SEPARATION, CONSULTING AND NON-COMPETITION AGREEMENT
----------------------------------------------------
THIS SEPARATION, CONSULTING AND NON-COMPETITION AGREEMENT (this
"Agreement") is made and entered into this 17th day of August, 1999, by and
among Xxxxxxx Xxxxxxx (the "Executive"), Adecco SA, a societe anonyme organized
under the laws of Switzerland ("Adecco"), and Olsten Corporation, a Delaware
corporation ("the Company").
RECITALS
--------
WHEREAS, the Boards of Directors of the Company and Adecco have each
approved the merger (the "Merger") of Staffing Acquisition Corporation, a
Delaware corporation and a wholly owned subsidiary of Adecco ("Merger Sub"),
with and into certain businesses of the Company pursuant to an Agreement and
Plan of Merger (the "Merger Agreement"), dated as of August 17, 1999, by and
among Adecco, Merger Sub and the Company;
WHEREAS, Adecco, the Company and the Executive desire that the
Terminating Prior Agreements (as defined herein) terminate at the "Effective
Time" of the Merger, as defined in the Merger Agreement (the "Effective Time"),
and that the Executive will become a consultant to Adecco and its subsidiaries
immediately at the Effective Time pursuant to this Agreement;
WHEREAS, this Agreement will become effective only if the Merger is
consummated;
WHEREAS, the covenants provided herein, including the Executive's
noncompetition and nonsolicitation covenants set forth in Sections 6.1 and 6.2
are material, significant and essential to effecting the transactions
contemplated by the Merger Agreement; and
WHEREAS, Adecco, the Executive and the Company desire to enter into
this Agreement on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing recitals, the mutual
promises contained herein, and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties hereto agree
as follows:
AGREEMENT
---------
1. TERMINATION OF EMPLOYMENT
-------------------------
1.1. Termination of Employment. Effective at the Effective Time, the
Executive's employment with the Company and its subsidiaries and affiliates
shall terminate. The Executive shall resign from all positions with or relating
to the Company and its subsidiaries and affiliates, effective at the Effective
Time. Effective at the Effective Time, the Executive shall become a consultant
to Adecco and its subsidiaries on the terms and subject to the conditions set
forth herein.
1.2. Termination of Certain Prior Agreements. Effective at the
Effective Time, the agreement or agreements listed on Exhibit A hereto (the
"Terminating Prior Agreements") shall terminate and the Executive shall waive
any and all rights under the Terminating Prior Agreements, whether arising prior
to, at or following the Effective Time, and Adecco, the Company and their
subsidiaries and affiliates shall have no further obligation or liability under
such Terminating Prior Agreements. In consideration of the termination of the
Terminating Prior Agreements and the Executive's waiver of any and all rights
under the Terminating Prior Agreements, the Company shall pay to the Executive a
lump sum payment, in cash, in the amount of One Million Sixteen Thousand Four
Hundred Thirty-Six Dollars ($1,016,436) (less amounts required to be withheld
under applicable law), payable at the Effective Time.
1.3. Termination of Other Rights to Compensation and Benefits.
Effective at the Effective Time, the Executive shall waive any and all rights to
compensation or benefits from Adecco, the Company and their subsidiaries and
affiliates (including, without limitation, any and all rights under any plan,
program, agreement or arrangement (whether or not in writing) maintained by
Adecco, the Company or any of their subsidiaries or affiliates or under which
Adecco, the Company or any of their subsidiaries or affiliates has any
obligation or liability), and Adecco, the Company and their subsidiaries and
affiliates shall have no further obligation or liability to the Executive with
respect to any such compensation or benefits, except for: (a) any rights of the
Executive to accrued, unpaid salary from the Company at the Effective Time, (b)
any rights of the Executive to reimbursement of business expenses, incurred by
the Executive prior to the Effective Time, in accordance with the Company's
executive reimbursement policies, (c) any rights of Executive with respect to
options or restricted stock awards granted to the Executive under the Company's
1994 Stock Incentive Plan or Incentive Restricted Stock Plan, that are
outstanding at the Effective Time, subject to the terms and conditions of the
agreements governing such options or restricted stock awards, such Plans and the
Merger Agreement, (d) any rights to benefits to which the Executive (or the
Executive's beneficiaries) shall be entitled in accordance with the employee
benefit plans of the Company (as in effect from time to time) (other than any
rights to benefits pursuant to the Terminating Prior Agreements) or in
accordance with applicable law, (e) Executive's rights to indemnification or
similar reimbursement pursuant to the certificate of incorporation or by-laws of
the Company and its subsidiaries, by contract or otherwise; and (f) Executive's
rights under this Agreement. Subject to the terms of any applicable trust
agreement, the Company may recover any assets held in trust in connection with
the Executive's rights to benefits pursuant to any Terminating Prior Agreement
that are waived in accordance with Section 1.2.
