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EXHIBIT 10.18
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made and entered into this ___ day of
January, 1999, by and between LAMALIE ASSOCIATES, INC., a Florida corporation
(the "Company"), and XXXXXXX X. XXXXX, residing at 000 Xxxxxxx Xxxx, Xxxxxxxx,
XX 00000 (the "Executive").
W I T N E S S E T H:
1. EMPLOYMENT
The Company hereby employs the Executive, and the Executive hereby
accepts such employment, upon the terms and subject to the conditions set forth
in this Agreement.
2. TERM
Subject to the provisions for termination as hereinafter provided, the
term of employment under this Agreement shall be effective as of November 9,
1998 and shall continue through November 8, 2000; provided, however, that
beginning on November 9, 2000 and on each November 9 thereafter (each such date
being referred to as a "Renewal Date"), the term of this Agreement shall
automatically be extended for an additional one year, unless either party gives
the other written notice of non-renewal at least ninety (90) days prior to any
such Renewal Date.
3. COMPENSATION
(a) Base Salary. The Company shall pay to the Executive a salary of
$300,000 per year, or such other sum in excess of that amount as the parties
may agree on from time to time (as in effect from time to time, the "Base
Salary"), payable monthly or in other more frequent installments, as determined
by the Company.
(b) Sign On Benefit. (i) Upon the execution of this Agreement, the
Executive shall receive from the Company as a sign on benefit a loan in the
amount of $100,000, to be evidenced by a Promissory Note bearing interest at
the rate of 10%, to be forgiven by the Company on February 28, 1999 if
Executive is still employed by the Company on that date.
(ii) If the Executive's employment hereunder is terminated either
by the Executive voluntarily pursuant to Section 8(a)(i) hereof or by the
Company for Good Cause pursuant to Section 8(b)(i) hereof at any time prior to
November 8, 2000, the Executive is obligated to pay to the Company immediately
upon termination as liquidated damages, and not as a penalty, $100,000 if
employment is terminated between November 9, 1998 and November 8, 1999, and
$50,000 if employment is terminated between November 9, 1999 and November 8,
2000. Any such repayment obligations shall accrue interest at the rate of 10%
per annum from the date of such termination. The Executive shall bear all the
costs and fees of any arbitration or other action which must be begun by the
Company to collect the liquidated damages from the Executive pursuant to this
Section 3(b) (including reasonable attorneys' fees, arbitrator's fees, and
administrative fees). Further, no delay or failure on the part of the Company
in exercising
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any right to collect the liquidated damages pursuant to this Section 3(b) shall
operate as a waiver of any such right, nor shall any partial exercise of such
right preclude further exercise of such right.
(c) Performance Bonus. In addition to the Base Salary to be paid
pursuant to Section 3(a) of this Agreement, during the term of this Agreement
or any renewal or extension hereof, the Company shall pay to the Executive as
incentive compensation an annual performance bonus (the "Performance Bonus") in
accordance with the incentive bonus plan(s) adopted from time to time by the
Compensation and Management Development Committee (the "Committee") of the
Board of Directors of the Company (the "Board"). The Committee shall establish
criteria for such Performance Bonus at the beginning of each fiscal year, and
Executive's bonus criteria shall be established based upon input from
Executive, the Chief Executive Officer and the Chief Operating Officer, and
shall be tied to the gross revenues and profitability of the Company's
selection business unit. Initially, such plan shall provide for a Performance
Bonus equal to between 0% and 120% of Base Salary, with a "Target Bonus" equal
to 60% of Base Salary and a "Maximum Bonus" equal to 120% of the Base Salary.
Except as otherwise specifically provided in this Agreement, to receive a
Performance Bonus, the Executive must be employed by the Company on the last
day of the year to which the Performance Bonus relates. For the Company's
fiscal year ending February 28, 1999, no Performance Bonus shall be due to
Executive. For the Company's fiscal year ending February 29, 2000, the
Executive's minimum Performance Bonus shall be $100,000.
(d) Stock Option Award. The Executive shall participate in the
Company's 1998 Omnibus Stock and Incentive Plan (the "Omnibus Plan"), in
accordance with the terms thereof, through the grant effective on November 9,
1998 by the Committee of options to purchase 100,000 shares of the Company's
common stock (the "Options"). The initial exercise price for the Options is
$8.938, the closing price for the Company's stock on the Nasdaq Stock Market
(NMS) on the date of grant. The Options shall be subject to the terms of the
Omnibus Plan. Attached hereto as Exhibit A is a Stock Option Certificate in the
form to be issued to evidence the Options.
(e) Reimbursement. The Company shall reimburse the Executive, in
accordance with the Company's policies and practices for senior management, for
all reasonable expenses incurred by the Executive in the performance of the
Executive's duties under this Agreement, provided, however, that the Executive
must furnish to the Company an itemized account, reasonably satisfactory to the
Company, in substantiation of such expenditures.
(f) Other Benefits. The Executive shall be entitled to such fringe
benefits including, but not limited to, medical and other insurance benefits as
may be provided from time to time by the Company to other members of senior
management of the Company.
(g) Other Incentive and Benefit Plans. The Executive shall be eligible
to participate, in accordance with the terms of such plans as they may be
adopted, amended and administered from time to time, in incentive, bonus,
benefit or similar plans, including without limitation, any stock option, bonus
or other equity ownership plan, any short, mid or long term incentive plan and
any other bonus, pension or profit sharing plans established by the Company
from time to time for its senior management.
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(h) Deferral of Certain Compensation; Alternative Compensation.
Notwithstanding any other provisions of this Agreement to the contrary, any
portion of the Executive's compensation otherwise payable to the Executive
under this Agreement shall not be paid currently in cash to the Executive
hereunder if pursuant to the provisions of Section 162(m) of the Internal
Revenue Code of 1986, as amended, or any successor provision ("Section
162(m)"), the Company would not be entitled to a current deduction for federal
income tax purposes in respect of the payment of such portion of the cash
compensation (any such compensation being referred to as "Section 162(m)
Non-Deductible Compensation"). The payment of any such Section 162(m)
Non-Deductible Compensation shall be deferred and, in place of the current
payment thereof, the amount of the Non-Deductible Compensation shall be paid to
the Executive no later than 90 days after the close of the fiscal year to which
such compensation relates in a form (including, but not limited to, awards of
stock options, phantom stock or restricted stock) and in an amount that: (1)
reasonably reflects the parties' mutual good faith estimate of the current
value of the Non-Deductible Compensation, (2) is not treated as current
compensation for purposes of calculating the Section 162(m) limits and (3) is
otherwise mutually acceptable to the Executive and the Committee (the
"Alternative Compensation"). The parties agree to use their reasonable best
efforts to reach mutual agreement on a timely basis with respect to the form
and amount of any Alternative Compensation. The obligations of the parties
under this Section 3(h) shall terminate when Section 162(m) no longer applies
to the Executive's compensation.
