EXHIBIT 4.2
TMP WORLDWIDE INC.
STOCK OPTION AGREEMENT
AGREEMENT ("Agreement") made as of the of , 199 , by and
between TMP WORLDWIDE INC. a Delaware corporation (the "Company")
and (the "Optionee").
W I T N E S S E T H:
WHEREAS, pursuant to the TMP Worldwide Inc. 1999 Long Term Incentive Plan
(the "Plan"), the Company desires to grant to the Optionee and the Optionee
desires to accept an option to purchase shares of common stock, $.001 par value,
of the Company (the "Common Stock") upon the terms and conditions set forth in
this Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
1. Grant. The Company hereby grants to the Optionee an option to purchase
shares of Common Stock at a purchase price per share of $ .
This option is intended to be treated as an option that does not qualify as an
incentive stock option within the meaning of Section 422 of the Internal Revenue
Code of 1986, as amended.
2. Vesting. Except as specifically provided otherwise herein, the option
will become exercisable, if at all, in accordance with the following schedule
based upon the number of full years of the Optionee's continuous service with
the Company or an affiliate (as defined below) of the Company following the date
of this Agreement:
INCREMENTAL CUMULATIVE
PERCENTAGE OF PERCENTAGE OF
OPTION OPTION
FULL YEARS OF CONTNUOUS EMPLOYMENT/SERVICE EXERCISABLE EXERCISABLE
----------------------------------------------------------------- ----------------- ---------------
Less than 1...................................................... 0% 0%
1........................................................ 25% 25%
2........................................................ 25% 50%
3........................................................ 25% 75%
4 or more................................................ 25% 100%
If the Optionee performs services for the Company or an affiliate of the Company
in a capacity other than as a director or employee, then, for purposes hereof,
those services will be deemed to be continuous until they are terminated, and
they will be deemed to be terminated at the time provided therefor in the
consulting or other agreement governing the performance of such services or, if
there is no such agreement, at the time the Company or an affiliate of the
Company notifies the Optionee that it no longer contemplates the utilization of
such services. Any fractional shares resulting from the strict application of
the incremental percentages set forth above will be disregarded and the actual
number of shares vesting on any specific date will cover only the full number of
shares determined by applying the relevant incremental percentage. Unless sooner
terminated, the option will expire if and to the extent it is not exercised
within ten years from the date hereof.
3. EXERCISE. Any portion of the option which has vested and is exercisable
may be exercised in whole or in part by delivering to the Vice-President, Human
Resources of the Company ("VP-Human Resources") at its corporate headquarters in
New York, New York (a) a written notice specifying (1) the number of shares to
be purchased, (2) the date of this Agreement and the specific number of shares
referred to in Section 1 of this Agreement, (3) the Optionee's home address and,
if the Optionee has one, the Optionee's social security or U.S. taxpayer
identification number and (4) delivery instructions with respect to the shares
of Common Stock issuable upon exercise, and (b) payment in full of the exercise
price, together with the amount, if any, deemed necessary by the Company to
enable it to satisfy any income tax withholding obligations with respect to the
exercise (unless other
arrangements acceptable to the Company in its sole discretion have been made).
The Company may from time to time change (or provided alternatives to) the
method of exercise of the option granted hereunder by notice to the Optionee, it
being understood that from and after such notice the Optionee will be bound by
the method (or alternatives) specified in any such notice. The Company (in its
sole and absolute discretion) may permit all or part of the exercise price to be
paid with previously-owned shares of Common Stock, or in installments (together
with interest) evidenced by the Optionee's secured promissory note.
4. ISSUANCE OF SHARES. No shares of Common Stock shall be sold or
delivered hereunder until full payment for such shares has been made. The
Optionee shall have no rights as a stockholder with respect to any shares
covered by the option until a stock certificate for such shares is issued to the
Optionee. Except as otherwise provided herein, no adjustment shall be made for
dividends or distributions of other rights for which the record date is prior to
the date such stock certificate is issued.
