Engagement Agreement, dated February 1, 2019, between the Company and FTI Consulting, Inc
February 1, 2019
Mr. Scott Scharfman
School Specialty, Inc.
W6316 Design Drive
Greenville, WI 54942
Re: Project School Interim CEO
Dear Mr. Scharfman:
The purpose of this letter is to confirm the understanding and agreement (the Agreement) between School Specialty, Inc., (the Client or SSI) and FTI Consulting, Inc. (FTI) concerning the Clients engagement of FTI to provide certain temporary employees to the Client for performing interim management services (the Services). This Agreement is effective on February 1, 2019 (the Effective Date). The FTI Standard Terms and Conditions attached hereto as Exhibit A are also incorporated herein and forms part of this Agreement.
1. Temporary Interim Officer(s), Hourly Temporary Employees and Services
FTI will provide Michael Buenzow to serve as the Clients Interim Chief Executive Officer (the Interim CEO) reporting to the Board of Directors of School Specialty, Inc. (Board), in connection with the Engagement. The Interim CEO, as well as any additional Hourly Temporary Staff, (as defined below), shall have such duties as the Board may from time to time determine, and shall always report to and be subject to supervision by the Board. Without limiting the foregoing, the Interim CEO, as well as any Hourly Temporary Staff, shall work with other senior management of the Client, and other professionals, to provide the Services.
In addition to providing the Interim CEO, FTI may also provide the Client with additional staff (the Hourly Temporary Staff and, together with the Interim CEO, the FTI Professionals), subject to the terms and conditions of this Agreement. The Hourly Temporary Staff may be assisted by or replaced by other FTI professionals reasonably satisfactory to the Board, as required, who shall also become Hourly Temporary Staff for purposes hereof. The initial schedule of potential Hourly Temporary Staff is set out on Exhibit B. FTI will keep the Board reasonably informed as to FTIs staffing and will not add additional Hourly Temporary Staff to the assignment without first consulting with the Client.
The Services do not include (i) audit, legal, tax, environmental, accounting, actuarial, employee benefits, insurance advice or similar specialist and other professional services which are typically outsourced and which shall be obtained directly where required by the Client at Clients expense; or (ii) investment banking, including valuation or securities analysis, including advising any party or representation of the Client on the purchase, sale or exchange of securities or representation of the Client in securities transactions. FTI is not a registered broker-dealer in any jurisdiction and will not offer advice or its opinion or any testimony on valuation or exchanges of securities or on any matter for which FTI is not appropriately licensed or accredited. An affiliate of FTI is a broker-dealer but is not being engaged by the
Client to provide any investment banking or broker-dealer services. The Client agrees to supply office space, a dedicated computer, email, mobile phone, office telephone, and administrative support services to the Interim CEO as reasonably requested by FTI in connection with the performance of its duties hereunder.
2. Compensation to FTI
Professional fees in connection with this Engagement are set forth in Exhibit C. In general, FTI will bill the Client based upon the actual time incurred providing the Services, multiplied by our standard hourly rates, summarized as follows:
|Per Hour (USD)|
Senior Managing Directors
|$||895 - 1,195|
Directors / Senior Directors / Managing Directors
|670 - 880|
Consultants / Senior Consultants
|355 - 640|
Administrative / Paraprofessionals
|145 - 275|
Hourly rates are generally revised periodically. To the extent this engagement requires services of our International divisions or personnel, the time will be multiplied by our standard hourly rates applicable on International engagements. Note that we do not provide any assurance regarding the outcome of our work and our fees will not be contingent on the results of such work.
The Client is not responsible for payment of any employee benefits including medical insurance, vacation or sick pay, employment taxes or any other costs typically incurred as employer. In addition to the professional fees, the Client is obligated to provide coverage for the Interim CEO under the Clients Directors & Officers Insurance Policy. This is a standard and typical practice for interim officer assignments and usually does not result in any incremental cost to the Client. In the event the existing policy is inadequate or does not provide $10.0 million of coverage, FTI may elect to purchase an additional supplemental D&O policy, the cost of which may be billed to the Client.
