EXHIBIT 10.5


 





 


February 9, 2006


 


VIA HAND
DELIVERY

PERSONAL AND CONFIDENTIAL


 


Eric
Archer

80 Dexterdale Drive

Warwick, Rhode Island 02886




Dear Eric:


 


The
purpose of this letter agreement and general release (the “Agreement”) is to
acknowledge, and set forth the terms of, our agreement with regard to your resignation
of employment with Spherion Corporation, its subsidiaries, affiliates,
successors, and assigns (the “Company”).


 


1.     Resignation.  a)  You
hereby confirm your voluntary resignation from employment with the Company
effective as of February 28, 2006 (the “Resignation Date”) and, effective
as of the Resignation Date, you hereby confirm your resignation from your
position as a Senior Vice President and President, Professional Services Group and
that you will not be eligible for any benefits or compensation after the Resignation
Date, other than as specifically provided herein.  In addition, effective as of the Resignation
Date, you are hereby terminated from all offices, trusteeships, committee memberships
and fiduciary capacities held with, or on behalf of, the Company or any benefit
plans of the Company.  These resignations
will become irrevocable on the Effective Date of this Agreement, as defined in Section 15
below.  You further acknowledge and agree
that, after the Resignation Date, you will not represent yourself as being a
director, employee, officer, trustee, agent or representative of the Company
for any purpose and will not make any public statements relating to the Company
without the Company’s prior written consent, other than general statements
relating to your position, title or experience with the Company, subject to the
confidentiality provision under Section 5 of this Agreement and the
non-disparagement provision under Section 7 of this Agreement and in no
event shall you make any statements as an agent or representative of the
Company.


 


b)    You acknowledge and agree that the Company
will not have an obligation to rehire you or to consider you for reemployment
after the Resignation Date and that your employment with the Company is
permanently and irrevocably severed.


 


c)     You acknowledge and agree that the
effective date of your resignation will be announced on February 9, 2006 (“Resignation
Announcement Date”).  Following the
Resignation Announcement Date, you will be expected to make yourself reasonably
available to


 

















 


Spherion and to transition your projects, accounts, candidates, or
other responsibilities to individuals identified by the Company; introduce key
account contacts to individuals identified by the Company through personal
introductions; answer questions and provide guidance and information as
requested by the Company; use your best efforts to facilitate and effect a
smooth transition of all of your accounts, candidates, and duties to the
Company.  After the Resignation
Announcement Date and prior to the Resignation Date, the extent to which you
will still be expected to come into Spherion’s offices will be determined by Roy
Krause.


 


2.     Severance Payments and Benefits; Other Deliveries.  a) 
Subject to the remainder of this Section 2 and Sections 3, 5, 6, 7,
8, 9, 10 and 11 and your compliance with the terms of this Agreement, you will
be entitled to receive:


 


i)      Your
regular salary and unused accrued and earned vacation through the Resignation
Date.


 


ii)     Cash severance
pay totaling five hundred thirty-one thousand three hundred ninety-three dollars
and no cents ($531,393.00), reduced by any applicable payroll or other taxes
required to be withheld, payable in a lump sum within thirty (30) days after
the Resignation Date.


 


iii)    Payment
of an amount, if any, to be determined in the sole discretion of the
Compensation Committee of the Company’s Board of Directors and reduced by any
applicable payroll or other taxes required to be withheld, payable March 3,
2006, as payment under your 2005 incentive plan.


 


iv)   The
employee stock options and deferred stock units granted to you shall terminate
and expire in accordance with the terms of their respective grant documents,
are only exercisable to the extent provided therein, and shall not be subject
to accelerated vesting.  All stock
options vested on or prior to the Resignation Date will terminate and expire at
12:01 a.m. on May 31, 2006 and will only be exercisable prior to such
date.


 


v)    Reimbursement
for expenses incurred by you in accordance with the Company’s policy but not
reimbursed prior to the Resignation Date.


