Exhibit 10.1
EMPLOYMENT
AGREEMENT
THIS EMPLOYMENT AGREEMENT (the
“Agreement”) is entered into as of October 2,
2009, between Kforce Inc., a Florida corporation (the
“Employer” or the “Company”), and Randy
Marmon (the “Executive”).
BACKGROUND
The Employer desires to continue to
obtain the benefit of services by the Executive, and the Executive
desires to continue to render services to the Employer.
The Compensation Committee of the
Board of Directors of the Employer has determined that it is in the
Employer’s best interest and that of its shareholders to
recognize the substantial contribution that the Executive has made
and is expected to make in the future to the Employer’s
business and to continue to retain Executive’s services in
the future.
The Employer and the Executive
desire to set forth in this Agreement the terms and conditions of
the Executive’s employment with the Employer. Accordingly, in
consideration of the mutual covenants and representations set forth
below, the sufficiency of which is hereby acknowledged, the
Employer and the Executive agree as follows:
TERMS
1. EMPLOYMENT .
The Executive agrees to continue
employment with the Employer (and one or more of the
Employer’s subsidiary corporations if and when assigned by
Employer) to render the services specified in this Agreement upon
the terms and conditions and for the compensation provided in this
Agreement, and Employer agrees to so employ Executive. All
compensation paid to the Executive by the Employer or any
subsidiary of the Employer, and all benefits and perquisites
received by the Executive from the Employer or any of its
subsidiaries, will be aggregated in determining whether the
Executive has received the compensation and benefits provided for
in this Agreement.
2. TERM OF EMPLOYMENT
.
(a) End of Term . The term of
the employment of the Executive under this Agreement will be for
the period commencing on the date of this Agreement and ending on
the earliest of:
(i) Two years after notice of
termination of this Agreement is given by the Employer to the
Executive;
(ii) the date of termination of the
Executive’s employment by the Executive at Executive’s
election and without “Good Reason” (as defined in
Section 9 of this Agreement);
(iii) the date of termination of the
Executive’s employment by the Employer for
“Cause” (as defined in Section 8 of this
Agreement) or by the Employer without Cause in accordance with
Section 9 or by the Executive for Good Reason pursuant to
Section 9;
(iv) the date of the
Executive’s death; or
(v) the Disability Effective Date
(as such term is defined in Section 5 of this Agreement)
following the Executive’s Disability (as such term is defined
in Section 5 of this Agreement).
It is understood that at each and
every moment of time the remaining term of employment hereunder
shall be two years, unless this Agreement or Executive’s
employment is terminated in accordance with the provisions of this
Section 2.
(b) Date of Termination . As
used in this Agreement the term “Date of Termination”
means (i) if the Executive’s employment is terminated by
the Employer pursuant to clause (i) of Section 2(a)
above, the date that is two years after the date of the
Executive’s receipt of the notice of termination of this
Agreement or any later date specified in such notice, as the case
may be, (ii) if the Executive terminates Executive’s
employment at Executive’s election and without Good Reason
pursuant to clause (ii) of Section 2(a), the date of the
Employer’s receipt of the notice of termination from the
Executive or any later date specified in such notice, as the case
may be, (iii) if the Executive’s employment is
terminated by the Employer for Cause or by the Employer without
Cause pursuant to Section 9 of this Agreement, or by the
Executive for Good Reason, fifteen days after the date of receipt
of the notice of termination by the Executive or the Employer,
respectively, or any later date specified in such notice, as the
case may be, (iv) if the Executive’s employment
terminates by reason of the Executive’s voluntary retirement,
the date that such retirement becomes effective in accordance with
the Employer’s plans and policies; and (v) if the
Executive’s employment is terminated by reason of death or
Disability, the date of death of the Executive or the Disability
Effective Date (as that term is defined in Section 5 of this
Agreement).
3. SERVICES TO BE RENDERED;
EXCLUSIVITY .
(a) Service . During the term
of the Executive’s employment under this Agreement, the
Executive shall perform the duties of Chief Customer Development
Officer, or any reasonably comparable duties that may be assigned
to the Executive from time to time.
(b) Full Time Efforts .
During the term of this Agreement and excluding any periods of
vacation, family or sick leave or holidays to which the Executive
is entitled, the Executive shall devote Executive’s full
business time and energy to the business, affairs and
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interests of the Employer and its subsidiaries,
and matters related thereto, and shall use Executive’s
reasonable commercial efforts and ability to promote the interests
of the Employer and its subsidiaries. The Executive agrees that
he/she will diligently endeavor to promote the business, affairs
and interests of the Employer and its subsidiaries and that
Executive will perform services contemplated hereby in accordance
with the policies established by the Employer from time to time.
