exv10w41



 






Exhibit 10.41




REMEDYTEMP, INC.




SPECIAL DEFERRED COMPENSATION PLAN




Prepared by:



REISH & LUFTMAN

A PROFESSIONAL CORPORATION

ATTORNEYS AT LAW

Tenth Floor

11755 Wilshire Boulevard

Los Angeles, California 90025

(310) 478-5656




 









 








REMEDYTEMP, INC.

SPECIAL DEFERRED COMPENSATION PLAN




     THIS SPECIAL DEFERRED COMPENSATION PLAN is adopted by REMEDYTEMP, INC., a California
corporation (the “Company”), effective as of January 5, 1998, with reference to the following:



     A. The Company and Greg Palmer (“Palmer”) entered into an employment agreement (the
“Agreement”), pursuant to a letter from the Company to Palmer dated December 17, 1997.



     B. This Plan is adopted by the Company pursuant to section 13.2 of the Agreement.



     C. This Plan is not intended to be a qualified plan within the meaning of sections
401(a) and 501(a) of the Internal Revenue Code of 1986, as amended (the “Code”). This Plan is
intended to be an unfunded plan for purposes of the Employee Retirement Income Security Act of
1974, as amended (“ERISA”). Company contributions shall be held in a “Rabbi Trust,” as that term
is defined in Revenue Procedure 92-64, 1992-2 C.B. 422.



     NOW, THEREFORE, the Company hereby adopts the RemedyTemp, Inc. Special Deferred Compensation
Plan on the following terms and conditions:



     1. Definitions. Whenever used in this Plan, the following words and phrases shall
have the meaning set forth below, unless a different meaning is expressly provided or plainly
required by the context in which the words or phrases are used:



     1.1 Beneficiary means a person designated by a Palmer to receive Plan benefits in the
event of Palmer’s death.



     1.2. Board means the Board of Directors of the Company and its successors.



     1.3. Disability means any physical or mental condition which renders Palmer unable to
perform the essential functions of his position, even with reasonable accommodation.



     1.4. Plan means the RemedyTemp, Inc. Special Deferred Compensation Plan established by
this document and the Trust Agreement established in connection herewith.



     1.5. Plan Committee means the individuals appointed by the Board from time to time to
administer the Plan as provided herein. Initially, as of the effective date of the Plan, members
of the Plan Committee are Jeffrey A. Elias and Alan Purdy.



     1.6. Shares means four thousand nine hundred eighty-five (4,985) shares of the
Company’s Class A Common Stock.



 









 





     1.7. Trust Agreement means the grantor trust established in connection with this Plan
between the Company as grantor and the Trustee.



     1.8. Trustee means Union Bank of California, N.A. or any successor institutional
trustee named to succeed such Trustee under the terms of the Trust Agreement established in
connection with this Plan.



     2. Contribution and Allocation.



     2.1. Company Contribution and Allocation. On behalf of Palmer, the Company has
contributed to the Plan the sum of one hundred thousand dollars ($100,000) which has been used to
purchase the Shares. Such contribution shall be allocated to Palmer’s Company Account and be
credited with dividends, if any, as provided in Section 2.2 below.



     2.2. Credited Earnings. Palmer’s Company Account shall be credited with dividends, if
any, paid on the Shares held in such Account. Notwithstanding the foregoing, the Trustee shall, at
the direction of the Plan Committee, have the duty and authority to invest the trust assets and
funds in accordance with the terms of the Trust Agreement, and all rights associated with the trust
assets shall be exercised by the Trustee as designated by the Plan Committee and shall in no event
be exercisable by or be settled upon Palmer or his Beneficiaries.



     2.3. Forfeitures. If any amount of Company Contributions are forfeited in any year,
such forfeited amounts shall be returned to the Company.



     2.4. Funding. The assets of the Plan shall be held under the Trust Agreement (a
“grantor trust”) designated in Article I above. As such, the Plan is intended to be an unfunded
plan for purposes of the requirements of ERISA and the Code.



     Notwithstanding the provisions under the terms of the Plan that amounts contributed to this
Plan, plus earnings thereon, shall be allocated to a separate Account of Palmer, all such amounts
credited to such individual Account shall remain the general assets of the Employer, and as such
shall remain subject to the claims of the general creditors of the Company. This Plan and the
related Trust Agreement do not create, nor does Palmer or any Beneficiary have, any right with
respect to any specific assets of the Company or the Plan, until such time as Palmer’s Company
Account shall become 100% vested as provided in Section 3.



     3. Vesting. Palmer’s Company Account shall become 100% vested upon the earlier of:
(A) his completion of five years of employment (including any period of disability in which the
Company continues to pay Palmer’s salary, as provided in section 7 of the Agreement) from Palmer’s
effective start date; or (B) termination of his employment for any reason, including with and
without cause, and death.




