EXECUTIVE EMPLOYMENT
AGREEMENT
THIS EXECUTIVE
EMPLOYMENT AGREEMENT is made and entered into effective this
23rd day of October, 2008 by and between G&K Services, Inc. , a
Minnesota corporation with its principal business office in the
State of Minnesota (“ Employer ,” as further
defined in Section 1.10 below); and Timothy N. Curran
.
A.
Employment . Employer has employed Executive (as defined
below) in the capacity of its Regional Vice President, Southeast
Region under that certain Executive Employment Agreement between
the parties effective November 2004. Employer desires to
promote Executive to its Senior Vice President, U.S. Field, and
wishes to enter into this Agreement (as defined below). Except as
otherwise specifically set forth herein, this Agreement is intended
to fully supersede all previous agreements or understandings
between Executive and Employer, including, without limitation, the
foregoing agreement. Executive is also subject to the same polices,
terms and conditions as those described in Employer’s
employee handbook, its Code of Ethics, policies, and employee
benefit plans (as modified from time to time by Employer), except
as otherwise specifically provided in this Agreement.
B.
Intentions; Additional Benefits . Executive wishes to accept
Employer’s offer to become its Senior Vice President, U.S
Field, and the additional benefits set forth in this
Agreement.
In consideration
of the facts recited above, which are a part of this Agreement, and
the parties’ mutual undertakings in this Agreement, Employer
and Executive agree to the following:
Capitalized terms
used generally in this Agreement will be consistently defined
throughout the Agreement. The following terms will have the
meanings set forth below, unless the context clearly requires
otherwise.
1.1 “
Agreement ” means this Agreement, as it may be amended
from time to time.
1.2 “
Base Salary ” means the total annual cash compensation
payable to Executive on a regular periodic basis under this
Agreement, other than under Employer’s annual management
incentive Plan (as defined below), without regard to any voluntary
salary deferrals or reductions to fund employee
benefits.
1.3 “
Board ” means the Board of Directors of
Employer.
1.4 “
Cause ” has the meaning set forth in
Section 4.3 .
1.5 “
Change in Control ” has the meaning set forth in
Section 6.1(c) .
1.6 “
Confidential Information ” has the meaning set forth
in Section 7.1(a) .
1.7 “
Date of Termination ” has the meaning set forth in
Section 4.2(a) .
1.8 “
Disability ” means the unwillingness or inability of
Executive to perform the essential functions of Executive’s
position (with or without reasonable accommodation) under this
Agreement for a period of ninety (90) days (consecutive or
otherwise) within any period of six (6) consecutive months because
of Executive’s incapacity due to physical or mental illness,
bodily injury or disease; if Executive has not returned to the
full-time performance of Executive’s duties within thirty
(30) days after a Notice of Termination is issued by Employer,
Executive will on such thirtieth (30 th )
day incur Executive’s Date of Termination; provided, however,
that if Executive (or Executive’s legal representative) does
not agree with a determination of the existence of a Disability (or
the existence of a physical or mental illness or bodily injury or
disease), this determination will be subject to the certification
of a qualified medical doctor mutually agreed to by Employer and
Executive. In the absence of agreement, each party will nominate a
qualified medical doctor and the two doctors will select a third
doctor, who will make the determination as to Disability. The
decision of the designated physician will be binding upon the
parties.
1.9 “
Effective Date ” shall mean the date referred to in
the first paragraph of this Agreement.
1.10 “
Employer ” means all of the following, jointly and
severally: (a) G&K Services, Inc., (b) any Subsidiary
of G&K Services, Inc. and (c) any Successor of G&K
Services, Inc.
1.11 “
Executive ” means the individual named in the first
paragraph of this Agreement.
1.12 “
Good Reason ,” with respect to Executive’s
termination of employment after a Change in Control, has the
meaning set forth in Section 6.1(f) .
1.13 “
Notice of Termination ” has the meaning set forth in
Section 4.2(b) .