In addition to the fees outlined above, FTI will bill for reasonable allocated and direct expenses which are likely to be incurred on your behalf during this Engagement. Allocated expenses include the cost of items which are not billed directly to the engagement but are incurred centrally, including out-of-pocket costs for data services and research materials which FTI subscribes to that we expect to use on your engagement, copying, phone charges, and other overhead expenses that are not billed through as direct reimbursable expenses and are calculated at 6.0% of FTIs fees as described above. Since the Client will be directly providing the Interim CEO with administrative support, the allocated expense fee will be eliminated for this engagement.
Direct expenses include reasonable and customary out-of-pocket expenses which are billed directly to the engagement such as internet access, telephone, overnight mail, messenger, travel, meals, accommodations and other expenses specifically related to this engagement. Further, if FTI and/or any of its employees are required to testify or provide evidence at or in connection with any judicial or administrative proceeding relating to this matter, FTI will be compensated by you at its regular hourly rates and reimbursed for reasonable allocated and direct expenses (including legal counsel fees) with respect thereto.
We will send the Client periodic invoices (not less frequently than monthly) for services rendered and charges and disbursements incurred on the basis discussed above. Each invoice constitutes a request for an interim payment against the final fee to be determined at the conclusion of our Services. Upon transmittal of the invoice, we may immediately draw upon the Initial Cash on Account (as replenished from time to time) in the amount of the invoice. The Client agrees that within thirty (30) days of submission of each such invoice to wire the invoice amount to us as replenishment of the Initial Cash on Account (together with any supplemental amount to which we and the Client mutually agree), without prejudice to the Clients right to advise us of any differences it may have with respect to such invoice. We have the right to apply to any outstanding invoice (including amounts billed prior to the date hereof), up to the remaining balance, if any, of the Initial Cash on Account (as may be supplemented from time to time) at any time subject to (and without prejudice to) the Clients opportunity to review our statements.
The Client agrees to promptly notify FTI if the Client or any of its subsidiaries or affiliates extends (or solicits the possible interest in receiving) an offer of employment to a principal or employee of FTI involved in this Engagement and agrees that FTI has earned and is entitled to a cash fee, upon hiring, equal to 150% of the aggregate first years annualized compensation, including any guaranteed or target bonus and equity award, to be paid to FTIs former principal or employee that the Client or any of its subsidiaries or affiliates hires at any time up to one year subsequent to the date of the final invoice rendered by FTI with respect to this Engagement.
Cash on Account:
Initially, the Client will forward to us the amount of $125,000, which funds will be held on account to be applied to our professional fees, charges and disbursements for the Engagement (the Initial Cash on Account). To the extent that this amount exceeds our fees, charges and disbursements upon the completion of the Engagement, we will refund any unused portion. The Client agrees to increase or supplement the Initial Cash on Account from time to time during the course of the Engagement in such amounts as the Client and we mutually shall agree are reasonably necessary to increase the Initial Cash on Account to a level that will be sufficient to fund Engagement fees, charges, and disbursements to be incurred.
Additional Provisions Regarding Fees:
FTI may stop work or terminate the Agreement immediately upon the giving of written notice to the Client if payments are not made in accordance with this Agreement,
Client and FTI agree that FTI is not an employee of the Client and the FTI employees and independent FTI contractors who perform the Services are not employees of the Client, and they shall not receive a W-2 from the Client for any fees earned under this engagement, and such fees are not subject to any form of withholding by the Client. The Client shall provide FTI a standard form 1099 on request for fees earned under this Engagement.
Copies of Invoices shall be sent by facsimile or email as follows:
To the Client at:
School Specialty, Inc.
W6316 Design Drive
Greenville, WI 54942
Attention: Kevin Baehler, CFO
3. Availability of Information
In connection with FTIs activities on the Clients behalf, the Client agrees (i) to furnish FTI with all information and data concerning the business and operations of the Client which FTI reasonably requests, and (ii) to provide FTI with reasonable access to the Clients officers, directors, partners, employees, retained consultants, independent accountants, and legal counsel. FTI shall not be responsible for the truth or accuracy of materials and information received by FTI under this agreement.
Notices under this Agreement to the Client shall be provided as set forth in paragraph 2(e).
