EMPLOYMENT AGREEMENT BETWEEN KORN/FERRY INTERNATIONAL AND MICHAEL DiGREGORIO
TABLE OF CONTENTS
| Page | ||||
1. Employment |
1 | |||
2. At-Will Employment |
1 | |||
3. Position, Duties and Responsibilities |
1 | |||
4. Annual Compensation |
1 | |||
(a) Base Salary |
1 | |||
(b) Annual Cash Incentive Award |
2 | |||
(c) Equity Incentive Program |
2 | |||
5. Employee Benefit Programs and Perquisites |
3 | |||
(a) General |
3 | |||
(b) Reimbursement of Business Expenses |
3 | |||
(c) Conditions of Employment |
3 | |||
6. Termination of Employment |
3 | |||
(a) Death |
3 | |||
(b) Disability |
4 | |||
(c) Termination by the Company for Cause or Voluntary Termination by Executive |
4 | |||
(d) Termination by the Company Without Cause or by Executive for Good Reason Prior to Change in Control or More Than 12 Months After a Change in Control |
4 | |||
(e) Following a Change in Control, Termination by the Company Without Cause or by Executive for Good Reason |
5 | |||
(f) Certain Additional Payments by the Company |
||||
(g) Other Programs |
7 | |||
(h) Conditions to Receipt of Benefits Under Section 6 |
7 | |||
(i) Certain Definitions |
7 | |||
7. Application of Section 409A |
8 | |||
8. No Mitigation; No Offset |
9 | |||
9. Confidential Information; Cooperation with Regard to Litigation |
9 | |||
(a) Nondisclosure of Confidential Information |
9 | |||
(b) Definition of Confidential Information |
9 | |||
(c) Cooperation in Litigation |
10 | |||
10. Nonsolicitation |
10 | |||
11. Remedies |
10 | |||
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TABLE OF CONTENTS
(continued)
(continued)
| Page | ||||
12. Resolution of Disputes |
10 | |||
13. Indemnification |
10 | |||
(a) Company Indemnity |
10 | |||
(b) No Presumption Regarding Standard of Conduct |
11 | |||
(c) Liability Insurance |
11 | |||
14. Effect of Agreement on Other Benefits |
11 | |||
15. Expenses of Counsel for Executive |
11 | |||
16. Assignment; Binding Nature |
12 | |||
17. Representations |
12 | |||
18. Entire Agreement |
12 | |||
19. Amendment or Waiver |
12 | |||
20. Severability |
12 | |||
21. Survivorship |
12 | |||
22. Beneficiaries/References |
12 | |||
23. Governing Law |
13 | |||
24. Counterparts and Facsimile |
13 | |||
25. Notices |
13 | |||
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This EMPLOYMENT AGREEMENT (this “Agreement”) is made and entered into as of April
30, 2009, by and between KORN/FERRY INTERNATIONAL, a Delaware corporation with its principal
offices in Los Angeles, California (the “Company”), and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, an individual
(the “Executive”) and will, subject to Section 2, become effective on the Start Date.
1. Employment. Subject to Section 2, the Company agrees to employ Executive and
Executive agrees to be employed by the Company upon the terms and conditions set forth in this
Agreement.
2. At-Will Employment. Subject to the satisfactory completion (in the Company’s sole
determination) of the Company’s background screening process of the Executive, Executive’s
employment under this Agreement will begin on June 1, 2009 (the “Start Date”), unless otherwise
mutually agreed by the Company and Executive; provided that in the event the background screening
process of the Executive referred to above is not satisfactorily completed (in the Company’s sole
determination), the Company may deliver written notice to the Executive of the Company’s
termination of this Agreement, and upon the delivery of such written notice to Executive this
Agreement shall terminate without liability to either party and will be of no force or effect.
Subject to compliance with this Agreement, the Company may terminate Executive’s employment, with
or without Cause (as defined in Section 6(i) of this Agreement), for any reason or no reason and
with or without advance notice. Executive may terminate his employment at any time, for any or no
reason, with or without Good Reason (as defined in Section 6(i) of this Agreement) upon thirty (30)
days advance written notice to the Company.
