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EXHBIBIT 10.12
LAMALIE ASSOCIATES, INC.
DIRECTORS' DEFERRAL PLAN
ARTICLE 1
ESTABLISHMENT AND PURPOSE
1.1 ESTABLISHMENT. Lamalie Associates, Inc. (the "Company") hereby
enters into this Agreement and establishes a deferred compensation plan for
Directors of the Company, which plan shall be known as the Lamalie Associates,
Inc. Directors' Deferral Plan (the "Plan").
1.2 PURPOSE. The purpose of the Plan is to provide Directors with the
ability to defer some or all of their directors' fees. It is intended that the
Plan will assist in attracting and retaining qualified individuals to serve as
Directors.
ARTICLE 2
DEFINITION OF TERMS
The following words and terms as used herein shall have that meaning
set forth therefor in this Article 2 unless a different meaning is clearly
required by the context. Whenever appropriate, words used in the singular shall
be deemed to include the plural and vice versa, and the masculine gender shall
be deemed to include the feminine gender.
2.1 "BENEFICIARY" shall mean the person or persons designated or
deemed to be designated by the Participant pursuant to Article 7 to receive
benefits payable under the Plan in the event of the Participant's death.
2.2 "BOARD" or "BOARD OF DIRECTORS" shall mean the Board of Directors
of the Company.
2.3 "CODE" shall mean the Internal Revenue Code of 1986, as amended,
or any successor statute. Reference to a specific section of the Code shall
include a reference to any successor provision.
2.4 "COMMITTEE" is defined in Section 9.1.
2.5 "COMMON STOCK" shall mean the common stock of the Company.
2.6 "COMPANY" shall mean Lamalie Associates, Inc. and its successors.
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2.7 "COMPENSATION" shall mean the annual retainers and meeting fees
that are payable to a Director for his or her services as a member of the Board
or any committee thereof.
2.8 "DEFERRAL BENEFIT" shall mean the benefit payable to a Participant
or his or her Beneficiary pursuant to Article 7 hereof.
2.9 "DEFERRED ACCOUNT" shall mean the account maintained on the books
of the Company for each Participant pursuant to Article V hereof.
2.10 "DEFERRED COMPENSATION AGREEMENT" shall mean the agreement filed
by a Participant, in the form prescribed by the Committee, pursuant to Section
3.2 hereof.
2.11 "DIRECTOR" shall mean a member of the Board.
2.12 "FAIR MARKET VALUE"of the shares of Common Stock shall mean the
closing price on the date in question (or, if no shares are traded on such day,
on the next preceding day on which shares were traded), of the Common Stock as
reported on the Composite Tape, or if not reported thereon, then such price as
reported in the trading reports of the principal securities exchange in the
United States on which such stock is listed, or if such stock is not listed on
a securities exchange in the United States, the mean between the dealer closing
"bid" and "ask" prices on the over-the-counter market as reported by the
National Association of Security Dealers Automated Quotation System (NASDAQ),
or NASDAQ's successor, or if not reported on NASDAQ, the fair market value of
such stock as determined by the Board in good faith and based on all relevant
factors.
2.13 "PARTICIPANT" shall mean any Director who meets the eligibility
requirements of Section 3.1, and who elects to participate by filing a Deferred
Compensation Agreement as provided in Section 3.2 hereof.
2.14 "PLAN" shall mean the Lamalie Associates, Inc. Directors'
Deferral Plan, as set forth herein and as amended from time to time.
2.15 "PLAN YEAR" shall mean the 12-month period ending on each
December 31.
2.16 "RATE OF RETURN" shall mean the interest rate payable on one-year
United States Treasury Bills issued on the specified date or, if not then
issued, on the next date of issue, or such other rate as may from time to time
be established by the Committee; provided, however, that in no event shall the
Rate of Return be more than five percentage points higher than the rate payable
on such Bills.
2.17 "UNIT" shall mean an accounting unit equal in value to one share
of Common Stock. The number of Units included in any Deferred Account shall be
adjusted as appropriate to reflect any stock dividend, stock split,
recapitalization, merger or other similar event affecting the Common Stock.
