Change In Control Agreement - Spherion Corp., Eric Archer, Peter T. Bourke, Douglas P. Cormany, Robert W. Grissom, Lisa Iglesias, Greg Mazares, Wayne Mincey, Robert Morgan, Gary Peck, Shannon W. Russo, Mark Smith and Janet Wahby
CHANGE IN CONTROL AGREEMENT
THIS AGREEMENT, dated as of the [SEE ATTACHED SCHEDULE A], is by and
between SPHERION CORPORATION, a Delaware corporation (hereinafter referred to as
the "COMPANY"), and [SEE ATTACHED SCHEDULE A] (hereinafter the "EXECUTIVE").
RECITALS
A. The Board of Directors of the Company (the "BOARD") considers it
essential to the best interests of the Company and its stockholders that its key
management personnel be encouraged to remain with the Company and its
subsidiaries and to continue to devote full attention to the Company's business
in the event that any third person expresses its intention to complete a
possible business combination with the Company, or in taking any other action
which could result in a "CHANGE IN CONTROL" (as defined herein) of the Company.
In this connection, the Board recognizes that the possibility of a Change in
Control and the uncertainty and questions which it may raise among management
may result in the departure or distraction of key management personnel to the
detriment of the Company and its stockholders. The Board has determined that
appropriate steps should be taken to reinforce and encourage the continued
attention and dedication of key members of the Company's management to their
assigned duties without distraction in the face of the potentially disturbing
circumstances arising from the possibility of a Change in Control of the
Company.
B. The Executive currently serves as the Company's [SEE ATTACHED
SCHEDULE A], and her services and knowledge are valuable to the Company in
connection with the management of its business.
C. The Board believes the Executive has made and is expected to
continue to make valuable contributions to the productivity and profitability of
the Company and its subsidiaries. Should the Company receive a proposal from a
third person concerning a possible business combination or any other action
which could result in a Change in Control, in addition to the Executive's
regular duties, the Executive may be called upon to assist in the assessment of
such proposal, advise management and the Board as to whether such proposal would
be in the best interests of the Company and its stockholders, and to take such
other actions as the Board might determine to be necessary or appropriate.
D. Should the Company receive any proposal from a third person
concerning a possible business combination or any other action which could
result in a change in control of the Company, the Board believes it imperative
that the Company and the Board be able to rely upon the Executive to continue in
her position, and that the Company and the Board be able to receive and rely
upon her advice, if so requested, as to the best interests of the Company and
its stockholders without concern that she might be distracted by the personal
uncertainties and risks created by such a proposal, and to encourage Executive's
full attention and dedication to the Company.
E. The Company and the Executive are parties to that certain Change
in Control Agreement dated [SEE ATTACHED SCHEDULE A] (the "PRIOR CIC
AGREEMENT").
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F. The Company and the Executive desire to terminate the Prior CIC
Agreement (and any predecessor change in control agreements) and to enter into
this Agreement upon the terms and subject to the conditions hereinafter set
forth.
TERMS AND CONDITIONS
NOW, THEREFORE, to assure the Company and its subsidiaries that it will
have the continued, undivided attention, dedication and services of the
Executive and the availability of the Executive's advice and counsel
notwithstanding the possibility, threat or occurrence of a Change in Control of
the Company, and to induce the Executive to remain in the employ of the Company
and its subsidiaries, and for other good and valuable consideration, the
adequacy and sufficiency of which are hereby acknowledged, the Company and the
Executive agree as follows.
1. CHANGE IN CONTROL
(a) For purposes of this Agreement, a "CHANGE IN CONTROL" of the
Company shall be deemed to have occurred upon (i) the acquisition at any
time by a "PERSON" or "GROUP" (as that term is used in Sections 13(d) and
14(d)(2) of the Securities Exchange Act of 1934, as amended (the "EXCHANGE
ACT")) (excluding, for this purpose, the Company or any of its subsidiaries,
any employee benefit plan of the Company or any of its subsidiaries, an
underwriter temporarily holding securities pursuant to such securities, or a
corporation owned, directly or indirectly, by the stockholders of the
Company in substantially the same proportions as their ownership of stock of
the Company) of beneficial ownership (as defined in Rule 13d-3 under the
Exchange Act) directly or indirectly, of securities representing 25% or more
of the combined voting power in the election of directors of the
then-outstanding securities of the Company or any successor of the Company;
(ii) the termination of service as directors, for any reason other than
death, disability or retirement from the Board, during any period of two
consecutive years or less, of individuals who at the beginning of such
period constituted a majority of the Board, unless the election of or
nomination for election of each new director during such period was approved
by a vote of at least two-thirds of the directors still in office who were
directors at the beginning of the period; (iii) approval by the stockholders
of the Company of liquidation of the Company; (iv) approval by the
stockholders of the Company and consummation of any sale or disposition, or
series of related sales or dispositions, of 50% or more of the assets or
earning power of the Company; or (v) approval by the stockholders of the
Company and consummation of any merger or consolidation or statutory share
exchange to which the Company is a party as a result of which the persons
who were stockholders of the Company immediately prior to the effective date
of the merger or consolidation or statutory share exchange shall have
beneficial ownership of less than 50% of the combined voting power in the
election of directors of the surviving corporation following the effective
date of such merger or consolidation or statutory share exchange.