3. Position, Duties and Responsibilities. Executive will serve as Executive Vice
President and Chief Financial Officer with duties and responsibilities customary to such offices
and shall report to the Company’s Chief Executive Officer (the “CEO”). At the request of the CEO,
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, and with
the specific approval of the Board, Executive may engage in personal, charitable, professional and
investment activities, including serving on the board of directors of other companies or entities,
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. Annual Compensation. In consideration of Executive’s services to the Company
pursuant to this Agreement, Executive’s annual compensation shall be as follows:
(a) Base Salary. Executive shall be entitled to receive a base salary of $39,583.33
per month (his “Base Salary”) ($475,000 on an annualized basis) (such annualized amount,
his “Annual Base Salary”), paid in accordance with the Company’s regular payroll practices.
The CEO, acting in its discretion, may increase (but may not decrease) Executive’s
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Base Salary at any time, unless the CEO 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, provided, however, that no such across-the-board reduction
instituted within six (6) months of the Start Date shall be applicable to Executive.
(b) Annual Cash Incentive Award. Executive will participate in the Company’s annual
cash incentive plan established for senior executives with an annual target cash award equal to 75%
of Executive’s Annual Base Salary, with the ability to earn additional amounts up to a maximum cash
award equal to 150% of Executive’s Annual 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. The annual performance targets for the cash award shall be set by the Board and/or the
Compensation Committee of the Board (the “Compensation Committee”) prior to the
commencement of each fiscal year of the Company.
(1) For FY2010 (May 1, 2009 through April 30, 2010), Executive will receive a guaranteed cash
incentive award of no less than $225,000. The guaranteed amount of $225,000 will be paid in
twenty-four (24) equal semi-monthly installments, with each installment contingent upon Executive’s
continued active and full-time employment in good standing as of each such installment date.
Should Executive’s actual annual cash incentive award for FY2010 exceed the guaranteed amount of
$225,000, the additional amount shall be paid as set forth in Section 4(b) above.
(c) Equity Incentive Program. Executive shall be awarded, subject to the approval of
the Board, equity incentives with respect to shares of the Company’s common stock
(“Shares”), which shall be granted under an equity compensation plan of the Company as may
be in effect from time to time. Such annual equity incentives 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 2010 fiscal year. The terms of any equity incentives
granted shall be set by the Board or the Compensation Committee.
(1) Executive shall receive a one-time stock option award subject to the discretion of and
approval by the Board and /or Compensation Committee, with a target grant value of 75% of
Executive’s base salary. Such grant will vest in four installments on the 1st,
2nd, 3rd, and 4th anniversary of the effective date of the grant,
in each case subject to Executive’s continuous active full-time employment with the Company. The
Stock Options award will be issued effective on the later of the start date or the date it is
approved by the Board and /or Compensation Committee. Other terms of such grant shall be set by the
Board and/or the Compensation Committee.
(2) Executive shall be eligible to receive an award of performance shares (“Performance
Shares”), with a target grant value of 37.5% of Executive’s Annual Base Salary (as determined
by the Board and/or the Compensation Committee) which will be earned at the end of, and based on
the Company’s performance during, a performance period of 3 years (the “Performance
Period”). Other terms of such performance shares grant shall be set by the Board or the
Compensation Committee.
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(3) Executive shall be eligible to receive an annual grant of restricted stock and/or stock
options, subject to the discretion of and approval of the Board and/or the Compensation Committee,
with a target grant value of 37.5% of Executive’s Annual Base Salary (as determined by the Board
and/or the Compensation Committee). Such grant will vest in four installments on the
1st, 2nd, 3rd, and 4th anniversary of the effective
date of the grant, in each case subject to Executive’s continuous employment with the Company.
Other terms of such restricted stock grant shall be set by the Board and/or the Compensation
Committee.
5. Employee Benefit Programs and Perquisites.
(a) General. Executive will be entitled to participate in such retirement 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 and three weeks paid sick leave.
(b) Reimbursement of Business Expenses. Executive is authorized to incur 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 vouchers or receipts, subject to the
Company’s expense reimbursement policies applicable to senior executive officers generally.
(c) Car Allowance. The Company shall pay to Executive a car allowance of $450 per
month.
(d) Conditions of Employment. Executive’s place of employment will be at the
Company’s corporate headquarters in Los Angeles, California, 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 Chief Financial Officer of the Company.
