Exhibit 10.15
KORN/FERRY INTERNATIONAL FUTURESTEP, INC.
A Delaware corporation
EMPLOYMENT AGREEMENT
MAN XXX XXXXX
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement"), is entered into as of
December 1, 1997 (the "Agreement Date"), by and between KORN/FERRY
INTERNATIONAL FUTURESTEP, INC., a Delaware corporation ("Company") and MAN
XXX XXXXX, an individual ("Executive").
ARTICLE 1.
RECITALS
1.1 The primary business purpose of the Company is to create, establish
and maintain a business providing executive search and ancillary services to
candidates and client companies on-line through the medium of the Internet (the
"Business"). The Company will be a subsidiary of Korn/Ferry International, a
California corporation ("KFI").
1.2 The purpose of this Agreement is to set forth the terms and conditions
under which the Company will employ Executive as its President and Chief
Executive Officer.
1.3 Concurrently herewith, Executive and other Persons (the
"Shareholders") and the Company are entering into a certain Shareholders
Agreement of even date (the "Shareholders Agreement"), pursuant to which the
Shareholders and the Company have agreed upon matters relating to the
management, control and operation of the Company, and restrictions upon the
transfer of shares of the capital stock of the Company.
1.4 Concurrently herewith, KFI and the Company are entering into a certain
License Agreement of even date, pursuant to which, among other things, KFI will
license to the Company the use of its name in connection with the Business (the
"License Agreement").
1.5 Concurrently herewith, the Company and the Shareholders are entering
into a certain Stock Purchase Agreement of even date, pursuant to which, among
other things, the Shareholders, including Executive, agree to purchase shares of
the capital stock of the Company (the "Stock Purchase Agreement").
1.6 Concurrently herewith, KFI and Executive are entering into a certain
Agreement of even date ("KFI/Singh Agreement") and a certain Stock Repurchase
Agreement ("KFI Stock Repurchase Agreement"), pursuant to which, among other
things, Executive is hired as a Vice President of KFI and admitted as a
shareholder of KFI, subject to the terms and conditions set forth therein.
1.7 The Company and Executive intend that the Shareholders Agreement, the
License Agreement, the Stock Purchase Agreement, the KFI/Singh Agreement and the
KFI Stock Repurchase Agreement, be executed and delivered concurrently with the
execution and delivery of this Agreement.
1.8 Unless otherwise defined herein, all capitalized terms used in this
Agreement, shall have the meanings set forth in the Appendix annexed hereto.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
ARTICLE 2.
TERM OF EMPLOYMENT
2.1 Term. The term of this Agreement (the "Term") shall commence on the
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Agreement Date and automatically expire on the earlier of (a) the date on which
this Agreement is terminated under Article 7 below or (b) the third (3rd)
anniversary of the Agreement. Subject to the provisions of this Agreement, the
Company hereby employs Executive and Executive hereby accepts employment with
the Company for the Term.
ARTICLE 3.
DUTIES AND RESPONSIBILITIES OF EXECUTIVE
3.1 Performance of Duties. Executive agrees that during the Term, his
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employment hereunder will be on a full-time basis, and he will faithfully and
efficiently perform his duties and shall devote his full time, efforts, ability,
and attention to the Business. Executive shall report to the Company's Board of
Directors (the "Board").
3.2 Description of Duties. Executive shall serve as the President and
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Chief Executive Officer of the Company. In this capacity, Executive shall be
responsible for the day-to-day operations of the Business and the long term
overall management, planning and internal operations of the Business, including
without limitation, using his best efforts to (i) maintain and develop the
Business and (ii) meet the objectives of the Company's Operating Plan.
Furthermore, Executive shall do and perform all services, acts, or things
necessary or advisable to discharge his duties under this Agreement, including,
but not limited to, undertaking such travel as is reasonably necessary to
perform such duties, and shall perform such other duties as are commonly
performed by the President and Chief Executive Officer of a privately-held
start-up business which may from time to time be reasonably prescribed by the
Board or by the Chairman. Furthermore, Executive shall abide by all policies and
procedures adopted by the Company or the Board.
3.3 Other Employment. During the Term, unless the Board otherwise
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consents, which consent shall not be unreasonably delayed or withheld, Executive
shall not serve as a director, employee, independent contractor, or officer of
another business, whether or not such business is pursued for gain, profit or
other pecuniary advantage, and whether or not for compensation; provided,
however, that Executive may, (i) serve in any capacity with trade organizations
related to the Business, (ii) accept speaking engagements related to the
Business,
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so long as such activities do not interfere with the performance of his duties
hereunder, and (iii) serve as an executive officer or employee of KFI.
ARTICLE 4.
COMPENSATION AND BENEFITS
4.1 Base Salary. During the Term, Company shall pay to Executive a base
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salary at an rate of Three Hundred and Fifty Thousand Dollars ($350,000.00) per
year, payable monthly during the Term in accordance with the Company's regular
payroll practices.
