representative, contractor or consultant, in any
business enterprise or activity, any person who is, or during the
twelve (12) month period immediately preceding the Effective Date was,
an employee or independent sales representative, contractor or
consultant of the Company or any of its subsidiaries or induce (or
assist anyone in inducing) in any way any employee of or independent
sales representative or contractor of or consultant to the Company to
resign, sever employment, or breach or terminate an employment or sales
representative or other services agreement with the Company or any of
its subsidiaries; or
(iv) lend money to, guarantee the lending of money
to, or otherwise invest in or arrange for or promote the financing of
any business or other activity that competes with the Business.
(b) You acknowledge that the foregoing noncompetition
covenant is a fair and reasonable restriction, that such covenant is reasonably
required for the protection of the Company and that the consideration therefor
is a fair and adequate consideration.
(c) You acknowledge that any breach or threatened or
attempted breach of any provision of this Paragraph 8 would cause irreparable
harm to the Company not compensable in money damages and that the Company and
each of its affiliates shall be entitled, in addition to all other applicable
remedies, to a temporary and permanent injunction and a decree for specific
performance of the terms of this Paragraph 8 without being required to prove
damages or furnish any bond or other security.
(d) In the event that any provision of this Paragraph 8 is
determined to be invalid by any court or other entity of competent jurisdiction,
the provisions of this Paragraph 8 shall be deemed to have been amended, and the
parties hereto agree to execute all documents necessary to evidence such
amendment, so as to eliminate or modify any such invalid provision so as to
carry out the intent of this Paragraph 8 as far as possible and to render the
terms of this Paragraph 8 enforceable in all respects as so modified.
9. The parties agree that simultaneously with the execution of
this agreement and in consideration of the agreements contained herein they
shall deliver the respective forms of release attached hereto as Exhibits A and
B, duly authorized and executed.
Mr. Howard L. Brown -5- June 25, 1996
10. This letter and the obligations of the parties hereunder
shall be construed, governed and enforced in accordance with the laws of the
State of New York without giving effect to its rules regarding conflicts of law,
and the parties hereto expressly waive trial by jury in any judicial proceeding
involving, directly or indirectly, any matter in any way arising out of this
letter or out of the employment relationship between us.
11. (a) This letter and the releases contemplated hereby
constitute all of the understandings and agreements existing between the parties
hereto concerning the specific subject matter of this letter and the rights and
obligations created under it as of this date and supersedes and replaces any and
all other agreements, plans or arrangements between the parties hereto
including, without limitation, the letter agreement dated the date hereof
between you and the Company on document no. 90057251.9.
(b) Notwithstanding anything to the contrary contained
herein, your rights to indemnification under the Company's Restated Certificate
of Incorporation and Amended and Restated By-laws remain in full force and
effect to the extent therein provided. In addition, the indemnification
agreement dated July 18, 1995 between the Company and you remains in full force
and effect to the extent therein provided.
12. This letter may not be amended, altered, modified, or
otherwise changed in any respect except by the written agreement of the parties.
Any waiver by any party of any breach of any provision of this letter shall not
be a waiver of any subsequent breach thereof or of any breach of any other
provision hereof.
13. Any notice or other communication required or permitted
under this letter shall be effective only if it is in writing and delivered
personally or sent by a recognized overnight courier, postage prepaid, addressed
as follows:
If to the Company:
BT Office Products International, Inc.
2150 East Lake Cook Road
Buffalo Grove, IL 60089
Attention: Rudolf A.J. Huyzer
Mr. Howard L. Brown -6- June 25, 1996
with a copy to:
Winthrop, Stimson, Putnam & Roberts
695 East Main Street
Stamford, CT 06901
Attention: Frode Jensen, III, Esq.
If to Howard L. Brown:
Mr. Howard L. Brown
290 Westwind Court
Norwood, NJ 07648
with a copy to:
Howard, Darby & Levin
1330 Avenue of the Americas, Second Floor
New York, NY 10019
Attention: Jack P. Levin, Esq.
or to such other address as either party may designate by notice to the other,
and shall be deemed to have been given upon receipt.
14. This letter may be executed in several counterparts, each
of which shall be deemed an original, but all of which shall constitute one and
the same instrument.
Kindly sign this letter where indicated to reflect your
agreement to its terms.
BT OFFICE PRODUCTS INTERNATIONAL, INC.