4. DUTIES
The Executive shall serve initially as the Vice President - Selection
of the Company and as the President of LAI Compass. In addition, at the request
of the Board, the Executive shall serve in the same or similar positions in any
wholly owned subsidiary, joint venture or affiliate of the Company, without any
additional compensation. The Executive shall report directly to the Chief
Operating Officer. The Executive's duties and responsibilities shall be
commensurate with the head of the Company's selection activities, with such
specific duties and powers as shall be assigned by the Chief Operating Officer
or the Chief Executive Officer. The Executive's duties and responsibilities may
be changed from time to time in the reasonable discretion of the Chief
Operating Officer or the Chief Executive Officer.
5. EXTENT OF SERVICES; VACATIONS AND DAYS OFF
(a) Extent of Services. During the term of the Executive's employment
under this Agreement, except during customary vacation periods and periods of
illness, the Executive shall devote full-time energy and attention during
regular business hours to the benefit and business of the Company as may be
reasonably necessary in performing the Executive's duties pursuant to this
Agreement. Notwithstanding the foregoing, the Executive may (i) serve on
corporate, trade association, civic, religious or charitable boards or
committees, (ii) deliver lectures, fulfill speaking engagements or teach at
educational institutions and (iii) manage personal investments, so long as such
activities do not interfere with the performance of the Executive's duties and
responsibilities and do not create a conflict of interest.
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(b) Vacations. The Executive shall be entitled to vacations with pay
and to such personal and sick leave with pay in accordance with the policy of
the Company as may be established from time to time by the Company and applied
to other members of senior management of the Company.
6. FACILITIES
The Company shall provide the Executive with a fully furnished office
in Chicago, Illinois. The facilities of the Company shall be generally
available to the Executive in the performance of the Executive's duties
pursuant to this Agreement, it being understood and contemplated by the parties
that all equipment, supplies and office personnel required in the performance
of the Executive's duties under this Agreement shall be provided by and at the
sole expense of the Company in Chicago, Illinois.
7. ILLNESS OR INCAPACITY, TERMINATION ON DEATH, ETC.
(a) Death. If the Executive dies during the term of the Executive's
employment, the Company shall pay to the estate of the Executive within 30 days
after the date of death such Base Salary as would otherwise have been payable
to the Executive up to the end of the month in which the Executive's death
occurs. After receiving the payment provided in this Section 7(a), the
Executive and the Executive's estate shall have no further rights under this
Agreement (other than those rights already vested or accrued).
(b) Disability. (i) The Executive's employment shall terminate
immediately upon the Executive's "Permanent Disability" (as defined below).
Upon such termination, the Company shall pay to the Executive for a period of
one year after termination a monthly payment (the "Disability Payment") equal
to the (i) sum of (A) the Base Salary paid in the same monthly or other period
installments as in effect at the time of the Executive's Permanent Disability
plus (B) an equal monthly pro rata portion of an amount of cash equal to the
greater of (x) the Target Bonus payable to the Executive under Section 3(c) of
this Agreement in respect of the year in which such termination occurs (subject
to any upward adjustment provided in Section 8(c)(ii) of this Agreement, the
"Termination Target Bonus") or (y) the minimum amount of any similar bonus or
incentive plans or programs then in effect if greater than the Target Bonus in
respect of the fiscal year during which the Executive's termination as a result
of Permanent Disability occurs (ii) reduced by the amount of any monthly
payments under any policy of disability income insurance paid for by the
Company which payments are received during the time when any Disability Payment
is being made to the Executive following the Executive's Permanent Disability.
The Disability Payment shall be paid by the Company to the Executive in
substantially equivalent installments at the substantially same time or times
as would have been the case for payment of Base Salary under this Agreement if
the Executive had not become permanently disabled and had remained employed by
the Company hereunder. Except as
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provided in this Section 7(b), all rights of the Executive under this Agreement
(other than rights already vested or accrued) shall terminate upon the
termination of the Executive's employment under this Agreement as a result of
the Executive's "Permanent Disability" (as that term is defined in Section
7(b)(ii) below).
(ii) The term "Permanent Disability" as used in this Agreement
shall have the same meaning as provided in any disability insurance policy
provided or paid for by the Company covering the Executive at such time as such
policy is in full force and effect. If no such disability policy is so
maintained at such time and is then in full force and effect, the term
"Permanent Disability" shall mean the inability of the Executive, as reasonably
determined by the Board by reason of physical or mental disability to perform
the duties required of him under this Agreement for a period of one hundred and
twenty (120) days in any one-year period. Successive periods of disability,
illness or incapacity will be considered separate periods unless the later
period of disability, illness or incapacity is due to the same or related cause
and commences less than three months from the ending of the previous period of
disability. Upon such determination, the Board may terminate the Executive's
employment under this Agreement upon ten (10) days' prior written notice. If
any determination of the Board with respect to permanent disability is disputed
by the Executive, the parties hereto agree to abide by the decision of a panel
of three physicians. The Executive and Company shall each appoint one member,
and the third member of the panel shall be appointed by the other two members.
The Executive agrees to make himself available for and submit to examinations
by such physicians as may be directed by the Company. Failure to submit to any
such examination shall constitute a breach of a material part of this
Agreement.
8. OTHER TERMINATIONS
(a) By the Executive. The Executive may terminate the Executive's
employment hereunder at any time upon giving at least ninety (90) days' prior
written notice. If the Executive gives notice pursuant to this Section 8(a),
the Company shall have the right (but not the obligation) to relieve the
Executive, in whole or in part, of the Executive's duties under this Agreement,
or direct the Executive to no longer perform such duties, or direct that the
Executive should no longer report to work, or any combination of the foregoing.