4.2 Bonus Compensation. As further incentive to Executive, the Company
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shall pay to Executive bonus compensation as provided in this Section 4.2 below
(the "Bonus Compensation"). Any such Bonus Compensation shall be paid to
Executive no later than the ninetieth (90th) day following the end of the
calendar year in which the Bonus Compensation is earned. The Bonus Compensation
shall, subject to the limitations set forth below, be payable with respect to
each year of the Term of this Agreement:
4.2.1 Operating Plans. Within thirty (30) days after the Agreement
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Date, and within thirty (30) days before the end of each calendar year
thereafter, the Executive shall, in consultation with the Board, develop and
determine a financial and business operating plan for the Company for the
succeeding twelve month period, which plan shall be subject to the approval of
the Board. The financial and business operating plan as finally approved by the
Board shall be referred to as the "Operating Plan."
4.2.1 Performance Objectives. Each Operating Plan shall contain
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financial and other objectives for the Company and its Business during the
period covered by the Operating Plan and shall set forth the expected timing for
achievement of such financial and other objectives. Each Operating Plan may also
contain objectives specifically relating to Executive and the performance of his
duties and responsibilities hereunder.
4.2.2 Amount of Bonus Compensation. Each Operating Plan shall set
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forth the amount of Bonus Compensation which Executive will receive for the
timely achievement of the various financial and other objectives set forth in
such Operating Plan. If all objectives are achieved, the Executive be entitled
to receive aggregate Bonus Compensation in any given year in an amount which
equals approximately twenty-five percent (25%) of the base salary referred to in
Section 4.1 above.
4.2.3 Determination of Achievement. The Board shall determine, in good
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faith, whether Executive has earned any Bonus Compensation for any given year.
Such determination by the Board shall be binding and conclusive upon the Company
and Executive.
4.3 Other Benefits. Except as otherwise herein provided, in his capacity
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as a Vice President of KFI pursuant to the KFI/Singh Agreement, Executive shall
be entitled, during the Term, to participate in any group insurance, deferred
compensation or other plan or program
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adopted by KFI for the benefit of its United States executive employees of
similar stature in accordance with the provisions of the respective plan or
plans.
4.4 Reimbursement of Business Expenses.
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4.4.1 Ordinary Expenses. Company shall promptly reimburse Executive
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for all reasonable ordinary and necessary business expenses incurred by
Executive in connection with the performance by Executive of his duties under
this Agreement ("Ordinary Business Expenses"). With respect to each such
expenditure, Executive shall furnish to Company adequate records and other
documentary evidence required by federal and state statutes and regulations
issued by the appropriate taxing authorities for the substantiation of each such
expenditure as an income tax deduction.
4.4.2 Extraordinary Expenses. Any single Ordinary Business Expense
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with a cost in excess of that amount established from time to time by the Board
shall be deemed to be an extraordinary business expense ("Extraordinary Business
Expense"). Executive shall not incur any Extraordinary Business Expense unless
such expense has been approved in advance by the Chairman or by the Board. If
Executive fails to obtain the approval of the Chairman or the Board, the Company
may refuse to reimburse Executive for that expense.
4.5 Annual Vacation/Sick Leave. Executive shall be entitled to twenty (20)
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days paid annual vacation, exclusive of sick leave and holidays recognized by
the Company, which may be taken at such times as are consistent with good
business practices. Such vacation time shall be prorated for employment periods
less than a full calendar year. Executive may accrue up to fifteen (15) days of
vacation, plus any vacation days scheduled by Executive but canceled on order of
the Board, in any one (1) calendar year during the Term (the "Annual Vacation
Accrual Limit"). In the event that Executive reaches the Annual Vacation Accrual
Limit, Executive shall not be eligible to earn additional vacation until
Executive uses a portion of such earned and accrued vacation. Executive shall be
entitled to sick leave in accordance with the Company's general policy for its
employees, as such policy is modified by the Company from time to time.
4.6 Repayment of Unauthorized Reimbursement. If any amount paid by the
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Company to Executive as reimbursement for any Ordinary Business Expense or
Extraordinary Business Expense, is finally determined by the Board in its good
faith judgment not to be authorized under this Agreement, the part disallowed
shall be repaid to the Company by Executive upon demand.
4.7 No Liability on the Part of KFI. Executive understands and agrees that
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KFI shall have no liability or responsibility whatsoever for the payment of any
sums due to Executive under this Agreement or for any benefits to be provided by
the Company to Executive under this Agreement or otherwise.
ARTICLE 5.
CONFIDENTIAL INFORMATION AND OTHER MATTERS
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5.1 Company Information. Executive acknowledges that (i) he holds a senior
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management position with the Company, (ii) in such capacity he is responsible
for carrying out procedure and methods by which the Company develops and
conducts its business, (iii) he has access to the Company's clients, channels
for developing clients and recruiting executives for employment, and other
Confidential Information, (iv) he has direct substantial responsibility to
maintain the Company's business relationship with clients of the Company, (v) it
would be unfair to the Company if Executive were to appropriate to himself or
others the benefits of the Company's developing such business relationships,
especially when the Executive enjoys a relationship with a client of the
Company as a result of his being introduced to the client's personnel as a
representative of the Company, (vi) it would be unfair to the Company if the
Executive were to appropriate to himself or others the benefits of the business,
personnel and other Confidential Information which the Company has developed in
the conduct of its businesses, and (vii) it is therefore fair that reasonable
restrictions should be placed on certain activities of the Executive after his
employment with the Company terminates.
