The following provisions of the Employment Agreement are hereby
amended, effective as of the date hereof:
(a) Section 1 of the Employment Agreement is hereby amended by
deleting the definitions of "Change in Control", "Good Reason" and
"Offering".
(b) Section 2 of the Employment Agreement is amended to read in
its entirety as follows:
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"2. Employment . Subject to the terms and provisions set forth in this
Agreement, the Company hereby agrees that the Executive shall be
employed as the Company's Executive Vice President of Acquisitions,
and the Executive hereby accepts such employment."
(c) Section 3 of the Employment Agreement is amended to read in
its entirety as follows:
"3. Term of Employment .
The term of employment under this Agreement shall
commence on the Effective Date and, unless earlier terminated under
Section 6 below, shall terminate on December 31, 2008 (the
"Term of Employment")."
(d) Section 4.1 of the Employment Agreement is amended to read
in its entirety as follows:
"4.1. Positions .
During the Term of Employment, the Executive shall
be employed and serve as the Company's Executive Vice President of
Acquisitions. In such positions, the Executive shall have such
duties and authority as directed by the Chief Executive Officer of
the Company. The Executive shall no longer be involved with the
investor relations functions at the Company. The Executive shall
report directly to the Chief Executive Officer. Notwithstanding the
above, the Executive shall not be required to perform any duties
and responsibilities which would be likely to result in a
non-compliance with or violation of any applicable law or
regulation. For the avoidance of doubt, the Company shall be
permitted to require (without any advance notice) that during the
remainder of the Term of Employment the Executive shall provide
services from his residence (or otherwise outside of the Company's
premises)."
(e) Section 5.1 of the Employment Agreement is amended to read
in its entirety as follows:
"5.1. Base Salary .
During the Term of Employment, the Executive shall
receive an annual base salary ("Base Salary") payable in accordance
with the Company's normal payroll practices of US $441,000. The
Base Salary shall be reduced proportionately for each week during
which the Executive works for the Company for fewer than 40 hours,
or is not providing services in Jacksonville, Florida (unless he is
traveling on Company business or is otherwise directed by the Chief
Executive Officer to work outside of Jacksonville,
Florida)."
(f) Section 5.2 of the Employment Agreement is amended by adding
the following at the end thereof:
"5.2. Annual Bonus .
Notwithstanding the foregoing, for calendar year
2008, subject to Section 6, the Executive's Bonus that is earned,
if any, based on actual performance, shall be pro-rated through
September 30, 2008 (that is, the Executive shall receive 75% of the
Bonus otherwise payable in respect of calendar year 2008);
provided, however, that if the Executive works for the Company on a
full-time basis after September 30, 2008, then he shall receive the
percentage of the Bonus otherwise payable in respect of calendar
year 2008 multiplied by a fraction, the numerator of which is the
number of days employed during 2008 and the denominator of which is
365."
(g) Sections 5.8 through 5.11 of the Employment Agreement are
hereby deleted.
(h) Sections 6.1 through 6.3 of the Employment Agreement are
hereby amended to read in their entirety as follows"
" 6.1. Termination
Due to Death . In the event of
the Executive's death, the Executive's estate or his legal
representative, as the case may be, shall be entitled to:
(a) any Base Salary accrued but unpaid as of the date of
death; (b) a pro-rata Bonus payment for the calendar year of
the Executive's death equal to no
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less than the Bonus that the Executive would have
been entitled to if he had remained employed by the Company at the
end of such calendar year multiplied by a fraction, the numerator
of which is the number of days transpired in the calendar year up
to and including the date of the death of the Executive, and the
denominator of which is 365; (c) immediate payment of any
unpaid expense reimbursements, unpaid automobile allowance and
unused accrued vacation days through the date of the Executive's
death; (d) any other benefits to which the Executive, the
Executive's estate or the Executive's legal representative is
entitled under any of the Retirement and Welfare Plans; and
(e) any other payments and/or benefits provided for in any
agreement between the Company and the Executive in the event of
death, including without limitation, any equity award vesting or
exercisability acceleration and any extended post-termination
exercise periods.
6.2. Termination Due to the
Executive's Disability . Upon
30 days prior written notice to the Executive, the Company may
terminate the Executive's employment hereunder due to Disability.
In such event, the Executive or his legal representative, as the
case may be, shall be entitled to: (a) any Base Salary accrued
but unpaid as of the date of the Executive's termination due to
Disability; (b) a pro-rata Bonus payment for the calendar year
of the Executive's termination equal to no less than the Bonus that
the Executive would have been entitled to if he had remained
employed by the Company at the end of such calendar year multiplied
by a fraction, the numerator of which is the number of days
transpired in the calendar year up to and including the date on
which the Executive is terminated by the Company due to Disability,
and the denominator of which is 365; (c) immediate payment of
any unpaid expense reimbursements, unpaid automobile allowance and
unused accrued vacation days through the date of the Executive's
termination; (d) any other benefits to which the Executive or
the Executive's legal representative is entitled under any of the
Retirement and Welfare Plans; and (e) any other payments
and/or benefits provided for in any agreement between the Company
and the Executive in the event of a termination of the Executive's
employment due to Disability, including without limitation, any
equity award vesting or exercisability acceleration and any
extended post-termination exercise periods.