(b) Notwithstanding anything herein, no acquisition of beneficial
ownership of securities of the Company, merger, sale of assets or other
transaction shall be deemed to constitute a Change in Control for purposes
of this Agreement if such transaction constitutes a "MANAGEMENT APPROVED
TRANSACTION." For purposes of this Agreement, a "MANAGEMENT APPROVED
TRANSACTION" shall be any transaction, which would otherwise
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result in a Change in Control for purposes of this Agreement in which the
acquiring "PERSON", "GROUP" or other entity is either beneficially owned by,
or comprised of, in whole or in part, three or more members of the Company's
executive management, as such was constituted twelve months prior to such
transaction, or is majority owned by, or comprised of, any employee benefit
plan of the Company.
2. ADJUSTMENT OF BENEFITS UPON CHANGE IN CONTROL
(a) The Company agrees that the Compensation Committee of the Board,
or such other committee succeeding to such committee's responsibilities with
respect to executive compensation (collectively, the "COMPENSATION
COMMITTEE") may make such equitable adjustments to any performance targets
contained in any awards under the Company's current incentive compensation
plans, or any additional or successor plan in which the Executive is a
participant (collectively, the "INCENTIVE PLANS"), as the Compensation
Committee determines may be appropriate to eliminate any negative effects
from any transactions relating to a Change in Control (such as costs or
expenses associated with the transaction or any related transaction,
including, without limitation, any reorganizations, divestitures,
recapitalizations or borrowings, or changes in targets or measures to
reflect the disruption of the business, etc.), in order to preserve reward
opportunities and performance objectives.
(b) In the case of a Change in Control, all restrictions and
conditions applicable to any awards of restricted stock or the vesting of
stock options or other awards granted to the Executive under the Company's
2000 Stock Incentive Plan, Deferred Stock Plan, any similar, predecessor or
successor plan, or otherwise shall be deemed to have been satisfied as of
the date the Change in Control occurs, and this Agreement shall be deemed to
amend any agreements evidencing such awards to reflect this provision.
3. TERMINATION FOLLOWING CHANGE IN CONTROL
(a) The Executive's employment may be terminated for any reason by
the Company following a Change in Control of the Company. If the Executive's
employment is terminated by the Company for any reason other than for the
reasons set forth in subparagraphs (i), (ii), (iii), (iv) or (v) below
within two years following a Change in Control, then the Executive shall be
entitled to the benefits set forth in this Agreement in lieu of any
termination, separation, severance or similar benefits under the Executive's
Employment Agreement, if any, or under the Company's termination,
separation, severance or similar plans or policies, if any. If the
Executive's employment is terminated for any of the reasons set forth in
subparagraphs (i), (ii), (iii), (iv) or (v) below, then the Executive shall
not be entitled to any termination, separation, severance or similar
benefits under this Agreement, and the Executive shall be entitled to
benefits under the Executive's Employment Agreement, if any, or under the
Company's termination, separation, severance or similar plans or policies,
if any, only in accordance with the terms of such Employment Agreement, or
such plans or policies.
(i) termination by reason of the Executive's death, PROVIDED
the Executive has not previously given a "NOTICE OF TERMINATION" pursuant to
Section 4;
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(ii) termination by reason of the Executive's "DISABILITY,"
PROVIDED the Executive has not previously given a "NOTICE OF TERMINATION"
pursuant to Section 4;
(iii) termination by reason of "RETIREMENT" at or after age 65,
PROVIDED the Executive has not previously given "NOTICE OF TERMINATION"
pursuant to Section 4;
(iv) termination by the Company for "CAUSE;" or
(v) voluntary termination by the Executive (other than for
"GOOD REASON" as provided in section 3(b) below).
For the purposes of this Agreement, "DISABILITY" shall be defined
as the Executive's inability by reason of illness or other physical or
mental disability to perform the principal duties required by the position
held by the Executive at the inception of such illness or disability for any
consecutive 180-day period. A determination of disability shall be subject
to the certification of a qualified medical doctor agreed to by the Company
and the Executive or, in the Executive's incapacity to designate a doctor,
the Executive's legal representative. If the Company and the Executive
cannot agree on the designation of a doctor, each party shall nominate a
qualified medical doctor and the two doctors shall select a third doctor and
the third doctor shall make the determination as to disability.