 


b)    The Company may withhold from any amounts
payable under this Agreement such federal, state and local taxes as are required
to be withheld (with respect to amounts payable hereunder or under any benefit
plan or arrangement maintained by the Company) pursuant to any applicable law
or regulation.


 


c)     These payments will be issued in accordance
with applicable law and are subject to all applicable deductions.  Future payments, if any, will also be paid by
check, mailed to the address shown above, or by direct deposit if you have
authorized direct deposit of pay.   
Accordingly, other than the compensation identified above, you are not
eligible, nor entitled to receive any other bonuses or compensation from the
Company.  The amount specified in this Section describes
all compensation, or other amounts to be paid to you pursuant to any contract,
understanding or term or condition of your employment, including any agreements
or representations made by or between you and the Company.


 

















 


d)    Notwithstanding anything contained herein to
the contrary, to the extent you are deemed a “key employee” for purposes of Section 409A
of the Internal Revenue Code of 1986, as amended, and notwithstanding any
contrary provision which exists in any of the Company’s deferred compensation
plans, any distribution of deferred compensation to you will be delayed for a
period of 6 months after the Resignation Date as required by Section 409A
of the Internal Revenue Code of 1986, as amended.


 


3.     Transition Services.  On and after the Resignation Date, you shall
make yourself reasonably available to the Company: a) to facilitate the Company’s
transition of any of your duties, projects, or other responsibilities and to
answer questions and provide guidance as reasonably requested by the Company
from time to time; and b) to cooperate with the Company and provide information
as to matters which you were personally involved, or have information on, while
you were an officer or employee of the Company and which become the subject of
an action, investigation, proceeding, litigation or otherwise, upon reasonable
notice, including, that you will testify as a witness in connection with such
matters if requested by the Company to do so. 
All reasonable expenses associated with such transition services shall
be paid in accordance with the guidelines set forth in the Company’s business
expense reimbursement policy.


 


4.     Full Discharge.  You agree and acknowledge that the payments
and benefits provided in Section 2 above and the other entitlements
hereunder:  a) are in full discharge of
any and all liabilities and obligations of the Company to you, monetarily or
with respect to employee benefits or otherwise, including, without limitation,
any and all obligations arising under any alleged written or oral employment
agreement, change in control agreement, policy, plan or procedure of the
Company and/or any alleged understanding or arrangement between you and the
Company or any of its officers; and b) exceed any payment, benefit, or other
thing of value to which you might otherwise be entitled but for this Agreement
under any policy, plan or procedure of the Company or any prior agreement
between you and the Company.


 


5.     Confidentiality.  (a)  You will not at any time (whether
during or after your employment with the Company) disclose or use for your own
benefit or purposes, or for the benefit or purpose of any other person, firm,
partnership, joint venture, association, corporation or other business
organization, entity or enterprise, any trade secrets, information, data, or
other confidential information relating to customers, employees, job
applicants, services, development programs, prices, costs, marketing, trading,
investment, sales activities, promotion, processes, systems, credit and
financial data, financing methods, plans, proprietary computer software,
request for proposal documents, or the business and affairs of the Company
generally, or of any affiliate of the Company; provided, however, that the
foregoing shall not apply to information which is generally known to the
industry or the public other than as a result of your breach of this covenant.  You expressly warrant that you have returned
to the Company all memoranda, books, papers, plans, information, letters and
other data, and all copies thereof or therefrom (whether in written, printed,
electronic or other form), in any way relating to the business of the Company and
its affiliates.  In the event that you
learn of any property of the Company to be in your custody, you will promptly
return such property to the Company.