The Executive shall serve without additional remuneration in such
senior executive capacities for one or more direct or indirect
subsidiaries of the Employer as the Employer may from time to time
request, subject to appropriate authorization by the subsidiary or
subsidiaries involved and any limitations under applicable law and
indemnification on the same terms as the Executive is indemnified
by the Employer. The failure of the Executive to discharge an order
or perform a function because the Executive reasonably and in good
faith believes such would violate a law or regulation or be
dishonest shall not be deemed a breach by Executive of
Executive’s obligations or duties under this Agreement and
shall not entitle the Employer to terminate this Agreement pursuant
to any of its provisions.
(c) Certain Permissible
Activities . The Executive may serve as a director or in any
other capacity of any business enterprise, including an enterprise
whose activities may involve or relate to the business of the
Employer or any of its subsidiaries but only if such service is
expressly approved by the Employer in writing. The Executive may
(i) make and manage personal business investments of
Executive’s choice, (ii) teach at educational
institutions and deliver lectures, and (iii) serve in any
capacity with any civic, educational or charitable organization, or
any governmental entity or trade association, in each such case
without seeking or obtaining approval by the Employer so long as
such activities and service do not materially interfere or conflict
with the performance of Executive’s duties under this
Agreement. It is agreed that to the extent that the Employer shall
have approved any service of the Executive pursuant to the first
sentence of this Section 3(c) prior to a Change in Control
Date (as defined in Section 10 below), or to the extent that
the Executive may have engaged in activities pursuant to the second
sentence of this Section 3(c) prior to such Change in Control
Date, the continued conduct of such activities or the conduct of
activities similar in nature and scope thereto during the two years
subsequent to such Change in Control Date shall be permissible and
not in violation of any provisions of this Agreement and the
previously obtained Employer approval may not be revoked or limited
in any material respect during the two years following such Change
in Control Date.
4. COMPENSATION AND BENEFITS
.
(a) Base Salary . The
Employer agrees that the Executive will be paid for
Executive’s services under this Agreement a salary at the
annual rate of at least $300,000 payable in periodic installments
in accordance with the Employer’s normal salary payment dates
for the Executive. Such salary as in effect from time to time is
referred to in this Agreement as the Executive’s “Base
Salary.”
(b) Additional Benefits . The
Executive shall also be entitled during the term of this Agreement
to all rights and benefits for which Executive is otherwise
eligible under any bonus plan, stock option plan, stock purchase
plan, participation or extra
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compensation plan, supplemental executive
retirement plan, deferred compensation plan, profit-sharing plan,
life, medical and dental insurance policy, director and officer
liability insurance plan or indemnification program, vacation, sick
leave, family leave and holiday program or plan, or plans that
confer the use of automobiles or condominiums (and pay the related
expenses thereof) or that pay for club membership fees or tax or
financial counseling or other plans or benefits, in any such case,
which the Employer or any of its subsidiaries (i) may provide
for the Executive or (ii) provided the Executive is eligible
to participate therein, may provide generally to officers of the
Employer (collectively, “Additional Benefits”). This
Agreement shall not affect adversely (from the perspective of the
Executive) the provisions of any other compensation, retirement or
other benefit program or plan of the Employer or any of its
subsidiaries and shall not be considered to be a guarantee that the
Executive will receive any awards or other benefits under any
plans, policies or arrangements which are performance-related.
Moreover, Executive’s participation in any such plan shall be
subject to the provisions of applicable law, including the Employee
Retirement Income Security Act of 1974, as amended.
(c) Individual Benefits . The
Employer shall continue to provide to the Executive such individual
perquisites as are in effect for Executive as of the first day of
Executive’s employment under this agreement.
(d) Expense Reimbursement .
The Employer agrees to reimburse the Executive in full for all such
reasonable and necessary business, entertainment and travel
expenses incurred or expended by Executive in connection with the
performance of Executive’s duties under this Agreement;
provided the Executive submits to the Employer vouchers or expense
statements satisfactorily evidencing such expenses as may be
reasonably required by the Employer and such expenses are in
accordance with any applicable corporate policy.
(e) Limitations on Reductions
. The Employer shall have the right to reduce one or more
Additional Benefits but only in conjunction with a corollary
reduction of such benefits applicable to all of the
Employer’s officers. Any increase in the Executive’s
Base Salary shall not serve to limit or reduce any other obligation
to the Executive under this Agreement.
(f) Benefits Upon Retirement
. Employer shall establish an executive retirement plan (“the
Kforce Executive Retirement Plan”) in which Executive shall
be entitled to participate according to its terms and conditions.
