EXHIBIT 10.9
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, dated as of this day of , 1998, is by and
between SCHOOL SPECIALTY, INC., a Wisconsin corporation (the "Company") and
XXXXX XXXXXX ZANDEN ("Employee").
RECITALS
The Company desires to continue to employ Employee and to have the benefit
of his skills and services, and Employee desires to accept employment with the
Company, on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises, terms, covenants
and conditions set forth herein, and the performance of each, the parties
hereto, intending legally to be bound, hereby agree as follows:
AGREEMENTS
1. EMPLOYMENT AND DUTIES. The Company hereby agrees to employ the Employee
and the Employee hereby accepts employment as the Chief Operating
Officer of the Company and agrees to devote his full business time and
efforts to the diligent and faithful performance of his duties as Chief
Operating Office hereunder under the direction of the CEO of the
Company. It is intended by the Employer that at the time that the
Company ceases to be a wholly owned subsidiary of U.S. Office Products
Company, by spin off, the Employee's title shall become President and
Chief Operating Officer of the Company. Such duties shall be performed
from headquarters in the Appleton, Wisconsin area. Throughout the term
of this Agreement, the Employee shall be recommended by management of
the Company to its shareholders as a suitable candidate for a position
on the Board of Directors of the Company.
2. TERM OF EMPLOYMENT. Unless sooner terminated as hereinafter provided,
the term of the Employee's employment hereunder shall commence with and
only with the date of this agreement and shall continue for a period of
two (2) years. This Agreement may be terminated prior to the end of the
term in the manner provided herein. In the event that this agreement is
not terminated pursuant to the terms of this Agreement, following the
first year of the initial term of two (2) years and any renewal terms
thereof, said agreement shall extend for successive renewal terms of two
(2) years each measured from the date of renewal, unless either party
shall notify the other party of their desire to not renew the term of
this agreement, with said notice to be made no later than ninety (90)
days prior to the expiration of the initial term of this agreement or
any then effective renewal term thereof.
3. COMPENSATION. For all services rendered by Employee, the Company shall
compensate Employee as follows:
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(a) BASE SALARY. Effective on the date hereof, the base salary payable to
Employee shall be Two Hundred Twenty Five Thousand Dollars
($225,000.00) per year or such greater amount as determined from time
to time by the Board of Directors of the Company (but not reviewed
less frequently than on an annual basis), payable on a regular basis
in accordance with the Company's standard payroll procedures, but not
less than monthly. It is understood that the base salary is a minimum
amount, and shall not be reduced during the term of this Agreement.
(b) INCENTIVE BONUS. During the initial term and any extensions thereof,
Employee shall be eligible to receive an incentive bonus based upon
his participation in the Company's senior management bonus program as
specified in Exhibit A as attached hereto.
(c) PERQUISITES, BENEFITS, AND OTHER COMPENSATION. During the initial
term and any extensions thereof, Employee shall be entitled to
receive all perquisites and benefits as are customarily provided by
the Company to its executive employees, subject to such changes,
additions, or deletions as the Company may make generally from time
to time, as well as such other perquisites or benefits as may be
specified from time to time by the Board or the Chief Executive
Officer of the Company.
(d) STOCK OPTIONS.
4. COVENANTS AND CONDITIONS.
(a) The Employee will acquire information and knowledge respecting the
intimate and confidential affairs of the Company in the various
phases of its business. Accordingly, the Employee agrees that he
shall not for the period he receives severance pay under the terms of
this Employment Agreement from the Company, use for himself or
disclose to any person not employed by the Company any such knowledge
or information heretofore acquired or acquired during the term of
this employment hereunder, including but not limited to the
prescribed requirements of Section 134.90 of the Wisconsin Statutes,
as hereinafter amended from time to time. Nothing in this agreement
shall be construed to limit or supersede the common law of torts or
statutory or other protection of trade secrets where such law
provides the Company with greater protections or protections for a
longer duration than that provided in this section 4 of this
Agreement.
(b) The Employee agrees that all memoranda, notes, records, papers, or
other documents and all copies thereof relating to the Company's
operations or business, some of which may be prepared by him, and all
objects associated therewith (such as models and samples) in any way
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obtained by him shall be the Company's property. This shall include but
is not limited to, documents and objects concerning any process,
apparatus, or product manufactured, used, developed, investigated, or
considered by the Company. The Employee shall not, except for Company
use, copy or duplicate any of the aforementioned documents or objects,
nor remove them from the Company's facilities, nor use any information
concerning them except for the Company's benefit, either during his
employment or thereafter. The Employee agrees that he will deliver all of
the aforementioned documents and objects that may be in his possession to
the Company on termination of his employment, or at any other time on the
Company's request, together with his written certification of compliance.
5. DEATH OR DISABILITY OF THE EMPLOYEE. The Employee's employment shall
terminate immediately upon his death. In the event the Employee becomes
physically or mentally disabled so as to become unable, for a period of
more than one hundred twenty (120) consecutive working days or for more
than one hundred twenty (120) working days in the aggregate during any
twelve (12) month period, to perform his duties hereunder on a
substantially full-time basis, the Company may at its option terminate
his employment upon not less than thirty (30) days written notice. The
Company's right to terminate the Employee's employment pursuant to the
preceding sentence shall cease in the event the notice of termination
provided for therein shall not be given during the period of the
Employee's disability or within ninety (90) days after such disability
ceases. In the event of termination, the Company shall be obligated to
pay the Employee's salary under paragraph 3 hereof, net of the gross
amount of Long Term disability benefits received by the Employee,
through the balance of the term of this Agreement and any then currently
effective extension thereof.
