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EXHIBIT 10.12(b)
Manpower Inc.
0000 Xxxxx Xxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxx 00000
April 26, 1999
Xx. Xxxxxxx Xxxxx:
This letter will confirm our agreement with respect to the compensation to
be paid and the other benefits to be provided to you in connection with your
continuing advisory relationship with Manpower Inc. (the "Corporation"). We have
agreed as follows:
1. Advisory Services. Beginning on April 30, 1999 (the "Effective Date"),
and continuing until the date three years thereafter unless earlier terminated
under Section 11 hereof (the "Advisory Period"), you will be employed by the
Corporation on a part-time basis to render such advice and assistance respecting
the affairs and activities of the Corporation and its direct or indirect
subsidiaries (collectively, the "Manpower Group") as the Chairman of the Board
of Directors or a senior executive officer of the Corporation may from time to
time reasonably request, contemplated to include principally advice and
assistance as requested relating to accounting and financial matters. Your
advisory services will be performed at such times as are mutually agreed upon by
you and the Corporation. It is understood that the Corporation will not be
entitled to your services on a full-time basis, and that you will not be
required without your consent to devote in excess of 375 hours per year to the
performance of such services. During the Advisory Period, you may engage in
other activities, subject to the restrictions set forth in Sections 7 through 9
hereof. At the end of the Advisory Period, your employment will terminate.
2. Advisory Fee. In consideration of the advisory services to be performed
by you pursuant hereto, and in partial consideration of your other obligations
under this letter, the Corporation will pay you during the Advisory Period an
annual salary (the "Advisory Fee") of One Hundred Fifty Thousand Dollars
($150,000). The Advisory Fee will be payable in installments according to the
standard payroll practice of the Corporation.
3. Benefits.
(a) In accordance with the terms of your Employment Agreement dated
September 16, 1987, as amended, for the remainder of the lives of you
and your spouse, regardless of any eligibility rules in effect at any
time and regardless of your age, the Corporation will arrange to provide
you and your spouse, at the Corporation's expense, with full coverage
under medical and dental plans of the Corporation having benefits at
least as favorable as those existing under the Corporation's plans in
effect on
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September 16, 1990, and any increased benefits as may thereafter have
been or may be provided from time to time under any such plan or
substitute therefor or modification thereof; and notwithstanding any
provision of any such plan to the contrary, neither you nor your
spouse will be required to make any additional payment in order to
obtain this coverage. In the event that your participation in any such
plan is prohibited by the terms and provisions thereof or the
Corporation otherwise cannot offer such benefits under its plans, the
Corporation will provide alternative coverage for you and your spouse
for each of your remaining lives, as nearly as practicable, equivalent
to that which you and your spouse would otherwise be entitled under
this Section 3(a).
(b) In addition to other payments under this letter, the
Corporation will make equal monthly payments to you for your lifetime
(or to your spouse for her lifetime if you predecease her) in such
amount as is necessary to assure that the total payments received by you
(or your spouse) under this Section 4(b) and under the Manpower Inc.
Retirement Plan and the Manpower Inc. Deferred Compensation Plan will
equal Three Hundred Four Thousand Three Hundred Twenty-One Dollars
($304,321); provided, however, that if you were to remarry, the amount
payable under this Section 3(b) to your new spouse during her lifetime
if you predecease her shall not exceed the actuarial equivalent as of
the time of your death of the amount which would be payable to a spouse
with the birth date of your present spouse. These monthly payments will
commence on May 1, 1999, and will continue on the first day of each
calendar month thereafter for the life of the survivor of you and your
spouse.
(c) Except for the retirement benefits and medical and dental
insurance set forth in this Section 3, any accrued benefits under
company plans and the stock options referred to in Section 6, below, and
any employee benefits provided by law, you shall not receive on or after
April 30, 1999, any employee benefits or perquisites from the
Corporation or be entitled to participate in any Corporation stock or
other benefit plans.
4. Office and Secretary. The Corporation shall provide to you reasonable
and reasonably equipped office space in a location to be mutually agreed upon
between you and the Corporation and secretarial assistance during the Advisory
Period.
5. Expense Reimbursement. The Corporation will reimburse you for all
reasonable out-of-pocket expenses incurred by you in the course of performing
advisory services requested by the Corporation and approved by the Chief
Executive Officer during the Advisory Period, subject to your compliance with
the guidelines or rules of the Corporation concerning expense reimbursement.