1.14 “
Plan ” means any bonus or incentive compensation
agreement, plan, program, policy or arrangement sponsored,
maintained or contributed to by Employer in which executive
employees of Employer generally are covered, including, without
limitation, (a) any stock option or any other equity-based
compensation plan, and specifically the G&K Services, Inc. 2006
Equity Incentive Plan, and any predecessor or successor Plan
thereto (hereinafter the “ Equity Incentive Plan
”); (b) any annual or long-term incentive bonus plan;
(c) any employee benefit plan, such as a thrift, profit
sharing, deferred compensation, medical, dental, disability income,
accident, life insurance, automobile allowance, perquisite, fringe
benefit, vacation, sick or parental leave, separation or relocation
plan or policy; and (d) any other agreement, plan, program,
policy or arrangement intended to benefit executive employees of
Employer.
1.15 “
Subsidiary ” means any corporation or other business
entity controlled by Employer.
1.16 “
Successor ” means any corporation, individual, group,
association, partnership, limited liability company, firm, venture
or other entity or person that, subsequent to the Effective Date,
succeeds to the actual or practical ability to control (either
immediately or with the passage of time) substantially all of
Employer and/or Employer’s business and/or assets, directly
or indirectly, by
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merger,
consolidation, recapitalization, purchase, liquidation, redemption,
assignment, similar corporate transaction, operation of law or
otherwise.
ARTICLE 2
EMPLOYMENT AND DUTIES
2.1
Employment . Upon the terms and conditions set forth in this
Agreement, Employer hereby continues to employ Executive and
Executive accepts such employment for an indefinite term, provided
that Executive will, effective as of the Effective Date, serve in
the capacity of Employer’s Senior Vice President, U.S Field,
or such other comparable senior leadership positions as determined
by Employer. This Agreement and Executive’s employment by
Employer may be terminated at any time and for any reason, with or
without cause.
2.2 Duties
. While Executive is employed under this Agreement, and excluding
any periods of vacation, sick, disability, or other leave to which
Executive is entitled or is authorized to take, Executive agrees to
devote substantially all of Executive’s attention and time
during normal business hours to the business and affairs of
Employer and to use Executive’s reasonable best efforts to
perform faithfully and efficiently such responsibilities assigned
to Executive from time to time. Executive will comply with each of
Employer’s policies and procedures, including those described
in Employer’s employee handbook, Code of Ethics, policies,
and employee benefit plans, as modified from time to time by
Employer; provided, however, that to the extent these policies and
procedures are inconsistent with this Agreement, the provisions of
this Agreement will control.
2.3
Relationship of Parties . The relationship between Employer
and Executive will be that of employer and employee. Except as
otherwise specifically provided in this Agreement, nothing in this
Agreement will be construed to give Executive any interest in the
assets of Employer. All of the records and files pertaining to
Employer’s suppliers, licensors, licensees and customers, and
any Confidential Information, are specifically acknowledged to be
the property of Employer and not that of Executive.
ARTICLE 3
COMPENSATION AND BENEFITS
3.1 Base
Salary . Employer shall continue to pay Executive a Base Salary
at an annual rate as approved from time to time by the Board or the
Compensation Committee of the Board, such Base Salary to be paid in
substantially equal regular periodic payments in accordance with
Employer’s regular payroll practices. If Executive’s
Base Salary is changed at any time during Executive’s
employment by Employer, the changed amount shall become the Base
Salary under this Agreement, subject to any subsequent
changes.
3.2 Other
Compensation and Benefits . While Executive is employed by
Employer under this Agreement:
(a) Executive will
be permitted to participate in all Plans for which Executive is or
becomes eligible under their respective terms.
(b) Executive will
be entitled to a target incentive opportunity under the annual
management incentive Plan in effect at Employer from time to time,
including Executive’s
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target
incentive for fiscal year 2009 established by the Board. Any
incentive pay earned shall be paid no later than two and one-half
(2 1
/ 2 ) months
after the close of the later of Executive’s or
Employer’s taxable year in which the incentive pay was
earned.
(c) Executive will
also be entitled to participate in or receive benefits under any
Plan made available by Employer in the future to its executives,
subject to and on a basis consistent with the terms, conditions and
overall administration of the Plans and the provisions of this
Section 3.2 .
(d) Executive will
be entitled to any other fringe benefit or perquisite that the
Compensation Committee of the Board approves with respect to
Executive.
(e) Employer may,
in its sole discretion, amend or terminate any Plan that provides
benefits generally to its employees, key management employees, or
executive team members.