In any such event, the Executive shall be entitled to receive only the Base
Salary not yet paid as would otherwise have been payable to the Executive up to
the expiration of the 90 day notice period. If the Executive gives notice
pursuant to this Section 8(a), upon receiving the payment provided for under
this Section 8(a), all rights of the Executive to receive compensation or other
payments or benefits under this Agreement (other than rights already vested or
accrued) shall terminate.
(b) Termination for "Good Cause". (i) Except as otherwise provided in
this Agreement, the Company may terminate the employment of the Executive
hereunder only for "Good Cause," which shall mean (a) any material failure of
the Executive to perform his duties with the
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Company to the extent of his ability to do so (other than any failure due to
physical or mental incapacity), (b) misconduct materially and demonstrably
injurious to the Company, financially or otherwise, in each case, as determined
in the reasonable discretion of the Chief Operating Officer or the Chief
Executive Officer, (c) conviction of a felony or conviction of any crime in
connection with Executive's employment by the Company which causes the Company
a substantial detriment (other than traffic offenses); (d) material unjustified
failure to meet mutually agreed upon business objectives (including production
goals); (e) dependence on alcohol, or any narcotic drug or other controlled or
illegal substance; or (f) a breach by the Executive of a material provision of
this Agreement.
(ii) If the employment of the Executive is terminated for Good
Cause under Section 8(b)(i) of this Agreement, the Company shall pay to the
Executive any Base Salary earned prior to the effective date of termination
specified by the Board but not yet paid. Under such circumstances, such payment
shall be in full and complete discharge of any and all liabilities or
obligations of the Company to the Executive hereunder, and the Executive shall
be entitled to no further benefits under this Agreement (other than rights
already vested or accrued).
(iii) Termination by the Company of the employment of the
Executive other than as expressly specified above in Section 8(b)(i) for Good
Cause shall be deemed to be a termination of employment by the Company "Without
Good Cause."
(c) Termination Without Good Cause. (i) Notwithstanding any other
provision of this Agreement, the Company shall have the right to terminate the
Executive's employment Without Good Cause pursuant to the provisions of this
Section 8(c). If the Company shall terminate the employment of the Executive
Without Good Cause effective on a date earlier than the termination date
provided for in Section 2 (with the effective date of termination as so
identified by the Company being referred to herein as the "Accelerated
Termination Date"), the Executive, until the date which is one (1) year after
the Accelerated Termination Date, shall continue to receive (1) the Base
Salary, paid in the same monthly or other periodic installments as in effect
prior to the Accelerated Termination Date, plus (2) an equal monthly pro rata
portion of an amount of cash equal to the greater of (x) the Target Bonus
payable to the Executive under Section 3(c) of this Agreement (subject to any
upward adjustment as provided in Section 8(c)(ii) of this Agreement, the
"Termination Target Bonus") or (y) the minimum amount of any similar bonus or
incentive plans or programs then in effect if greater than the Target Bonus in
respect of the fiscal year during which the Executive's termination Without
Good Cause occurs; provided that, the Company shall have the right (but not the
obligation) to relieve the Executive, in whole or in part, of the Executive's
duties under this Agreement, or direct the Executive to no longer perform such
duties, or direct that the Executive no longer be required to report to work,
or any combination of the foregoing.
(ii) The Termination Target Bonus shall be increased to an amount
in excess of the Target Bonus for the year in which the Executive's employment
is terminated if such Target Bonus is less than the amount of the bonus that
otherwise would have been payable to the Executive in respect of the Company's
full fiscal year if the Executive had remained employed by the Company for the
entire fiscal year. Any such increase shall be determined by the Committee in
its reasonable discretion no later than 90 days after the close of the fiscal
year
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during which the Executive's employment terminates. If the Termination Target
Bonus increases as a result of application of the first sentence of this
Section 8(c)(ii), the amount of such increase shall be paid pro rata over the
remaining period of time during which payments are to be made to the Executive
under Section 8(c)(i).
(iii) The parties agree that, because there can be no exact
measure of the damage that would occur to the Executive as a result of a
termination by the Company of the Executive's employment Without Good Cause,
the payments and benefits paid and provided pursuant to this Section 8(c), in
addition to being consideration for the release required to be delivered
pursuant to Section 8(d) of this Agreement, also shall be deemed to constitute
full consideration for any such damages and shall be considered as liquidated
damages and not a penalty for the Company's termination of the Executive's
employment Without Good Cause.
(d) Release. Payment of any compensation to the Executive under this
Section 8 following termination of employment shall be conditioned upon the
prior receipt by the Company of a release executed by the Executive in
substantially the form attached to this Agreement as Exhibit B.
(e) Effect on Certain Covenants. Notwithstanding any termination of
the Executive's employment, the Executive's covenants set forth in Section 10
and Section 11 are intended to and shall remain in full force and effect.
9. DISCLOSURE
The Executive agrees that during the term of the Executive's
employment by the Company, the Executive will disclose and disclose only to the
Company all ideas, methods, plans, developments or improvements known by him
which relate directly or indirectly to the business of the Company, whether
acquired by the Executive before or during the Executive's employment by the
Company. Nothing in this Section 9 shall be construed as requiring any such
communication where the idea, plan, method or development is lawfully protected
from disclosure as a trade secret of a third party or by any other lawful
prohibition against such communication. The covenants of this Section 9 shall
not be violated by ordinary and customary communications with reporters,
bankers and securities analysts and other members of the investment community.
Further, any ideas, improvements, plans or concepts, development procedures,
products, formulas, inventions, methods and processes and all improvements and
modifications thereof regarding computer software programs (including, but not
limited to, source code, object code, documentation, programming objects,
algorithms, methods, functionality, routines and procedures, graphics, voice
and other sounds, screen layouts, and look and feel or the foregoing) known,
made or discovered by Executive or under his direction (the "Computer Work
Product") during the term of this Agreement, and each and every component
thereof, shall be and shall remain the sole and exclusive property, trade
secrets and proprietary information of the Company during the term of this
Agreement and upon its termination, and the Executive shall have no right or
interest therein. The foregoing shall be considered Computer Work Product
regardless of whether patentable, copyrightable or otherwise protectable.
Computer Work Product shall include not only information, but also all records
or
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representations thereof, regardless of the form thereof or media on or in
which stored, including paper, mechanical, firmware, magnetic, optical or
otherwise, both digital and analog. Computer Work Product also shall include
all related materials, documentation, notes, drawings, and the like. Computer
Work Product does not include "off-the-shelf" software licensed from third
parties, but does include any ideas, plans, concepts, etc. relating to such
software.
