Exhibit 10.39
XXXXXXXX CORPORATION
RETENTION AND TRANSITION EMPLOYMENT AGREEMENT
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This agreement ("Agreement") has been entered into as of this
29th day of January, 2004 (the "Effective Date"), by and between Xxxxxxxx
Corporation, a Missouri corporation ("Xxxxxxxx" or "Company"), and Xxxxxx X.
Xxxxxxxx, an individual ("Xxxxxxxx").
WHEREAS, Xxxxxxxx currently employs Xxxxxxxx as Vice President
-- Information Systems, pursuant to that certain Employment Agreement, as
amended, dated the 1st day of February, 2003, (the "Current Employment
Agreement"); and
WHEREAS, the Company is in the process of evaluating and
pursuing strategic alternatives for its Life Uniform Stores business,
including the possible sale of those operations; and
WHEREAS, additionally, pursuant to a reorganization and
transition plan presented to and approved by the Board of Directors of
Xxxxxxxx (the "Board"), certain corporate headquarters functions, including
the information systems function for which Xxxxxxxx is responsible, will,
over the course of the upcoming several months, be reorganized and relocated
to the Company's division headquarters facility in the Atlanta, Georgia
metropolitan area; and
WHEREAS, both parties recognize and acknowledge that, following
such reorganization and relocation of those corporate headquarters
functions, and implementation of strategic alternatives for the Company's
Life Uniform Store business, Xxxxxxxx'x services as Vice President -
Information Services, will no longer be required; and
WHEREAS, due to his familiarity with the Company's information
systems activities and his past experience with the transition,
reorganization and relocation of information systems activities, Xxxxxxxx'x
continued leadership will help insure the Company's success in completing
these plans; and
WHEREAS, Xxxxxxxx is willing to delay, until August 31, 2004,
his resignation as Vice President - Information Systems, and to remain
employed by Xxxxxxxx until that time to assist in completing the
implementation of these transition plans; and
WHEREAS, Xxxxxxxx and Xxxxxxxx wish to agree upon the terms and
conditions of Xxxxxxxx'x continued employment during this transition period,
and his resignation as of August 31, 2004, in this Agreement which will
supercede in its entirety the Current Employment Agreement (as identified
above).
NOW THEREFORE, in consideration of the mutual promises herein
contained, the parties hereto agree as follows:
SECTION 1: TERM OF AGREEMENT
1.1 CONTINUED EMPLOYMENT. During the period commencing
on the Effective Date of this Agreement and ending August 31, 2004, (the
"Employment Expiration Date") (said period being referred to herein as the
"Continued Employment Period"), Xxxxxxxx will continue to be employed by
Xxxxxxxx as Vice President -- Information Systems in accordance with the
terms, conditions and provisions of this Agreement.
SECTION 2: TERMS AND CONDITIONS OF CONTINUED EMPLOYMENT.
2.1 DUTIES AND RESPONSIBILITIES. During the Continued
Employment Period, Xxxxxxxx will be subject to the reasonable directions of
the Chief Financial Officer or Chief Executive Officer of Xxxxxxxx, and the
Board. Xxxxxxxx shall have such authority and shall perform such duties as
are specified in the bylaws of Xxxxxxxx for the office and position to which
he has been appointed hereunder. Xxxxxxxx agrees to devote such of his time,
attention and energy to the business of Xxxxxxxx as may be required to
perform the duties and responsibilities assigned to him to the best of his
ability and with reasonable diligence. It is understood and agreed that,
while Xxxxxxxx is expected to continue to perform such duties and
responsibilities similar to those that he has performed previously during
his employment as Vice President -- Information Systems, he is expected to
devote approximately one-half of his time and effort to the evaluation and
implementation of strategic alternatives relating to Angelica's Life Uniform
Stores business segment.
2.2 COMPENSATION. During the Continued Employment Period,
Xxxxxxxx'x base salary will continue at the annual rate of $168,000, payable
in accordance with Angelica's current payroll practices. Additionally,
except as otherwise provided in this Section 2.2, and otherwise subject to
the terms, conditions and provisions of this Agreement, Xxxxxxxx will be
entitled to continue his participation in those executive compensation plans
and programs in which he participated immediately prior to the commencement
of the Continued Employment Period. Such continued participation will
continue to be in accordance with the terms and conditions of such plans and
programs and of this Agreement. It is expressly understood and agreed,
however, that, as of the Effective Date of this Agreement, Xxxxxxxx will no
longer be entitled to participate in, or to earn incentive compensation
under, either the Company's short-term or long-term incentive compensation
plans, or under any other plan or program, whether or not available to other
employees or officers of Xxxxxxxx.