3.3 Limitation
on Right to Deferred Compensation . The rights of Executive, or
Executive’s beneficiaries or estate, to any deferred
compensation under this Agreement will be solely those of an
unsecured creditor of Employer. Nothing in this Agreement confers
any right on Executive, any of Executive’s beneficiaries, or
Executive’s estate to receive, assign rights under, or
transfer any compensation, including any deferred compensation,
other than as provided for under the applicable Plan.
Executive’s
employment with Employer may be terminated at any time as of the
applicable Date of Termination, as follows; provided, however, that
those provisions contained in this Agreement which by their terms
are to remain enforceable after a Date of Termination shall remain
enforceable to the fullest extent necessary to give them
effect:
4.1
Termination . Except as specifically provided otherwise in
this Agreement, this Agreement and Executive’s employment
with Employer may be terminated by Employer or by Executive upon
thirty (30) days advance written notice, for any reason or no
reason, or at any time by mutual written agreement of the parties.
During the period after notice is given, at Employer’s
request and sole discretion, Executive will continue to render
Executive’s normal service to Employer to the best of
Executive’s ability, and Employer will continue to compensate
Executive through the Date of Termination as set forth in
Section 5.2 . In addition, this Agreement and
Executive’s employment under this Agreement will terminate in
the event of Executive’s death or Disability, as of the
applicable Date of Termination.
4.2 Date of
Termination and Notice of Termination .
(a) For purposes
of this Agreement, “ Date of Termination ” will
mean: (i) if Executive’s employment is terminated due to
death, the date of Executive’s death; (ii) if
Executive’s employment is terminated for Disability, thirty
(30) calendar days after the Notice of Termination is
provided; (iii) if Executive’s employment is terminated
by Employer for Cause, the date stated in the Notice of
Termination; (iv) if Executive’s employment is
terminated by mutual agreement of the parties, the termination date
provided for under the
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parties’
related agreement; (v) if Executive’s employment is
terminated for any other reason, and subject to the terms of
Section 4.1 above and, as applicable, the notice
requirements of Section 6.1(f) below, the date stated
in the Notice of Termination, unless an earlier date has been
expressly agreed to by Executive in writing either before or after
receiving the Notice of Termination.
(b) For purposes
of this Agreement, a “ Notice of Termination ”
will mean a notice that indicates the date on which termination of
Executive’s employment is effective. Any termination by
Employer or by Executive under this Agreement, other than
Executive’s death, or a termination by mutual agreement, will
be communicated to the other party by submission of a written
Notice of Termination. If termination is by Employer for Cause or
by Executive for Good Reason, the Notice of Termination will set
forth in reasonable detail the facts and circumstances claimed to
provide the basis for the termination, consistent with the terms of
this Agreement.
4.3 Termination
by Employer for Cause . Employer may terminate
Executive’s at will employment at any time for Cause, with or
without advance notice, except as otherwise provided in this
Section 4.3 . For purposes of this Agreement, “
Cause ” means any of the following, with respect to
Executive’s position of employment with Employer:
(a)
Executive’s failure or refusal to perform the duties and
responsibilities as set forth in Section 2.2 , if the
failure or refusal (i) is not due to a Disability or a
physical or mental illness or bodily injury or disease; or
(ii) is not due to Executive’s reasonable best efforts
to perform faithfully and efficiently the responsibilities of
Executive’s position with Employer, acting in good faith in
the interests of Employer, its shareholders and
employees;
(b) Any
drunkenness or use of drugs that interferes with the performance of
Executive’s obligations under this Agreement;
(c)
Executive’s indictment for or conviction of (including
entering a guilty plea or plea of no contest to) a felony or of any
crime involving moral turpitude, fraud, dishonesty or
theft;
(d) Any material
dishonesty of Executive involving or affecting Employer;
(e) Any gross
negligence, or any willful or intentional act or omission of
Executive having the effect or reasonably likely to have the effect
of injuring the reputation, business or business relationships of
Employer in a material way;
(f) Any willful or
intentional breach by Executive of a fiduciary duty to
Employer;
(g) Except as
otherwise specifically provided in this Section 4.3 ,
Executive’s material violation or breach of Employer’s
standard business practices and policies;
(h) Any court
order or settlement agreement that prohibits Executive’s
continued employment with Employer; or
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(i) Any material
breach by Executive not covered by any of the above clauses
(a) through (h) above of any material term, provision or
condition of this Agreement.