2. CONSULTING ARRANGEMENT
----------------------
2.1. Consulting Services. From and after the Effective Time, the
Executive shall provide services as a consultant to Adecco and its subsidiaries
as contemplated by this Agreement, and the Executive hereby agrees to provide
such consulting services and to comply with the other provisions of this
Agreement, upon the terms and subject to the conditions hereinafter set forth.
2
2.2. Nature of Consulting and Other Services. In his rendering of
consulting services for the benefit of Adecco and its subsidiaries hereunder,
the Executive shall from time to time provide Adecco, Adecco's Board of
Directors, and Adecco's executive officers with such advice as any of them may
reasonably request in connection with the business and operations of Adecco and
its subsidiaries and affiliates. The Executive shall provide such advice only at
the request of Adecco's Board of Directors or its executive officers. The
Executive shall hold himself available at reasonable times and on reasonable
notice to render such consulting and advisory services as may be so assigned to
him by Adecco, Adecco's Board of Directors, or Adecco's executive officers
during the Consulting Term (as defined below); provided, however, that, unless
the parties otherwise agree, the consulting and advisory services rendered by
the Executive during the Consulting Term shall not exceed fifteen (15) hours
each calendar month. Without limiting the foregoing, the Executive shall, upon
the reasonable request of the persons specified above, (a) consult with Adecco
and its subsidiaries with respect to all matters concerning the Company or
Adecco in which the Executive had personal involvement during his period of
employment and/or directorship with the Company or Adecco, (b) assist Adecco and
its subsidiaries in the negotiation and consummation of business matters and
prospects pending at the time of the termination of his employment and
thereafter, and (c) cooperate with and assist Adecco and its subsidiaries in
undertaking and preparing for legal and other proceedings relating to the
affairs of Adecco and its subsidiaries. In connection with the consulting
services rendered by him hereunder, the Executive shall (i) undertake such
travel on Adecco's or Adecco's subsidiaries' behalf (and at Adecco's or Adecco's
subsidiaries' expense) as Adecco and the Executive shall agree, and (ii)
negotiate as Adecco's or its subsidiaries' representative when and as reasonably
requested to do so by Adecco's Board of Directors or its executive officers.
2.3. Nature of Consulting and Other Services. It is understood that
the Executive is to act as a consultant and advisor to Adecco and its
subsidiaries, and is not an employee or agent of, or co-venturer with, Adecco or
any of its subsidiaries in any respect. The Executive shall have no right,
authority, or power to act for or on Adecco's behalf other than as described in
Section 2.2 above. The relationship between Adecco and its subsidiaries, on the
one hand, and the Executive, on the other, hereunder shall be that of
independent contractor.
3. TERM
----
The Executive hereby agrees to provide the consulting services
contemplated by this Agreement for a term of four (4) years, commencing at the
Effective Time and terminating on the fourth anniversary of the Effective Time
(the "Consulting Term"). In the event of the death or permanent disability of
the Executive after the Effective Time and prior to the end of the Consulting
Term, the remaining fees under Sections 4.1 and 4.2 that would have been payable
through the end of the Consulting Term shall continue to be paid through the end
of the Consulting Term to the Executive or, in the event of the Executive's
death, to the beneficiary designated in writing by the Executive (or, in the
absence of a designated beneficiary who survives the Executive, Executive's
estate).
3
4. CONSULTING, NON-COMPETITION AND NON-SOLICITATION FEES
-----------------------------------------------------
4.1. Consulting Fees. In consideration of the consulting services
provided hereunder, the Company shall pay the Executive an annual consulting
fee, in cash, in the amount of Fifty Thousand Dollars ($50,000) (less amounts
required to be withheld under applicable law) payable during the Consulting
Term. Such annual consulting fee shall be payable in advance on a quarterly
basis. The fees payable to the Executive hereunder shall, subject to the other
terms and provisions of this Agreement, continue for the full period of the
Consulting Term even if the Executive obtains income from any other source,
including other full-time employment.