5.1.1 Executive agrees that he shall not, either during the Term
(except as necessary to carry on the business of the Company), or at any time
after the expiration or termination of his employment, directly or indirectly,
use or disclose to any Person (other than Persons at the Company or KFI), any
Confidential Information. Without limiting the generality of the foregoing,
Executive agrees that he will not, at any time after the expiration or
termination of his employment, directly or indirectly (as owner, principal,
agent, partner, officer, employee, independent contractor, consultant,
stockholder, member or otherwise), use any Confidential Information to (i)
solicit or accept any executive search or placement assignment from, or
otherwise attempt to provide services then provided by the Company to, any
Person; or (ii) solicit for employment or otherwise attempt to engage the
services of any employee of the Company or KFI or their subsidiaries or
Affiliates.
5.1.2 Executive further agrees that for the two year period
immediately subsequent to the expiration or termination of his employment, he
will not directly or indirectly (as owner, principal, agent, partner, officer,
employee, independent contractor, consultant, stockholder, member or otherwise)
solicit for employment or otherwise attempt to engage the services of any
employee of the Company or KFI or their subsidiaries or Affiliates.
5.1.3 Nothing herein shall be deemed to prevent the Executive after
termination or expiration of his employment from engaging in business
competitive to that of the Company, provided the Executive does so without using
Confidential Information or otherwise violating the terms and conditions of this
Agreement.
5.1.4 Executive recognizes and acknowledges that any breach of the
foregoing provisions would result in immeasurable and irreparable harm to the
Company, and accordingly, agrees that in addition to, and not in lieu of, all
other remedies available to the Company by reason of such breach, the Company
shall be entitled to temporary and permanent injunctive relief to prevent the
occurrence or continuation thereof.
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5.2 Third Party Information. Executive recognizes that from time to time
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the Company may receive from third parties their confidential or proprietary
information subject to a duty on the Company's part to maintain the
confidentiality of such information and to use it only for certain limited
purposes. Executive agrees to hold all such confidential or proprietary
information in the strictest confidence and not to disclose it to any Person or
to use it except as necessary in carrying out his work for the Company,
consistent with the Company's agreement with such third party.
5.3 Noncompetition Provisions.
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5.3.1 Executive agrees that during the Term, he will not engage in any
other employment, occupation, consulting or other business activity directly
related to the Business or related to any other business in which the Company is
now or hereafter involved, and Executive will not engage in any other activities
which conflict with his obligations to the Company.
5.3.2 Executive further agrees that during the Term, he will not
become a Company Competitor.
5.3.3 The provisions of this Section 5.3 are in addition to, and not
in lieu of, the other Noncompetition Provisions contained in the Stock Purchase
Agreement and the Shareholders Agreement, which apply to Executive in his
capacity as a Shareholder.
5.4 Returning Company Documents. Executive agrees that upon termination or
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expiration of his employment with the Company, he will deliver to the Company
(and will not keep in his possession, recreate or deliver to anyone else) any
and all devices, records, data, notes, reports, proposals, lists,
correspondence, specifications, drawings, blueprints, sketches, materials,
equipment, or other documents or property, or reproductions of any of the
foregoing items, which constitute the property of the Company.
5.5 Notification of New Employer. In the event of the termination or
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expiration of the employment of the Executive, the Executive hereby grants his
consent to the notification by the Company to Executive's new employer solely
about the existence of this Agreement. If requested by such new employer or if
the Company reasonably believes it to be necessary in order to protect the
Company's rights hereunder, the Company may notify the new employer or other
appropriate parties about the existence of the provisions of Article 5 of this
Agreement.
5.6 Compensation from Others. All compensation for services related to the
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conduct of the Business, including equity or equity-type payments, and
consulting or advisory fees, received by or payable to Executive during the Term
from Persons other than the Company, shall be paid to the Company unless
otherwise approved by the Board.
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ARTICLE 6.
INVENTIONS
6.1 Inventions Retained and Licensed. Executive hereby represents and
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warrants that he has no inventions, original works of authorship, developments,
improvements, or trade secrets which were made by Executive prior to his
employment with the Company ("Prior Inventions") and which are owned by
Executive and relate to or could relate to the Business, the Company, or its
products or services, or its research or development activities.
6.2 Assignment of Inventions. Executive agrees that he will promptly make
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full written disclosure to the Company, will hold in trust for the sole right
and benefit of the Company, and hereby assigns to the Company, or its designee,
all of his right, title and interest in and to any and all inventions, original
works of authorship, developments, concepts, improvements, designs, discoveries,
ideas, trademarks, service marks, tradenames or trade secrets, whether or not it
is or could be subject to a patent or copyright or trademark under patent,
copyright, trademark or similar laws, which Executive may solely or jointly
conceive or develop or reduce to practice, or cause to be conceived or developed
or reduced to practice, during the Term (collectively, the "Inventions"), except
as provided in Section 6.6 below. Executive further acknowledges that all
original works of authorship which are made by him (solely or jointly with
others) within the scope of his employment with the Company and which are
protectible by copyright are "works made for hire," as that term is defined in
the United States Copyright Act. Executive understands and agrees that the
decision whether or not to commercialize or market any Invention developed by
Executive solely or jointly with others is within the Company's sole discretion
and for the Company's sole use and benefit and that no royalty or other
compensation will be due to Executive as a result of the Company's efforts to
commercialize or market any such Invention.