Employer shall also establish a health, dental and vision plan for
retired executives (“the Retirement Health Plan”) in
which Executive shall be entitled to participate according to its
terms and conditions. Should Executive retire while employed by
Kforce, and qualify for retirement benefits under the Kforce
Executive Retirement Plan, Executive will be eligible to elect at
that time, on behalf of himself and his spouse, to participate in
the Retirement Health Plan. If Executive elects to participate in
the Retirement Health Plan at retirement, Employer shall maintain
such plan in existence until the death (or election to cease
participating) of Executive and Executive’s participating
spouse.
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5. TERMINATION UPON
DISABILITY .
(a) Continuation of Benefits upon
Disability . If the Executive becomes totally and permanently
unable to perform Executive’s duties because of any
Disability (as defined below) during the term of Executive’s
employment under this Agreement, the Executive’s full-time
employment under this Agreement shall terminate effective on the
thirtieth day after the Executive’s receipt of written notice
of termination from the Employer (such thirtieth day being referred
to in this Agreement as the “Disability Effective
Date”). In addition to the payments specified in
Section 6 below, in the event of termination of the
Executive’s employment pursuant to this Section 5, the
Employer shall continue to pay or provide the Executive the
following:
(i) until the earliest to occur of
the Executive’s death, the Executive’s 65th birthday or
two years after the Disability Effective Date (such earliest day
being referred to herein as the “Disability Termination of
Benefits Date”) the Base Salary, medical, dental and other
insurance and welfare type Additional Benefits in which the
Executive was participating immediately prior to the Disability
Effective Date (including, without limitation, medical, dental,
life and disability insurance), each such benefit to be continued
in a manner no less favorable to the Executive than the benefit to
which Executive was entitled immediately prior to the Disability
Effective Date; provided , however , if the
Executive’s death occurs during the two years after the
Disability Effective Date, the Employer shall continue to pay the
Base Salary and to pay or provide medical, dental and other
insurance and welfare type benefits, on the basis described in this
clause (i), to the Executive’s family members who were
covered for such benefits immediately prior to the
Executive’s death for the balance of such two year
period;
(ii) until the Disability Effective
Date, a continuation of vesting of all unvested stock options
granted by the Employer to the Executive, such vesting to occur in
accordance with the terms of each such grant as in effect on the
Disability Effective Date and upon the assumption that no
termination of employment had occurred; provided ,
however , if the Executive’s death occurs during the
two years immediately after the Disability Effective Date or if a
Change in Control occurs prior to the Disability Effective Date,
such vesting shall include any vesting which would occur upon the
Executive’s death or a Change in Control during employment
with the Employer; and provided , further , that, if
and to the extent further vesting is prohibited by the terms of any
one or more of such grants or otherwise, the Executive shall be
entitled to in-lieu cash payments from the Employer on each date
(each a “Vesting Date”) when vesting would have
occurred absent such prohibition, but in no event beyond two years
following the Disability Effective Date, equal to the spread on
such Vesting Date between the exercise price and fair market value
of stock subject to stock options that would have otherwise vested
on such Vesting Date; and provided , further , that
if, after the Disability Effective Date, it is or becomes
impossible on any date to continue to calculate any future in-lieu
cash payments based on such continuation of vesting, the Executive
shall thereupon be entitled immediately to the additional vesting
which would normally have occurred during such two year period
following the Disability Effective Date with respect to the
affected type of in-lieu cash payments described above and shall be
entitled immediately to receive payment of the amount specified for
such type of in-lieu cash payments based on such additional vesting
as of such date; and
(iii) until the Disability
Termination of Benefits Date, if the Executive is a participant in
such plans on the Executive’s Disability Effective Date,
a
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continuation of crediting of additional years of
cumulative service (for all purposes, including for purposes of
accrual and vesting of benefits and equity-based incentives) under
any Executive Retirement Plan, Deferred Compensation Plan and/or
Senior Supplemental Executive Retirement Plan (collectively, the
“SERP”) in accordance with the terms of the SERP and
upon the assumption that no termination of employment had occurred;
provided , however , that if the Disability
Termination of Benefits Date occurs due to the Executive’s
death during the two years immediately after the Disability
Effective Date or if a Change in Control occurs prior to the
Disability Termination of Benefits Date, such continuation shall
include any further accrual and vesting which would occur upon the
Executive’s death or a Change in Control during employment
with the Employer; and
(b) Offset . The obligations
of the Employer to make payments under this Agreement to the
Executive, pursuant to this Section 5, following
Executive’s Disability shall be reduced prospectively to the
extent that the Executive receives payment of amounts under any
salary continuation or similar feature contained in any disability
insurance policy covering the Executive or under any salary
continuation or similar feature under Social Security or any
similar federal, state or local program. In addition, any medical,
dental and other insurance and welfare type Additional Benefits to
be provided by the Employer pursuant to clause (i) of
Section 5(a) shall be secondary to any similar benefits
provided by Social Security, Medicare, any private insurance
maintained by or covering the Executive or any other similar plan
or program covering the Executive. The Executive shall provide to
the Employer upon written request from time to time a certification
as to the types and amounts of the benefits referred to in the
first two sentences of this Section 5(b) received by the
Executive or to which Executive is entitled.
