EMPLOYMENT AGREEMENT
BETWEEN
KORN/FERRY INTERNATIONAL
AND
XXXX X. XXXXXX
TABLE OF CONTENTS
Page
1. Employment........................................................................................... 1
2. Term of Employment................................................................................... 1
3. Position, Duties and Responsibilities................................................................ 1
4. Equity Awards........................................................................................ 1
(a) Ten Year Option Award......................................................................... 2
(b) Five Year Option Award........................................................................ 2
(c) Restricted Stock Award........................................................................ 3
5. Annual Compensation.................................................................................. 3
(a) Base Salary................................................................................... 3
(b) Annual Cash Incentive Award................................................................... 4
(c) Annual Stock Option Grant..................................................................... 4
6 Relocation Benefits.................................................................................. 5
7. Employee Benefit Programs and Perquisites............................................................ 5
(a) General....................................................................................... 5
(b) Reimbursement of Business Expenses............................................................ 5
(c) Conditions of Employment...................................................................... 6
8. Termination of Employment............................................................................ 6
(a) Death......................................................................................... 6
(b) Disability.................................................................................... 6
(c) Termination by the Company for Cause, Voluntary Termination by Executive, Failure
to Renew by Executive......................................................................... 6
(d) Termination by the Company Without Cause, by Executive for Good Reason or for Failure
by the Company to Renew Agreement Prior to a Change in Control................................ 7
(e) Following a Change of Control, Termination by the Company Without Cause or by Executive....... 8
(f) Parachute Limitation.......................................................................... 9
(g) Other Programs................................................................................ 10
(h) Certain Definitions........................................................................... 10
9. No-Mitigation; No Offset............................................................................. 12
10. Confidential Information; Cooperation with Regard to Litigation...................................... 12
(a) Nondisclosure of Confidential Information..................................................... 12
(b) Definition of Confidential Information........................................................ 13
(c) Cooperation in Litigation..................................................................... 13
10. Non-solicitation..................................................................................... 14
12. Remedies............................................................................................. 14
13. Resolution of Disputes............................................................................... 14
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TABLE OF CONTENTS
(continued)
Page
14. Indemnification..................................................................................... 15
(a) Company Indemnity............................................................................. 15
(b) No Presumption Regarding Standard of Conduct.................................................. 17
(c) Liability Insurance........................................................................... 17
15. Effect of Agreement on Other Benefits............................................................... 17
16. Assignment; Binding Nature.......................................................................... 17
17. Representations..................................................................................... 18
18. Entire Agreement.................................................................................... 18
19. Amendment or Waiver................................................................................. 18
20. Severability........................................................................................ 18
21. Survivorship........................................................................................ 19
22. Beneficiaries/References............................................................................ 19
23. Governing Law....................................................................................... 19
24. Notices............................................................................................. 19
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Exhibit 10.14
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into as of
May 24, 2001, by and between KORN/FERRY INTERNATIONAL, a Delaware corporation
with its principal offices in Los Angeles, California (the "Company"), and XXXX
X. XXXXXX, an individual (the "Executive").
1. Employment. The Company agrees to employ Executive and Executive agrees
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to be employed by the Company upon the terms and conditions set forth in this
Agreement.
2. Term of Employment. Executive's employment under this Agreement will
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begin on June 30, 2001 and will continue for an initial term ending April 30,
2004. This Agreement will be automatically renewed for successive two-year
periods thereafter, until the first April 30th following the date on which
Executive reaches age 65, at which time the term will expire, provided, however,
that either the Company or the Executive may terminate this Agreement at the end
of the initial term or any subsequent two-year extension to the initial term by
delivering to the other party at least 60 days' prior written notice its
election not to renew this Agreement. (In this Agreement, the delivery of such a
notice shall be referred to as a "failure to renew" the Agreement.)
3. Position, Duties and Responsibilities. Executive will serve as Chairman
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and Chief Executive Officer of the Company with duties and responsibilities
customary to such offices. The Company shall use its reasonable commercial
efforts to cause Executive to be appointed and thereafter to be elected as a
Director of the Company, and to be elected as the Chairman of the Board of
Directors (the "Board) during the term of this Agreement as it may be extended
from time to time. At the request of the Board, Executive will serve as an
officer or director of the Company's subsidiaries and other affiliates without
additional compensation. Executive will devote substantially all of Executive's
business time and attention to the performance of Executive's obligations,
duties and responsibilities under this Agreement. Subject to Company policies
applicable to senior executives generally, Executive may engage in personal,
charitable, professional and investment activities to the extent such activities
do not conflict or interfere with Executive's obligations to, or Executive's
ability to perform the normal duties and functions of Executive pursuant to this
Agreement.