6. Stock Options. The Corporation confirms that:
(a) this letter agreement will not affect your rights with respect
to the options you hold to purchase shares of the Corporation's stock
under the 1991 Executive Stock Option and Restricted Stock Plan (the
"Plan") set forth in the Nonstatutory Stock Option granted May 31, 1991,
and the Nonstatutory Stock Option Agreement executed as of February 10,
1992 (the "Grant Documents");
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(b) your employment will not be considered to have terminated for
purposes of determining your rights with respect to such options until
the termination of the Advisory Period; and
(c) the Plan has been amended to provide for a period of one year,
as opposed to three months as originally provided, following the
cessation of employment due to retirement (as described in the Plan) to
exercise any option held under the Plan, and the Plan as so amended will
govern your rights with respect to such options notwithstanding the
terms of the applicable Grant Documents.
7. Nondisclosure Agreement. You will not, directly or indirectly, at any
time during the Advisory Period or during the two-year period immediately
following the termination of the Advisory Period, use for yourself or others, or
disclose to others, any Confidential Information (as defined below), whether or
not conceived, developed, or perfected by you and no matter how it became known
to you, unless (i) you first secure written consent of the Corporation to such
disclosure or use, (ii) the same shall have lawfully become a matter of public
knowledge other than by your act or omission, or (iii) you are ordered to
disclose the same by a court of competent jurisdiction or are otherwise required
to disclose the same by law, and you promptly notify the Corporation of such
disclosure. "Confidential Information" shall mean all business information
(whether or not in written form) which relates to any company in the Manpower
Group and which is not known to the public generally (absent your disclosure),
including but not limited to confidential knowledge, operating instructions,
computer software, training materials and systems, customer lists, sales records
and documents, marketing and sales strategies and plans, market surveys, cost
and profitability analyses, pricing information, competitive strategies,
personnel-related information, and supplier lists. This obligation will survive
the termination of your employment for a period of two years and will not be
construed to in any way limit the Corporation's rights to protect confidential
information which constitute trade secrets under applicable trade secrets law
even after such two-year period. Upon your termination of employment with the
Manpower Group, or at any other time upon request of the Corporation, you will
promptly surrender to the Corporation, or destroy and certify such destruction
to the Corporation, any documents, materials, or computer or electronic records
containing any Confidential Information which are in your possession or under
your control.
8. Noncompetition Agreement. During the Advisory Period, you will not
directly or indirectly assist any competitor of the Manpower Group in any
capacity. In addition, you will not at any time during the two-year period
following the termination of the Advisory Period, either directly or indirectly:
(a) Contact any customer or prospective customer of the Manpower
Group with whom you have had contact on behalf of the Manpower Group
during the two-year period preceding the date of such termination or any
customer or prospective customer about whom you obtained Confidential
Information (as defined below) in connection with your employment by the
Manpower Group during such two-year period so as to cause or attempt to
cause such customer or prospective customer of the Manpower Group not to
do business or to reduce such customer's business with the Manpower
Group or divert any business from the Manpower Group.
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(b) Provide services or assistance of a nature similar to the
services provided to the Manpower Group during the term of your
full-time and/or part-time employment with the Manpower Group to any
entity engaged in the business of providing temporary staffing services
anywhere in the United States or any other country in which the Manpower
Group conducts business as of the date when the Advisory Period
terminates which has, together with its affiliated entities, annual
revenues from such business in excess of US $500,000,000. You
acknowledge that the scope of this limitation is reasonable in that,
among other things, providing any such services or assistance during
such two-year period would permit you to use unfairly your close
identification with the Manpower Group and the customer contacts you
developed while employed by the Manpower Group and would involve the use
or disclosure of Confidential Information pertaining to the Manpower
Group.
9. Nonsolicitation of Employees. You agree that you will not, at any
time during the Advisory Period or during the two-year period immediately
following the termination of the Advisory Period, either on your own account or
in conjunction with or on behalf of any other person, company, business entity,
or other organization whatsoever, directly or indirectly induce, solicit, entice
or procure any person who is an employee of any company in the Manpower Group,
or has been such an employee within the preceding three months, to terminate his
or her employment with the Manpower Group so as to accept employment elsewhere.
10. Requests for Services; Injunction. The restrictions imposed by
Sections 7 through 9, above, will not apply in circumstances where you have been
asked to perform services that might otherwise involve a violation of such
Sections. You recognize that irreparable and incalculable injury will result to
the Manpower Group and its businesses and properties in the event of your breach
of any of the restrictions imposed by Sections 7 through 9, above. You therefore
agree that, in the event of any such actual, impending or threatened breach, the
Corporation will be entitled, in addition to any other remedies and damages
available to it, to temporary and permanent injunctive relief (without the
necessity of posting a bond or other security) restraining the violation, or
further violation, of such restrictions by you and by any other person or entity
from whom you may be acting or who is acting for you or in concert with you.
