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EXHIBIT 10.14
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made and entered into as of this 27th day of
February, 1998, by and among LAMALIE ASSOCIATES, INC., a Florida corporation
("LAI"), WARD HOWELL INTERNATIONAL, INC., a Connecticut corporation and the
wholly-owned subsidiary of LAI (the "Company"), and NAME, residing at Address,
City, State Zip (the "Partner").
W I T N E S S E T H:
1. EMPLOYMENT
The Company hereby employs the Partner, and the Partner 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 the date first
above written and shall continue for a period of three years from the date of
this Agreement.
3. COMPENSATION
(a) Partner Compensation Plan. (i) All compensation to be paid by the
Company to the Partner shall be determined in accordance with the LAI Partner
Compensation Plan dated March 1, 1997 (the "Partner Compensation Plan") as
adopted by the Compensation Committee (the "Committee") of the Board of
Directors of LAI (the "LAI Board"). For a period of three (3) years following
the date of this Agreement, the Partner Compensation Plan applicable to the
Partner under this Agreement may be amended with respect to the Partner only
upon the affirmative vote of holders of two thirds (2/3) or more of the shares
of LAI Common Stock then held by former shareholders of Ward Howell
International, Inc., a Connecticut corporation ("Ward Howell") who are then
employees of the Company, if such shares were acquired by them in connection
with the Merger Agreement dated February 20, 1998 by and among LAI, the Company
and Ward Howell (the "Merger Agreement"), but excluding for this purpose all
such shares held by Michael Corey, Patrick Corey, Paul Hanson and Thomas Moran.
(ii) The foregoing to the contrary notwithstanding, for the period
January 1, 1998 through February 29, 1999, the Partner will be entitled to
receive compensation under the Partner Compensation Plan at the rate of 35% of
billings on the first $400,000 of billings and 50% of all billings in excess of
$400,000. Solely for purposes of determining the amount of billings for which
the Partner shall be credited in making the foregoing determination, the
Partner's billings at Ward Howell during January and February 1998 shall be
taken into account.
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(b) Base Salary. Subject to the terms of the Partner Compensation Plan,
the Company shall pay to the Partner as basic compensation for all services
rendered by the Partner during the term of this Agreement an initial basic
annualized salary of $Salary per year, payable monthly or in other more frequent
installments, as determined by the Company (the "Base Salary"). The Base Salary
shall be treated as an advance against billings generated by the Partner, as
more fully set forth in the Partner Compensation Plan.
(c) Bonuses. In addition to the Base Salary to be paid pursuant to
Section 3(b) of this Agreement, during the term of this Agreement or any renewal
or extension, the Company shall pay to the Partner as incentive compensation
monthly bonuses based on billings in accordance with the terms of the Partner
Compensation Plan. In addition, the Board, in its discretion, may award a bonus
or bonuses to the Partner at the Company's fiscal year end, also in accordance
with the terms of the Partner Compensation Plan.
(d) Stock Option Award. The Partner shall participate in LAI's 1998
Omnibus Stock and Incentive Plan as currently in effect ("the Omnibus Plan"), in
accordance with the terms thereof, through the grant on the date hereof of
options to purchase _____ shares of LAI's common stock at the closing price on
the Nasdaq Stock Market (NMS) on the date of grant (the "Options"). The Options
shall vest over a period of five (5) years at the rate of 20% per year, and
shall have a term of ten (10) years. Attached hereto as Exhibit A is a Stock
Option Certificate in the form to be issued to evidence the Options. The parties
acknowledge that the Options will be issued subject to obtaining approval of the
Omnibus Plan by LAI's stockholders at their 1998 annual meeting. If such
approval is not obtained, LAI will cause the Options to be reissued promptly
thereafter on substantially the same terms and conditions as those specified in
the first two sentences of this Section 3(d), including the use of the initial
date of grant as the starting date for vesting purposes and the same exercise
price as under the original Options; provided, however, in the event of such a
re-issuance, the parties recognize the options so re-issued will not be able to
qualify as "incentive stock options" within the meaning of Section 422 of the
Internal Revenue Code of 1986, as amended.