Notices to FTI shall be to:
FTI Consulting, Inc.
227 W. Monroe St., Suite 900
Chicago, IL, 60606
Attn: Michael Buenzow
Phone: 1 ###-###-####
Fax: 1 ###-###-####
Notices shall be provided by (a) fax and email, (b) hand delivery, or (c) overnight delivery. If provided by fax and email or hand delivery, they shall be deemed effective the date given. If provided by overnight delivery, they shall be deemed effective on the date of actual receipt.
5. Indemnification by FTI
FTI shall defend and indemnify the Client, its Officers and Directors with respect to any claim by any FTI employee or independent FTI contractor who performs services for the Client that such FTI employee or independent FTI contractor was employed by the Client and is entitled to wages, benefits, or payroll tax contributions by the Client.
6. Confidential Information and Assignment of Intellectual Property
FTI employees and independent FTI contractors who perform services for the Client shall execute the Clients form of non-disclosure agreement and assignment of intellectual property rights with respect to information developed or learned or intellectual property created in connection with his or her services to the Client in the form attached hereto as Exhibit D. Subject to the restrictions on use and disclosure set forth in Section 1.1 of the attached Standard Terms and Conditions. FTI disclaims any ownership interest in any intellectual property, whether in the form of a trade secret, invention, patent, trademark or copyright created by any FTI employee or independent FTI contractor in connection with his or her service to the Client.
FTI shall not assign FTI employees and independent FTI contractors who perform services for the Client to perform services for any person or entity relating to the distribution. design, development, or sourcing of school supplies, furniture, curriculum and supplemental learning resources to educators or pre-school,
primary or secondary educational institutions, during the period such FTI employee or independent FTI contractor is assigned to perform services for Client or for a period of twelve (12) months following the end of such FTI employees or independent FTI contractors assignment with Client.
This Agreement: represents the entire understanding of the parties hereto and supersedes any and all other prior agreements among the parties regarding the subject matter hereof; shall be binding upon and inure to the benefit of the parties and their respective heirs, representatives, successors and assigns; may be executed by facsimile (followed by originals sent via regular mail), and in two or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument; and may not be waived, modified or amended unless in writing and signed by a representative of the Client and FTI. The provisions of this Agreement shall be severable. No failure to delay in exercising any right, power or privilege related hereto, or any single or partial exercise thereof, shall operate as a waiver thereof.
Based on our understanding of the parties involved in this matter and from input received directly from the Client, we have compiled a list of interested parties (the Potentially Interested Parties) and have undertaken a limited review of our records to determine FTIs professional relationships with the Client and such Potentially Interested Parties. From the results of such review, we are not aware of any conflicts of interest or relationships that we believe would preclude us from performing the Services.
As you know, however, we are a large consulting firm with numerous offices throughout the world. We are regularly engaged by new clients, which may include one or more of the Potentially Interested Parties. The FTI professionals providing services hereunder will not accept an engagement that directly conflicts with this Engagement without your prior written consent.
During this Engagement, in the event we become aware of any potential conflicts, we will promptly notify the Client of the situation and work collaboratively with the Client to resolve the situation. Furthermore, we will not staff any FTI professionals on this Engagement if they have in the past or are currently working on other engagements that involve any Potentially Interested Parties.
If this letter correctly sets forth our understanding, please so acknowledge by signing below and returning a signed copy of this letter to us.
Very truly yours,
FTI CONSULTING, INC.
By: /s/ Michael Buenzow
Name: Michael Buenzow
Title: Senior Managing Director
ACCEPTED AND AGREED this 1st day of February, 2019.
On behalf of School Specialty, Inc.
By: /s/ Scott Scharfman
Name: Scott Scharfman
FTI CONSULTING, INC.
STANDARD TERMS AND CONDITIONS
The following are the Standard Terms and Conditions on which we will provide the Services to you set forth within the attached letter of engagement with the School Specialty, Inc. (the Client) dated as of February 1, (the Engagement Letter). The Engagement Letter and these Standard Terms and Conditions annexed thereto (collectively, the Engagement Contract) form the entire agreement between us relating to the Services and replace and supersede any previous proposals, letters of engagement, undertakings, agreements, understandings, correspondence and other communications, whether written or oral, regarding the Services. The headings and titles in the Engagement Contract are included to make it easier to read but do not form part of the Engagement Contract.