For purposes of this Agreement, "RETIREMENT" shall mean the
Company's termination of the Executive's employment at or after the date on
which the Executive attains age 65.
For purposes of this Agreement, "CAUSE" shall mean one or more of
the following:
(I) the material violation of any of the terms and conditions of
this Agreement or any written agreements the Executive may from time to time
have with the Company (after 30 days following written notice from the Board
specifying such material violation and Executive's failure to cure or remedy
such material violation within such 30-day period);
(II) inattention to or failure to perform Executive's assigned duties
and responsibilities competently for any reason other than due to Disability
(after 30 days following written notice from the Board specifying such
inattention or failure, and Executive's failure to cure or remedy such
inattention or failure within such 30-day period);
(III) engaging in activities or conduct injurious to the reputation
of the Company or its affiliates including, without limitation, engaging in
immoral acts which become public information or repeatedly conveying to one
person, or conveying to an assembled public group, negative information
concerning the Company or its affiliates;
(IV) commission of an act of dishonesty, including, but not limited
to, misappropriation of funds or any property of the Company;
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(V) commission by the Executive of an act which constitutes a
misdemeanor (involving an act of moral turpitude) or a felony;
(VI) the material violation of any of the written Policies of the
Company which are not inconsistent with this Agreement or applicable law
(after 30 days following written notice from the Board specifying such
failure, and the Executive's failure to cure or remedy such inattention or
failure within such 30-day period);
(VII) refusal to perform the Executive's assigned duties and
responsibilities or other insubordination (after 30 days following written
notice from the Board specifying such refusal or insubordination, and the
Executive's failure to cure or remedy such refusal or insubordination within
such 30-day period); or
(VIII) unsatisfactory performance of duties by the Executive as a
result of alcohol or drug use by the Executive.
(b) The Executive may terminate her employment with the Company
following a Change in Control of the Company for "GOOD REASON" by giving
Notice of Termination at any time within two years after the Change in
Control. Any failure by the Executive to give such immediate notice of
termination for Good Reason shall not be deemed to constitute a waiver or
otherwise to affect adversely the rights of the Executive hereunder,
PROVIDED the Executive gives notice to receive such benefits prior to the
expiration of such two year period. If the Executive terminates her
employment as provided in this Section 3(b), then the Executive shall be
entitled to the benefits set forth in this Agreement in lieu of any
termination, separation, severance or similar benefits under the Executive's
Employment Agreement, if any, or under the Company's termination,
separation, severance or similar plans or policies, if any.
For purposes of this Agreement, "GOOD REASON" shall mean the occurrence
of any one or more of the following events:
(I) The assignment to the Executive of any duties
inconsistent in any material adverse respect with her position, authority or
responsibilities with the Company and its subsidiaries immediately prior to
the Change in Control, or any other material adverse change in such
position, including titles, authority, or responsibilities, as compared with
the Executive's position immediately prior to the Change in Control;
(II) A reduction by the Company in the amount of the
Executive's base salary or annual or long term incentive compensation paid
or payable as compared to that which was paid or made available to Executive
immediately prior to the Change in Control; or the failure of the Company to
increase Executive's compensation each year by an amount which is
substantially the same, on a percentage basis, as the average annual
percentage increase in the base salaries of other executives of comparable
status with the Company;
(III) The failure by the Company to continue to provide the
Executive with substantially similar perquisites or benefits the Executive
in the aggregate enjoyed under the Company's benefit programs, such as any
of the Company's pension, savings, vacation, life insurance, medical, health
and accident, or disability plans in which she was
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participating at the time of the Change in Control (or, alternatively, if
such plans are amended, modified or discontinued, substantially similar
equivalent benefits thereto, when considered in the aggregate), or the
taking of any action by the Company which would directly or indirectly cause
such benefits to be no longer substantially equivalent, when considered in
the aggregate, to the benefits in effect at the time of the Change in
Control;
(IV) The Company's requiring the Executive to be based at
any office or location more than 50 miles from that location at which she
performed her services immediately prior to the Change in Control, except
for a relocation consented to in writing by the Executive, or travel
reasonably required in the performance of the Executive's responsibilities
to the extent substantially consistent with the Executive's business travel
obligations prior to the Change in Control;
(V) Any failure of the Company to obtain the assumption of
the obligation to perform this Agreement by any successor as contemplated in
Section 11 herein; or
(VI) Any breach by the Company of any of the material
provisions of this Agreement or any failure by the Company to carry out any
of its obligations hereunder, in either case, for a period of thirty
business days after receipt of written notice from the Executive and the
failure by the Company to cure such breach or failure during such thirty
business day period.