10. CONFIDENTIALITY
The Executive agrees to keep in strict secrecy and confidence any and
all information the Executive assimilates or to which the Executive has access
during the Executive's employment by the Company and which has not been
publicly disclosed and is not a matter of common knowledge in the fields of
work of the Company, including but not limited to information regarding the
Company's focus account strategy both generally and as it may be directed at
particular existing and prospective clients, the Company's past, current and
future strategic plans and underlying data and confidential and proprietary
information regarding search and selection candidates and companies, including
but not limited to that available on the Company's CMS system and on any
software which may be utilized or developed by or for the use of LAI Compass
(collectively, the "Confidential Information"). The Executive agrees that both
during and after the term of the Executive's employment by the Company, the
Executive will not, without the prior written consent of the Company, disclose
any Confidential Information to any third person, partnership, joint venture,
company, corporation or other organization. The foregoing covenants shall not
be breached to the extent that any such confidential information becomes a
matter of general knowledge other than through a breach by a person with an
obligation to the Company to maintain such confidentiality, including but not
limited to the Executive's obligations to the Company under this Section 10.
11. NONCOMPETITION; NONSOLICITATION
(a) General. The Executive hereby acknowledges that, during and solely
as a result of the Executive's employment by the Company, the Executive has
received and shall continue to receive: (1) special training and education with
respect to the operations of the Company's business and other related matters,
and (2) access to confidential information and business and professional
contacts. In consideration of the special and unique opportunities afforded to
the Executive by the Company as a result of the Executive's employment, as
outlined in the previous sentence, the Executive hereby agrees to the
restrictive covenants in this Section 11.
(b) Noncompetition. (i) During the term of the Executive's employment,
whether pursuant to this Agreement, any automatic or other renewal hereof or
otherwise, and, except as may be otherwise herein provided, during the
"Noncompetition Period" (as that term is defined in Section 11(b)(ii) of this
Agreement), regardless of the reason for such termination, the Executive
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shall not, directly or indirectly, enter into, engage in, be employed by or
consult with any business which competes with the Company's retained executive
search consulting business (including but not limited to the selection business
to be developed by LAI Compass) or the retained executive search consulting
business of any of the Company's affiliates. The Executive shall not engage in
such prohibited activities, either as an individual, partner, officer,
director, stockholder, employee, advisor, independent contractor, joint
venturer, consultant, agent, or representative or salesman for any person,
firm, partnership, corporation or other entity so competing with the Company or
any of its affiliates. The restrictions of this Section 11 shall not be
violated by (i) the ownership of no more than 2% of the outstanding securities
of any company whose stock is traded on a national securities exchange or is
quoted on the Nasdaq Stock Market, or (ii) other outside business investments
that do not in any manner conflict with the services to be rendered by the
Executive for the Company and that do not diminish or detract from the
Executive's ability to render the Executive's required attention to the
business of the Company.
(ii) The Noncompetition Period shall be (1) any period of time
when the Company is obligated to make periodic payments under Section 8 to the
Executive following termination of the Executive's employment or (2) if longer
than the period of time which would apply under the preceding clause (1), the
period ending November 9, 2000.
(c) Nonsolicitation. During the Executive's employment with the
Company, whether pursuant to this Agreement, any automatic or other renewal or
extension hereof or otherwise, and, except as may be otherwise herein provided,
for a period of two (2) years following the termination of the Executive's
employment with the Company, regardless of the reason for such termination, the
Executive agrees the Executive will refrain from and will not, directly or
indirectly, as an individual, partner, officer, director, stockholder,
employee, advisor, independent contractor, joint venturer, consultant, agent,
representative, salesman for any person, firm, partnership, corporation or
other entity, or otherwise (i) solicit any of the current or former employees,
consultants, directors or officers of the Company or any of its affiliates to
terminate any business relationship with the Company or any of its affiliates
or (2) employ or retain as an independent contractor, consultant or agent any
of the current or former employees, consultants, directors or officers of the
Company or any of its affiliates, unless such persons have been separated from
any relationship with the Company or any of its affiliates for at least one (1)
year; unless any such employees, consultants, directors or officers of the
Company or any of its affiliates are or have been terminated by the Company or
any of its affiliates.
(d) Term Extended or Suspended. The period of time during which the
Executive is prohibited from engaging in certain business practices pursuant to
Sections 11(b) or (c) shall be extended by any length of time during which the
Executive is in breach of such covenants.
(e) Essential Element. It is understood by and between the parties
hereto that the foregoing restrictive covenants set forth in Sections 11(a)
through (c) are essential elements of this Agreement, and that, but for the
agreement of the Executive to comply with such covenants, the Company would not
have agreed to enter into this Agreement. Such covenants by the Executive shall
be construed as agreements independent of any other provision in this
Agreement. The existence of any claim or cause of action of the Executive
against the Company,
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whether predicated on this Agreement, or otherwise, shall not constitute a
defense to the enforcement by the Company of such covenants.
(f) Severability. It is agreed by the Company and Executive that if
any portion of the covenants set forth in this Section 11 are held to be
invalid, unreasonable, arbitrary or against public policy, then such portion of
such covenants shall be considered divisible both as to time and geographical
area. The Company and Executive agree that, if any court of competent
jurisdiction determines the specified time period or the specified geographical
area applicable to this Section 11 to be invalid, unreasonable, arbitrary or
against public policy, a lesser time period or geographical area which is
determined to be reasonable, non-arbitrary and not against public policy may be
enforced against the Executive. The Company and the Executive agree that the
foregoing covenants are appropriate and reasonable when considered in light of
the nature and extent of the business conducted by the Company.
12. SPECIFIC PERFORMANCE
The Executive agrees that damages at law will be an insufficient
remedy to the Company if the Executive violates the terms of Sections 9, 10 or
11 of this Agreement and that the Company would suffer irreparable damage as a
result of such violation. Accordingly, it is agreed that the Company shall be
entitled, upon application to a court of competent jurisdiction, to obtain
injunctive relief to enforce the provisions of such Sections, which injunctive
relief shall be in addition to any other rights or remedies available to the
Company.
