EXHIBIT 10.8
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, dated as of this 26th day of March, 2001 and
having an "Effective Date" of March 26, 2001, is by and between School
Specialty, Inc., a Wisconsin corporation (the "Company") and A. Xxxxx Xxxxxxxxx
("Employee").
RECITALS
The Company desires 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
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Employee and the Employee hereby accepts employment as Executive Vice
President, Corporate Logistics & Technology of the Company and agrees
to devote his full business time and efforts to the diligent and
faithful performance of his duties hereunder under the direction of
the Chief Operating Officer of the Company. Such duties shall be
performed in the State of Wisconsin.
2. Term of Employment. Unless sooner terminated as hereinafter provided,
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the term of the Employee's employment hereunder shall commence with
and only with the Effective Date of this agreement and shall continue
until March 26, 2004 (the "term"). 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 initial term as described above, said
agreement shall extend for successive renewal terms of one (1) year
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
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compensate Employee as follows:
(a) Base Salary and Guaranteed Bonus. Effective on the date hereof,
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the annual base salary and guaranteed bonus payable to the
Employee shall in total be Two Hundred Seventy Two Thousand Two
Hundred Dollars ($272,200.00) per year or such greater amount as
determined from time to time by the President and/or Chief
Executive Officer 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. For purposes of public disclosure,
pro-rata share of benefits, calculation of incentive bonuses in
the executive incentive bonus plan and calculation of future
raises, the base salary will be One Hundred Ninety Thousand Five
Hundred Dollars ($190,500.00). The balance of base salary and
guaranteed bonus, Eighty One Thousand Seven Hundred Dollars
($81,700.00), will be considered the guaranteed portion of bonus
income. If, under 3(b), incentive bonus earned is in excess of
$81,700.00, it will be due and payable in the ordinary course of
the executive bonus plan. If less than $81,700.00, the $81,700.00
will be considered earned by the employee.
(b) Incentive Bonus. During the initial term and any extensions
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thereof, Employee shall be eligible to receive an incentive bonus
based upon his participation in the Company's executive bonus
program.
(c) Perquisites, Benefits, and Other Compensation. During the initial
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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 of
Directors or the Chief Executive Officer of the Company.
(d) Stock Options. The Employee shall be eligible for an option grant
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as approved by the Board of Directors.
4. Covenants and Conditions.
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(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 during his employment with the Company or for
twenty four (24) months thereafter, 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. 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 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. The Employee shall not use
any information concerning the aforementioned documents or objects,
except for the Company's benefit, either during his employment or for
a period of twenty four (24) months 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.
(c) The terms of the provisions of Paragraph 4(c), (d) and (e) shall be in
effect from the Effective Date of this Agreement through and including
two years (2) following the termination of the employment of the
Employee with the Company (the "Effective Period"). During the
Effective Period, the Employee will not, without the written consent
of the Company, either as principal, agent, consultant, employee,
director, or otherwise, directly or indirectly, contact (1) any
customer of the Company with whom the Employee had direct contact on
behalf of the Company; (2) any customer of the Company who was
contacted by an individual directly or indirectly supervised by the
Employee; and (3) any customer of the Company about whom the Employee
obtained non-public information in connection with his/her
relationship with the Company, with the purpose or effect of causing
such customer to buy or use products competitive with the Company's.
The customer contacts/acquisition of knowledge described in this
Paragraph 4 only apply to those occurring during the eighteen (18)
months prior to the termination of Employee's relationship with the
Company.
(d) In addition and supplemental to any obligations otherwise owed the
Company by the Employee, the Employee agrees he will not engage in any
business activity in the sale and distribution of educational
equipment, supplies, materials and furniture or related internet
market businesses which competes with the business activities of the
Company for the Effective Period.
(e) During the Effective Period, the Employee will not, without the
written consent of the Company, either as principal, agent,
consultant, employee, director, or otherwise, directly or indirectly,
in one or a series of transactions, solicit, induce, or influence any
proprietor, partner, stockholder, lender, director, officer, employee,
joint venturer, investor,
lessor, independent contractor, supplier, customer, or any other
person which has a business relationship with the Company, to
discontinue or reduce or modify the extent of such relationship, with
the Company.
5. Death or Disability of the Employee. The Employee's employment shall
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terminate immediately upon his/her death. In the event the Employee becomes
physically or mentally disabled under the terms of the then currently
effective disability coverage for full time employees of the Company, they
shall cease receiving compensation under the terms of this agreement. In
the event that the Employee returns to active full time employment with the
Company during the term of this agreement, or any extension or renewal
thereof, they shall then be compensated for their employment under the
terms of this agreement for their actual active employment with the
Company.
6. Termination. The Company reserves the right to terminate the Employee's
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employment immediately under this agreement should any of the following
occur:
(a) The Employee's commission of a felony that is an act which, in the
opinion of the Board of Directors, is either abhorrent to the
community or is an intentional act, which the Board of Directors
considers 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 or by
mutual agreement of the parties hereto.
(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) herein, the Company shall pay to the
Employee the Base Salary described in Section 3(a) for a period of twelve
(12) months. Termination for any other cause shall provide for no severance
compensation.
7. Rights and Obligations of Successors. In the event that any of the
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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; (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; or (c) any person or group of persons acting in concert
obtains direct or indirect control of the Board of Directors of the
Company,
other than the current shareholders of the Company. 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. Representations of the Employee. The Employee warrants and represents to
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the Company that as of the Effective Date, he/she is not subject to any
employment, consulting or services agreement, or any restrictive covenants
or agreements of any type which would conflict or prohibit the Employee
from fully carrying out their duties as described under the terms of this
agreement. Further the Employee warrants and represents to the Company that
he/she has not and will not retain or use, for the benefit of the Company,
any confidential information, records, trade secrets, or other property of
a former employer. These warranties and representations shall remain in
full force and effect beyond the term of the employment of the Employee
with the Company.
9. Notice. All notices, demands and other communications hereunder shall be
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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: 0-000-000-0000
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: A. Xxxxx Xxxxxxxxx
00000 Xxxxxxxxxx Xxxxx
Xxxxx, 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
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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. Each party hereto shall bear and pay all of their respective
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fees, expenses and disbursements of their agents, representatives,
accountants and counsel incurred in connection with the subject matter
of this Agreement, and its enforcement.
11. Severability. If any provision of this Agreement or the application
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thereof to any person or circumstances is held invalid or unenforceable
in any jurisdiction, the remainder hereof, and the application of such
provision to such person or circumstances in any other jurisdiction,
shall not be affected thereby, and to this end the provisions of this
Agreement shall be severable.
12. Governing Law. This Agreement shall in all respects be construed
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according to the laws of the State of Wisconsin, without regard to its
conflict of laws principles.
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.
/s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx, President
EMPLOYEE:
/s/ A. Xxxxx Xxxxxxxxx
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A. Xxxxx Xxxxxxxxx, Individually
