\n SECTION 9.09 Consolidation…………………………………………………………40<\/p>\n ARTICLE X
\n MISCELLANEOUS……………………………………………………………………………….40
\n SECTION 10.01 Modification, Amendment or Termination………………………………….40
\n SECTION 10.02 Waiver; Remedies……………………………………………………..40
\n SECTION 10.03 Counterparts…………………………………………………………41
\n SECTION 10.04 Notices……………………………………………………………..41
\n SECTION 10.05 Entire Agreement……………………………………………………..42
\n SECTION 10.06 Certain Obligations…………………………………………………..42
\n SECTION 10.07 Assignment…………………………………………………………..42
\n SECTION 10.08 Captions…………………………………………………………….42
\n SECTION 10.09 Severability…………………………………………………………43
\n SECTION 10.10 Equitable Relief……………………………………………………..43
\n SECTION 10.11 Third Party Beneficiaries……………………………………………..43
\n SECTION 10.12 Expenses…………………………………………………………….43
\n SECTION 10.13 Exhibits and Schedules………………………………………………..43
\n SECTION 10.14 Governing Law………………………………………………………..43
\n SECTION 10.15 Consent to Jurisdiction………………………………………………..43
\n SECTION 10.16 Ancillary Agreements………………………………………………….44
\n SECTION 10.17 Survival of Agreements………………………………………………..44
\n SECTION 10.18 Successors and Assigns………………………………………………..44<\/p>\n
<\/c><\/s><\/caption>\n<\/table>\n
iii<\/p>\n
AGREEMENT AND PLAN OF DISTRIBUTION<\/p>\n
AGREEMENT AND PLAN OF DISTRIBUTION dated as of May __, 1998,
\nbetween U.S. OFFICE PRODUCTS COMPANY, a Delaware corporation (the “Company”),
\nWORKFLOW MANAGEMENT, INC., a Delaware corporation and wholly owned subsidiary of
\nthe Company (“Printco”), SCHOOL SPECIALTY, INC., a Delaware corporation and
\nwholly owned subsidiary of the Company (“Schoolco”), AZTEC TECHNOLOGY PARTNERS,
\nINC., a Delaware corporation and wholly owned subsidiary of the Company
\n(“Techco”), and NAVIGANT INTERNATIONAL, INC., a Delaware corporation and wholly
\nowned subsidiary of the Company (“Travelco”). Certain capitalized terms used
\nherein without definition have the meanings specified in Section 1.01.<\/p>\n
W I T N E S S E T H:<\/p>\n
WHEREAS the Board of Directors of the Company has approved the
\nform, terms and provisions of this Agreement, pursuant to which and subject to
\nthe terms of which (a) the Company will distribute all the issued and
\noutstanding shares of common stock of the Distributed Companies held by the
\nCompany (as to the shares of each Distributed Company, the “Printco Common
\nShares,” the “Schoolco Common Shares,” the “Techco Common Shares,” and the
\n“Travelco Common Shares”) to the holders of record of shares of common stock of
\nthe Company (the “Company Common Stock”), other than shares held in the treasury
\nof the Company, (b) each Distributed Company will assume entirely such
\nDistributed Company’s Liabilities and other liabilities specified herein, (c)
\neach Distributed Company will agree to indemnify the Company and hold it
\nharmless from and against its Pro Rata Share of certain Shared Liabilities and
\n(d) certain other transactions will be consummated, all as set forth in Article
\nII hereof (the “Preliminary Transactions”);<\/p>\n
WHEREAS the purpose of the Preliminary Transactions and the
\nDistributions is to divest the Company of all businesses, operations and
\nLiabilities other than the Retained Business, Retained Assets and Retained
\nLiabilities of the Company and its Subsidiaries;<\/p>\n
WHEREAS it is the intention of the parties to this Agreement
\nthat for U.S. federal income tax purposes the Distributions shall qualify as
\ntax-free spin-offs under Section 355 of the Code and shall not be taxable under
\nSection 355(e) of the Code; and<\/p>\n
WHEREAS in order to effect the separation of ownership of the
\nCompany and the Distributed Companies, this Agreement sets forth the principal
\ncorporate transactions required to effect the Preliminary Transactions and the
\nDistributions and sets forth other agreements that will govern certain other
\nmatters following the Distributions.<\/p>\n
NOW, THEREFORE, in consideration of the premises, and of the
\ncovenants and agreements set forth herein, the parties hereto hereby agree as
\nfollows:<\/p>\n
ARTICLE I
\n DEFINITIONS<\/p>\n
SECTION 1.01 General. As used in this Agreement, the following
\nterms shall have the following meanings (such meanings to be equally applicable
\nto both the singular and plural forms of the terms defined):<\/p>\n
“AAA” shall mean the American Arbitration Association.<\/p>\n
“Acquisition Agreement” shall mean each of the merger, stock
\npurchase, asset purchase or other acquisition agreements pursuant to which
\ncertain of the Distributed Company Subsidiaries were acquired by the Company or
\nany of its Subsidiaries prior to the Distributions.<\/p>\n
“Acquisition Claim” shall mean any and all rights or claims
\nthat the Company or any of its Subsidiaries may have against the sellers of the
\nDistributed Company Subsidiaries under any of the Acquisition Agreements.<\/p>\n
“Action” shall mean any action, suit, arbitration, inquiry,
\nproceeding or investigation by or before any court, any governmental or other
\nregulatory or administrative agency, body or commission or any arbitration
\ntribunal.<\/p>\n
“Affiliate” shall mean, when used with respect to a specified
\nPerson, another Person that directly, or indirectly through one or more
\nintermediaries, controls or is controlled by or is under common control with the
\nPerson specified.<\/p>\n
“Agent” shall mean American Stock Transfer & Trust Company, as
\ntransfer agent for the Company.<\/p>\n
“Ancillary Agreements” shall mean the Employee Benefits
\nAgreement, the Tax Allocation Agreement, the Imagenet Licensing Agreement and
\nthe Lead Generation System Licensing Agreement.<\/p>\n
“Assets” shall mean any and all assets, properties and rights,
\nwhether tangible or intangible, whether real, personal or mixed, whether fixed,
\ncontingent or otherwise, and wherever located, including, without limitation,
\nthe following:<\/p>\n
(i) real property interests (including leases), land,
\n plants, buildings and improvements;<\/p>\n
(ii) machinery, equipment, tooling, vehicles, furniture and
\n fixtures, leasehold improvements, repair parts, tools,
\n plant, and office equipment and other tangible personal
\n property, together with any rights or claims arising<\/p>\n
2<\/p>\n
out of the breach of any express or implied warranty by
\n the manufacturers or sellers of any of such assets or
\n any component part thereof;<\/p>\n
(iii) inventories, including raw materials, work-in-process,
\n finished goods, parts, accessories and supplies;<\/p>\n
(iv) cash, bank accounts, notes, loans and accounts
\n receivable (whether current or not current), interests
\n as beneficiary under letters of credit, advances and
\n performance and surety bonds;<\/p>\n
(v) certificates of deposit, banker’s acceptances, shares
\n of stock, bonds, debentures, evidences of indebtedness,
\n certificates of interest or participation in
\n profit-sharing agreements, collateral-trust
\n certificates, preorganization certificates or
\n subscriptions, transferable shares, investment
\n contracts, voting-trust certificates, puts, calls,
\n straddles, options, swaps, collars, caps and other
\n securities or hedging arrangements of any kind;<\/p>\n
(vi) financial, accounting and operating data and records
\n including, without limitation, books, records, notes,
\n sales and sales promotional data, advertising
\n materials, credit information, cost and pricing
\n information, customer and supplier lists, reference
\n catalogs, payroll and personnel records, minute books,
\n stock ledgers, stock transfer records and other similar
\n property, rights and information;<\/p>\n
(vii) patents, patent applications, trademarks, trademark
\n applications and registrations, trade names, service
\n marks, service mark applications and registrations,
\n service names, copyrights and copyright applications
\n and registrations, commercial and technical information
\n including engineering, production and other designs,
\n drawings, specifications, formulae, technology,
\n computer and electronic data processing programs and
\n software, inventions, processes, trade secrets,
\n know-how, confidential information and other
\n proprietary property, rights and interest and all
\n rights thereto;<\/p>\n
(viii) agreements, leases, contracts, sale orders, purchase
\n orders, open bids and other commitments and all rights
\n therein;<\/p>\n
(ix) prepaid expenses, deposits and retentions held by third
\n parties;<\/p>\n
(x) claims, causes of action, choses in action, rights
\n under insurance policies, rights under express or
\n implied warranties, rights of recovery, rights of
\n set-off, rights of subrogation and all other rights of
\n any kind;<\/p>\n
(xi) licenses, franchises, permits, authorizations and
\n approvals; and<\/p>\n
3<\/p>\n
(xii) goodwill and going concern value.<\/p>\n
“Assignee” shall have the meaning set forth in Section 2.07.<\/p>\n
“Assignor” shall have the meaning set forth in Section 2.07.<\/p>\n
“CDR-PC” shall mean CDR-PC Acquisition, L.L.C., a Delaware
\nlimited liability company.<\/p>\n
“Code” shall mean the Internal Revenue Code of 1986, as
\namended, and the Treasury regulations promulgated thereunder, including any
\nsuccessor legislation.<\/p>\n
“Company” shall have the meaning set forth in the heading of
\n this Agreement.<\/p>\n
“Company Debt” shall mean all Liabilities of the Company and
\nits Subsidiaries under or arising out of the Credit Agreement, dated as of
\nAugust 21, 1996, among the Company, various lending institutions and Bankers
\nTrust Company, as agent.<\/p>\n
“Company Common Stock” shall have the meaning set forth in
\nthe recitals to this Agreement.<\/p>\n
“Company Indemnitees” shall mean the Company, each Affiliate
\nof the Company after the Distribution Date, Clayton, Dubilier & Rice, Inc.,
\nCDR-PC, Clayton, Dubilier & Rice Fund V Limited Partnership, CD&R Associates V
\nLimited Partnership, each of their respective partners, members, directors,
\nofficers, employees and agents and each of the heirs, executors, successors and
\nassigns of any of the foregoing.<\/p>\n
“Company Transaction Costs” shall mean Transaction Costs
\nincurred by the Company in connection with the Transactions.<\/p>\n
“Conveyancing and Assumption Instruments” shall have the
\nmeaning set forth in Section 2.04.<\/p>\n
“Conveyancing Instruments” shall have the meaning set forth
\nin Section 2.04.<\/p>\n
“Covered Claims” shall mean those Liabilities that,
\nindividually or in the aggregate, and if reported timely, are covered within the
\nterms and conditions of any Policy in the Insurance Program.<\/p>\n
“Defaulted Payment Obligation” shall have the meaning set
\nforth in Section 5.09.<\/p>\n
“Dispute” shall have the meaning set forth in Section 9.01.<\/p>\n
4<\/p>\n
“Distributed Companies” shall mean Printco, Schoolco, Techco
\nand Travelco.<\/p>\n
“Distributed Companies’ Assets” shall mean the Printco
\nAssets, the Schoolco Assets, the Techco Assets and the Travelco Assets.<\/p>\n
“Distributed Companies’ Businesses” shall mean the Printco
\nBusiness, the Schoolco Business, the Techco Business and the Travelco Business.<\/p>\n
“Distributed Companies’ Indemnitees” shall mean the Printco
\nIndemnitees, the Schoolco Indemnitees, the Techco Indemnitees and the Travelco
\nIndemnitees.<\/p>\n
“Distributed Companies’ Liabilities” shall mean the Printco
\nLiabilities, the Schoolco Liabilities, the Techco Liabilities and the Travelco
\nLiabilities.<\/p>\n
“Distributed Company Subsidiaries” shall mean the Printco
\nSubsidiaries, the Schoolco Subsidiaries, the Techco Subsidiaries and the
\nTravelco Subsidiaries.<\/p>\n
“Distributed Company Transaction Costs” shall mean, as to any
\nDistributed Company, the Transaction Costs incurred by such Distributed Company
\nor the Company that relate to such Distributed Company’s IPO or credit
\nfacilities described in Section 2.08.<\/p>\n
“Distribution Date” shall mean such date as hereafter may be
\ndetermined by the Company’s Board of Directors as the date as of which the
\nDistributions shall be effected.<\/p>\n
“Distribution Record Date” shall mean such date as hereafter
\nmay be determined by the Company’s Board of Directors as the record date for the
\nDistributions.<\/p>\n
“Distribution Shares” shall mean the Printco Common Shares,
\nthe Schoolco Common Shares, the Techco Common Shares and the Travelco Common
\nShares.<\/p>\n
“Distribution Time” shall mean 11:59 P.M. (Eastern time) on
\nthe Distribution Date.<\/p>\n
“Distributions” shall mean the distributions on the
\nDistribution Date to holders of record of shares of Company Common Stock, as
\nof the Distribution Record Date, other than shares held in the treasury of
\nthe Company, of (i) all the Printco Common Shares on the basis of one Printco
\nCommon Share for each outstanding shares of Company Common Stock, (ii)
\nall the Schoolco Common Shares on the basis of one Schoolco Common Share for
\neach outstanding shares of Company Common Stock, (iii) all the Techco
\nCommon Shares on the basis of one Techco Common Share for each
\noutstanding shares of Company Common Stock, and (iv) all the Travelco Common
\nShares on the basis of one Travelco Common Share for each outstanding
\nshares of Company Common Stock.<\/p>\n
5<\/p>\n
“Earn-Out Payment Liability” shall mean any contingent cash
\npayment required to be made after the Distribution Date by the Company or any of
\nits Subsidiaries to sellers of certain Distributed Company Subsidiaries or
\nRetained Subsidiaries under circumstances that may arise under the Acquisition
\nAgreements.<\/p>\n
“Employee Benefits Agreement” shall mean the Employee
\nBenefits Agreement between the Company and the Distributed Companies
\nsubstantially in the form of Exhibit I hereto.<\/p>\n
“Exchange Act” shall mean the Securities Exchange Act of
\n1934, as amended.<\/p>\n
“Guaranteed Liability” shall have the meaning set forth in
\nSection 2.06.<\/p>\n
“Guaranteed Party” shall have the meaning set forth in
\nSection 2.06.<\/p>\n
“Guarantor” shall have the meaning set forth in Section 2.06.<\/p>\n
“Imagenet Licensing Agreement” shall have the meaning set
\nforth in Schedule 2.11.<\/p>\n
“Indemnifiable Losses” shall mean any and all losses,
\nliabilities, claims, damages, demands, costs or expenses (including, without
\nlimitation, reasonable attorneys’ and accountants’ fees and expenses and any and
\nall out-of-pocket expenses) arising from Third Party Claims or any Indemnifying
\nParty’s breach of its obligations under the Ancillary Agreements or this
\nAgreement, including all losses, liabilities, claims, damages, demands, costs or
\nexpenses reasonably incurred in investigating, preparing for or defending
\nagainst any Actions or potential Actions or in asserting, preserving or
\nenforcing any rights hereunder (including, without limitation, rights under
\nArticle V) or under any Ancillary Agreement.<\/p>\n
“Indemnifying Party” shall have the meaning set forth in
\nSection 5.06.<\/p>\n
“Indemnitee” shall have the meaning set forth in Section
\n5.06.<\/p>\n
“Information” of a party shall mean any and all information
\nthat such party or any of its Representatives furnishes or has furnished to the
\nreceiving party or any of its Representatives whether furnished orally or in
\nwriting or by any other means or gathered by inspection and regardless of
\nwhether the same is specifically marked or designated as “confidential” or
\n“proprietary,” together with any and all notes, memoranda, analyses,
\ncompilations, studies or other documents (whether in hard copy or electronic
\nmedia) prepared by the receiving party or any of its Representatives which
\ncontain or otherwise reflect such Information, together with any and all copies,
\nextracts or other reproductions of any of the same; provided, however, that for
\nthe purposes hereof all information relating to the Distributed Companies, the
\nDistributed Companies’ Businesses or the Distributed<\/p>\n
6<\/p>\n
Companies’ Assets in the possession of the Company at the Distribution Time
\nshall be deemed to have been furnished by the related Distributed Company and
\nall information relating to the Retained Business or the Retained Assets in the
\npossession of the Distributed Companies or any of the Distributed Company