13. ARBITRATION
(a) General. The parties agree that all actions, claims, controversies
or disputes of any kind (e.g. whether in contract or in tort, statutory or
common law) between them relating, directly or indirectly, to this Agreement,
whether now existing or hereafter arising ("Disputes"), are to be resolved by
arbitration as provided in this Agreement. This agreement to arbitrate will
survive the recision or termination of this Agreement. All arbitration will be
conducted pursuant to and in accordance with the following, in order of
priority (i) the terms of this Agreement, (ii) the Commercial Arbitration Rules
of the American Arbitration Association, (iii) the Federal Arbitration Act and
(iv) to the extent the foregoing are inapplicable, unenforceable or invalid,
the laws of the State of Florida. All Disputes arising shall be resolved
finally by a single arbitrator. Any hearing regarding arbitration will be held
in Atlanta, Georgia or at another location mutually acceptable to the Company
and the Executive. The arbitrator will use his or her best efforts to conduct
the arbitration hearing no later than three months from the service of the
statement of claim and demand for arbitration and will use his or her best
efforts to render a decision within four months from the service of the
statement of claim and demand.
(b) Effect of Arbitration; Enforcement. An arbitration proceeding
commenced pursuant to this Section 13 is a condition precedent to and is a
complete defense to the commencement of any suit, action or proceeding in any
court or before any tribunal with respect to any Dispute. Either party may
bring an action in court to compel arbitration. Any party who fails or refuses
to submit to binding arbitration following demand by the other party shall, if
the Dispute is within
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the scope of this Section 13, bear all costs and expenses incurred by the
opposing party in compelling arbitration. The decision of the arbitrator shall
be final and binding upon the parties, and such decision shall be enforceable
as a judgment in a court of competent jurisdiction. Other than the Company's
right to seek specific performance by way of injunctive relief to enforce the
provisions of Sections 9, 10 and 11 set forth in Section 12 above, each party
to this Agreement covenants not to institute any suit or other proceeding in
any court with respect to any matter arising under or pursuant to or directly
or indirectly relating to this Agreement, the subject matter hereof or any
other agreements, documents and instruments delivered or required to be
delivered hereunder or in connection herewith unless the intended subject
matter thereof has first been submitted for arbitration in accordance with the
foregoing procedure and such arbitration proceeding has been completed. To the
extent permitted by applicable law, the arbitrator(s) will have the power to
award recovery of all costs and fees (including attorneys' fees, administrative
fees, and arbitrator's fees) to the prevailing party.
(c) Selection of Arbitrator. The arbitrator will be chosen by mutual
agreement of the Company and the Executive. If they cannot agree within 30 days
upon a single arbitrator, the party not electing to submit the matter to
arbitration (the "Non-Electing Party") shall provide to the other party (the
"Electing Party") a list of three proposed arbitrators, each of whom shall be
knowledgeable as to matters that are the subject of the dispute and each of
whom shall be completely independent of and with no prior affiliation or direct
or indirect relationship with any party or any of their affiliates. The
Electing Party shall then select the arbitrator from such list or, if all such
proposed arbitrators are reasonably unacceptable to such party, so advise the
Non-Electing Party, whereupon such party shall prepare a new list of three
proposed arbitrators and the selection process shall begin anew.
(d) Authority of Arbitrator. The arbitrator will have the sole
authority to resolve issues regarding whether Disputes are subject to
arbitration, including the applicability of any statute of limitations. The
choice of law provisions of Section 14(g) shall be applicable to any
arbitration under this Agreement. The statute of limitations applicable to any
Dispute shall be tolled upon the initiation of arbitration under this Agreement
and shall remain tolled until the arbitration process is completed.
(e) Confidentiality of Arbitration. In order to maintain the
confidentiality of the dispute intended to be resolved by arbitration as
provided in this Agreement as well as the information adduced and contentions
asserted in any such arbitration, the parties agree to maintain in strict
confidence and agree to neither make nor suffer any public disclosure of the
fact of, contentions or evidence, discovered, developed or introduced in and
the result of any such arbitration; provided, however, the foregoing to the
contrary notwithstanding, the Company may make public disclosures regarding the
existence of the arbitration, the nature of the dispute and the results thereof
as may be necessary or appropriate to satisfy the Company's disclosure
obligations under applicable securities or other laws.
14. MISCELLANEOUS
(a) Waiver of Breach. The waiver by either party to this Agreement of
a breach of
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any of the provisions of this Agreement by the other party shall not be
construed as a waiver of any subsequent breach by such other party.
(b) Compliance With Other Agreements. The Executive represents and
warrants that the execution of this Agreement by him and the Executive's
performance of the Executive's obligations hereunder will not conflict with,
result in the breach of any provision of or the termination of or constitute a
default under any agreement to which the Executive is a party or by which the
Executive is or may be bound.
(c) Binding Effect; Assignment. The rights and obligations of the
Company under this Agreement shall inure to the benefit of and shall be binding
upon the successors and assigns of the Company. This Agreement is a personal
employment contract and the rights, obligations and interests of the Executive
hereunder may not be sold, assigned, transferred, pledged or hypothecated.
(d) Entire Agreement. This Agreement contains the entire agreement
and supersedes all prior agreements and understandings, oral or written, with
respect to the subject matter hereof. This Agreement may be changed only by an
agreement in writing signed by the party against whom any waiver, change,
amendment, modification or discharge is sought.
(e) Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect the meaning or interpretation of
this Agreement.
(f) Florida Law. This Agreement shall be construed pursuant to and
governed by the substantive laws of the State of Florida (except that any
provision of Florida law shall not apply if the application of such provision
would result in the application of the law of a state or jurisdiction other
than Florida).
(h) Venue; Process. To the extent it is necessary to resolve any
disputes arising under this Agreement, and the agreements and instruments and
documents contemplated hereby in a court and resolution by a court is
consistent with the provisions of Section 13, the parties to this Agreement
agree that jurisdiction and venue in any action brought pursuant to this
Agreement to enforce its terms or otherwise with respect to the relationships
between the parties shall properly lie in the Circuit Court of the Thirteenth
Judicial Circuit of the State of Florida in and for Hillsborough County (the
"Circuit Court") or in the United States District Court for the Middle District
of Florida, Tampa Division. Such jurisdiction and venue are merely permissive;
jurisdiction and venue shall also continue to lie in any court where
jurisdiction and venue would otherwise be proper. The parties further agree
that the mailing by certified or registered mail, return receipt requested, of
any process required by any such court shall constitute valid and lawful
service of process against them, without the necessity for service by any other
means provided by statute or rule of court. The parties agree that they will
not object that any action commenced in the foregoing jurisdictions is
commenced in a forum non conveniens.
