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1997 DEFERRED COMPENSATION PLAN AGREEMENT
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EXHIBIT 10.5
THIS AGREEMENT, made and entered into this ______ day of _______________, 1996,
by and between Lamalie Amrop International, with principal offices and place of
business in the State of Florida (hereinafter referred to as the
"Corporation"), and_______________________________, an individual residing in
the State of ______________ (hereinafter referred to as the "Employee"),
WITNESSETH THAT:
WHEREAS, the Employee is employed by the Corporation, and
WHEREAS, the Corporation recognizes the valuable services heretofore performed
for it by the Employee and wishes to encourage continued employment, and
WHEREAS, the Employee wishes to defer a certain portion of his/her compensation
payable, and
WHEREAS, the parties hereto wish to provide the terms and conditions upon which
the Corporation shall pay such deferred compensation to the Employee or
designated beneficiary; and
WHEREAS, the parties hereto intend that this Agreement be considered an
unfunded arrangement, maintained primarily to provide deferred compensation
benefits for the Employee, a member of a select group of management or highly
compensated employees of the Corporation, for purposes of the Employee
Retirement Income Act of 1974, as amended;
NOW, THEREFORE, in consideration of the premises and of the mutual promises
herein contained, the parties hereto agree as follows:
1. DEFINITION OF TERMS. Certain words and phrases are defined
when first used in later paragraphs of this Agreement. In
addition, the following words and phrases when used herein,
unless the context clearly requires otherwise, shall have the
following respective meanings:
(a) Accrued Benefit: The sum of all deferred amounts
credited to the Employee's Retirement Account and due
and owing to the Employee or beneficiaries pursuant
to this Agreement, together with additions thereto
calculated as set forth in paragraph 4 hereof, minus
any distributions hereunder.
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(b) Affiliate: Any corporation, partnership, joint
venture, association, or similar organization or
entity, the employees of which would be treated as
employed by the Corporation under Section 414(b) and
414(c) of the Code.
(c) Agreement: This Plan Agreement, together with any
and all amendments or supplements thereto.
(d) Code: The Internal Revenue Code of 1986, as amended
or as it may be amended from time to time.
(e) Compensation: Total salary, bonuses and commissions
of the Employee paid or accrued by the Corporation.
(f) Deferred Amounts: The amounts of compensation
actually deferred.
(g) Effective Date: November 1, 1994.
(h) Election of Deferral: A written notice filed by the
Employee with the Secretary/Treasurer of the
Corporation in substantially the form attached hereto
as Exhibit A, specifying the amount of Compensation
and/or bonus to be deferred and the form and timing
of the subsequent payment.
(i) Calendar Year: January 1 through December 31.
(j) Notice of Discontinuance: A written notice filed by
the Employee with the Secretary/Treasurer of the
Corporation in substantially the form attached hereto
as Exhibit B, requesting discontinuance of the
deferral of the Employee's Compensation and/or
bonuses.
(k) Retirement Account: Book entries maintained by the
Corporation reflecting deferred amounts and additions
thereon; provided, however, that the existence of
such book entries and the Retirement Account shall
not create and shall not be deemed to create a trust
of any kind, or a fiduciary relationship between the
Corporation and the Employee, designated beneficiary,
or other beneficiaries under this Agreement.
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2. DEFERRED COMPENSATION. Commencing on the Effective Date, and
continuing through the date on which the Employee's employment
terminates because of death, retirement, disability, or any
other cause, the Employee and the Corporation agree that the
Employee shall be entitled to elect to defer into a Retirement
Account, a portion (as set forth in the Deferral Election
Form) of Compensation that the Employee would otherwise be
entitled to receive from the Corporation in each Calendar
Year.
The amount selected for deferral by the Employee pursuant to
the Deferral Election Form is referred to as the "Annual
Deferral Sum". The amounts of Compensation actually deferred,
taking into account discontinuance of deferral pursuant to a
Notice of Discontinuance, are hereinafter collectively
referred to as "Deferred Amounts". The maximum amount of
Compensation that can be deferred by the Employee is
hereinafter referred to as the "Maximum Annual Deferral Sum,"
the amount of which can be defined and subsequently changed by
the Corporation. The Employee's Deferred Amounts shall be
credited to the Employee's Retirement Account as of the dates
such Deferred Amounts would, but for such deferral, be payable
to the Employee.