5. NO ASSIGNMENT OF OPTION. This option is not assignable or transferable
except upon the Optionee's death to a beneficiary designated by the Optionee in
a written beneficiary designation filed with the Company or, if no duly
designated beneficiary shall survive the Optionee, pursuant to the Optionee's
will and/or by the laws of descent and distribution, and is exercisable during
the Optionee's lifetime only by the Optionee or the Optionee's guardian or legal
representative.
6. TERMINATION OF EMPLOYMENT OR SERVICE. If the Optionee ceases to be
employed by or to perform services for the Company or any of its affiliates for
any reason other than death, then, unless sooner terminated, that portion of the
option which is exercisable on the date of the Optionee's termination of
employment or service will remain exercisable for a period of six months after
such date (twelve months in the case of an Optionee whose employment or service
terminates by reason of disability (as defined below)), and the remaining
portion of the option will automatically expire on such date. If the Optionee's
employment or service terminates by reason of the Optionee's death, then, unless
sooner terminated, the option will become fully vested (to the extent it was not
vested on the date of death) and will remain exercisable by the Optionee's
beneficiary for a period of twelve months after the date of the Optionee's
death. Any vested option which is not exercised within the applicable six- or
twelve-month period following termination of employment or service will
automatically expire. For purposes hereof, the term "disability" means the
inability of the Optionee to perform the customary duties of the Optionee's
employment or other service for the Company or an affiliate of the Company by
reason of a physical or mental incapacity which is expected to result in death
or be of indefinite duration as determined by the Board of Directors of the
Company (the "Board") in its sole and absolute discretion.
7. SECURITIES REGISTRATION REQUIREMENT. Notwithstanding anything herein to
the contrary, the option may not be exercised unless and until a registration
statement covering the shares of Common Stock issuable upon exercise of the
option granted hereunder has been filed with and declared effective by the
Securities and Exchange Commission under the Securities Act of 1933, as amended,
and the option shall in no event be exercisable and shares shall not be issued
hereunder if, in the opinion of counsel to the Company, such exercise and/or
issuance may result in a violation of federal or state securities laws or the
securities laws of any other relevant jurisdiction. Nothing in this Agreement
shall be deemed to obligate the Company to effect any such registration.
8. CAPITAL AND CORPORATE CHANGES.
(a) ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. The number and class
of shares covered by this option and, if applicable, the exercise price per
share shall be adjusted proportionately or as otherwise appropriate to
reflect any increase or decrease in the number of issued shares of Common
Stock resulting from a split-up or consolidation of shares or any like
capital adjustment,
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or the payment of any stock dividend, and/or to reflect a change in the
character or class of shares covered by the Plan arising from a readjustment
or recapitalization of the Company's capital stock.
(b) CHANGE IN CONTROL. If, in connection with a Change in Control
(defined below), the stockholders of the Company receive capital stock of
another corporation ("Exchange Stock") in exchange for their shares of
Common Stock (whether or not such Exchange Stock is the sole consideration),
and if the Board so directs, then this option will be converted into an
option to purchase shares of Exchange Stock. The number of shares and
exercise price under the converted option will be determined by adjusting
the number of shares and exercise price under this option on the same basis
as the determination of the number of shares of Exchange Stock the holders
of Common Stock will receive in connection with the Change in Control and,
unless the Board determines otherwise, the vesting conditions with respect
to the converted options will be substantially the same as the vesting
conditions set forth herein. If the Board does not direct a conversion of
the outstanding option in connection with a Change in Control, then the
Optionee will be permitted to exercise the outstanding option in whole or in
part (whether or not otherwise vested or exercisable) prior to the Change in
Control, and any outstanding option which is not exercised before the Change
in Control will thereupon terminate.