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(i) Severability. Any provision of this Agreement which is determined
pursuant to arbitration under Section 13 of this Agreement (or to the extent it
is necessary to resolve any disputes arising under this Agreement, and the
agreements and instruments and documents contemplated hereby in a court and
resolution by a court is consistent with the provisions of Section 13, by a
court of competent jurisdiction) to be prohibited, unenforceable or not
authorized in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition, unenforceability or non-authorization
without invalidating the remaining provisions hereof or affecting the validity,
enforceability or legality of such provision in any other jurisdiction. In any
such case, such determination shall not affect any other provision of this
Agreement, and the remaining provisions of this Agreement shall remain in full
force and effect. If any provision or term of this Agreement is susceptible to
two or more constructions or interpretations, one or more of which would render
the provision or term void or unenforceable, the parties agree that a
construction or interpretation which renders the term or provision valid shall
be favored.
(j) Deduction for Tax Purposes. Subject to the provisions of Section
3(h), the Company's obligations to make payments under this Agreement are
independent of whether any or all of such payments are deductible expenses of
the Company for federal income tax purposes.
(k) Enforcement. If, within 10 days after demand to comply with the
obligations of one of the parties to this Agreement served in writing on the
other, compliance or reasonable assurance of compliance is not forthcoming, and
the party demanding compliance engages the services of an attorney to enforce
rights under this Agreement, the prevailing party in any action shall be
entitled to recover all reasonable costs and expenses of enforcement (including
reasonable attorneys' fees and reasonable expenses during investigation, before
and at trial and in appellate proceedings). In addition, each of the parties
agrees to indemnify the other in respect of any and all claims, losses, costs,
liabilities and expenses, including reasonable fees and reasonable
disbursements of counsel (during investigation prior to initiation of
litigation and at trial and in appellate proceedings if litigation ensues),
directly or indirectly resulting from or arising out of a breach by the other
party of their respective obligations hereunder. The parties' costs of
enforcing this Agreement shall include prejudgment interest. Additionally, if
any party incurs any out-of-pocket expenses in connection with the enforcement
of this Agreement, all such amounts shall accrue interest at 10% per annum (or
such lower rate as may be required to avoid any limit imposed by applicable
law) commencing 30 days after any such expenses are incurred.
(l) Certain Additional Payments. (i) The Company shall pay to the
Executive the additional payments necessary to discharge certain tax
liabilities as that term is defined below in Section 14(l)(ii) of this
Agreement (the "Gross Up").
(ii) If the Executive is to receive any (1) any benefit resulting
from the acceleration of the vesting schedule for the Options granted under the
Omnibus Plan as a result of the Executive's death or Permanent Disability,
termination of employment Without Good Cause or upon a "Change of Control" (as
that term is defined in the Omnibus Plan), (2) any benefit or payment under
Section 7 as a result of or following the death or Permanent Disability of the
Executive, or (3) any benefit or payment under Section 8(c) as a result of or
following any termination of employment hereunder Without Good Cause (such
sections being referred to as
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the "Covered Sections" and the benefits and payments to be received thereunder
being referred to as the "Covered Payments"), the Executive shall be entitled
to receive the amount described below to the extent applicable: If any Covered
Payment(s) under any of the Covered Sections or by the Company under another
plan or agreement (collectively, the "Payments") are subject to the excise tax
imposed by Section 4999 of the Internal Revenue Code of 1986 (as amended from
time to time, the "Code"), or any successor or similar provision of the Code
(the "Excise Tax"), the Company shall pay the Executive an additional cash
amount (the "Gross Up") such that the net amount retained by the Executive
after deduction of any Excise Tax on the Payments (and other state or federal
income tax and Excise Tax on any amounts paid as Gross Up hereunder) shall be
equal to the Payments.
(ii) For purposes of determining the Gross Up, the Executive
shall be deemed to pay the federal income tax at the highest marginal rate of
taxation (currently 39.6%) in the calendar year in which the payment to which
the Gross Up applies is to be made. The determination of whether such Excise
Tax is payable and the amount thereof shall be made upon the opinion of tax
counsel selected by the Company and reasonably acceptable to the Executive. The
Gross Up, if any, that is due as a result of such determination shall be paid
to the Executive in cash in a lump sum within thirty (30) days of such
computation. If such opinion is not finally accepted by the Internal Revenue
Service upon audit or otherwise, then appropriate adjustments shall be computed
(without interest but with additional Gross Up, if applicable) by such tax
counsel based upon the final amount of the Excise Tax so determined; any
additional amount due the Executive as a result of such adjustment shall be
paid to the Executive by the Company in cash in a lump sum within thirty (30)
days of such computation, or if less than the Gross Up any amount due the
Company as a result of such adjustment shall be paid to the Company by the
Executive in cash in a lump sum within thirty (30) days of such computation.
(m) Executive's Expenses. The Company shall pay the reasonable out of
pocket legal expenses incurred by the Executive in connection with the
negotiation and preparation of this Agreement.
(n) Notices. All notices which are required or may be given under
this Agreement shall be in writing and shall be deemed to have been duly given
when received if personally delivered; when transmitted if transmitted by
telecopy or similar electronic transmission method; one working day after it is
sent, if sent by recognized expedited delivery service; and three days after it
is sent, if mailed, first class mail, certified mail, return receipt requested,
with postage prepaid. In each case notice shall be sent to:
To the Company: LAMALIE ASSOCIATES, INC.
Suite 220E
0000 Xxxxxxxxx Xxxxxxxxx
Xxxxx, XX 00000
Attn: Chief Financial Officer
Fax: (000) 000-0000
To the Executive at the Executive's address herein first above
written, or to such other address as either party may specify by written notice
to the other.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
the day and year first above written.
ATTEST: LAMALIE ASSOCIATES, INC.
(Corporate Seal)
By:
---------------------------------- ------------------------------------
Assistant Secretary Xxxxxxx X. XxXxxxxxx, President
EXECUTIVE
Witnesses:
-------------------------------- ---------------------------------------
As to Executive XXXXXXX X. XXXXX
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EXHIBIT A
TO
EMPLOYMENT AGREEMENT WITH XXXXXXX XXXXX
DATED JANUARY 15, 1999
STOCK OPTION AGREEMENT
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LAI WORLDWIDE, INC.