\nSubsidiaries at the Distribution Time shall be deemed to have been furnished by
\nthe Company; provided further, however, that the term “Information” does not
\ninclude information that:<\/p>\n
(a) at the time of disclosure is generally
\navailable to and known by the public (other than as a result of a violation of
\nthis Agreement or any other confidentiality obligation, whether directly or
\nindirectly, by a party to this Agreement or any of its Representatives);<\/p>\n
(b) is available to the receiving party on a
\nnon-confidential basis from a source other than the providing party or its
\nRepresentatives, provided that such source is not known by the receiving party
\nto be subject to a confidentiality agreement regarding such information; or<\/p>\n
(c) has been independently acquired or developed by
\nthe receiving party without violation of any of the obligations of the receiving
\nparty or its Representatives under this Agreement.<\/p>\n
“Information Statements” shall mean the Information
\nStatements\/Prospectuses to be sent to the holders of shares of Company Common
\nStock, as of the Distribution Record Date, in connection with the Distributions,
\nincluding any amendments or supplements thereto, which are included as exhibits
\nto the registration statements on Forms S-1 filed by the Distributed Companies,
\nas applicable, under the Securities Act.<\/p>\n
“Insurance Program” shall mean, collectively, the series of
\npolicies pursuant to which various insurance carriers provide insurance coverage
\nto the Company and its Affiliates in respect of claims or occurrences relating
\nto, without limitation, property damage, bodily injury, business interruption,
\ntransit, fire, non-owned aircrafts, crime, fiduciary liability, general
\nliability, products’ liability, professional liability, automobile liability and
\nemployer’s liability.<\/p>\n
“Investment Agreement” shall mean the Investment Agreement,
\ndated as of January 12, 1998, as amended, between the Company and CDR-PC, as the
\nsame may be amended from time to time.<\/p>\n
“IPO” shall mean, as to any Distributed Company, the initial
\npublic offering of securities to be conducted by such company, which offering is
\nscheduled to occur on or about the Distribution Date.<\/p>\n
7<\/p>\n
“IPO Prospectus” shall mean, as to any Distributed Company,
\nthe Registration Statement\/Prospectus prepared in connection with such
\nDistributed Company’s IPO.<\/p>\n
“Lead Generation System Licensing Agreement” shall have the
\nmeaning set forth in Schedule 2.11.<\/p>\n
“Liabilities” shall mean any and all debts, liabilities,
\nobligations, claims, damages, fees, costs and expenses, absolute or contingent,
\nmatured or unmatured, liquidated or unliquidated, accrued or unaccrued, known or
\nunknown, whenever arising, including, without limitation, those debts,
\nliabilities, obligations, claims, damages, fees, costs and expenses, arising
\nunder any law, rule, regulation, Action, threatened Action, order or consent
\ndecree of any court, any governmental or other regulatory or administrative
\nagency or commission or any award of any arbitration tribunal, and those arising
\nunder any contract, guarantee, commitment or undertaking.<\/p>\n
“Mediation Period” shall have the meaning set forth in Section
\n 9.03.<\/p>\n
“MCI Agreement” shall mean the Special Customer Arrangement,
\neffective as of November 15, 1997, by and between MCI Telecommunications
\nCorporation and the Company.<\/p>\n
“NASDAQ” shall mean the NASDAQ National Market System.<\/p>\n
“Nonassignable Contract” shall have the meaning set forth in
\nSection 2.07.<\/p>\n
“Person” shall mean any natural person, corporation, trust,
\nlimited liability company, joint venture, association, company, partnership,
\nentity, unincorporated organization or government, or any agency or political
\nsubdivision thereof.<\/p>\n
“Pledged Shares” shall mean any Company Common Stock pledged
\nor assigned to the Company as of the Distribution Date as collateral security by
\nsellers of certain of the Distributed Company Subsidiaries under the Acquisition
\nAgreements.<\/p>\n
“Policies” shall mean insurance policies and insurance
\ncontracts of any kind (other than life and benefits policies or contracts),
\nincluding, without limitation, primary, excess and umbrella policies, commercial
\ngeneral liability policies, fiduciary liability, automobile, aircraft, property
\nand casualty, workers’ compensation and employee dishonesty insurance policies,
\nbonds and self-insurance and captive insurance company arrangements, together
\nwith the rights, benefits and privileges thereunder.<\/p>\n
“Preliminary Transactions” shall have the meaning set forth in
\nthe recitals to this Agreement.<\/p>\n
8<\/p>\n
“Printco” shall have the meaning set forth in the heading of
\nthis Agreement.<\/p>\n
“Printco Acquisition Claims” shall mean any and all rights or
\nclaims that the Company or any of its Subsidiaries may have against the sellers
\nof Printco and the Printco Subsidiaries under the Acquisition Agreements
\npursuant to which Printco and the Printco Subsidiaries were acquired by the
\nCompany or any of its Subsidiaries.<\/p>\n
“Printco Assets” shall mean (a) the Assets of Printco and the
\nPrintco Subsidiaries and (b) the rights of Printco and the Printco Subsidiaries
\nunder this Agreement and the Ancillary Agreements; provided, however, that
\nPrintco Assets shall not include any claim of Printco against the Company
\nrelating to the payment of finders’ fees or other compensation in respect of
\ncustomers referred to the Company by Printco or the payment of rebates or other
\ncompensation in respect of office products sold by Printco.<\/p>\n
“Printco Business” shall mean all the businesses, Assets and
\noperations heretofore, currently or hereafter conducted or owned by Printco and
\nthe Printco Subsidiaries including all businesses, Assets and operations
\nconducted or owned by Printco and the Printco Subsidiaries that have been sold
\nor otherwise disposed of or discontinued.<\/p>\n
“Printco Common Shares” shall have the meaning set forth in
\nthe recitals to this Agreement.<\/p>\n
“Printco Indemnitees” shall mean Printco, the Printco
\nSubsidiaries, their Affiliates, each of their respective directors, officers,
\nemployees and agents and each of the heirs, executors, successors and assigns of
\nany of the foregoing.<\/p>\n
“Printco Liabilities” shall mean collectively, whenever
\narising, whether prior to, at or following the Distribution Time, (i) all
\nLiabilities of Printco and the Printco Subsidiaries under this Agreement or the
\nAncillary Agreements, (ii) all Liabilities of the Company and its Subsidiaries
\narising primarily out of or relating primarily to the management or conduct of
\nthe Printco Business or the administration of the Printco Subsidiaries, (iii)
\nall Specified Securities Liabilities of Printco, (iv) all Liabilities of the
\nCompany relating to any Earn-Out Payment Liabilities arising out of any of the
\nAcquisition Agreements pursuant to which any of the Printco Subsidiaries or any
\npart of the Printco Business was acquired, (v) the Distributed Company
\nTransaction Costs of Printco, (vi) $1,000,000 of the Company Transaction Costs
\nand (vii) any Company Debt allocated to Printco pursuant to Section 2.08 of this
\nAgreement.<\/p>\n
“Printco Subsidiaries” shall mean the Subsidiaries of Printco
\nas listed on Exhibit II.<\/p>\n
“Pro Rata Share” shall mean, (i) as to any Distributed
\nCompany, the percentage that is equal to the average of (a) the ratio of the pro
\nforma fiscal year 1998<\/p>\n
9<\/p>\n
revenues for such Distributed Company to the fiscal year 1998 consolidated
\nrevenues of the Company (prior to the Distributions), and (b) the ratio of the
\npro forma fiscal year 1998 net income for such Distributed Company to the fiscal
\nyear 1998 consolidated net earnings of the Company (prior to the Distributions),
\nand (ii) as to the Company, the percentage that is equal to 100% less the sum of
\nthe Pro Rata Share percentages of the Distributed Companies as defined in (i)
\nabove. Estimations of the Company’s Pro Rata Share and each Distributed
\nCompany’s Pro Rata Share using financial data for the nine-month period ended
\nJanuary 24, 1998 are set forth in Exhibit III.<\/p>\n
“Proxy” shall mean the definitive proxy statement dated May 1,
\n1998, distributed by the Company to the holders of the Company Common Stock,
\ndescribing and seeking approval for (i) the investment provided for in the
\nInvestment Agreement and (ii) a one-for-four reverse stock split, as the same
\nmay be amended.<\/p>\n
“Recovery” shall mean those monies received by an insured from
\nan insurance carrier or paid by an insurance carrier on behalf of an insured
\npursuant to a claim under an insurance policy in the Insurance Program.<\/p>\n
“Recovery Costs” shall have the meaning set forth in Section
\n7.04.<\/p>\n
“Representatives” of either party shall mean such party’s
\nAffiliates, directors, officers, partners, employees, agents or other
\nrepresentatives (including attorneys, accountants and financial advisors).<\/p>\n
“Retained Assets” shall mean (a) all the Assets of the Company
\nand its Subsidiaries except for the Distributed Companies’ Assets, and (b) the
\nrights of the Company and its Subsidiaries under this Agreement and the
\nAncillary Agreements.<\/p>\n
“Retained Business” shall mean all the businesses, Assets and
\noperations heretofore, currently or hereafter conducted or owned by the Company
\nand the Retained Subsidiaries, including all businesses, Assets or operations
\nconducted or owned by the Company or its Subsidiaries that have been sold or
\notherwise disposed of or discontinued, (other than the Distributed Companies’
\nAssets, Distributed Companies’ Businesses and the business of managing and
\nadministering the Distributed Companies’ Subsidiaries).<\/p>\n
“Retained Liabilities” shall mean collectively, whenever
\narising, whether prior to, at or following the Distribution Time, (i) all
\nLiabilities of the Company and the Retained Subsidiaries under this Agreement or
\nthe Ancillary Agreements, (ii) all Liabilities of the Company and its Retained
\nSubsidiaries arising primarily out of or relating primarily to the management or
\nconduct of the Retained Business or the administration of the Retained
\nSubsidiaries, (iii) all Specified Securities Liabilities of the Company, (iv)
\nall Liabilities of the Company relating to any Earn-Out Payment Liabilities
\narising out of any of the Acquisition Agreements pursuant to which any of the
\nRetained Subsidiaries or any part of<\/p>\n
10<\/p>\n
the Retained Business was acquired, (v) all of the Company Transaction Costs
\n(excluding, in aggregate, the $4,000,000 that is treated as part of the
\nDistributed Companies’ Liabilities) and (vi) any indebtedness for borrowed money
\nof the Company other than Company Debt to be allocated to the Distributed
\nCompanies pursuant to Section 2.08 of this Agreement.<\/p>\n
“Retained Subsidiaries” shall mean (x) all of the Subsidiaries
\nof the Company other than the Distributed Companies and the Distributed Company
\nSubsidiaries, and (y) 1186203 Ontario Limited, 1243231 Ontario Limited and
\n1203803 Ontario Limited, and their respective Subsidiaries.<\/p>\n
“Schoolco” shall have the meaning set forth in the heading of
\nthis Agreement.<\/p>\n
“Schoolco Acquisition Claims” shall mean any and all rights or
\nclaims that the Company or any of its Subsidiaries may have against the sellers
\nof Schoolco and the Schoolco Subsidiaries under the Acquisition Agreements
\npursuant to which Schoolco and the Schoolco Subsidiaries were acquired by the
\nCompany or any of its Subsidiaries.<\/p>\n
“Schoolco Assets” shall mean (a) the Assets of Schoolco and
\nthe Schoolco Subsidiaries and (b) the rights of Schoolco and the Schoolco
\nSubsidiaries under this Agreement and the Ancillary Agreements; provided,
\nhowever, that Schoolco Assets shall not include any claim of Schoolco against
\nthe Company relating to the payment of finders’ fees or other compensation in
\nrespect of customers referred to the Company by Schoolco or the payment of
\nrebates or other compensation in respect of office products sold by Schoolco.<\/p>\n
“Schoolco Business” shall mean all the businesses, Assets and
\noperations heretofore, currently or hereafter conducted or owned by Schoolco and
\nthe Schoolco Subsidiaries including all businesses, Assets or operations
\nconducted or owned by Schoolco and the Schoolco Subsidiaries that have been sold
\nor otherwise disposed of or discontinued.<\/p>\n
“Schoolco Common Shares” shall have the meaning set forth in
\nthe recitals to this Agreement.<\/p>\n
“Schoolco Indemnitees” shall mean Schoolco, the Schoolco
\nSubsidiaries, their Affiliates, each of their respective directors, officers,
\nemployees and agents and each of the heirs, executors, successors and assigns of
\nany of the foregoing.<\/p>\n
“Schoolco Liabilities” shall mean collectively, whenever
\narising, whether prior to, at or following the Distribution Time, (i) all
\nLiabilities of Schoolco and the Schoolco Subsidiaries under this Agreement or
\nthe Ancillary Agreements, (ii) all the Liabilities of the Company and its
\nSubsidiaries or Affiliates, arising primarily out of or relating primarily to
\nthe management or conduct of the Schoolco Business or the administration of the
\nSchoolco Subsidiaries, (iii) all Specified Securities Liabilities of Schoolco,
\n(iv) all Liabilities of the Company relating to any Earn-Out Payment Liabilities<\/p>\n
11<\/p>\n
arising out of any of the Acquisition Agreements pursuant to which any of the
\nSchoolco Subsidiaries or any part of the Schoolco Business was acquired, (v) the
\nDistributed Company Transaction Costs of Schoolco, (vi) $1,000,000 of the
\nCompany Transaction Costs and (vii) any Company Debt allocated to Schoolco
\npursuant to Section 2.08 of this Agreement.<\/p>\n
“Schoolco Subsidiaries” shall mean the Subsidiaries of
\nSchoolco as listed on Exhibit II.<\/p>\n
“SEC” shall mean the Securities and Exchange Commission.<\/p>\n
“Securities Act” shall mean the Securities Act of 1933, as
\namended.<\/p>\n
“Securities Laws” shall mean the Exchange Act, the Securities
\nAct and foreign, provincial and state securities laws.<\/p>\n
“Shared Liability” shall mean (i) any Liability of the Company
\nand its Subsidiaries, including without limitation a Liability arising under the
\nSecurities Laws, that (x) arises out of an act or omission that occurred prior
\nto the Distribution Date, and (y) is not a Retained Liability, Printco
\nLiability, Schoolco Liability, Techco Liability or Travelco Liability, and (ii)
\nthe Liabilities listed on Exhibit IV. By way of example and not of limitation,
\nShared Liabilities shall include: any Liability arising in connection with the
\nProxy or Tender Offer (other than a liability relating to information supplied
\nby a specific subsidiary of the Company); and any Liability relating to the
\noperation of the Company’s headquarters arising prior to the Distribution Date;
\nand any other liability not relating to the business of any particular Retained
\nSubsidiary or Distributed Company Subsidiary.<\/p>\n
“Special Insurance Recoveries” shall mean Recoveries whenever
\nreceived by the Company (i) relating to insured casualty losses of a Distributed
\nCompany or Distributed Company Subsidiary occurring prior to the Distribution
\nDate and (ii) not actually used by the relevant Distributed Company or
\nDistributed Company Subsidiary to rebuild, reconstruct, renovate or repair
\nproperties or facilities that suffered such loss.<\/p>\n
“Specified Securities Liabilities” shall mean (a) as to any
\nDistributed Company, any Liability under the Securities Laws arising out of or
\nrelating to (x) the Information Statement (other than Liabilities relating to
\nthose sections of the Information Statements specified on Exhibit V) and\/or IPO
\nProspectus of such Distributed Company, and (y) any other securities filings or
\ndisclosures made by, or the failure to make filings or disclosures required to
\nbe made by, the Company or any of its Subsidiaries prior to the Distribution
\nDate to the extent such Liability arises primarily out of material omissions