4. Equity Awards. Executive shall be awarded, subject to the approval of
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the Board, equity incentives with respect to shares of the Company's common
stock ("Shares"), which shall be granted under the Korn/Ferry International
Performance Award Plan as set forth below. Each grant shall be effective on the
later of Executive's initial date of employment with the Company or the date on
which the Board approves the grant. All grants shall be evidenced by award
agreements providing for the following terms and otherwise shall be subject to
the terms and conditions provided under the Performance Award Plan.
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(a) Ten Year Option Award. A grant of non-qualified stock options with
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respect to 300,000 Shares. Such options shall vest in three equal annual
installments beginning on the first anniversary of the grant, and once vested
shall remain exercisable until the tenth anniversary of the grant. The per share
exercise price of such options shall be equal to the closing price of the Shares
on the New York Stock Exchange on the date the grant is effective.
(b) Five Year Option Award. A grant of non-qualified stock options with
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respect to 150,000 Shares. Such options shall vest as set forth below and, once
vested, shall remain exercisable until the fifth anniversary of the grant.
(i) options to purchase 50,000 Shares shall vest on the date on
which the closing price of the Shares on the principal national securities
exchange where the stock is traded (the "Closing Price") equals or exceeds
$28.00 per share for ten consecutive trading days;
(ii) options to purchase 50,000 Shares shall vest on the date on
which the Closing Price equals or exceeds $33.00 per share for ten consecutive
trading days;
(iii) options to purchase 50,000 Shares shall vest or the date on
which the Closing Price equals or exceeds $38.00 per share for ten consecutive
trading days.
The per share exercise price of such options shall be equal to the closing
price of the Shares on the New York Stock Exchange on the date the grant is
effective. If such options have not vested as provided for above, such options
shall vest on the day prior to the fifth anniversary of the effective grant
date.
(c) Restricted Stock Award. A Restricted Stock Award (as defined in the
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Performance Award Plan) of 100,000 shares (the "Restricted Shares"), which shall
be forfeited if, prior to vesting, Executive is terminated by the Company for
"Cause" or if Executive terminates his employment without "Good Reason" (except
in the event of death or "Disability") as each such term is defined in Section
8(h) below. Such Restricted Shares shall vest in three equal annual installments
beginning one year from their effective date of grant. Pursuant to the terms and
conditions of the Performance Award Plan, Executive shall pay to the Company an
amount equal to the Par Value of the Restricted Shares.
4. Annual Compensation. In consideration of Executive's services to the
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Company pursuant to this Agreement, Executive's annual compensation shall be as
follows:
(a) Base Salary. The Company will pay a base salary to Executive of
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$650,000 annually in accordance with its regular payroll practices (the "Base
Salary"). The Board will review the level of Executive's Base Salary at least
annually, beginning in June 2002. The Board, acting in its discretion, may
increase (but may not decrease) the annual rate of Base Salary in effect for
Executive at any time, unless the Board concludes that an across-the-board
reduction in compensation is required for all executive officers of the Company,
in which case Executive's compensation shall be ratably reduced .
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(b) Annual Cash Incentive Award. Executive will participate in the
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Company's annual cash incentive plan established for senior executives with an
annual target cash award equal to 150% of Base Salary, and a maximum cash award
equal to 300% of Base Salary. Executive's annual cash incentive award will be
payable at such time as annual cash incentive awards are paid to executive
officers generally, but not later than 120 days after the end of the fiscal year
for which such award is earned. Such annual cash incentive award shall be
considered earned only if Executive is employed by the Company as of the last
day of the fiscal year to which the award applies.
(c) Annual Stock Option Grant. Executive shall be eligible to receive an
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annual grant of stock options, subject to the discretion of and approval by the
Board, with a target grant value of $1,250,000 and a maximum grant value of
$1,750,000. Grant value shall be determined by the Black-Scholes Option Pricing
Model using the same assumptions the Board applies to determine annual option
grants for the Company's other executive officers. Such annual stock option
grant shall be awarded at the same time annual option grants are awarded to the
Company's other executive officers, beginning with grants attributable to
performance for the firm's 2002 fiscal year.
