EXHIBIT 10.4
FORM OF
EMPLOYEE BENEFITS AGREEMENT
This EMPLOYEE BENEFITS AGREEMENT, dated as of _________, 1998 (this
"Agreement"), is entered into by and between AccuStaff Incorporated, a Florida
corporation ("AccuStaff"), and Strategix Solutions, Inc., a Delaware corporation
and a wholly owned subsidiary of AccuStaff ("Strategix").
RECITALS
AccuStaff is a leading provider of business services that include
consulting and strategic services in the areas of information technology and
professional services ("AccuStaff business"). Strategix is a leading provider of
business services that include diversified temporary commercial staffing,
training, and outsourcing services ("Strategix Business"), and was created in
connection with a reorganization of AccuStaff (the "Reorganization"). As of the
date of this Agreement, AccuStaff owns all of the issued and outstanding common
stock of Strategix. Strategix is effecting an initial public offering of certain
of its common stock and, upon completion of such offering, subject to receipt of
a favorable IRS Private Letter Ruling and certain other conditions, AccuStaff
plans to distribute its shares of Strategix common stock to its shareholders
(the "Spin-off"). The Reorganization and the Spin-off are described in a
Reorganization and Spin-off Agreement between AccuStaff and Strategix. The
Reorganization and Spin-off Agreement provides that AccuStaff and Strategix will
enter into this Employee Benefits Agreement regarding certain liabilities and
obligations relating to employees of Strategix.
NOW, THEREFORE, in consideration of the premises and of the respective
covenants and agreements set forth herein, the parties hereto hereby agree as
follows:
ARTICLE I
DEFINITIONS
1.01 Definitions. As used in this Agreement, the following terms shall
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have the following respective meanings (capitalized terms used but not defined
herein (other than the names of AccuStaff employee benefit plans) shall have the
respective meanings ascribed thereto in the Reorganization and Spin-off
Agreement):
"AccuStaff" shall have the meaning specified in the first paragraph hereof.
"AccuStaff Common Stock" shall mean the common stock, $.01 par value per
share, of AccuStaff Incorporated, a Florida corporation.
"AccuStaff Deferred Compensation Plans" shall mean the AccuStaff Deferred
Compensation Plans listed on Exhibit A hereto.
"AccuStaff Employee" shall mean any individual who is employed by any
member of AccuStaff Group on the Spin-off Date.
"AccuStaff Former Employee" shall mean any individual who is, immediately
before the Spin-off Date, a former employee of any member of AccuStaff Group who
has not been an employee of any member of the Strategix Group since his or her
most recent active employment with any member of the AccuStaff Group.
"AccuStaff Group" means AccuStaff Incorporated, its subsidiaries and
affiliates other than the Strategix Group.
"AccuStaff Option" shall mean an option to purchase shares of AccuStaff
Common Stock granted pursuant to AccuStaff's 1993 or 1995 Stock Option Plan, as
amended and restated.
"AccuStaff Participants" shall mean AccuStaff Employees, AccuStaff Former
Employees, and their respective beneficiaries and dependents, and non-employee
directors of any member of the AccuStaff Group.
"AccuStaff Plan" shall mean the plans, policies, programs and other
arrangements maintained by, contributed to or sponsored by any member of
AccuStaff Group providing benefits to AccuStaff Participants or the Strategix
Participants.
"Agreement" shall have the meaning specified in the first paragraph hereof.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended.
"Liabilities" shall mean any and all losses, claims, charges, debts,
demands, actions, causes of action, suits, damages, obligations, payments, costs
and expenses, indemnities and similar obligations, covenants, contracts,
controversies, agreements, promises, guarantees, make whole agreements and
similar obligations, and other liabilities, including all contractual
obligations, whether absolute or contingent, matured or unmatured, liquidated or
unliquidated, accrued or unaccrued, known or unknown, whenever arising.
"Reorganization and Spin-off Agreement" shall have the meaning specified in
the recitals to this Agreement.
"Spin-off" shall have the meaning specified in the recitals to this
Agreement.
"Spin-off Date" shall mean the effective date of the Spin-off.
"Stapled Options" shall mean the stock options described in Section
3.01(b), which Strategix Employees who hold AccuStaff Options at the time of the
Spin-off may elect to receive in connection with the Spin-off.
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"Strategix" shall have the meaning set forth in the first paragraph hereof.
"Strategix Common Stock" shall mean the common stock, $.01 par value per
share, of Strategix Solutions, Inc., a Delaware corporation.
