Exhibit
10.10
AMENDMENT TO CHANGE IN CONTROL
AGREEMENT
THIS
AMENDMENT, dated as of the 9th day of December, 2008, is by and
between SPHERION CORPORATION, a Delaware corporation (hereinafter
referred to as the " Company "), and Loretta A. Penn
(hereinafter the " Executive ").
RECITALS
A.
The Executive currently serves as the Company's Senior Vice
President and Chief Service Excellence Officer, and her services
and knowledge are valuable to the Company in connection with the
management of its business.
B.
The Company and the Executive are parties to that certain Change in
Control Agreement dated July 14, 2008 (the " CIC Agreement"
).
C.
Certain provisions of the CIC Agreement are subject to Section 409A
of the Internal Revenue Code of 1986, as amended ("Code Section
409A").
D.
The Company and the Executive desire to amend the CIC Agreement to
conform with the requirements of the final regulations under Code
Section 409A upon the terms and subject to the conditions
hereinafter set forth.
TERMS AND
CONDITIONS
1.
Section 3(b) is amended to read as follows:
(b)
The Executive may terminate her employment with the Company
following a Change in Control of the Company for " Good
Reason " at any time within two (2) 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 that the Executive separates from
service within the meaning of Section 409A of the Internal Revenue
Code of 1986, as amended (the "Code") prior to the expiration of
such two (2) year period. If the Executive terminates her
employment as provided in this Section 3(b), then the Executive
shall be entitled to the benefits set forth in this Agreement in
lieu of any termination, separation, severance or similar benefits
under the Executive's Employment Agreement, if any, or under the
Company's termination, separation, severance or similar plans or
policies, if any.
For purposes of this Agreement, " Good
Reason " shall mean the occurrence of any one or more of the
following events:
(I) The
assignment to the Executive of any duties inconsistent in any
material adverse respect with her position, authority or
responsibilities with the Company and its subsidiaries immediately
prior to the Change in Control, or any other material adverse
change in such position, authority, or responsibilities, as
compared with the Executive's position immediately prior to the
Change in Control;
(II) A
material reduction by the Company in the amount of the Executive's
base salary or annual or long term incentive compensation paid or
payable as compared to that which was paid or made available to
Executive immediately prior to the Change in Control; or the
failure of the Company to increase Executive's compensation each
year by an amount which is substantially the same, on a percentage
basis, as the average annual percentage increase in the base
salaries of other executives of comparable status with the
Company;
(III) The
failure by the Company to continue to provide the Executive with
substantially similar perquisites or benefits the Executive in the
aggregate enjoyed under the Company's benefit programs, such as any
of the Company's pension, savings, vacation, life insurance,
medical, health and accident, or disability plans in which she was
participating at the time of the Change in Control (or,
alternatively, if such plans are amended, modified or discontinued,
substantially similar equivalent benefits thereto, when considered
in the aggregate), or the taking of any action by the Company which
would directly or indirectly cause such benefits to be no longer
substantially equivalent, when considered in the aggregate, to the
benefits in effect at the time of the Change in Control;
(IV) The
Company's requiring the Executive to be based at any office or
location more than 50 miles from that location at which she
performed her services immediately prior to the Change in Control,
except for a relocation consented to in writing by the Executive,
or travel reasonably required in the performance of the Executive's
responsibilities to the extent substantially consistent with the
Executive's business travel obligations prior to the Change in
Control;
(V) Any
failure of the Company to obtain the assumption of the obligation
to perform this Agreement by any successor as contemplated in
Section 11 herein; or
(VI) Any
breach by the Company of any of the material provisions of this
Agreement or any material failure by the Company to carry out any
of its obligations hereunder;
Provided, however , that Executive shall be deemed to have Good
Reason only if (i) Executive provides the Company with written
notice of the condition described above in this Section 3(b) within
ninety (90) days of the existence of such condition, and (ii) the
Company fails to remedy such condition within thirty (30) days of
receipt of such notice.
2.
Section 4 is amended to read as follows:
4.
Notice of Termination
2
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 intended effective date
of termination, which shall not be less than fifteen (15) or more
than thirty (30) days after the date the Notice of Termination is
delivered; (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 intended effective date stated
in the Notice or anything in this Agreement to the contrary, the
“Termination Date” shall be the date on which the
Executive separates from service with the Company, within the
meaning of Section 409A of the Code. 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 dispute should be
resolved