4. Relocation Benefits. The Company will reimburse Executive for all
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reasonable costs associated with the relocation of Executive and his immediate
family to the general area of the Company's corporate headquarters, including
(i) real estate commission on the sale of Executive's primary residence, (ii)
the cost of moving Executive's personal goods, (iii) points and fees associated
with the acquisition of a new primary residence in the general area of the
Company's corporate headquarters, and (iv) the reasonable cost of temporary
living expenses in the general area of the Company's corporate headquarters
through September 30, 2002. To the extent such reimbursements are taxable to
Executive, such payments shall be adjusted to offset the related federal and
state tax liability. In addition to the above, the Company will pay to Executive
the sum of $50,000 (gross) as a one-time relocation allowance. This payment
shall be made within seven days following the permanent relocation of Executive
to the general area of the Company's corporate headquarters.
5. Employee Benefit Programs and Perquisites.
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(a) General. Executive will be entitled to participate in such retirement
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or pension plans, group health, long term disability and group life insurance
plans, and any other welfare and fringe benefit plans, arrangements, programs
and perquisites sponsored or maintained by the Company from time to time for the
benefit of its senior executives generally, including four weeks paid vacation.
In addition, the Company will reimburse Executive for the cost of medical
benefits for Executive and his immediate family provided through COBRA until
such time as Executive is eligible to participate in the Company's medical
insurance programs.
(b) Reimbursement of Business Expenses. Executive is authorized to incur
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reasonable expenses in accordance with the Company's written policy in carrying
out Executive's duties and responsibilities under this Agreement. The Company
will promptly reimburse Executive for all such expenses that are so incurred
upon presentation of appropriate
3
vouchers or receipts, subject to the Company's expense reimbursement policies
applicable to senior executive officers generally.
(c) Conditions of Employment. Executive's place of employment during the
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term of Executive's employment under this Agreement will be at the Company's
corporate headquarters, subject to the need for reasonable business travel. The
conditions of Executive's employment, including, without limitation, office
space, office appointments, secretarial, administrative and other support, will
be consistent with Executive's status as Chairman and Chief Executive Officer of
the Company.
4. Termination of Employment.
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(a) Death. If Executive's employment with the Company terminates before
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the end of the term by reason of Executive's death, then as soon as practicable
thereafter the Company will pay to Executive's estate an amount equal to
Executive's "Accrued Compensation" (as defined in Section 8(h)), and all
outstanding stock options and other equity-type incentives held by Executive at
the time of Executive's death will become fully vested (whether or not fully
vested immediately prior to Executive's death) and shall remain exercisable
until their originally scheduled expiration dates. Executive's covered
dependent(s) will be entitled to continue to participate at the expense of the
Company in the Company's group health plan(s) after Executive's death at the
same benefit level and to the same extent and for the same contribution, if any,
as such continued participation is available to other executive officers of the
Company, and such participation may continue for such additional period as may
be available under COBRA.
(b) Disability. If the Company terminates Executive's employment before
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the end of the term by reason of Executive's Disability (as defined in Section
8(h)), then as soon as practicable thereafter the Company will pay to Executive
an amount equal to Executive's Accrued Compensation, and all outstanding stock
options and other equity-type incentives held by Executive at Executive's
termination date will become fully vested and shall remain exercisable until
their originally scheduled expiration dates. Executive and Executive's covered
dependent(s) will be entitled to continue to participate at the expense of the
Company in the Company's group health plan(s) after Executive's termination at
the same benefit level and to the same extent and for the same contribution, if
any, as such continued participation is available to other executive officers of
the Company, and such participation may continue for such additional period as
may be available under COBRA.
(c) Termination by the Company for Cause, Voluntary Termination by
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Executive, Failure to Renew by Executive. If (i) the Company terminates
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Executive's employment for Cause (as defined in Section 8(h)), or (ii) Executive
voluntarily terminates Executive's employment without Good Reason (as defined in
Section 8(h)) before the end of the stated term of this Agreement that is then
in effect, or (iii) Executive fails to renew this Agreement, then the Company
shall pay to Executive within 30 days after the date of such termination
Executive's Accrued Compensation through the date Executive's employment
terminates.