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ARTICLE 3
ELIGIBILITY AND PARTICIPATION
3.1 ELIGIBILITY. Eligibility to participate in the Plan is limited to
those Directors who are not employees of the Company or any of its
subsidiaries.
3.2 PARTICIPATION. Participation in the Plan shall be limited to
eligible Directors who elect to participate in the Plan by filing a Deferred
Compensation Agreement with the Committee. A properly completed and executed
Deferred Compensation Agreement must be filed on or prior to the December 31
immediately preceding the Plan Year in which the Participant's participation in
the Plan will commence, and the election to participate shall be effective on
the first day of the Plan Year following receipt by the Company of the Deferred
Compensation Agreement. In the event that a Director first becomes eligible to
participate during the course of a Plan Year, such Deferred Compensation
Agreement must be filed no later than 30 days following election or appointment
to the Board and such Deferred Compensation Agreement shall be effective only
with regard to Compensation earned or payable following the filing of the
Deferred Compensation Agreement with the Committee.
3.3 TERMINATION OF PARTICIPATION. A Participant may elect to terminate
participation in the Plan by filing a written notice thereof with the
Committee, which termination shall be effective at any time specified by the
Participant in the notice, but not earlier that the first day of the Plan Year
immediately succeeding the Plan Year in which such notice is filed with the
Committee. Amounts credited to such Participant's Deferred Account with respect
to periods prior to the effective date of such termination shall continue to be
payable pursuant to, and otherwise governed by, the terms of the Plan.
ARTICLE 4
DEFERRAL OF COMPENSATION
4.1 DEFERRAL. A Participant may elect to defer all, or a specified
percentage of his or her Compensation for the applicable Plan Year, and a
Participant may elect to have his or her deferred Compensation credited to such
Participant's Deferred Account either in dollar amounts or Units. A Participant
may not change the percentage of his or her Compensation to be deferred, or the
form in which Compensation is to be credited.
4.2 CREDITING OF DEFERRED COMPENSATION. Deferred Compensation that a
Participant elects to have credited in dollar amounts shall be credited to the
Participant's Deferred Account as it becomes payable to the Director. Deferred
Compensation payable to a Director during a Plan Year
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that a Participant elects to have credited in Units, plus an amount of Units
equal to 25% of such Deferred Compensation for such Plan Year, shall be
credited to the Participant's Deferred Account annually after the end of such
Plan Year on the basis of the average of the Fair Market Values of the Common
Stock on the last trading day in each calendar month during such Plan Year.
ARTICLE 5
DEFERRED ACCOUNTS
5.1 DETERMINATION OF ACCOUNT. On any particular date, a Participant's
Deferred Account shall consist of the aggregate amount of dollars and Units
credited thereto pursuant to Section 4.2, plus any interest credited pursuant
to Section 5.2, plus any dividend equivalents credited pursuant to Section 5.3,
minus the aggregate amount of distributions, if any, made from such Deferred
Account.
5.2 CREDITING OF INTEREST. As of the last day of each Plan Year, each
Deferred Account to which Compensation has been credited in dollar amounts
shall be increased by the amount of interest earned during the Plan Year.
Interest shall be credited at the Rate of Return as of the last day of the Plan
Year based on the average daily balance of the Participant's Deferred Account
since the beginning of the Plan Year, but after the Deferred Account has been
adjusted for any contributions or distributions to be credited or deducted for
such period. Until a Participant or his or her Beneficiary receives his or her
entire Deferred Account, the unpaid balance thereof credited in dollar amounts
shall bear interest as provided in this Section 5.2.
