EXHIBIT 10.2
Effective August 2, 2000, the Registrant entered into a Consulting
Agreement substantially in the form attached hereto with each of Xxxxxx X.
Xxxxxxx, Xx., M. Xxxxx Xxxxxxx, Xxxx X. Xxxxxxxx, Xxxxxx X. Xxxxx, Xxxxxx
Xxxxx and Xxxxxxx X. Xxxxxxxx. Pursuant to Instruction 2 to Item 601 of
Regulation S-K, the individual agreements are not being filed.
AMENDED AND RESTATED CONSULTING AGREEMENT
The Consulting Agreement made as of January 1, 1999, by and between
Xxxxxx Half International Inc. ("Company") and _________________ ("Consultant"),
is hereby amended and restated to read in its entirety as follows, effective
August 2, 2000.
Whereas, Consultant currently serves as an Executive Officer of
Company.
Whereas, Company wishes to make arrangements now to insure the
availability of the advice, counsel and experience of Consultant after
Consultant retires and Company considers such services to be very important in
view of the personal service nature of Company's business and Consultant's vital
role in helping to build such business.
NOW, THEREFORE, Company and Consultant agree as follows:
1. ENGAGEMENT. Commencing on the date of Consultant's Retirement,
Company engages Consultant and Consultant accepts such engagement during the
Consulting Period upon the terms and conditions hereinafter set forth. Nothing
herein shall in any way modify, affect or govern the terms and conditions of
Consultant's employment by Company prior to the Consulting Commencement Date. If
Consultant's full-time employment with Company shall terminate prior to the
Consulting Commencement Date under any circumstances other than Consultant's
Retirement, this Agreement shall immediately terminate and be of no further
force or effect.
2. SERVICES. During the Consulting Period, Consultant shall provide
advice and counsel to Company as reasonably requested from time to time. Subject
to the reasonable requirements of the engagement, Consultant may select the time
and place at which Consultant performs such services. Company agrees that
Consultant shall not be required to render more than 40 hours of services during
any calendar quarter during the Consulting Period, nor shall Consultant be
required to (a) travel outside the United States, (b) travel more than 100 miles
from Consultant's home (other than to appear at Company's headquarters) more
than once in any year, or (c) render services during other than ordinary
business hours. Consultant agrees, if requested by Company, to be a nominee for
and, if elected, serve as a Director of Company. The terms of Consultant's
engagement are determined hereunder and no employee manual, policy statement or
similar item issued from time to time by Company to its employees shall
constitute part of this Agreement or modify, affect or govern the terms of the
engagement of Consultant during the Consulting Period.
3. COMPENSATION.
(a) During the Consulting Period, Consultant shall be paid a monthly
fee equal to 1/12 of the product of (i) 8% and (ii) Consultant's total base
salary and cash bonus with respect to the last complete calendar year prior to
the Consulting Commencement Date.
(b) Consultant shall be reimbursed, upon presentation of proper
receipts, for Consultant's reasonable business expenses related to travel
requested by Company.
(c) During the Consulting Period, any options or shares of restricted
stock granted under the 1993 Incentive Plan after December 1, 1997, and held by
Consultant on the Consulting Commencement Date shall remain outstanding and
shall continue to vest in accordance with their existing terms, notwithstanding
the termination of Consultant's full-time employment by Company that shall have
occurred on the Consulting Commencement Date.
(d) Consultant understands that, because Consultant is an independent
contractor during the Consulting Period, Company will not be withholding taxes
from payments due Consultant. Consultant agrees to pay all required taxes,
including income taxes, resulting from the engagement hereunder.
4. OWNERSHIP OF RESULTS. Any ideas, concepts, documents, written
materials or other creation of any type developed by Consultant during the
Consulting Period ("Creations"), whether or not incorporating confidential or
proprietary information or trade secrets of Company, shall be the sole and
exclusive property of Company and Consultant hereby irrevocably assigns any and
all rights thereto to Company, including, but not limited to, any copyright
interest. All Creations constitute "work for hire" within the meaning of the
U.S. copyright laws. Consultant shall, without further compensation, execute any
and all instruments and take whatever action may be deemed necessary by Company
to fully vest all rights in any Creations in Company, including, but not limited
to, cooperating with Company in the registration of the copyright of the
Creations. Consultant shall not, before or after completion of the engagement,
use any Creations for any purpose other than the engagement. The provisions of
this Section, however, shall not apply to any Creation with respect to which
applicable statute prohibits assignment of rights by Consultant to Company.
5. USE OF NAME. Consultant hereby consents to the use and publication,
without further consideration, of his name, picture and image in training
materials and other materials relating to the business of any of the RHI
Companies, regardless of whether such use or publication is in the form of
printed matter, photographs, audio tape, video tape, computer disk, electronic
transmission, or otherwise. Such consent applies to both the use and publication
of such items during Consultant's engagement.