4.2. Non-Competition and Non-Solicitation Fees. In consideration of
the covenants undertaken by the Executive under Sections 6.1 and 6.2 hereof, the
Company shall pay the Executive: (a) a one-time non-competition and
non-solicitation fee, in cash, in the amount of Two Million Seven Hundred
Thousand Dollars ($2,700,000) (less amounts required to be withheld by
applicable law), payable at the Effective Time and (b) an annual non-competition
and non-solicitation fee, in cash, in the amount of Four Hundred Fifty Thousand
Dollars ($450,000) (less amounts required to be withheld under applicable law),
payable during the Consulting Term. Such annual non-competition and
non-solicitation fee shall be payable in advance on a quarterly basis. The fees
payable to the Executive hereunder shall, subject to the other terms and
provisions of this Agreement, continue for the full period of the Consulting
Term even if the Executive obtains income from any other source, including other
full-time employment.
4.3. Business Expenses. During the Consulting Term, the Executive
shall be entitled to receive prompt reimbursement for all reasonable business
expenses incurred by the Executive in accordance with the policies and practices
of the Company as in effect from time to time with respect to employees of the
Company.
4.4. Director Compensation. In the event that the Executive is a
member of Adecco's or the Company's Board of Directors, the Executive shall be
entitled to receive all compensation and fees as are payable by Adecco or the
Company, as applicable, to its directors from time to time. Notwithstanding
anything contained herein, time spent by the Executive in the performance of his
services as a member of Adecco's or the Company's Board of Directors shall not
be deemed to be the performance of consulting services hereunder.
4.5. Medical Benefits. During the period ending on the third
anniversary of the Effective Time, the Company shall provide the Executive (and
the Executive's dependents) with the coverage under the Company's group medical
plan or plans that is provided to executive officers of the Company (and their
dependents) under the terms of such plan or plans, as in effect from time to
time; provided, however, that, the Company's obligation hereunder shall
terminate upon the date the Executive becomes covered under any group medical
plan of the Executive's subsequent employer.
4
5. CONFIDENTIALITY
---------------
5.1. Confidentiality. The Executive acknowledges that, during the
course of his employment with the Company, the Executive has had, and during the
course of his engagement under this Agreement the Executive will have, access to
Confidential Information (as defined below) owned by the Company and/or Adecco
or used or involved in or incidental to their operations, business and affairs.
All such Confidential Information has been and will be disclosed to the
Executive in confidence. The Executive covenants that from and after the
Effective Time, he (a) will keep confidential all Confidential Information of
Adecco and its subsidiaries and affiliates which is known to him and, except
with the specific prior written consent of Adecco or as required to be disclosed
by law or the order of any agency, court or other governmental authority, will
not disclose any Confidential Information to any person other than Adecco, its
subsidiaries and affiliates, or their respective employees accountants, counsel
and other designated representatives as is appropriate in the course of his
consulting relationship, and (b) will not make any public statement which
disparages Adecco or any of its subsidiaries or any of their respective
employees, officers or directors, which is materially damaging to Adecco and its
subsidiaries taken as a whole. For purposes of this Agreement, "Confidential
Information" shall mean all know-how, trade secrets and other confidential
nonpublic information prepared for, by or on behalf of, or in the possession of,
the Company, Adecco or any of their subsidiaries or affiliates, including
without limitation (i) nonpublic proprietary information; (ii) other information
derived from reports, investigations, research, studies, work in progress,
codes, marketing, sales or service programs, capital expenditure projects, cost
summaries, equipment, product or system designs or drawings, pricing or other
formulae, contract analyses, financial information, projections, agreements with
vendors, joint venture agreements, confidential filings with any agency, court
or other governmental authority; and (iii) all other concepts, methods,
techniques and processes of doing business, ideas or information that can be
used in the operation of a business or other enterprise and is sufficiently
valuable, or potentially valuable, and secret to afford an actual or potential
economic advantage over others; provided, however, that Confidential Information
shall not include any information that is currently generally available to and
generally known by the public or, through no fault of the Executive, hereafter
becomes generally available to and generally known by the public.