2.3 BENEFITS. During the Continued Employment Period, and
subject to the provisions of Section 2.2 above, Xxxxxxxx will continue to be
entitled to those health and welfare benefits generally available to other
employees of Xxxxxxxx, and to which Xxxxxxxx was entitled immediately prior
to the commencement of the Continued Employment Period, including Angelica's
healthcare and dental plans, Angelica's Retirement Savings Plan (401(k)),
Angelica's Mirror 401(k) and Deferred Compensation Plan, Angelica's
qualified pension plan, Angelica's AD&D plan and Angelica's life insurance
plan.
SECTION 3: RETENTION PAYMENTS.
3.1 RETENTION PAYMENTS. Pursuant to the terms of the Current
Employment Agreement, Xxxxxxxx was to be employed by Xxxxxxxx for a period
substantially beyond the Employment Expiration Date, and was to receive
compensation and benefits during that extended period, including the
opportunity to earn additional incentive compensation. In consideration for
Xxxxxxxx'x agreement to delay his resignation and continue his employment
until the Employment Expiration Date, and in consideration for his agreement
to forgo the opportunity to earn additional incentive compensation, Xxxxxxxx
agrees, that in addition to the compensation and benefits described in
Section 2 above, Xxxxxxxx is entitled to the following:
3.1.1 Not later than January 31, 2004, Xxxxxxxx
will pay Xxxxxxxx a lump-sum amount of $84,000,
less applicable taxes, withholdings and standard
deductions.
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3.1.2 Any restricted "Matching Shares" and "Elected
Shares" (as each term is defined in Angelica's
Stock Bonus and Incentive Plan), held by or on
behalf of Xxxxxxxx shall immediately vest as of
January 31, 2004.
3.1.3 Any stock options held by Xxxxxxxx which, as
of the Effective Date of this Agreement, have not
yet vested, will continue to vest during the
Continued Employment Period, and will be
exercisable, all in accordance with the terms and
conditions under which such options were granted.
SECTION 4: TERMINATION; BENEFITS UPON TERMINATION.
4.1 TERMINATION. Notwithstanding Section 1.1, or anything
else to the contrary contained in this Agreement, and subject to the
provisions of Section 4.2.1 below, Xxxxxxxx may terminate this Agreement,
and Xxxxxxxx'x employment hereunder, at any time during the Continued
Employment Period. Unless earlier terminated as provided herein, or unless
otherwise expressly agreed to by both parties in writing, this Agreement,
and Xxxxxxxx'x employment with Xxxxxxxx, shall terminate as of and effective
on the Employment Expiration Date of August 31, 2004.
4.2 BENEFITS UPON TERMINATION.
4.2.1 If, at any time prior to the Employment
Expiration Date, Xxxxxxxx terminates Xxxxxxxx'x
employment for any reason other than for Cause (as
that term is defined below), Xxxxxxxx will continue
to make payments to Xxxxxxxx for the remainder of the
Continued Employment Period equal to the compensation
amounts to be paid Xxxxxxxx pursuant to Section 2.2
above, less applicable taxes, withholdings and
standard deductions. For purposes of this Agreement,
the term "Cause", when used in connection with the
termination of Xxxxxxxx'x employment, means
termination based upon (i) Xxxxxxxx'x willful and
continued failure to substantially perform his duties
with Xxxxxxxx (other than as a result of incapacity
due to physical or mental condition), after written
demand for substantial performance is delivered to
Xxxxxxxx by Xxxxxxxx, which specifically identifies
the manner in which Xxxxxxxx has not substantially
performed his duties; (ii) Xxxxxxxx'x commission of
an act constituting a criminal offense involving
moral turpitude, dishonesty or breach of trust; or
(iii) Xxxxxxxx'x material breach of any provision of
this Agreement.