"Strategix Deferred Compensation Plan" shall mean any Deferred Compensation
Plan of Strategix in effect immediately prior to the Spin-off including those
deferred compensation plans listed on Schedule B.
"Strategix Employee" shall mean any individual who, on the Spin-off Date,
is employed by any member of the Strategix Group and is not an AccuStaff
Employee.
"Strategix Group" shall mean Strategix Solutions, Inc., and each Strategix
Subsidiary.
"Strategix Participants" shall mean Strategix Employees and their
respective beneficiaries and dependents and any non-employee directors of
Strategix.
"Strategix Plans" shall mean any plan, policy, program, payroll practice,
ongoing arrangement, trust, insurance policy or other agreement or funding
vehicle maintained by, contributed to or sponsored by any member of the
Strategix Group providing benefits to Strategix Participants, including without
limitation the plans listed on Schedule B hereto; provided, however, that the
term "Strategix Plans" shall not include any AccuStaff Plans.
"Strategix Omnibus Plan" shall mean the Strategix Solutions, Inc. Omnibus
Incentive Plan approved by the Board of Directors of Strategix, by unanimous
written consent effective July 14, 1998.
"Strategix Stock Option" shall mean an option to purchase from Strategix
shares of Strategix Common Stock in connection with Stapled Options as described
in Section 3.01(b).
"Strategix Subsidiary" shall mean any of the subsidiaries of Strategix on
the date hereof.
"Subsidiary" shall have the meaning provided in Section 424(f) of the
Internal Revenue Code of 1986, as amended.
1.02 Schedules, Etc. References to a "Schedule" are, unless otherwise
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specified, to one of the Schedules attached to this Agreement, and references to
a "Section" are, unless otherwise specified, to one of the Sections of this
Agreement.
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ARTICLE II
GENERAL
2.01 Liabilities and Assets Under Plans.
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(a) Until the Spin-off Date, Strategix Participants will continue to
participate in the AccuStaff Plans to the extent so provided at the discretion
of AccuStaff and in accordance with their terms. Strategix Participants also
shall participate in Strategix Plans that are effective prior to the Spin-off
Date to the extent so provided and in accordance with their terms. Strategix
will bear its allocable share of the costs of benefits and administration of the
AccuStaff Plans for Strategix Participants. From and after the Spin-off Date,
except as otherwise specifically set forth in this Agreement, the Strategix
Group shall retain and shall be solely responsible for, all Liabilities to
Strategix Participants arising under, resulting from or relating to the
AccuStaff Plans or to the Strategix Plans whether incurred before, on or after
the Spin-off Date, and AccuStaff Group shall assume or retain, as the case may
be, and shall be solely responsible for, all Liabilities to AccuStaff
Participants arising under, resulting from or relating to AccuStaff Plans,
whether incurred before, on or after the Spin-off Date.
(b) As soon as administratively possible, and in such amounts as
AccuStaff shall determine, AccuStaff shall cause the AccuStaff Plans to transfer
to the appropriate Strategix Plans assets held by the AccuStaff Plans
attributable to the liabilities assumed by the Strategix Group pursuant to
Section 2.01(a).
ARTICLE III
STOCK-BASED PLANS
3.01 Stock Options.
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(a) Prior to the Spin-off, Strategix shall establish the Strategix
Omnibus Plan. The Strategix Omnibus Plan will provide for the granting of
incentive stock options that qualify under Section 422 of the Code, non-
statutory stock options, restricted stock awards, contingent stock awards and
stock appreciation rights. No award made under the Strategix Omnibus Plan shall
be vested and exercisable any sooner than the date which is six months after the
effective date of the Spin-off.