3. DEFERRAL IN PARTIAL CALENDAR YEAR. If the Effective Date of
this Agreement is not the first day of the Calendar Year, the
Employee shall be entitled to elect to defer a portion of the
Maximum Annual Deferral Sum in such partial Calendar Year,
calculated as follows: the Maximum Annual Deferral Sum under
paragraph 2 hereof shall be multiplied by a fraction, the
numerator of which is the number of full calendar months in
the Calendar Year from and after the Effective Date, and the
denominator of which is twelve (12).
4. ADDITIONS TO DEFERRED AMOUNTS. The Corporation hereby agrees
that it will credit Deferred Amounts in the Employee's
Retirement Account with additions thereon ("Additions") from
and after the dates Deferred Amounts are credited to the
Retirement Account. Additions to Deferred Amounts shall
accrue commencing on the date the Retirement Account first has
a positive balance and shall continue up to the date that
Retirement Benefits begin as described in Paragraphs 7, 8 and
9 of this Agreement. Additions shall be calculated at a
compound rate of interest which shall be declared by the
Corporation on an annual basis.
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5. ELECTION TO DEFER COMPENSATION. The Employee may elect an
Annual Deferral Sum hereunder by filing an Election of
Deferral. The initial Election of Deferral must be filed
within twenty-eight (28) days of the Effective Date of this
Agreement. Such initial Election of Deferral, if any, to
defer compensation for services performed, shall be effective
commencing November 1, 1994. If the Employee was not an
Employee on the Effective Date, or was otherwise ineligible to
file an Election of Deferral, he may file an Election of
Deferral within twenty (20) days after he first becomes
eligible, which Election of Deferral shall be effective to
defer compensation for services performed after the date of
the Election of Deferral. Thereafter, an Election of Deferral
must be filed at least twenty (20) days prior to the beginning
of the Calendar Year to which it pertains and shall be
effective to defer compensation for services performed after
the first day of the Calendar Year following the filing
thereof.
6. TERMINATION OF ELECTION. The Employee's initial Election of
Deferral shall continue in effect, pursuant to the terms of
the Election of Deferral, unless and until the Employee files
with the Corporation a Notice of Discontinuance or a
subsequent Election of Deferral specifying a different amount
of deferral. Each Election of Deferral filed subsequent to
the initial Election of Deferral shall similarly continue in
effect until the Employee files a Notice of Discontinuance or
a new Election of Deferral. Any new Election of Deferral, to
be effective, must be filed at least twenty (20) days prior to
the beginning of the Calendar Year in which deferral is
sought. A Notice of Discontinuance shall be effective if
filed at least twenty (20) days prior to any January 1st.
Such Notice of Discontinuance shall be effective commencing
with the January 1st, following its filing and shall apply
only with respect to the Employee's Total Compensation
attributable to services not yet performed.
7. RETIREMENT BENEFIT. The Corporation agrees that, from and
after the dates elected by the Employee as the dates to begin
receiving deferred compensation and earnings thereon, the
Corporation shall thereafter pay as a retirement benefit
("Retirement Benefit") to the Employee, in accordance with the
Employee's applicable election as specified in the Deferral
Election Form:
a. Single Payment: the Employee's entire
Accrued Benefit, in a single sum, payable on the
first day of the plan year following the Employee's
retirement; or
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b. Installment Payments: the Employee's entire
Accrued Benefit, payable in equal annual
installments, annuitized for the number of years
elected in the deferral election form, based on
annuity prices available at that time.
8. DISABILITY RETIREMENT. Notwithstanding any other provision
hereof, the Employee shall be entitled to receive payments
hereunder, upon termination of employment, in any case in
which it is determined by a duly licensed physician selected
by the Corporation that, because of ill health, accident,
disability or general inability because of age, the Employee
is no longer able, properly and satisfactorily, to perform his
regular duties as an Employee. If the Employee's employment
is terminated pursuant to this paragraph, the disability
retirement benefit payable hereunder ("Disability Retirement
Benefit") shall be that amount that would have been payable as
a Retirement Benefit had the Employee attained his Early
Retirement Date on the date of the physician's disability
determination. The Disability Retirement Benefit payable
under this paragraph shall be distributed in accordance with
the provisions of paragraph 7 as if the employee had retired
on the date of the physician's disability determination.