6.3 Inventions Assigned to the United States. Executive agrees to assign,
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without compensation of any kind, to the United States of America or any
governmental entity or agency thereof all of his right, title and interest in
and to any and all Inventions whenever such assignment is requested by the
Company.
6.4 Maintenance of Records. Executive agrees to keep and maintain adequate
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and current written records of all Inventions made by Executive (solely or
jointly with others) during the Term. The records will be in the form of notes,
sketches, drawings, and any other format that may be specified by the Company.
The records will be made available to and remain the sole property of the
Company at all times.
6.5 Patent and Copyright Registrations. Executive agrees to assist the
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Company, or its designees, at the Company's expense, in every proper way to
secure or evidence the Company's rights in the Inventions and any copyrights,
trademarks, service marks, tradenames, patents, mask work rights or other
intellectual property rights relating thereto in any and all countries,
including, the disclosure to the Company of all pertinent information and data
with
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respect thereto, the execution of all applications, specifications, oaths,
assignments and all other instruments which the Company shall deem necessary in
order to apply for and obtain such rights and in order to assign and convey to
the Company, its successors, assigns, and nominees the sole and exclusive
rights, titles and interests in and to such Inventions, and any copyrights,
trademarks, service marks, tradenames, patents, mask work rights or other
intellectual property rights relating thereto. If for any reason Executive
refuses, fails or is unable to sign or pursue any application for any United
States or foreign patent, trademark, or copyright registrations covering
Inventions or original works of authorship assigned to the Company, then
Executive hereby irrevocably designates and appoints the Company and its duly
authorized officers and agents as the agent and attorney in fact of Executive to
act for and in Executive's behalf and stead to execute and file any such
application and to do all other lawfully permitted acts to further the
prosecution and issuance of letters patent or copyright or trademark
registrations thereon with the same legal force and effect as if executed by the
Executive.
6.6 Exception to Assignments. Executive understands that the provisions of
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this Agreement requiring assignment of Inventions to the Company do not apply to
any Invention which qualifies fully under the provisions of California Labor
Code Section 2870. Executive will advise the Company promptly in writing of any
Inventions that Executive believes meet the criteria section forth in said
statute. Executive hereby represents and warrants to the Company that as of the
Agreement there are no Inventions which are not assignable to the Company under
the provisions of California Labor Code Section 2870.
ARTICLE 7.
TERMINATION AND SEVERANCE
7.1 Termination for Cause. Company reserves the right to terminate
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Executive's employment hereunder at any time for cause. For purposes of this
Agreement, "cause" shall mean, in the good faith opinion of the Board, one or
more of the following: (i) a breach by Executive of a material provision of this
Agreement, the Stock Purchase Agreement, the Shareholders Agreement, the
KFI/Singh Agreement or the KFI Stock Repurchase Agreement, (ii) the habitual
neglect by Executive of his duties under this Agreement or the KFI/Singh
Agreement, and the failure of Executive to cure such habitual neglect within
twenty (20) days after written notice of such habitual neglect has been given by
the Company to Executive, specifying in reasonable detail the nature of the
habitual neglect, (iii) the commission by Executive of a willful act of
dishonesty, fraud, or material misrepresentation, (iv) breach of fiduciary duty
or duty of loyalty by Executive which results in material harm to the Company or
the Business; (v) the chronic alcoholism or addiction of Executive to non-
medically prescribed narcotics; or (vi) the conviction of Executive or the entry
by Executive of a plea of nolo contendre with respect to any misdemeanor crime
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involving moral turpitude or with respect to any felony crime. With the
exception of the covenants included in Section 7.5 below, upon a termination of
Executive's employment pursuant to this Section 7.1.1, the obligations of
Executive and Company under this Agreement shall immediately cease. Such
termination shall be without prejudice to any other remedy to which Company may
be entitled either at law, in equity, or under this Agreement, the Stock
Purchase Agreement or the Shareholders Agreement.
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7.2 Termination Without Cause.
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7.2.1 Termination by Company. Notwithstanding anything to the contrary
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contained in this Agreement, Executive's employment may be terminated at any
time by the Board without cause. With the exception of the covenants included in
Section 7.5 below, upon such termination the obligations of Executive and
Company under this Agreement shall immediately cease.
7.2.2 Deemed Termination by Company. If the duties and
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responsibilities of Executive are substantially reduced below those appropriate
for Executive's position as provided in Section 3.2, and Executive delivers
written notice of such reduction to the Company promptly after such reduction
occurs, and the Company does not restore duties and responsibilities to
Executive sufficient to make the duties and responsibilities appropriate for
Executive's position, duties and responsibilities as provided in Section 3.2
within thirty (30) days after the receipt by the Company of such notice, then if
Executive terminates his employment with the Company on or before the tenth
(10/th/) business day following the expiration of such thirty (30) day period,
such termination shall be deemed a termination by the Company without cause
within the meaning of Section 7.2.1 above. If for any reason Executive does not
terminate his employment within said ten (10) day period, but does terminate his
employment thereafter, such termination shall be deemed a termination by
Executive without cause within the meaning of Section 7.2.3 below.