1998 OMNIBUS STOCK AND INCENTIVE PLAN
STOCK OPTION CERTIFICATE
Date Granted: , 1998
---------------
Option Certificate No.: NISO - OPTION CERTIFICATE NUMBER
---------------------
NON-INCENTIVE STOCK OPTION TO PURCHASE # OF OPTIONS SHARES AT $XYZ PER SHARE
GRANTED TO:
---------------------
THIS IS TO CERTIFY THAT, pursuant to the provisions of the LAI
Worldwide, Inc. 1998 Omnibus Stock and Incentive Plan (the "Plan"), and
effective as of the date indicated above, LAI Worldwide, Inc. (the "Company")
hereby grants to the person named above (the "Optionee"), subject to the terms
and conditions of the Plan and subject further to the terms and conditions of
this Certificate, a Non-Incentive Stock Option affording to the Optionee the
right and option (the "Option") to purchase from the Company a total of shares
(the "Option Shares") of the common stock of the Company (the "Common Stock")
at a per share purchase price of $ XYZ (the "Option Price"), such option to be
exercised as provided in this Certificate.
1. EXERCISE PERIOD. The Option shall expire on ____________, 2008
(the "Scheduled Expiration Date"), except that the Option may expire prior to
the Scheduled Expiration Date upon termination of the Optionee's employment
with the Company, including by reason of death or disability, as provided in
Section 5. After the date of expiration of the Option (the "Final Expiration
Date"), whether the original Scheduled Expiration Date or an earlier date, the
Option may not be exercised in whole or in part. For the purposes of this
paragraph, the Optionee will be deemed employed by the Company if employed by a
Subsidiary of the Company.
2. VESTING SCHEDULE. The Optionee's rights under the Option shall
vest and become exercisable in accordance with the following schedule, reduced
by the number of Option Shares, if any, as to which the Option has then already
been exercised:
PERCENTAGE AND (NUMBER) OF
OPTION SHARES CUMULATIVELY
VESTING DATES VESTED AND EXERCISABLE
--------------- --------------------------
_________, 1999 25% ( )
_________, 2000 50% ( )
_________, 2001 75% ( )
_________, 2002 100% ( )
Notwithstanding the foregoing schedule, the Optionee's rights under the Option
shall be fully vested and shall be exercisable as to all of the Option Shares
upon the occurrence of any of the following events which occurs during the
Optionee's employment with the Company: (i) the Optionee dies; (ii) the
Optionee's employment is terminated due to his or her "Permanent Disability" as
defined in the Optionee's employment agreement dated __________,1998 (the
"Employment Agreement") during the term of the Employment Agreement or,
thereafter, becomes totally and permanently disabled (as determined by the
Compensation and Management Development Committee of the Board of Directors
(the "Committee"); (iii) any termination of employment of the Optionee by the
Company, "Without Good Cause" (as defined in the Employment Agreement), during
the term of the Employment Agreement; or (iv) upon a "Change in Control" (as
defined in the Plan). For purposes of this paragraph, the "term of the
Employment Agreement" shall include any additional term provided by any renewal
or extension of the Employment Agreement.
3. EXERCISE OF OPTION.
(a) NOTICE. Subject to the limitations set forth in this
Certificate and in the terms of the Plan, the Option may be exercised (to the
extent then exercisable) by presenting this Certificate to the designated
representative of the
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Committee, together with written notice specifying the number of Option Shares
as to which the Option is being exercised and payment of the Option Price for
the number of Option Shares being purchased. This Certificate, together with
the notice and payment of the Option Price for the number of Option Shares
being purchased, shall be delivered in person or sent by U.S. registered or
certified mail, postage and fees prepaid, return receipt requested, to the
administrative executive offices of the Company at 0000 Xxxxxxxxx Xxxxxxxxx,
Xxxxx, Xxxxxxx 00000, attention: Stock Option Administrator. The exercise date
shall be the date on which this Certificate, notice of exercise and payment are
received by the Committee's designated representative.
(b) PAYMENT OF OPTION PRICE. The Option Price shall be paid in
full: (i) in United States dollars (in cash or by check, bank draft or money
order payable to the order of the Company); (ii) in the discretion and in the
manner determined by the Committee by the delivery of shares of Common Stock
already owned by the Optionee; (iii) by cashless exercise as permitted under
the Federal Reserve Board's Regulation T (subject to applicable legal
restrictions) or other legally permissible means acceptable to the Committee;
or (iv) in the discretion of the Committee through a combination of the
foregoing.
(c) MINIMUM NUMBER OF SHARES; NO FRACTIONAL SHARES. To the extent
exercisable, the Option may be exercised in whole or in part. However, at no
time may the Option be exercised for fewer than one hundred (100) Option Shares
unless the number of Option Shares to be acquired by exercise of the Option is
the total number then purchasable under the Option. The Option may be exercised
only for whole (not fractional) shares.
4. TRANSFERABILITY. The Option is not transferable by the Optionee
except by will or by the laws of descent and distribution upon the death of the
Optionee. Accordingly, during the lifetime of the Optionee, and subject to the
condition that the Option shall not be exercisable in whole or in part after
the Final Expiration Date, the Option shall be exercisable only by the
Optionee. However, a Participant may transfer an Option to a trust, provided
that the Committee may require that the Participant submit a legal opinion that
such holding has no adverse tax or securities law consequences for the company.
After the Optionee's death and prior to the Final Expiration Date, the Option
may be exercised by the personal representative of the Optionee or by any
person or persons who shall have acquired the Option directly from the Optionee
by bequest or inheritance, but no other person.
5. EARLY EXPIRATION UPON TERMINATION OF EMPLOYMENT. Notwithstanding
Sections 1 and 2, if the employment of the Optionee by the Company terminates,
then: (i) after the effective date of such termination, the Option shall not
become further vested or exercisable, and the Optionee shall have no right to
exercise the Option except to the extent that the Option was vested and
exercisable on the effective date of such termination; and (ii) the Option
shall expire on the earlier of the Scheduled Expiration Date or the date ninety
(90) days (one (1) year if such termination is because of the death or
disability of the Optionee, or if the Optionee dies during such ninety (90) day
period) after the effective date of such termination. For the purposes of this
paragraph, the Optionee will be deemed employed by the Company if employed by a
Subsidiary of the Company.