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(d) Termination by the Company Without Cause, by Executive for Good Reason
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or for Failure by the Company to Renew Agreement Prior to Change in Control. If
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Executive's employment is terminated prior to a "Change in Control" (as defined
in Schedule A) (i) by the Company without Cause, or (ii) by Executive for Good
Reason, or (iii) by reason of the Company's failure to renew this Agreement at
any time before Executive reaches the age of 65, then (1) the Company shall pay
to Executive within 30 days Executive's Accrued Compensation; (2) the Company
shall pay to Executive within 30 days a lump sum payment equal to two times
Executive's then current Base Salary and target bonus provided, however, that if
Executive's employment is terminated by reason of the Company's failure to renew
this Agreement, then Executive shall be entitled only to one times the then
current Base Salary and target bonus; (3) Executive and Executive's covered
dependent(s) will be entitled to continue to participate at the expense of the
Company in the Company's group health plan(s) after Executive's termination at
the same benefit level and to the same extent and for the same contribution, if
any, as such continued participation is available to other executive officers of
the Company, and such participation may continue for a period of two years after
such termination; provided, however, that if such termination is due to the
Company's failure to renew, then the period of continued participation will only
be for one year after such termination; and (4) all outstanding stock options
and other equity-type incentives held by Executive at the time of Executive's
termination will become fully vested and shall remain exercisable until their
originally scheduled expiration dates.
(e) Following a Change of Control, Termination by the Company Without
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Cause or by Executive for Good Reason. If a Change in Control occurs and, within
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12 months after the date on which the Change in Control occurs, Executive's
employment is terminated (i) by the Company without Cause or (ii) by Executive
for Good Reason, or (iii) by reason of the Company's failure to renew this
Agreement at any time before Executive reaches the age of 65, then: (1) the
Company shall pay to Executive within 30 days Executive's Accrued Compensation;
(2) the Company shall pay to Executive within 30 days a lump sum payment equal
to (A) two times the then current Base Salary or two times Executive's annual
base salary in effect just prior to the Change in Control, whichever amount is
higher, plus (B) the higher of two times the annual maximum cash bonus for
----
Executive for the incentive year in which such termination occurs or two times
the annual maximum cash bonus for Executive applicable to the fiscal year
preceding the year in which such termination occurs; (3) Executive and
Executive's covered dependent(s) will be entitled to continue to participate at
the expense of the Company in the Company's group health plan(s) after
Executive's termination at the same benefit level and to the same extent and for
the same contribution, if any, as such continued participation is available to
other executive officers of the Company, and such participation may continue for
a period of two years after such termination; and (4) all outstanding stock
options and other equity-type incentives held by Executive at the time of
Executive's termination will become fully vested and shall remain exercisable
until their originally scheduled expiration dates.
(f) Parachute Limitation. Notwithstanding anything herein to the contrary,
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if any amounts due to Executive under this Agreement and any other plan or
program of the Company constitute a "parachute payment," as such term is defined
in Section 280G(b)(2) of the Internal Revenue Code, and the amount of the
parachute payment, reduced by all federal, state and local
5
taxes applicable thereto, including the excise tax imposed pursuant to Section
4999 of the Internal Revenue Code, is less than the amount Executive would
receive if he were paid three times his "base amount," as defined in Section
280G(b)(3) of the Internal Revenue Code, less $1.00, reduced by all federal,
state and local taxes applicable thereto, then the aggregate of the amounts
constituting the parachute payment shall be reduced to an amount that will equal
three times his "base amount" less $1.00. The determinations to be made with
respect to this Section 8(f) shall be made by an accounting firm (the "Auditor")
jointly selected by the Company and Executive and paid by the Company. The
Auditor shall be a nationally recognized United States public accounting firm
that has not during the two years preceding the date of its selection acted in
any way on behalf of the Company or any of its subsidiaries. If Executive and
the Company cannot agree on the firm to serve as the Auditor, then Executive and
the Company shall each select one such accounting firm and those two firms shall
jointly select such an accounting firm to serve as the Auditor. If a
determination is made by the Auditor that a reduction in the aggregate of all
payments due to Executive upon a Change in Control is required by this Section
8(f), Executive shall have the right to specify the portion of such reduction,
if any, that will be made under this Agreement and each plan or program of the
Company. If Executive does not so specify within sixty (60) days following the
date of a determination by the Auditor pursuant to the preceding sentence, the
Company shall determine, in its sole discretion, the portion of such reduction,
if any, to be made under this Agreement and each plan or program of the Company.
(g) Other Programs. Except as otherwise provided in this Agreement,
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Executive's entitlements under applicable plans and programs of the Company
following termination of Executive's employment will be determined under the
terms of those plans and programs.
(h) Certain Definitions. For purposes of this Agreement, the following
-------------------
terms shall have the meanings set forth herein:
(1) "Accrued Compensation" means, as of any date, the amount of any
unpaid Base Salary and annual cash incentive award earned by Executive through
the date of Executive's death or the termination of Executive's employment, plus
any additional amounts and/or benefits payable to or in respect of Executive
under and in accordance with the provisions of any employee plan, program or
arrangement under which Executive is covered immediately prior to Executive's
death or the termination of Executive's employment.