7.2.3 Termination by Executive. Executive may terminate his employment
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at any time without cause by giving the Board at least ninety (90) days prior
written notice of such termination and by submitting his written resignation as
an officer and director of the Company, effective as of the date of termination
of his employment. With the exception of the covenants included in Section 7.5
below, upon such termination the obligations of Executive and Company under this
Agreement shall immediately cease.
7.3 Termination Upon Death or Permanent Disability of Executive.
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Executive's employment shall terminate upon the death or permanent disability of
Executive. Upon such termination, the obligations of Executive and Company under
this Agreement shall immediately cease, except as provided in Section 7.5 below.
7.4 Termination Upon Disability of Executive. Company reserves the right
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to terminate Executive's employment if Executive becomes "Disabled." The term
"Disabled" shall mean the failure of Executive to render the services provided
for in this Agreement or in the KFI/Singh Agreement or other failure by
Executive to discharge his duties and responsibilities as the Chief Executive
Officer of the Company or as a Vice President of KFI, for a period of sixty (60)
consecutive days or for nonconsecutive periods aggregating more than one hundred
and twenty (120) days within any given twelve (12) month period, by reason of an
accident or illness, or physical or mental disability, or other incapacity. With
the exception of the covenants included in Section 7.5 below, upon such
termination the obligations of Executive and Company under this Agreement shall
immediately cease.
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7.5 Payments Upon Termination. The following provisions shall set forth
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the payments and other sums required to be paid to Executive in the event of a
termination of his employment with the Company.
7.5.1 Termination by Company for Cause. In the event that Executive's
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employment is terminated by Company for cause pursuant to Section 7.1, Company
shall pay to Executive, within ten (10) business days after such termination,
any accrued and unpaid salary which had been earned by Executive under this
Agreement prior to the date of such termination, together with a per diem amount
based upon such salary for any accrued vacation days not previously taken by
Executive in the calendar year in which termination occurs. Executive shall not
be entitled to receive any other compensation or benefits otherwise payable
under this Agreement and shall not be entitled to receive any severance or
similar pay; provided, however, that Company shall reimburse Executive for
expenses incurred through the termination date in accordance with the provisions
of Section 4.4 above.
7.5.2 Termination by the Company Without Cause. In the event that
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Executive's employment is terminated by the Company without cause pursuant to
Section 7.2.1 or Section 7.2.2, Executive shall be entitled to severance pay as
follows: (i) if such termination occurs prior to December 31, 1998, an amount
equal to his then base monthly salary under Section 4.1 for the remainder of the
Term, but in no event more than the base monthly salary payable to Executive
under Section 4.1 for nine (9) months, payable at the election of Executive in a
lump sum or in installments, without interest, and (ii) if such termination
occurs at any time after December 31, 1998, an amount equal to his then base
monthly salary under Section 4.1 for the remainder of the Term, but in no event
more than the base monthly salary payable to Executive under Section 4.1 for six
(6) months, payable at the election of the Executive in a lump sum or in
installments, without interest, and (iii) if such termination occurs at any
time, the maximum permissible Bonus Compensation which Executive had earned as
of the date of termination of his employment, determined in accordance with the
terms and conditions of Section 4.2 above for the year in which such termination
occurs, pro rated through the date of termination on a per diem basis, and (iv)
continuation of the "other benefits" referred to in Section 4.3 for the lesser
of the following periods (which lesser period is sometimes referred to as the
"Severance Period"): (A) the remainder of the Term or (B) the nine (9) month or
six (6) month period referred to in subparagraphs (i) or (ii) above, whichever
is applicable. Furthermore, within ten (10) business days after such
termination, Company shall pay to Executive a per diem amount based upon such
salary for any accrued vacation days not previously taken by Executive in the
calendar year in which termination occurs. Executive shall not be entitled to
receive any other compensation or benefits otherwise payable under this
Agreement and shall not be entitled to any other severance or similar pay;
provided, however, that Company shall reimburse Executive for expenses incurred
through the termination date in accordance with the provisions of Section 4.4
above.
7.5.3 Termination by Executive Without Cause. In the event that
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Executive's employment is terminated by Executive pursuant to Section 7.2.3, the
Executive shall be entitled to the same compensation and benefits as provided in
Section 7.5.1 above.
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7.5.4 Death or Permanent Disability of Executive. In the event that
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Executive's employment hereunder is terminated due to Executive's death or
permanent disability pursuant to Section 7.3, the Executive's estate shall be
entitled to the same compensation and benefits as provided in Section 7.5.1
above.
7.5.5 Disability of Executive. In the event that Executive's
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employment hereunder is terminated because Executive has become Disabled
pursuant to Section 7.4, Executive shall be entitled to the same compensation
and benefits as provided in Section 7.5.1 above.
7.6 Effect of Termination on KFI/Singh Agreement. If for any reason
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whatsoever, the Executive's employment with the Company expires or is terminated
by the Company or by the Executive, then the Executive's employment with KFI
pursuant to the KFI/Singh Agreement shall automatically and concurrently expire
or terminate, as applicable, without any severance or other compensation or
payments being payable by KFI to Singh.
ARTICLE 8.