Notwithstanding
any of the foregoing, “ Cause ” shall not be
deemed to exist unless and until Employer provides Executive with
(A) at least ten (10) days prior written notice of its
intention to terminate employment for Cause, together with a
written statement describing the nature of the Cause, including the
clause or clauses of this definition that Employer deems
applicable, and (B) if the item constituting Employer’s
“Cause” for termination of Executive is within the
scope of clauses (a) , (b) , (g) or (i)
above, thirty (30) days to cure any acts or omissions on which the
finding of Cause is based. If Executive cures, in accordance with
the terms of the written notice, the acts or omissions on which the
finding of Cause is based, Employer shall not have Cause to
terminate Executive’s employment under this
Agreement.
For purposes of
this Section 4.3 , no act, or failure to act, on
Executive’s part will be considered “dishonest,”
“willful” or “intentional” unless done, or
omitted to be done, by Executive in bad faith and without
reasonable belief that Executive’s action or omission was
in or not opposed to, the
best interest of Employer. Any act, or failure to act, based upon
authority given pursuant to a resolution duly adopted by the Board
or based upon the advice of counsel for Employer will be
conclusively presumed to be done, or omitted to be done, by
Executive in good faith and in the best interests of Employer.
Furthermore, the term “Cause” will not include ordinary
negligence or failure to act, whether due to an error in judgment
or otherwise, if Executive has exercised substantial efforts in
good faith to perform the duties reasonably assigned or appropriate
to the position.
ARTICLE 5
PAYMENTS UPON TERMINATION
5.1
Compensation during Disability . During any period in which
Executive fails to perform Executive’s duties under this
Agreement as a result of Executive’s incapacity due to
physical or mental illness or bodily injury or disease, Executive
will continue to receive all Base Salary and other compensation and
benefits to which Executive is otherwise entitled under this
Agreement and any Plan through Executive’s Date of
Termination, but only to the extent that Executive is not receiving
substantially equivalent benefits under any Plan maintained by
Employer.
5.2
Compensation Until Date of Termination of Employment . If
Executive’s employment under this Agreement is terminated,
then Employer will pay Executive the Base Salary through the Date
of Termination, plus any other amounts which Executive has earned,
and to which Executive therefore is entitled, prior to the Date of
Termination under this Agreement and under any Plan as provided
under the Plan, provided that Executive continues to perform duties
in accordance with Article 2 .
5.3 Payments
Following Termination of Employment by Employer Without Cause .
In the event Executive’s employment under this Agreement is
terminated by Employer without Cause, and provided Executive shall
first execute a written release in a form reasonable satisfactory
to Employer and consistent with this Section 5.3 (the
“ Release Agreement ”), and provided further
that Executive has not exercised rights to revoke or rescind the
release of claims under to the Release Agreement, then Employer
shall provide to Executive the following benefits:
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(a) Separation
Pay Benefits . Employer will pay to Executive, as separation
pay, which Executive has not earned and to which Executive is not
otherwise entitled, an amount equal to eleven (11) months of
Executive’s monthly Base Salary in effect as of the Date of
Termination, in addition to the Base Salary due during the thirty
(30) day Notice of Termination period set forth in
Section 4.1 . That portion, if any, of such separation
pay as is equal to the amount that can constitute pay under a
“separation pay plan” under Section 409A of the
Internal Revenue Code of 1986, as amended from time to time or any
successor legislation, as well as Treasury Regulations and guidance
issued thereunder (collectively, “ Code
Section 409A ”) shall be made to Executive in equal
weekly payments for eleven (11) months. The first payment of
benefits under the foregoing sentence will commence on the first
regular payroll date of Employer as soon as practicable following
sixteen (16) days after Executive’s execution of the
Release Agreement, provided that Executive has not exercised rights
to revoke or rescind the release of claims as provided in the
Release Agreement. That portion, if any, of such separation pay as
exceeds the amount that can constitute pay under a
“separation pay plan” under Code Section 409A
shall be made to Executive in equal weekly payments for twelve
(12) months. The first payment of benefits under the foregoing
sentence will commence on the first regular payroll date of
Employer following the six (6) month anniversary of the date
of Executive’s “separation from service,” as
defined in Code Section 409A, provided that Executive has not
exercised rights to revoke or rescind the release of claims as
provided in the Release Agreement. Provided, however, that in the
event any portion of the payments due under this
Section 5.3(a) would result in adverse tax consequences
to Executive under Code Section 409A, taking into account all
amounts otherwise payable to Executive under this Agreement, then,
to such extent, all or such portions of any payment under this
Section 5.3(a) shall be delayed until the later of
(i) the time of payment set forth above or (ii) the first
regular payroll date of Employer following the six (6) month
anniversary of the date of Executive’s “separation from
service,” as defined in Code Section 409A (or
Executive’s death, if earlier). The initial payment shall
include all payments (without interest) that would have been made
had payment of benefits commenced as otherwise provided in this
Section 5.3(a) .