5.3 CREDITING OF DIVIDEND EQUIVALENTS. Each Deferred Account to which
Compensation has been credited in Units shall be credited annually after the
end of each Plan Year with additional Units equal in value to the amount of
cash dividends paid by the Company during such Plan Year on Common Stock
equivalent to the average daily balance of Units in such Deferred Account
during such Plan Year. Such dividend equivalents shall be valued on the basis
of the average Fair Market Value computed pursuant to Section 4.2. Until a
Participant or his or her Beneficiary receives his or her entire Deferred
Account, the unpaid balance thereof credited in Units shall earn dividend
equivalents as provided in this Section 5.3.
5.4 STATEMENT OF BENEFITS. The Committee shall provide to each
Participant, within 120 days after the close of each Plan Year, a statement
setting forth the balance of such Participant's Deferred Account as of the last
day of the preceding Plan Year and showing all adjustments made thereto during
such Plan Year.
ARTICLE 6
VESTING
A Participant shall be 100% vested in his or her Deferred Account at
all times.
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ARTICLE 7
PAYMENT OF BENEFITS
7.1 TERMINATION OF SERVICE AS A DIRECTOR OR DEATH. A Participant may
elect in his or her Deferred Compensation Agreement to receive payment his or
her Deferral Benefit in an amount equal to the balance of his or her Deferred
Account, less any amounts previously distributed, upon either:
(a) the Participant's termination of service as a Director of the
Company for any reason, or
(b) the Participant's death.
7.2 FORM OF PAYMENT. ▇▇▇▇▇▇▇ credited to the Deferred Account of a
Participant in dollars and amounts credited in Units shall be paid in cash. The
amount of payment from the Units shall be valued based on the Fair Market Value
of the Common Stock on the last business day of the calendar quarter
immediately prior to the date of distribution. The Deferral Benefit shall be
paid in one of the following forms, as elected by the Participant in his or her
Deferred Compensation Agreement:
(a) equal annual installments over a period of five years
(together, in the case of deferred Compensation credited in dollar
amounts, with interest on the unpaid balance credited after the
payment commencement date pursuant to Section 5.2 and, in the case of
deferred Compensation credited in Units, with dividend equivalents on
the unpaid balance credited after the payment commencement date
pursuant to Section 5.3);
(b) a lump sum; or
(c) a combination of (a) and (b) above.
The Participant shall designate the percentage payable under each option.
7.3 TIME OF PAYMENT. Commencement of payments under Section 7.1 shall
begin within 60 days following receipt of notice by the Committee of an event
that entitles a Participant (or a Beneficiary) to payments under the Plan, or
at such earlier date as may be determined by the Committee.
7.4 PAYMENTS TO MINORS AND INCOMPETENTS. If a Participant or
Beneficiary entitled to receive any benefits hereunder is a minor or is
adjudged to be legally incapable of giving valid receipt and discharge for such
benefits, or is deemed so by the Administrator, benefits will be paid to such
person as the Committee may designate for the benefit of such Participant or
Beneficiary. Such
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payments shall be considered a payment to such Participant or Beneficiary and
shall, to the extent made, be deemed a complete discharge of any liability for
such payments under the Plan.
7.5 DISTRIBUTION OF BENEFIT WHEN DISTRIBUTEE CANNOT BE LOCATED. The
Committee shall make all reasonable attempts to determine the identity and/or
whereabouts of a Participant or a Participant's Beneficiary entitled to
benefits under the Plan, including the mailing by certified mail of a notice to
the last known address shown on the Company's or the Committee's records. If
the Committee is unable to locate such a person entitled to benefits hereunder,
or if there has been no claim made for such benefits, the Company shall
continue to hold the benefit due such person, subject to any applicable statute
of escheats.
ARTICLE 8
BENEFICIARY DESIGNATION
8.1 BENEFICIARY DESIGNATION. Each Participant shall have the right, at
any time, to designate any person or persons as his or her Beneficiary to whom
payment under the Plan shall be made in the event of his or her death prior to
complete distribution to the Participant of his or her Deferral Benefit. Any
Beneficiary designation shall be made in written instrument filed with the
Committee and shall be effective only when received in writing by the
Committee.
8.2 AMENDMENTS. Any Beneficiary designation may be changed by a
Participant by the filing of a new Beneficiary designation, which will cancel
all Beneficiary designations previously filed.
