Change In Control Agreement - Spherion Corp., Roy G. Krause and Robert E. Livonius
CHANGE IN CONTROL AGREEMENT
THIS AGREEMENT, dated as of the 7th day of May, 2001, 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 his 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
his position, and that the Company and the Board be able to receive and rely
upon his advice, if so requested, as to the best interests of the Company and
its stockholders without concern that he 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 November 18, 1998 (the "PRIOR CIC AGREEMENT").
<Page>
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
2
<Page>
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;
3
<Page>
(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;
4
<Page>
(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 his 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 his
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 his 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 he was
5
<Page>
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 he
performed his 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 his full compensation then in effect and continue the
Executive as a participant in all compensation, benefits and perquisites in
which he 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
6
<Page>
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 his 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 three (3) times the sum of
Executive's annual salary for the current year plus his 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:
7
<Page>
(a) HEALTH/WELFARE BENEFITS
(i) During the thirty-six (36) 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 his 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
he 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 his
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.
8
<Page>
(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 his 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 his
should have been made under this Agreement.
8. EXCISE TAX PAYMENTS.
(a) Notwithstanding anything contained in this Agreement to the
contrary, in the event that any payment (within the meaning of Section
280G(b)(2) of the Internal Revenue Code of 1986, as amended or replaced
(the "CODE")), or distribution to or for the benefit of the Executive,
whether paid or payable or distributed or distributable pursuant to the
terms of this Agreement or otherwise in connection with, or arising out of,
his employment with the Company (a "PAYMENT" or "PAYMENTS"), would be
subject to the excise tax imposed by Section 4999 of the Code or any
interest or penalties are incurred by the Executive with respect to such
excise tax (such excise tax, interest and penalties collectively referred
to as the "EXCISE TAX"), the Executive shall be entitled to receive an
additional payment (a "GROSS-UP PAYMENT") in an amount such that after
payment by the Executive of all such taxes (including any interest or
penalties imposed with respect to such taxes), including any Excise Tax
imposed upon the Gross-Up Payment, the
9
<Page>
Executive retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Payments; PROVIDED, that the Executive shall not be
entitled to receive any additional payment relating to any interest or
penalties attributable to any action or omission by the Executive in bad
faith.
(b) An initial determination shall be made by an accounting
firm mutually agreeable to the Company and the Executive and, if not agreed
to within three days after the Date of Termination, a national independent
accounting firm selected by the Executive (the "ACCOUNTING FIRM"), as to
whether a Gross-Up Payment is required pursuant to this Section 8 and the
amount of such Gross-Up Payment. To permit the Accounting Firm to make the
initial determination the Company shall furnish the Accounting Firm with
all information reasonably required for such firm to complete such
determination as soon as practicable after the Date of Termination, but in
no event more than fifteen (15) days thereafter. All fees, costs and
expenses (including, but not limited to, the cost of retaining experts) of
the Accounting Firm shall be borne by the Company and the Company shall pay
such fees, costs and expense as they become due. The Accounting Firm shall
provide detailed supporting calculations, reasonable acceptable both to the
Company and the Executive within thirty (30) days of the Date of
Termination, if applicable, or such other time as requested by the Company
or by the Executive (provided the Executive reasonably believes that any of
the Payments may be subject to the Excise Tax). The Gross-Up Payment, if
any, as determined pursuant to this Section 8(b) shall be paid by the
Company to the Executive within five (5) business days of the receipt of
the Accounting Firm's determination. If the Accounting Firm determines that
no Excise Tax is payable by the Executive with respect to a Payment or
Payments, it shall furnish the Executive with an opinion reasonably
satisfactory to the Executive that no Excise Tax will be imposed with
respect to any such Payment or payments. Any such initial determination by
the Accounting Firm of the Gross-Up Payment shall be binding upon the
Company and the Executive subject to the application of Section 8(c).
(c) As a result of the uncertainty in the application of
Sections 4999 and 280G of the Code, it is possible that a Gross-Up Payment
(or a portion thereof) will be paid which should not have been paid (an
"OVERPAYMENT") or a Gross-Up Payment (or a portion thereof) which should
have been paid will not have been (an "UNDERPAYMENT"). An Underpayment
shall be deemed to have occurred upon a "Final Determination" (as
hereinafter defined) that the tax liability of the Executive (whether in
respect of the then current taxable year of the Executive or in respect of
any prior taxable year of the Executive) will be increased by reason of the
imposition of the Excise Tax on a Payment or payments with respect to which
the Company has failed to make a sufficient Gross-Up Payment. An
Overpayment shall be deemed to have occurred upon a "FINAL DETERMINATION"
(as hereinafter defined) that the Excise Tax shall not be imposed (or shall
be reduced) upon a Payment or Payments with respect to which the Executive
had previously received a Gross-Up Payment. A Final Determination shall be
deemed to have occurred when (i) in the case of an Overpayment, the
Executive has received from the applicable governmental taxing authority a
refund of taxes or other reduction in his tax liability imposed as a result
of a Payment will be increased, and (ii) in the case of an Overpayment or
an Underpayment, upon either (x) the date a determination is made by, or an
agreement is entered into with, the applicable governmental taxing
authority which
10
<Page>
finally and conclusively binds the Executive and such taxing authority, or
in the event that a claim is brought before a court of competent
jurisdiction, the date upon which a final determination has been made by
such court and either all appeals have been taken and finally resolved or
the time for all appeals has expired or (y) the statute of limitations with
respect to the Executive's applicable tax return has expired. If an
Underpayment occurs, the Executive shall promptly notify the company and
the Company shall promptly pay to the Executive an additional Gross-Up
Payment equal o the amount of the Underpayment plus any interest and
penalties imposed on the Underpayment (other than interest and penalties
attributable to any action or omission by the Executive in bad faith). If
an Overpayment occurs, the amount of the Overpayment shall be treated as a
loan by the Company to the Executive and the executive shall, within ten
(10) business days of the occurrence of such Overpayment, pay the Company
the amount of the Overpayment, with interest computed in the same manner as
for an Underpayment.
(d) Notwithstanding anything contained in this Agreement to
the contrary, in the event it is determined that an Excise Tax will be
imposed on any Payment or payments, the Company shall pay to the applicable
governmental taxing authorities as Excise Tax withholding, the amount of
the Excise Tax that the Company has actually withheld from the Payment or
Payments.
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:
(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.
11
<Page>
(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 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
12
<Page>
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 him 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.
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:
-------------------------
-------------------------
13
<Page>
-------------------------
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, 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
14
<Page>
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 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
15
<Page>
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.
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.
16
<Page>
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.
[signatures appear on the following page]
17
<Page>
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:
--------------------------
18
<Page>
SCHEDULE A
EXECUTIVE'S NAME EXECUTIVE'S POSITION
--------------------------------------------------------------------------------
Roy G. Krause Executive Vice President and Chief Financial Officer
--------------------------------------------------------------------------------
Robert E. Livonius Executive Vice President and Chief Operating Officer
--------------------------------------------------------------------------------