5.2. Business Property. All records, files, drawings, documents and
the like relating to Adecco's or the Company's business or the business of any
of their subsidiaries or affiliates which the Executive shall prepare, use or
come into contact with, shall be and remain Adecco's sole property and shall not
be removed from the premises of Adecco, the Company or their subsidiaries and
affiliates without its written consent except as required in the course of the
Executive's consulting engagement. Upon the termination of the Consulting Term,
all such records, files, drawings, documents and the like that are in the
Executive's custody or control shall immediately be delivered by the Executive
to Adecco or its designee. The Executive acknowledges that his obligations in
this Section are of a unique character that gives them a special value to
Adecco, the loss of which cannot reasonably or adequately be compensated in
damages in an action at law, that a breach thereof will result in irreparable
and continuing harm to Adecco and its subsidiaries and that therefore, in
addition to any other remedy that Adecco or the Company may have at law or in
equity, Adecco and/or the Company shall be entitled to injunctive relief for a
breach thereof by the Executive.
5
6. NONCOMPETITION AND NONSOLICITATION
----------------------------------
6.1. Noncompetition. The Executive covenants that he will not, during
the period commencing at the Effective Time and terminating on the fourth
anniversary of the Effective Time (the "Restricted Period"), (a) accept
employment with or render service to any person, firm or corporation that is
engaged in the business(es) conducted by Adecco or any of its subsidiaries or
affiliates (as determined from time to time) in any market in which Adecco or
any of such subsidiaries or affiliates is then conducting such business(es); or
(b) own, manage, operate, or control, or participate in the ownership,
management, operation, or control of, or be connected as a principal, agent,
representative, consultant, advisor, investor, owner, partner, financier,
contractor, manager or joint venturer with, or permit his name to be used by or
in connection or association with, any person, firm or corporation that is
engaged in the business(es) conducted by Adecco or any of its subsidiaries or
affiliates in any market in which Adecco or any of its subsidiaries or
affiliates is then conducting such business(es); provided, however, that the
Executive may invest as an investor in the voting securities of any person that
is a reporting company under the Securities Exchange Act of 1934, as amended, so
long as the aggregate amount of the securities the Executive owns directly or
indirectly is less than five percent (5%) of the total outstanding voting
securities of that person. Notwithstanding anything contained herein to the
contrary, the Executive shall not be prohibited from accepting employment with,
rendering services to or otherwise engaging in any activity or capacity with any
entity engaged in the Health Services Business (as defined in the Merger
Agreement).
6.2. Nonsolicitation. The Executive covenants that he will not, during
the Restricted Period, otherwise than on behalf of Adecco or any of its
subsidiaries or affiliates (as determined from time to time), solicit the
employment of any person, or induce or advise any person to leave the employ of
Adecco or any of such subsidiaries or affiliates, if such person is, as of the
date of such solicitation, inducement or advisement, employed on a full- or
part-time basis by Adecco or any of its subsidiaries or affiliates.
6.3. Breach by Executive. Notwithstanding anything contained herein,
in the event that the Executive materially breaches any of the covenants
undertaken by him under Section 6.1 or 6.2, the Company's obligation to make the
compensation payments provided for in Section 4.1 or 4.2 hereof shall
automatically terminate (other than with respect to any such payments earned by
the Executive through the date of breach which have not theretofore been paid),
and the Executive shall automatically forfeit all of his right to and interest
in such payments.
6.4. Modification. If the noncompetition and/or nonsolicitation
covenants contained in the foregoing Sections 6.1 and 6.2 are, in the view of
any court or arbitrator asked to rule upon the issue, deemed unenforceable by
reason of covering too large an area, too long a period of time, too large a
number of entities or too many business activities, then the same shall be
deemed to cover only the largest area, the longest period, the largest number of
entities or the most business activities, as the case may be, that will not
render it unenforceable.
6
6.5. Specific Performance. The Executive acknowledges and agrees that
Adecco and the Company cannot be fully or adequately compensated in damages for
a violation of Section 6.1 or 6.2 hereof, and that, in addition to any other
relief to which Adecco or the Company may be entitled, it shall be entitled to
injunctive and equitable relief.