9. (a) Death Benefit Prior to Retirement. In the event of
the Employee's death while in the employment of the
Corporation, the Corporation shall pay the Accrued Benefit in
the Employee's Retirement Account in a lump sum as soon as is
practical following the Employee's death. The Retirement
Account shall continue to be credited with Additions until
payment is made.
Payment shall be made to the Employee's designated
beneficiary, in accordance with the last such designation
received by the Corporation from the Employee prior to death.
If no such designation has been received by the Corporation
from the Employee prior to death, said payment shall be made
to the Employee's then living spouse. If the Employee is not
survived by a spouse then the payment will be made to the
estate of the Employee.
(b) Death Benefit After Commencement of Benefits. In the
event of the Employee's death after the commencement of
Retirement Benefits, or Disability Retirement Benefits, but
prior to the completion of all such payments due and owing
hereunder, the Corporation shall continue to make such
payments, in equal annual installments, over the remainder of
the period
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specified in paragraph 7 or 8 hereof that would have been
applicable had the Employee survived. Such continuing
payments shall be made to the Employee's designated
beneficiary, in accordance with the last such designation
received by the Corporation from the Employee prior to death.
If no such designation has been received by the Corporation
from the Employee prior to death or if said payments are
otherwise to be made as provided herein, said payments shall
be made to the Employee's then living spouse, so long as the
spouse shall live and thereafter to such person or persons,
including the spouse's estate, as the spouse may appoint under
a Will, making specific reference hereto; if the Employee is
not survived by a spouse or if the spouse shall fail to so
appoint, then said payments shall be made to the then living
children of the Employee, if any, in equal shares, for their
joint and survivor lives; and if none, or after their
respective joint and survivor lives, any balance thereof in
one lump sum to the estate of the Employee. Such continuing
payments shall commence on the first day of the plan year
following the Employee's death.
10. TERMINATION BENEFIT. Not Applicable.
11. EMERGENCY WITHDRAWAL. If the Employee has an unforeseeable
emergency (as hereinafter defined), the Corporation may, if it
deems advisable in its sole and absolute discretion,
distribute to or utilize on behalf of the Employee as an
emergency benefit (the "Emergency Benefit") any portion of the
Employee's Retirement Account up to, but not in excess of, the
Termination Benefit to which the Employee would have been
entitled as of the date of the unforeseeable emergency
distribution. Any Emergency Benefit shall be distributed or
utilized at such times as the Corporation shall determine, and
the Accrued Benefit in the Employee's Retirement Account shall
be reduced by the amount so distributed and/or utilized.
"Unforeseeable Emergency" means an unanticipated emergency
that is caused by an event beyond the control of the Employee
and that would result in severe financial hardship to the
Employee if early withdrawal were not permitted. A withdrawal
based upon unforeseeable emergency pursuant to this Section
shall not exceed the amount required to meet the immediate
financial need created by the unforeseeable emergency
(including the amount required to pay taxes due on the
withdrawal) and not reasonably available from other resources
of the Employee. The determination of the existence of an
Employee's unforeseeable emergency and the amount required to
be
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distributed to meet the need created by the unforeseeable
emergency shall be made by the Corporation.
12. CONSULTATIVE SERVICES. As further consideration for the
agreements of the Corporation contained herein and as a
condition to the performance by the Corporation of its
obligations hereunder, the Employee expressly agrees to make
himself available to the Corporation following retirement from
service with the Corporation in a consultative and advisory
capacity, unless his retirement is caused by disability as
provided in paragraph 8 hereof. The Employee shall perform
consultative and advisory services for such period of time as
benefit payments are due and owing hereunder and on a
part-time basis, at such times as he may from time to time
deem appropriate, subject to the following conditions.:
(a) In rendering such services, the Employee shall not be
considered an employee of the Corporation, but shall
act in the capacity of an independent contractor and
as such shall not be subject to control and direction
by the Board of Directors of the Corporation, but
shall be subject to his own control, and direction in
the performance of such services;
(b) such services shall be performed in such place or
places as the Employee may, from time to time,
designate;
(c) the Employee shall not be required to devote a major
part of his time to such services; and
(d) the Employee shall not be required to render such
services during vacation periods or during any
periods of illness or other incapacity.