\nmade by or materially incorrect, false, or misleading information supplied by
\nsuch Distributed Company or any of its Subsidiaries; and (b) as to the Company,
\nany Liability under the Securities Laws arising out of or relating to any
\nsecurities filings or disclosures made by, or the failure to make filings or
\ndisclosures required to be made by, the Company, or any of its<\/p>\n
12<\/p>\n
Subsidiaries prior to the Distribution Date to the extent such Liability arises
\nprimarily out of material omissions made by or materially incorrect, false or
\nmisleading information supplied by the Retained Business or a Retained
\nSubsidiary.<\/p>\n
“Subsidiary” shall mean any corporation, partnership, joint
\nventure or other entity (i) in which another entity owns, directly or
\nindirectly, ownership interests sufficient to elect a majority of the Board of
\nDirectors (or persons performing similar functions) (irrespective of whether at
\nthe time any other class or classes of ownership interests of such corporation,
\npartnership, joint venture or other entity shall or might have such voting power
\nupon the occurrence of any contingency) or (ii) of which another entity is a
\ngeneral partner or an entity performing similar functions (e.g., a trustee or
\nmanaging member).<\/p>\n
“Tax” shall mean all U.S. federal, state, local and foreign
\ntaxes and assessments, including all interest, penalties and additions imposed
\nwith respect to such amounts.<\/p>\n
“Tax Allocation Agreement” shall mean the Tax Allocation
\nAgreement between the Company and the Distributed Companies substantially in the
\nform of Exhibit VI hereto, as and to the extent amended and restated as of the
\nclosing of the Transactions.<\/p>\n
“Techco” shall have the meaning set forth in the heading of
\nthis Agreement.<\/p>\n
“Techco Acquisition Claims” shall mean any and all rights or
\nclaims that the Company or any of its Subsidiaries may have against the sellers
\nof Techco and the Techco Subsidiaries under the Acquisition Agreements pursuant
\nto which Techco and the Techco Subsidiaries were acquired by the Company or any
\nof its Subsidiaries.<\/p>\n
“Techco Assets” shall mean (a) the Assets of Techco and the
\nTechco Subsidiaries and (b) the rights of Techco and the Techco Subsidiaries
\nunder this Agreement and the Ancillary Agreements; provided, however, that
\nTechco Assets shall not include any claim of Techco against the Company relating
\nto the payment of finders’ fees or other compensation in respect of customers
\nreferred to the Company by Techco or the payment of rebates or other
\ncompensation in respect of office products sold by Techco.<\/p>\n
“Techco Business” shall mean all the businesses, Assets and
\noperations heretofore, currently or hereafter conducted or owned by Techco and
\nthe Techco Subsidiaries including all businesses, Assets or operations conducted
\nor owned by Techco and the Techco Subsidiaries that have been sold or otherwise
\ndisposed of or discontinued.<\/p>\n
“Techco Common Shares” shall have the meaning set forth in the
\nrecitals to this Agreement.<\/p>\n
13<\/p>\n
“Techco Indemnitees” shall mean Techco, the Techco
\nSubsidiaries, their Affiliates, each of their respective directors, officers,
\nemployees and agents and each of the heirs, executors, successors and assigns of
\nany of the foregoing.<\/p>\n
“Techco Liabilities” shall mean collectively, whenever
\narising, whether prior to, at or following the Distribution Time, (i) all
\nLiabilities of Techco and the Techco Subsidiaries under this Agreement or the
\nAncillary Agreements, (ii) all the Liabilities of the Company and its
\nSubsidiaries, arising primarily out of or relating primarily to the management
\nor conduct of the Techco Business or the administration of the Techco
\nSubsidiaries, (iii) all Specified Securities Liabilities of Techco, (iv) all
\nLiabilities of the Company relating to any Earn-Out Payment Liabilities arising
\nout of any of the Acquisition Agreements pursuant to which any of the Techco
\nSubsidiaries or any part of the Techco Business was acquired, (v) the
\nDistributed Company Transaction Costs of Techco, (vi) $1,000,000 of the Company
\nTransaction Costs and (vii) any Company Debt allocated to Techco pursuant to
\nSection 2.08 of this Agreement.<\/p>\n
“Techco Subsidiaries” shall mean the Subsidiaries of Techco as
\nlisted on Exhibit II.<\/p>\n
“Tender Offer” shall mean, collectively, (i) the cash tender
\noffer by the Company to purchase approximately 37 million shares (including
\nshares issuable upon exercise of outstanding stock options) of Company Common
\nStock at a price of $27 per share commenced on May 4, 1998, and (ii) the tender
\noffer of the Company to purchase any and all of its $230.0 million outstanding 5
\n1\/2% Convertible Subordinated Notes due 2003 for a purchase price of 94.5% of
\nthe principal amount, plus accrued interest, commenced on May 5, 1998.<\/p>\n
“Third Party Claim” shall have the meaning set forth in
\nSection 5.07.<\/p>\n
“Transaction Costs” shall mean all transaction costs including
\nlegal, accounting, investment banking, financial advisory and other fees
\nincurred by a party hereto (or one of its Subsidiaries) in connection with the
\nTransactions or any of the other transactions described in, or contemplated by,
\nIPO Prospectuses and Section 2.08.<\/p>\n
“Transactions” shall mean the execution, delivery and
\nperformance of this Agreement, the Ancillary Agreements, and the Investment
\nAgreement and the consummation of the Preliminary Transactions, the
\nDistributions, the Proxy, the Tender Offer, the 2001 Note Exchange Offer and any
\nother transactions contemplated by this Agreement, the Ancillary Agreements and
\nthe Investment Agreement, including without limitation the financing of the
\nCompany related thereto, but not including the initial public offerings by the
\nDistributed Companies or the financings of the Distributed Companies.<\/p>\n
“Transferred Policies” shall have the meaning set forth in
\nSection 7.02(b).<\/p>\n
14<\/p>\n
“Travelco” shall have the meaning set forth in the heading of
\nthis Agreement.<\/p>\n
“Travelco Acquisition Claims” shall mean any and all rights or
\nclaims that the Company or any of its Subsidiaries may have against the sellers
\nof Travelco and the Travelco Subsidiaries under the Acquisition Agreements
\npursuant to which Travelco and the Travelco Subsidiaries were acquired by the
\nCompany or any of its Subsidiaries.<\/p>\n
“Travelco Assets” shall mean (a) the Assets of Travelco and
\nthe Travelco Subsidiaries and (b) the rights of Travelco and the Travelco
\nSubsidiaries under this Agreement and the Ancillary Agreements; provided,
\nhowever, that Travelco Assets shall not include any claim of Travelco against
\nthe Company relating to the payment of finders’ fees or other compensation in
\nrespect of customers referred to the Company by Travelco or the payment of
\nrebates or other compensation in respect of office products sold by Travelco.<\/p>\n
“Travelco Business” shall mean all the businesses, Assets and
\noperations heretofore, currently or hereafter conducted or owned by Travelco and
\nthe Travelco Subsidiaries including all businesses, Assets or operations
\nconducted or owned by Travelco and the Travelco Subsidiaries that have been sold
\nor otherwise disposed of or discontinued.<\/p>\n
“Travelco Common Shares” shall have the meaning set forth in
\nthe recitals to this Agreement.<\/p>\n
“Travelco Indemnitees” shall mean Travelco, the Travelco
\nSubsidiaries, their Affiliates, each of their respective directors, officers,
\nemployees and agents and each of the heirs, executors, successors and assigns of
\nany of the foregoing.<\/p>\n
“Travelco Liabilities” shall mean collectively, whenever
\narising, whether prior to, at or following the Distribution Time, (i) all
\nLiabilities of Travelco and the Travelco Subsidiaries under this Agreement or
\nthe Ancillary Agreements, (ii) all the Liabilities of the Company and its
\nSubsidiaries, arising primarily out of or relating primarily to the management
\nor conduct of the Travelco Business or the administration of the Travelco
\nSubsidiaries, (iii) all Specified Securities Liabilities of Travelco, (iv) all
\nLiabilities of the Company relating to any Earn-Out Payment Liabilities arising
\nout of any of the Acquisition Agreements pursuant to which any of the Travelco
\nSubsidiaries or any part of the Travelco Business was acquired, (v) the
\nDistributed Company Transaction Costs of Travelco, (vi) $1,000,000 of the
\nCompany Transaction Costs and (vii) any Company Debt allocated to Travelco
\npursuant to Section 2.08 of this Agreement.<\/p>\n
“Travelco Subsidiaries” shall mean the Subsidiaries of
\nTravelco as listed on Exhibit II.<\/p>\n
15<\/p>\n
“2001 Note Exchange Offer” shall mean the Company’s offer to
\nexchange its 5 1\/2% Convertible Subordinated Notes due 2001 for Company Common
\nStock at a temporarily reduced conversion price commenced on May 1, 1998.<\/p>\n
SECTION 1.02 References; Interpretation. References to an
\n“Exhibit” or to a “Schedule” are, unless otherwise specified, to one of the
\nExhibits or Schedules attached to this Agreement, and references to a “Section”
\nor “Article” are, unless otherwise specified, to one of the Sections and
\nArticles of this Agreement. Any time the word “including” is used herein it
\nmeans “including without limitation”.<\/p>\n
ARTICLE II
\n PRELIMINARY TRANSACTIONS<\/p>\n
SECTION 2.01 Stock Transfers.<\/p>\n
(a) At or prior to the Distribution Time, the
\nCompany shall transfer or otherwise convey to Printco all its right, title and
\ninterest in and to all the shares of capital stock of the Printco Subsidiaries.<\/p>\n
(b) At or prior to the Distribution Time, the
\nCompany shall transfer or otherwise convey to Schoolco all its right, title and
\ninterest in and to all the shares of capital stock of the Schoolco Subsidiaries.<\/p>\n
(c) At or prior to the Distribution Time, the
\nCompany shall transfer or otherwise convey to Techco all its right, title and
\ninterest in and to all the shares of capital stock of the Techco Subsidiaries.<\/p>\n
(d) At or prior to the Distribution Time, the
\nCompany shall transfer or otherwise convey to Travelco all its right, title and
\ninterest in and to all the shares of capital stock of the Travelco Subsidiaries.<\/p>\n
Immediately after the stock transfers set forth in this Section 2.01, the
\nCompany shall not own any capital stock of (or other equity interest in) any of
\nthe Distributed Company Subsidiaries.<\/p>\n
SECTION 2.02 Liabilities.<\/p>\n
(a) Effective as of the Distribution Time and
\nexcept as otherwise specifically provided in this Agreement or any of the
\nAncillary Agreements, Printco hereby unconditionally agrees to cause each
\nPrintco Subsidiary that has incurred a Printco Liability to pay, perform and
\ndischarge such Liability when due in accordance with its terms.<\/p>\n
16<\/p>\n
(b) Effective as of the Distribution Time and
\nexcept as otherwise specifically provided in this Agreement or any of the
\nAncillary Agreements, Schoolco hereby unconditionally agrees to cause each
\nSchool Subsidiary that has incurred a Schoolco Liability to pay, perform and
\ndischarge such Liability when due in accordance with its terms.<\/p>\n
(c) Effective as of the Distribution Time and
\nexcept as otherwise specifically provided in this Agreement or any of the
\nAncillary Agreements, Techco hereby unconditionally agrees to cause each Techco
\nSubsidiary that has incurred a Techco Liability to pay, perform and discharge
\nsuch Liability when due in accordance with its terms.<\/p>\n
(d) Effective as of the Distribution Time and
\nexcept as otherwise specifically provided in this Agreement or any of the
\nAncillary Agreements, Travelco hereby unconditionally agrees to cause each
\nTravelco Subsidiary that has incurred a Travelco Liability to pay, perform and
\ndischarge such Liability when due in accordance with its terms.<\/p>\n
SECTION 2.03 Transfer of Certain Licenses and Permits.<\/p>\n
(a) In furtherance of the transfer of the capital
\nstock of the Printco Subsidiaries to Printco and the assumption of the Printco
\nLiabilities set forth in this Article II, at or prior to the Distribution Time,
\n(i) all transferrable licenses, permits and authorizations issued by
\ngovernmental or regulatory entities which are used primarily in connection with
\nthe Printco Business but which are held in the name of the Company or any
\nRetained Subsidiary shall be duly and validly transferred by the Company or such
\nSubsidiary to Printco or the appropriate Printco Subsidiary, and (ii) all
\ntransferrable licenses, permits and authorizations issued by governmental or
\nregulatory entities which are used primarily in connection with the Retained
\nBusiness but which are held in the name of Printco or the Printco Subsidiaries
\nshall be duly and validly transferred by Printco or such Subsidiary to the
\nCompany or the appropriate Subsidiary of the Company.<\/p>\n
(b) In furtherance of the transfer of the capital
\nstock of the Schoolco Subsidiaries to Schoolco and the assumption of the
\nSchoolco Liabilities set forth in this Article II, at or prior to the
\nDistribution Time, (i) all transferrable licenses, permits and authorizations
\nissued by governmental or regulatory entities which are used primarily in
\nconnection with the Schoolco Business but which are held in the name of the
\nCompany or any Retained Subsidiary shall be duly and validly transferred by the
\nCompany or such Subsidiary to Schoolco or the appropriate Schoolco Subsidiary,
\nand (ii) all transferrable licenses, permits and authorizations issued by
\ngovernmental or regulatory entities which are used primarily in connection with
\nthe Retained Business but which are held in the name of Schoolco or the Schoolco
\nSubsidiaries shall be duly and validly transferred by Schoolco or such
\nSubsidiary to the Company or the appropriate Subsidiary of the Company.<\/p>\n
(c) In furtherance of the transfer of the capital
\nstock of the Techco Subsidiaries to Techco and the assumption of the Techco
\nLiabilities set forth in this Article<\/p>\n
17<\/p>\n
II, at or prior to the Distribution Time, (i) all transferrable licenses,
\npermits and authorizations issued by governmental or regulatory entities which
\nare used primarily in connection with the Techco Business but which are held in
\nthe name of the Company or any Retained Subsidiary shall be duly and validly
\ntransferred by the Company or such Subsidiary to Techco or the appropriate
\nTechco Subsidiary, and (ii) all transferrable licenses, permits and
\nauthorizations issued by governmental or regulatory entities which are used
\nprimarily in connection with the Retained Business but which are held in the
\nname of Techco or the Techco Subsidiaries shall be duly and validly transferred
\nby Techco or such Subsidiary to the Company or the appropriate Subsidiary of the
\nCompany.<\/p>\n
(d) In furtherance of the transfer of the capital
\nstock of the Travelco Subsidiaries to Travelco and the assumption of the
\nTravelco Liabilities set forth in this Article II, at or prior to the
\nDistribution Time, (i) all transferrable licenses, permits and authorizations
\nissued by governmental or regulatory entities which are used primarily in
\nconnection with the Travelco Business but which are held in the name of the
\nCompany or any Retained Subsidiary shall be duly and validly transferred by the
\nCompany or such Subsidiary to Travelco or the appropriate Travelco Subsidiary,
\nand (ii) all transferrable licenses, permits and authorizations issued by
\ngovernmental or regulatory entities which are used primarily in connection with
\nthe Retained Business but which are held in the name of Travelco or the Travelco
\nSubsidiaries shall be duly and validly transferred by Travelco or such
\nSubsidiary to the Company or the appropriate Subsidiary of the Company.<\/p>\n
SECTION 2.04 Transfer and Assumption Documentation. In
\nfurtherance of the transfer of the capital stock of the Distributed Company
\nSubsidiaries to the relevant Distributed Companies and the assumption of the