4. NOTICE OF TERMINATION
Any termination of the Executive's employment following a Change in
Control, other than a termination as contemplated by Sections 3(a)(i) or
3(a)(iii) shall be communicated by written "NOTICE OF TERMINATION" by the
party affecting the termination to the other party hereto. Any "NOTICE OF
TERMINATION" shall set forth (a) the effective date of termination, which
shall not be less than 15 or more than 30 days after the date the Notice of
Termination is delivered (the "TERMINATION DATE"); (b) the specific
provision in this Agreement relied upon; and (c) in reasonable detail the
facts and circumstances claimed to provide a basis for such termination and
the entitlement, or lack of entitlement, to the benefits set forth in this
Agreement. Notwithstanding the foregoing, if within fifteen (15) days after
any Notice of Termination is given, the party receiving such Notice of
Termination notifies the other party that a good faith dispute exists
concerning the termination, the actual Termination Date shall be the date on
which the dispute is finally determined in accordance with the provisions of
Section 18 hereof. In the case of any good faith dispute as to the
Executive's entitlement to benefits under this Agreement resulting from any
termination by the Company for which the Company does not deliver a Notice
of Termination, the actual Termination Date shall be the date on which the
dispute is finally determined in accordance with the provisions of Section
18 hereof. Notwithstanding the pendency of any such dispute referred to in
the two preceding sentences, the Company shall continue to pay the Executive
her full compensation then in effect and continue the Executive as a
participant in all compensation, benefits and perquisites in which she was
then participating, until the dispute is finally resolved, PROVIDED the
Executive is willing to continue to provide full time services to the
Company and its subsidiaries in substantially
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the same position, if so requested by the Company. Amounts paid under this
Section 4 shall be in addition to all other amounts due under this Agreement
and shall not be offset against or reduce any other amounts due under this
Agreement. If a final determination is made, pursuant to Section 18, that
Good Reason did not exist in the case of a Notice of Termination by the
Executive, the Executive shall have the sole right to nullify and void her
Notice of Termination by delivering written notice of same to the Company
within three (3) business days of the date of such final determination. If
the parties do not dispute the Executive's entitlement to benefits
hereunder, the Termination Date shall be as set forth in the Notice of
Termination.
5. TERMINATION BENEFITS
(a) SEVERANCE PAYMENT. Subject to the conditions set forth in this
Agreement, on the Termination Date the Company shall pay the Executive
(reduced by any applicable payroll or other taxes required to be withheld) a
lump sum severance payment, in cash, equal to one and one-half (1.5) times
the sum of Executive's annual salary for the current year plus her annual
incentive award target for the current year (provided that if the Notice of
Termination is given prior to the determination of the Executive's salary or
annual incentive award target for the year in which the Termination Date
occurs, the amounts shall be based on the annual salary for the prior year
and the greater of the annual incentive award target for the prior year or
the actual incentive award earned by the Executive for the prior year). The
current year shall be (A) for the purposes of determining annual salary, the
year then generally used by the Company for setting salaries for
senior-level executives (currently April 1 through the following March 31),
and (B) for purposes of determining annual incentive award target, the
fiscal year then generally used by the Company for setting annual incentive
award targets for senior-level executives, in which the Termination Date
occurs, and the prior year shall be the twelve-month period immediately
preceding the current year;
(b) EXPENSES. Reimbursement for expenses incurred by the Executive in
accordance with the Company's policy but not reimbursed prior to the date of
such termination of employment;
(c) PAYMENT OF DEFERRED COMPENSATION. Any compensation that has been
earned by the Executive but is unpaid as of the Termination Date, including
any compensation that has been earned but deferred pursuant to the Company's
Deferred Compensation Plan or otherwise, shall be paid in full to the
Executive on the Termination Date.
6. OTHER BENEFITS
Subject to the conditions set forth in this Agreement hereof, the
following benefits (subject to any applicable payroll or other taxes required to
be withheld) shall be paid or provided to the Executive:
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(a) HEALTH/WELFARE BENEFITS
(i) During the eighteen (18) months following the Termination
Date (the "CONTINUATION PERIOD"), the Company shall continue to keep in full
force and effect all programs of medical, dental, vision, accident,
disability, life insurance, including optional term life insurance, and
other similar health or welfare programs with respect to the Executive and
her dependents with the same level of coverage, upon the same terms and
otherwise to the same extent as such programs shall have been in effect
immediately prior to the Termination Date (or, if more favorable to the
Executive, immediately prior to the Change in Control), and the Company and
the Executive shall share the costs of the continuation of such insurance
coverage in the same proportion as such costs were shared immediately prior
to the Termination Date (or, if more favorable to the Executive, immediately
prior to the Change in Control) or, if the terms of such programs do not
permit continued participation by the Executive (or if the Company otherwise
determines it advisable to amend, modify or discontinue such programs for
employees generally), the Company shall otherwise provide benefits
substantially similar to and no less favorable to the Executive in terms of
cost or benefits ("EQUIVALENT BENEFITS") than she was entitled to receive at
the end of the period of coverage, for the duration of the Continuation
Period.