(i) If Executive
(or any individual receiving group health Plan benefits through
Executive) is eligible under applicable law to continue
participation in Employer’s group health Plan following the
Date of Termination and elects to continue these benefits, Employer
will, for a period of up to seventeen (17) months commencing
as of the Date of Termination, continue to pay Employer’s
share of the cost of these benefits as if Executive remained
continuously employed with Employer throughout such period but only
while Executive or such other individual continues to pay the
balance of such cost and Executive or the person who elected
continuation coverage is not eligible for coverage under any other
employer’s group health plan.
(ii) Employer will
pay for all reasonable expenses of a reputable outplacement
organization selected by Executive, but not to exceed twelve
thousand dollars ($12,000.00) in the aggregate that are incurred
during the one (1) year period commencing as of the Date of
Termination, by direct payment to providers or by reimbursement to
Executive within the calendar year after the end of the calendar
year
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in which the
expense was incurred; provided, however, that Executive must
request reimbursement at least thirty (30) days before the end
of that calendar year.
(iii) Except as
otherwise provided in Section 5.2(a) , and subject to
any plan or program adopted by Employer after the date hereof,
presuming that Employee, on the Date of Termination, is receiving
from Employer an automobile allowance under Employer’s
related program, a lump sum payment on the six (6) month
anniversary of the date of Executive’s “separation from
service,” as defined in Code Section 409A (or
Executive’s death, if earlier), in the amount equal to six
(6) times the monthly allowance provided under such
program.
(c) Previously
Earned Bonus . Employer will pay to Executive any unpaid
management incentive bonus that Executive earned a right to receive
as of the last day of the fiscal year ending prior to
Executive’s Date of Termination, with payment being made in
accordance with the terms of the applicable Plan.
5.4 No
Additional Pay/Benefits . Except as specifically set forth
above and except as provided in Article 6 , no
post-termination payments or benefits will be provided to Executive
following the Date of Termination of Executive’s employment,
except as otherwise provided under any Plan in which Executive is a
participant. No 401(k) contributions or contributions to any other
Plan will be paid by Employer based on post-termination separation
pay. Further, Executive will not be entitled to an incentive award
under Employer’s incentive Plans or any other bonus for any
fiscal year, or part thereof, during which post-termination
separation pay is paid.
5.5 No
Mitigation . Executive will not be required to mitigate
Employer’s payment obligations under this
Article 5 by making any efforts to secure other
employment, and Executive’s commencement of employment with
another employer will not reduce the obligations of Employer under
this Article 5 .
ARTICLE 6
CHANGE IN CONTROL
6.1 Definitions
Relating to a Change in Control . The following terms will have
the meanings set forth below; unless the context clearly requires
otherwise:
(a) “
1934 Act ” will mean the Securities Exchange Act of
1934, as amended (or any successor provision), and applicable
regulations.
(b) “
Beneficial Ownership ” by a person or group of persons
will be determined in accordance with Regulation 13D (or any
similar successor regulation) promulgated by the Securities and
Exchange Commission pursuant to the 1934 Act. Beneficial Ownership
of an equity security may be established by any reasonable method,
but will be presumed conclusively as to any person who files a
Schedule 13D report with the Securities and Exchange
Commission reporting the ownership.
(c) “
Change in Control ” means the occurrence of any of the
following events:
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(i) Any person or
group of person
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