(2) "Cause" shall be deemed to exist if (A) Executive is convicted of
a felony involving moral turpitude, or (B) Executive engages in conduct that
constitutes willful gross neglect or willful gross misconduct in carrying out
his duties under this Agreement, resulting, in either case, in material economic
harm to the Company, unless Executive believed in good faith that such act or
nonact was in the best interests of the Company.
(3) "Disability" means any medically determinable physical or mental
condition or impairment which prevents Executive from performing the principal
functions of Executive's duties with the Company that can be expected to result
in death or that has lasted or
6
can be expected to last for a period of 90 consecutive days or for shorter
periods aggregating 180 days in any consecutive 12 month period, with such
determination to be made by an approved medical doctor. For this purpose, an
approved medical doctor shall mean a medical doctor selected by the Company and
Executive. If the parties cannot agree on a medical doctor, each party shall
select a medical doctor and the two doctors shall select a third medical doctor
who shall be the approved medical doctor for this purpose.
(4) Executive shall be deemed to have "Good Reason" to terminate his
employment hereunder if, without Executive's prior written consent, (A) the
Company reduces Executive's duties or responsibilities or assigns Executive
duties which are materially inconsistent with his duties or which impair
Executive's ability to function as Chairman and Chief Executive Officer, or (B)
the Company reduces Executive's then current Base Salary or target award
opportunity under the Company's annual cash incentive bonus plan or annual stock
option award program, or terminates or materially reduces any employee benefit
or perquisite enjoyed by Executive (other than as part of an across-the-board
reduction applicable to all executive officers of the Company), or (C) the
Company fails to perform or breaches its obligations under any other material
provision of this Agreement and does not correct such failure or breach (if
correctable) within 60 days following receipt of notice thereof from Executive
to the Company, or (D) Executive's primary location of business is moved by more
than 50 miles, or (E) the Company reduces Executive's title or removes him or
fails during the term to reelect him as Chairman and Chief Executive Officer, or
(F) the Company fails to obtain the assumption in writing of its obligation to
perform this Agreement by any successor to all or substantially all of the
assets of the Company within 15 days after a merger, consolidation, sale or
similar transaction.
4. No Mitigation; No Offset. Executive will have no obligation to seek
------------------------
other employment or to otherwise mitigate the Company's obligations to Executive
arising from the termination of Executive's employment, and no amounts paid or
payable to Executive by the Company under this Agreement shall be subject to
offset for any remuneration in which Executive may become entitled from any
other source after Executive's employment with the Company terminates, whether
attributable to subsequent employment, self-employment or otherwise except that
subsequent employment during the term of this Agreement with an employer
providing benefit plans shall result in an offset against benefits payable by
the Company hereunder to the extent of the benefits paid by the new employer.
5. Confidential Information; Cooperation with Regard to Litigation.
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(a) Nondisclosure of Confidential Information. During the term of
-----------------------------------------
Executive's employment and thereafter, Executive will not, without the prior
written consent of the Company, disclose to anyone (except in good faith in the
ordinary course of business to a person who will be advised by Executive to keep
such information confidential) or make use of any Confidential Information (as
defined below) except in the performance of Executive's duties hereunder or when
required to do so by legal process, by any governmental agency having
supervisory authority over the business of the Company or any of its Affiliates
(as defined below) or by any administrative or legislative body (including a
committee thereof) that requires
7
Executive to divulge, disclose or make accessible such information. If
Executive is so ordered, to divulge Confidential Information, he will give
prompt written notice to the Company in order to allow the Company the
opportunity to object to or otherwise resist such order.
(b) Definition of Confidential Information. For purposes of this Agreement,
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"Confidential Information" means information concerning the business of the
Company or any corporation or other entity that, directly or indirectly,
controls, is controlled by or under common control with the Company (an
"Affiliate") relating to any of its or their products, product development,
trade secrets, customers, suppliers, finances, and business plans and
strategies. Excluded from the definition of Confidential Information is
information (1) that is or becomes part of the public domain, other than through
the breach of this Agreement by Executive or (2) regarding the Company's
business or industry properly acquired by Executive in the course of Executive's
career as an executive in the Company's industry and independent of Executive's
employment by the Company. For this purpose, information known or available
generally within the trade or industry of the Company or any Affiliate shall be
deemed to be known or available to the public and not to be Confidential
Information.