(c) DEFINITION OF CHANGE IN CONTROL. For purposes hereof, the term
"Change in Control" shall be deemed to occur if (1) there shall be
consummated (A) any consolidation, merger or reorganization involving the
Company, unless such consolidation, merger or reorganization is a
"Non-Control Transaction" (as defined below) or (B) any sale, lease,
exchange or other transfer (in one transaction or a series of related
transactions) of all, or substantially all, of the assets of the Company, or
(2) the stockholders of the Company shall approve any plan or proposal for
liquidation or dissolution of the Company, or (3) any person (as such term
is used in Section 13(d) and 14(d)(2) of the Securities Exchange Act of
1934, as amended (the "Exchange Act")), shall become the beneficial owner
(within the meaning of Rule 13d-3 under the Exchange Act) of 40% or more of
the Company's outstanding Common Stock other than (a) a person who owns or
owned shares of Class B Common Stock of the Company, (b) pursuant to a plan
or arrangement entered into by such person and the Company or (c) pursuant
to receipt of such shares from a stockholder of the Company pursuant to such
stockholder's will or the laws of descent and distribution, or (4) during
any period of two consecutive years, individuals who at the beginning of
such period constitute the entire Board shall cease for any reason to
constitute a majority thereof unless the election, or the nomination for
election by the Company's stockholders, of each new director was approved by
a vote of at least two-thirds of the directors then still in office who were
directors at the beginning of the period. A "Non-Control Transaction" shall
mean a consolidation, merger or reorganization of the Company where (1) the
stockholders of the Company immediately before such consolidation, merger or
reorganization own, directly or indirectly, at least a majority of the
combined voting power of the outstanding voting securities of the
corporation resulting from such consolidation, merger or reorganization (the
"Surviving Corporation"), (2) the individuals who were members of the Board
of the Company immediately prior to the execution of the agreement providing
for such consolidation, merger or reorganization constitute at least 50% of
the members of the Board of Directors of the Surviving Corporation, or a
corporation directly or indirectly beneficially owning a majority of the
voting securities of the Surviving Corporation and (3) no person (other than
(a) the Company, (b) any subsidiary of the Company, (c) any employee benefit
plan (or any trust forming a part thereof) maintained by the Company, the
Surviving Corporation or any subsidiary, or (d) any person who, immediately
prior to such consolidation, merger or reorganization, beneficially owned
more than 40% of the combined voting power of the Company) beneficially owns
more than 40% of the combined voting power of the Surviving Corporation's
then outstanding voting securities.
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(d) FRACTIONAL SHARES. In the event of any adjustment in the number of
shares covered by this option pursuant to the provisions hereof, any
fractional shares resulting from such adjustment will be disregarded, and
the option, as adjusted, will cover only the number of full shares resulting
from the adjustment.
(e) DETERMINATION OF BOARD TO BE FINAL. All adjustments under this
Section shall be made by the Board, and its determination as to what
adjustments shall be made, and the extent thereof, shall be final, binding
and conclusive.
9. NONSOLICITATION; CONFIDENTIALITY. As a material inducement to the
Company to grant this option and to enter into this Agreement, the Optionee
hereby expressly agrees to be bound by the following covenants, terms and
conditions.
(a) During the course of the Optionee's relationship with the Company
or any of its affiliates, the Optionee has had, and will have, access to
trade secrets, proprietary and confidential information relating to the
Company and its affiliates and their respective clients, including but not
limited to, marketing data, financial information, client lists (including
without limitation, Rolodex type or computer based compilations maintained
by the Company or its affiliates or the Optionee), and details of programs
and methods, pricing policies, strategies, profit margins and software, in
each case of the Company, its affiliates and/or their respective clients.
During the term of the Optionee's relationship with one or more of the
Company and its affiliates and thereafter, the Optionee agrees to keep
secret and retain in strictest confidence all of such trade secret,
proprietary and confidential information, and will not disclose, disseminate
or use such information for the Optionee's own advantage or for the
advantage of any other person or entity. In the event disclosure of any such
trade secret, proprietary and confidential information is required or
purportedly required by law, the Optionee will provide the Company with
prompt notice of any such requirement so that the Company may seek an
appropriate protective order.