\nDistributed Companies’ Liabilities set forth in this Article II, at or prior to
\nthe Distribution Time, (i) the parties hereto shall execute and deliver, and
\ncause their respective Subsidiaries to execute and deliver, such deeds, bills of
\nsale, stock powers, certificates of title, assignments of leases and contracts
\nand other instruments of contribution, grant, conveyance, assignment, transfer
\nand delivery necessary to evidence such contribution, grant, conveyance,
\nassignment, transfer and delivery (collectively, the “Conveyancing Instruments”)
\nand (ii) each party hereto or the appropriate Subsidiary of such party shall
\nexecute and deliver such instruments of assumption (together with the
\nConveyancing Instruments, the “Conveyancing and Assumption Instruments”) as and
\nto the extent necessary to evidence such assumption.<\/p>\n
SECTION 2.05 Intercompany Accounts. All intercompany
\nreceivables, payables and loans (other than receivables, payables and loans
\notherwise specifically provided for in any of the Ancillary Agreements or
\nhereunder) between any Distributed Company or Distributed Company Subsidiary, on
\nthe one hand, and the Company or any of the Retained Subsidiaries, on the other
\nhand, including, without limitation, in respect of any cash balances, any cash
\nbalances representing deposited checks or drafts for which only a provisional
\ncredit has been allowed or any cash held in any centralized cash management
\nsystem, shall be settled or otherwise eliminated prior to the Distribution Date.<\/p>\n
18<\/p>\n
SECTION 2.06 Elimination of Guarantees. To the extent that any
\nof the parties to this Agreement or any Subsidiary thereof is a guarantor of or
\nobligor for (a “Guarantor”) any Liability of any other party to this Agreement
\nor any Subsidiary thereof (a “Guaranteed Party”), the Guarantor and the
\nGuaranteed Party shall use their commercially reasonable efforts to have, on or
\nprior to the Distribution Date, or as soon as practicable thereafter, the
\nGuarantor removed as guarantor of or obligor for such Liability of the
\nGuaranteed Party (a “Guaranteed Liability”). In the event that the Guarantor
\ncannot be removed as guarantor of or obligor for such Guaranteed Liability, the
\nGuaranteed Party agrees that until such Guaranteed Liability is discharged in
\nfull, the Guaranteed Party shall take no action, and shall not permit any of its
\nSubsidiaries to take any action, which will have the effect of increasing the
\ncontingent liability or exposure of the Guarantor or any of its Subsidiaries
\nwith respect to such Guaranteed Liability. This Section 2.06 shall not apply to
\nthe obligations set forth on Schedule 2.06.<\/p>\n
SECTION 2.07 Assignments and Transfers Not Effected Prior to
\nthe Distribution. Anything contained herein to the contrary notwithstanding, (a)
\nthis Agreement shall not constitute an agreement to assign or transfer any
\nagreement, contract, lease, license, permit, sales order, purchase order, open
\nbid or other commitment if an assignment, attempted assignment, transfer or
\nattempted transfer of the same without the consent of a third party would
\nconstitute a breach thereof or in any way impair the rights of the Distributed
\nCompanies or the Company or any of their respective Subsidiaries thereunder (any
\nsuch item being referred to as a “Nonassignable Contract”) and (b) nothing
\nherein shall be deemed to require the transfer of any Assets or the assumption
\nof any Liabilities which by their terms or operation of law cannot be
\ntransferred or assumed. To the extent that any assignments or transfers
\ncontemplated by this Article II shall not have been consummated at or prior to
\nthe Distribution Time, the parties hereto and their respective Subsidiaries
\nshall cooperate and use commercially reasonable efforts to obtain any necessary
\nconsents or approvals for the assignment of all Nonassignable Contracts, the
\ntransfer of all Assets and the assumption of all Liabilities contemplated to be
\nassigned, transferred or assumed pursuant to this Article II and shall otherwise
\ncooperate and use reasonable best efforts to effect any such assignments,
\ntransfers or assumptions as promptly following the Distribution Time as shall be
\npracticable. In the event that any consent required with respect to a
\nNonassignable Contract is not obtained or an attempted assignment thereof would
\nbe ineffective or would impair either party’s rights under any such
\nNonassignable Contract, then the party obligated to assign such Nonassignable
\nContract (the “Assignor”) will promptly pay or cause to be paid to the assignee
\nthereof (the “Assignee”), when received, all monies received by the Assignor
\nwith respect to any such Nonassignable Contract and in consideration thereof the
\nAssignee shall pay, perform and discharge on behalf of the Assignor all the
\nAssignor’s Liabilities, thereunder in a timely manner and in accordance with the
\nterms thereof. In the event that any such transfer of Assets or assumption of
\nLiabilities has not been consummated, from and after the Distribution Time, the
\nparty retaining such Asset or Liability shall hold such Asset in trust for the
\nuse and benefit of the party entitled thereto (at the expense of the party
\nentitled thereto) or retain such Liability for the account<\/p>\n
19<\/p>\n
of the party by whom such Liability is to be assumed pursuant hereto, as the
\ncase may be. The parties hereto will take such other action as may be reasonably
\nrequested by the Assignee or party to whom such Asset is to be transferred, or
\nby whom such Liability is to be assumed, as the case may be, in order to place
\nsuch party, insofar as is reasonably possible, in the same position as would
\nhave existed had such Nonassignable Contract been assigned, or such Asset or
\nLiability been transferred or assumed, as contemplated hereby. As and when any
\nrequired consent to the assignment of a Nonassignable Contract is obtained or
\nany such Asset or Liability becomes transferable or able to be assumed, such
\nassignment, transfer or assumption shall be effected forthwith. The parties
\nagree that, as of the Distribution Time, each party hereto shall be deemed to
\nhave acquired complete and sole beneficial ownership over all Assets, together
\nwith all rights, powers and privileges incident thereto, and shall be deemed to
\nhave assumed all Liabilities, and all duties, obligations and responsibilities
\nincident thereto, which such party is entitled to acquire or required to assume
\npursuant to the terms of this Agreement or any of the Ancillary Agreements.<\/p>\n
SECTION 2.08 Debt. On or prior to the Distribution Date, each
\nDistributed Company shall obtain bank credit facilities, borrow funds under such
\nfacilities and pay such moneys borrowed to reduce the Company Debt equal in
\namount to (i) the amounts reflected in relation to such Distributed Company on
\nSchedule 2.08, and (ii) the amount of any debt incurred by the Company after the
\ndate of the Investment Agreement in connection with the acquisition of any
\nentities that, upon the Distributions, will become a Subsidiary of such
\nDistributed Company, which money shall be paid to the Company to be applied to
\nthe Company Debt.<\/p>\n
SECTION 2.09 Assignment of Acquisition Claims. The Company
\nshall contribute, grant, convey, assign, transfer and deliver to Printco,
\nSchoolco, Techco and Travelco all the Company’s rights and interest in and to
\nthe Printco Acquisition Claims, the Schoolco Acquisition Claims, the Techco
\nAcquisition Claims and the Travelco Acquisition Claims, respectively.
\nNotwithstanding the assignment of the foregoing Acquisition Claims under this
\nSection 2.09: (i) the net recoveries of Printco arising out of the Printco
\nAcquisition Claims shall be shared between Printco and the Company, as they are
\ncollected, in a ratio of 20% to 80%, respectively, until the Company has
\nreceived the amount shown on Schedule 2.09 (including through any Special
\nInsurance Proceeds retained by the Company pursuant to Section 7.04), after
\nwhich time any net recoveries from the Printco Acquisition Claims shall be
\nshared, as they are collected, between Printco and the Company in a ratio of 95%
\nto 5%, respectively, (ii) the net recoveries of Schoolco arising out of the
\nSchoolco Acquisition Claims shall be shared, as they are collected, between
\nSchoolco and the Company in a ratio of 20% to 80%, respectively, until the
\nCompany has received the amount shown on Schedule 2.09, after which time any net
\nrecoveries from the Schoolco Acquisition Claims shall be shared, as they are
\ncollected, between Schoolco and the Company in a ratio of 95% to 5%,
\nrespectively, (iii) the net recoveries from the Techco Acquisition Claims shall
\nbe assigned 100% to Techco, and (iv) the net recoveries from the Travelco
\nAcquisition Claims shall be assigned 100% to Travelco.<\/p>\n
20<\/p>\n
SECTION 2.10 Pledged Shares. The Company shall hold all
\nPledged Shares for the purposes specified in, and distribute such Pledged Shares
\nas provided pursuant to, Schedule 2.10.<\/p>\n
SECTION 2.11 Other Transactions. In furtherance of the
\ntransfer of the capital stock of the Distributed Company Subsidiaries to the
\nrelevant Distributed Companies and the assumption of the Distributed Companies’
\nLiabilities set forth in this Article II, at or prior to the Distribution Time,
\nthe parties agree to effect the transactions, if any, described in Schedule 2.11
\nattached hereto.<\/p>\n
ARTICLE III
\n THE DISTRIBUTION<\/p>\n
SECTION 3.01 Directors and Employees.<\/p>\n
(a) The Company shall cause all those individuals
\nwho will be officers or directors of the Company or any Retained Subsidiary
\nimmediately after the Distribution Time to resign, effective as of the
\nDistribution Time, from all officer or director positions with any of the
\nDistributed Companies or Distributed Company Subsidiaries in which they serve.<\/p>\n
(b) The Company shall cause all those individuals
\nwho will be officers or directors of any of the Distributed Companies or the
\nDistributed Company Subsidiaries immediately after the Distribution Time to
\nresign, effective as of the Distribution Time, from all officer or director
\npositions with the Company or any Retained Subsidiary in which they serve.<\/p>\n
SECTION 3.02 Mechanics of Distribution.<\/p>\n
(a) Delivery of Shares to Agent. Following
\nconsummation of the transactions contemplated by Section 2.01 and subject to the
\nclosing conditions set forth in Article VIII the Company shall deliver to the
\nAgent, for the benefit of holders of record of the Company Common Stock as at
\nthe close of business on the Distribution Record Date, the share certificates
\nrepresenting (i) all the Printco Common Shares, (ii) all the Schoolco Common
\nShares, (iii) all the Techco Common Shares and (iv) all the Travelco Common
\nShares, and shall instruct the Agent to distribute such share certificates to
\nsuch holders of the Company Common Stock upon notice from the Company that the
\nconditions to the obligation of the Company to consummate the Distributions have
\nbeen satisfied or waived and that the Agent is authorized to proceed with the
\ndistribution of the Distribution Shares. Immediately following the
\nDistributions, the Company shall not own any capital stock of the Distributed
\nCompanies or the Distributed Company Subsidiaries.<\/p>\n
21<\/p>\n
(b) Distribution of Certificates. The
\nDistributions shall be effected by the distribution to each holder of record
\nof Company Common Stock, as of the Distribution Record Date, of certificates
\nrepresenting one Printco Common Share for each shares of Company
\nCommon Stock, one Schoolco Common Share for each shares of Company Common
\nStock, one Techco Common Share for each shares of Company Common Stock, one
\nTravelco Common Share for each shares of Company Common Stock and
\nof cash in lieu of fractional shares as set forth in Section 3.02(c). The
\nCompany shall instruct the Agent to distribute the Distribution Shares and
\nthe cash in lieu of fractional shares as promptly as practicable after the
\nDistribution Time.<\/p>\n
(c) Payment for Fractional Shares. No certificate
\nor scrip representing fractional shares of the Distribution Shares shall be
\ndistributed to holders of the Company Common Stock as part of the Distributions.
\nEach holder of Company Common Stock who would otherwise be entitled to receive a
\nfractional share of the common stock of any of the Distributed Companies
\npursuant to the Distributions shall receive cash in lieu of such fractional
\nshare. As soon as practicable after the Distribution Date, the Company shall
\ndirect the Agent to determine the number of fractional shares of any of the
\nDistribution Shares allocable to each holder of record of Company Common Stock
\nas of the Distribution Record Date who will receive cash in lieu of such
\nfractional shares, to aggregate all such fractional shares into whole shares and
\nsell the whole shares obtained thereby in open market transactions or otherwise,
\nin each case at then prevailing trading prices, and to cause to be distributed
\nto each such holder, in lieu of any fractional share, such holder’s ratable
\nshare of the proceeds of such sale, after making appropriate deductions of the
\namount required to be withheld for U.S. federal income tax purposes and after
\ndeducting an amount equal to all brokerage charges, commissions and transfer
\ntaxes attributed to such sale.<\/p>\n
SECTION 3.03 Timing of Distribution. The Board of Directors of
\nthe Company shall, or shall authorize certain officers of the Company to,
\nformally declare the Distributions and shall authorize the Company to effect the
\nDistributions at the Distribution Time, subject to the satisfaction or waiver of
\nthe conditions set forth in Article VIII. The Distributions shall be deemed to
\nbe effective upon notification by the Company to the Agent that the conditions
\nto the obligations of the Company to consummate the Distributions have been
\nsatisfied or waived and that the Agent is authorized to proceed with the
\ndistribution of the Distribution Shares.<\/p>\n
ARTICLE IV
\n MUTUAL RELEASE<\/p>\n
Effective as of the Distribution Time and except as otherwise
\nspecifically set forth in this Agreement or any of the Ancillary Agreements,
\neach of the parties hereto, on its own behalf and on behalf of each of its
\nrespective Subsidiaries, releases and forever discharges all of the other
\nparties hereto and their respective Subsidiaries, and their<\/p>\n
22<\/p>\n
respective officers, directors, agents, Affiliates, record and beneficial
\nsecurity holders (including, without limitation, trustees and beneficiaries of
\ntrusts holding such securities), advisors and Representatives (in their
\nrespective capacities as such) and their respective heirs, executors,
\nadministrators, successors and assigns, of and from all debts, demands, actions,
\ncauses of action, suits, accounts, covenants, contracts, agreements, damages,
\nclaims and Liabilities whatsoever of every name and nature, both in law and in
\nequity, which the releasing party has or ever had, which arise out of or relate
\nto the Transactions or the IPOs; provided, however, that the foregoing general
\nrelease shall not apply to (i) any Liabilities (including Liabilities with
\nrespect to indemnification) assumed, transferred, assigned, allocated or arising
\nunder this Agreement, any of the Ancillary Agreements or the Investment
\nAgreement and shall not affect any party’s right to enforce this Agreement, any
\nAncillary Agreement or the Investment Agreement in accordance with their
\nrespective terms, (ii) any Liabilities of the Company, any of its Subsidiaries
\nor any seller of a Retained Subsidiary or Distributed Company Subsidiary arising
\nout of the agreement pursuant to which such Retained Subsidiary or Distributed
\nCompany Subsidiary was acquired by the Company or any of its Subsidiaries or any
\nother agreement to which the Company or any of its Subsidiaries and such a
\nseller (acting in the capacity of a seller) are parties, or (iii) any Liability
\narising out of an agreement between any party to this Agreement and Jonathan J.