4.2.2 If, at any time prior to the Employment Expiration
Date, Xxxxxxxx'x employment is terminated by Xxxxxxxx for
any reason, or by Xxxxxxxx with Cause, Xxxxxxxx shall not
be entitled to receive from Xxxxxxxx, and Xxxxxxxx shall
have no further obligations to pay to Xxxxxxxx, any
further payments under this Agreement or otherwise,
except for such salary that is, as of the effective
date of any such termination, accrued but not yet
paid by Xxxxxxxx, and any benefits or payments to
which Xxxxxxxx might be entitled in accordance with
the terms and conditions of any benefit plan or
program in which Xxxxxxxx participated during his
employment by Xxxxxxxx.
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SECTION 5: CONSULTING SERVICES. During the ninety (90) day period
immediately following the Employment Expiration Date, and at no additional
cost to Xxxxxxxx, Xxxxxxxx will remain reasonably available, during normal
business hours, for periodic and occasional telephone consultation with
Xxxxxxxx with respect to those matters in which Xxxxxxxx was involved during
his employment with Xxxxxxxx, or with respect to such other matters as
Xxxxxxxx may have knowledge. Further, it is understood and agreed that, as
of and following the Employment Expiration Date, Xxxxxxxx may request that
Xxxxxxxx provide such additional consulting services to Xxxxxxxx, on an
independent contractor basis, of a nature, and for such period, as Xxxxxxxx
may, in its sole discretion, deem necessary or appropriate, if any. In the
event Xxxxxxxx requests such additional consulting services, the parties
will negotiate in good faith such mutually acceptable terms and conditions
under which such services will be provided, as well as the amount of any
consulting fees to be paid Xxxxxxxx for such services. Xxxxxxxx shall have
no obligation to request such consulting services and neither party shall be
obligated to enter into any such consulting arrangement except upon such
terms and conditions as are mutually agreeable and acceptable to each of
them.
SECTION 6: NON-COMPETITION AND CONFIDENTIALITY COVENANTS.
6.1 NON-COMPETE AGREEMENT. It is agreed that during the
period beginning on the Employment Expiration Date, or the effective date of
any earlier termination of Xxxxxxxx'x employment, and continuing for a
one-year period thereafter, Xxxxxxxx shall not, either for himself or on
behalf of any person, firm or corporation (whether for profit or otherwise)
serve, through any commercial venture or otherwise, as a partner, officer,
director, stockholder, advisor, employee, consultant, agent, salesman,
venturer or otherwise, in a business enterprise in the United States, Canada
or any other country in which Xxxxxxxx does business that is in substantial
direct competition with the business being conducted by Xxxxxxxx as of the
Employment Expiration Date or as of the effective date of any earlier
termination of Xxxxxxxx'x employment. This requirement, however, will not
limit Xxxxxxxx'x right to make passive investments in the capital stock or
other equity securities (not in excess of 5% of the total outstanding
capital stock or equity securities) of any corporation regularly traded on
any public securities exchange.
6.2 CONFIDENTIAL INFORMATION. Xxxxxxxx acknowledges that
he holds in a fiduciary capacity for the benefit of Xxxxxxxx all secret or
confidential information, knowledge or data relating to Xxxxxxxx or any of
its affiliated companies, and their respective businesses, which has been
obtained during his employment with Xxxxxxxx and which will not be or has
not become public knowledge (other than by acts of Xxxxxxxx or
representatives of Xxxxxxxx in violation of this Agreement). Xxxxxxxx will
not, without the prior written consent of Xxxxxxxx, or as may otherwise be
required by law or legal process, communicate or divulge any such
information, knowledge or data to anyone other than Xxxxxxxx and those
persons designated by Xxxxxxxx in advance of the disclosure. In no event
shall an asserted violation of this Section 6.2 constitute a basis for
deferring or withholding any amounts otherwise payable to Xxxxxxxx under
this Agreement.
6.3 REASONABLENESS OF RESTRICTIONS. Xxxxxxxx agrees that
the restrictions and the period and/or areas of restriction, as set forth in
this Section 6, are reasonably required for the protection of Xxxxxxxx and
its business, as well as the continued protection of Angelica's employees.