(c) Cooperation in Litigation. Executive will cooperate with the Company,
-------------------------
during the term of Executive's employment and thereafter (including following
Executive's termination of employment for any reason), by making Executive
reasonably available to testify on behalf of the Company or any Affiliate in any
action, suit, or proceeding, whether civil, criminal, administrative, or
investigative, and to reasonably assist the Company or any such Affiliate in any
such action, suit, or proceeding by providing information and meeting and
consulting with the Board or its representatives or counsel, or representatives
or counsel to the Company or any such Affiliate, as reasonably requested;
provided, however, that the same does not materially interfere with Executive's
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then current professional activities. The Company will reimburse Executive, on
an after-tax basis, for all expenses reasonably incurred by Executive in
connection with Executive's provision of testimony or assistance and if such
assistance is provided after Executive's termination of employment, will pay
Executive a per diem rate of $2,000.
4. Non-solicitation. Executive will not induce or solicit, directly or
----------------
indirectly, any employee of the Company or any Affiliate to terminate such
employee's employment with the Company or any Affiliate during Executive's
employment hereunder and for a period of 24 months following the termination of
this Agreement as it may be extended from time to time.
5. Remedies. If Executive commits a material breach of any of the
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provisions contained in Sections 10 and 11 above, then the Company will have the
right to seek injunctive relief. Executive acknowledges that such a breach of
Section 10 or 11 could cause irreparable injury and that money damages may not
provide an adequate remedy for the Company. Nothing contained herein will
prevent Executive from contesting any such action by the Company on the ground
that no violation or threatened violation of either such Section has occurred.
6. Resolution of Disputes. Any controversy or claim arising out of or
----------------------
relating to this Agreement or any breach or asserted breach hereof or
questioning the validity and binding
8
effect hereof arising under or in connection with this Agreement, other than
seeking injunctive relief under Section 12, shall be resolved by binding
arbitration, to be held in Los Angeles in accordance with the rules and
procedures of the American Arbitration Association. Judgment upon the award
rendered by the arbitrator(s) may be entered in any court having jurisdiction
thereof. Pending the resolution of any arbitration or court proceeding, the
Company will continue payment of all amounts and benefits due Executive under
this Agreement. All costs and expenses of any arbitration or court proceeding
(including fees and disbursements of counsel) shall be borne by the respective
party incurring such costs and expenses (with the limitation that, in no event,
shall Executive be liable under this provision for more than two times the fees
paid by the Executive for Executive's counsel services in the arbitration or
proceeding), but the Company shall reimburse Executive for all reasonable costs
and expenses by Executive if Executive substantially prevails in such
arbitration or court proceeding.. Notwithstanding the foregoing, following a
Change in Control, all reasonable costs and expenses (including fees and
disbursements of counsel) incurred by Executive pursuant to this section shall
be paid on behalf of or reimbursed to Executive promptly by the Company;
provided, however, that Executive shall repay such amounts to the Company if and
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to the extent the arbitrator(s) determine(s) that any of Executive's litigation
assertions or defenses were in bad faith or frivolous. Notwithstanding the
foregoing, if any applicable law requires different or additional rules or
procedures to be applied in order for this Agreement to arbitrate or to be
enforceable, or prohibits any expense allocation provided herein, such rules or
procedures shall take precedence and such prohibitions shall be a part of this
Agreement to the to the extent necessary to render this Agreement enforceable.
7. Indemnification.
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(a) Company Indemnity. If Executive is made a party, or is
-----------------
threatened to be made a party, to any action, suit or proceeding, whether civil,
criminal, administrative or investigative (a "Proceeding"), by reason of the
fact that he is or was a director, officer or employee of the Company or any
Affiliate or was serving at the request of the Company or any Affiliate as a
director, officer, member, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, including service with
respect to employee benefit plans, whether or not the basis of such Proceeding
is Executive's alleged action in an official capacity while serving as a
director, officer, member, employee or agent, then the Company will indemnify
Executive and hold Executive harmless to the fullest extent legally permitted or
authorized by the Company's articles of incorporation, certificate of
incorporation or bylaws or resolutions of the Company's Board to the extent not
inconsistent with state laws, against all costs, expense, liability and loss
(including, without limitation, attorney's fees, judgments, fines, ERISA excise
taxes or penalties and amounts paid or to be paid in settlement) reasonably
incurred or suffered by Executive in connection therewith, except to the extent
attributable to Executive's gross negligence or fraud, and such indemnification
shall continue as to Executive even if he has ceased to be a director, member,
officer, employee or agent of the Company or Affiliate and shall inure to the
benefit of Executive's heirs, executors and administrators. The Company will
advance to Executive all reasonable costs and expenses to be incurred by
Executive in connection with a Proceeding within 20 days after receipt by the
Company of a written request for such advance. Such request shall include an
undertaking by Executive to
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repay the amount of such advance if it shall ultimately be determined that he is
not entitled to be indemnified against such costs and expenses. The provisions
of this section shall not be deemed exclusive of any other rights of
indemnification to which Executive may be entitled or which may be granted to
Executive and shall be in addition to any rights of indemnification to which he
may be entitled under any policy of insurance.