(e) Reimbursement. The Company shall reimburse the Partner, in accordance
with the Company's policies and practices for Partners, for all reasonable
expenses incurred by the Partner in the performance of the Partner's duties
under this Agreement, provided, however, that the Partner has furnished to the
Company an itemized account, reasonably satisfactory to the Company, in
substantiation of such expenditures.
(f) Other Benefits. The Partner 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 Partners of the Company which
shall be the same as the benefits provided by LAI to its Partners.
(g) Other Incentive and Benefit Plans. The Partner 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
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other bonus, pension or profit sharing plans now existing or hereafter
established by the Company or LAI from time to time for its Partners.
4. DUTIES
(a) General. The Partner is engaged as a Partner of the Company. The
Partner's duties and responsibilities shall be commensurate with the Partner
Role Definition as in effect from time to time (the "Partner Role Definition").
The Partner acknowledges having previously received a copy of the Partner Role
Definition as currently in effect in the form attached as Exhibit B to this
Agreement. Specific duties and responsibilities consistent with the Partner Role
Definition may be assigned to the Partner by the Board of Directors of the
Company (the "Board") or the LAI Board from time to time.
(b) Home Office. The parties acknowledge that the Partner will render
services hereunder principally from the Company's office located in ______ (the
"Partner's Home Office"). The parties recognize that effectively carrying out
the duties and responsibilities of the Partner Role Definition and, accordingly,
the effective performance of the Partner's duties under this Agreement, will
involve significant amounts of travel away from the locale of the Partner's Home
Office. However, the Partner shall not be obligated to relocate to an office
from which the Partner is to principally render services located outside of the
general locale of the Partner's Home Office.
5. EXTENT OF SERVICES
During the term of the Partner's employment under this Agreement, the
Partner 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 Partner's duties pursuant to this Agreement.
6. FACILITIES
The Company shall provide the Partner with a fully furnished office in
the Partner's Home Office. The facilities of the Company and LAI shall be
generally available to the Partner in the performance of the Partner's duties
pursuant to this Agreement, it being understood and contemplated by the parties
that all equipment, supplies and office personnel reasonably required for the
performance of the Partner's duties under this Agreement shall be provided by
and at the sole expense of the Company.
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7. ILLNESS OR INCAPACITY, TERMINATION ON DEATH, ETC.
(a) Death. If the Partner dies during the term of the Partner's
employment, the Company shall pay to the estate of the Partner within 30 days
after the date of death such Base Salary and any bonus compensation earned as
would otherwise have been payable to the Partner up to the end of the month in
which the Partner's death occurs and other compensation which would be earned
upon collection of accounts receivable resulting from work performed prior to
the date of termination pursuant to the Partner Compensation Plan but not yet
paid. After receiving the payments provided in this Section 7(a), the Partner
and the Partner's estate shall have no further rights under this Agreement
(other than those rights already accrued, which shall specifically include the
vesting of options as set forth in Section 8(d) hereof).
(b) Disability. (i) During any period of disability, illness or
incapacity during the term of this Agreement which renders the Partner at least
temporarily unable to substantially perform the services required under this
Agreement, the Partner shall receive the Base Salary payable under Section 3(b)
of this Agreement plus any bonus compensation earned and other compensation
which would be earned upon collection of accounts receivable resulting from work
performed prior to the date of termination for Permanent Disability pursuant to
the Partner Compensation Plan but not yet paid, less any cash benefits received
by him under any disability insurance paid for by the Company. Upon the
Partner's "Permanent Disability" (as defined below), which Permanent Disability
continues during the payment periods specified herein, the Company shall pay to
the Partner the Base Salary payable under Section 3(b) of this Agreement plus
any bonus compensation earned and other compensation which would be earned upon
collection of accounts receivable resulting from work performed prior to the
date of termination for Permanent Disability pursuant to the Partner
Compensation Plan to the end of the month in which the Partner is terminated for
Permanent Disability as set forth below, less any cash benefits received by him
under any disability insurance paid for by the Company. The Partner may be
entitled to receive payments under any disability income insurance which may be
carried by, provided by or paid for by the Company from time to time. Upon
"Permanent Disability" (as that term is defined in Section 7(b)(ii) below) of
the Partner, except as provided in this Section 7(b) and in Section 8(d) below,
all rights of the Partner under this Agreement shall terminate (other than
rights already accrued).