6.3. Termination Without
Cause . Upon 10 days prior
written notice to the Executive, the Company may terminate the
Executive's employment hereunder without Cause. In such event, the
Executive shall be entitled to: (a) continuation of payments
of Base Salary through December 31, 2008, payable in equal
installments in accordance with the Company's usual payroll
practices; (b) payment for the calendar year of the Executive's
termination equal to the Bonus that the Executive would have been
entitled to under Section 5.2 if he had remained employed by the
Company through December 31, 2008, payable at such time as bonuses
for such year are paid to other executives of the Company;
(c) immediate payment of any unpaid expense reimbursements,
unpaid automobile allowance and unused accrued vacation days
through the date of termination; and (d) any other payments
and/or benefits to which the Executive is entitled under any of the
Welfare and Retirement Plans. In addition, the Executive's
outstanding equity awards (stock options, restricted stock and
restricted stock units) would continue to vest through December 31,
2008, and, solely for purposes of measuring any post-termination
exercisability periods, the Executive's date of termination of
employment would be treated as December 31, 2008. For the avoidance
of doubt, except as specifically provided in this Section 6.3, the
Executive shall not be entitled to receive any severance pay from
the Company hereunder or otherwise participate in any severance
plan or arrangement sponsored by the Company."
(i) Section 6.5 of the Employment Agreement is amended to read
in its entirety as follows:
" 6.5. Termination
by the Executive . Upon
14 days prior written notice to the Company, the Executive
shall have the right to terminate his employment hereunder for no
reason or any reason at all. In such event, the Executive shall be
entitled to: (a) any Base Salary accrued but unpaid through
the date of termination; (b) immediate payment of any unpaid
expense reimbursements and unpaid automobile allowance;
(c) any other payments and/or benefits to which the Executive
is entitled under any of the Retirement and Welfare Plans; and
(d) any other payments and/or benefits provided in this
Agreement in the event of a termination for Cause."
(j) Section 6.7 of the Employment Agreement is hereby
deleted.
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(k) The last sentence of Section 9 of the Employment Agreement
is hereby deleted.
(l) Section 12.1 of the Employment Agreement is hereby amended
to read in its entirety as follows:
" 12.1. Non-Solicitation
. The Executive, during the Term of
Employment and for a period of five years after any termination of
Executive's employment for any reason, shall not (except on the
Company's behalf), directly or indirectly, on his own behalf or on
behalf of any other person, firm, partnership, corporation or other
entity, (i) solicit or service the business of any of the Company's
clients (as of the date of the Executive's termination of
employment), any of the Company's former clients which were clients
within six months prior to the termination of his employment or any
of the prospective clients which were being actively solicited by
the Company at the time of the termination of his employment, in
each case for the purpose of providing products or services to such
clients that would compete (as determined in accordance with
Section 12.3.1) with the business of the Company as of the date of
termination of employment, or (ii) attempt to cause or induce any
employee of the Company to leave the Company."
(m) Section 12.3.1 of the Employment Agreement is hereby amended
to read in its entirety as follows:
" 12.3.1. During the Term of Employment
and for a period of four years after any termination of the
Executive's employment for any reason, the Executive will not
directly or indirectly, (i) engage in any business for the
Executive's own account that competes with the business of the
Company as of the date of termination of the Executive's
employment, (ii) enter the employ of, or render any services to,
any person engaged in any business that competes with the business
of the Company as of the date of termination of the Executive's
employment, (iii) acquire a financial interest in, or otherwise
become actively involved with, any person engaged in any business
that competes with the business of the Company as of the date of
termination of the Executive's employment, directly or indirectly,
as an individual, partner, shareholder, officer, director,
principal, agent, trustee or consultant, or (iv) interfere with
business relationships (whether formed before or after the date of
this Agreement) between the Company or any of its Affiliates that
are engaged in a business similar to the business of the Company as
of the date of termination of the Executive's employment (the
"Company Affiliates") and customers or suppliers of the Company or
the Company Affiliates; provided , however , that a
business (the "Target Business") shall be deemed not to compete
with the business of the Company if both (a) the Target Business
obtains not more than $2,000,000 in annual revenues in the
aggregate from all portions of its businesses that (but for this
proviso) compete with the business of the Company and (b) the
annual revenues from the portion of the business of the Target
Business that (but for this proviso) competes with the business of
the Company are incidental to (and de minimis relative to)
the primary business or businesses of the Target Business;
provided , further , that a Target Business shall be
deemed not to compete with the business of the Company if, as of
the date of the termination of the Executive's employment, both (x)
the Company obtains not more than 0.5% of its annual revenues in
the aggregate from sales of any products or services that are the
same or substantially similar to the products or services sold by
the Target Business and (y) the annual revenues in the aggregate
received by the Company, or any Brand or Business Unit (each as
defined below) of the Company, from sales of any products or
services that are the same or substantially similar to the products
or services sold by the Target Business, are incidental to (and
de minimis relative to) the primary business or businesses
of the Company, or of any of its Brands or Business Units. As used
herein, "Brand" refers to the tradenames under which the Company
does business with its customers (e.g. Barnett) and "Business Unit"
refers to each separate business unit maintained by the Company for
purposes of marketing, accounting or sales. Solely for illustrative
purposes only, this Section 12.3.1 would not prohibit the Executive
from being employed by or investing in or managing a Target
Business that sells or provides office supplies (for example, paper
clips, staples, batteries, office furniture) if (1) the