(ii) All benefits which the Company is required by this Section
6(a) to provide, which will not be provided by the Company's programs
described herein, shall be provided through the purchase of insurance unless
the Executive is uninsurable. If the Executive is uninsurable, the Company
will provide the benefits out of its general assets.
(iii) If the Executive obtains other employment during the
Continuation Period which provides health or welfare benefits of the type
described in Section 6(a)(i) hereof ("OTHER COVERAGE"), then Executive shall
notify the Company promptly of such other employment and Other Coverage and
the Company shall thereafter not provide the Executive and her dependents
the benefits described in Section 6(a)(i) hereof to the extent that such
benefits are provided under the Other Coverage. Under such circumstances,
the Executive shall make all claims first under the Other Coverage and then,
only to the extent not paid or reimbursed by the Other Coverage, under the
plans and programs described in Section 6(a)(i) hereof.
(b) RETIREMENT BENEFITS
(i) For purposes of this Agreement, "RETIREMENT" shall mean the
Company's termination of the Executive's employment within two years
following a Change in Control of the Company and at or after the date on
which the Executive attains age 65; provided, however, that any termination
for Cause or due to Death or Disability shall not constitute Retirement.
(ii) Subject to Section 6(b)(ii), the Executive shall be deemed
to be completely vested under the Company's 401(k) Plan, Deferred
Compensation Plan or other similar or successor plans which are in effect as
of the date of the Change in Control (collectively, the "PLANS"), regardless
of the Executive's actual vesting service credit thereunder.
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(iii) Any part of the foregoing retirement benefits which are
otherwise required to be paid by a tax-qualified Plan but which cannot be
paid through such Plan by reason of the laws and regulations applicable to
such Plan, shall be paid by one or more supplemental non-qualified Plans or
by the Company.
(iv) The payments calculated hereunder which are not actually
paid by a Plan shall be paid thirty (30) days following the Date of
Termination in a single lump sum cash payment (of equivalent actuarial value
to the payment calculated hereunder using the same actuarial assumptions as
are used in calculating benefits under the Plan but using the discount rate
that would be used by the Company on the Date of Termination to determine
the actuarial present value of projected benefit obligations).
(c) EXECUTIVE OUTPLACEMENT COUNSELING. During the Continuation
Period, unless the Executive shall reach normal retirement age during the
Continuation Period, the Executive may request in writing and the Company
shall at its expense engage within a reasonable time following such written
request an outplacement counseling service to assist the Executive in
obtaining employment.
(d) This Section 6(d) is intentionally omitted.
7. PAYMENT OF CERTAIN COSTS
Except as otherwise provided in Section 18, if a dispute arises
regarding a termination of the Executive or the interpretation or
enforcement of this Agreement, subsequent to a Change in Control, all of the
reasonable legal fees and expenses incurred by the Executive and all
Arbitration Costs (as hereafter defined) in contesting any such termination
or obtaining or enforcing all or part of any right or benefit provided for
in this Agreement or in otherwise pursuing all or part of her claim will be
paid by the Company, unless prohibited by law. The Company further agrees to
pay pre-judgment interest on any money judgment obtained by the Executive
calculated at the prime interest rate reported in THE WALL STREET JOURNAL in
effect from time to time from the date that payment to her should have been
made under this Agreement.
8. This Section 8 is intentionally omitted.
9. MITIGATION
The Executive is not required to seek other employment or otherwise
mitigate the amount of any payments to be made by the Company pursuant to this
Agreement, and employment by the Executive will not reduce or otherwise affect
any amounts or benefits due the Executive pursuant to this Agreement, except as
otherwise provided in Section 6(a)(iii).
10. CONTINUING OBLIGATIONS REGARDING CONFIDENTIAL INFORMATION
(a) ACKNOWLEDGMENTS BY THE EXECUTIVE. The Executive hereby recognizes
and acknowledges the following:
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(i) In connection with the Business, the Company has expended a
great deal of time, money and effort to develop and maintain the secrecy and
confidentiality of substantial proprietary trade secret information and
other confidential business information which, if misused or disclosed,
could be very harmful to the Company's business.
(ii) The Executive desires to become entitled to receive the
benefits contemplated by this Agreement but which the Company would not make
available to the Executive but for the Executive's signing and agreeing to
abide by the terms of this Section 10.
(iii) The Executive's position with the Company provides the
Executive with access to certain of the Company's confidential and
proprietary trade secret information and other confidential business
information.
(iv) The Company compensates its employees to, among other
things, develop and preserve business information for the Company's
ownership and use.
(v) If the Executive were to leave the Company, the Company in
all fairness would need certain protection in order to ensure that the
Executive does not appropriate and misuse any confidential information
entrusted to the Executive during the course of the Executive's employment
with the Company.