(b) Except as otherwise provided below, Strategix Employees will not
be considered employees of AccuStaff or one of its subsidiaries and will be
considered to have terminated employment for purposes of AccuStaff Options or
the plans pursuant to which such AccuStaff Options were issued. Strategix
Employees will be able to elect to either: (i) retain their existing AccuStaff
Options (with an appropriate antidilution adjustment to reflect the Spin-off),
which
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options will remain subject to the terms and conditions (including forfeiture
and termination of employment provisions) of applicable AccuStaff Option plans
and award agreements; or (ii) receive "Stapled Options." Strategix Employees who
elect to receive Stapled Options shall be deemed to be employees of AccuStaff
for the period they remain employees of the Strategix Group for purposes of the
Stapled Options and related AccuStaff Option plans and will retain their
AccuStaff Options (without an antidilution adjustment to reflect the Spin-off),
which will continue to vest and will otherwise remain subject to the terms and
conditions of the applicable AccuStaff Option plans and award agreements. The
AccuStaff Options related to the Stapled Options will not be adjusted to reflect
the Spin-off. Instead, in addition to their AccuStaff Options, Strategix
Employees who elect to receive Stapled Options will receive options to purchase
a number of shares of Strategix ("Strategix Stock Options") that is reflective
of the pro rata distribution of Common Stock of Strategix to AccuStaff
stockholders in the Spin-off. Exercise of each AccuStaff Option related to the
Stapled Options will entitle the holder to (i) a share of AccuStaff Common Stock
and (ii) the same number of shares of Common Stock of Strategix as is received
by each holder of a share of AccuStaff Common Stock. The Strategix Stock Options
related to the Stapled Options will, by their terms, require that any exercise
will have to be made jointly with the exercise of the counterpart AccuStaff
Options related to the Stapled Options (which in turn will provide this feature
in converse, and which, together with the related Strategix Stock Options being
awarded as of the Spin-off, will be referred to herein as the "Stapled
Options"). The total exercise price required to exercise the Stapled Options
will equal the original amount required to exercise the related AccuStaff
Options before the Spin-off. Notwithstanding the foregoing, if either AccuStaff
or Strategix determines that legal, accounting, tax, and/or regulatory rules or
requirements applicable to options would make compliance with any of such
entity's obligations under this paragraph impossible, illegal, impracticable or
unreasonably expensive, it shall so notify the other party, and AccuStaff and
Strategix shall use their best efforts to agree to appropriate alternative
arrangements.
(c) Strategix shall reserve for issuance and issue in the future shares
of Common Stock of Strategix to certain Strategix Employees in connection with
the exercise by such Strategix Employees of their Stapled Options. AccuStaff
shall reserve for issuance and issue in the future shares of AccuStaff Common
Stock to certain Strategix Employees in connection with the exercise of
AccuStaff Options and Stapled Options.
(d) If any AccuStaff Options or Stapled Options are exercised by
Strategix Employees after the effective date of the Spin-off, Strategix will pay
to AccuStaff, at the time any such tax benefit is recognized by Strategix, the
amount of the tax benefit from any deduction received by Strategix as a result
of the issuance of any AccuStaff Common Stock under AccuStaff Options or Stapled
Options based on Strategix's top marginal rate for Federal, state or local
taxes.
3.02 AccuStaff Employee Stock Purchase Plan. Strategix Participants
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shall continue to be eligible to participate in the AccuStaff Employee Stock
Purchase Plan in accordance with their terms, until the Spin-off Date.
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ARTICLE IV
OTHER PLANS AND ARRANGEMENTS
4.01 Deferred Compensation.
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(a) Effective as of the Spin-off Date, AccuStaff shall amend
AccuStaff Deferred Compensation Plans, if necessary, so that no Strategix
Employee who is a participant therein shall be deemed to have terminated
employment as a result of the Spin-off or as a result of becoming a Strategix
Employee in connection with the Spin-off; provided, however, that Strategix
shall assume and be solely responsible for all Liabilities of AccuStaff Group to
or relating to Strategix Participants under AccuStaff Deferred Compensation
Plans or under Strategix Deferred Compensation Plans. Strategix and AccuStaff
shall cooperate in taking all actions necessary or appropriate to accomplish the
foregoing and to ensure that as of the Spin-off Date, AccuStaff Group and
AccuStaff Subsidiaries cease to have any Liabilities to or relating to the
Strategix Participants under AccuStaff Deferred Compensation Plans or under
Strategix Deferred Compensation Plans, including, but not limited to, amending
AccuStaff Deferred Compensation Plans or any grant thereunder and obtaining any
necessary consents of affected participants.
(b) Effective as of the Spin-off Date, Strategix shall amend the
Strategix Deferred Compensation Plans, if necessary, so that no AccuStaff
Employee who is a participant therein shall be deemed to have terminated
employment as a result of the Spin-off or as a result of becoming an AccuStaff
Employee in connection with the Spin-off (with the result that such AccuStaff
Employee shall continue as a participant in such Strategix Deferred Compensation
Plans in accordance with the terms of such plans).
4.02 Severance Pay.
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(a) Strategix and AccuStaff agree that individuals who, on or prior
to the Spin-off Date, in connection with the Spin-off, cease to be AccuStaff
employees and become Strategix Employees shall not be deemed to have experienced
a termination or severance of employment from AccuStaff and its subsidiaries for
purposes of any policy, plan, program or agreement of AccuStaff or any of its
subsidiaries that provides for the payment of severance, salary continuation,
vacation pay, or similar benefits.