 

















 


6.     Covenant Not To Compete.  (a) In General.  You agree that for a period of one (1) year
after the Resignation Date (the “Non-Compete Period”), you shall not,
anywhere in the United States:


 


i)              act as an employee, director,
consultant, partner, principal, agent, representative, owner or stockholder
(other than as a stockholder of less than a one percent (1%) equity interest)
for (1) any public company that derives any revenue from any business line
in which the Company derives $25 million or more in annualized revenues as of
the Resignation Date or from the principal business line in which you were
directly involved immediately prior to the Resignation Date (collectively, the “Business
Lines”) or (2) any private company that derives $25 million or more in
annualized revenues from any combination of one or more of the Business Lines;


 


ii)             solicit business from, or perform
services for, or induce others to perform services for, any company or other
business entity which at any time during the one (1) year period
immediately preceding the Resignation Date was a client of the Company or its
affiliates; or


 


iii)            offer, or cause to be offered,
employment with any business, whether in corporate, proprietorship, or
partnership form or otherwise, either on a full-time, part-time or consulting
basis, to any person who was employed by the Company or its affiliates or for
whom the Company or its affiliates performed outplacement services, in either
case at any time during the one (1) year period immediately preceding the
Resignation Date.


 


iv)           For purposes of this Agreement,
affiliates of the Company include subsidiaries 50% or more owned by the Company
and the Company’s franchisees and licensees.


 


b)  Extended
No-Hire provision.  In addition to
the restrictions provided above, you represent and agree that you have not, and
will not for a period of two (2) years following the Resignation Date
(i.e, March 1, 2006 through February 29, 2008), either directly or
indirectly, on your own behalf or in the service of or on behalf of others,
without prior written consent of the General Counsel of the Company, solicit
the employment of, interview, induce or attempt to induce to leave the employ
of the Company, offer or cause to be offered employment with any business, or
hire for any business (whether as an employee, independent contractor,
consultant or in any other capacity), any of the persons listed on Exhibit “A”
attached hereto.


 


7.     Non-Disparagement.  a)  You
shall not act to damage the Company or the Company’s reputation or disparage
the Company or its past or present officers, directors or employees
(collectively, the “Protected Group”), provided that the foregoing shall not
apply to truthful statements made in compliance with legal process or
governmental inquiry.


 


b)  Neither
the Company nor any then senior-level executive of the Company shall act to
damage you or your reputation or disparage you, provided that the foregoing
shall not apply to truthful statements made in compliance with legal process or
governmental inquiry, or protected by privilege or as required by legal filing
or disclosure requirements.


 

















 


8.     Equitable Relief and Other Remedies;
Reformation; Consideration.  a) You
acknowledge and agree that the Company’s remedies at law for a breach or
threatened breach of any of the provisions of Sections 5, 6, and 7 would be
inadequate and, in recognition of this fact, you agree that, in the event of
such a breach or threatened breach, in addition to any remedies at law, the
Company, after the posting of a reasonable bond under Florida law, shall be
entitled to obtain equitable relief in the form of specific performance,
temporary restraining order, a temporary or permanent injunction or any other
equitable remedy which may then be available.


 


b)    If the provisions of Sections 5, 6 and 7
would otherwise be determined invalid or unenforceable by a court of competent
jurisdiction, such court shall exercise its discretion in reforming the
provisions of such Sections to the end that you be subject to such restrictive
covenant, reasonable under the circumstances, enforceable by the Company.


 


c)     The consideration for this Agreement,
including without limitation the release and the covenants contained in
Sections 5, 6 and 7, the sufficiency of which is hereby acknowledged, was the
Company’s agreement to employ you, provide compensation and benefits, and the
Company’s agreement herein to provide you with the consideration provided by
this Agreement.