6. Termination of Employment.
(a) Death. If Executive’s employment with the Company terminates by reason of
Executive’s death, then the Company will pay to Executive’s estate Executive’s “Accrued
Compensation” (as defined in Section 6(i)) within the time period permitted by applicable law, and
all outstanding stock options and other equity-type incentives held by Executive (but expressly
excluding Performance Shares) and all of Executive’s benefits under the Executive Capital
Accumulation Plan at the time of Executive’s death will become fully vested and shall remain
exercisable until the earlier of (A) the date that is two (2) years after the date of Executive’s
death or (B) its originally scheduled expiration date. Additionally, Executive’s estate shall be
entitled to a pro rata portion of Executive’s target annual cash incentive award established for
the fiscal year in which Executive’s employment terminates due to death (based on the proportion
that the number of days of Executive’s actual service to the Company during such fiscal year bears
to the number of days in such fiscal year). Executive’s estate shall also be entitled to receive
the number of Performance Shares that would have been
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earned if Executive had served the Company for the entire Performance Period and the Company’s
performance during such period had been the target performance for the Performance Period. To the
extent Executive’s covered dependent(s) continue to participate in the Company’s group health
plan(s) after Executive’s death pursuant to COBRA, the Company will provide reimbursement of COBRA
coverage premiums paid by Executive’s covered dependent(s) so that such covered dependent(s) enjoy
coverage at the same benefit level and to the same extent and for the same effective contribution,
if any, as participation is available to other executive officers of the Company, for as long as
such coverage is available under COBRA.
(b) Disability. If the Company terminates Executive’s employment by reason of
Executive’s Disability (as defined in Section 6(i)), then the Company will pay to Executive his
Accrued Compensation within the time period permitted by applicable law and all outstanding stock
options and other equity-type incentives (but expressly excluding Performance Shares) held by
Executive and all of Executive’s benefits under the Executive Capital Accumulation Plan at
Executive’s termination date will become fully vested and shall remain exercisable until (i) in the
case of an option, incentive or benefit granted prior to the Start Date, until its originally
scheduled expiration date; or (ii) in the case of an option, incentive or benefit granted after the
Start Date, the date that is the earlier of (A) two (2) years after the date Executive’s employment
terminates and (B) its original scheduled expiration date. Additionally, Executive shall be
entitled to a pro rata portion of Executive’s target annual cash incentive award established for
the fiscal year in which Executive’s employment terminates due to disability (based on the
proportion that the number of days during such fiscal year prior to the date of termination bears
to the number of days in such fiscal year). Executive shall also be entitled to receive the number
of Performance Shares that would have been earned if Executive had served the Company for the
entire Performance Period and the Company’s performance during such period had been the target
performance for the Performance Period. To the extent Executive and/or Executive’s covered
dependent(s) continue to participate in the Company’s group health plan(s) pursuant to COBRA after
Executive’s termination of employment by reason of Disability, the Company will provide
reimbursement of COBRA coverage premiums paid by Executive and Executive’s dependent(s) so that
Executive and Executive’s covered dependent(s) enjoy coverage at the same benefit level and to the
same extent and for the same effective contribution, if any, as participation is available to other
executive officers of the Company, for as long as such coverage is available under COBRA.
(c) Termination by the Company for Cause or Voluntary Termination by Executive. If
(i) the Company terminates Executive’s employment for Cause (as defined in Section 6(i)), or (ii)
Executive voluntarily terminates Executive’s employment without Good Reason (as defined in Section
6(i)), then the Company shall pay to Executive Accrued Compensation through the date Executive’s
employment terminates within the time period permitted by applicable law.