By:/s/ Rudolf A.J. Huyzer
_________________________________
Name: Rudolf A.J. Huyzer
Title: President and Chief
Executive Officer
ACKNOWLEDGED AND AGREED:
/s/ Howard Brown
_______________________
Howard L. Brown
Exhibit A
RELEASE
TO ALL WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, KNOW
THAT BT Office Products International, Inc. and NV Koninklijke KNP BT (and their
respective parent corporations, subsidiary corporations, divisions, predecessors
and successors and all related or affiliated legal or business entities), their
present and former stockholders, and, in their official capacities only,
officers, directors, agents, employees, attorneys and representatives,
collectively, as RELEASOR, in consideration of the sum of Ten Dollars ($10.00),
and other good and valuable consideration, received from Howard L. Brown, as
RELEASEE, receipt of which is hereby acknowledged, does (except as hereafter
provided) release and discharge Howard L. Brown, the RELEASEE, and RELEASEE'S
heirs, executors, administrators, successors and assigns from all actions,
causes of action, suits, debts, dues, sums of money, accounts, reckonings,
bonds, bills, specialties, covenants, contracts, controversies, agreements,
promises, variances, trespasses, damages, judgments, extents, executions,
claims, and demands whatsoever, in law, admiralty or equity, regarding, in
connection with, or in any way whatsoever arising out of RELEASEE's employment
or termination of employment with RELEASOR, which against the RELEASEE the
RELEASOR, RELEASOR'S successors and assigns ever had, now has or hereafter can,
shall or may have for, upon, or by reason of any matter, cause or thing
whatsoever from the beginning of the world to the day of the date of this
RELEASE, except as is necessary to enforce the terms of the Letter Agreement
dated as of June 25, 1996 hereof between RELEASOR and RELEASEE.
Notwithstanding the foregoing, the release and discharge
provided for herein shall not apply to any claim for contribution or
indemnification (whether asserted by way of third-party complaint, cross-claim
or independent action) which may hereafter be asserted in the name of the
RELEASOR by its present insurers pursuant to their subrogation rights, if any,
if such release and discharge would be in derogation of such subrogation rights
under existing policies against RELEASEE in or in connection with, (a) an action
entitled Irene T. Wright v. BT Office Products International, Inc., et al., 96
Civ. 2685 (DAB), in the United States District Court for the Southern District
of New York (the "Wright Action") or (b) any other action in which claims are
made relating to the same subject matter as the Wright Action.
RELEASOR acknowledges that it has been advised by competent
legal counsel in connection with the execution of this RELEASE, that this
paragraph should constitute written notice to RELEASOR OF RELEASOR'S right to be
advised by legal counsel in connection with this RELEASE and RELEASOR
understands its respective rights and obligations. RELEASOR declares, under
penalty of perjury, that RELEASOR has completely read this RELEASE, and fully
understands the terms and contents and freely, voluntarily and without coercion
enter into this RELEASE.
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This RELEASE and the Letter Agreement referred to above
contain the entire agreement between the parties and it completely supersedes
any prior written or oral agreements or representations concerning the subject
matter hereof. Any oral representation or modification concerning this RELEASE
shall be of no force or effect. This RELEASE can be modified only by a writing
signed by the parties to this RELEASE.
This RELEASE shall be governed by and construed in accordance
with the substantive laws of the State of New York.
The words "RELEASOR" and "RELEASEE" include all Releasors and
all Releasees under this RELEASE.
IN WITNESS WHEREOF, the RELEASOR has caused this RELEASE to be
executed by its duly authorized officer and its corporate seal to be hereunto
affixed on August 6, 1996.
BT OFFICE PRODUCTS INTERNATIONAL, INC.
By:/s/ Rudolf A.J. Huyzer
__________________________________
Title:
NV KONINKLIJKE KNP BT
By:/s/ Frans Koffrie
__________________________________
Title:
By:/s/ Rob Bonnier
__________________________________
Title:
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STATE OF NY )
) ss.: ____________ August 6th, 1996
COUNTY OF NY )
On this 6th day of August, 1996, before me personally came
Rudolf Huyzer, who, being by me duly sworn, did depose and say that his
address is _______________________, that he is the ________________ of BT Office
Products International, Inc., the corporation described in, and which executed
the foregoing Release, that he knows the seal of the corporation, that the seal
affixed to the Release is the corporate seal, that it was affixed by order of
the board of the corporation, and that he signed his name by like order.