 


9.     Executive’s Release.  a)  For
and in consideration of the payments to be made and the promises set forth in
this Agreement, you, for yourself and for your heirs, dependents, executors,
administrators, trustees, legal representatives and assigns (collectively
referred to as “Releasors”), hereby forever release, waive and discharge the
Company, employee benefit and/or pension plans or funds, insurers, successors
and assigns, and all of its or their past, present and/or future officers,
trustees, agents, attorneys, employees, fiduciaries, trustees, administrators
and assigns, whether acting as agents for the Company or in their individual
capacities (collectively referred to as “Releasees”), from any and all claims,
demands, causes of action, fees and liabilities of any kind whatsoever, whether
known or unknown, which Releasors ever had, now have, or hereafter may have
against Releasees by reason of any actual or alleged act, omission,
transaction, practice, policy, procedure, conduct, occurrence, or other matter
up to and including the date of your execution of this Agreement, including
without limitation, those in connection with, or in any way related to or
arising out of, your employment, service as a director, service as a trustee,
service as a fiduciary or termination of any of the foregoing with the Company
or any other agreement, understanding, relationship, arrangement, act, omission
or occurrence, with the Company or other claims.


 


b)    Without limiting the generality of the
foregoing, this Agreement is intended and shall release the Releasees from any
and all claims, whether known or unknown, which Releasors ever had, now have,
or may hereafter have against the Releasees including, but not limited to,  (i) any claim of discrimination or
retaliation under the Age Discrimination in Employment Act (“ADEA”) 29 U.S.C. Section 621
et seq., Title VII of the Civil Rights Act, the Americans with Disabilities
Act, the Employee Retirement Income Security Act of 1974, as amended (excluding
claims for accrued, vested benefits under any employee benefit plan of the
Company in accordance with the terms and conditions of such plan and applicable
law) or the Family and Medical Leave Act; (ii) any claim under the Florida
Civil Rights Act of 1992 (formerly known as the Human Rights Act of 1977), the
Florida Equal Pay Law, the Florida Aids Act, the Florida Whistle Blower Law and
waivable rights under the Florida Constitution; (iii) any other claim (whether
based on federal, state or local law or ordinance statutory or decisional)


 

















 


relating to or arising out of your employment, the
terms and conditions of such employment, the termination of such employment
and/or any of the events relating directly or indirectly to or surrounding the
termination of such employment, and/or any of the events relating directly or
indirectly to or surrounding the termination of that employment, including, but
not limited, breach of contract (express or implied), tort, wrongful discharge,
detrimental reliance, defamation, emotional distress or compensatory or
punitive damages; and (iv) any claim for attorney’s fees, costs,
disbursements and the like.


 


c)     You agree that you will not, from any
source or proceeding, seek or accept any award or settlement with respect to
any claim or right covered by Section 9(a) or (b) above,
including, without limitation, any source or proceeding involving any person or
entity, the United States Equal Employment Opportunity Commission or other
similar federal or state agency.  Except
as otherwise required by law, you further agree that you will not, at any time
hereafter, commence, maintain, prosecute, participate in as a party, permit to
be filed by any other person on your behalf (to the extent it is within your
control or permitted by law), or assist in the commencement or prosecution of
as an advisor, witness (unless compelled by legal process or court order) or
otherwise, any action or proceeding of any kind, judicial or administrative (on
your own behalf, on behalf of any other person and/or on behalf of or as a
member of any alleged class of persons) in any court, agency, investigative or
administrative body against any Releasee with respect to any actual or alleged
act, omission, transaction, practice, conduct, occurrence or any other matter
up to and including the date of your execution of this Agreement which you
released pursuant to Section 9(a) or (b) above.  You further represent that, as of the date
you sign this Agreement, you have not taken any action encompassed by this Section 9(c).  If, notwithstanding the foregoing promises,
you violate this Section 9(c), you will indemnify and hold harmless
Releasees from and against any and all demands, assessments, judgments, costs,
damages, losses and liabilities and attorneys’ fees and other expenses which
result from, or are incidents to, such violation.  Notwithstanding anything herein to the
contrary, this Section 9(c) shall not apply to any claims that you
may have under the ADEA and shall not apply to the portion of the release
provided for in Section 9(a) or (b) relating to the ADEA.


