Agreement Relating to Employment and Post-Employment Competition - ARAMARK Corp. and Barbara A. Austell
ARAMARK CORPORATION
AGREEMENT RELATING TO EMPLOYMENT AND
POST-EMPLOYMENT COMPETITION
This Agreement is between the undersigned individual, Barbara A. Austell,
("Employee") and ARAMARK CORPORATION ("ARAMARK").
RECITALS
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A. ARAMARK is the leading provider of managed services to business and
industry, private and public institutions, and the general public, in the
following business segments: food, leisure and support services; health
and education services; magazine and book services; and uniform services.
B. ARAMARK has a proprietary interest in its business and financial plans and
systems, methods of operation and other secret and confidential
information, knowledge and data ("Proprietary Information") which
includes, but is not limited to, annual and strategic business plans;
financial plans, reports and systems including, profit and loss statements
and other information regarding costs, profits, sales and the financial
condition of ARAMARK and its business units; management development
reviews, including information regarding the capabilities and experience
of ARAMARK employees; information regarding ARAMARK*s relationships with
its clients, customers, and suppliers and prospective clients, customers
and suppliers; and technical data and know-how, including policy and
procedure manuals, computer programs, recipes, accounting forms and
procedures and human resource policies and procedures, all of which
information is not publicly disclosed and is considered by ARAMARK to be
confidential trade secrets.
C. Employee shall be employed as Senior Vice President, Finance and Treasurer
and shall have access to ARAMARK*s Proprietary Information, directly in
the course of Employee*s employment, and indirectly through interaction
with and presentations by other senior managers at the Executive
Leadership Institute, Executive Corps meetings, President*s Council
meetings, Chairman*s Council meetings and the like, and ARAMARK will
encourage Employee to develop personal relationships with ARAMARK*s
clients, prospective clients and suppliers.
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D. ARAMARK will be vulnerable to unfair post-employment competition by
Employee since Employee will have access to and knowledge of ARAMARK*s
Proprietary Information and will have a personal relationship with
ARAMARK*s clients, prospective clients and suppliers.
E. In consideration of employment, the severance and other post-employment
benefits provided for herein, Employee is willing to enter into this
Agreement with ARAMARK as a condition of employment pursuant to which
Employee will limit Employee*s right to compete against ARAMARK following
termination of employment on the terms set forth in this Agreement.
NOW, THEREFORE, intending to be legally bound, the parties agree as
follows:
ARTICLE 1. TITLE; REPORTING RELATIONSHIP; BASE SALARY; BONUS (including sign-up
bonus); STOCK; AUTOMOBILE; RELOCATION; TERM OF EMPLOYMENT: The terms of the
"Offer Details, Barbara A. Austell" previously sent to Employee which is
attached as EXHIBIT A are incorporated by reference to the same extent as if
those terms were restated in this document in their entirety. However, the Title
and Reporting Relationship may change during the term, provided the Title and
the person to whom Employee reports are comparable to the initial Title and
Reporting Relationship and there is a bona fide reason for such change.
ARTICLE 2. NON-DISCLOSURE AGREEMENT: ARAMARK shall, in the course of employment,
provide and confide to Employee ARAMARK*s Proprietary Information developed at
great expense by ARAMARK and which Employee recognizes to be unique assets of
ARAMARK*s business. Employee shall not, during or after the term of employment,
directly or indirectly, in any manner utilize or disclose to any person, firm,
corporation, association or other entity, except where required by law, any such
Proprietary Information which is not generally known to the public or recognized
as standard practice in the industries in which ARAMARK is engaged.
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ARTICLE 3. NON-COMPETITION AGREEMENT:
A. Subject to Article 3.B. below, Employee, for a period of two years
following the voluntary or involuntary termination of employment, shall
not, without ARAMARK*s written permission, directly or indirectly, become
employed by (as an employee, consultant or otherwise), or acquire or
maintain any ownership interest in any Business which is similar to or
competitive with that conducted by or developed for later implementation
by ARAMARK at any time during the term of Employee*s employment, provided,
however, if Employee*s employment is involuntarily terminated by ARAMARK
for any reason other than good and sufficient cause, the term of the
non-competition provision set forth herein, will be modified to the longer
of (i) one year, (ii) the number of months Employee receives severance
payments or (iii) the number of months Employee is entitled to receive
severance payments pursuant to Article 6.A. below. For purposes of this
Agreement, "Business" shall be defined as a person, corporation, firm,
partnership, joint venture or other entity.
B. The provision set forth in Article 3.A. above, shall apply to (i) all
fifty states, and (ii) each foreign country, possession or territory in
which ARAMARK may be engaged in business as of the effective date of
termination or at any time during the twelve month period prior thereto.
