Exhibit
10.58
RESTATED
CHANGE IN CONTROL AGREEMENT*
(as amended through March 9, 2005)
THIS
AGREEMENT, dated as of the [SEE ATTACHED SCHEDULE A], is by and
between SPHERION CORPORATION, a Delaware corporation (hereinafter
referred to as the “ Company ”), and [SEE
ATTACHED SCHEDULE A] (hereinafter the “ Executive
”).
RECITALS
A.
The Board of
Directors of the Company (the “ Board ”)
considers it essential to the best interests of the Company and its
stockholders that its key management personnel be encouraged to
remain with the Company and its subsidiaries and to continue to
devote full attention to the Company’s business in the event
that any third person expresses its intention to complete a
possible business combination with the Company, or in taking any
other action which could result in a “ Change in
Control ” (as defined herein) of the Company. In this
connection, the Board recognizes that the possibility of a Change
in Control and the uncertainty and questions which it may raise
among management may result in the departure or distraction of key
management personnel to the detriment of the Company and its
stockholders. The Board has determined that appropriate steps
should be taken to reinforce and encourage the continued attention
and dedication of key members of the Company’s management to
their assigned duties without distraction in the face of the
potentially disturbing circumstances arising from the possibility
of a Change in Control of the Company.
B.
The Executive
currently serves as the Company’s [SEE ATTACHED SCHEDULE A],
and [her/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 [her/his] position, and that the Company
and the Board be able to receive and rely upon [her/his] advice, if
so requested, as to the best interests of the Company and its
stockholders without concern that [she/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 [SEE
ATTACHED SCHEDULE A] (the “ Prior CIC Agreement”
).
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, which
supercedes the Prior CIC 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 . ( Amended March 9,
2005 ) For purposes of this Agreement, a “ Change in
Control ” of the Company shall be deemed to have occurred
upon any of the following events as such are defined in Section
409A of the Internal Revenue Code of 1986, as amended: (i) a change
in the ownership of the Company; (ii) a change in effective control
of the Company; or (iii) a change in the ownership of a substantial
portion of the assets 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.
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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;
(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:
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(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;
(V)
commission by the Executive of an
act which constitutes a misdemeanor (involving an act of moral
turpitude) or a felony;
(VI)
the material violation of any of the
written Policies of the Company which are not inconsistent with
this Agreement or applicable law (after 30 days following
written notice from the Board specifying such failure, and the
Executive’s failure to cure or remedy such inattention or
failure within such 30-day period);
(VII)
refusal to perform the
Executive’s assigned duties and responsibilities or other
insubordination (after 30 days following written notice from the
Board specifying such refusal or insubordination, and the
Executive’s failure to cure or remedy such refusal or
insubordination within such 30-day period); or
(VIII)
unsatisfactory performance of duties
by the Executive as a result of alcohol or drug use by the
Executive.
(b)
The Executive
may terminate [her/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
[her/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.
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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/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 [she/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
[she/he] performed [her/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
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the other
party hereto. Any “ Notice of Termination ”
shall set forth (a) the effective date of termination, which
shall not be less than 15 or more than 30 days after the date
the Notice of Termination is delivered (the “ Termination
Date ”); (b) the specific provision in this
Agreement relied upon; and (c) in reasonable detail the facts
and circumstances claimed to provide a basis for such termination
and the entitlement, or lack of entitlement, to the benefits set
forth in this Agreement. Notwithstanding the foregoing, if within
fifteen (15) days after any Notice of Termination is given,
the party receiving such Notice of Termination notifies the other
party that a good faith dispute exists concerning the termination,
the actual Termination Date shall be the date on which the dispute
is finally determined in accordance with the provisions of
Section 18 hereof. In the case of any good faith dispute as to
the Executive’s entitlement to benefits under this Agreement
resulting from any termination by the Company for which the Company
does not deliver a Notice of Termination, the actual Termination
Date shall be the date on which the dispute is finally determined
in accordance with the provisions of Section 18 hereof.
Notwithstanding the pendency of any such dispute referred to in the
two preceding sentences, the Company shall continue to pay the
Executive [her/his] full compensation then in effect and continue
the Executive as a participant in all compensation, benefits and
perquisites in which [she/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 [her/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,