\nLedecky. Each party understands and agrees that, except as otherwise
\nspecifically provided in this Agreement or the Ancillary Agreements, none of the
\nparties is, in this Agreement or the Ancillary Agreements or otherwise,
\nrepresenting or warranting in any way as to the Assets, business or Liabilities
\ntransferred, assumed or retained as contemplated hereby or as to any consents or
\napprovals required in connection with the consummation of the transactions
\ncontemplated by this Agreement or the Ancillary Agreements, it being agreed and
\nunderstood that each party shall take or keep all of its Assets “as is” and that
\nit shall bear the economic and legal risk that conveyance of such Assets shall
\nprove to be insufficient or that the title to any Assets shall be other than
\ngood and marketable and free from encumbrances of any nature whatsoever;
\nprovided, however, that the foregoing disclaimer shall not apply to any
\nrepresentations made by the Company, any of its Subsidiaries or any seller of a
\nRetained Subsidiary or Distributed Company Subsidiary under the agreement
\npursuant to which such Retained Subsidiary or Distributed Company Subsidiary was
\nacquired.<\/p>\n
ARTICLE V
\n INDEMNIFICATION<\/p>\n
SECTION 5.01 Indemnification by the Company. Except as
\notherwise specifically set forth in any provision of this Agreement or of any
\nAncillary Agreement, (a) the Company and, as to any particular Indemnifiable
\nLoss, the Retained Subsidiary out of whose assets, business or operations the
\nIndemnifiable Loss arises, shall indemnify, defend and hold harmless the
\nDistributed Companies’ Indemnitees from and against, and pay or reimburse the
\nDistributed Companies’ Indemnitees for, any and all Indemnifiable Losses, as<\/p>\n
23<\/p>\n
incurred, of the Distributed Companies’ Indemnitees arising out of, relating to
\nor resulting from (i) the Retained Liabilities, the Retained Assets or the
\nRetained Business or (ii) the breach by the Company or any of the Retained
\nSubsidiaries of any provision of this Agreement or of any Ancillary Agreement,
\nin each case, whether such Indemnifiable Losses relate to or arise out of or
\nresult from events, occurrences, actions, omissions, facts or circumstances
\noccurring, existing or asserted at, before or after the Distribution Time, and
\n(b) the Company shall bear the costs of and indemnify, defend and hold harmless
\nthe Printco Indemnitees, the Schoolco Indemnitees, the Techco Indemnitees and
\nthe Travelco Indemnitees from the Company’s Pro Rata Share of Indemnifiable
\nLosses, as incurred, that relate to, arise out of or result from the Shared
\nLiabilities; provided, however, that the Company shall have no obligation to
\nindemnify any of the Distributed Companies’ Indemnitees for any Indemnifiable
\nLosses arising out of, relating to or resulting from (y) the gross negligence,
\nbad faith or wilful misconduct of the relevant Distributed Company or
\nDistributed Company Subsidiary after the Distribution Time or (z) the failure of
\nsuch Distributed Company or any of its Subsidiaries to perform its obligations
\nunder any agreement in accordance with the terms of such agreement after the
\nDistribution Time.<\/p>\n
SECTION 5.02 Indemnification by Printco. Except as otherwise
\nspecifically set forth in any provision of this Agreement or of any Ancillary
\nAgreement, (a) Printco and, as to any particular Indemnifiable Loss, the Printco
\nSubsidiary out of whose assets, business or operations the Indemnifiable Loss
\narises, shall indemnify, defend and hold harmless the Company Indemnitees, the
\nSchoolco Indemnitees, the Techco Indemnitees and the Travelco Indemnitees from
\nand against, and pay or reimburse such Indemnitees for, any and all
\nIndemnifiable Losses, as incurred, of the Company Indemnitees, the Schoolco
\nIndemnitees, the Techco Indemnitees and the Travelco Indemnitees arising out of,
\nrelating to or resulting from (i) the Printco Liabilities, the Printco Assets,
\nthe Printco Business or the Printco Acquisition Claims, (ii) the breach by
\nPrintco or any of its Subsidiaries of any provision of this Agreement or of any
\nAncillary Agreement, in each case, whether such Indemnifiable Losses relate to,
\narise out of or result from events, occurrences, actions, omissions, facts or
\ncircumstances occurring, existing or asserted at, before or after the
\nDistribution Time and (b) Printco shall bear the costs of and indemnify, defend
\nand hold harmless the Company Indemnitees, the Schoolco Indemnitees, the Techco
\nIndemnitees and the Travelco Indemnitees from Printco’s Pro Rata Share of
\nIndemnifiable Losses, as incurred, that relate to, arise out of or result from
\nthe Shared Liabilities; provided, however, that Printco shall have no obligation
\nto indemnify any of the Company Indemnitees, the Schoolco Indemnitees, the
\nTechco Indemnitees or the Travelco Indemnitees for any Indemnifiable Losses
\nrelating to, arising out of or resulting from (x) the gross negligence, bad
\nfaith or wilful misconduct of the Company, Schoolco, Techco, Travelco, or any of
\ntheir respective Subsidiaries, as applicable, after the Distribution Time or (y)
\nthe failure of the Company, Schoolco, Techco or Travelco, or any of their
\nrespective Subsidiaries, as applicable, to perform its obligations under any
\nagreement in accordance with the terms of such agreement after the Distribution
\nTime; provided further, however, that Printco shall have no obligation to
\nindemnify any of the Company Indemnitees, the Schoolco Indemnitees, the Techco<\/p>\n
24<\/p>\n
Indemnitees or the Travelco Indemnitees for any Indemnifiable Losses pursuant to
\nclause (b) of this Section 5.02 to the extent that Printco has previously
\nindemnified such Indemnitees for Losses pursuant to clause (b) of this Section
\n5.02 in an aggregate amount equal to or exceeding $1.75 million.<\/p>\n
SECTION 5.03 Indemnification by Schoolco. Except as otherwise
\nspecifically set forth in any provision of this Agreement or of any Ancillary
\nAgreement, (a) Schoolco and, as to any particular Indemnifiable Loss, the
\nSchoolco Subsidiary out of whose assets, business or operations the
\nIndemnifiable Loss arises, shall indemnify, defend and hold harmless the Company
\nIndemnitees, the Printco Indemnitees, the Techco Indemnitees and the Travelco
\nIndemnitees from and against, and pay or reimburse such Indemnitees for, any and
\nall Indemnifiable Losses, as incurred, of the Company Indemnitees, the Printco
\nIndemnitees, the Techco Indemnitees and the Travelco Indemnitees arising out of,
\nrelating to or resulting from (i) the Schoolco Liabilities, the Schoolco Assets,
\nthe Schoolco Business or the Schoolco Acquisition Claims and (ii) the breach by
\nSchoolco or any of its Subsidiaries of any provision of this Agreement or of any
\nAncillary Agreement, in each case, whether such Indemnifiable Losses relate to,
\narise out of or result from events, occurrences, actions, omissions, facts or
\ncircumstances occurring, existing or asserted at, before or after the
\nDistribution Time, and (b) Schoolco shall bear the costs of and indemnify,
\ndefend and hold harmless the Company Indemnitees, the Printco Indemnitees, the
\nTechco Indemnitees and the Travelco Indemnitees from Schoolco’s Pro Rata Share
\nof Indemnifiable Losses, as incurred, that relate to, arise out of or result
\nfrom the Shared Liabilities; provided, however, that Schoolco shall have no
\nobligation to indemnify any of the Company Indemnitees, the Printco Indemnitees,
\nthe Techco Indemnitees and the Travelco Indemnitees for any Indemnifiable Losses
\nrelating to, arising out of or resulting from (x) the gross negligence, bad
\nfaith or wilful misconduct of the Company, Printco, Techco or Travelco, as
\napplicable, after the Distribution Time or (y) the failure of the Company,
\nPrintco, Techco or Travelco, or any of their respective Subsidiaries, as
\napplicable, to perform its obligations under any agreement in accordance with
\nthe terms of such agreement after the Distribution Time; provided further,
\nhowever, that Schoolco shall have no obligation to indemnify any of the Company
\nIndemnitees, the Printco Indemnitees, the Techco Indemnitees or the Travelco
\nIndemnitees for any Indemnifiable Losses pursuant to clause (b) of this Section
\n5.03 to the extent that Schoolco has previously indemnified such Indemnitees for
\nLosses pursuant to clause (b) of this Section 5.03 in an aggregate amount equal
\nto or exceeding $1.75 million.<\/p>\n
SECTION 5.04 Indemnification by Techco. Except as otherwise
\nspecifically set forth in any provision of this Agreement or of any Ancillary
\nAgreement, (a) Techco and, as to any particular Indemnifiable Loss, the Techco
\nSubsidiary out of whose assets, business or operations the Indemnifiable Loss
\narises, shall indemnify, defend and hold harmless the Company Indemnitees, the
\nPrintco Indemnitees, the Schoolco Indemnitees and the Travelco Indemnitees from
\nand against, and pay or reimburse such Indemnitees for, any and all
\nIndemnifiable Losses, as incurred, of the Company Indemnitees, the Printco
\nIndemnitees, the Schoolco Indemnitees and the Travelco Indemnitees arising out
\nof, relating to or resulting<\/p>\n
25<\/p>\n
from (i) the Techco Liabilities, the Techco Assets, the Techco Business or the
\nTechco Acquisition Claims and (ii) the breach by Techco or any of its
\nSubsidiaries of any provision of this Agreement or of any Ancillary Agreement,
\nin each case, whether such Indemnifiable Losses relate to, arise out of or
\nresult from events, occurrences, actions, omissions, facts or circumstances
\noccurring, existing or asserted at, before or after the Distribution Time, and
\n(b) Techco shall bear the costs of and indemnify, defend and hold harmless the
\nCompany Indemnitees, the Printco Indemnitees, the Schoolco Indemnitees and the
\nTravelco Indemnitees from Techco’s Pro Rata Share of Indemnifiable Losses, as
\nincurred, that relate to, arise out of or result from the Shared Liabilities;
\nprovided, however, that Techco shall have no obligation to indemnify any of the
\nCompany Indemnitees, the Printco Indemnitees, the Schoolco Indemnitees and the
\nTravelco Indemnitees for any Indemnifiable Losses relating to, arising out of or
\nresulting from (x) the gross negligence, bad faith or wilful misconduct of the
\nCompany, Printco, Schoolco or Travelco, as applicable, after the Distribution
\nTime or (y) the failure of the Company, Printco, Schoolco or Travelco, or any of
\ntheir respective Subsidiaries, as applicable, to perform its obligations under
\nany agreement in accordance with the terms of such agreement after the
\nDistribution Time; provided further, however, that Techco shall have no
\nobligation to indemnify any of the Company Indemnitees, the Printco Indemnitees,
\nthe Schoolco Indemnitees or the Travelco Indemnitees for any Indemnifiable
\nLosses pursuant to clause (b) of this Section 5.04 to the extent that Techco has
\npreviously indemnified such Indemnitees for Losses pursuant to clause (b) of
\nthis Section 5.04 in an aggregate amount equal to or exceeding $1.75 million.<\/p>\n
SECTION 5.05 Indemnification by Travelco. Except as otherwise
\nspecifically set forth in any provision of this Agreement or of any Ancillary
\nAgreement, (a) Travelco and, as to any particular Indemnifiable Loss, the
\nTravelco Subsidiary out of whose assets, business or operations the
\nIndemnifiable Loss arises, shall indemnify, defend and hold harmless the Company
\nIndemnitees, the Printco Indemnitees, the Schoolco Indemnitees and the Techco
\nIndemnitees from and against, and pay or reimburse such Indemnitees for, any and
\nall Indemnifiable Losses, as incurred, of the Company Indemnitees, the Printco
\nIndemnitees, the Schoolco Indemnitees and the Techco Indemnitees arising out of,
\nrelating to or resulting from (i) the Travelco Liabilities, the Travelco Assets,
\nthe Travelco Business or the Travelco Acquisition Claims and (ii) the breach by
\nTravelco or any of its Subsidiaries of any provision of this Agreement or of any
\nAncillary Agreement, in each case, whether such Indemnifiable Losses relate to
\nor arise from events, occurrences, actions, omissions, facts or circumstances
\noccurring, existing or asserted at, before or after the Distribution Time, and
\n(b) Travelco shall bear the costs of and indemnify, defend and hold harmless the
\nCompany Indemnitees, the Printco Indemnitees, the Schoolco Indemnitees and the
\nTechco Indemnitees from Travelco’s Pro Rata Share of Indemnifiable Losses, as
\nincurred, that relate to, arise out of or result from the Shared Liabilities;
\nprovided, however, that Travelco shall have no obligation to indemnify any of
\nthe Company Indemnitees, the Printco Indemnitees, the Schoolco Indemnitees and
\nthe Techco Indemnitees for any Indemnifiable Losses relating to, arising out of
\nor resulting from (x) the gross negligence, bad faith or wilful misconduct of
\nthe Company, Printco, Schoolco or Techco, as applicable, after the Distribution
\nTime or<\/p>\n
26<\/p>\n
(y) the failure of the Company, Printco, Schoolco or Techco, or any of their
\nrespective Subsidiaries, as applicable, to perform its obligations under any
\nagreement in accordance with the terms of such agreement after the Distribution
\nTime ; provided further, however, that Travelco shall have no obligation to
\nindemnify any of the Company Indemnitees, the Printco Indemnitees, the Schoolco
\nIndemnitees or the Techco Indemnitees for any Indemnifiable Losses pursuant to
\nclause (b) of this Section 5.05 to the extent that Travelco has previously
\nindemnified such Indemnitees for Losses pursuant to clause (b) of this Section
\n5.05 in an aggregate amount equal to or exceeding $1.75 million.<\/p>\n
SECTION 5.06 Limitations on Indemnification Obligations. The
\namount that any party (an “Indemnifying Party”) is or may be required to pay to
\nany other Person (an “Indemnitee”) pursuant to Sections 5.01, 5.02, 5.03, 5.04
\nor 5.05, as applicable, shall be reduced (retroactively or prospectively) by any
\nInsurance Proceeds, settlement recoveries or other amounts actually recovered by
\nor on behalf of such Indemnitee in respect of the related Indemnifiable Loss. If
\nan Indemnitee shall have received the payment required by this Agreement from an
\nIndemnifying Party in respect of an Indemnifiable Loss and shall subsequently
\nactually receive Insurance Proceeds, settlement recoveries or other amounts in
\nrespect of such Indemnifiable Loss, then such Indemnitee shall pay to such
\nIndemnifying Party a sum equal to the amount of such Insurance Proceeds,
\nsettlement recoveries or other amounts actually received, up to the aggregate
\namount of any payments made by such Indemnifying Party pursuant to this
\nAgreement in respect of such Indemnifiable Loss. Amounts paid by an Indemnifying
\nParty pursant to clause (b) of Sections 5.01, 5.02, 5.03, 5.04 or 5.05 which are
\npaid with, or reimbursed by, Insurance Proceeds, settlement recoveries or other
\namounts actually recovered, by or on behalf of an Indemnifying Party, in respect
\nof the related Indemnifiable Loss, shall not count toward the limit on each
\nparty’s Shared Liabilities set forth in the second proviso of Sections 5.01,
\n5.02, 5.03, 5.04 or 5.05, as applicable.<\/p>\n
SECTION 5.07 Procedures for Indemnification of Third Party
\nClaims.<\/p>\n
(a) If a claim or demand is made against an
\nIndemnitee by any person who is not a party, or an Affiliate of a party, to this
\nAgreement or any of the Ancillary Agreements (a “Third Party Claim”) as to which
\nsuch Indemnitee is entitled to indemnification pursuant to this Agreement, such
\nIndemnitee shall notify the Indemnifying Party in writing, and in reasonable
\ndetail, of the Third Party Claim promptly (and in any event within 10 business
\ndays) after receipt by such Indemnitee of written notice of the Third Party
\nClaim; provided, however, that failure to give such notification shall not
\naffect the indemnification provided hereunder except to the extent that the
\ndefense or conduct of such Third Party Claim by the Indemnifying Party shall
\nhave been actually and materially prejudiced as a result of such failure (except
\nthat the Indemnifying Party shall not be liable for any expenses incurred during
\nthe period in which the Indemnitee failed to give such notice); provided
\nfurther, however, that in no event shall such failure to notify the Indemnifying
\nParty (i) constitute prejudice suffered by the Indemnifying Party if it has<\/p>\n
27<\/p>\n
otherwise received notice of the Third Party Claim or (ii) relieve it from any
\nliability or obligation that it may otherwise have to such Indemnitee.