6. TERMINATION AND SEVERANCE COMPENSATION. The Company reserves the right
to terminate the Employee's employment under this agreement should any
of the following occur:
(a) The Employee's commission of a felony that is an act which is either
abhorrent to the community or is an intentional act which a
reasonable person would consider materially damaging to the
reputation of the Company or its successors or assigns.
(b) The Employee's breach of or failure to perform his obligations in
accordance with the terms and conditions of this agreement.
(c) The death or disability of the Employee.
Should the term of the Employee's employment with the Company be
terminated pursuant to the terms of Section 6(b), (c) and 7 herein, the
Company shall pay to the Employee the Base Salary described in Section
3(a) for the balance of the then effective term of this Agreement.
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7. RIGHTS AND OBLIGATIONS OF SUCCESSORS. In the event that any of the
following events occur a "Change in Control" shall be deemed to occur
for the purpose of this Agreement: (a) any person or group of persons
acting in concert becomes the beneficial owner, directly or indirectly
(excluding ownership by or through employee benefit plans), of
securities of the Company representing fifty percent (50%) or more of
the combined voting power of the Company's then outstanding securities;
or (b) the Company is combined (by merger, share exchange,
consolidation, or otherwise) with another corporation and as a result of
such combination less than seventy five percent (75%) of the outstanding
securities of the surviving or resulting corporation are owned in the
aggregate by the former shareholders of the Company. Exempt from the
definition of Change in Control shall be the pending spin off of the
Company and the election of its Board of Directors promptly following
said spin off. The Employee shall have the right to terminate his
employment under the terms of this Agreement for a period of Sixty (60)
days following the Change in Control. In the event that the Employee
shall not so elect to terminate this Agreement, then this agreement
shall be assignable and transferable by the Company to any subsidiary or
affiliate or to any subsidiary or affiliate of the Company affiliated
with the Change in Control and shall inure to the benefit of and be
binding upon the Employee and his heirs and personal representatives and
the Company and its successors and assigns. In the event the Employee
elects to terminate employment, the Employee shall be paid through the
term of this Agreement and any then currently effective extension
thereof.
8. COVENANT NOT TO COMPETE. In consideration of the employment hereunder,
the Employee hereby agrees that during the term of his employment by the
Company and for the period that severance pay is paid under the terms of
this Agreement by the Company to the Employee, the Employee will not
either directly or indirectly own, have proprietary interest (except for
less than 5% of any listed company or company traded in the
over-the-counter market) of any kind in, be employed by, or serve as a
consultant to or in any other capacity for any firm, other than the
Company and its subsidiaries, engaged in the manufacture and
distribution of school supplies, equipment, furniture or other products
made and distributed by the Company or any of the Company's present or
future subsidiary corporations (acquired during the term of this
Agreement) during the period of the Employee's employment in the area
where they are engaged in business without the express written consent
of the Company. The Employee agrees that a breach of the covenant
contained herein will result in irreparable and continuing damage to the
Company for which there will be no adequate remedy at law and in the
event of any breach of such agreement, the Company shall be entitled to
injunctive and such other and further relief including damages as may be
proper.
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9. NOTICE. All notices, demands and other communications hereunder shall be
deemed to have been duly given, if delivered by hand or mailed,
certified or registered mail with postage prepaid:
To the Company: School Specialty, Inc.
0000 Xxxxx Xxxxxxxxx Xxxxx
X.X. Xxx 0000
Xxxxxxxx, XX 00000-0000
Attention: Xx. Xxxxxx X. Xxxxxxxx
Fax: (000) 000-0000
With a copy to: Xxxxxx X. Xxxxxxx XX, Esq.
Xxxxxxx & Xxxxxxx, S.C.
000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Fax: (000) 000-0000
To Employee: Xxxxx Xxxxxx Zanden
X0000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
or to such other address as the person to whom notice is to be given may
have specified in a notice duly given to the sender as provided herein.
Such notice, request, claim, demand, waiver, consent, approval or other
communication shall be deemed to have been given as of the date so
delivered, telefaxed, mailed or dispatched and, if given by any other
means, shall be deemed given only when actually received by the
addressees.
10. ENTIRE AGREEMENT; AMENDMENT; WAIVER. This Agreement (including any
documents referred to herein) sets forth the entire understanding of the
parties hereto with respect to the subject matter contemplated hereby.
Any and all previous agreements and understandings between or among the
parties regarding the subject matter hereof, whether written or oral,
are superseded by this Agreement. This Agreement shall not be amended or
modified except by a written instrument duly executed by each of the
parties hereto. Any extension or waiver by any party of any provision
hereto shall be valid only if set forth in an instrument in writing
signed on behalf of such party.
11. EXPENSES. The Company will pay all fees, expenses and disbursements of
their agents, representatives, accountants and counsel incurred in
connection with the subject matter of this Agreement, and its
enforcement.
12. GOVERNING LAW. This Agreement shall in all respects be construed
according to the laws of the State of Wisconsin, without regard to its
conflict of laws principles.
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IN WITNESS WHEREOF, the parties hereto have cause this Agreement to be duly
executed as of the date first written above.
COMPANY: School Specialty, Inc.
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Xxxxxx X. Xxxxxxxx, President
EMPLOYEE:
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Xxxxx Xxxxxx Zanden, Individually
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