If any one or more of the covenants, agreements or provisions contained
herein shall be held to be contrary to the policy of a specific law, though
not expressly prohibited, or against public policy, or shall for any other
reason whatsoever be held invalid, then such particular covenant, agreement
or provision shall be null and void and shall be deemed separable from the
remaining covenants, agreements and provisions, and shall in no way affect
the validity of any of the other covenants, agreements and provisions
hereof. The parties hereto agree that in the event that either the length of
time or the geographic area set forth in Section 6.1 is deemed too
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restrictive in any court proceeding, the court may reduce such restrictions
to those which it deems reasonable under the circumstances.
6.4 EQUITABLE RELIEF. Any action by Xxxxxxxx contrary to
the restrictive covenants contained in this Section 6 may as a matter of
course be restrained by equitable or injunctive process issued out of any
court of competent jurisdiction, in addition to any other remedies provided
in law. In the event of the breach of Xxxxxxxx'x covenants as set forth in
this Section 6 and Angelica's obtaining of injunctive relief, the period of
restrictions set forth herein shall commence from the date of the issuance
of the order which enjoins such activity.
SECTION 7: MISCELLANEOUS.
7.1 FULL SETTLEMENT. Angelica's obligation to make payments
or to provide benefits and to otherwise perform its obligations under this
Agreement shall be in full settlement of all claims that Xxxxxxxx or his
beneficiaries may have against Xxxxxxxx involving the expiration or
termination of Xxxxxxxx'x employment with Xxxxxxxx.
7.2 NOTICE. For purposes of this Agreement, notices and all
other communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given when delivered or mailed by
certified or registered mail, return receipt requested, postage prepaid,
addressed to the respective addresses as set forth below; provided that all
notices to Xxxxxxxx shall be directed to the attention of the General
Counsel, or to such other address as one party may have furnished to the
other in writing in accordance herewith, except that notice of change of
address shall be effective only upon receipt.
Notice to Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
0000 Xxxxx Xxxx Xx.
Xx. Xxxxx, Xxxxxxxx 00000
Notice to Xxxxxxxx
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Xxxxxxxx Corporation
000 Xxxxx Xxxxx Xxxx Xxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: General Counsel
7.3 WAIVER. Xxxxxxxx'x or Angelica's failure to insist
upon strict compliance with any provision of this Agreement or the failure
to assert any right Xxxxxxxx or Xxxxxxxx may have hereunder shall not be
deemed to be a waiver of such provision or right or any other provision or
right of this Agreement and shall not operate or be construed as a waiver of
any subsequent breach of the same provision.
7.4 APPLICABLE LAW. This Agreement shall be governed by
and construed in accordance with the laws of the State of Missouri, without
reference to its conflict of law principles.
7.5 SUCCESSORS. This Agreement shall be binding upon and
inure to the benefit of any successor of Xxxxxxxx and any such successor
shall be deemed to be substituted for Xxxxxxxx under the
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terms of this Agreement. Xxxxxxxx shall require any successor (whether
direct or indirect, by purchase, merger, consolidation or otherwise) to all
or substantially all of the business and/or assets of Xxxxxxxx to assume
expressly and agree to perform the provisions of this Agreement as if no
such succession had taken place. As used in this Agreement, "Xxxxxxxx" shall
mean Xxxxxxxx as hereinbefore defined or any successor to Angelica's
business and/or assets which assumes and agrees to perform this Agreement.
7.6 ENTIRE AGREEMENT. This Agreement contains the entire
agreement of the parties with respect to the subject matter hereof and
supersedes any prior written or oral agreements, understandings, discussions
or negotiations with respect thereto, including but not limited to the
Current Employment Agreement.
7.7 WITHHOLDING. Xxxxxxxx may withhold from any amounts
payable to Xxxxxxxx under this Agreement any Federal, state or local taxes
as shall be required to be withheld under applicable law or regulation.
IN WITNESS WHEREOF, Xxxxxxxx and Xxxxxxxx, pursuant to the
authorization from its Board, have caused this Agreement to be executed in
its name on its behalf, all as of the day and year first above written.
/s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
XXXXXXXX CORPORATION
By /s/ Xxxxxxx X. X'Xxxx
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Xxxxxxx X. X'Xxxx
President and Chief Executive Officer
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