\nThereafter, the Indemnitee shall deliver to the Indemnifying Party, promptly
\n(and in any event within 10 business days) after the Indemnitee’s receipt
\nthereof, copies of all notices and documents (including court papers) received
\nby the Indemnitee relating to the Third Party Claim.<\/p>\n
(b) (i) If a Third Party Claim is made against an
\nIndemnitee, the Indemnifying Party shall be entitled to participate in the
\ndefense thereof and, if it so chooses and acknowledges in writing its obligation
\nto indemnify the Indemnitee therefor, to assume the defense thereof with counsel
\nselected by the Indemnifying Party, provided that such counsel is not reasonably
\nobjected to by the Indemnitee, and, thereafter, the Indemnifying Party shall not
\nbe liable to the Indemnitee for legal or other expenses subsequently incurred by
\nthe Indemnitee in connection with the defense thereof. If the Indemnifying Party
\nelects to assume the defense of a Third Party Claim pursuant to this subsection
\n(b)(i), the Indemnitee shall have the right to participate in the defense
\nthereof and to employ counsel, at its own expense, separate from the counsel
\nemployed by the Indemnifying Party, it being understood that the Indemnifying
\nParty shall have full control of such defense, and the Indemnifying Party shall
\nbe liable for the reasonable fees and expenses of counsel employed by the
\nIndemnitee for any period during which the Indemnifying Party has failed to
\nassume the defense thereof.<\/p>\n
(ii) Notwithstanding subsection (b)(i) of this
\nSection 5.07, if the Indemnitee reasonably believes that a Third Party Claim
\ncould lead to a material adverse effect on its business, it shall be entitled to
\nretain control of (and the related Indemnifying Party shall not be entitled to
\nassume), or to reassert control over, the defense of the claim and shall be
\nentitled to be reimbursed for its reasonable out-of-pocket expenses attributable
\nto such defense. If the Indemnitee elects to retain control of, or to reassert
\ncontrol over, the defense of a Third Party Claim pursuant to this subsection
\n(b)(ii), the Indemnifying Party shall have the right to participate in the
\ndefense thereof and to employ counsel, at its own expense, separate from the
\ncounsel employed by the Indemnitee, it being understood that the Indemnitee
\nshall have full control of such defense.<\/p>\n
(c) If the Indemnifying Party elects to assume the
\ndefense of any Third Party Claim pursuant to subsection (b)(i) of this Section
\n5.07, all of the Indemnitees shall cooperate with the Indemnifying Party in the
\ndefense or prosecution thereof. If the Indemnitee elects to retain control of,
\nor to reassert control over, the defense of any Third Party Claim pursuant to
\nsubsection (b)(ii) of this Section 5.07, the Indemnifying Party shall cooperate
\nwith the Indemnitee in the defense or prosecution thereof. Such cooperation
\nshall include the retention and, upon the Indemnitee’s or Indemnifying Party’s
\nrequest, as applicable, the provision to such party of records and information
\nwhich are reasonably relevant to such Third Party Claim and making employees
\navailable on a mutually convenient basis to provide additional information
\nregarding any material provided hereunder.<\/p>\n
28<\/p>\n
(d) Notwithstanding the foregoing, the Indemnifying
\nParty shall not be entitled to assume the defense of any Third Party Claim (and
\nshall be liable for the reasonable fees and expenses of counsel incurred by the
\nIndemnitee in defending such Third Party Claim) if the Third Party Claim seeks
\nan order, injunction or other equitable relief or relief for other than money
\ndamages against the Indemnitee which the Indemnitee reasonably determines in
\ngood faith, after conferring with its counsel, cannot be separated from any
\nrelated claim for money damages. If such equitable relief or other relief
\nportion of the Third Party Claim can be so separated from that for money
\ndamages, the Indemnifying Party shall be entitled to assume the defense of the
\nportion relating to money damages.<\/p>\n
(e) Notwithstanding the foregoing, the Indemnifying
\nParty shall not be entitled to assume the defense of any Third Party Claim (and
\nshall be liable for the reasonable fees and expenses of counsel incurred by the
\nIndemnitee in defending such Third Party Claim) if the Indemnitee reasonably
\ndetermines in good faith, after conferring with its counsel, that the Indemnitee
\nhas available to it one or more defenses or counterclaims that are inconsistent
\nwith one or more of those that may be available to the Indemnifying Party in
\nrespect of such Third Party Claim.<\/p>\n
(f) Whether or not the Indemnifying Party shall
\nhave assumed the defense of a Third Party Claim, in no event will the Indemnitee
\nadmit any liability with respect to, or settle, compromise or discharge, such
\nThird Party Claim without the Indemnifying Party’s prior written consent (which
\nconsent shall not be unreasonably withheld or delayed); provided, however, that
\nthe Indemnitee shall have the right to settle, compromise or discharge such
\nThird Party Claim without the consent of the Indemnifying Party if the
\nIndemnitee releases in writing the Indemnifying Party from its indemnification
\nobligation hereunder with respect to such Third Party Claim and such settlement,
\ncompromise or discharge would not otherwise adversely affect the Indemnifying
\nParty. If the Indemnifying Party shall have assumed the defense of a Third Party
\nClaim (and the Indemnitee shall not have reasserted control over the defense of
\nsuch claim pursuant to Section 5.07(b)(ii)), the Indemnitee shall agree to any
\nsettlement, compromise or discharge of a Third Party Claim that the Indemnifying
\nParty may recommend and that by its terms does not obligate the Indemnitee to
\npay any of the liability in connection with such Third Party Claim, releases the
\nIndemnitee completely and unconditionally in connection with such Third Party
\nClaim and does not provide for injunctive or other nonmonetary relief affecting
\nthe Indemnitee.<\/p>\n
SECTION 5.08 Indemnification Payments. Indemnification
\nrequired by this Article V shall be made by prompt periodic payments of the
\namount thereof during the course of the investigation, preparation or defense,
\nas and when bills are received or loss, liability, claim, damage, cost or
\nexpense is incurred.<\/p>\n
SECTION 5.09 Defaults. In the event that any obligation of any
\nIndemnifying Party to indemnify an Indemnitee as required by Sections 5.02,
\n5.03, 5.04 and<\/p>\n
29<\/p>\n
5.05 proves to be uncollectible by the Indemnitee despite reasonable collection
\nefforts (a “Defaulted Payment Obligation”), such Defaulted Payment Obligation
\nshall be treated as a Shared Liability and shall be shared by the Company and
\nthe Distributed Companies as provided in clause (b) of Sections 5.02, 5.03, 5.04
\nand 5.05; provided, however, that for purposes of calculating each
\nnon-defaulting party’s Pro Rata Share of such Shared Liability, “Pro Rata Share”
\nfor each non-defaulting party shall be calculated as the fraction (a) the
\nnumerator of which is such party’s Pro Rata Share and (b) the denominator of
\nwhich is the sum of each non-defaulting party’s Pro Rata Share. Defaulted
\nPayment Obligations shall count toward the limit on each party’s Shared
\nLiabilities set forth in the second proviso to Sections 5.02, 5.03, 5.04 and
\n5.05, as applicable.<\/p>\n
SECTION 5.10 Tax Adjustments. The amount of any Indemnifiable
\nLoss shall be (i) increased by the amount of any net Tax cost actually incurred
\nby the Indemnitee arising from any payments required by this Article V (other
\nthan this Section 5.10) and received from the Indemnifying Party, together with
\nsuch additional amounts as are necessary so that the aggregate payments received
\nfrom the Indemnifying Party on account of such Indemnifiable Loss, net of any
\nsuch net Tax cost and any net Tax cost actually incurred by the Indemnitee as a
\nresult of the receipt or accrual of such additional amounts, is equal to the
\namount of such Indemnifiable Loss; and (ii) reduced by the amount of any net Tax
\nbenefit actually realized by the Indemnitee arising from the incurrence or
\npayment of any such Indemnifiable Loss; provided however, that in the event such
\nnet Tax benefit is subsequently reduced as a result of the carryback of any
\nother Tax benefit, or disallowed, the Indemnifying party shall promptly pay the
\nIndemnitee the amount of such reduction or disallowance. For purposes of this
\nSection 5.10, a net Tax benefit shall be deemed to be “actually realized” only
\nto the extent of the excess of (i) the aggregate amount of Taxes that would have
\nbeen shown as due and payable on the U.S. federal, state and local income Tax
\nreturns of the Indemnitee in the taxable period in which such net Tax benefit is
\nactually realized if such Indemnifiable Loss had not been incurred, and no
\npayment had been made in respect of such Indemnifiable Loss by the Indemnifying
\nParty over (ii) the aggregate amount of Taxes actually shown as due and payable
\non such Tax returns.<\/p>\n
SECTION 5.11 MCI Agreement. Notwithstanding Sections 5.01,
\n5.02, 5.03, 5.04 and 5.05, each of the parties hereto agrees to indemnify and
\nhold the other parties hereto harmless for any Liability under the MCI Agreement
\nattributable to the failure of such party to meet the required targets under the
\nMCI Agreement set forth on Schedule 5.11.<\/p>\n
SECTION 5.12 Survival of Indemnities. The obligations of the
\nparties under this Article V shall survive the sale or other transfer by any of
\nthem of any Assets or businesses or the assignment by any of them of any
\nLiabilities, with respect to any Indemnifiable Loss of any Indemnitee related to
\nsuch Assets, businesses or Liabilities.<\/p>\n
30<\/p>\n
ARTICLE VI
\n COVENANTS<\/p>\n
SECTION 6.01 Provision of Corporate Records. Prior to or as
\npromptly as practicable after the Distribution Time, the Company shall deliver
\nto each Distributed Company copies of, or, if in the possession of such
\nDistributed Company or its Subsidiaries, such Distributed Company shall retain,
\nall corporate books and records and the relevant portions (or copies thereof) of
\nall corporate books and records relating directly and primarily to such
\nDistributed Company’s Assets, such Distributed Company’s Business, or such
\nDistributed Company’s Liabilities, including, in each case, all agreements,
\nlitigation files and government filings, whether or not active. From and after
\nthe Distribution Time, all such books, records and other items or such copies
\nthereof shall be the property of such Distributed Company; provided however,
\nthat nothing in this Section 6.01 shall preclude the Company from retaining
\nduplicates of all such corporate records that are delivered to a Distributed
\nCompany.<\/p>\n
SECTION 6.02 Access to Information. From and after the
\nDistribution Time each party hereto shall afford to each other party and their
\nrespective authorized accountants, counsel and other designated representatives
\nreasonable access and duplicating rights (at such other party’s expense) during
\nnormal business hours and upon reasonable advance notice, subject to the
\nconfidentiality provisions hereof and any additional appropriate restrictions
\nfor classified, privileged or confidential information, to all Information
\nwithin the possession or control of such party or to which it has access
\nrelating to the business, Assets or Liabilities of such other party as they
\nexisted prior to the Distribution Time or relating to or arising in connection
\nwith the relationship between the Retained Business, on the one hand, and the
\nDistributed Companies’ Businesses, on the other hand, on or prior to the
\nDistribution Time, insofar as such access is reasonably required for a
\nreasonable purpose. Without limiting the foregoing, Information may be requested
\nunder this Section 6.02 for audit, accounting, claims, litigation and Tax
\npurposes, as well as for purposes of fulfilling disclosure and reporting
\nobligations.<\/p>\n
SECTION 6.03 Retention of Records. Except as provided in this
\nAgreement or any of the Ancillary Agreements or as otherwise agreed in writing,
\nif any Information relating to the business, Assets or Liabilities of a party
\nhereto, as they existed prior to the Distribution Time or as they are
\ntransferred, assumed or imposed pursuant to this Agreement, is retained by one
\nof the other parties hereto, the party retaining such Information shall, and
\nshall cause its Subsidiaries to, retain all such Information in such party’s
\npossession or under its control until such Information is at least ten years old
\nexcept that if, prior to the expiration of such period, the party retaining such
\ninformation wishes to destroy or dispose of any such Information that is at
\nleast three years old, prior to destroying or disposing of any of such
\nInformation, (a) such party shall provide no less than 30 days’ prior written
\nnotice to the other party, specifying the Information proposed to be destroyed
\nor disposed of and (b) if, prior to the scheduled date for such destruction or
\ndisposal, the other party requests in writing<\/p>\n
31<\/p>\n
that any of the Information proposed to be destroyed or disposed of be delivered
\nto such other party, the party proposing to dispose of or destroy such
\nInformation shall arrange for the delivery of the requested Information to a
\nlocation specified by, and at the expense of, the requesting party.<\/p>\n
SECTION 6.04 Witness Services. From and after the Distribution
\nTime, each of the parties hereto shall use commercially reasonable efforts to
\nmake available to each other party hereto, upon reasonable written request, its
\nand its Subsidiaries’ officers, directors, employees and agents as witnesses to
\nthe extent that (i) such persons may reasonably be required in connection with
\nthe prosecution, investigation or defense of any Action or threatened Action in
\nwhich the requesting party may from time to time be involved and (ii) there is
\nno conflict in the Action or threatened Action between the requesting party and
\nthe other party.<\/p>\n
SECTION 6.05 Reimbursement. Except to the extent otherwise
\ncontemplated by any Ancillary Agreement, a party providing books and records,
\naccess to Information or witness services to the other party under this Article
\nVI shall be entitled to receive from the recipient, upon the presentation of
\ninvoices therefor, payments for supplies, disbursements and other out-of-pocket
\nexpenses and direct and indirect costs of employees, as may be reasonably
\nincurred in providing such books and records, access to Information or witness
\nservices.<\/p>\n
SECTION 6.06 Confidentiality.<\/p>\n
(a) Each party hereto shall keep, and shall cause
\nits Representatives to keep, the other party’s Information strictly confidential
\nand will disclose such Information only to such of its Representatives who need
\nto know such Information and who agree to be bound by this Section 6.06 and not
\nto disclose such Information to any other Person or entity. Without the prior
\nwritten consent of the other party, each party and its Representatives shall not
\ndisclose the other party’s Information to any Person or entity except as may be
\nrequired by law or judicial process or in connection with the enforcement of its
\nrights under this Agreement or any of the Ancillary Agreements and, in each
\ncase, in accordance with this Section 6.06. Each party agrees to be responsible
\nfor any breach of this confidentiality provision by any of its Representatives.<\/p>\n
(b) In the event that any party hereto or any of
\nits Representatives becomes legally compelled (by deposition, interrogatory,
\nrequest for documents, subpoena, civil investigative demand or similar process),
\nor determines that it is necessary in connection with the enforcement of its
\nrights under this Agreement or any of the Ancillary Agreements, to disclose all
\nor any part of the other party’s Information, the receiving party or its
\nRepresentatives shall promptly notify the other party of such compulsion or
\ndetermination in writing, and consult with and assist the other party in seeking
\na protective order or request for other appropriate remedy. In the event that
\nsuch protective order or other<\/p>\n
32<\/p>\n
remedy is not obtained or the other party waives compliance with the terms
\nhereof, such receiving party or its Representatives, as the case may be, shall
\ndisclose only that portion of the Information which, in the opinion of the
\nreceiving party’s outside counsel, is legally required to be disclosed, and
\nshall exercise all commercially reasonable efforts to assure that confidential
\ntreatment will be accorded such Information by the Persons or entities receiving
\nsuch Information. The providing party shall be given an opportunity to review
\nthe Information prior to disclosure.<\/p>\n
SECTION 6.07 Further Assurances. In case at any time after the