MISCELLANEOUS
8.1 No Assignment of Rights or Delegation of Duties by Executive;
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Assignment by Company. Executive's rights and benefits under this Agreement are
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personal to him and therefore (i) no such right or benefit shall be subject to
voluntary or involuntary alienation, assignment or transfer; and (ii) Executive
may not delegate his duties or obligations hereunder. The Company may, without
the consent of any other party hereto, assign its rights and delegate its duties
under this Agreement to any Person which acquires all or substantially all of
the assets of the Company, either through a purchase of such assets, by merger,
consolidation or otherwise.
8.2 Preparation of Agreement. It is acknowledged by each party that such
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party either had separate and independent advice of counsel or the opportunity
to avail itself or himself of separate and independent legal counsel.
Specifically, Executive understands and acknowledges that the law firm of
Xxxxxxxx & Xxxxxxxx LLP, is not legal counsel to the Executive. In light of
these and other relevant facts it is further acknowledged that no party shall be
construed to be solely responsible for the drafting hereof, and therefore any
ambiguity shall not be construed against any party as the alleged draftsman of
this Agreement.
8.3 Cooperation and Further Assurances. Each party agrees, without further
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consideration, to cooperate and diligently perform any further acts, deeds and
things and to execute and deliver any documents that may from time to time be
reasonably necessary or otherwise reasonably required to consummate, evidence,
confirm and/or carry out the intent and provisions of this Agreement, all
without undue delay or expense.
8.4 Interpretation.
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8.4.1 Entire Agreement/No Collateral Representations. Each party
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expressly acknowledges and agrees that this Agreement, the Stock Purchase
Agreement, the Shareholders Agreement, the KFI/Singh Agreement, the KFI Stock
Repurchase Agreement, and the License Agreement: (i) are the final expression of
the parties agreements with respect to the subject matter hereof and thereof and
are the complete and exclusive statements of the terms of such agreement; (ii)
supersedes any prior or contemporaneous agreements, promises, assurances,
guarantees, representations, understandings, conduct, proposals, conditions,
commitments, acts, course of dealing, warranties, interpretations or terms of
any kind, oral or written (collectively and severally, the "Prior Agreements"),
and that any such Prior Agreements are of no force or effect except as expressly
set forth herein and therein; and (iii) may not be varied, supplemented or
contradicted by evidence of Prior Agreements. Any agreement hereafter made shall
be ineffective to modify, supplement or discharge the terms of this Agreement,
in whole or in part, unless such agreement is in writing and signed by the party
against whom enforcement of the modification or supplement is sought.
8.4.2 Waiver. No breach of any agreement or provision herein
------
contained, or of any obligation under this Agreement, may be waived, nor shall
any extension of time for performance of any obligations or acts be deemed an
extension of time for performance of any other obligations or acts contained
herein, except by written instrument signed by the party to be charged or as
otherwise expressly authorized herein. No waiver of any breach of any agreement
or provision herein contained shall be deemed a waiver of any preceding or
succeeding breach thereof, or a waiver or relinquishment of any other agreement
or provision or right or power herein contained.
8.4.3 Remedies Cumulative. Except as otherwise provided in this
-------------------
Agreement, the remedies of each party under this Agreement, the Shareholders
Agreement, the Stock Purchase Agreement, the License Agreement, the KFI/Singh
Agreement, and the KFI Stock Repurchase Agreement are cumulative and shall not
exclude any other remedies to which such party may be lawfully entitled.
8.4.4 Severability. If any term or provision of this Agreement or the
------------
application thereof to any Person or circumstance shall, to any extent, be
determined to be invalid, illegal or unenforceable under present or future laws
effective during the term of this Agreement, then and, in that event: (i) the
performance of the offending term or provision (but only to the extent its
application is invalid, illegal or unenforceable) shall be excused as if it had
never been incorporated into this Agreement, and, in lieu of such excused
provision, there shall be added a provision as similar in terms and amount to
such excused provision as may be possible and be legal, valid and enforceable,
and (ii) the remaining part of this Agreement (including the application of the
offending term or provision to persons or circumstances other than those as to
which it is held invalid, illegal or unenforceable) shall not be affected
thereby and shall continue in full force and effect to the fullest extent
provided by law.
8.4.5 No Third Party Beneficiary. The parties specifically disavow any
--------------------------
desire or intention to create any third party beneficiary obligations, and
specifically declare that no third party shall have any rights hereunder or any
right of enforcement hereof.
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8.4.6 No Reliance Upon Prior Representation. The parties acknowledge
-------------------------------------
that no other party has made any oral representation or promise which would
induce them prior to executing this Agreement to change their position to their
detriment, partially perform, or part with value in reliance upon such
representation or promise; the parties acknowledge that they have taken such
action at their own risk; and the parties represent that they have not so
changed their position, performed or parted with value prior to the time of
their execution of this Agreement.
8.4.7 Headings; References; Incorporation; Gender. The headings used
-------------------------------------------
in this Agreement are for convenience and reference purposes only, and shall not
be used in construing or interpreting the scope or intent of this Agreement or
any provision hereof. References to this Agreement shall include all amendments
or renewals thereof. All cross-references in this Agreement, unless specifically
directed to another agreement or document, shall be construed only to refer to
provisions within this Agreement, and shall not be construed to be referenced to
the overall transaction or to any other agreement or document. Any exhibit
referenced in this Agreement shall be construed to be incorporated in this
Agreement. As used in this Agreement, each gender shall be deemed to include the
other gender, including neutral genders or genders appropriate for entities, if
applicable, and the singular shall be deemed to include the plural, and vice
versa, as the context requires.