(b) CONFIDENTIAL INFORMATION
(i) The Executive agrees to keep secret and confidential, and
not to use or disclose to any third parties, except as directly required for
the Executive to perform the Executive's employment responsibilities for the
Company, or except as required by law, any of the Company's confidential and
proprietary trade secret information or other confidential business
information concerning the Company's business acquired by the Executive
during the course of, or in connection with, the Executive's employment with
the Company (and which was not known by the Executive prior to the
Executive's being hired by the Company). Confidential information means
information which would constitute material, nonpublic information under the
Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder, regardless of whether the Executive's use or
disclosure of such information is in connection with or related to a
securities transaction.
(ii) The Executive acknowledges that any and all notes, records,
reports, written information or documents of any kind, computer files and
diskettes and other documents obtained by or provided to the Executive, or
otherwise made, produced or compiled during the course of the Executive's
employment with the Company, regardless of the type of medium in which it is
preserved, are the sole and exclusive property of the Company and shall be
surrendered to the Company upon the Executive's termination of employment
and on demand at any time by the Company.
(c) ACKNOWLEDGMENT REGARDING RESTRICTIONS. The Executive recognizes
and agrees that the provisions of this Section 10 are reasonable and
enforceable because, among other things, (i) the Executive is receiving
compensation under this Agreement and (ii) this Section 10 therefore does
not impose any undue hardship on the Executive. The Executive
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further recognizes and agrees that the provisions of this Section 10 are
reasonable and enforceable in view of the Company's legitimate interests in
protecting its confidential information.
(d) BREACH. In the event of a breach of Section 10(b), the Company's
sole remedy shall be the discontinuation of the payment, allocation, accrual
or provision of any amounts or benefits as provided in Sections 5 or 6. The
Executive recognizes and agrees, however, that it is the intent of the
parties that neither this Agreement nor any of its provisions shall be
construed to adversely affect any rights or remedies that Company would have
had, including, without limitation, the amount of any damages for which it
could have sought recovery, had this Agreement not been entered into.
Accordingly, the parties hereby agree that nothing stated in this Section 10
shall limit or otherwise affect the Company's right to seek legal or
equitable remedies it may otherwise have, or the amount of damages for which
it may seek recovery, in connection with matters covered by this Section 10
but which are not based on breach or violation of this Section 10
(including, without limitation, claims based on the breach of fiduciary or
other duties of the Executive or any obligations of the Executive arising
under any other contracts, agreements or understandings). Without limiting
the generality of the foregoing, nothing in this Section 10 or any other
provision of this Agreement shall limit or otherwise affect the Company's
right to seek legal or equitable remedies it may otherwise have, or the
amount of damages for which it may seek recovery, resulting from or arising
out of statutory or common law or any Company policies relating to fiduciary
duties, confidential information or trade secrets. Further, the Executive
acknowledges and agrees that the fact that Section 10(c) is limited to the
Continuation Period, and that the sole remedy of the Company hereunder is
the discontinuation of benefits, shall not reduce or otherwise alter any
other contractual or other legal obligations of the Executive during any
period or circumstance, and shall not be construed as establishing a maximum
limit on damages for which the Company may seek recovery.
11. BINDING AGREEMENT; SUCCESSORS
(a) This Agreement shall be binding upon and shall inure to the
benefit of the Company and its successors and assigns. The Company 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 the Company, by agreement to assume expressly and agree to
perform this Agreement in the same manner and to the same extent that the
Company would be required to perform it if no such succession had taken
place. For purposes of this Agreement, "COMPANY" shall mean the Company as
hereinbefore defined and any successor to its business and/or assets as
aforesaid.
(b) This Agreement shall be binding upon and shall inure to the
benefit of the Executive and the Executive's personal or legal
representatives, executors, administrators, successors, heirs, distributees,
beneficiaries, devises and legatees. If the Executive should die while any
amounts are payable to her hereunder, all such amounts, unless otherwise
provided herein, shall be paid in accordance with the terms of this
Agreement to the Executive's devisee, legatee, beneficiary or other designee
or, if there be no such designee, to the Executive's estate.
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12. NOTICES
For the purposes of this Agreement, notices and all other communications
provided for herein shall be in writing and shall be deemed to have been duly
given (i) on the date of delivery if delivered by hand, (ii) on the date of
transmission, if delivered by confirmed facsimile, (iii) on the first business
day following the date of deposit if delivered by guaranteed overnight delivery
service, or (iv) on the third business day following the date delivered or
mailed by United States registered or certified mail, return receipt requested,
postage prepaid, addressed as follows:
If to the Executive:
--------------------
--------------------
--------------------
If to the Company:
Spherion Corporation
2050 Spectrum Boulevard
Fort Lauderdale, Florida 33309
Attention: General Counsel
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
13. GOVERNING LAW
The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of Florida, without regard
to principles of conflicts of laws.