The Corporation agrees that it will pay the Employee for the
performance of such advisory and consultative services.
13. OFFSET FOR OBLIGATIONS TO CORPORATION. If, at such time as
the Employee becomes entitled to benefit payments hereunder,
the Employee has any debt, obligation or other liability
representing an amount owing to the Corporation or an
Affiliate of the Corporation, and if such debt, obligation, or
other liability is due and owing at the time benefit payments
are payable
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hereunder, the Corporation may offset the amount owing it or
an Affiliate against the amount of the benefits otherwise
distributable hereunder.
14. BENEFICIARY DESIGNATION. The Employee shall have the right,
at any time, to submit in substantially the form attached
hereto as Exhibit C, a written designation of primary and
secondary beneficiaries to whom payment under this Agreement
shall be made in the event of death prior to complete
distribution of the benefits due and payable under the
Agreement. Each beneficiary designation shall become
effective only when receipt thereof is acknowledged in writing
by the Corporation.
15. NO TRUST CREATED. Nothing contained in this Agreement, and no
action taken pursuant to its provisions by either party hereto
shall create, or be construed to create, a trust of any kind,
or a fiduciary relationship between the Corporation and the
Employee, designated beneficiary, other beneficiaries of the
Employee or any other person. The preceding sentence shall
not be construed to prevent the Corporation from establishing
a grantor's trust to assist it in meeting its obligations
under this Agreement, provided, however, that any such
grantor's trust must, at all times, conform to the terms of
the model trust, as described in Revenue Procedure 92-64, or
any successor thereof.
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16. BENEFITS PAYABLE ONLY FROM GENERAL CORPORATE ASSETS:
UNSECURED GENERAL CREDITOR STATUS OF EMPLOYEE.
(a) The payments to the Employee or designated
beneficiary or any other beneficiary hereunder shall
be made from assets which shall continue, for all
purposes, to be a part of the general, unrestricted
assets of the Corporation; no person shall have any
interest in any such assets by virtue of the
provisions of this Agreement. The Corporation's
obligation hereunder shall be an unfunded and
unsecured promise to pay money in the future. To the
extent that any person acquires a right to receive
payments from the Corporation under the provisions
hereof, such right shall be no greater than the right
of any unsecured general creditor of the Corporation;
no such person shall have nor require any legal or
equitable right, interest or claim in or to any
property or assets of the Corporation.
(b) In the event that, in its discretion, the Corporation
purchases an insurance policy or policies insuring
the life of the Employee (or any other property), to
allow the Corporation to recover the cost of
providing benefits, in whole or in part, hereunder,
neither the Employee, designated beneficiary nor any
other beneficiary shall have any ownership rights
whatsoever therein. The Corporation shall be the
sole owner of any such insurance policy and shall
possess and may exercise all incidents of ownership
therein. No such policy, policies or other property
shall be held in any trust for the Employee or any
other person nor as collateral security for any
obligation of the Corporation hereunder.
17. NO CONTRACT OF EMPLOYMENT. Nothing contained herein shall be
construed to be a contract of employment for any term of
years, nor as conferring upon the Employee the right to
continue to be employed by the Corporation in his present
capacity, or in any capacity. It is expressly understood by
the parties hereto that this Agreement relates to the payment
of deferred compensation for the Employee's services, payable
after termination of employment with the Corporation, and is
not intended to be an employment contract.
18. BENEFITS NOT TRANSFERABLE. Neither the Employee, designated
beneficiary, nor any other beneficiary under this Agreement
shall have any
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power or right to transfer, assign, anticipate, alienate,
sell, pledge, hypothecate or otherwise encumber any part or
all of the amounts payable hereunder. No such amounts shall
be subject to attachment, garnishment, or any other type of
seizure by any creditor of any such Employee or beneficiary,
by any proceeding at law or in equity, nor shall such amounts
be transferable by operation of law in the event of
bankruptcy, insolvency or death of the Employee, designated
beneficiary, or any other beneficiary hereunder. Any such
attempted assignment or transfer shall be void.