Reports and Advice
Use and purpose of advice and reports Any advice given or report issued by us is provided solely for your use and benefit and only in connection with the purpose in respect of which the Services are provided. Unless required by law, you shall not provide any advice given or report issued by us to any third party, or refer to us or the Services, without our prior written consent, which shall be conditioned on the execution of a third party release letter in the form provided by FTI. In no event, regardless of whether consent has been provided, shall we assume any responsibility to any third party to which any advice or report is disclosed or otherwise made available.
Information and Assistance
Provision of information and assistance Our performance of the Services is dependent upon you and the Client providing us with such information and assistance as we may reasonably require from time to time.
Punctual and accurate information You and Client personnel shall use reasonable skill, care and attention to ensure that all information we may reasonably require is provided on a timely basis and is accurate and complete and relevant for the purpose for which it is required. You and the Client shall also notify us if you subsequently learn that the information provided is incorrect or inaccurate or otherwise should not be relied upon.
No assurance on financial data While our work may include an analysis of financial and accounting data, the Services will not include an audit, compilation or review of any kind of any financial statements or components thereof. Client management will be responsible for any and all financial information they provide to us during the course of this Engagement, and we will not examine or compile or verify any such financial information. Moreover, the circumstances of the Engagement may cause our advice to be limited in certain respects based upon, among other matters, the extent of sufficient and available data and the opportunity for supporting investigations in the time period. Accordingly, as part of this Engagement, we will not express any opinion or other form of assurance on financial statements of the Client.
Prospective financial information In the event the Services involve prospective financial information, our work will not constitute an examination or compilation, or apply agreed-upon procedures, in accordance with standards established by the American Institute of Certified Public Accountants or otherwise, and we will express no assurance of any kind on such information. There will usually be differences between estimated and actual results, because events and circumstances frequently do not occur as expected, and those differences may be material. We will take no responsibility for the achievability of results or events projected or anticipated by the management of the Client.
Responsibility for other parties You and the Client shall be solely responsible for the work and fees of any other party engaged by you or the Client to provide services in connection with the Engagement regardless of whether such party was introduced to you by us. Except as provided in this Engagement Contract (including section 2 of the Engagement Letter with respect to the retention of certain agents and independent contractors), we shall not be responsible for providing or reviewing the advice or services of any such third party, including advice as to legal, regulatory, accounting or taxation matters. Further, we acknowledge that we are not authorized under our Engagement Contract to engage any third party to provide services or advice to you or the Client, other than our agents or independent contractors engaged to provide Services, without your or the Clients written authorization.
Restrictions on confidential information All parties to this Engagement Contract agree that any confidential information received from the other parties shall only be used for the purposes of providing or receiving Services under this or any other contract between us. Except as provided below, no party will disclose other contracting partys confidential information to any third party without such partys consent. Confidential information shall not include information that:
is or becomes generally available to the public other than as a result of a breach of an obligation under this Clause 4.1;
is acquired from a third party who, to the recipient partys knowledge, owes no obligation of confidence in respect of the information; or
is or has been independently developed by the recipient (without the use of confidential information).
Disclosing confidential information Notwithstanding Clause 1.1 or 4.1 above, all parties will be entitled to disclose confidential information to a third party to the extent that this is required by valid legal process, provided that (and without breaching any legal or regulatory requirement) where reasonably practicable not less than 2 business days notice in writing is first given to the other parties.
Citation of engagement Without prejudice to Clause 4.1 and Clause 4.2 above, to the extent our engagement is or becomes known to the public, we may cite the performance of the Services to our clients and prospective clients as an indication of our experience, unless we and you specifically agree otherwise in writing.
Internal quality reviews Notwithstanding the above, we may disclose any information referred to in this Clause 4 to any other FTI entity or use it for internal quality reviews; provided, that we shall cause such persons to keep such information confidential in accordance with the terms of this Engagement Contract.