(d) Termination by the Company Without Cause or by Executive for Good Reason Prior to
Change in Control or More Than 12 Months After a Change in Control. If Executive’s employment
is terminated prior to a “Change in Control” (as defined in Schedule A), or more than 12 months
after the date on which a Change in Control occurs, (i) by the Company without Cause and for a
reason other than Executive’s Death or Disability, or (ii) by
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Executive for Good Reason, then the Company shall pay to Executive within the time period
permitted by applicable law Executive’s Accrued Compensation and a pro rata portion of Executive’s
target annual cash incentive award established for the fiscal year in which Executive’s employment
terminates (based on the number of days of Executive’s actual service to the Company during such
fiscal year), and
(1) the Company shall pay to Executive cash payment equal to one (1) time Executive’s then
current Annual Base Salary, payable in equal monthly installments over a period of twelve (12)
months after the date Executive’s employment terminates;
(2) for up to eighteen (18) months after such termination, to the extent Executive and/or
Executive’s covered dependent(s) continue to participate in the Company’s group health plan(s)
pursuant to COBRA after Executive’s termination of employment, the Company will provide
reimbursement of COBRA coverage premiums paid by Executive and Executive’s covered dependent(s) so
that Executive and Executive’s covered dependent(s) enjoy coverage at the same benefit level and to
the same extent and for the same effective contribution, if any, as participation is available to
other executive officers of the Company;
(3) all outstanding stock options and other equity-type incentives held by Executive and all
of Executive’s benefits under the Executive Capital Accumulation Plan at the time of Executive’s
termination (but expressly excluding Performance Shares) that would have vested in the twelve (12)
months following the date Executive’s employment terminates (in each case, as if such options,
incentives and benefits permitted proportionate vesting in monthly increments rather than any
longer increment) will become fully vested as of the date Executive’s employment terminates and
shall remain exercisable until the date that is the earlier of (x) two (2) years after the date
Executive’s employment terminates and (y) its originally scheduled expiration date; and
(4) Executive shall receive a number of Performance Shares equal to the product of (A) the
Performance Shares that would have been earned if Executive had served the Company for the entire
Performance Period and the Company’s performance during such period had been the target performance
for the Performance Period, and (B) a fraction, (x) the numerator of which fraction shall be the
sum of (i) the number of days of Executive’s employment during the Performance Period and (ii) 365
(provided that the numerator shall not exceed the number of days in the Performance Period) and (y)
the denominator of which fraction shall be the number of days in the Performance Period.
(e) Following a Change in Control, Termination by the Company Without Cause or by
Executive for Good Reason. If a Change in Control occurs and, within 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, then the Company shall pay to Executive within
the time period permitted by applicable law Executive’s Accrued Compensation and a pro rata portion
of Executive’s target annual cash incentive award established for the fiscal year in which
Executive’s employment terminates (based on the number of days of Executive’s actual service to the
Company during such fiscal year), and
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(1) the Company shall pay to Executive cash payment equal to one and one-half times
Executive’s then current Annual Base Salary, payable in equal monthly installments over a period of
twelve (12) months after the date Executive’s employment terminates;
(2) for up to eighteen (18) months after such termination, to the extent Executive and/or
Executive’s covered dependent(s) continue to participate in the Company’s group health plan(s)
pursuant to COBRA after Executive’s termination of employment, the Company will provide
reimbursement of COBRA coverage premiums paid by Executive and Executive’s dependent(s) so that
Executive and Executive’s covered dependent(s) enjoy coverage at the same benefit level and to the
same extent and for the same effective contribution, if any, as participation is available to other
executive officers of the Company; for the six (6) months thereafter, if continuing coverage under
the Company’s group health plan(s) is not available under COBRA, upon the written request of
Executive at any time prior to or during such six (6) month period, the Company will seek to secure
continuing coverage for Executive and/or Executive’s covered dependent(s) under the Company’s group
health plan(s), or if such coverage is unavailable, substantially similar coverage through an
alternative health plan provider, and in either case, if such coverage is obtained, the Company
will reimburse Executive and Executive’s covered dependent(s) for a portion of the cost of such
coverage equal to the amount that the Company would have paid Executive and Executive’s covered
dependents had Executive and Executive’s covered dependent(s) been eligible for COBRA coverage and
the Company was obligated to provide reimbursement of COBRA coverage premiums paid by Executive and
Executive’s dependent(s) so that Executive and Executive’s covered dependent(s) could enjoy
coverage at the same benefit level and to the same extent and for the same effective contribution,
if any, as participation is available to other executive officers of the Company;
(3) all outstanding stock options and other equity-type incentives held by Executive and all
of Executive’s benefits under the Executive Capital Accumulation Plan at the time of Executive’s
termination (but expressly excluding Performance Shares) will become fully vested and shall remain
exercisable until the date that is the earlier of (x) two (2) years after the date Executive’s
employment terminates and (y) its originally scheduled expiration date;
(4) Executive shall receive a number of Performance Shares equal to the product of (A) the
Performance Shares that would have been earned if Executive had served the Company for the entire
Performance Period and the Company’s performance during such period had been the Company’s actual
performance for the entire Performance Period, and (B) a fraction, (x) the numerator of which
fraction shall be the number of days between the start of the Performance Period and the effective
date of the Change in Control and (y) the denominator of which fraction shall be the number of days
in the Performance Period.