19. DETERMINATION OF BENEFITS.
(a) Claim. A person who believes that he is being denied
a benefit to which he is entitled under the Plan
(hereinafter referred to as a "Claimant":) may file a
written request for such benefit with the
Corporation, setting forth his claim. The request
must be addressed to the Secretary/Treasurer of the
Corporation at its then principal place of business.
(b) Claim Decision. Upon receipt of a claim, the
Corporation shall advise the Claimant that a reply
will be forthcoming within ninety (90) days and
shall, in fact, deliver such reply within such
period. The Corporation may, however, extend the
reply period for an additional ninety (90) days for
reasonable cause.
If the claim is denied in whole or in part, the
Corporation shall adopt a written opinion, using
language calculated to be understood by the Claimant,
setting forth:
(i) The specific reason or reasons for such
denial;
(ii) The specific reference to pertinent provisions
of this Agreement on which such denial is
based;
(iii) A description of any additional material or
information necessary for the Claimant to
perfect his claim and an explanation why such
material or such information is necessary;
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(iv) Appropriate information as to the steps to be
taken if the Claimant wishes to submit the
claim for review; and
(v) The time limits for requesting a review under
subsection (c) and for review under subsection
(d) hereof.
(c) Request for Review. Within sixty (60) days after the
receipt by the Claimant of the written opinion
described above, the Claimant may request in writing
that the Secretary of the Corporation review the
determination of the Corporation. Such request must
be addressed to the Secretary of the Corporation, at
its then principal place of business. The Claimant
or his duly authorized representative may, but need
not, review the pertinent documents and submit issues
and comments in writing for consideration by the
Corporation. If the Claimant does not request a
review of the Corporation's determination by the
Secretary of the Corporation within such sixty (60)
day period, he shall be barred and estopped from
challenging the Corporation's determination.
(d) Review of Decision. Within sixty (60) days after the
Secretary's receipt of a request for review, he will
review the Corporation's determination. After
considering all materials presented by the Claimant,
the Secretary will render a written opinion, written
in a manner calculated to be understood by the
Claimant, setting forth the specific reasons for the
decision and containing specific references to the
pertinent provisions of this Agreement on which the
decision is based. If special circumstances require
that the sixty (60) day time period be extended, the
Secretary will so notify the Claimant and will render
the decision as soon as possible, but no later than
one hundred twenty (120) days after receipt of the
request for review.
20. AMENDMENT. This Agreement may not be amended, altered or
modified, except by a written instrument signed by the parties
hereto, or their respective successors, and may not be
otherwise terminated except as provided herein.
21. INUREMENT. This Agreement shall be binding upon and inure to
the benefit of the Corporation and its successors and assigns,
and the Employee, his/her successors, heirs, executors,
administrators and beneficiaries.
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22. NOTICE. Any notice, consent or demand required or permitted
to be given under the provisions of this Agreement shall be in
writing, and shall be signed by the party giving or making the
same. If such notice, consent or demand is mailed to a party
hereto, it shall be sent by United States certified mail,
postage prepaid, addressed to such party's last known address
as shown on the records of the Corporation. The date of such
mailing shall be deemed the date of notice, consent or demand.
Either party may change the address to which notice is to be
sent by giving notice of the change of address in the manner
aforesaid.
23. GOVERNING LAW. This Agreement, and the rights of the parties
hereunder, shall be governed by and construed in accordance
with the laws of the State of Florida.
24. PARTIAL INVALIDITY. If any provision of this Plan shall be
held illegal or invalid for any reason, said illegality or
invalidity shall not affect the remaining provisions hereof;
instead, each illegal or invalid provision shall be fully
severable and the Plan shall be construed and enforced as if
such illegal or invalid provision had never been included
herein.
25. RIGHT TO REDUCE DEFERRAL ELECTIONS. The Corporation has the right to
reduce the deferral election of any Employee if, the deferral is in
excess of the Maximum Annual Deferral Sum, as determined from time to
time by the Plan Administrator. This reduction, if made, will be
implemented before the end of the then current plan year.
IN WITNESS WHEREOF, the parties have executed this Agreement, in duplicate, as
of the day and year first above written.
LAMALIE AMROP INTERNATIONAL
By:
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Title:
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Corporation
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Employee
ATTEST:
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----------------------------Secretary
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