Exhibit 10(iii)A(64)
ASPIRATION ACHIEVEMENT INCENTIVE AWARD AGREEMENT
FOR OPERATING UNIT PRESIDENTS
THIS AGREEMENT, made as of the 1st day of May, 2000 (the "Grant Date"),
between National Service Industries, Inc., a Delaware corporation ("NSI"), and
NATIONAL SERVICE INDUSTRIES, INC. (GA), a Subsidiary of NSI (together, the
"Company"), and JAMES H. HEAGLE (the "Grantee").
WHEREAS, NSI has adopted the National Service Industries, Inc. Long-Term
Achievement Incentive Plan (the "Plan") in order to provide additional
incentives to certain officers and key employees of NSI and its Subsidiaries;
and
WHEREAS, the Grantee, as an executive of the above-referenced
Subsidiary, performs services with respect to the nsi chemicals operations of
the Company (the "Operations"); and
WHEREAS, the Committee responsible for administration of the Plan has
determined to grant to the Grantee an Aspiration Achievement Incentive Award as
provided herein.
NOW, THEREFORE, the parties hereto agree as follows:
1. Grant of Aspiration Award.
1.1 The Company hereby grants to the Grantee an Aspiration
Achievement Incentive Award (the "Award"), which has a value determined as
provided in Section 2 below based upon the performance of the Operations during
the Performance Cycle from September 1, 1998 to August 31, 2001. As provided in
the Plan, Grantee's right to payment of this Award is dependent upon Grantee's
continued employment in Grantee's current position with the Company, or in a
position with responsibilities of substantially similar value to the Company
during the Performance Cycle. Under certain circumstances as described below,
Grantee may be entitled to receive payment for some portion of the Award if
Grantee's employment terminates prior to the end of the Performance Cycle.
1.2 The Grantee hereby acknowledges receipt of a copy of the Plan
and agrees to be bound by all the terms and provisions thereof. This Agreement
shall be construed in accordance with, and subject to, the provisions of the
Plan (the provisions of which are hereby incorporated by reference) and, except
as otherwise expressly set forth herein, the capitalized terms used in this
Agreement shall have the same definitions as set forth in the Plan.
2. Performance Measure and Performance Levels.
The Committee has established the performance measure (the
"Performance Measure"), and award and performance levels set forth in Appendix A
attached hereto. The chart in Appendix A specifies a Commitment performance
level, at which the Commitment Level Award will be paid, an Aspiration
performance level, at or above which an Aspiration Level Award will be paid, and
a threshold performance level, at which a minimum incentive award will be paid
and below which no award will be paid. For each level of performance at or above
the threshold performance level through the Aspiration performance level,
Grantee will receive an award determined in accordance with the chart and
formulae set forth in Appendix A. The terms used in determining the Performance
Measure are defined in Appendix B.
3. Determination of Aspiration Award.
3.1 Determination Notice. As soon as practical following the last
day of the Performance Cycle, the Committee will determine, in accordance with
Section 7(c) of the Plan, the performance level of the Operations with respect
to the Performance Measure for the Performance Cycle. The Committee may in
determining the performance level with respect to the Performance Measure adjust
the Operations' financial results for the Performance Cycle to exclude the
effect of unusual charges or income items or other events, including
acquisitions or dispositions of businesses or assets, gains and losses resulting
from divestitures, currency fluctuations, changes in tax laws, or changes in
accounting treatment, which are distortive of financial results for the
Performance Cycle. The Committee may also increase or decrease the amount of the
Award otherwise payable to Grantee if, in the Committee's view, the financial
performance of the Operations during the Performance Cycle justifies such
adjustment, regardless of the extent to which the Performance Measure has been
achieved.
The Company will notify the Grantee (or the executors or
administrators of the Grantee's estate, if applicable) of the Committee's
determination (the "Determination Notice"). The Determination Notice shall
specify the performance level of the Operations with respect to the Performance
Measure for the Performance Cycle and the amount of Award (if any) Grantee will
be entitled to receive. The amount Grantee is entitled to receive will be paid
one-half in cash and one-half in Shares, with the Shares being valued at their
Fair Market Value as of the last day of the Performance Cycle.
3.2 Revision of Performance Levels. At any time prior to the end
of a Performance Cycle, the Committee may revise the performance levels for the
Performance Measure and the Award amounts if unforeseen events (including,
without limitation, a Change in Capitalization, an equity restructuring, an
acquisition, or a divestiture) occur which have a substantial effect on the
performance of the Operations and which in the judgment of the Committee make
the application of the performance levels unfair unless a revision is made.
4. Termination of Employment.
4.1 In General. Except as provided in Sections 4.2, 4.3, and 4.4
below, in the event that the Grantee's employment terminates during a
Performance Cycle, all unearned Aspiration Awards shall be immediately forfeited
by the Grantee.
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4.2 Termination of Employment Due to Death, Disability, or
Retirement. In the event the employment of the Grantee is terminated by reason
of death or Disability during a Performance Cycle, the Grantee shall be entitled
to a prorated payout with respect to the unearned Award. The prorated payout
shall be determined by the Committee based upon the length of time that the
Grantee was actively employed during the Performance Cycle relative to the full
length of the Performance Cycle; provided, that payment shall only be made to
the extent at the end of the Performance Cycle the Award would have been earned
based upon the performance level achieved for the Performance Cycle; and
provided, further, that the performance level used to determine the prorated
award cannot exceed 200% of the Commitment performance level.