(b) Through the date which is one year after the last day of the
Optionee's employment or service for the Company or any of its affiliates
(the "Termination Date"), except prior to the Termination Date on behalf of
the Company and its affiliates in accordance with the terms of the
Optionee's employment or other relationship, the Optionee will not, directly
or indirectly, solicit or perform Business (as defined below) related
services for, or interfere with or endeavor to entice away from the Company
or any of its affiliates, any client to whom the Company or any of its
affiliates provided services at any time during the 12 months preceding the
Termination Date, or any prospective client to whom the Company or any of
its affiliates had made a formal presentation at any time during the 12
months preceding the Termination Date, and the Optionee will not, directly
or indirectly, hire, attempt to hire, solicit for employment or encourage
the departure of any employee of the Company or any of its affiliates or any
individual who was employed by the Company or any of its affiliates at any
time during the 12 months preceding the Termination Date. As used herein,
the term "Business" means the yellow pages advertising business, the
recruitment advertising business, the search and selection business, the
Internet advertising business and any other business in which the Company or
any of its affiliates is currently involved or becomes engaged at any time
prior to the Termination Date. As used in this agreement, the term
"affiliate" means an affiliate of the Company within the meaning of Rule 405
under the Securities Act of 1933, as amended.
(c) The Optionee acknowledges that in the event the Optionee violates
any provisions of this Section 9, in addition to its other rights and
remedies, the Company shall be entitled to injunctive relief without the
necessity of proving actual damages. The Optionee acknowledges that if any
provision of this Section 9 is held to be unenforceable, the court making
such holding shall have the power to modify such provision and in its
modified form such provision shall be enforced.
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(d) The Optionee acknowledges and agrees that the provisions of this
Section 9 are IN ADDITION TO, and not in lieu of, any non-solicitation,
confidentiality, non-competition and/or similar obligations which the
Optionee may have with respect to the Company and/or its affiliates, whether
by agreement, fiduciary obligation or otherwise and that the grant and
exercisability of the option contemplated by this Agreement are expressly
made contingent on the Optionee's compliance with the provisions of this
Section 9. Without in any way limiting the provisions of this Section 9, the
Optionee further acknowledges and agrees that the provisions of this Section
9 shall remain applicable in accordance with their terms after the
Optionee's Termination Date, whether the Optionee's termination or cessation
of employment or service is voluntary or involuntary.
10. NO EMPLOYMENT OR SERVICE RIGHTS. Nothing in this Agreement, including
but not limited to the provisions of Sections 15 or 16 below, shall give the
Optionee any right to continue in the service or employment of the Company or
any affiliate of the Company, or interfere in any way with the right of the
Company or any affiliate of the Company to terminate the service or employment
of the Optionee.
11. PLAN PROVISIONS. The provisions of the Plan shall govern if and to the
extent that there are inconsistencies between those provisions and the
provisions hereof. The Optionee acknowledges receipt of a copy of the Plan prior
to the execution of this Agreement.
12. ADMINISTRATION. The committee appointed by the Board to administer the
Plan will have full power and authority to interpret and apply the provisions of
this Agreement and act on behalf of the Company and the Board in connection with
this Agreement, and the decision of the committee as to any matter arising under
this Agreement shall be binding and conclusive as to all persons.
13. BINDING EFFECT; HEADINGS. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and permitted assigns. The subject headings of Sections of this Agreement are
included for the purpose of convenience only and shall not affect the
construction or interpretation of any of its provisions.