\nDistribution Time any further action is reasonably necessary or desirable to
\ncarry out the purposes of this Agreement and the Ancillary Agreements, the
\nproper officers at such time of each party to this Agreement shall promptly take
\nall such action. Without limiting the foregoing, the Company and the Distributed
\nCompanies or their respective Subsidiaries, as appropriate, shall use
\ncommercially reasonable efforts to obtain all consents and approvals, to enter
\ninto all agreements and to make all filings and applications that may be
\nrequired or are reasonably necessary for the consummation of the Transactions,
\nincluding, without limitation, all applicable governmental and regulatory
\nfilings.<\/p>\n
ARTICLE VII
\n INSURANCE<\/p>\n
SECTION 7.01 General. Except as provided in this Article, the
\nCompany shall keep in effect all policies under its Insurance Program as of the
\ndate hereof insuring the Distributed Companies’ Assets and the operations of the
\nDistributed Companies’ Businesses until 12:00 midnight (Eastern time) on the
\nDistribution Date, except to the extent that a Distributed Company shall have
\nearlier obtained appropriate coverage and notified the Company in writing to
\nthat effect. Except for the Transferred Policies (as defined below), beginning
\nat 12:01 a.m. (Eastern time) on the day following the Distribution Date, the
\nDistributed Companies will cease to be insured under all policies in the
\nCompany’s Insurance Program. Each Distributed Company understands that the
\neffect of these actions will be to eliminate insurance coverage under the
\nInsurance Program for future occurrences under such Policies, and in some cases
\n(as set forth in Section 7.03(b)), for prior occurrences that might have given
\nor may give rise to liabilities for which such Distributed Company and its
\nAffiliates would be responsible.<\/p>\n
SECTION 7.02 Distributed Companies’ Insurance.<\/p>\n
(a) Each Distributed Company will purchase and pay
\nfor the types and amounts of insurance coverage that it reasonably deems
\nappropriate and sufficient for the period beginning on and continuing after the
\nDistribution Date, including Broad Form Contractual Liability insurance coverage
\nas to such Distributed Company’s indemnity obligations set forth in this
\nAgreement.<\/p>\n
33<\/p>\n
(b) The Company shall transfer, on or prior to the
\nDistribution Date, the Policies in the Company’s Insurance Program listed on
\nSchedule 7.02(b) (the “Transferred Policies”) to certain of the Distributed
\nCompanies designated as Transferees on such schedule.<\/p>\n
(c) Each Distributed Company agrees that the
\nCompany has made no warranty, expressed or implied, and no representation that
\nthe insurance described in Sections 7.01, 7.02(a) or 7.02(b) above is or will be
\nadequate or sufficient to meet such Distributed Company’s current or future
\ninsurance needs.<\/p>\n
SECTION 7.03 Access to the Company’s Insurance Program and to
\nthe Transferred Policies.<\/p>\n
(a) Except as provided in Section 7.03(b), each
\nDistributed Company and its Affiliates shall have access through the Company
\nafter the Distribution Date to such coverages and limits as may be available
\nunder the Company’s Insurance Program for Covered Claims occurring prior to the
\nDistribution Date. Such access shall be subject to available coverage and to all
\nof the terms, conditions, exclusions, retentions and limits of such Policies.<\/p>\n
(b) The Distributed Companies and their Affiliates’
\naccess to the Company’s Insurance Program as provided in Section 7.03(a) hereof
\nshall be limited as to Policies listed on Schedule 7.03(b) in that the
\nDistributed Companies shall have no access to any insurance provided by such
\nPolicies after the Distribution Date other than for Covered Claims the Company
\nhas reported to its carriers or underwriters as of the Distribution Date.<\/p>\n
(c) The Company and its Affiliates shall have
\naccess through the relevant Distributed Company after the Distribution Date to
\ncoverages and limits under the Transferred Policies to the extent specified in
\nSchedule 7.02(b). Such access shall be subject to available coverage and to all
\nthe terms, conditions, exclusions, retentions and limits on such Transferred
\nPolicies.<\/p>\n
SECTION 7.04 Insurance Recoveries.<\/p>\n
(a) The Company shall use reasonable efforts to
\nobtain Recoveries for the Distributed Companies and their Affiliates from the
\nCompany’s insurance carriers for coverage available under Section 7.03 and shall
\nkeep the Distributed Companies reasonably informed of the Company’s efforts
\nunder this Section 7.04. The Company will reimburse the Distributed Companies
\nfor any Recovery obtained by it on behalf of such Distributed Company or
\nAffiliate thereof pursuant to such claims; provided, however, that Special
\nInsurance Recoveries shall be shared between the Company and the relevant
\nDistributed Company in the same manner as any net recoveries of an Acquisition
\nClaim of such Distributed Company (payable at that time) would be shared between
\nthe Company and such<\/p>\n
34<\/p>\n
Distributed Company pursuant to Section 2.09, including that, if the net
\nrecoveries from an Acquisition Claim of such Distributed Company are not
\nrequired to be shared in any manner with the Company pursuant to Section 2.09,
\nany Special Insurance Recoveries related to such Distributed Company should be
\nentirely payable to it. Any Distributed Company receiving a Recovery in its
\nentirety under this Section 7.04 shall pay all costs incurred by the Company
\nafter the Distribution Date in making the related claim pursuant to this Section
\n7.04, including the salaries of the Company’s officers and employees based on
\nthe portion of time spent on such claims (“Recovery Costs”), and such Recovery
\nCosts incurred in pursuing the claim may be deducted from the Recovery. As to
\nany Recovery Costs incurred in relation to Special Insurance Recoveries, the
\nparty or parties receiving such Special Insurance Recoveries, or a portion
\nthereof, shall bear the related Recovery Costs in proportion to the share of the
\nSpecial Insurance Recoveries such party receives. Each Distributed Company
\nagrees to make available to the Company such of its employees as the Company may
\nreasonably request as witnesses or deponents in connection with the Company’s
\nmanagement of claims, at such Distributed Company’s sole cost and expense
\nnotwithstanding Sections 6.04 and 6.05. Each Distributed Company agrees that, if
\nthe Company has paid a Recovery to it for such a claim and such Distributed
\nCompany receives proceeds from any other person with respect to such claim, it
\nwill pay over to the Company the amount of proceeds it has received.<\/p>\n
(b) In relation to the Transferred Policies, the
\nrelevant Distributed Company shall use reasonable efforts to obtain recoveries
\nfor the Company and its Affiliates from the Distributed Company’s insurance
\ncarrier for coverage available under the Transferred Policies and shall keep the
\nCompany reasonably informed of such Distributed Company’s efforts under this
\nSection 7.04. The Distributed Company will reimburse the Company for any
\nRecovery obtained by it on behalf of the Company or an Affiliate thereof
\npursuant to such claims. The Company shall pay all costs incurred by the
\nDistributed Company after the Distribution Date in making any claim pursuant to
\nthis Section 7.04, including the salaries of the Distributed Company’s officers
\nand employees based on the portion of time spent on such claims, and such costs
\nincurred in pursuing a claim may be deducted from any Recovery for such claim.
\nThe Company agrees to make available to the Distributed Company such of its
\nemployees as the Distributed Company may reasonably request as witnesses or
\ndeponents in connection with the Distributed Company’s management of claims, at
\nthe Company’s sole cost and expense notwithstanding Sections 6.04 and 6.05. The
\nCompany agrees that, if the Distributed Company has paid a Recovery to it for
\nsuch a claim and the Company receives proceeds from any other person with
\nrespect to such claim, it will pay over to the Distributed Company the amount of
\nproceeds it has received.<\/p>\n
SECTION 7.05 Insurance Representations. Each Distributed
\nCompany hereby represents and warrants to the Company that no representation by
\nsuch Distributed Company (or any of its officers, directors or Subsidiaries)
\nrelating to information underlying any Insurance Policy of the Company contains
\nan untrue statement of material fact or omits<\/p>\n
35<\/p>\n
to state a material fact necessary to make a statement contained therein, in
\nlight of the circumstances under which they were made, not misleading with
\nrespect to such information.<\/p>\n
SECTION 7.06 Assignment. Except to the extent that the
\nTransferred Policies are considered to be assigned by the Company to the
\nrelevant Distributed Company, nothing in this Agreement shall be deemed to
\nconstitute (or to reflect) an assignment of any insurance policy or insurance
\nbenefit.<\/p>\n
SECTION 7.07 Deductibles and Maximums.<\/p>\n
(a) To the extent that there are deductible amounts
\nor retentions applicable to potential insurance recoveries for claims of the
\nCompany or a Distributed Company that are not per-occurrence deductibles, the
\nCompany or the relevant Distributed Company (as to any deductibles in relation
\nto the Transferred Policies) shall allocate such deductibles or retentions in
\nsuch manner as the Company or a Distributed Company, as applicable, determines,
\nin good faith, is fair and reasonable. For purposes of this Section 7.06, the
\nparties agree that it is fair and reasonable to allocate the deductibles, if
\nany, first to any claims based on recklessness, bad faith or wilful misconduct.<\/p>\n
(b) To the extent that the Recoveries for any
\nparticular group of claims of the Company or a Distributed Company may be
\nsubject to overall policy limits, the Company or the relevant Distributed
\nCompany (as to any policy maximums in relation to the Transferred Policies)
\nshall allocate Recoveries in such manner as the Company or Distributed Company,
\nas applicable, determines, in good faith, is fair and reasonable.<\/p>\n
SECTION 7.08 Conflicts Between Article VII and the Company’s
\nInsurance Program. Any provision of this Agreement that conflicts with any term
\nor provision of the Company’s applicable insurance policies shall be void.<\/p>\n
ARTICLE VIII
\n CONDITIONS<\/p>\n
SECTION 8.01 Conditions to Obligations of the Company. The
\nobligation of the Company to consummate the Distributions hereunder shall be
\nsubject to the satisfaction or waiver of each of the following conditions:<\/p>\n
(a) All of the transactions contemplated by Article
\nII hereof to occur prior to the Distribution Time shall have been consummated.<\/p>\n
(b) The Distribution Shares to be issued in the
\nDistributions shall have been approved for trading on the NASDAQ, subject only
\nto official notice of issuance.<\/p>\n
36<\/p>\n
(c) All filings required to be made prior to the
\nDistribution Time with, and all consents, approvals and authorizations required
\nto be obtained prior to the Distribution Time from, any government or any court,
\narbitral tribunal, administrative agency or commission or other regulatory
\nauthority, agency or commission, governmental or otherwise, in connection with
\nthe consummation of the Preliminary Transactions, the Distributions and any
\nother transaction contemplated hereby shall have been made or obtained, except
\nwhere the failure to make or obtain the same would not, individually or in the
\naggregate, have a material adverse effect on the business, properties, results
\nof operations or financial condition of the Company, the Distributed Companies
\nor any of their respective Subsidiaries, or on the ability of any thereof to
\nconsummate the transactions contemplated hereby, or to perform its obligations
\nunder this Agreement or any of the Ancillary Agreements to which it is or will
\nbe a party.<\/p>\n
(d) Each of the Ancillary Agreements shall have
\nbeen executed and delivered by each of the parties thereto and shall be in full
\nforce and effect in accordance with its terms.<\/p>\n
(e) Each of the registration statements on Forms
\nS-1 under the Securities Act filed with the SEC by the Distributed Companies in
\nconnection with the Distributions shall have become effective under the Exchange
\nAct, no stop order suspending the effectiveness thereof shall have been issued
\nand no proceedings for that purpose shall have been initiated by the SEC; and
\nthe Information Statements shall have been or shall be simultaneously mailed to
\nholders of Distribution Shares in accordance with the rules, regulations and
\npolicies of the SEC.<\/p>\n
(f) No statute, rule or regulation or temporary
\nrestraining order, preliminary or permanent injunction or other order issued by
\nany court of competent jurisdiction or other legal restraint or prohibition
\nshall be in effect that prohibits consummation of the Preliminary Transactions
\nor the Distributions.<\/p>\n
(g) All conditions to the Tender Offer shall have
\nbeen satisfied or waived by the Company, and the Tender Offer shall have been
\nconsummated prior to or on the Distribution Date.<\/p>\n
(h) The Company and each of the Distributed
\nCompanies shall have received an opinion of Wilmer, Cutler & Pickering, counsel
\nto the Company, that for U.S. federal income tax purposes the Distributions will
\nqualify as tax-free spin-offs under Section 355 of the Code and will not be
\ntaxable under Section 355(e) of the Code. In rendering such opinion, such
\ncounsel shall be entitled to rely on certain assumptions and representations
\nprovided by the Company, the Distributed Companies and CDR-PC and certain other
\ninformation, data, documentation and other materials that Wilmer, Cutler & Pickering deems necessary.<\/p>\n
37<\/p>\n
ARTICLE IX
\n DISPUTE RESOLUTION<\/p>\n
SECTION 9.01 Mediation and Binding Arbitration. Except as may
\nbe expressly provided in any of the Ancillary Agreements or in any other
\nagreement between the parties entered into pursuant hereto, if a dispute,
\ncontroversy or claim (collectively, a “Dispute”) between the Company and any of
\nthe Distributed Companies or any of their respective Affiliates arises out of or
\nrelates to this Agreement, any Ancillary Agreement, or any other agreement
\nentered into pursuant hereto or thereto, including, without limitation, the
\nbreach, termination, enforceability, interpretation or validity of any such
\nagreement or any matter involving an Indemnifiable Loss, the Company and such
\nDistributed Company agree to use the following procedures, in lieu of either
\nparty pursuing other available remedies and as the sole and exclusive remedy
\n(except as provided in Section 10.11 below), to resolve the Dispute.<\/p>\n
SECTION 9.02 Initiation of Negotiation. A party seeking to
\ninitiate the procedures shall provide written notice to the other party,
\ndescribing briefly the nature of the Dispute. A meeting shall be held between
\nthe parties within 10 days of the receipt of such notice, attended by executives
\nwho have decision-making authority regarding the Dispute, to attempt in good
\nfaith to negotiate a resolution of the Dispute.<\/p>\n
SECTION 9.03 Submission to Mediation. If, within 30 days after
\nsuch meeting, the parties have not succeeded in negotiating a resolution of the
\nDispute, the parties agree to submit the Dispute at the earliest possible date
\nto mediation conducted in accordance with the Commercial Mediation Rules of the
\nAAA, and to bear equally the costs of the mediation. The parties agree to
\nparticipate in good faith in the mediation and negotiations related thereto for
\na period of 30 days or such longer period as they may mutually agree following
\nthe initial mediation session (the “Mediation Period”).<\/p>\n
SECTION 9.04 Selection of Mediator. The parties will jointly
\nappoint a mutually acceptable and neutral mediator. If they are unable to agree
\nupon such appointment within 20 days from the conclusion of the negotiation
\nperiod, a mediator shall be appointed by the AAA pursuant to the Commercial
\nMediation Rules of the AAA.<\/p>\n
SECTION 9.05 Treatment of Negotiation and Mediation. All
\nnegotiations and mediations pursuant to this Article shall be treated as
\ncompromise and settlement negotiations for purposes of Rule 408 of the Federal
\nRules of Evidence and comparable state rules.<\/p>\n
SECTION 9.06 Arbitration.<\/p>\n
(a) Notwithstanding the foregoing provisions of
\nthis Article IX, at the end of the Mediation Period any party may submit the
\nmatter to binding arbitration<\/p>\n
38<\/p>\n
conducted in accordance with the Commercial Arbitration Rules of the AAA, by one
\nor three arbitrators(s) selected in accordance with the provisions of Section
\n9.06(b). Any arbitration proceeding hereunder shall be held in the city of New
\nYork, New York, and shall be governed by the Federal Arbitration Act, 9 U.S.C.