/s/ Theresa Servello
____________________________________
Notary Public
STATE OF NY )
) ss.: ____________ August 6th, 1996
COUNTY OF NY )
On this 6th day of August, 1996, before me personally came
Frans Koffrie, who, being by me duly sworn, did depose and say that
his address is ______________________, that he is the ___________________ of NV
Koninklijke KNP BT, the corporation described in, and which executed the
foregoing Release, that he knows the seal of the corporation, that the seal
affixed to the Release is the corporate seal, that it was affixed by order of
the board of the corporation, and that he signed his name by like order.
/s/ Theresa Servello
_____________________________________
Notary Public
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STATE OF NY )
) ss.: ___________ August __, 1996
COUNTY OF NY )
On this 6th day of August, 1996, before me personally came
Rob Bonnier, who, being by me duly sworn, did depose and say that
his address is ______________________, that he is the ___________________ of NV
Koninklijke KNP BT, the corporation described in, and which executed the
foregoing Release, that he knows the seal of the corporation, that the seal
affixed to the Release is the corporate seal, that it was affixed by order of
the board of the corporation, and that he signed his name by like order.
/s/ Theresa Servello
_____________________________________
Notary Public
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Exhibit B
RELEASE
TO ALL WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, KNOW
THAT Howard L. Brown, as RELEASOR, in consideration of the sum of Ten Dollars
($10.00), and other good and valuable consideration, received from BT Office
Products International, Inc., as RELEASEE, receipt of which is hereby
acknowledged, does hereby release and discharge BT Office Products
International, Inc., the RELEASEE, RELEASEE's parent corporations, subsidiary
corporations, divisions, predecessors, successors and assigns and all related or
affiliated legal or business entities, present and former stockholders
(including the respective heirs, executors, administrators, successors and
assigns of such stockholders) and, in their official capacities only, officers,
directors, agents, employees, attorneys and representatives (including the
respective heirs, executors, administrators, successors and assigns of such
persons) from all actions, causes of action, suits, debts, dues, sums of money,
accounts, reckonings, bonds, bills, specialties, covenants, contracts,
controversies, agreements, promises, variances, trespasses, damages, judgments,
extents, executions, claims, and demands whatsoever, in law, admiralty or
equity, regarding, in connection with or in any way arising out of RELEASOR's
employment or the termination of such employment with RELEASEE, including, but
not limited to, claims of discrimination (including claims of discrimination
under the Age Discrimination in Employment Act) or wrongful discharge,
which against the RELEASEE, the RELEASOR or RELEASOR's successors or assigns
ever had, now have or hereafter can, shall or may, have for, upon, or by reason
of any matter, cause or thing whatsoever from the beginning of the world to the
day of the date of this RELEASE, except as is necessary to enforce the terms of
the Letter Agreement dated as of June 25, 1996 between RELEASOR and RELEASEE.
RELEASOR acknowledges that RELEASOR has been advised by
competent legal counsel in connection with the execution of this RELEASE, that
this paragraph should constitute written notice to RELEASOR of RELEASOR's right
to be advised by legal counsel in connection with this RELEASE and that RELEASOR
understands RELEASOR's respective rights and obligations. RELEASOR declares,
under penalty of perjury, that RELEASOR has completely read this RELEASE, and
fully understands the terms and contents and freely, voluntarily and without
coercion enters into this RELEASE.
This RELEASE and the Letter Agreement referred to above
contain the entire agreement between the parties and it completely supersedes
any prior written or oral agreements or representations concerning the subject
matter hereof. Any oral representation or modification concerning this RELEASE
shall be of no force or effect. This RELEASE can be modified only by a writing
signed by the parties to this RELEASE.
This RELEASE shall be governed by and construed in accordance
with the substantive laws of the State of New York.
The words "RELEASOR" and "RELEASEE" include all releasors and
all releasees under this RELEASE.
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IN WITNESS WHEREOF, the RELEASOR has executed this RELEASE on
July 17, 1996.
/s/ Howard Brown
_____________________________________
Howard L. Brown
STATE OF NEW YORK )
) ss.: July 17, 1996
COUNTY OF NEW YORK )
On this 17th day of July, 1996, before me personally came
Howard L. Brown, to me known, who, being by me duly sworn, did depose and say
that his address is 290 Westwind Court, Norwood, New Jersey 07648, and
acknowledged that he executed the foregoing Release for the purposes therein
contained.
_____________________________________
Notary Public
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