14. APPLICABLE LAW. Except with respect to Sections 15 and 16 below, this
Agreement shall be governed by and construed in accordance with the laws of the
State of Delaware. This Agreement constitutes the entire agreement between the
parties with respect to the subject matter hereof and controls and supersedes
any prior understandings, agreements or representations by or between the
parties, written or oral with respect to its subject matter and may not be
modified except by written instrument executed by the parties. The Optionee has
not relied on any representation not set forth in this Agreement.
15. AGREEMENT TO ARBITRATE CLAIMS (EMPLOYMENT AND TERMINATION OF
EMPLOYMENT).
(a) In the event the Optionee is, was or at any time hereafter becomes
an employee of the Company or any of its affiliates, any controversy or
claim (contract, tort, or statutory) under federal, state, or local law
between the Company or any of its affiliates (or any of their respective
benefit plans, benefit plan sponsors, fiduciaries, administrators,
successors and assigns) and the Optionee arising out of or in connection
with the Optionee's employment with the Company or any of its affiliates, or
the termination of that employment (with the exception of any workers'
compensation or unemployment compensation claims, claims for employee
benefits where the applicable benefit plan or pension plan expressly
specifies that its claims procedure shall culminate in an arbitration
procedure different from the one described in this Section 15 or any claim
included under or referred to in Section 9(c) or 9(d) of this Agreement),
including WITHOUT LIMITATION the construction or application of any of the
terms, provisions or conditions of this Agreement, shall be submitted to
final and binding arbitration in accordance with this Section 15. With
respect to individuals who at the time of the option grant or thereafter
are, were or at any time hereafter become employed by the Company or any of
its affiliates in, or are, were or become residents or citizens of, the
United States ("U.S. Employees"), such arbitration shall be
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compelled and enforced according to the Federal Arbitration Act and shall be
conducted according to the then-current National Rules for the Resolution of
Employment Disputes of the American Arbitration Association except as
otherwise provided herein. With respect to all individuals who are, were or
become employees of the Company or any of its affiliates who do not qualify
as U.S. Employees under the foregoing definition, such arbitration shall be
compelled, enforced and conducted according to such rules as the parties may
agree at the time of commencement of the arbitration and, in the absence of
any such agreement, in accordance with the Federal Arbitration Act and the
then-current National Rules for the Resolution of Employment Disputes of the
American Arbitration Association except as otherwise provided herein. The
current National Rules, and other information about the American Arbitration
Association, can be accessed via the Internet at XXX.XXX.XXX or can be
obtained from the Company by a request directed to its VP-Human Resources.
The arbitrator shall be appointed by agreement of the parties hereto or, if
no agreement can be reached, by the American Arbitration Association
pursuant to its rules. The arbitrator shall apply the substantive law (and
the law of remedies, if applicable) of the state or other jurisdiction in
which the claim arose, or federal law, or both, as applicable to the
claim(s) asserted. Without limiting the arbitrator's power and authority, it
is understood that (i) the arbitrator shall have exclusive authority to
resolve any dispute relating to the interpretation, applicability or
formation of this Agreement, including but not limited to the provisions of
this Section 15, and any claim that all or any part of this Agreement is
void or voidable and (ii) the arbitrator shall have the authority to
entertain motions to dismiss and motions for summary judgment by any party
and shall apply the standards governing such motions under the Federal Rules
of Civil Procedure (unless otherwise agreed to by the parties in connection
with disputes involving a non-US Employee).
(b) Without in any way limiting the breadth of the controversies or
claims intended to be covered by the arbitration agreement set forth in this
Section 15, it is understood and agreed that this agreement to arbitrate
shall include WITHOUT LIMITATION any and all controversies, claims or
allegations arising out of or in connection with the Age Discrimination in
Employment Act, the Americans with Disabilities Act, Title VII of the Civil
Rights Act, the Family and Medical Leave Act, the Fair Labor Standards Act,
the Rehabilitation Act, the Employee Retirement Income Security Act, the
Equal Pay Act, the Uniformed Services Employment and Reemployment Rights
Act, the Worker Adjustment and Retraining Notification Act, any federal,
state or local statute prohibiting discrimination or harassment (on the
basis of sex, race, color, national origin, ancestry, religion, age, marital
status, veteran status, pregnancy, sexual orientation, medical condition,
handicap, disability or otherwise), any alleged wrongful employment
practice, any alleged wrongful termination, and any allegation concerning
the failure to pay wages, bonuses, compensation or benefits.