(5) Executive shall receive a number of Performance Shares equal to the product of (A) the
Performance Shares that would have been earned if Executive had served the Company for the entire
Performance Period and the Company’s performance during such period had been the target performance
for the Performance Period, and (B) a fraction, (x) the numerator of which fraction shall the
number of days between the effective date of the Change in Control and the end of the Performance
Period and (y) the denominator of which fraction shall be the number of days in the Performance
Period.
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(f) Other Programs. Except as otherwise provided in this Agreement, 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.
(g) Conditions to Receipt of Benefits Under Section 6. Notwithstanding anything in
this Agreement to the contrary, other than the payment of Executive’s Accrued Compensation through
the date of termination of Executive’s employment, Executive shall not be entitled to any payments
or benefits under this Section 6 unless and until Executive (or the representative of Executive’s
estate, in the case of termination due to Executive’s death), executes and delivers to the Company,
within forty-five (45) days of the date of termination of Executive’s employment, a unilateral
general release of all known and unknown claims against the Company and its officers, directors,
employees, agents and affiliates in a form acceptable to the Company, and such release becomes
fully effective and irrevocable under applicable law. Additionally, Executive shall not be
entitled to payments and benefits under this Section 6 on or after the date, if any, during the
twelve (12) months following the date Executive’s employment terminates (the “Restricted Period”),
that Employee (1) breaches or otherwise fails to comply with any of Executive’s obligations under
Section 9(a) (Nondisclosure of Confidential Information) or Section 10 (Nonsolicitation) under this
Agreement, or (2) Executive elects to, directly or indirectly, (a) own, manage, operate, sell,
control or participate in the ownership, management, operation, sales or control of any of the
following: ▇▇▇▇▇▇▇▇ & Struggles, Manpower, ▇▇▇▇▇ Services, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇ and/or Spherion (each a “Listed Entity”) provided that the foregoing shall not be
applicable to the ownership of not more than 1% of the publicly traded equity securities of any of
the foregoing or to the indirect ownership of any of the foregoing through the ownership of mutual
funds; or (b) request or advise any of the clients, vendors or other business contacts of the
Company with which Executive had contact while employed by the Company to withdraw, curtail, cancel
or not increase their business with the Company. Executive agrees to notify the Company of each
employment or consulting engagement he accepts during the Restricted Period (including the name and
address of the hiring party) and will, upon request by the Company, describe in reasonable detail
the nature of his duties in each such position.
(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, disability or
the termination of Executive’s employment (it being understood and agreed that no portion of the
annual cash incentive award described in Section 4(b) shall be deemed earned unless Executive was
employed with the Company as of the last day of the fiscal year to which such award applies).
(2) “Cause” shall mean (a) conviction of any felony or other crime involving fraud, dishonesty
or acts of moral turpitude or pleading guilty or nolo contendere to
7
such charges, or (b) reckless or willful behavior or conduct that causes or is reasonably
likely to cause the Company material harm or injury or exposes or is reasonably likely to expose
the Company to any material civil, criminal or administrative liability, or (c) any material
misrepresentation or false statement made by Executive in any application for employment,
employment history, resume or other document submitted to the Company, either before, during or
after employment. Prior to terminating the Executive for Cause, the Company shall be required to
provide Executive with 90 days advanced written notice of its intention to terminate Executive for
Cause, but Executive shall be permitted to cure any performance deficiencies during such 90 day
period (if the termination is not due to performance deficiencies, then the Company is permitted to
put Executive on paid leave during such 90 day period).
(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 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 materially reduces Executive’s duties or
responsibilities as Chief Financial Officer or assigns Executive duties which are materially
inconsistent with his duties or which materially impair Executive’s ability to function as Chief
Financial 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 (in each case, 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, or (D) Executive’s primary location of
business is moved by more than 50 miles, or (E) the Company reduces Executive’s title of Chief
Financial Officer or removes him, 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. Prior to
terminating for Good Reason, the Executive shall be required to provide the Company with 30 days
advanced written notice of his intention to terminate employment for Good Reason, but the Company
shall be permitted to cure any events giving rise to such Good Reason during such 30 day period.