7. EXCISE TAX Gross-Up
-------------------
(a) Anything in this Agreement to the contrary notwithstanding, if it
shall be determined that any payment, distribution (or benefit provided
(including, without limitation, the acceleration of any payment, distribution or
benefit and the acceleration of exercisability of any stock option) to the
Executive or for his benefit (whether paid or payable or distributed or
distributable) pursuant to the terms of this Agreement or otherwise (the
"Payment") would be subject, in whole or in part, to the excise tax imposed by
section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (the
"Excise Tax"), then the Executive shall be entitled to receive from the Company
an additional payment (the "Gross-Up Payment") in an amount such that the net
amount of the Payment and the Gross-Up Payment retained by Executive after the
calculation and deduction of all Excise Taxes (including any interest or
penalties imposed with respect to such taxes) on the Payment and all federal,
state and local income tax, employment tax, self employment tax and Excise Tax
(including any interest or penalties imposed with respect to such taxes) on the
Gross-Up Payment provided for in this Section 7 and taking into account any lost
or reduced tax deductions on account of the Gross-Up Payment, shall be equal to
the Payment;
(b) All determinations required to be made under this Section 7,
including whether and when the Gross-Up Payment is required and the amount of
such Gross-Up Payment, and the assumptions to be used in arriving at such
determinations shall be made by the Accountants (as defined below) which shall
provide the Executive, Adecco and the Company with detailed supporting
calculations with respect to such Gross-Up Payment within ninety (90) days after
the Effective Time. For the purposes of this Section 7, the "Accountants" shall
mean PriceWaterhouseCoopers. For purposes of determining the amount of the
Gross-Up Payment, Executive shall be deemed to pay Federal income taxes at the
applicable marginal rate of federal income taxation for the calendar year in
which the Gross-Up Payment is to be made and to pay any applicable state and
local income taxes at the applicable marginal rate of taxation for the calendar
year in which the Gross-Up Payment is to be made, net of the reduction in
federal income taxes which could be obtained from the deduction of such state or
local taxes if paid in such year (determined with regard to limitations on
deductions based upon the amount of Executive's adjusted gross income). To the
extent practicable, any Gross-Up Payment with respect to any Payment shall be
paid by the Company at the time Executive is entitled to receive the Payment and
in no event shall any Gross-Up Payment be paid later than 30 days after the
receipt by the Executive of the Accountants' determination. Any determination by
the Accountants shall be binding upon the Company and the Executive, including
for purposes of withholding on amounts payable under this Agreement. As a result
of uncertainty in the application of Section 4999 of the Code at the time of the
initial determination by the Accountants hereunder, it is possible that the
Gross-Up Payment made will have been an amount that is greater or less than the
Company should have paid pursuant to this Section 7 (an "Overpayment" or
7
"Underpayment," respectively). In the event that the Gross-Up Payment is
determined by the Accountants or pursuant to any proceeding or negotiations with
the Internal Revenue Service to be less than the amount initially determined by
the Accountants, the Executive shall promptly repay the Overpayment to the
Company; provided, however, that in the event any portion of the Gross-Up
Payment to be repaid to the Company has been paid to any Federal, state or local
tax authority, repayment thereof shall not be required until actual refund or
credit of such portion has been made to the Executive. In the event that the
Company exhausts its remedies pursuant to Section 7 ( c ) and the Executive is
required to make a payment of any Excise Tax, the Underpayment shall be promptly
paid by the Company to or for the Executive's benefit; and
(c) The Executive shall notify Adecco and the Company in writing of
any claim by the Internal Revenue Service that, if successful, would require the
payment by the Company of the Gross-Up Payment. Such notification shall be given
as soon as practicable after the Executive is informed in writing of such claim
and shall apprise Adecco and the Company of the nature of such claim and the
date on which such claim is requested to be paid. The Executive shall not pay
such claim prior to the expiration of the 30-day period following the date on
which the Executive gives such notice to Adecco and the Company (or such shorter
period ending on the date that any payment of taxes, interest and/or penalties
with respect to such claim is due). If the Company notifies the Executive in
writing prior to the expiration of such period that it desires to contest such
claim, the Executive shall:
(i) give the Company any information reasonably requested by
the Company relating to such claim;
(ii) take such action in connection with contesting such
claim as the Company shall reasonably request in writing from time to
time, including, without limitation, accepting legal representation
with respect to such claim by an attorney reasonably selected by the
Company;
(iii) cooperate with the Company in good faith in order to
effectively contest such claim; and
(iv) permit the Company to participate in any proceedings
relating to such claims;
provided, however, that the Company shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest and shall indemnify Executive for and hold Executive harmless
from, on an after-tax basis, any Excise Tax, income tax, employment tax or self
employment tax (including interest and penalties with respect thereto) imposed
as a result of such representation and payment of all related costs and
expenses. Without limiting the foregoing provisions of this Section 7, the
Company shall control all proceedings taken in connection with such contest and,
at its sole option, may pursue or forgo any and all administrative appeals,
proceedings, hearings and conferences with the taxing authority in respect of
such claim and may, at its sole option, either direct the Executive to pay the
tax claimed and xxx for a refund or contest the claim in any permissible manner,
and the Executive agrees to prosecute such contest to a determination before any
administrative tribunal, in a court of initial jurisdiction and in one or more
8
appellate courts, as the Company shall determine. The Company's control of the
contest shall be limited to issues with respect to which a Gross-Up Payment
would be payable hereunder and Executive shall be entitled to settle or contest,
as the case may be, any other issue raised by the Internal Revenue Service or
any other taxing authority.