14. MISCELLANEOUS
No provisions of this Agreement may be amended, modified, waived or
discharged unless such amendment, waiver, modification or discharge is agreed to
in writing signed by the Executive and the Company. No agreements or
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party which are not set forth
expressly in this Agreement. Section headings contained herein are for
convenience of reference only and shall not affect the interpretation of this
Agreement.
15. COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original but all of which will constitute one and
the same instrument.
16. NON-ASSIGNABILITY
This Agreement is personal in nature and neither of the parties hereto
shall, without the consent of the other, assign, or transfer this Agreement or
any rights or obligations hereunder,
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except as provided in Section 11. Without limiting the foregoing, the
Executive's right to receive payments hereunder shall not be assignable or
transferable, whether by pledge, creation of a security interest or otherwise,
other than a transfer by his will or trust or by the laws of descent or
distribution, and in the event of any attempted assignment or transfer contrary
to this paragraph the Company shall have no liability to pay any amount so
attempted to be assigned or transferred.
17. TERM OF AGREEMENT
The term of this Agreement (the "TERM") shall commence on the date
hereof and shall continue in effect for a period of three (3) years, unless
further extended or sooner terminated as hereinafter provided. At the end of
this three year period and on the first day of each one-year anniversary
thereafter, the Term shall automatically be extended for one additional year
unless either party shall have given notice to the other party, at least six
months prior to such anniversary that it does not wish to extend the Term.
However, if a Change in Control of the Company shall have occurred during the
original or any extended term of this Agreement, this Agreement shall continue
in effect for a period of twenty-four (24) months beyond the month in which such
Change in Control occurred; and, PROVIDED FURTHER, that if the Company shall
become obligated to make any payments or provide any benefits pursuant to
Section 5 or 6 hereof, this Agreement shall continue for the period necessary to
make such payments or provide such benefits.
18. RESOLUTION OF DISPUTES
(a) The parties hereby agree to submit any claim, demand, dispute,
charge or cause of action (in any such case, a "CLAIM") arising out of, in
connection with, or relating to this Change in Control Agreement to binding
arbitration in conformance with the J*A*M*S/ENDISPUTE Streamlined Arbitration
Rules and Procedures or the J*A*M*S/ENDISPUTE Comprehensive Arbitration Rules
and Procedures, as applicable, but expressly excluding Rule 28 of the
J*A*M*S/ENDISPUTE Streamlined Rules and Rule 32 of the J*A*M*S/ENDISPUTE
Comprehensive Rules, as the case may be. All arbitration procedures shall be
held in Fort Lauderdale, Florida and shall be subject to the choice of law
provisions set forth in Section 13 of this Agreement.
(b) In the event of any dispute arising out of or relating to this
Agreement for which any party is seeking injunctive relief, specific performance
or other equitable relief, such matter may be resolved by litigation.
Accordingly, the parties shall submit such matter to the exclusive jurisdiction
of the United States District Court for the Southern District of Florida or, if
jurisdiction is not available therein, any other court located in Broward
County, Florida, and hereby waive any and all objections to such jurisdiction or
venue that they may have. Each party agrees that process may be served upon such
party in any manner authorized under the laws of the United States or Florida,
and waives any objections that such party may otherwise have to such process.
19. RELEASE AND CONDITIONS
Any and all payments and benefits provided by the Company to the
Executive under this Agreement shall be conditioned on the following: (i)
Executive's continued compliance with the confidentiality provisions contained
herein; (ii) the Executive's execution of
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a full release and settlement of any and all claims against the Company; and
(iii) the Executive's execution of a non-disparagement agreement and continued
compliance therewith.
20. NO SETOFF
The Company shall have no right of setoff or counterclaim in respect of
any claim, debt or obligation against any payment provided for in this
Agreement.
21. NON-EXCLUSIVITY OF RIGHTS
Nothing in this Agreement shall prevent or limit the Executive's
continuing or future participation in any benefit, bonus, incentive or other
plan or program provided by the Company or any of its subsidiaries or successors
and for which the Executive may qualify, nor shall anything herein limit or
reduce such rights as the Executive may have under any other agreements with the
Company or any of its subsidiaries or successors, except to the extent payments
are made pursuant to Section 5, they shall be in lieu of any termination,
separation, severance or similar payments pursuant to the Executive's Employment
Agreement, if any, and the Company's then existing termination, separation,
severance or similar plans or policies, if any. Amounts which are vested
benefits or which the Executive is otherwise entitled to receive under any plan
or program of the Company or any of its subsidiaries shall be payable in
accordance with such plan or program, except as explicitly modified by this
Agreement.
22. NO GUARANTEED EMPLOYMENT
The Executive and the Company acknowledge that this Agreement shall not
confer upon the Executive any right to continued employment and shall not
interfere with the right of the Company to terminate the employment of the
Executive at any time.