Maintenance of workpapers Notwithstanding the above, we may keep one archival set of our working papers from the Engagement, including working papers containing or reflecting confidential information, in accordance with our internal policies; provided, that we shall keep such materials confidential in accordance with the terms of this Engagement Contract.
Termination of Engagement with notice Termination of Engagement with notice This Agreement is terminable by FTI at any time upon the giving of thirty (30) days written notice. This Agreement is terminable by the Client at any time upon written notice. Upon such termination by the Client (the Termination Date), FTI shall cease work and the Client shall have no further obligation for fees and expenses of FTI arising or incurred after the Termination Date, provided,
a) The Client shall reimburse FTI for its out-of-pocket expenses (the Termination Expenses) incurred in connection with commitments made by FTI prior to the Termination Date with respect to advance travel arrangements reasonably incurred, to the extent FTI is unable to obtain refunds of such expenses. FTI shall provide the Client with reasonable documentation to substantiate all Termination Expenses for which payment is requested; and
b) Unless FTI is in material default of this Agreement, termination shall not affect FTIs entitlement to the Incentive Performance Fee.
Continuation of terms The terms of the Engagement that by their context are intended to be performed after termination or expiration of this Engagement Contract, including but not limited to, Clauses 3 and 4 of the Engagement letter, and Clauses 1.1, 4, 6 and 7 of the Standard Terms and Conditions, are intended to survive such termination or expiration and shall continue to bind all parties.
Indemnification, Insurance and Liability Limitation
Indemnification The Client agrees to indemnify and hold harmless FTI and any of its subsidiaries and affiliates, officers, directors, principals, shareholders, agents, independent contractors and employees (collectively Indemnified Persons) from and against any and all claims, liabilities, damages, obligations, costs and expenses (including reasonable attorneys fees and expenses and costs of investigation) arising out of or relating to your retention of FTI, the execution and delivery of this Engagement Contract, the provision of Services or other matters relating to or arising from this Engagement Contract, except to the extent that any such claim, liability, obligation, damage, cost or expense shall have been determined by final non-appealable order of a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of the Indemnified Person or Persons in respect of whom such liability is asserted (an Adverse Determination). The Client shall pay damages and expenses, including reasonable legal fees and disbursements of counsel as incurred in advance. FTI agrees that it will reimburse any amounts paid in advance to the extent they relate directly to an Adverse Determination.
Insurance In addition to the above indemnification and provision regarding advancement of fees/expenses, FTI employees serving as directors or officers of the Client or its affiliates will receive the benefit of the most favorable indemnification and advancement provisions provided by the Client to its directors, officers and any equivalently placed employees, whether under the Clients charter or by-laws, by contract or otherwise. The Client shall specifically include and cover employees and agents serving as directors and officers of the Client or affiliates from time to time with direct coverage under the Clients policy for liability insurance covering its directors, officers and any equivalently placed employees. Prior to FTI accepting any director or officer position, the Client shall, at the request of FTI, provide FTI a copy of its current D&O policy, a certificate of insurance evidencing the policy is in full force and effect, and a copy of the signed board resolutions and any other document that FTI may reasonably request evidencing the appointment and coverage of the indemnitees. The Client shall maintain such D&O insurance for the period through which claims can be made against such persons. In the event the Client is unable to include FTI employees and agents under the Clients policy or does not have first dollar coverage acceptable to FTI in effect for at least $10.0 million, FTI may, subject to the prior written consent of the Client, attempt to purchase a separate D&O insurance policy that will cover the FTI employees and agents only. The cost of the policy shall be invoiced to the Client as an out-of-pocket expense. Notwithstanding anything to the contrary, the Clients indemnification obligations in this Section 6 shall be primary to (and without allocation against) any similar indemnification and advancement obligations of FTI, its affiliates and insurers to the indemnitees (which shall be secondary), and the Clients D&O insurance coverage for the indemnitees shall be specifically primary to (and without allocation against) any other valid and collectible insurance coverage that may apply to the indemnitees (whether provided by FTI or otherwise).
Limitation of liability You agree that no Indemnified Person shall be liable to you, or your successors, affiliates or assigns for damages in excess of the total amount of the fees paid to FTI under this Engagement Contract. Without limiting the generality of the foregoing, in no event shall any Indemnified Person be liable for consequential, indirect or punitive damages, damages for lost profits or opportunities or other like damages or claims of any kind.