8.5 Enforcement.
-----------
8.5.1 Applicable Law. This Agreement and the rights and remedies of
--------------
each party arising out of or relating to this Agreement (including, without
limitation, equitable remedies) shall be solely governed by, interpreted under,
and construed and enforced in accordance with the laws (without regard to the
conflicts of law principles thereof) of the State of California, as if this
agreement were made, and as if its obligations are to be performed, wholly
within the State of California.
8.5.2 Consent to Jurisdiction; Service of Process. Any action or
-------------------------------------------
proceeding arising out of or relating to this Agreement shall be filed in and
heard and litigated solely before the state courts of California located within
the County of Los Angeles. Each party generally and unconditionally accepts the
exclusive jurisdiction of such courts and to venue therein, consents to the
service of process in any such action or proceeding by certified or registered
mailing of the summons and complaint in accordance with the notice provisions of
this Agreement, and waives any defense or right to object to venue in said
courts based upon the doctrine of "Forum Non Conveniens". Each party irrevocably
agrees to be bound by any judgment rendered thereby in connection with this
Agreement.
8.5.3 Attorneys' Fees and Costs. If any party institutes or should the
-------------------------
parties otherwise become a party to any Action Or Proceeding based upon or
arising out of this Agreement including, without limitation, to enforce or
interpret this Agreement or any provision hereof, or for damages by reason of
any alleged breach of this Agreement or any provision hereof, or for a
declaration of rights in connection herewith, or for any other relief, including
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equitable relief, in connection herewith, the Prevailing Party in any such
Action Or Proceeding, whether or not such Action Or Proceeding proceeds to final
judgment or determination, shall be entitled to receive from the non-Prevailing
Party as a cost of suit, and not as damages, all Costs And Expenses of
prosecuting or defending the Action Or Proceeding, as the case may be,
including, without limitation, reasonable Attorneys' And Other Fees.
8.6 Notices. Any notice, approval, disapproval, consent, waiver, or other
-------
communication (collectively, "Notices") required or permitted to be given under
this Agreement shall be in writing and shall be delivered personally or mailed,
certified or registered United States mail, postage prepaid, return receipt
requested, or sent by Federal Express or other reliable overnight carrier for
next business day delivery, or by fax. All Notices shall be deemed delivered (a)
if personally served, when actually delivered to the address of the person to
whom such Notice is given, (b) if sent via Federal Express or other overnight
courier for next business day delivery, one (1) business day following the date
on which the Notice is given to Federal Express or other overnight courier, (c)
if by mail, three (3) days following deposit in the United States mail, or (d)
if by fax, when the transmitting telecopier machine has confirmed that the
Notice has been completed or sent without error. All Notices shall be addressed
to the party to whom such Notice is to be given at the party's address set forth
below or as such party shall otherwise direct by Notice sent pursuant to this
Section 8.6:
If Company: Korn/Ferry International Futurestep, Inc.
c/o Korn/Ferry International
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxx, Vice Chairman
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
With a copy to: Xxxxxxx X. Xxxxx, Esq.
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxx Xxxxx Xxxxxx; 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
If to Executive: Mr. Man Xxx Xxxxx
0000 Xxxxxxxxx Xxxxx
Xxx Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
With a copy to: Xxxx X. Xxxxxx, Esq.
Manatt, Xxxxxx & Xxxxxxxx LLP
00000 X. Xxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, XX 00000
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Telephone: (000) 000-0000
Telecopier: (000) 000-0000
8.7 Counterparts. This Agreement may be executed in counterparts, each of
------------
which shall be deemed an original, and all of which together shall constitute
one and the same instrument, binding on all parties hereto. Any signature page
of this Agreement may be detached from any counterpart of this Agreement and re-
attached to any other counterpart of this Agreement identical in form hereto by
having attached to it one or more additional signature pages.
IN WITNESS WHEREOF, the parties have executed this Agreement.
COMPANY:
KORN/FERRY INTERNATIONAL FUTURESTEP, INC.,
a Delaware corporation
By: /s/ Xxxxxxx Xxxxx
-----------------------------------
Xxxxxxx Xxxxx, Chairman
EXECUTIVE:
/s/ Man Xxx Xxxxx
----------------------------------------
MAN XXX XXXXX
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APPENDIX
CERTAIN DEFINITIONS
1. "Action Or Proceeding" means any and all claims, suits, actions,
notices, inquiries, proceedings, hearings, arbitrations or other similar
proceedings, including appeals and petitions therefrom, whether formal or
informal, governmental or non-governmental, or civil or criminal.
2. "Affiliate" means with respect to any person or entity ("Person No.
1"), any other person or entity which either (i) directly or indirectly owns or
controls Person No. 1, or (ii) is directly or indirectly owned or controlled by
Person No. 1, or (iii) is under direct or indirect common control with Person
No. 1. The term "control" (and its corollaries) includes, without limitation,
ownership of interests representing a majority of total voting power in an
entity, and "ownership" (and its corollaries) includes, without limitation,
ownership of a majority of the equity interests in an entity.
3. "Agreement" means this Agreement and all agreements, exhibits,
schedules and appendices expressly annexed hereto.