(c) Substitution of Benefits
. If the Executive’s full-time services are terminated due to
Executive’s Disability and the Executive is entitled under
the terms of this Agreement to, but is no longer eligible under the
relevant plan for, Additional Benefits because of such termination,
the Executive (or in the event of Executive’s death prior to
the date that is two years after the Disability Effective Date,
Executive’s designated Beneficiaries (as defined in
Section 7 below)) shall be entitled to, and the Employer shall
provide, to the extent required by in this Agreement, benefits
substantially equivalent to such Additional Benefits to which the
Executive was entitled immediately prior to Executive’s
Disability and shall do so for the period during which Executive
remains entitled to receive such Additional Benefits as provided in
this Section 5. With respect to the continuation of such
benefits, the Executive or Executive’s Beneficiaries (as such
term is defined in Section 7) shall also be paid by the
Employer an amount which, after federal, state, local or other
income or other taxes on such amount, shall reimburse the Executive
(or Executive’s Beneficiaries) for any additional tax
liabilities incurred by the Executive (or any such Beneficiary) by
reason of the receipt of such benefits after the termination of,
rather than during the term of, Executive’s employment under
this Agreement. Any such reimbursement for additional tax
liabilities shall be paid no later than the end of the calendar
year following the calendar year in which the Executive or
Executive’s Beneficiaries remit the related taxes.
(d) Partial Disability . In
the event of a partial Disability of the Executive, it is
understood that the Executive will provide such part-time services
as may be
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consistent with the nature and extent of such
Disability and Executive’s position, duties, responsibilities
and status specified in Section 3(a) of this Agreement, the
Employer shall not be entitled to terminate the Executive’s
employment under this Agreement as a result of such partial
Disability (provided that despite such partial disability, the
Executive is able to substantially perform most of
Executive’s duties), and the terms and conditions of this
Agreement shall remain in full force and effect after such partial
Disability.
(e) Definition of Disability
. As used in this Agreement, the term “Disability”
means the Executive meets one of the following
requirements:
(i) The Executive is unable to
engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment that can be
expected to result in death or can be expected to last for a
continuous period of not less than twelve months; or
(ii) The Executive is, by reason of
any medically determinable physical or mental impairment that can
be expected to result in death or can be expected to last for a
continuous period of not less than twelve months, receiving income
replacement benefits for a period of not less than three months
under an accident and health plan covering employees of the
Employer.
6. DEATH OF THE EXECUTIVE
.
(a) Vesting of Options . If
the Executive dies while an employee of the Employer or while
receiving any payments on account of a Disability as set forth in
Section 5 above and during the term of this Agreement, all
stock options, restricted stock or other equity grants, and all
other long term incentive grants or awards standing in the name of
the Executive shall immediately fully vest and must be exercised
within 90 days of the date of the Executive’s death by the
appropriate beneficiary.
(b) Continuation of Base Salary
and Benefits . If the Executive dies while an employee of the
Employer and during the term of this Agreement, the Employer shall
continue to pay the Base Salary and to pay or provide medical,
dental and other insurance and welfare type benefits, on the basis
described in Section 5(a)(i), to the Executive’s family
members who were covered for such benefits immediately prior to the
Executive’s death, for a period of two years following
Executive’s death.
7. PAYMENTS AND BENEFITS UPON
TERMINATION OF EMPLOYMENT FOR ANY REASON .