 


(d)   The sole matters to which the release and
covenants in this Section 9 do not apply are:  (i) your rights of indemnification to
which you were entitled immediately prior to the Resignation Date under the
Company’s By-laws, the Company’s Certificate of Incorporation or otherwise with
regard to your service as an officer of the Company; (ii) rights under any
tax-qualified pension plan maintained by the Company or under the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”); (iii) rights
under this Agreement; or (iv) your general rights as a common stockholder
of the Company.


 


10.   Company Policies, Plans and Programs.  Whenever any rights under this Agreement
depend on the terms of a policy, plan or program established or maintained by
the Company, any determination of these rights shall be made on the basis of
the policy, plan or program in effect at the time as of which the determination
is made.  No reference in this Agreement
to any policy, plan or program established or maintained by the Company shall
preclude the Company from prospectively or retroactively changing or amending
or terminating that policy, plan or program or adopting a new policy, plan or
program in lieu of the then-existing policy, plan or program.


 

















 


11.   Confidentiality of Agreement.  a)  The
existence, terms, and conditions of this Agreement are and will be deemed to be
fully confidential and will not be disclosed by you to any other person or
entity, except: (i) as may be required by law; (ii) to your
accountant to the extent necessary to prepare your tax returns; (iii) to
your spouse and attorney, provided that, to the maximum extent permitted by
law, you give to each such person to whom disclosure is made notice of the
confidentiality provisions of this Agreement and each agrees to keep the
existence, terms and conditions of this Agreement fully confidential.  You, your accountant, attorney and spouse
further agree not to solicit or initiate any demand by others not party to this
Agreement for any disclosure of the existence, terms or conditions of this
Agreement.


 


b)    You agree that this Agreement may be used by
you or the Company only as evidence in a subsequent proceeding in which either
you or the Company alleges a breach of this Agreement.  You further agree that this Agreement
otherwise will not be filed with a court or used for any other purpose.  Notwithstanding anything herein to the
contrary, you acknowledge that the existence, terms and conditions of this
Agreement may be disclosed by the Company to the extent required by law,
including, without limitation, as required by legal filing or disclosure
requirements, or as otherwise advised by the Company’s legal counsel.


 


12.   Resolution of Disputes.


 


a)     Except as set forth in Section 12(b),
the parties shall submit any claim, demand, dispute, charge or cause of action
(in any such case, a “Claim”) arising out of, in connection with, or relating
to this Agreement to binding arbitration in conformance with the
J*A*M*S/ENDISPUTE Streamlined Arbitration Rules and Procedures or the
J*A*M*S/ENDISPUTE Comprehensive Arbitration Rules and Procedures, as
applicable, but expressly excluding Rule 28 of the J*A*M*S/ ENDISPUTE Streamlined
Rules and Rule 33 of the J*A*M*S/ENDISPUTE Comprehensive Rules, as
the case may be.  All arbitration
procedures shall be held in Fort Lauderdale, Florida and shall be subject to
the choice of law provisions set forth in Section 13 of this Agreement.


 


b)    In the event of any dispute arising out of
or relating to this Agreement for which any party is seeking injunctive relief,
specific performance or other equitable relief, such matter may be resolved by
litigation.  Accordingly, the parties
shall submit such matter to the exclusive jurisdiction of the United States
District Court for the Southern District of Florida or, if jurisdiction is not
available therein, any other court located in Broward County, Florida, and
hereby waive any and all objections to such jurisdiction or venue that they may
have.  Each party agrees that process may
be served upon such party in any manner authorized under the laws of the United
States or Florida, and waives any objections that such party may otherwise have
to such process.


 


13.   Miscellaneous.  a)  This
Agreement represents the complete understanding between you and the Company and
supersedes any and all other agreements between the parties, including without
limitation, the Employment Agreement and the Change in Control Agreement, each
between you and the Company and each dated November 30, 2003, as all such
have been amended to date, as well as any memorandums, letters or other
agreements regarding your employment or separation from the Company.    No other promises or agreements will be
binding unless in writing and signed by you and the Company.