8.3 NO DESIGNATION. If a Participant fails to designate a Beneficiary
as provided above, or if all designated Beneficiaries predecease the
Participant, then the Participant's designated
Beneficiary shall be deemed to be the Participant's estate.
8.4 EFFECT OF PAYMENT. Payment to a Participant's Beneficiary (or,
upon the death of a Beneficiary, to his or her estate) shall completely
discharge the Company's obligations under the Plan.
ARTICLE 9
ADMINISTRATION
9.1 COMMITTEE. The Administrative Committee for the Plan (the
"Committee") shall consist of the Chairman of the Board (provided he or she is
not a non-employee Director) and two Company officers or Directors who are not
non-employee Directors who shall be appointed by the Chairman of the Board.
9.2 DUTIES AND RESPONSIBILITIES. The Committee shall have the
following duties and responsibilities:
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(a) The Committee shall be responsible for the fulfillment of
all relevant reporting and disclosure requirements set forth in the
Plan and the Code, the distribution thereof to Participants and their
Beneficiaries, and the filing thereof with the appropriate
governmental officials and agencies.
(b) The Committee shall maintain and retain necessary records
regarding its administration of the Plan and matters upon which
disclosure is required under the Plan and the Code.
(c) The Committee shall make any elections for the Plan
required to be made by it under the Plan and the Code.
(d) The Committee is empowered to settle claims against the
Plan and to make such equitable adjustments in a Participant's or
Beneficiary's rights or entitlements under the Plan as it deems
appropriate in the event an error or omission is discovered or claimed
in the operation or administration of the Plan.
(e) The Committee may construe the Plan, correct defects,
supply omissions or reconcile inconsistencies to the extent necessary
to effectuate the Plan, and such action shall be conclusive.
9.3 POWER AND AUTHORITY. The Committee is hereby vested with all the
power and authority necessary in order to carry out its duties and
responsibilities imposed hereunder in connection with the administration of the
Plan. For such purpose, the Committee shall have the power to adopt rules and
regulations consistent with the terms of the Plan.
9.4 DELEGATION OF AUTHORITY. The Committee may appoint an individual,
who may be an employee of the Company, to be the Committee's agent with respect
to the day-to-day administration of the Plan. In addition, the Committee may,
from time to time, employ other agents and delegate to them such administrative
duties as it sees fit, and may from time to time consult with counsel who may
be counsel to the Company.
9.5 BINDING EFFECT OF DECISIONS. Any decision or action of the
Committee with respect to any questions arising out of or in connection with
the administration, interpretation and application of the Plan shall be final
and binding upon all persons having any interest in the Plan.
9.6 INDEMNIFICATION. To the fullest extent permitted by law, each
person who is or shall have been a member of the Committee shall be indemnified
and held harmless by the Company against and from any loss, cost, liability, or
expense that may be imposed upon or reasonably incurred by him or her in
connection with or resulting from any claim, action, suit, or proceeding to
which he or she may be a party or in which he or she may be involved by reason
of any action taken or failure to act under the Plan and against and from any
and all amounts paid by him or her in settlement thereof, with the Company's
approval, or paid by him or her in satisfaction of any judgment in any such
action, suit, or proceeding against him or her, provided that the person shall
give the Company an
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opportunity, at its own expense, to handle and defend the same before the
person undertakes to handle and defend it on his or her own behalf. The
foregoing right of indemnification shall not be exclusive of any other rights
of indemnification to which such persons may be entitled under the Company's
Certificate of Incorporation or Bylaws, as a matter of law, or otherwise, or
any power that the Company may have to indemnify them or hold them harmless.
ARTICLE 10
AMENDMENT OR TERMINATION OF THE PLAN
The Board may at any time amend, suspend, terminate or reinstate any
or all of the provisions of the Plan, provided that no such amendment,
suspension or termination shall operate to decrease a Participant's Deferred
Account as it existed as of the effective date of such amendment, suspension or
termination without such Participant's consent.