\nss.ss. 1-16, and judgment upon the award rendered by the arbitrator(s) may be
\nentered by any court having jurisdiction thereof or having jurisdiction over the
\nrelevant party or its assets. Any arbitral award hereunder shall be in writing,
\nstate the reasons for the award and be final and binding on the parties.<\/p>\n
(b) The parties shall seek to appoint jointly a
\nmutually acceptable sole arbitrator. If the parties cannot agree on an
\nacceptable sole arbitrator within 10 days after the commencement of the
\narbitration, the Dispute shall be heard by a panel of three arbitrators, one
\nappointed by each of the parties within 20 days after commencement of the
\narbitration, and the third arbitrator selected by the other two arbitrators
\nwithin 15 days of appointment of the first two arbitrators. If either side fails
\nto appoint an arbitrator within 20 days after the commencement of the
\narbitration, then that arbitrator shall be appointed by the AAA, which shall
\npromptly notify the parties of such appointment. If the first two arbitrators
\nappointed fail to appoint a third arbitrator within the 15-day period prescribed
\nabove, then the AAA shall appoint the third arbitrator and shall promptly notify
\nthe parties of the appointment. References herein to the “Arbitrator” shall mean
\nthe sole arbitrator or the three-arbitrator panel, as the case may be.<\/p>\n
(c) In the event the Dispute involves (i) valuation
\nof a liability under (A) this Agreement, (B) any Ancillary Agreement or (C) any
\nother agreement entered into by the parties pursuant to this Agreement or any
\nAncillary Agreement, (ii) an amount in controversy in a Dispute or (iii) the
\namount of damages following a determination of liability, the arbitration shall
\nproceed in the following manner: Each party shall submit to the Arbitrator and
\nexchange with each other, on a schedule to be determined by the Arbitrator, a
\nproposed valuation, amount or damages, as the case may be, together with a
\nstatement, including all supporting documents or other evidence upon which it
\nrelies, setting forth such party’s explanation as to why its proposal is
\nreasonable and appropriate. The Arbitrator, within 15 days of receiving such
\nproposals and supporting documents, shall choose between the two proposals and
\nshall be limited to awarding only one or the other of the two proposals
\nsubmitted.<\/p>\n
(d) Cost of Arbitration. The costs of arbitration
\nshall be apportioned between the parties to the arbitration as determined by the
\nArbitrator in such manner as the Arbitrator deems reasonable taking into account
\nthe circumstances of the case, the conduct of the parties during the proceeding
\nand the result of the arbitration.<\/p>\n
(e) Arbitration Period. Any arbitration proceeding
\nshall be concluded in a maximum of six (6) months from the commencement of the
\narbitration. The parties involved in the proceeding may agree in writing to
\nextend the arbitration period if necessary to appropriately resolve the Dispute.<\/p>\n
39<\/p>\n
SECTION 9.07 Confidentiality. All negotiation, mediation and
\narbitration proceedings under this Article shall be treated as confidential
\nInformation in accordance with the provisions of Section 6.06 hereof. Any
\nmediator or the Arbitrator shall be bound by an agreement containing
\nconfidentiality provisions at least as restrictive as those contained in Section
\n6.06 hereof.<\/p>\n
SECTION 9.08 Notices. All notices by one party to the other
\nparty in connection with the dispute resolution provisions set forth in this
\nArticle shall be in accordance with the provisions of Section 10.05 hereof.<\/p>\n
SECTION 9.09 Consolidation. The Arbitrator may consolidate an
\narbitration under this Agreement with any arbitration arising under or relating
\nto the Ancillary Agreements or any other agreement between the parties entered
\ninto pursuant hereto, as the case may be, if the subject of the Disputes
\nthereunder arise out of or relate essentially to the same set of facts or
\ntransactions. Such consolidated arbitration shall be determined by the
\narbitrator appointed for the arbitration proceeding that was commenced first in
\ntime.<\/p>\n
ARTICLE X
\n MISCELLANEOUS<\/p>\n
SECTION 10.01 Modification, Amendment or Termination. This
\nAgreement may not be modified, amended or terminated except by an agreement in
\nwriting signed by each of the parties hereto and approved by the board of
\ndirectors of each of the parties hereto; provided, however, that any
\nmodification or amendment to this Agreement that is adverse to the rights or
\ninterests of CDR-PC, as determined by those directors of the Company that are
\nnot employed by either the Company or CD&R, in their good faith reasonable
\njudgment, and any termination of this Agreement shall not be effective unless
\nsuch modification, amendment or termination was approved by an affirmative vote
\nof not less than three-fourths of the members of the board of directors of the
\nCompany; provided further, however, that the preceding proviso shall apply only
\nfor so long as CDR-PC has the right to designate at least two nominees to the
\nboard of directors of the Company pursuant to Section 4.01(b) of the Investment
\nAgreement; provided further, however, that Article V shall not be terminated or
\namended after the Distribution Time in respect of the third party beneficiaries
\nthereto without the consent of such persons.<\/p>\n
SECTION 10.02 Waiver; Remedies. The conditions to the
\nCompany’s obligation to consummate the Distributions are for the sole benefit of
\nthe Company and may be waived by the Company in whole or in part in its sole
\ndiscretion. No delay on the part of the Company or the Distributed Companies in
\nexercising any right, power or privilege hereunder will operate as a waiver
\nthereof, nor will any waiver on the part of either the Company or the
\nDistributed Companies of any right, power or privilege hereunder operate as a
\nwaiver of any other right, power or privilege hereunder, nor will any single or
\npartial<\/p>\n
40<\/p>\n
exercise of any right, power or privilege hereunder preclude any other or
\nfurther exercise thereof or the exercise of any other right, power or privilege
\nhereunder. Unless otherwise provided, the rights and remedies herein provided
\nare cumulative and are not exclusive of any rights or remedies which the parties
\nmay otherwise have at law or in equity.<\/p>\n
SECTION 10.03 Counterparts. For the convenience of the
\nparties, this Agreement may be executed in any number of separate counterparts,
\neach such counterpart being deemed to be an original instrument, and all such
\ncounterparts shall together constitute the same agreement.<\/p>\n
SECTION 10.04 Notices. Any notice, request, instruction or
\nother communication to be given hereunder by any party to another shall be in
\nwriting and shall be deemed to have been duly given (i) on the date of delivery
\nif delivered personally, or by telefacsimile, upon confirmation of receipt, (ii)
\non the first business day following the date of dispatch if delivered by Federal
\nExpress or other nationally reputable next-day courier service with proof of
\ndelivery, or (iii) on the fifth business day following the date of mailing if
\ndelivered by registered or certified mail, return receipt requested, postage
\nprepaid. All notices hereunder shall be delivered as set forth below, or
\npursuant to such other instructions as may be designated in writing by the party
\nto receive such notice.<\/p>\n
(a) If to Printco:<\/p>\n
Workflow Management, Inc.
\n [contact information]<\/p>\n
(b) If to Schoolco:<\/p>\n
School Specialty, Inc.
\n [contact information]<\/p>\n
(c) If to Techco:<\/p>\n
Aztec Consulting, Inc.
\n [contact information]<\/p>\n
(d) If to Travelco:<\/p>\n
Navigant International, Inc.
\n [contact information]<\/p>\n
41<\/p>\n
(e) If to the Company:<\/p>\n
U.S. Office Products Company
\n 1025 Thomas Jefferson Street, N.W., Suite 600 East
\n Washington, D.C. 20007-5490
\n Attention: Mark D. Director, Esq.
\n Kathleen Delaney, Esq.
\n Telefacsimile: (202) 339-6733<\/p>\n
with copies to:<\/p>\n
Clayton, Dubilier & Rice, Inc.
\n 375 Park Avenue
\n 18th Floor
\n New York, NY 10152
\n Attention: Brian D. Finn
\n Telefacsimile: (212) 407-5200<\/p>\n
SECTION 10.05 Entire Agreement. This Agreement and the
\nAncillary Agreements (including Exhibits, Annexes and Schedules hereto and
\nthereto) constitute the entire agreement, and supersede all other prior
\nagreements, understandings, representations and warranties, both written and
\noral, between the parties, with respect to the subject matter hereof and
\nthereof.<\/p>\n
SECTION 10.06 Certain Obligations. Whenever any Ancillary
\nAgreement requires any of the Subsidiaries of any party to such Ancillary
\nAgreement to take any action, this Agreement will be deemed to include an
\nundertaking on the part of such party to cause such Subsidiary to take such
\naction.<\/p>\n
SECTION 10.07 Assignment. This Agreement shall be assignable
\nin whole in connection with a merger or consolidation or the sale or transfer of
\nall or substantially all the Assets or stock of a party hereto so long as the
\nresulting, surviving or transferee entity assumes all the obligations of the
\nrelevant party hereto by operation of law or pursuant to an agreement in form
\nand substance reasonably satisfactory to the other party. Otherwise, this
\nAgreement shall not be assignable, in whole or in part, directly or indirectly,
\nby any party hereto without the prior written consent of the other party, and
\nany attempt to assign any rights or obligations arising under this Agreement
\nwithout such consent shall be void.<\/p>\n
SECTION 10.08 Captions. The Article, Section and paragraph
\ncaptions herein are for convenience of reference only, do not constitute part of
\nthis Agreement and shall not be deemed to limit or otherwise affect any of the
\nprovisions hereof.<\/p>\n
42<\/p>\n
SECTION 10.09 Severability. If any provision of this Agreement
\nor any of the Ancillary Agreements or the application thereof to any person or
\ncircumstance is determined to be invalid, void or unenforceable by a court of
\ncompetent jurisdiction or by one or more arbitrator(s), the remaining provisions
\nthereof, or the application of such provision to persons or circumstances other
\nthan those as to which it has been held invalid or unenforceable, shall remain
\nin full force and effect and shall in no way be affected, impaired or
\ninvalidated thereby, so long as the economic or legal substance of the
\ntransactions contemplated thereby is not affected in any manner adverse to any
\nparty. Upon any such determination, the parties shall negotiate in good faith in
\nan effort to agree upon a suitable and equitable substitute provision to effect
\nthe original intent of the parties.<\/p>\n
SECTION 10.10 Equitable Relief. No provision of this Agreement
\nshall preclude any party from seeking equitable relief to prevent any immediate,
\nirreparable harm to its interests, including multiple breaches of this Agreement
\nor the Ancillary Agreements by another party. Otherwise, the procedures set
\nforth in Article IX regarding dispute resolution are exclusive and shall be
\nfully exhausted prior to the initiation of litigation. Any party to this
\nAgreement may also seek specific enforcement of the Arbitrator’s decision under
\nArticle IX; the opposing party’s only defense to such a request for specific
\nperformance shall be fraud by or on the Arbitrator.<\/p>\n
SECTION 10.11 Third Party Beneficiaries. Except as provided in
\nArticle V relating to Indemnitees and Sections 10.01 and 10.02 relating to
\nmodification, amendment and termination, this Agreement is solely for the
\nbenefit of the parties hereto and their respective Subsidiaries and Affiliates,
\ndirectors and officers, and should not be deemed to confer upon third parties
\nany remedy, claim, liability, reimbursement, claim of action or other right in
\nexcess of those existing without reference to this Agreement.<\/p>\n
SECTION 10.12 Expenses. Except as otherwise set forth in this
\nAgreement or any Ancillary Agreement, each party shall bear its own costs and
\nexpenses incurred after the Distribution Time.<\/p>\n
SECTION 10.13 Exhibits and Schedules. The Exhibits and
\nSchedules to this Agreement shall be construed with and as an integral part of
\nthis Agreement to the same extent as if the same had been set forth verbatim
\nherein.<\/p>\n
SECTION 10.14 Governing Law. This Agreement shall be governed
\nby and construed in accordance with the internal laws of the State of Delaware
\napplicable to contracts made and to be performed entirely within such state,
\nwithout regard to the conflicts of law principles of such state.<\/p>\n
SECTION 10.15 Consent to Jurisdiction. Each of the parties
\nirrevocably submits to the exclusive jurisdiction of the state and federal
\ncourts of Delaware for the purposes of any suit, action or other proceeding
\narising out of this Agreement or any<\/p>\n
43<\/p>\n
transaction contemplated hereby. Each of the parties agree that service of any
\nprocess, summons, notice or document by U.S. registered mail to such party’s
\nrespective address set forth above shall be effective service of process for any
\naction, suit or proceeding in Delaware with respect to any matters to which it
\nhas submitted to jurisdiction in this Section 10.17. Each of the parties
\nirrevocably and unconditionally waives any objection to the laying of venue of
\nany action, suit or proceeding arising out of this Agreement or the transactions
\ncontemplated hereby in the state and federal courts of Delaware, and hereby
\nfurther irrevocably and unconditionally waives and agrees not to plead or claim
\nin any such court that any such action, suit or proceeding brought in any such
\ncourt has been brought in an inconvenient forum. This consent to jurisdiction
\nprovision does not, in any way, limit the force and effect of the requirements
\nset forth in Article IX regarding resolution of Disputes.<\/p>\n
SECTION 10.16 Ancillary Agreements. This Agreement is not
\nintended to address, and should not be interpreted to address, the matters
\nspecifically and expressly covered by the Ancillary Agreements.<\/p>\n
SECTION 10.17 Survival of Agreements. Except as otherwise
\ncontemplated by this Agreement, all covenants and agreements of the parties
\ncontained in this Agreement shall survive the Distribution Time.<\/p>\n
SECTION 10.18 Successors and Assigns. The provisions of this
\nAgreement shall be binding upon, inure to the benefit of and be enforceable by
\nthe parties and their respective successors and permitted assigns.<\/p>\n
IN WITNESS WHEREOF, the parties have caused this Agreement and
\nPlan of Distribution to be duly executed as of the day and year first above
\nwritten.<\/p>\n
U.S. OFFICE PRODUCTS COMPANY<\/p>\n
by<\/p>\n
————————-
\n Name:
\n Title:<\/p>\n
WORKFLOW MANAGEMENT, INC.<\/p>\n
by<\/p>\n
————————-
\n Name:<\/p>\n
44<\/p>\n
Title:<\/p>\n
SCHOOL SPECIALTY, INC.<\/p>\n
by<\/p>\n
————————-
\n Name:
\n Title:<\/p>\n
AZTEC TECHNOLOGY PARTNERS, INC.<\/p>\n
by<\/p>\n
————————-
\n Name:
\n Title:<\/p>\n
NAVIGANT INTERNATIONAL, INC.<\/p>\n
by<\/p>\n
————————-
\n Name:
\n Title:<\/p>\n
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