Exhibit 10.4
NON-COMPETITION AND CONFIDENTIALITY AGREEMENT
THIS AGREEMENT, made and executed as of the 8th day of
February , 1999, by and between
G&K SERVICES, INC. , a Minnesota corporation
(hereinafter referred to as "Employer").
and
Xxxxxxx X. Xxxxxx (hereinafter referred to as "Employee"),
WITNESSETH:
WHEREAS, Employer is a member of a group of affiliated corporations which
includes G&K Services, Inc., a Minnesota corporation, and all its subsidiaries
whether now existing or hereafter formed or acquired, which group is hereinafter
referred to as the "G&K Group";
WHEREAS, Employee either [cross out (a) or (b) as applicable]:
(a) desires to enter the employ of Employer, and may hereafter be employed
from time-to-time by other members of the G&K Group; or
Chief Financial Officer
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(Position)
(b) is and has for some time been a valuable and a key employee of one or
more members of the G&K Group; and Employer desires to increase the
Employee's compensation, employee fringe benefits, level of
responsibility and authority or otherwise improve the terms of
Employee's employment in the following manner [fill in changed
employment arrangements]:
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which change in employment terms shall be hereinafter referred to as
the Employee's "Increased Benefits";
WHEREAS, Employer and Employee have mutually rescinded and cancelled all
prior agreements between them with respect to Employee's employment, except
those agreements applicable to all employees similarly situated with Employee;
and
WHEREAS, Employer desires to assure Employee's dedication by rewarding
faithful and important contributions to Employer's business, and that of the G&K
Group as a whole, and to preserve the value of such contributions by securing
from Employee reasonable restriction against certain competitive activities;
NOW, THEREFORE, in consideration of the foregoing, the mutual promises set
forth in this Agreement and other valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Employer and Employee agree as
follows:
1. EMPLOYMENT. Employer agrees to and does employ the Employee for an
indefinite term, for such duties, compensation and other terms and conditions as
shall be mutually agreed upon from time to time between Employer and Employee,
including any Increased Benefits described above. Such employment may be
terminated
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at any time by Employer or Employee for any reason and shall also terminate
on death, disability or retirement of Employee. In connection with such
employment, Employer agrees to acquaint Employee with any customers and
accounts of Employer (or other members of the G&K Group) upon whom the
Employee may be asked to call, solicit or otherwise serve.
If Employee is or becomes a sales or service representative of
Employer including a route driver, selling is a key duty which will require
Employee to have extensive sales contacts with Employer's customers and
potential customers. Employee agrees to solicit orders for, or assist in (or
both) the delivery of towels, garments, mats, cleaning supplies, and other
laundry and linen services provided by the Employer, and perform such other
duties as the Employer may require of Employee from time to time. If so
employed, Employee also agrees (1) to use his or her best efforts to obtain and
retain trade for the Employer and (2) to faithfully work for the Employer in the
performance of any assigned duties as a sales or service representative of the
Employer.
2. EMPLOYEE BENEFITS. Employee shall receive medical and hospitalization
insurance, pension and other benefits, to the extent such benefits are
consistent with Employer's general practices and policies, or as otherwise
agreed between Employer and Employee.
3. RESTRICTIVE COVENANTS. In consideration of the Employee's employment
by Employer, or Employer's willingness to grant to Employee any Increased
Benefits defined earlier in this Agreement, as the case may be, and the
continued employment of Employee by Employer, Employee hereby covenants and
agrees as follows:
A. PROTECTION OF CONFIDENTIAL INFORMATION. While in the employ of
any member of the G&K Group or at any time after termination of such employment,
Employee shall not (1) directly or indirectly use for Employee's own benefit, or
(2) disclose, provide any person or entity with, or permit any person or entity
access to, any information concerning the G&K Group's customer lists or routes,
pricing, purchasing, inventory, business methods, training manuals or other
materials developed for G&K's employee training programs, or any other
non-public material information, relating to the business of the G&K Group,
except in the usual course of Employee's duties for a member of the G&K
Group. Furthermore, except in the usual course of Employee's duties for a
member of the G&K Group, Employee shall not at any time (1) remove any data
or material from the offices of any member of the G&K Group, (2) record any
of the contents of said data or material or (3) use for Employee's own
benefit or disclose to any one directly or indirectly competing with a member
of the G&K Group any information, data or materials obtained from the files
of the G&K Group.