(c) The aggrieved party must initiate arbitration by sending written
notice of an intention to arbitrate by registered or certified mail or by
courier to the other party. The notice to the Company or one of its
affiliates shall be sent to the Company's VP-Human Resources. The notice to
the Optionee shall be sent to the Optionee's last known address (as noted in
the Optionee's personnel file). This notice must contain a description of
the dispute and the remedy sought. The arbitrator shall be impartial and
experienced in employment matters. Judgment on the award the arbitrator
renders may be entered in any court having jurisdiction over the parties.
The arbitration shall be conducted in the county or within 75 miles of the
county where the Optionee is employed or was last employed by the Company or
one of its affiliates. Each party may be represented by an attorney or other
representative selected by the party. Each party shall have the right to
take the deposition of one individual and any expert witness proposed to be
utilized by another party and to make requests for production of documents;
additional discovery may be had only where the arbitrator selected pursuant
to this Section 15 so orders, upon showing of substantial need. Each party
shall have the right to subpoena witnesses and documents for the
arbitration. At least
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30 days before the arbitration, each party must provide to the other lists
of witnesses, including any expert, and copies of all exhibits intended to
be used at arbitration.
(d) Each party to the arbitration shall equally share the fees and
costs of the arbitrator. Each party will deposit funds or post other
appropriate security for its share of the arbitrator's fees, in an amount
and manner determined by the arbitrator, 10 days before the first day of
hearing. If the Optionee cannot pay the Optionee's share of arbitrator fees
and other related costs due to financial hardship, the Optionee can make a
request to the arbitrator for financial relief. If the arbitrator agrees
that the Optionee cannot pay and grants the Optionee's request, the other
party to the arbitration (or the Company) shall advance the Optionee's share
of the fee and other related costs, or any portion thereof so ordered by the
arbitrator. If this occurs, the Optionee understands that the arbitrator is
required to address the Optionee's share of the arbitrator's fee and other
related costs, and the Optionee's potential obligation to reimburse the
other party to the arbitration (or the Company) for that fee and those
costs, in the arbitrator's decision. Each party to the arbitration shall pay
for its own costs and attorneys' fees, if any, incurred in pursuing or
defending the claim submitted to arbitration. However, if any party prevails
on a statutory claim which affords the prevailing party attorneys' fees, or
if there is a written agreement providing for attorneys' fees, the
arbitrator may award reasonable attorneys' fees to the prevailing party. The
arbitrator may also award costs, including the cost of the arbitrator's
fees, to the prevailing party.
(e) This agreement to arbitrate shall survive the expiration or
termination of this Agreement and termination of the Optionee's employment
for any reason. This arbitration procedure, which substitutes an arbitral
forum for a judicial forum, is intended to be the exclusive method of
resolving any claim arising out of or in connection with the Optionee's
employment with the Company or any of its affiliates, or the termination of
that employment, with the exception of any workers' compensation claim or
unemployment compensation claim, any claim for employee benefits where the
applicable benefit plan or pension plan expressly specifies that its claims
procedure shall culminate in an arbitration procedure different from the one
described in this Section 15 or any claim or obligation included under or
referred to in Section 9(c) or 9(d) of this Agreement. If any part of this
agreement to arbitrate is found to be void as a matter of law or public
policy, the remainder of the agreement to arbitrate will continue to be in
full force and effect to the maximum extent permissible.