(ii) The term "Permanent Disability" as used in this Agreement
shall mean, in the event a disability insurance policy is provided or paid for
by the Company covering the Partner at such time and is in full force and
effect, the definition of permanent disability set forth in such policy. 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
Partner, 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 Partner'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 Partner, the parties hereto agree to abide by the decision of
a panel of three physicians. The Partner
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and Company shall each appoint one member, and the third member of the panel
shall be appointed by the other two members. The Partner agrees to make himself
available for and submit to reasonable examinations by such physicians as may be
directed by the Company. Failure to submit to any such examination may be
treated by the Company as an admission by the Partner of Permanent Disability.
8. OTHER TERMINATIONS
(a) By the Partner. (i) The Partner may terminate the Partner's
employment hereunder upon giving at least two weeks' prior written notice.
(ii) If the Partner gives notice pursuant to Section 8(a) above,
the Company shall have the right (but not the obligation) to relieve the
Partner, in whole or in part, of the Partner's duties under this Agreement, or
direct the Partner to no longer perform such duties, or direct that the Partner
should no longer report to work, or any combination of the foregoing (an "Early
Termination"). In any such event, the Partner shall be entitled to receive only
the Base Salary and any bonus compensation earned and other compensation which
would be earned upon collection of accounts receivable resulting from work
performed prior to the date of termination pursuant to the Partner Compensation
Plan but not yet paid, as would otherwise have been payable to the Partner up to
the date on which the Company provides for Early Termination or, if there is no
Early Termination, the expiration of the two week minimum notice period. If the
Partner gives notice pursuant to Section 8(a), upon receiving the payments
provided for under this Section 8(a), all rights of the Partner to receive
compensation or other payments or benefits under this Agreement (other than
rights already accrued) shall terminate.
(b) Termination for "Good Cause". (i) Except as otherwise provided in
this Agreement, the Company may terminate the employment of the Partner
hereunder only for "Good Cause," which shall mean (a) the continued refusal or
failure of the Partner to make reasonable efforts to carry out his duties as a
Partner with the Company as set forth in the Partner Role Definition as in
effect on the date of this Agreement and attached as Exhibit B to this Agreement
(other than any failure due to physical or mental incapacity), as determined in
the reasonable discretion of the LAI Board or the Committee, which has not
ceased within a reasonable period (not to exceed 30 days) after a written demand
for substantial performance is delivered to the Partner by or on behalf of the
Company, which demand shall identify in reasonable detail the manner in which
the Company believes that the Partner has not performed such duties and
indicates the steps required to be taken to cure such refusal or failure, (b)
willful misconduct materially and demonstrably injurious to the Company,
financially or otherwise, as determined in the reasonable discretion of the LAI
Board or the Committee or (c) the Partner's conviction of or the entering of a
plea of nolo contendere to either a felony (excepting any felony traffic
offenses, including driving under the influence of alcohol or drugs) or any
crime directly related to the Partner's employment by the Company which causes a
substantial detriment to the Company. With respect to any proposed termination
pursuant to clauses (a) or (b) of the preceding sentence, the Partner may
request in writing an opportunity to meet with the LAI Board or the Committee,
at or prior to the meeting at which the LAI Board or the Committee will consider
whether to terminate this Agreement for Good Cause, to review the matters set
forth
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in the written notice. No termination for Good Cause shall be effected until
after any such requested meeting has taken place.