On the Date of Termination of the
Executive’s employment under this Agreement for any reason
whatsoever, the Executive’s Base Salary will cease thereafter
to accrue except as specifically provided in Sections 5, 6 or 9 and
the Executive (or in the event of Executive’s death,
Executive’s designated beneficiaries, Executive’s
personal representative, or the executor or administrator of
Executive’s estate (Executive’s
“Beneficiaries”)) will be entitled to such
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rights and benefits under the Employer’s
compensation and benefit plans, policies and arrangements in which
the Executive is then a participant as may be provided for under
such plans, policies and arrangements (which shall not be modified
adversely to the Executive or Executive’s Beneficiaries after
Executive’s Date of Termination). In addition, the Employer
shall:
(a) pay and deliver to the Executive
(or, in the event of Executive’s death, to Executive’s
Beneficiaries) not later than thirty days after Executive’s
Date of Termination, all amounts of money and all stock or other
property owed to Executive by the Employer as of the Date of
Termination, including but not limited to Executive’s accrued
Base Salary, any amounts payable in lieu of accrued vacation,
amounts payable to Executive under any expense reimbursement plans
or policies for expenses incurred through the Date of Termination,
the amount of any bonus due under any incentive plan to the
Executive for any bonus period or performance measurement cycle of
the Employer that ended prior to the Date of Termination which
remained unpaid on the Date of Termination and any compensation
previously deferred by the Executive and any accrued interest on
earnings on such deferred compensation to the extent not previously
paid to the Executive;
(b) cause the trustee of any
trusteed plan of the Employer to pay and deliver, and the Employer
shall pay and deliver under any similar non-trusteed plan of the
Employer, to the Executive (or, in the event of Executive’s
death, to Executive’s Beneficiaries), at the earliest
practicable date after payments become due under such plan, all
money, stock and other property which such plans require to be paid
or delivered or are otherwise payable or deliverable to Executive
after the termination of Executive’s employment;
(c) continue to insure the Executive
(or, in the event of Executive’s death, Executive’s
Beneficiaries) with respect to Executive’s activities as a
director, officer or Executive of the Employer or any of its
subsidiaries, for a period of three years after such Date of
Termination, under such policies of director and officer liability
insurance as Employer shall provide for its senior officers
generally; provided , however , that if a Change in
Control shall have occurred prior to such Date of Termination or
shall thereafter occur, such policies of insurance shall be no less
favorable to the Executive than such policies as may have been in
effect for the Executive at any time during the one hundred twenty
day period immediately preceding the Change in Control Date;
and
(d) continue to honor such rights to
indemnification as the Executive (or, in the event of
Executive’s death, Executive’s Beneficiaries) may be
entitled pursuant to any plan of indemnification or indemnification
agreement in effect at the Date of Termination.
(e) The Executive immediately waives
any right or entitlement to the payments and benefits described in
Section 7(a) – (d) above in the event that the
Executive breaches any term or provision of this Agreement or the
Confidentiality Agreement and Restrictive Covenant and in the event
of such breach the Executive will pay to the Employer any damages
the Employer may be able to recover, in addition to any other
relief to which Employer may be entitled.
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8. TERMINATION OF EMPLOYMENT BY
EMPLOYER FOR CAUSE .
(a) Definition of Cause . The
Employer may terminate the Executive’s employment under this
Agreement if the termination is for Cause. For purposes of this
Agreement, the Employer shall have “Cause” to terminate
the Executive’s employment under this Agreement if, and only
if, any of the following shall occur:
(i) the Executive’s conviction
by a court of competent jurisdiction or entry of a guilty plea or a
plea of nolo contendere for an act on the Executive’s part
constituting any felony; or
(ii) a willful breach by the
Executive of any provisions of this Agreement if such breach
results in demonstrably material injury to the Employer.
(iii) the Executive’s willful
dishonesty or fraud with respect to business or affairs of the
Employer if such dishonesty or fraud results in demonstrable
material injury to Employer.
(b) Procedural Requirements .
The Executive’s employment under this Agreement shall not be
subject to termination for Cause without: (i) reasonable
notice to the Executive setting forth the reasons for
Employer’s intention to terminate and specifying the
particulars thereof in detail, and (ii) an opportunity for the
Executive to cure any such breach, if possible, within thirty days
after receipt of such notice.
9. TERMINATION OF EMPLOYMENT BY
THE EXECUTIVE FOR GOOD REASON OR BY EMPLOYER WITHOUT CAUSE
.
(a) Definition of Good Reason
. The Executive may terminate Executive’s employment under
this Agreement and all of Executive’s obligations under this
Agreement to the Employer accruing after the date of such
termination (other than Executive’s obligations under
Sections 12, 13, 16, 18, 19, 26 and 27) if the termination is for
“Good Reason,” which for purposes of this Agreement is
defined as:
(i) failure by the Employer to
perform any of its obligations hereunder (including, but not
limited to, Employer’s obligations under Sections 3 and 4)
other than an isolated, insubstantial and inadvertent failure not
occurring in bad faith; or
(ii) the diminution of the
Executive’s salary and or a material diminution of the
Executive’s benefits, except in connec