(f) No claim may be brought under this arbitration procedure on behalf
of any other person or entity. The Company and its affiliates (and any of
their respective benefit plans, benefit plan sponsors, fiduciaries,
administrators, successors or assigns) reserve the right to sever or
consolidate claims in each instance at its option in order to facilitate
case processing and to lower costs.
16. AGREEMENT TO ARBITRATE CLAIMS (NON-EMPLOYMENT MATTERS).
(a) Any controversy or claim (contract, tort, or statutory) under
federal, state, or local law between the Company or any of its affiliates
(or any of their respective benefit plans, benefit plan sponsors,
fiduciaries, administrators, successors and assigns) and the Optionee that
is not covered by the provisions of Section 15 above, including but not
limited to those arising out of or in connection with the Optionee's
services for the Company or any of its affiliates in a capacity other than
as an employee, or the termination of those services (with the exception of
any workers' compensation claim or unemployment compensation claim, any
claim for employee benefits where the applicable benefit plan or pension
plan expressly specifies that its claims procedure shall culminate in an
arbitration procedure different from the one described in Section 15 above
or any claim included under or referred to in Section 9(c) or 9(d) of this
Agreement), including WITHOUT LIMITATION the construction or application of
any of the terms, provisions or conditions of this Agreement (in the event
the provisions of Section 15 are inapplicable to the construction or
application of the terms, provisions or conditions of this Agreement), shall
be submitted to final
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and binding arbitration in accordance with this Section 16. With respect to
(i) individuals who at any time provide or provided any services to the
Company in the United States, or are, were or become residents or citizens
of, the United States, or (ii) any controversy or claim relating to any
issue arising in the United States (the items described in (i) and (ii) are
collectively referred to as "US Claims"), the arbitration contemplated by
this Section 16 shall be compelled and enforced according to the Federal
Arbitration Act and shall be conducted according to the then-current
Commercial Arbitration Rules of the American Arbitration Association except
as otherwise provided herein. With respect to any other arbitration
contemplated by this Section 16 that is not dealt with in the preceding
sentence, such arbitration shall be compelled, enforced and conducted
according to such rules as the parties may agree at the time of commencement
of the arbitration and, in the absence of any such agreement, in accordance
with the Federal Arbitration Act and the then-current Commercial Arbitration
Rules of the American Arbitration Association except as otherwise provided
herein. The current Commercial Arbitration Rules, and other information
about the American Arbitration Association, can be accessed via the Internet
at XXX.XXX.XXX or can be obtained from the Company by a request directed to
its Vice-President, Human Resources. The arbitrator shall be appointed by
agreement of the parties hereto or, if no agreement can be reached, by the
American Arbitration Association pursuant to its rules. The arbitrator shall
apply the substantive law (and the law of remedies, if applicable) of the
state or other jurisdiction in which the claim arose, or federal law, or
both, as applicable to the claim(s) asserted. Without limiting the
arbitrator's power and authority, it is understood that (i) the arbitrator
shall have exclusive authority to resolve any dispute relating to the
interpretation, applicability or formation of this Agreement, including but
not limited to the provisions of this Section 16, and any claim that all or
any part of this Agreement is void or voidable and (ii) the arbitrator shall
have the authority to entertain motions to dismiss and motions for summary
judgment by any party and shall apply the standards governing such motions
under the Federal Rules of Civil Procedure (unless otherwise agreed to by
the parties in connection with disputes involving a non-US Claim).
(b) The aggrieved party must initiate arbitration by sending written
notice of an intention to arbitrate by registered or certified mail or by
courier to the other party. The notice to the Company or one of its
affiliates shall be sent to the Company's VP-Human Resources. The notice to
the Optionee shall be sent to the Optionee's last known address (as noted in
the records of the Company or an affiliate of the Company). This notice must
contain a description of the dispute and the remedy sought. The arbitrator
shall be impartial and experienced in commercial matters. Judgment on the
award the arbitrator renders may be entered in any court having jurisdiction
over the parties. The arbitration shall be conducted in the county or within
75 miles of the county (x) where the Optionee provides services to, or last
provided services to, the Company or one of its affiliates in a capacity
other than as an employee or, if no services are or were provided by the
Optionee in any such capacity, (y) where the issue arose. Each party may be
represented by an attorney or other representative selected by the party.
