Change In Control Agreement - Interim Services Inc. and Robert W. Morgan
CHANGE IN CONTROL AGREEMENT
THIS AGREEMENT, dated as of the 18th day of November, 1998, is by and
between INTERIM SERVICES INC., a Delaware corporation (hereinafter referred to
as the "Company"), and ROBERT W. MORGAN (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 Vice President,
Human Resources, 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.
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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) The definition of a "Change in Control" of the Company for
purposes of this Agreement shall be as determined, prospectively, from time
to time, by the Board, pursuant to the affirmative vote of at least
two-thirds of those members of the Board (i) who have served on the Board
for at least two years prior to such determination, and (ii) whose
election, or nomination for election, during such two-year period was
approved by a vote of at least two-thirds of the directors then in office
who were directors at the beginning of such two-year period. Written notice
of any such determination, or modification of a previous determination,
shall be provided promptly to the Executive.
(b) In the event that at any time during the term of this Agreement
the Board has not established a definition of "Change of Control" pursuant
to Section 1(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
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directors of the surviving corporation following the effective date of such
merger or consolidation or statutory share exchange.
(c) 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 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.
(d) 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 is approved by the affirmative vote
of at least two-thirds of those members of the Board (i) who have served on
the Board for at least two years prior to such approval, and (ii) whose
election, or nomination for election, during such two-year period was
approved by a vote of at least two-thirds of the directors then in office
who were directors at the beginning of such two-year period.
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
1998 Incentive Stock Plan, 1997 Long-Term Executive Compensation and
Outside Director Stock Option Plan, any similar 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.
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3. TERMINATION FOLLOWING CHANGE IN CONTROL
(a) The Executive's employment may be terminated for any reason by
the Company within two years following a Change in Control of the Company.
If the Executive's employment is terminated for any reason other than the
reasons set forth below, 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 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;
(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; or
(iv) termination by the Company for "Cause."
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 ore 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);
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(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;
(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
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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 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
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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 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 the sum of the Executive's
annual salary for the current year plus his target bonus for the current
year (provided that if the Notice of Termination is given prior to the
determination of the Executive's salary or target bonus for the year in
which the Termination Date occurs, the amounts shall be the annual salary
for the prior year and the greater of the target bonus for the prior year
or the actual bonus 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 target bonus, the fiscal year then
generally used by the Company for setting target bonuses 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) 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.
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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:
(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
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.
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(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.
(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.
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 him 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).
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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.
(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
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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 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
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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:
Robert W. Morgan
4840 N.W. 28 Avenue
Boca Raton, FL 33434
If to the Company:
Interim Services Inc.
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.
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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
This Agreement shall commence on the date hereof and shall continue in
effect through May 7, 2001; PROVIDED, 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 Stock Option 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. 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.
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20. 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.
21. 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.
22. 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 22 is reasonable in view of the parties'
respective interests.
23. 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.
24. 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.
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25. 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.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered as of the day and year first above set forth.
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.
INTERIM SERVICES INC.
By: /s/ John B. Smith
-----------------------------------
Senior Vice President & Secretary
EXECUTIVE
By: /s/ Robert W. Morgan
-----------------------------------
Robert W. Morgan
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