23. INVALIDITY OF PROVISIONS
In the event that any provision of this Agreement is adjudicated to be
invalid or unenforceable under applicable law in any jurisdiction, the validity
or enforceability of the remaining provisions thereof shall be unaffected as to
such jurisdiction and such adjudication shall not affect the validity or
enforceability of such provision in any other jurisdiction. To the extent that
any provision of this Agreement, including, without limitation, Section 10
hereof, is adjudicated to be invalid or unenforceable because it is overbroad,
that provision shall not be void but rather shall be limited to the extent
required by applicable law and enforced as so limited. The parties expressly
acknowledge and agree that this Section 23 is reasonable in view of the parties'
respective interests.
24. NON-WAIVER OF RIGHTS
The failure by the Company or the Executive to enforce at any time any
of the provisions of this Agreement or to require at any time performance by the
other party of any of the provisions hereof shall in no way be construed to be a
waiver of such provisions or to affect either the validity of this Agreement, or
any part hereof, or the right of the Company or the Executive thereafter to
enforce each and every provision in accordance with the terms of this Agreement.
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25. EMPLOYMENT AGREEMENT.
If the Executive has an Employment Agreement with the Company, and if
circumstances arise which cause both the Employment Agreement and this Agreement
to apply to the Company and the Executive, then, to the extent of any
inconsistency between the provisions of this Agreement and the Employment
Agreement, the terms of this Agreement alone shall apply. However, if this
Agreement does not apply, then the provisions of the Employment Agreement shall
control and be unaffected by this Agreement.
26. UNFUNDED PLAN.
The Company's obligations under this Agreement shall be entirely
unfunded until payments are made hereunder from the general assets of the
Company, and no provision shall be made to segregate assets of the Company for
payments to be made under this Agreement. The Executive shall have no interest
in any particular assets of the Company but rather shall have only the rights of
a general unsecured creditor of the Company.
PLEASE NOTE: BY SIGNING THIS AGREEMENT, THE EXECUTIVE IS HEREBY CERTIFYING
THAT THE EXECUTIVE (A) HAS RECEIVED A COPY OF THIS AGREEMENT FOR REVIEW AND
STUDY BEFORE EXECUTING IT; (B) HAS READ THIS AGREEMENT CAREFULLY BEFORE SIGNING
IT; (C) HAS HAD SUFFICIENT OPPORTUNITY BEFORE SIGNING THE AGREEMENT TO ASK ANY
QUESTIONS THE EXECUTIVE HAS ABOUT THE AGREEMENT AND HAS RECEIVED SATISFACTORY
ANSWERS TO ALL SUCH QUESTIONS; AND (D) UNDERSTANDS THE EXECUTIVE'S RIGHTS AND
OBLIGATIONS UNDER THE AGREEMENT.
THIS AGREEMENT IN SECTION 18 CONTAINS A BINDING ARBITRATION PROVISION WHICH
MAY BE ENFORCED BY THE PARTIES.
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IN WITNESS WHEREOF, the parties have caused this Change in
Control Agreement to be executed and delivered as of the day and year first
above set forth.
SPHERION CORPORATION
By:
-----------------------
Name:
---------------------
Title:
--------------------
EXECUTIVE
By:
-----------------------
Name:
---------------------
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SCHEDULE A
<Table>
<Caption>
DATE OF
EXECUTIVE'S
CHANGE IN
EXECUTIVE'S NAME CONTROL AGREEMENT EXECUTIVE'S POSITION EXECUTIVE REPORTS TO:
----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Archer, Eric May 7, 2001 President, Professional Chief Operating
Recruiting Group Officer
Bourke, Peter T. May 7, 2001 President, Outsourcing Group Chief Operating
Officer
Cormany, Douglas P. May 10, 2001 Vice President and Chief Chief Financial
Information Officer Officer
Grissom, Robert W. July 3, 2001 Senior Vice President, Chief Operating
Sales & Marketing, Staffing Officer
Group
Iglesias, Lisa May 7, 2001 General Counsel, Vice Chief Executive
President and Secretary Officer
Mazares, Greg May 7, 2001 President, Deposition President,
Services Professional
Recruiting Group
Mincey, Wayne July 3, 2001 President, Technology Group Chief Operating
Officer
Morgan, Robert May 7, 2001 President, Human Capital Chief Operating
Consulting Group Officer
Peck, Gary May 7, 2001 President, Staffing Group Chief Operating
Officer
Russo, Shannon W. May 7, 2001 Vice President, Strategic President,
Alliances, Outsourcing Group Outsourcing Group
Smith, Mark May 7, 2001 Vice President, Business Chief Financial
Services Officer
Wahby, Janet August 1, 2001 Vice President, Global Chief Operating
Marketing Officer
</Table>