Upon termination of employment, Employee shall collect and
return, to the member (or its authorized representative) of the G&K Group last
employing Employee all original copies and all photocopies of customer lists,
prospective customer lists, contracts, books, records, training manuals,
correspondence, business and financial records, operations reports or any part
thereof acquired by Employee in the course of employment by any member of the
G&K Group.
B. CONFLICTS DURING EMPLOYMENT. While in the employ of any member
of the G&K Group, Employee shall not:
(1) solicit, induce or encourage any other G&K Group Employee to
violate any term of their employment contract.
(2) be at the same time employed by a competing company.
The foregoing restrictions shall survive both termination of this
Agreement and termination of Employee's employment by any member of the G&K
Group.
C. COVENANT NOT TO COMPETE. During a period of eighteen (18) months
from and after the date of termination of Employee's employment with the G&K
Group for any reason, Employee shall not, anywhere within the geographic area in
which Employer (or any other member of the G&K Group which employed Employee
within three (3) years prior to such date) is conducting its businesses as of
such date (the "Restricted Area"), directly or indirectly:
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(1) have any ownership interest in, financial participation in,
or become employed by any competitor of any member of the
G&K Group in the Restricted Area; or
(2) call upon, solicit, or attempt to take away any customers or
accounts of the G&K Group, with whom the Employee became
acquainted as a result of employment of any member of the
G&K Group; or
(3) solicit, induce or encourage any employee of the G&K Group
to violate any term of their employment contract with the
G&K Group, or to assist any other person or entity to do so.
The foregoing competitive restrictions shall survive termination
of this Agreement and shall be effective and enforceable for eighteen (18)
months following termination of Employee's employment with the member of the G&K
Group last employing Employee, unless such period is extended for an additional
length of time pursuant to this Agreement.
D. REMEDIES. Employee acknowledges that irreparable harm will
result to the G&K Group, its business and property, in the event of a breach of
this Agreement by Employee, and that any remedy at law would be inadequate; and
therefore, in the event this Agreement is breached by Employee, the affected
members of the G&K Group shall be entitled, in addition to all other remedies or
damages at law or in equity, to temporary and permanent injunctions and orders
to restrain the violation hereof by Employee and all persons or entities acting
for or with Employee.
In the event of any breach of the foregoing restrictions,
Employee agrees to pay the reasonable attorneys' fees incurred by Employer in
pursuing any of its rights and remedies with respect to such breach, in addition
to the actual damages sustained by Employer as a result thereof.
Furthermore, in the event of a breach of Employee's covenant not
to compete, the eighteen (18) month period stated therein shall be automatically
extended and shall remain in full force during the period of time such breach
continues.
4. SEVERABILITY. It is agreed that each of the provisions contained
herein is severable and, if any provision hereof shall to any extent be invalid
or unenforceable, the remainder of this Agreement, including such provision in
circumstances other than those in which it is held invalid or unenforceable,
shall not be affected thereby and shall be valid or enforceable to the fullest
extent permitted by law; provided, however, that if any provision hereof is held
to be invalid or unenforceable because of its duration or the territory covered,
Employee and Employer agree to be bound by any reasonable period of time or
reasonable territory, or both, as the case may be, determined by a court of
competent jurisdiction.
5. WAIVER. Any waiver by Employer, or any other member of the G&K Group,
of one or more breaches of this Agreement by Employee shall not prevent
subsequent enforcement of the Agreement by any of them or be deemed a waiver by
any of them of any subsequent breach of this Agreement.
6. ENTIRE AGREEMENT. This instrument contains the entire agreement of
the parties hereto and may not be modified orally, but only by an agreement in
writing signed by both parties.
7. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
Employer and Employee and shall inure to the benefit of Employee, the legal
representatives of Employee and the successors and assigns of Employer and each
member of the G&K Group, but shall not be assignable by Employee. In the event
Employee's employment is transferred between members of the G&K Group, this
Agreement shall be deemed to have been assigned to the member currently
employing Employee.
8. GOVERNING LAW. This Agreement will be governed by and interpreted
under the laws of the State of Minnesota.
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9. VOLUNTARY AGREEMENT. Employee enters into this Agreement voluntarily
and after having had the opportunity to consult with an advisor of his/her
choice.
IN WITNESS WHEREOF, Employer and Employee have duly executed this Agreement
as of the day and year first above written.
G&K SERVICES, INC.
a member of the G&K Group
By s/Xxxxxxx X. Xxxxxx By s/Xxxxxx Xxxxxxx
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Xxxxxxx X. Xxxxxx Its Xxxxxx Xxxxxxx
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(Print Name) MANAGER
EMPLOYEE
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