ARTICLE XI
MISCELLANEOUS
11.1 FUNDING. Neither Participants, nor their Beneficiaries, nor their
heirs, successors or assigns, shall have any secured interest or claim in any
property or assets of the Company. The Company's obligation under the Plan
shall be merely that of an unfunded and unsecured promise of the Company to pay
money in the future. It is the intention of the Company that the Plan be
unfunded for tax purposes and for purposes of Title I or ERISA. The Company may
create a Rabbi Trust or similar trust to hold funds, Common Stock or other
securities to be used in payment of its obligation under the Plan; provided,
however, that any funds contained therein shall remain liable for the claims of
the Company's general creditors.
11.2 NONTRANSFERABILITY.
(a) No right or interest under the Plan of a Participant or
his or her Beneficiary (or any person claiming through or under any of
them), shall be (i) assignable or transferable in any manner, (ii)
subject to alienation, anticipation, sale, pledge, encumbrance,
attachment, garnishment or other legal powers or (iii) in any manner
liable for or subject to the debts or liabilities of the Participant
or Beneficiary. If any Participant or Beneficiary (other than the
surviving spouse of any deceased Participant) shall attempt to or
shall transfer, assign, alienate, anticipate, sell, pledge or
otherwise encumber his or her benefits hereunder or any part thereof,
or if by reason of his or her bankruptcy or other event happening at
any time such benefits would devolve upon anyone else or would not be
enjoyed by him or her, then the Committee, in its discretion, may
terminate his or her interest in any such benefit to the extent the
Committee considers necessary or advisable to prevent or limit the
effects of such occurrence. Termination shall be effected by filing a
written "termination declaration" with
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the Secretary of the Company and making reasonable efforts to deliver
a copy to the Participant or Beneficiary whose interest is adversely
affected (the "Terminated Participant").
(b) As long as the Terminated Participant is alive, any
benefits affected by the termination shall be retained by the Company
and, in the Committee's sole and absolute judgment, may be paid to or
expended for the benefit of the Terminated Participant, his or her
spouse, his or her children or any other person or persons in fact
dependent upon him or her in such a manner as the Committee shall deem
proper. Upon the death of the Terminated Participant, all benefits
withheld from him or her and not paid to others in accordance with the
preceding sentence shall be disposed of according to the provisions of
the Plan that would apply if he or she died prior to the time that all
benefits to which he or she was entitled were paid to him or her.
11.3 HEADINGS FOR CONVENIENCE. The headings contained herein are for
convenience only and shall not control or affect the meaning or construction
hereof.
11.4 GOVERNING LAW. The provisions of the Plan shall be administered,
construed, interpreted and enforced in accordance with the laws of the State of
Florida, except to the extent such laws have been expressly preempted by
federal law.
11.5 COMPANY SUCCESSORS. The provision of the Plan shall bind and
inure to the benefit of the Company and its successors and assigns. The term
successors as used herein shall include any corporate or other business entity
which shall, whether by merger, consolidation, purchase or otherwise, acquire
all or substantially all of the business and assets of the Company and
successors of any such corporation or other business entity.
11.6 GENDER; SINGULAR AND PLURAL REFERENCES. Throughout this Plan, and
wherever appropriate, the masculine gender shall be deemed to include the
feminine and neuter; the singular, the plural; and visa versa.
11.7 NO IMPLIED RIGHTS TO DIRECTORS. Nothing contained herein shall be
construed to confer upon any Director the right to be retained as a Director of
the Company or in any other capacity.
11.8 WITHHOLDING. Payments under the Plan shall be made net of an
amount sufficient to satisfy any federal, state or local withholding tax
liability.
11.9 CONDITIONS PRECEDENT TO EFFECTIVENESS. The Plan shall become
effective upon the satisfaction of all the following conditions, with the
effective date of the Plan being the date that the last such condition is
satisfied:
(a) the adoption of the Plan by the Board of Directors; and
(b) the closing of the initial public offering of the Common
Stock.
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