Further, notwithstanding anything in this Agreement to the contrary,
Article 3.A. above shall not limit Employee*s right to engage in any
business or activity if such business or activity is unrelated to the type
of business or activity conducted by the business segment or segments for
which Employee directly or indirectly provided services during the
twenty-four month period preceding Employee*s effective date of
termination unless Employee otherwise directly or indirectly acquired
knowledge of Proprietary Information for such business segment or segments
at any time during the twenty-four month period preceding Employee*s
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effective date of termination. By way of example, but not limitation, if
Employee provided services to one of the business units of The ARAMARK
Food and Support Services Group or The ARAMARK Leisure Services Group,
Employee would be precluded during the applicable time period from being
employed by any Business providing food, leisure and support services
(irrespective of the particular ARAMARK business unit that employed
Employee) but Employee would not be precluded from working for a
competitor in the magazine and book distribution business or uniform
rental business, unless Employee had acquired knowledge of Proprietary
Information for ARAMARK*s Magazine and Book Distribution business or
Uniform Rental businesses within twenty-four months prior to termination,
as a result of task force assignments, special projects, attendance at the
Executive Leadership Institute, Executive Corps meetings, President's
Council meetings, Chairman*s Council meetings, and the like.
Further, notwithstanding anything in this Agreement to the contrary,
ARAMARK agrees that if Employee resigns as a result of a material breach
of the obligation that ARAMARK has assumed under this Agreement, (after
being given a reasonable opportunity to cure such breach then (i) the
non-competition provisions set forth in Article 3.A. above shall not apply
and shall be deemed void and (ii) Employee will be entitled to the
severance and post-employment benefits set forth in Article 6.A. below to
the same extent as if Employee were terminated by ARAMARK without cause).
C. Employee acknowledges that enforcement of the provisions set forth in this
Article 3 (will apply only if there is a violation of Article 3.A.) will
not unduly impair Employee*s ability to obtain other employment following
the termination (voluntary or involuntary) of Employee*s employment with
ARAMARK.
ARTICLE 4. NON-SOLICITATION OF EMPLOYEES: Following Termination of Employment
for any reason, Employee shall not for a period of two years, directly or
indirectly, at any time, in any manner, induce or attempt to influence any
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employees of ARAMARK to terminate their employment with ARAMARK. During the term
of employment, Employee shall not induce or attempt to influence any employee of
ARAMARK to terminate employment with ARAMARK unless Employee, in good faith,
determines that it is in the interest of ARAMARK to do so.
ARTICLE 5. REMEDIES: Employee acknowledges that in the event of any violation by
Employee of the provisions set forth in Articles 1, 2, 3 or 4 above, ARAMARK
could sustain serious, irreparable and substantial harm to its business, the
extent of which could be difficult to determine and impossible to fully remedy
by an action at law for money damages. Accordingly, Employee agrees that, in the
event of such violation or threatened violation by Employee, ARAMARK shall be
entitled to seek an injunction before trial before any court of competent
jurisdiction as a matter of course upon the posting of not more than a nominal
bond, in addition to all such other legal and equitable remedies as may be
available to ARAMARK. If ARAMARK is required to enforce the provisions set forth
in Articles 3 and 3 above by seeking an injunction, Employee agrees that the
relevant time periods set forth in Articles 3 and 4 shall commence with the
entry of the injunction. Employee further agrees that, in the event any of the
provisions of this Agreement are determined by a court of competent jurisdiction
to be contrary to any applicable statute, law or rule, or for any reason
unenforceable as written, such court may modify any such provisions so as to
permit enforcement thereof as modified.
ARTICLE 6. POST-EMPLOYMENT BENEFITS:
A. If Employee is terminated by ARAMARK for any reason other than good and
sufficient cause, Employee shall be entitled to the following
post-employment benefits:
1. Severance Pay: Employee shall receive severance payments equivalent
to Employee*s monthly base salary as of the effective date of
termination for twelve (12) months.
Severance payments shall commence with the Employee*s effective date
of termination and shall be made in accordance with ARAMARK*s normal
payroll cycle. The period during which employee receives severance
payments shall be referred to as the "Severance Pay Period".
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2. Other Post Employment Benefits:
a. Basic Group medical and life insurance coverages shall continue
under then prevailing terms during the Severance Pay Period.
Employee*s share of the premiums will be deducted from
Employee*s severance payments. Basic Group medical coverage
provided during such period shall be applied against ARAMARK*s
obligation to continue group medical coverage under the
Consolidated Omnibus Budget Reconciliation Act of 1985
("COBRA"). Upon termination of basic group medical and life
coverages, Employee may convert such coverages to individual
policies to the extent allowable under plan provisions.
b. Employee*s leased vehicle shall be made available to Employee
through the Severance Pay Period at which time Employee has the
option to either purchase the vehicle in accordance with the
Executive Corps plan then in effect or return it to ARAMARK.
c. Employee*s eligibility to receive or participate in all other
benefit and compensation plans, including, but not limited to
the Management Incentive Bonus, Long Term Disability, Stock
Unit Retirement and any stock option or ownership plans, shall
terminate as of the effective date of Employee*s termination
unless provided otherwise under the terms of a particular plan,
provided, however, participation in plans and programs made
available solely to Executive Corps members, including, but not
limited to the Executive Corps Medical Plan, shall cease as of
the effective date of termination or the date Employee*s
Executive Corps membership ceases, whichever occurs first.