 

















 


b)    Except as it may be preempted by ERISA, this
Agreement will be construed and enforced in accordance with the laws of the
State of Florida without regard to that state’s principles of conflicts of law.


 


c)     If, at any time after the execution of this
Agreement, any provision of this Agreement will be held to be illegal or
unenforceable by a court of competent jurisdiction, solely such provision will
be of no force or effect.  Except with
respect to claims under the ADEA, if you seek to challenge the validity of or
otherwise vitiate this Agreement, you will, as a precondition, be required to
repay the Company all amounts paid to you by the Company pursuant to this Agreement
and, if applicable, the Company will not be required to make any additional
payments.


 


d)    This Agreement is binding upon, and will
inure to the benefit of, you and the Company and your and its respective heirs,
executors, administrators, successors and assigns.  In addition, without limiting the generality
of the foregoing, the restrictive covenants contained in Sections 5 and 6, as
well as the provisions in Sections 7 and 8 are intended for the benefit of any
Successor of Spherion, and such Successor shall be entitled to enforce such Sections
on the terms and conditions as the Company. 


 


e)     This Agreement may be executed in one or
more counterparts, including by facsimile signatures, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.


 


14.   Acknowledgement.  You are hereby advised by the Company, and
acknowledge that you have been so advised in writing, to consult independent
legal counsel of your choice before signing this Agreement.  You further acknowledge that you have had the
opportunity to consult independent legal counsel and to consider the terms of
this Agreement for a period of at least 21 days.  You further acknowledge that you have
carefully read this Agreement in its entirety; that you have had an adequate
opportunity to consider it and to consult with any advisors of your choice
about it; that you have had the opportunity to consult independent legal
counsel of your choice who has answered to your satisfaction all questions you had
regarding this Agreement; that you understand all the terms of this Agreement
and their significance; that you knowingly and voluntarily assent to all the
terms and conditions contained herein; and that you are signing this Agreement
voluntarily and of your own free will.


 


15.   Effective Date.  This Agreement will not become effective until
the date (the “Effective Date”) that is the eighth day following your signing
of this Agreement, as evidenced by the date you have indicated next to your
signature below.  You may at any time
prior to the Effective Date revoke this Agreement by delivering written notice
of revocation to: the Company at 2050 Spectrum Boulevard, Fort Lauderdale,
Florida 33309, to the attention of the General Counsel.  In the event you do not accept this Agreement
or, in the event that you revoke this Agreement prior to the eighth day after
its execution, this Agreement, and the promises contained in it, will
automatically be null and void.  If the
last day of the revocation period falls on a Saturday, Sunday or holiday, the
last day of the revocation period will be deemed to be the next business day.


 

















 


If
this Agreement is acceptable to you, please sign the enclosed duplicate
original and return the signed Agreement to me. 
Again, we thank you for all of your contributions to the Company and
wish you the best of luck in all of your future endeavors.


 


 


	
   

  	
  SPHERION
  CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Lisa G.
  Iglesias

  	
   

  
	
   

  	
   

  	
  Lisa G.
  Iglesias, Senior Vice President

  
	
   

  	
   

  	
   

  
	
  Accepted and
  Agreed to:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
  /s/ Eric Archer

  	
   

  
	
   

  	
    Eric Archer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Dated:

  	
  2/16

  	
  , 2006

  
										



 

















 


EXHIBIT A


 


Section 6(b): Extended No-Hire Provision Applicable
persons:


*


 


 


	
   

  	
  Acknowledged and Agreed:

  
	
   

  	
   

  
	
   

  	
  /s/ Eric Archer

  	
   

  
	
   

  	
  Eric Archer

  



 






* Confidential
portions omitted and filed separately with the Commission.