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     4. Distributions.



     4.1 Planned Distribution. Once Palmer’s Company Account becomes 100% vested, the
Shares (or their equivalent in the event of a conversion of such Shares) held and all earnings
credited thereon shall be distributed to him as soon as practicable thereafter.



     4.2 Unplanned In-Service Distribution. Prior to becoming 100% vested in accordance
with Section 3 of the Plan and receiving a Planned Distribution, Palmer may elect to receive a
distribution of the benefit credited to his Company Account by providing the Plan Committee with a
written election to do so. Such benefit may be distributed in kind. Such written election shall
specify the date, not earlier than 30 days from the date of the notice, on which his benefit is to
be distributed. In consideration for receiving an Unplanned In-Service Distribution, Palmer shall
permanently forfeit the lesser of: (A) ten percent (10%) of the Shares; or (B) a number of Shares
equal in value to ten thousand dollars ($10,000), based on the average closing price of the
Company’s Class A Common Stock for the ten trading days prior to the date of Palmer’s election to
receive an Unplanned In-Service Distribution.



     5. Amendment. The Company reserves the right to amend the Plan at any time by
resolution of the Plan Committee. The Plan Committee will determine the effective date of any such
amendment. The amendment may not deprive Palmer or Beneficiary of any portion of a benefit under
the terms of this Plan at the time of the amendment.



     6. Benefits Not Funded. Palmer and his Beneficiary have the status of unsecured
creditors of the Company, and the Plan constitutes a mere promise by the Company to make benefit
payments in the future. Palmer’s or his Beneficiary’s interest in the Plan is an unsecured claim
against the general assets of the Company, and neither Palmer nor his Beneficiary has any right
against the account until the Plan has distributed the benefit. All amounts credited to an account
are the general assets of the Company and may be disposed of or used by the Company in such manner
as it determines.



     Notwithstanding the first paragraph of this Section 6, the Company will transfer the Shares to
a trust pursuant to a Trust Agreement, a copy of which is attached. Such Trust Agreement created
by the Company is intended to be a grantor trust, and any assets held by such trust to assist the
Company in meeting its obligations under the Plan will conform to the terms of the model trust, as
described in Revenue Procedure 92-64, 1992-2 C.B. 422, promulgated by the Internal Revenue Service.



     It is the intention of the parties that this Plan and the accompanying Trust Agreement shall
constitute an unfunded arrangement maintained for the purpose of providing deferred compensation
for Palmer, who is a member of a select group of management or highly compensated employees for
purposes of Title I of the Employee Retirement Income Security Act of 1974.



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     7. Miscellaneous.



     7.1. Designation of Beneficiary. Palmer shall designate, in writing, one or more
beneficiaries to receive his benefit under the provisions of Section 2 in the event he dies before
the Company has paid his vested benefit. Palmer shall file the written designation with the Plan
Committee. Palmer may revoke a previous beneficiary designation by filing a new written
beneficiary designation with the Plan Committee.



     In any event, if Palmer or his Beneficiary who has designated another Beneficiary is divorced,
all beneficiary designations executed prior to the effective date of the dissolution of marriage
(or other decree or order entered under applicable state law) are automatically revoked under the
terms of this Section 7.1. In such event, Palmer or his Beneficiary may designate one or more
Beneficiaries in accordance with the terms of this Section 7.1. If none is made following the
effective date of the dissolution of the marriage, the individual’s benefit shall pass under the
laws of intestate succession and the terms of the next following paragraph.



     If Palmer fails to file a valid designation of beneficiary with the Plan Committee under the
provisions of this Section 7.1, or if a designated Beneficiary fails to survive to receive any or
all payments due hereunder, then the death benefit payable under this Plan shall be payable to
Palmer’s (or his Beneficiary’s) spouse; if no spouse survives, then to the Palmer’s (or his
Beneficiary’s) children, with equal shares among living children and with the living descendants of
a deceased child receiving equal portions of the deceased child’s share; in the absence of spouse
or descendants, to Palmer’s (or his Beneficiary’s) parents; and in the absence of spouse,
descendants or parents, to Palmer’s (or his Beneficiary’s) brothers and sisters, with the living
descendants of a deceased brother and those of a deceased sister receiving equal portions of the
deceased brother’s or sister’s share; in the absence of any of the persons name herein, to Palmer’s
(or his Beneficiary’s) estate.



     For purposes of this Section 7.1, the term “descendant” means all persons who are descended
from the person referred to either by birth to or legal adoption by such person, and “child” or
“children” includes adopted children.



     7.2. Benefits Not Assignable. The rights of Palmer are not subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, attachment, or
garnishment by creditors of Palmer nor any Beneficiary. Neither Palmer nor his Beneficiary may
assign, transfer or pledge the benefits under this Plan. Any attempt to assign, transfer or pledge
Palmer’s benefits under this Plan is void.