Employee, however, shall have certain rights to continue the
Executive Corps Medical Plan under COBRA.
B. Termination for "Good and Sufficient Cause" shall be defined as
termination for such things as material fraud or illegal activity,
repeated willful failure to perform assigned duties, willful violation of
a material provision of ARAMARK*s Business Conduct Policy, or
intentionally working against the best interest of ARAMARK in a manner
which could result in significant economic harm to ARAMARK.
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C. If Employee is terminated by ARAMARK for reasons other than Good and
Sufficient cause, Employee will receive the severance payments and other
post-employment benefits during the Severance Pay Period even if Employee
commences other employment during such period provided such employment
does not violate the terms of Articles 3 or 4. Employee shall not be under
any obligation to seek any employment.
D. ARAMARK reserves the right to terminate all severance payments and other
post-employment benefits if Employee violates the covenants set forth in
Articles 2, 3 and 4 above.
E. ARAMARK expressly reserves the rights to revoke or amend, in whole or in
part, the severance provisions set forth in this agreement at any time,
for any reason, provided, however, in the event Employee is terminated for
reasons other than Good and Sufficient cause subsequent to such revocation
or amendment, Employee shall be entitled to no less than the monthly
severance payments which Employee would have received under this Agreement
had he been terminated by ARAMARK on the date ARAMARK elected to revoke or
amend the severance provisions.
ARTICLE 7. TERM OF EMPLOYMENT: ARAMARK agrees to employ Employee for an initial
term of two years as set forth in EXHIBIT A hereof after which Employee
acknowledges that ARAMARK shall have the right to terminate Employee*s
employment at any time for any reason whatsoever, provided, however, that any
termination by ARAMARK after the initial two year term of employment, for
reasons other than good and sufficient cause, shall result in the severance and
the post-employment benefits described in Article 6 above, to become due in
accordance with the terms of this Agreement subject to the conditions set forth
in this Agreement. Employee further acknowledges that the severance payments
made and other benefits provided by ARAMARK are in full satisfaction of any
obligations ARAMARK may have resulting from ARAMARK*s exercise of its right to
terminate Employee*s employment, except for those obligations which are intended
to survive termination such as the payments to be made pursuant to retirement
plans and conversion of insurance.
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ARTICLE 8. MISCELLANEOUS:
A. As used throughout this Agreement, ARAMARK includes ARAMARK CORPORATION
and its subsidiaries and affiliates or any corporation, joint venture, or
other entity in which ARAMARK CORPORATION or its subsidiaries or
affiliates has an equity interest in excess of ten percent (10%).
B. This Agreement shall supersede and substitute for any previous
post-employment or severance agreement between Employee and ARAMARK, and
is entered into in consideration of the mutual undertakings of the parties
and the cancellation of all previous agreements.
C. The terms of this Agreement shall be governed by the laws of the
Commonwealth of Pennsylvania.
D. Any dispute hereunder (except for disputes relating to alleged breaches of
Articles 3 and 4) shall be exclusively resolved by arbitration in
Philadelphia, Pennsylvania in accordance with the rules of the American
Arbitration Association, the award of the Arbitrator shall be final and
binding on both parties and a judgment for the award may be entered in any
court having jurisdiction thereof.
E. Employee shall be entitled to coverage under ARAMARK's then existing
Director and Officers policies in effect from time to tome to the extent
such policies cover other officers of ARAMARK and Employee shall be
entitled to be indemnified and held harmless to the maximum extent set
forth in the then existing ARAMARK Corporate Governance documents
applicable to its officers and employees.
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IN WITNESS WHEREOF, and intending to be legally bound, the parties
hereto have caused this Agreement to be signed.
Date: July 1, 1996 ARAMARK CORPORATION
By: /s/ Brian G. Mulvaney
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Brian G. Mulvaney
By: /s/ Barbara A. Austell
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Barbara A. Austell
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EXHIBIT "A"
OFFER DETAILS
BARBARA A. AUSTELL
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Title: Senior Vice President, Finance and Treasurer
Corporate Officer
Executive Corps Member
Reports To: James E. Ksansnak, Executive Vice President, CFO
Base Salary: $250,000
Bonus: $ 95,300 Guideline
$100,000 Guarantee First Year
One-time $300,000 with Option to Defer
Sign On Bonus:
Stock: 50,000 Shares - Installment Stock Purchase Opportunity
125,000 Shares - Cumulative Stock Purchase Opportunity
Car: Per Policy
Relocation: Full relocation, third party assistance if necessary
Employment
Agreement We will provide you with an Employment Agreement for a
two year period.