11. Termination of Advisory Period. The Advisory Period shall terminate
prior to the date three years after the Effective Date upon the occurrence of
any of the following.
(a) Death. The Advisory Period shall terminate upon your death.
(b) Cause. The Corporation may terminate the Advisory Period for
"Cause." As used in this letter, "Cause" shall include (i) your willful
and continued failure to substantially perform your duties with the
Corporation after a written demand for substantial performance is
delivered to you that specifically identifies the manner in which the
Corporation believes that you have not substantially performed your
duties, and you have failed to resume substantial performance of your
duties on a continuous basis within ten days after receiving such
demand, (ii) your willful engaging in conduct which is demonstrably and
materially injurious to the Manpower Group, monetarily or
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otherwise, (iii) any dishonest or fraudulent conduct which results or is
intended to result in gain to you or your personal enrichment at the
expense of the Manpower Group, or (iv) your conviction of a felony,
misdemeanor or criminal offense, as evidenced by a binding and final
judgment, order or decree of a court of competent jurisdiction which
impairs your ability substantially to perform your duties with the
Corporation.
(c) Voluntary Termination. You may terminate the Advisory Period at
any time by delivering notice to the Corporation of your election to
terminate.
12. Nondisparagement. As of the Effective Date, the Manpower Group
agrees to maintain a positive and constructive attitude and demeanor toward you,
and agrees to refrain from making any derogatory comments or statements of a
negative nature about you. Likewise, as of the Effective Date, you agree to
maintain a positive and constructive attitude and demeanor toward the Manpower
Group, and agree to refrain from making derogatory comments or statements of a
negative nature about the Manpower Group, its officers, directors, shareholders,
agents, partners, representatives and employees, to anyone.
13. Release of Claims.
(a) Release of Claims by You. As further consideration for the
benefits and payments to you as described in this letter (which you
acknowledge to be greater, in their totality, than any benefits due you
absent the commitments being made by the Corporation in this letter),
you hereby irrevocably and unconditionally release, waive, and fully and
forever discharge all companies within the Manpower Group and their past
and current agents, servants, officers, directors, stockholders,
attorneys, and employees and their respective successors and assigns
(the "Released Parties") from and against any and all claims,
liabilities, obligations, covenants, rights, demands and damages of any
nature whatsoever, whether known or unknown, anticipated or
unanticipated, relating to or arising out of any agreement, act,
omission, occurrence, transaction or matter up to and including the date
you sign this letter confirming your agreement to its terms as provided
below, including, without limitation, any and all claims relating to or
arising out of your employment by the Manpower Group and also including
any claim that might arise regarding our agreement set forth above
providing for your eventual termination of employment at the end of the
Advisory Period. This release of claims includes, but is not limited to,
any claims or remedies arising under or affected by the Age
Discrimination in Employment Act of 1967, as amended, Title VII of the
Civil Rights Act of 1964, as amended, the Civil Rights Act of 1991, the
Equal Pay Act, as amended, the Employee Retirement Income Security Act,
as amended, the Americans With Disabilities Act, the Fair Labor
Standards Act, as amended, the Family and Medical Leave Act of 1993, the
Wisconsin Fair Employment Act, as amended, the Wisconsin Family and
Medical Leave Act, or any other local, state or federal laws, whether
statutorily codified or not, or any claim arising in contract or in
tort. You agree to give up any benefit conferred on you by any order or
judgment issued in connection with any proceeding filed against any of
the Released Parties regarding the matters released in this Subsection
16(a).
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(b) Release of Claims by the Manpower Group. As further
consideration for the agreements being made by you as provided in this
letter, the Corporation, on behalf of all companies within the Manpower
Group, hereby irrevocably and unconditionally releases, waives, and
fully and forever discharges you and your successors and assigns from
and against any and all claims, liabilities, obligations, covenants,
rights, demands and damages of any nature whatsoever, whether known or
unknown, anticipated or unanticipated, relating to or arising out of any
agreement, act, omission, occurrence, transaction or matter up to and
including the date you sign this letter confirming your agreement to its
terms as provided below.