Governing Law, Jurisdiction and WAIVER OF JURY TRIAL The Engagement Contract shall be governed by and interpreted in accordance with the laws of the State of New York, without giving effect to the choice of law provisions thereof. The parties submit to the jurisdiction of such Courts and irrevocably waive any right they may have to object to any action being brought in these Courts, to claim that the action has been brought in an inconvenient forum or to claim that those Courts do not have jurisdiction. TO FACILITATE JUDICIAL RESOLUTION AND SAVE TIME AND EXPENSE, YOU, THE CLIENT AND FTI IRREVOCABLY AND UNCONDITIONALLY AGREE NOT TO DEMAND A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THE SERVICES OR ANY SUCH OTHER MATTER.
Confirmation of Standard Terms and Conditions
Subject to the terms and conditions of the Engagement Letter, we agree that FTI Consulting, Inc. is engaged upon the terms set forth in these Standard Terms and Conditions as outlined above.
On behalf of School Specialty, Inc.
By: /s/ Scott Scharfman
Name: Scott Scharfman
Date: February 1, 2019
INITIAL SCHEDULE OF POTENTIAL HOURLY TEMPORARY STAFF
|Armen Emrikian||Sr. Managing Director||Finance / Lender Mgt.||$895|
|JD Wichser||Sr. Managing Director||Performance Improvement||$1,050|
|Tim Schleeter||Sr. Managing Director||Performance Improvement||$895|
|Ron Scalzo||Sr. Managing Director||Logistics / Distribution||$960|
|Christine DiBartolo||Sr. Managing Director||Strategic Communications||$875|
|Chase Gill||Managing Director||F, P & A||$825|
|Michael Paykin||Senior Director||Treasury / Cash Mgt.||$785|
|Ronald Bedway||Senior Consultant||Treasury / Cash Mgt.||$545|
|John Hayes||Consultant||Financial Modeling||$425|
|Andrew Kopfensteiner||Consultant||Financial Modeling||$425|
|Luke McCrory||Consultant||Financial Modeling||$425|
The aforementioned list should not be viewed as the engagement team staffing plan. This list is the current group of FTI professionals that have been identified as potential candidates to assist in the event additional staffing is required to complete the Services. The actual team will be a smaller group that will be selected based on functional expertise, timing, and availability.
Fees Interim Management Services
The fees incurred in connection with these Services will be based upon the actual time incurred to provide the Interim Management Services, multiplied by our standard hourly billing rates. In the event that FTI requests payment for the Interim CEO fees in excess of $160,000 during any one-month period, FTI is required to seek and obtain Board approval for any amount over the monthly threshold. Mr. Buenzows current standard hourly rate for 2019 is $1,195 per hour.
Fees Hourly Temporary Staff
The fees incurred in connection with the Services provided by all other FTI Employees other than the Interim Officer(s) will be based upon the actual time incurred to provide the Services, multiplied by our standard hourly billing rates as set forth on page 2. Prior to the commencement of these Services, the Interim CEO will provide the Board with a detailed fee estimate along with an estimate of the benefits to be derived from the completion of these Services.
Fees Incentive Performance Fee
In addition to the hourly fees, we propose an additional Incentive Performance Fee (IPF) which is based on the Clients adjusted EBITDA performance. The agreed upon Incentive Performance Fee is as follows:
|Incentive Performance Fee|
$50,000,000 to $52,000,000
$52,000,001 to $57,000,000
$57,000,001 to $62,000,000
$62,000,001 to $65,000,000
The Incentive Performance Fee will be pro-rated based on the length of service of the Interim CEO during SSIs fiscal year 2019, as follows, the Incentive Performance Fee shall be multiplied by a fraction the numerator of which is the number of days in 2019 from the first day of service through the last day of service in 2019, and the denominator of which will be the number of days in SSIs fiscal year 2019.
CLIENTS FORM OF NON-DISCLOSURE AGREEMENT
CONSULTANT CONFIDENTIALITY AND ASSIGNMENT AGREEMENT