Exhibit
10.6
AMENDMENT TO CHANGE IN CONTROL
AGREEMENT
THIS
AMENDMENT, dated as of the 15th day of December, 2008, is by and
between SPHERION CORPORATION, a Delaware corporation (hereinafter
referred to as the " Company "), and Roy G. Krause
(hereinafter the " Executive ").
RECITALS
A. The
Executive currently serves as the Company's Chief Executive Officer
and President, and his 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 May 7, 2001, as amended May 7, 2002,
November 30, 2003, October 6, 2004 and March 9, 2005, (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 his 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 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,
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 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 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
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 in accordance with the
provisions of Section 18 hereof. Notwithstanding the pendency of
any such dispute referred to in the preceding sentence, 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. If the Executive offers
to continue to perform services and the Company declines to accept
the offer (such that Executive separates from services within the
meaning of Section 409A of the Code), then payment of any amounts
payable pursuant to this Section 4 that would be considered
deferred compensation payable on account of separation from service
shall, to the extent required under Section 409A of the Code, be
delayed until the date that is six (6) months after the date of
separation from service. 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 right to
be reinstated with the Company by delivering written notice of same
to the Company within three (3) business days of the date of such
final determination.
2
3. Section 5
is amended to read as follows:
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 Comp