In the event of Grantee's Retirement (on or after age 65),
the full Award shall continue to be eligible for payout at the end of the
Performance Cycle, just as if Grantee had remained employed for the remainder of
the Performance Cycle (including if the Grantee dies after Retirement but before
the end of the Performance Cycle). At the end of the Performance Cycle, the
Committee shall make its determination in the same manner as provided in Section
3.
Payment of earned Awards to Grantee in the event of
termination due to death, Disability, or Retirement shall be made at the same
time payments would be made to Grantee if Grantee did not terminate employment
during the Performance Cycle.
4.3 Change In Control. Notwithstanding anything in this Agreement
to the contrary, if a Change in Control occurs during the Performance Cycle,
then the Grantee's Award shall be determined for the Performance Cycle then in
progress as though the Performance Cycle had ended as of the date of the Change
in Control and the outstanding Award will be paid at the Commitment Level Award
or the actual performance level to such date (using, for such purpose, prorated
performance levels of the Performance Measure to reflect the portion of the
Performance Cycle that has elapsed as of the date of the Change in Control),
whichever provides the greater payment. The Award determined in accordance with
the preceding sentence shall be fully vested and payable immediately to the
Grantee. The Committee shall determine the amount of the Award under this
Section 4.3, subject to the terms of this section, and no downward adjustment of
the Award shall be permitted. The Award will be paid in full in cash, unless the
Grantee elects to receive one-half of the Award in Shares. For purposes of
determining the number of Shares to be paid to the Grantee under this Section
4.3, the Fair Market Value of a Share shall be determined by taking the average
closing price per share for the last twenty (20) trading days prior to the
commencement of the offer, transaction, or other event which resulted in a
Change in Control.
4.4 Termination Without Cause. In the event Grantee's employment
is terminated by the Company without Cause more than one (1) year after the
commencement of the Performance Cycle and prior to the end of the Performance
Cycle, the Grantee shall be entitled to a prorated payout of the Award based
upon the length of time that the Grantee was actively employed during the
Performance Cycle relative to the full length of the Performance Cycle;
provided, that payment shall be made only to the
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extent at the end of the Performance Cycle the Award would have been earned
based upon the performance level achieved during the Performance Cycle; and
provided, further, that the performance level used to determine the prorated
award cannot exceed 200% of the Commitment performance level. Payment shall be
made to Grantee at the same time as if Grantee had not terminated employment
during the Performance Cycle.
5. No Right to Continued Employment.
Nothing in this Agreement or the Plan shall be interpreted to
confer upon the Grantee any rights with respect to continuance of employment by
the Company, nor shall this Agreement or the Plan interfere in any way with the
right of the Company to terminate the Grantee's employment at any time.
6. Nonassignment.
The Grantee shall not have the right to assign, alienate, pledge,
transfer, or encumber any amounts due Grantee hereunder, and any attempt to
assign, alienate, pledge, transfer, or encumber Grantee's rights or benefits
shall be null and void and not recognized by the Plan or the Company.
7. Modification of Agreement.
This Agreement may be modified, amended, suspended, or
terminated, and any terms or conditions may be waived, but only by a written
instrument executed by the parties hereto.
8. Severability; Governing Law.
Should any provision of this Agreement be held by a court of
competent jurisdiction to be unenforceable or invalid for any reason, the
remaining provisions of this Agreement shall not be affected by such holding and
shall continue in full force in accordance with their terms.
The validity, interpretation, construction, and performance of
this Agreement shall be governed by the laws of the State of Delaware without
giving effect to the conflicts of laws principles thereof.
9. Successors in Interest.
This Agreement shall inure to the benefit of and be binding upon
any successor to the Company. All obligations imposed upon the Grantee and all
rights granted to the Company under this Agreement shall be binding upon the
Grantee's heirs, executors, and administrators.
10. Resolution of Disputes.
Any dispute or disagreement which may arise under, or as a result
of, or in any way relate to, the interpretation, construction, or application of
this Agreement shall
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be determined by the Committee. Any determination made hereunder shall be final,
binding, and conclusive on the Grantee and the Company for all purposes.
11. Withholding of Taxes.
The Company shall have the right to deduct from any amount
payable under this Agreement, an amount equal to the federal, state, and local
income taxes and other amounts as may be required by law to be withheld (the
"Withholding Taxes") with respect to any such amount. In satisfaction of all or
part of the Withholding Taxes, the Grantee may make a written election (the "Tax
Election"), which may be accepted or rejected in the discretion of the Company,
to have withheld a portion of the Shares issuable to him or her pursuant to an
Award, having an aggregate Fair Market Value equal to the Withholding Taxes.
12. Shareholder Approval.
The effectiveness of this Agreement and of the grant of the Award
pursuant hereto is subject to the approval of the Plan by the stockholders of
NSI in accordance with the terms of the Plan.
NATIONAL SERVICE INDUSTRIES, INC.
By: /s/ James S. Balloun
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JAMES S. BALLOUN
Chairman, President and Chief Executive Officer
NATIONAL SERVICE INDUSTRIES, INC. (GA), Subsidiary
By: /s/ James S. Balloun
------------------------------------------------
JAMES S. BALLOUN
Chairman, President and Chief Executive Officer
/s/ James H. Heagle
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Name of Grantee: JAMES H. HEAGLE
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Aspiration Achievement Incentive Award Appendix A -- Heagle
<Table>
Name James H. Heagle
Position President, NSI Chemicals
Salary $300,000
Division Chemical Group
Total LTI Multiple 160%
AAI % of LTI 70%
FY 99-01
Threshold 29.0
Commitment 36.0
Aspiration 50.0
Individual AAI Opportunity
Threshold $ 37,333
Commitment $149,333
Aspiration $746,665
</Table>