(b) No Presumption Regarding Standard of Conduct. Neither the failure of
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the Company (including its Board, independent legal counsel or shareholders) to
have made a determination prior to the commencement of any proceeding concerning
payment of amounts claimed by Executive under the preceding subsection (a) of
this section that indemnification of Executive is proper because Executive has
met the applicable standard of conduct, nor a determination by the Company
(including its Board, independent legal counsel or shareholders) that Executive
has not met such applicable standard of conduct, shall create a presumption that
Executive has not met the applicable standard of conduct.
(c) Liability Insurance. The Company will continue and maintain a directors
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and officers liability insurance policy covering Executive to the extent the
Company provides such coverage for its other senior executive officers.
4. Effect of Agreement on Other Benefits. Except as specifically provided
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in this Agreement, the existence of this Agreement shall not be interpreted to
preclude, prohibit or restrict Executive's participation in any other employee
benefit or other plans or programs in which he currently participates.
5. Assignment; Binding Nature. This Agreement shall be binding upon and
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inure to the benefit of the parties and their respective successors, heirs (in
the case of Executive) and permitted assigns. No rights or obligations of the
Company under this Agreement may be assigned or transferred by the Company
except that such rights or obligations may be assigned or transferred to the
successor of the Company or its business if the assignee or transferee assumes
the liabilities, obligations and duties of the Company, as contained in this
Agreement, either contractually or as a matter of law. No rights or obligations
of Executive under this Agreement may be assigned or transferred by Executive
other than Executive's rights to compensation and benefits, which may be
transferred only by will or operation of law, except as otherwise specifically
provided or permitted hereunder.
6. Representations. The Company represents and warrants that it is fully
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authorized and empowered to enter into this Agreement and that the performance
of its obligations under this Agreement will not violate any Agreement between
it and any other person, firm or organization. Executive represents and warrants
that there is no legal or other impediment which would prohibit Executive from
entering into this Agreement or which would prevent Executive from fulfilling
Executive's obligations under this Agreement.
7. Entire Agreement. This Agreement contains the entire understanding and
----------------
agreement between the parties concerning the subject matter hereof and
supersedes all prior agreements, understandings, discussions, negotiations and
undertakings, whether written or oral, between the parties with respect thereto.
10
8. Amendment or Waiver. No provision in this Agreement may be amended
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unless such amendment is agreed to in writing and signed by Executive and an
authorized officer of the Company. Except as set forth herein, no delay or
omission to exercise any right, power or remedy accruing to any party shall
impair any such right, power or remedy or shall be construed to be a waiver of
or an acquiescence to any breach hereof. No waiver by either party of any breach
by the other party of any condition or provision contained in this Agreement to
be performed by such other party shall be deemed a waiver of a similar or
dissimilar condition or provision at the same or any prior or subsequent time.
Any waiver must be in writing and signed by Executive or an authorized officer
of the Company, as the case may be.
9. Severability. In the event that any provision or portion of this
------------
Agreement shall be determined to be invalid or unenforceable for any reason, in
whole or in part, the remaining provisions of this Agreement shall be unaffected
thereby and shall remain in full force and effect to the fullest extent
permitted by law.
10. Survivorship. The respective rights and obligations of the parties
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hereunder shall survive any termination of Executive's employment to the extent
necessary to the intended preservation of such rights and obligations.
11. Beneficiaries/References. Executive shall be entitled, to the extent
------------------------
permitted under any applicable law, to select and change a beneficiary or
beneficiaries to receive any compensation or benefit payable hereunder following
Executive's death by giving the Company written notice thereof. In the event of
Executive's death or a judicial determination of Executive's incompetence,
reference in this Agreement to Executive shall be deemed, where appropriate, to
refer to Executive's beneficiary, estate or other legal representative.
12. Governing Law. This Agreement shall be governed by and construed and
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interpreted in accordance with the laws of California without reference to
principles of conflict of laws.