6. DISCLOSURE OR MISUSE OF CONFIDENTIAL INFORMATION. Consultant shall
not, at any time during the Consulting Period or thereafter, directly or
indirectly, disclose, furnish or make accessible to any person, firm,
corporation, or other entity, or make use of, any confidential information
obtained at any time from any of the RHI Companies (whether prior or subsequent
to the Consulting Commencement Date), including, without limitation, information
with respect to the name, address, contact persons or requirements of any
customer, client, applicant or employee of any of the RHI Companies (whether
having to do with temporary or permanent employment) and information with
respect to
the procedures, advertising, finances, organization, personnel, plans,
objectives or strategies of the RHI Companies). Consultant acknowledges that
such information is safeguarded by the RHI Companies as trade secrets. Upon
termination of Consultant's engagement, Consultant shall deliver to the RHI
Companies all copies of all records, manuals, training kits, and other property
belonging to the RHI Companies or used in connection with their business which
may be in Consultant's possession. The provisions of this Section shall survive
termination of either Consultant's engagement or this Agreement for any reason.
7. RESTRICTIVE COVENANT. In consideration and view of (i) the valuable
consideration furnished to Consultant by Company engaging Consultant and
entering into this Agreement, (ii) Consultant's access to confidential
information and trade secrets of the RHI Companies and (iii) the value of such
confidential information and trade secrets to the RHI Companies, during the
period commencing on the Consulting Commencement Date and ending on the fourth
anniversary thereof, Consultant shall not render services to any other firm,
person, corporation, partnership or other entity or individual engaged in the
business of temporary, contract or permanent placement of individuals or in the
staffing services business (including, but not limited to, any executive
recruiting firm, employment agency or temporary personnel service). The
covenants of Consultant contained in this section are in addition to, and not in
amendment, modification or replacement of, any obligations of Consultant
contained in any other agreement between Consultant and Company.
8. NON-SOLICITATION OF OTHER EMPLOYEES. In consideration and view of
(i) the valuable consideration furnished to Consultant by Company engaging
Consultant and entering into this Agreement, (ii) Consultant's access to
confidential information and trade secrets of the RHI Companies, and (iii) the
value of such confidential information and trade secrets to the RHI Companies,
during the period commencing on the Consulting Commencement Date and ending on
the fourth anniversary thereof, Consultant shall not, directly or indirectly,
solicit, induce, encourage (or assist any other person, firm, entity, business
or organization in soliciting, inducing or encouraging) any employee of any of
the RHI Companies to leave the employ of the RHI Companies. The covenants of
Consultant contained in this section are in addition to, and not in amendment,
modification or replacement of, any obligations of Consultant contained in any
other agreement between Consultant and Company.
9. INJUNCTION. In view of Consultant's access to confidential
information and trade secrets and in consideration of the value of such property
to the RHI Companies, Consultant expressly acknowledges that the covenants set
forth herein are reasonable and necessary in order to protect and maintain the
proprietary and other legitimate business interests of the RHI Companies, and
that the enforcement thereof would not prevent Consultant from earning a
livelihood. Consultant further agrees that in the event of an actual or
threatened breach by Consultant of such covenants, the RHI Companies would be
irreparably harmed and the full extent of injury resulting therefrom would be
impossible to calculate and the RHI Companies therefore will not have an
adequate remedy at law. Accordingly, Consultant agrees that temporary and
permanent injunctive
relief would be appropriate remedies against such breach, without bond or
security; provided, that nothing herein shall be construed as limiting any other
legal or equitable remedies the RHI Companies might have.
10. TERMINATION.
(a) Consultant may terminate Consultant's engagement hereunder at any
time on written notice to Company.
(b) Company may terminate Consultant's engagement hereunder, at any
time on written notice to Consultant.
(c) If Consultant's engagement hereunder is terminated on or after the
Consulting Commencement Date and prior to the fourth anniversary of the
Consulting Commencement Date (1) by Consultant as a result of a willful and
material breach of this agreement by Company or (2) by Company other than a
Termination for Cause or Termination for Nonperformance, Company shall continue
to pay Consultant the consulting fees specified herein until the earlier of (i)
the fourth anniversary of the Consulting Commencement Date, or (ii) any breach
by Consultant of the provisions of Sections 6, 7, or 8, hereof.
(d) If Consultant's engagement hereunder is terminated on or after the
Consulting Commencement Date and prior to the fourth anniversary of the
Consulting Commencement Date (1) by Consultant as a result of a willful and
material breach of this agreement by Company or (2) by Company other than a
Termination for Cause, effective upon the date of such termination, (i) any
unvested options granted under the 1993 Incentive Plan subsequent to the date
hereof and then held by Consultant shall vest and shall not be subject to
forfeiture, (ii) any outstanding options granted under the 1993 Incentive Plan
subsequent to the date hereof and then held by Consultant shall remain
outstanding for the full length of their original term, and (iii) any unvested
shares of restricted stock granted under the 1993 Incentive Plan subsequent to
the date hereof and then held by Consultant shall vest and shall not be
forfeited.