7. Application of Section 409A. Notwithstanding any inconsistent provision of this
Agreement, to the extent the Company determines in good faith that (a) one or more of the payments
or benefits received or to be received by Executive pursuant to this Agreement in connection with
Executive’s termination of employment would constitute deferred compensation subject to the rules
of Internal Revenue Code Section 409A (“Section 409A”), and (b) that Executive is a
“specified employee” under Section 409A, then only to the extent required to avoid the Executive’s
incurrence of any additional tax or interest under Section 409A, such
8
payment or benefit will be delayed until the date which is six (6) months after Executive’s
“separation from service” within the meaning of Section 409A. The Company and Executive agree to
negotiate in good faith to reform any provisions of this Agreement to maintain to the maximum
extent practicable the original intent of the applicable provisions without violating the
provisions of Section 409A, if the Company deems such reformation necessary or advisable pursuant
to guidance under Section 409A to avoid the incurrence of any such interest and penalties. Such
reformation shall not result in a reduction of the aggregate amount of payments or benefits under
this Agreement, nor the obligation of the Company to pay interest on any payments delayed for the
purposes of avoiding a violation of Section 409A.
8. 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.
9. Confidential Information; Cooperation with Regard to Litigation.
(a) Nondisclosure of Confidential Information. During 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, to Executive’s
knowledge, is obligated 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 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,
“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.
9
(c) Cooperation in Litigation. Executive will cooperate with the Company, during
Executive’s employment (and following Executive’s termination of employment for any reason for a
period of two years thereafter), 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 then current professional activities. The Company will
reimburse Executive for all expenses reasonably incurred by Executive in connection with
Executive’s provision of testimony or assistance (including the fees of any counsel that may be
retained by Executive). In addition, if such assistance is provided after Executive’s termination
of employment, will pay Executive a per diem rate of $2,000.
10. Nonsolicitation. Executive shall not induce or solicit, directly or indirectly,
any employee of or consultant to the Company or any Affiliate to terminate such person’s employment
or consulting engagement with the Company or any Affiliate during Executive’s employment under this
Agreement and for a period of 12 months following the termination of Executive’s employment under
this Agreement.
11. Remedies. If Executive commits a material breach of any of the provisions
contained in Sections 9 and 10 above, then the Company will have the right to seek injunctive
relief. Executive acknowledges that such a breach of Section 9 or 10 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, among other
reasons, on the ground that no violation or threatened violation of either such Section has
occurred.
12. 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
effect hereof arising under or in connection with this Agreement, other than seeking injunctive
relief under Section 11, shall be resolved by binding arbitration, to be held in Los Angeles,
California in accordance with the rules and procedures of the JAMS. Judgment upon the award
rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. 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, 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, if any
applicable law requires different or additional rules or procedures to be applied in order for this
Agreement to arbitrate 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 extent necessary to render this Agreement enforceable.
13. Indemnification.
(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
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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 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 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 and
officers liability insurance policy covering Executive to the extent the Company provides such
coverage for any of its other senior executive officers.
14. Effect of Agreement on Other Benefits. Except as specifically provided 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.
15. Expenses of Counsel for Executive. The Company shall reimburse Executive for his
actual legal and other expenses incurred in connection with the negotiation, execution and delivery
of this Agreement, up to a maximum of $10,000.
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16. Assignment; Binding Nature. This Agreement shall be binding upon and 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.
17. Representations. The Company represents and warrants that it is fully 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.
18. 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.
19. Amendment or Waiver. No provision in this Agreement may be amended 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.
20. 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.
21. Survivorship. The respective rights and obligations of the parties hereunder
shall survive any termination of Executive’s employment to the extent necessary to the intended
preservation of such rights and obligations.
22. 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
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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.
23. Governing Law. This Agreement shall be governed by and construed and interpreted
in accordance with the laws of California without reference to principles of conflict of laws.
24. Counterparts and Facsimile. This Agreement may be executed in any number of
counterparts, each such counterpart shall be deemed to be an original instrument, and all such
counterparts together shall constitute but one agreement. Any such counterpart may contain one or
more signature pages. A copy of this Agreement executed by any party and transmitted by facsimile
shall be binding upon the parties as if executed and delivered in person.
25. 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 | |
| ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ | ||
| ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | ||
| Attention: Corporate Secretary | ||
If to Executive: |
IN WITNESS WHEREOF, the undersigned have executed this Employment Agreement on the date first
above written.
| The Company: | KORN/FERRY INTERNATIONAL |
|||
| /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | ||||
| By: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | ||||
| Its: Chief Executive Officer | ||||
| Executive: | ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ |
|||
| /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ | ||||
13
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) 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.
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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.
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