(b) The Strategix Group shall assume and be solely responsible for
all Liabilities of AccuStaff Group in connection with claims made by or on
behalf of Strategix Employees in respect of severance pay, salary continuation,
vacation pay, and similar obligations relating to the termination or alleged
termination of any such person's employment on or after the Spin-off Date.
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ARTICLE V
OTHER LIABILITIES
5.01 Other Liabilities and Obligations. (a) As of the Spin-off
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Date: (i) the Strategix Group shall assume and be solely responsible for all
Liabilities of AccuStaff Group not otherwise provided for in this Agreement to
or relating to Strategix Participants arising out of or relating to employment,
including, but not limited to, liabilities connected with the provision of
welfare benefits, by any of AccuStaff Group or the Strategix Group, or any
predecessors thereof; and (ii) AccuStaff Group shall assume and be solely
responsible for all Liabilities of the Strategix Group not otherwise provided
for in this Agreement to or relating to AccuStaff Participants arising out of or
relating to employment, including, but not limited to, liabilities connected
with the provision of welfare benefits, by any of AccuStaff Group or the
Strategix Group, or any predecessors thereof.
ARTICLE VI
MISCELLANEOUS
6.01 Recognition of AccuStaff Employment Service. To the extent
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applicable, the Strategix Plans shall recognize service by a Strategix Employee
before the Spin-off Date with the AccuStaff Group as service with the Strategix
Group. The foregoing provision shall not, however, be construed to require
Strategix or any member of the Strategix Group to adopt or continue any specific
employee benefit plans or arrangements.
6.02 Indemnification. All Liabilities retained or assumed by or
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allocated to the Strategix Group pursuant to this Agreement shall be deemed to
be Losses arising out of the Strategix Business, as defined in the
Reorganization and Spin-off Agreement, and all Liabilities retained or assumed
by or allocated to AccuStaff Group pursuant to this Agreement shall be deemed to
be Losses arising out of AccuStaff Business, as defined in the Reorganization
and Spin-off Agreement and, in each case, shall be subject to the
indemnification provisions set forth in Article VI thereof.
6.03 Guarantee of Subsidiaries' Obligations. Each of the parties
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hereto shall cause to be performed, and hereby guarantees the performance and
payment of, all actions, agreements, obligations and liabilities set forth
herein to be performed or paid by any Subsidiary of such party which is
contemplated by the Reorganization and Spin-off Agreement to be a Subsidiary of
such party on or after the Spin-off Date.
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6.04 Sharing of Information. Each of AccuStaff and Strategix shall,
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and shall cause the other members of their respective Groups to, provide to the
other all such information in its possession as the other may reasonably request
to enable it to administer its employee benefit plans and programs, and to
determine the scope of, and fulfill, its obligations under this Agreement. Such
information shall, to the extent reasonably practicable, be provided in the
format and at the times and places requested, but in no event shall the party
providing such information be obligated to incur any direct expense not
reimbursed by the party making such request, nor to make such information
available outside its normal business hours and premises.
6.05 Amendments. This Agreement may be amended, modified or
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supplemented only by a written agreement signed by all of the parties hereto.
6.06 Successors and Assigns. This Agreement and all of the
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provisions hereof shall be binding upon and inure to the benefit of the parties
and their respective successors and permitted assigns.
6.07 Termination. This Agreement shall be terminated in the event
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that the Reorganization and Spin-off Agreement is terminated and/or the Spin-off
abandoned prior to the Spin-off Date. In the event of such termination, neither
party shall have any liability of any kind under this Agreement to the other
party because of such termination. The parties hereto agree to replace this
Agreement with a mutually acceptable agreement in the event of such termination.
6.08 Rights to Amend or Terminate Plans; No Third Party
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Beneficiaries. No provision of this Agreement shall be construed (a) to limit
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the right of any member of AccuStaff Group or any member of the Strategix Group
to amend any plan or terminate any plan, or (b) to create any right or
entitlement whatsoever in any employee or beneficiary including, without
limitation, a right to continued employment or to any benefit under a plan or
any other benefit or compensation (it being understood that this Agreement will
also not be construed to limit any right or entitlement of any employee or
beneficiary existing without reference to this Agreement). This Agreement is
solely for the benefit of the parties hereto and their respective subsidiaries
and should not be deemed to confer upon third parties any remedy, claim,
liability, reimbursement, claim of action or other right in excess of those
existing without reference to this Agreement.