8. DISPUTE RESOLUTION
------------------
8.1. Arbitration. Except as provided in Section 6.5 hereof, in the
event that any disagreement, dispute, controversy or claim arising out of or
relating to this Agreement or the interpretation of this Agreement or any
arrangements relating to this Agreement or contemplated in this Agreement or the
breach, termination or invalidity thereof (collectively, a "Dispute") cannot be
resolved by the parties, and the parties do not agree to an alternate procedure
for resolving the Dispute, the Dispute shall be resolved by final and binding
arbitration, before a panel of three arbitrators in New York, New York
administered by the American Arbitration Association ("AAA"). The parties agree
to arbitration as an alternative to court proceedings in order (i) to obtain a
prompt evidentiary hearing and an arbitrator's final award resolving any
dispute, (ii) to do so expeditiously, and (iii) to do so economically. During
the arbitration proceeding, the arbitrator, in the arbitrator's sole discretion,
shall have the right to grant requests for discovery of documents, the taking of
depositions, and the issuance of subpoenas in accordance with rules of the AAA.
The Company and the Executive shall each have the right to designate one of such
arbitrators, and the two arbitrators shall together designate the third such
arbitrator. The forum for any such action shall be New York, New York. Each
party hereby promises to cooperate in the arbitration process to effectuate
these purposes. The arbitration shall be conducted in accordance with the rules
of the AAA which are in effect at the time of the arbitration. Judgment rendered
by the arbitrator may be entered in any court having competent jurisdiction in
accordance with Delaware law.
8.2. Waiver of Jury Trial. By submitting a Dispute to arbitration, the
parties hereto understand that they will not enjoy the benefits of a jury trial.
Accordingly, the parties hereto expressly waive the right to a jury trial.
9. MISCELLANEOUS
-------------
9.1. Termination of Merger Agreement. In the event that the Merger
Agreement terminates prior to the Merger, this Agreement shall thereupon
terminate and be of no further force or effect.
9.2. Assignment. This Agreement is personal to the Executive and
without the prior written consent of Adecco shall not be assignable by the
Executive other than by will or the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by the Executive's
legal representatives. This Agreement shall inure to the benefit of and be
binding upon the Company and its successors. Adecco shall require any successor
to all or substantially all of the business and/or assets of Adecco, whether
direct or indirect, by purchase, merger, consolidation, acquisition of stock, or
otherwise, by an agreement in form and substance reasonably satisfactory to the
Executive, expressly to assume and agree to perform this Agreement in the same
manner and to the same extent as Adecco would be required to perform if no such
succession had taken place. At the Effective Time, this Agreement shall be
assumed by, and hereby is assigned to Adecco.
9
9.3. Final and Entire Agreement; Amendment. The Executive acknowledges
and agrees that this Agreement represents the final and entire agreement among
the parties with respect to the subject matter hereof and, except as provided in
Section 1.3, supersedes all prior agreements (including, without limitation, the
Terminating Prior Agreements), negotiations and discussions between the parties
hereto and/or their respective counsel with respect to the subject matter
hereof. Accordingly, except for the rights of the Executive described in Section
1.3(a) through (f), upon the Company's fulfilling its obligations to the
Executive hereunder, the Executive agrees that Adecco, the Company and their
subsidiaries and affiliates shall have no further obligations or liability to or
in respect of the Executive under the Terminating Prior Agreements or any other
plan, program, agreement or arrangement. This Agreement may be amended, modified
or changed only by a written instrument executed by the Executive and the
Company, provided that no such amendment, modification or change shall be made
prior to the Effective Time without Adecco's prior written consent. No provision
of this Agreement may be waived except by a writing executed and delivered by
the party sought to be charged. Any such written waiver will be effective only
with respect to the event or circumstance described therein and not with respect
to any other event or circumstance, unless such waiver expressly provides to the
contrary.