4. "Attorneys' And Other Fees" means attorneys' fees, accountants' fees,
fees of other professionals, witness fees (including experts engaged by the
parties, but excluding shareholders, officers, employees or partners of the
parties), and any and all other similar fees incurred in the prosecution or
defense of an Action Or Proceeding.
5. "Company Competitive Business" means any business which competes,
directly or indirectly, in part or in whole, with any business now or hereafter
conducted or engaged in (a) by the Company, or (b) by any Person in which the
Company has an equity interest, either directly or indirectly, which affords the
Company more than ten percent (10%) of the voting power of such Person.
6. "Company Competitor" means any Person (other than KFI or any Affiliate
of KFI) who (a) engages, directly or indirectly, in any Company Competitive
Business, or (b) becomes an organizer, investor, lender, partner, joint
venturer, stockholder, officer, director, employee, manager, consultant,
supplier, vendor, agent, lessor or lessee of or to any Company Competitive
Business, or (c) otherwise in any manner associates with, or aids or abets, or
gives information or financial assistance to any Company Competitive Business.
7. "Confidential Information" means all proprietary and confidential
information regarding the Company, KFI, their businesses, clients, and
personnel, including, without limitation: (a) client lists, client prospects,
and business development information; (b) company lists, profiles and reports,
position specifications, salary structures, and engagement information; (c)
source lists, executive lists, and candidate lists, profiles and reports; (d)
candidate resumes, appraisals, compensation information, and reference reports;
(e) search executive methodologies; (f) training and research materials and
methodologies; (g) structure, operations, pricing, financial
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and personnel information; (h) information systems design and procedures; (i)
computer technology designs, hardware configuration systems, and software
designs and implementations; (j) information databases, interactive procedures,
tests, analysis and studies developed by or for the benefit of the Company or
KFI; (k) plans, designs, inventions, formulas, research and technology developed
by or for the benefit of the Company or KFI; (l) personal histories or resumes,
employment information, business information, business secrets of clients and
candidates; (m) trade secrets of the Company and KFI; (n) plans, prospects,
policies, practices, and procedures of the Company and KFI which are not
generally known in the industry; (o) all New Information; and (p) all other
proprietary and confidential information of every nature and source. The term
"Confidential Information" does not include any information which: (A) is or
becomes generally available to the public through no breach of this Agreement or
any other agreement to which the Company or KFI is a party; (B) was received
from a third party free to disclose such information without restriction; (C) is
approved for release in writing by the Board of Directors of the Company or KFI,
subject to whatever conditions are imposed by such Boards; (D) is required by
law or regulation to be disclosed, but only to the extent necessary and only for
the purpose required; or (E) is disclosed in response to a valid order of a
court or other governmental body, but only to the extent necessary and for the
purpose required, if and only if, the Company and KFI are first notified of the
order and are permitted to seek an appropriate protective order against public
disclosure of such information.
8. "Costs And Expenses" means the cost to take depositions, the cost to
arbitrate a dispute, if applicable, and the costs and expenses of travel and
lodging incurred with respect to an Action Or Proceeding.
9. "KFI Competitive Business" means any business which competes, directly
or indirectly, in part or in whole, with any business now or hereafter conducted
or engaged in (a) by KFI or its Affiliates, or (b) by any Person (other than the
Company) in which KFI or an Affiliate of KFI has an equity interest, either
directly or indirectly, which affords KFI or such Affiliate more than ten
percent (10%) of the voting power of such Person.
10. "KFI Competitor" means any Person (other than KFI or any Affiliate of
KFI) who (a) engages, directly or indirectly, in any KFI Competitive Business,
or (b) becomes an organizer, investor, lender, partner, joint venturer,
stockholder, officer, director, employee, manager, consultant, supplier, vendor,
agent, lessor or lessee of or to any KFI Competitive Business, or (c) otherwise
in any manner associates with, or aids or abets, or gives information or
financial assistance to any KFI Competitive Business.
11. "New Information" means all information related to Executive's duties
and responsibilities which is developed by Executive or under his guidance and
control while in the employment of the Company or KFI, including, without
limitation: (a) client and candidate prospect lists and databases; (b) interview
and reference forms and notes; (c) contact information and procedures; (c)
client and candidate information; (d) client and candidate prospect information;
(e) source lists and executive lists and databases; (f) research materials,
forms, and tests; (g) business development information; (h) computer formats,
forms, tests, interactive
-2-
procedures, methods of analysis and tools developed in connection with the
Business; and (i) all other proprietary and confidential information.
12. "Noncompetition Provisions" means those certain provisions contained
in this Agreement and in the Shareholders Agreement and Stock Purchase Agreement
restricting the business activities of Executive, in his capacity as an employee
of the Company, and in his capacity as a Shareholder of the Company.
13. "Person" means any individual, firm, corporation, trust, partnership
(limited or general), limited liability company, sole proprietorship or
association.
14. "Prevailing Party" means the party who is determined to prevail by the
court after its consideration of all damages and equities in an Action Or
Proceeding, whether or not the Action Or Proceeding proceeds to final judgment.
The court shall retain the discretion to determine that no party is the
Prevailing Party in which case no party shall be entitled to recover its Costs
And Expenses.
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