6.09 Payment Under Other Agreements. With the exception of an
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appropriate offset of any indemnification obligation arising under the
Reorganization and Spin-off Agreement, which indemnification obligation would
arise absent payment pursuant to this Agreement, no payment made by one party to
the other pursuant to this Agreement will affect in any manner any payments
required to be made under the Reorganization and Spin-off Agreement or any other
agreement between the parties hereto, including, without limitation, the
settlement of intercompany payables and receivables provided for in the
Reorganization and Spin-off Agreement.
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ARTICLE VII
GENERAL
7.01 Nonexclusivity. The rights and remedies of the parties provided
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in this Agreement shall not be exclusive and are in addition to any other rights
and remedies provided at law or in equity.
7.02 Binding Effect. This Agreement shall be binding upon and inure
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to the benefit of the successors and assigns of the parties hereto, except that
no obligation of Strategix under this Agreement may be delegated except by
operation of law. AccuStaff may assign its rights and obligations to any
Affiliate of AccuStaff without consent. Except as expressly provided in this
Agreement, the parties hereto intend that this Agreement shall not benefit or
create any right or cause of action in or on behalf of any person other than the
parties hereto.
7.03 No Agency. Nothing in this Agreement shall be construed as
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making either party the agent of the other or as creating a partnership, joint
venture or similar arrangement.
7.04 Notices. All notices and other communications required or
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permitted hereunder shall be in writing and shall be delivered personally,
delivered by facsimile transmission (with confirmation of receipt immediately
thereafter by telephone), telegraphed, sent by nationally recognized overnight
courier (marked for overnight delivery), or sent by registered, certified or
express mail, postage prepaid, return receipt requested, addressed to the
parties at the address appearing on the first page of this Agreement or to such
other address as may be hereafter designated in writing hereunder by the
respective parties. Each party shall promptly advise the other in writing of
any change of address.
7.05 Severability. If any provision of this Agreement is held
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illegal or unenforceable by any court of competent jurisdiction, such provision
shall be deemed separable from the remaining provisions of this Agreement and
shall not affect or impair the validity or enforceability of the remaining
provisions of this Agreement. The parties hereto agree to replace any such
illegal or unenforceable provision that has the most nearly similar permissible
economic or other effect.
7.06 Governing Law. This Agreement shall be governed by the laws of
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the State of Florida, without regard to its conflicts of law principles.
7.07 No Waiver. The failure of either party to enforce, in any one
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or more instances, any of the terms or conditions of the Agreement shall not be
construed as a waiver of the future performance of any such term or condition.
7.08 Force Majeure. Neither party shall be liable for its failure to
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perform any of its obligations hereunder during any period in which such
performance is directly delayed by the occurrence of events beyond the control
of the failing party such as fire, explosion, flood, storm
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or the acts of God, war, embargo, riot, or the intervention of any government
authority, provided that the party suffering the delay immediately notifies the
other party of the delay.
7.09 Final Agreement. This Agreement supersedes all prior oral and
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written understandings and agreements between the parties concerning the subject
matter hereof and may not be modified except in a writing signed by the
authorized representatives of the parties hereto.
7.10 Counterparts. This Agreement may be executed in one or more
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counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first above written.
ACCUSTAFF INCORPORATED
By:________________________________
Name:______________________________
Title:_____________________________
STRATEGIX SOLUTIONS, INC.
By:________________________________
Name:______________________________
Title:_____________________________
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SCHEDULE A TO THE EMPLOYEE BENEFITS AGREEMENT
LIST OF ACCUSTAFF PLANS
1995 Stock Option Plan, as amended and restated in 1997
1993 Stock Option Plan
AccuStaff Employee Stock Purchase Plan
AccuStaff Flexible Spending Account Plan
AccuStaff Incorporated Employee Savings and Profit Sharing Plan
AccuStaff Incorporated Retirement Savings Plan
AccuStaff Incorporated Executive Deferred Compensation Plan
Survivor Benefits Plan and Long-Term Disability Plan: includes
. Employee Basic Life Insurance
. Employee Additional Life Insurance
. Business Travel Accident Insurance
. Accidental Death and Dismemberment Insurance
. Long and Short Term Disability
Vacation
Various sales commission and bonus arrangements
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SCHEDULE B TO THE EMPLOYEE BENEFITS AGREEMENT
LIST OF STRATEGIX PLANS
Office Specialists Employee Savings and Profit Sharing Plan
Career Horizons, Inc. Executive Deferred Compensation Plan
Office Specialists Executive Deferred Compensation Plan
Firstaff Executive Deferred Compensation Plan
Medical Plans
Office Specialists
Staffing Resources
CGS
Training Delivery Systems, Inc.
Firstaff, Inc.
Temps America
The Placers
Strategix Solutions, Inc. Omnibus Incentive Plan
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