9.4. Severability and Construction. In construing this Agreement, if
any portion of this Agreement shall be found to be invalid or unenforceable, the
remaining terms and provisions of this Agreement shall be given effect to the
maximum extent permitted without considering the void, invalid or unenforceable
provision. In construing this Agreement, the singular shall include the plural,
the masculine shall include the feminine and neuter genders as appropriate, and
no meaning or effect shall be given to the captions of the sections in this
Agreement, which are inserted for convenience of reference only.
9.5. Consultation With Counsel. The Executive represents and
acknowledges that he has discussed all aspects of this Agreement with his
attorney and that he has carefully read and fully understands all of its
provisions.
9.6. Expenses. Each of the Company, on one hand, and the Executive, on
the other, shall be liable for their own respective costs and expenses incident
to the execution of this Agreement and the consummation of the transactions
contemplated hereby. Should the Executive or his successors retain counsel for
the purpose of enforcing, or preventing the breach of, any provision hereof
(including, but not limited to, by instituting any action or proceeding in
arbitration or court to enforce any provision hereof or to enjoin a breach of
any provision of this Agreement) or for a declaration of such party's rights or
obligations under this Agreement, or any other remedy, whether in arbitration or
in a court of law, then, the Executive shall be entitled to be reimbursed by the
Company for all reasonable fees and expenses of attorneys and expert witnesses
and court costs (including such fees, expenses and costs of appeal), if the
Executive prevails with respect to a majority of his material claims in a
nonappealable judgment of a court of competent jurisdiction.
10
9.7. Cooperation in Legal Proceedings. Without limitation of Section
2.2(c) hereof, the Executive agrees, after the expiration of the Consulting
Term, upon the reasonable request of Adecco, to cooperate with and assist Adecco
and its subsidiaries in undertaking and preparing for legal and other
proceedings relating to the affairs of Adecco and its subsidiaries. The
Executive shall be reimbursed for the reasonable expenses he incurs in
connection with any such cooperation and/or assistance, and shall receive from
the Company reasonable per diem compensation in connection therewith, such per
diem to be mutually agreed upon by the Executive and the Company.
9.8. Notices. All notices and other communications provided to any
party under this Agreement shall be in writing and delivered by a reputable
overnight courier or other personal delivery to such party at its address set
forth below its signature hereto, or at such other address as may be designated
by such party in a notice to the other party. Any notice, if so delivered and
properly addressed with postage prepaid, shall be deemed given when received.
9.9. Withholding. Adecco or the Company, as applicable, may withhold
from any amounts payable under this Agreement such federal, state or local taxes
as shall be required to be withheld pursuant to any applicable law or
regulation.
9.10. Unfunded Obligation. Except as expressly provided otherwise in
this Agreement, the obligation to pay amounts under this Agreement is an
unfunded obligation of the Company, and no such obligation shall create a trust
or be deemed to be secured by any pledge or encumbrance on any property of
Adecco, the Company or any of their subsidiaries.
9.11. Governing Law. The provisions of this Agreement shall be
construed and interpreted in accordance with the internal laws of the State of
New York (without giving effect to the principles of conflict of laws thereof),
as at the time in effect.
9.12. Survival. The provisions of Sections 5.1, 5.2, 6.1, 6.2, 6.3,
6.4, 6.5, 7, 8.1, 8.2 and 9.1 through 9.13 shall survive any termination of this
Agreement in accordance with their respective terms.
9.13. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be an original, but all of which taken
together shall constitute one instrument.
[SIGNATURE PAGE TO FOLLOW]
11
IN WITNESS WHEREOF, the parties hereto have each executed this
Agreement as of the date first above written.
"EXECUTIVE"
________________________________
Xxxxxxx Xxxxxxx
Home Address:
OLSTEN CORPORATION
By: ____________________________
Name:
Title:
Address:
ADECCO SA
By: ____________________________
Name:
Title:
Address:
By: ___________________________
Name:
Title:
Address:
12
SEPARATION, CONSULTING AND NON-COMPETITION AGREEMENT
XXXXXXX XXXXXXX
Terminating Prior Agreements
----------------------------
1. Any benefits payable to or in respect of the Executive under the
Olsten Corporation Supplemental Retirement Plan for Key Executives Designated by
the Company, or any trust agreement maintained in connection therewith.
2. Change in Control Letter Agreement, dated as of August 10, 1994 by
and between the Company and Xxxxxxx Xxxxxxx.