Each party shall have the right to take the deposition of one individual and
any expert witness proposed to be utilized by another party and to make
requests for production of documents; additional discovery may be had only
where the arbitrator selected pursuant to this Section 16 so orders, upon
showing of substantial need. Each party shall have the right to subpoena
witnesses and documents for the arbitration. At least 30 days before the
arbitration, each party must provide to the other lists of witnesses,
including any expert, and copies of all exhibits intended to be used at
arbitration.
(c) Each party to the arbitration shall equally share the fees and
costs of the arbitrator. Each party will deposit funds or post other
appropriate security for its share of the arbitrator's fees, in an amount
and manner determined by the arbitrator, 10 days before the first day of
hearing. Each party to the arbitration shall pay for its own costs and
attorneys' fees, if any, incurred in pursuing or defending the claim
submitted to arbitration. However, if any party prevails on a statutory
claim which affords the prevailing party attorneys' fees, or if there is a
written agreement providing for
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attorney's fees, the arbitrator may award reasonable attorneys' fees to the
prevailing party. The arbitrator may also award costs, including the cost of
the arbitrator's fees, to the prevailing party.
(d) This agreement to arbitrate shall survive the expiration or
termination of this Agreement and termination of the Optionee's relationship
with the Company or any of its affiliates for any reason. This arbitration
procedure, which substitutes an arbitral forum for a judicial forum, is
intended to be the exclusive method of resolving any claim or controversy
that is not covered by the provisions of Section 15 above, including but not
limited any claim or controversy arising out of or in connection with the
Optionee's services for the Company or any of its affiliates in a capacity
other than as an employee, or the termination of those services, but this
arbitration procedure does not apply to any workers' compensation claim or
unemployment compensation claim, any claim for employee benefits where the
applicable benefit plan or pension plan specifies that its claim procedure
shall culminate in an arbitration procedure different from the one described
in Section 15 above, or to any claim or obligation included under or
referred to in Section 9(c) or 9(d) of this Agreement. If any part of this
agreement to arbitrate is found to be void as a matter of law or public
policy, the remainder of the agreement to arbitrate will continue to be in
full force and effect to the maximum extent permissible.
(e) No claim may be brought under this arbitration procedure on behalf
of any other person or entity. The Company and its affiliates (and any of
their respective benefit plans, benefit plan sponsors, fiduciaries,
administrators, successors or assigns) reserve the right to sever or
consolidate claims in each instance at its option in order to facilitate
case processing and to lower costs.
THE OPTIONEE ACKNOWLEDGES THAT THE OPTIONEE (1) HAS BEEN ADVISED TO CONSULT
WITH AN ATTORNEY PRIOR TO EXECUTING THIS AGREEMENT, (2) HAS READ THIS AGREEMENT
CAREFULLY AND UNDERSTANDS ALL OF ITS TERMS, INCLUDING BUT NOT LIMITED TO (X) THE
PROVISIONS RELATING TO CONFIDENTIALITY AND NON-SOLICITATION AND (Y) THE
PROVISIONS REQUIRING MANDATORY ARBITRATION OF CONTROVERSIES OR CLAIMS WHETHER OR
NOT RELATED TO THE OPTION GRANTED HEREUNDER, AND (3) UNDERSTANDS THAT THE
OPTIONEE IS GIVING UP VALUABLE RIGHTS, INCLUDING A RIGHT TO A JURY TRIAL.
IN WITNESS WHEREOF, this Agreement has been executed as of the date first
above written.
TMP WORLDWIDE INC.
By:
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Optionee
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