(c) Scope of Release. Nothing in the waivers or releases set forth
in this letter shall be construed to constitute any release or waiver by
you of any rights or claims against the Manpower Group, or by the
Manpower Group against you, arising under this letter.
(d) Waiver of Reinstatement. You waive any and all rights to
reinstatement to full-time employment, and hereby agree not to reapply
for full-time employment with any company in the Manpower Group.
(e) Representations. You represent and warrant to the Corporation
that: (i) BY SIGNING THIS LETTER TO CONFIRM YOUR AGREEMENT, YOU
UNDERSTAND THAT YOU HEREBY WAIVE AND RELEASE ANY AND ALL RIGHTS AND
CLAIMS ARISING UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967,
AS AMENDED, ITS STATE LAW EQUIVALENT AND ALL OTHER CLAIMS AGAINST THE
CORPORATION ARISING UP TO AND INCLUDING THE DATE YOU SIGN THIS LETTER,
AND ANY CLAIM ARISING FROM YOUR RESIGNATION FROM FULL-TIME EMPLOYMENT,
(ii) you have executed this letter to confirm your agreement on the date
set forth below your name on the signature page hereof, (iii) you have
carefully read this letter, you know and understand its contents, you
signed this letter freely and voluntarily, and you intend to be bound by
it, and (iv) you are not relying on any representations, statements, or
promises whatsoever of the Corporation or anyone else, other than as set
forth in this letter, as an inducement to execute this letter.
(f) No Admission. Nothing in this letter shall be deemed an
admission by you or any company in the Manpower Group of liability or
wrongdoing of any nature.
14. Execution and Revocation Rights.
(a) You have the right to sign this letter, confirming your
agreement, any time within twenty-one (21) calendar days following
receipt of the letter.
(b) Following the date you sign, you have the right to revoke the
agreement reflected by this letter at any time within seven (7) calendar
days of your signing it, not including the date of your signing (the
"Revocation Period"). Any notice of revocation shall be deemed effective
when it is deemed to have been given as provided below. Our
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agreement as reflected by this letter will not become effective or
enforceable until the Revocation Period has expired. If you give a
notice of revocation during the Revocation Period, this agreement
reflected by this letter will be null and void, all rights and claims of
the parties which would have existed, but for the execution of this
letter, will be restored.
15. Successors; Binding Agreement. This letter agreement will be
binding on any successor of the Corporation and will inure to the benefit of and
be enforceable by your personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees.
16. Notices. Any notice required or permitted to be given or made
hereunder shall be sufficient if, and occur when, hand delivered, mailed postage
prepaid, sent by prepaid express or courier service or sent by facsimile
transmission and actually received, to the party to receive such notice at its
address set forth beneath its signature hereto or to such changed address as
such party shall designate by proper notice to the other.
17. Previous Agreement. This letter, upon acceptance by you,
expressly supersedes any and all previous agreements or understandings relating
to your employment by the Corporation or the Manpower Group, the termination of
such employment, or compensation or benefits to be provided by Manpower Group,
including, but not limited to, your Employment Agreement dated September 16,
1987, as amended, or your Consulting Agreement dated January 1, 1994, and all
such agreements and understandings shall have no further force or effect.
18. Modification. No provision of this letter may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing by you and the Corporation.
19. Withholding. The amounts payable to you hereunder are stated
before deductions, if any, required to be made by the Corporation under
applicable law.
If this letter correctly sets forth your understanding of our
agreement, please sign and return one copy of this letter which will constitute
our agreement with respect to the subject matter of this letter.
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THIS LETTER WAIVES LEGAL CLAIMS AGAINST THE CORPORATION, INCLUDING
POTENTIAL AGE DISCRIMINATION AND OTHER CLAIMS. YOU ARE ADVISED TO CONSULT YOUR
OWN ATTORNEY PRIOR TO SIGNING THE DOCUMENT. YOU HAVE TWENTY-ONE (21) DAYS TO
SIGN THIS LETTER. YOU CAN REVOKE YOUR ACCEPTANCE AS PROVIDED IN THIS LETTER.
YOUR DECISION TO SIGN THIS LETTER MUST BE KNOWING AND VOLUNTARY.
Sincerely,
MANPOWER INC.
By: /s/ Xxxxxxx X. Xxx Xxxxxx
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Address for Notice:
0000 Xxxxx Xxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attn: President
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Agreed this 26th day of April, 1999.
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/s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx
Address for Notice:
0000 Xxxxx Xxxxxxx Xxxx
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Xxxxxxxxx, XX 00000
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