6. NO RIGHTS AS STOCKHOLDER. The Optionee shall have no rights as a
stockholder in the Company with respect to any Option Shares prior to the date
of issuance to the Optionee of such shares. The Optionee shall be under no
obligation to exercise the Option in whole or in part.
7. MODIFICATION; SURRENDER. Subject to the terms and conditions, and
within the limitations of the Plan, the Committee may modify the Option or
accept its whole or partial surrender by the Optionee at any time or from time
to time.
8. AUTHORITY OF THE COMMITTEE. The Committee shall have full
authority to interpret the terms of the Plan, the Option and this Certificate.
The decision of the Committee on any such matter of interpretation or
construction shall be final and binding.
9. NO EMPLOYMENT AGREEMENT. This Certificate and the Option do not,
and shall not be deemed to, confer upon the Optionee any right with respect to
continuance of employment by the Company, nor limit in any way the right of the
Company to terminate the Optionee's employment at any time.
10. WITHHOLDING. The Company shall have the right to withhold from any
payment or delivery of shares to the Optionee, or to require the Optionee to
remit to the Company, an amount (to be withheld or paid in the discretion of
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the Company in cash, Common Stock or otherwise) sufficient to satisfy any
federal, state or local withholding tax liability relating to the Option or the
Option Shares prior to or simultaneously with the delivery of any certificate
or certificates for Option Shares.
11. OPTIONEE BOUND BY THE PLAN, ETC. The Option and its terms and
provisions are subject to the terms and conditions of the Plan and subject
further to the terms and conditions of this Certificate. The Optionee hereby
acknowledges receipt of a copy of the Plan, agrees to be bound by all the terms
and provisions of the Plan and this Certificate, and understands that, in the
event of any conflict between the terms of the Plan and of this Certificate,
the terms of the Plan shall control.
IN WITNESS WHEREOF, the Company has caused this Certificate to be
executed by the undersigned duly authorized officer.
LAI WORLDWIDE, INC.
By:
-----------------------------------
ACKNOWLEDGED AND ACCEPTED:
this ___ day of ___________, 1999.
----------------------------------
NAME
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EXHIBIT B
TO
EMPLOYMENT AGREEMENT WITH XXXXXXX XXXXX
DATED JANUARY __, 1999
RELEASE
WHEREAS, _______________________________ (the "Executive") is an
employee of Lamalie Associates, Inc. (the "Company") and is a party to the
Employment Agreement dated __________________ (the "Agreement");
WHEREAS, the Executive's employment has been terminated in accordance
with Section 8___ of the Agreement; and
WHEREAS, the Executive is required to sign this Release in order to
receive the payment of any compensation under Section 8 of the Agreement
following termination of employment.
NOW, THEREFORE, in consideration of the promises and agreements
contained herein and other good and valuable consideration, the sufficiency and
receipt of which are hereby acknowledged, and intending to be legally bound,
the Executive agrees as follows:
1. This Release is effective on the date hereof and will continue in
effect as provided herein.
2. In consideration of the payments to be made and the benefits to be
received by the Executive pursuant to the Agreement, which the Executive
acknowledges are in addition to payment and benefits to which the Executive
would be entitled to but for the Agreement, the Executive, for the Executive
and the Executive's dependents, successors, assigns, heirs, executors and
administrators (and the Executive and his and such persons' legal
representatives of every kind), hereby releases, dismisses, remises and forever
discharges the Company, its predecessors, parents, subsidiaries, divisions,
related or affiliated companies, officers, directors, stockholders, members,
employees, heirs, successors, assigns, representatives, agents and counsel
(collectively the "Released Party") from any and all arbitrations, claims,
including claims for attorney's fees, demands, damages, suits, proceedings,
actions and/or causes of action of any kind and every description, whether
known or unknown, which the Executive now has or may have had for, upon, or by
reason of any cause whatsoever ("claims"), against the Released Party,
including but not limited to:
(a) any and all claims arising out of or relating to Executive's
employment by or service with the Company and the Executive's
termination from the Company.
(b) any and all claims of discrimination, including but not
limited to claims of discrimination on the basis of sex, race, age,
national origin, marital status, religion or handicap, including,
specifically, but without limiting the generality of the foregoing,
any claims under the Age Discrimination in Employment Act, as amended,
Title VII of the Civil Rights Act of 1964, as amended, the Americans
with Disabilities Act; and
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(c) any and all claims of wrongful or unjust discharge or breach
of any contract or promise, express or implied.
3. The Executive understands and acknowledges that the Company does
not admit any violation of law, liability or invasion of any of the Executive
rights and that any such violation, liability or invasion is expressly denied.
The consideration provided for this Release is made for the purpose of settling
and extinguishing all claims and rights (and every other similar or dissimilar
matter) that the Executive ever had or now may have against the Company to the
extent provided in this Release. The Executive further agrees and acknowledges
that no representations, promises or inducements have been made that the
Company other than as appear in the Agreement.
4. The Executive further agrees and acknowledges that:
(a) The Release provided for herein releases claims to and
including the date of this Release;
(b) The Executive has been advised by the Company to consult with
legal counsel prior to executing this Release, has had an opportunity
to consult with and to be advised by legal counsel of the Executive's
choice, fully understands the terms of this Release, and enters into
this Release freely, voluntarily and intending to be found.
(c) The Executive has been given a period of 21 days to review and
consider the terms of this Release, prior to its execution and that
the Executive may use as much of the 21 day period as the Executive
desires; and
(d) The Executive may, within 7 days after execution, revoke this
Release. Revocation shall be made by delivering a written notice of
revocation to the Chief Financial Officer at the Company. For such
revocation to be effective, written notice must be actually received
by the Chief Financial Officer at the Company no later than the close
of business on the 7th day after the Executive executes this Release.
If the Executive does exercise the Executive's right to revoke this
Release, all of the terms and conditions of the Release shall be of no
force and effect and the Company shall not have any obligation to make
payments or provide benefits to the Executive as set forth in Sections
8 of the Agreement.
5. The Executive agrees that the Executive will never file a lawsuit
or other complaint asserting any claim that is released in this Release.
6. The Executive waives and releases any claim that the Executive has
or may have to reemployment after ________________________.
IN WITNESS WHEREOF, the Executive has executed and delivered this
Release on the date set forth below.
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Dated:
--------------------------------- -------------------------------------
Executive
22