(e) If the Consulting Period ends on the fourth anniversary of the
Consulting Commencement Date, then any outstanding options granted under the
1993 Incentive Plan subsequent to the date hereof and then held by Consultant
shall remain outstanding for the full length of their original term.
11. WAIVER. Failure of any party to insist upon strict compliance with
any of the terms, covenants and conditions hereof shall not be deemed a waiver
or relinquishment of the right to subsequently insist upon strict compliance
with such term, covenant or condition or a waiver or relinquishment of any
similar right or power hereunder at any subsequent time.
12. AMENDMENT. No provision of this Agreement may be changed or waived
except by an agreement in writing signed by the party against whom enforcement
of any such waiver or change is sought.
13. SEVERABILITY. The provisions of this Agreement are severable. If
any provision is found by any court of competent jurisdiction to be unreasonable
and invalid, that determination shall not affect the enforceability of the other
provisions. Furthermore, if any of the restrictions against various activities
is found to be unreasonable and invalid, the court before which the matter is
pending shall enforce the restriction to the maximum extent it deems to be
valid. Such restrictions shall be considered divisible both as to time and as to
geographical area, with each month being deemed a separate period of time and
each one mile radius from any office being deemed a separate geographical area.
The restriction shall remain effective so long as the same is not unreasonable,
arbitrary or against public policy.
14. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the state of California, except with respect to
Sections 6, 7, 8 and 9, which shall be governed by and construed in accordance
with the law of the jurisdiction in which an activity in violation thereof
occurred or threatens to occur and with respect to which legal and equitable
relief is sought. In no event shall the choice of law be predicated upon the
fact that Company is incorporated or has its corporate headquarters in a certain
state.
15. ENTIRE AGREEMENT. This Agreement contains all of the agreements,
conditions, promises and covenants between the parties with respect to the
subject matter hereof and supersedes all prior or contemporaneous agreements,
representations, arrangements or understandings, whether written or oral, with
respect to the subject matter hereof.
16. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall constitute one agreement.
17. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
shall inure to the benefit of Company (including its direct and indirect
subsidiaries) and its successors and assigns. This Agreement may not be assigned
by Consultant.
18. THIRD PARTY BENEFICIARY. Each of the RHI Companies is a third party
beneficiary of this Agreement and each of them has the full right and power to
enforce rights, interests and obligations under this Agreement without
limitation or other restriction.
19. DEFINITIONS.
"Termination for Cause" shall mean termination by Company of
Consultant's engagement by Company by reason of (a) Consultant's willful
dishonesty towards, fraud upon, or deliberate injury or attempted injury to
Company which has resulted in material
injury to Company, or (b) violation by Consultant of the provisions of Section
6, 7, or 8 hereof which has resulted in material injury to Company; provided,
however, that Consultant's engagement shall not be deemed to have been a
"Termination for Cause" if such termination took place as a result of any act or
omission believed by Consultant in good faith to have been in the interest of
Company.
"Termination for Nonperformance" shall mean termination by Company of
Consultant's engagement by Company by reason of repeated failure by Consultant,
following written notice, to materially perform the service obligations
contained in Section 2 hereof.
"Consulting Commencement Date" shall be the date of Consultant's
Retirement.
"Consulting Period" means the period of time commencing on the
Consulting Commencement Date and ending on the earlier to occur of (a) the
fourth anniversary of the Consulting Commencement Date or (b) the date on which
this agreement is terminated in accordance with the terms hereof.
"Retirement" means any termination by Consultant of Consultant's
full-time employment with Company on or after the later to occur of (a)
Consultant's 55th birthday, or (b) the 20th anniversary of Consultant's first
day of service with Company as a director or full-time employee.
"RHI Companies" means Company and its subsidiaries and affiliates.
20. INDEMNIFICATION. The Company shall indemnify Consultant for all
actions taken while performing services hereunder to the fullest extent
permitted by Delaware law, the Certificate of Incorporation and the By-laws of
the Company and by the terms of any indemnification agreement that has been or
shall be entered into from time to time between the Company and Consultant,
which indemnification agreement shall remain in full force and effect during the
Consulting Period and shall cover the actions of Consultant during the
Consulting Period as if he were a director or an officer during the Consulting
Period.
21. ATTORNEYS' FEES. In the event of any litigation pertaining to this
agreement, the prevailing party shall be reimbursed by the non-prevailing party
for the prevailing party's reasonable attorney's fees and expenses incurred in
such litigation.
IN WITNESS WHEREOF, the parties have set their hands hereto as of the
date first above written.
XXXXXX HALF INTERNATIONAL INC.
By __________________________
_____________________________
Consultant