     7.3. Benefit. This Plan constitutes an agreement between the Company and Palmer which
is binding upon and inures to the Company, its successors and assigns and upon Palmer and his heirs
and legal representatives.



     7.4. Headings. The headings of the Articles and Sections of this Plan are included
for purposes of convenience only, and shall not affect the construction or interpretation of any of
it provisions.



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     7.5. Notices. All notices, requests, demands, and other communications under this
Plan shall be in writing and shall be deemed to have been duly given on the date of service if
served personally on the party to whom notice is to be given, or on the third day after mailing if
mailed to the party to whom notice is to be given, by first class mail, registered or certified
(return receipt requested), postage prepaid, and properly addressed to the last known address to
each party as set forth on the first page thereof. Any party may change its address for purposes
of this Section by giving the other parties written notice of the new address in the manner set
forth above.



     7.6. Gender Usage. The use of the masculine gender includes the feminine gender for
all purposes of this Plan.



     7.7. Expenses. Costs of administration of the Plan shall be paid by the Company.



     7.8. Claims Review Procedure.



     (A) A claim for benefits may be filed, in writing, with the Plan Committee. A written
disposition of a claim shall be furnished to the claimant with a reasonable time after the claim
for benefits is filed. In the event a claim for benefits is denied, the Plan Committee shall
provide the claimant with the reasons for denial.



     (B) A claimant whose claim for benefits was denied may file for a review of such denial, with
the Plan Committee, no later than 60 days after he has received written notification of the denial.



     (C) The Plan Committee shall give a request for review a full and fair review. If the claim
for benefits is denied upon completion of a full and fair review, notice of such denial shall be
provided to the claimant within 60 days after the Plan Committee’s receipt of such written claim
for review. This 60-day period may be extended in the event of special circumstances. Such special
circumstances shall be communicated to the claimant in writing within the 60-day period. If there
is an extension, a decision shall be made as soon as possible, but not later than 120 days after
receipt by the Plan Committee of such claim for review.



     (D) If benefits are provided or administered by an insurance company, insurance service, or
other similar organization which is subject to regulation under the insurance laws, the claims
procedure relating to these benefits may provide for review. If so, that company, service, or
organization will be the entity to which claims are addressed.



     7.9. No Other Agreements or Understandings. This Plan represents the sole agreement
between the Company and Palmer concerning its subject matter and it supersedes all prior
agreements, arrangements, understandings, warranties, representations, and statements between the
parties concerning its subject matter, except to the extent the Agreement is specifically referred
to herein.



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     8. Administration.



     8.1. Plan Committee. The Plan shall be administered by the Plan Committee. The Plan
Committee shall have full authority and power to administer and construe the Plan, subject to
applicable requirements of law. Without limiting the generality of the foregoing, the Plan
Committee shall have the powers indicated in the foregoing Sections of this Plan and the following
additional powers and duties:



     (A) To make and enforce such rules and regulations as it deems necessary or proper for the
administration of the Plan;



     (B) To interpret the Plan and to decide all questions concerning the Plan;



     (C) To determine the amount and the recipient of any payments to be made under the Plan;



     (D) To value the Shares deemed held in Palmer’s Company Account; and



     (E) To make all other determinations and to take all other steps necessary or advisable for
the administration of the Plan.



     All decisions made by the Plan Committee pursuant to the provisions of the Plan shall be made
in its sole discretion and shall be final, conclusive, and binding upon all parties.



     8.2. Delegation of Duties. The Plan Committee may delegate such of its duties and may
engage such experts and other persons as it deems appropriate in connection with administering the
Plan. The Plan Committee shall be entitled to rely conclusively upon, and shall be fully protected
in any action taken by the Plan Committee, in good faith in reliance upon any opinions or reports
furnished them by any such experts or other persons.



     8.3. Indemnification of Committee. The Company agrees to indemnify and to defend to
the fullest extent permitted by law any person serving as a member of the Plan Committee, and each
employee of the Company or any of its affiliates appointed by the Plan Committee to carry out
duties under this Plan, against all liabilities, damages, costs and expenses (including attorneys’
fees and amounts paid in settlement of any claims approved by the Company) occasioned by any act or
omission to act in connection with the Plan, if such act or omission is in good faith.



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     8.4. Liability. To the extent permitted by law, neither the Plan Committee nor any
other person shall incur any liability for any acts or for any failure to act except for liability
arising out of such person’s own willful misconduct or willful breach of the Plan.



     IN WITNESS WHEREOF, the Company has adopted the Plan on March 18, 1998, effective January 5,
1998.



	 	 	 	 	 
	 	REMEDYTEMP, INC.

 	 
	 	By:  	/s/ Paul W. Mikos
 	 
	 	 	Paul W. Mikos, President 	 
	 	 	 	 
	 




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