13. Notices. Any notice given to a party shall be in writing and shall be
-------
deemed to have been given when delivered personally or sent by certified or
registered mail, postage prepaid, return receipt requested, duly addressed to
the party concerned at the address of the party indicated below or to such
changed address as such party may subsequently give such notice of:
If to the Company: KORN/FERRY INTERNATIONAL
0000 Xxxxxxx Xxxx Xxxx
Xxx Xxxxxxx, XX 00000
Attention: Corporate Secretary
If to Executive: XXXX X. XXXXXX
0000 Xxxxxxxxxxx Xx. X. X.
Xx. Xxxxxxxxxx, XX 00000
11
IN WITNESS WHEREOF, the undersigned have executed this Employment Agreement
on the date first above written.
The Company: KORN/FERRY INTERNATIONAL
By:________________________________
Executive
___________________________________
XXXX X. XXXXXX
12
SCHEDULE A
DEFINITION OF CHANGE IN CONTROL
For purposes of the foregoing Agreement, a "Change in Control" shall
mean any of the following:
(a) an acquisition by any Person (excluding one or more Excluded
Persons) of beneficial ownership (within the meaning of Rule 13d-3 under the
Exchange Act) or a pecuniary interest (as defined in Section 16a-1(a)(2) of the
Exchange Act) in (either comprising "ownership of") more than 30% of the Common
------------
Stock of the Company or voting securities entitled to then vote generally in the
election of directors ("Voting Stock") of the Company, after giving effect to
any new issue in the case of an acquisition from the Company; or
(b) approval by the shareholders of the Company of a plan, or
the consummation, of merger, consolidation, or reorganization of the Company or
of a sale or other disposition of all or substantially all of the Company's
consolidated assets as an entirety (collectively, a "Business Combination"),
other than a Business Combination (1) in which all or substantially all of the
holders of Voting Stock of the Company hold or receive directly or indirectly
70% or more of the Voting Stock of the entity resulting from the Business
Combination (or a parent company), and (2) after which no Person (other than any
one or more of the Excluded Persons) owns more than 30% of the Voting Stock of
the resulting entity (or a parent company) who did not own directly or
indirectly at least that percentage of the Voting Stock of the Company
immediately before the Business Combination, and (3) after which one or more
Excluded Persons own an aggregate amount of Voting Stock of the resulting entity
owned by any Persons who (i) own more than 5% of the Voting Stock of the
resulting entity, (ii) are not Excluded Persons, (iii) did not own directly or
indirectly at least the same percentage of the Voting Stock of the Company
immediately before the Business Combination, and (iv) in the aggregate own more
than 30% of the Voting Stock of the resulting entity; or
(c) approval by the Board of Directors of the Company and (if
required by law) by shareholders of the Company of a plan to consummate the
dissolution or complete liquidation of Korn/Ferry International; or
(d) during any period of two consecutive years, individuals who
at the beginning of such period constituted the Board and any new directors
(excluding any new director designated by a person who has entered into an
agreement or arrangement with Korn/Ferry International to effect a transaction
described in clause (a) or (b) of this definition) whose appointment, election,
or nomination for election was approved by a vote of at least two-thirds (2/3)
of the directors then still in office who either were directors at the beginning
of the period or whose appointment, election or nomination for election was
previously so approved (all such directors, "Incumbent Directors"), cease for
any reason to constitute a majority of the Board; provided that for purposes of
this clause (d), any directors elected at any time during 1999 shall be deemed
to be Incumbent Directors.
A-1
Notwithstanding the above provisions in this Schedule A, no Change in
Control shall be deemed to have occurred if a Business Combination, as described
in paragraph (b) above, is effected and a majority of the Incumbent Directors,
through the adoption of a Board resolution, determines that, in substance, no
Change in Control has occurred.
The "Company" means Korn/Ferry International, a Delaware corporation,
its successors, and/or its Subsidiaries, as the context requires.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time.
"Excluded Person" means
(i) the Company; or
(ii) any person described in and satisfying the conditions
of Rule 13d-1(b)(1) under the Exchange Act; or
(iii) any employee benefit plan of the Company; or
(iv) any affiliates (within the meaning of the Exchange
Act), successors, or heirs, descendants or members of the immediate
families of the individuals identified in party (b) of this
definition.
"Person" means an organization, a corporation, an individual, a
partnership, a trust or any other entity or organization, including a
governmental entity and a "person" as that term is used under Section 13(d) or
14(d) of the Exchange Act.
A-2