(ii) If the employment of the Partner is terminated for Good
Cause under Section 8(b)(i) of this Agreement, the Company shall pay to the
Partner any Base Salary earned prior to the effective date of termination
specified by the LAI Board or the Committee but not yet paid and any bonus
compensation earned and other compensation which would be earned upon collection
of accounts receivable resulting from work performed prior to the date of
termination pursuant to the Partner Compensation Plan but not paid to the
Partner prior to the effective date of such termination. Under such
circumstances, such payments shall be in full and complete discharge of any and
all liabilities or obligations of the Company to the Partner hereunder, and the
Partner shall be entitled to no further benefits under this Agreement (other
than rights already accrued).
(iii) Termination by the Company of the employment of the Partner
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 with or without
notice to terminate the Partner's employment Without Good Cause pursuant to the
provisions of this Section 8(c). If the Company terminates the Partner's
employment with notice, such notice may not provide a termination date more than
two weeks after the date on which the notice is delivered to the Partner. If the
Company shall terminate the employment of the Partner 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 Partner shall
continue to receive the Base Salary until the end of the term of this Agreement
as provided for in Section 2 or for a period of six months, whichever is longer,
plus any bonus compensation earned and other compensation which would be earned
upon collection of accounts receivable resulting from work performed prior to
the date of such termination pursuant to the terms of the Partner Compensation
Plan but not yet paid; provided that, the Company shall have the right to
relieve the Partner, in whole or in part, of the Partner's duties under this
Agreement, or direct the Partner to no longer perform such duties, or direct
that the Partner no longer be required to report to work, or any combination of
the foregoing, in each case prior to the Accelerated Termination Date. If the
Partner is terminated Without Good Cause pursuant to this provision, the Partner
may no longer be required by the Company to perform his duties or report to work
after the Accelerated Termination Date.
(ii) The parties agree that, because there can be no exact
measure of the damage that would occur to the Partner as a result of a
termination by the Company of the Partner's employment Without Good Cause, the
unearned 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(e) 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 Partner's
employment Without Good Cause.
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(d) Vesting of Options. Upon any termination of the Partner's employment
for any reason (including without limitation death or Permanent Disability)
other than a voluntary termination by the Partner pursuant to Section 8(a)
hereof or by the Company for Good Cause pursuant to Section 8(b) hereof, any and
all vesting requirements or conditions affecting the Options shall be deemed to
be fully satisfied or to have fully accrued and any risk of forfeiture with
respect thereto shall be deemed to have lapsed.
(e) Release. Payment of any compensation to the Partner under this
Section 8 following termination of employment other than any Base Salary or
bonus compensation earned and other compensation which would be earned upon
collection of accounts receivable resulting from work performed prior to the
date of termination pursuant to the Partner Compensation Plan but not yet paid
shall be conditioned upon the prior receipt by the Company of a release executed
by the Partner in substantially the form attached to this Agreement as Exhibit
C.
(f) Effect on Certain Covenants. Notwithstanding any termination of the
Partner's employment, the Partner's covenants set forth in Sections 10, 11 and
12 are intended to and shall remain in full force and effect.
9. DISCLOSURE
The Partner agrees that during the term of the Partner's employment by
the Company, the Partner will disclose only to the Company all ideas, methods,
plans, developments or improvements known by him which relate to the business of
the Company acquired by the Partner during the Partner'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.
10. CONFIDENTIALITY
The Partner agrees to keep in strict secrecy and confidence any and all
information the Partner assimilates or to which the Partner has access during
the Partner'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 candidates and companies, including but not limited to that available on
the Company's CMS system (collectively, the "Confidential Information"). The
Partner agrees that both during and after the term of the Partner's employment
by the Company, the Partner will not, without the prior written consent of the
Company, disclose any Confidential Information to any third person, partnership,
joint venture, company, corporation
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or other organization. The foregoing covenants shall not be breached to the
extent that any such Confidential Information was known to the Partner prior to
his employment with the Company or becomes a matter of general knowledge other
than through a breach by the Partner. Further, the provisions of this Section 10
shall not apply to the Partner to the extent that they would prevent the Partner
from utilizing any information known to him personally and contained in the
Partner's personal business plan or contained in the Partner's personal Rolodex
or similar personal property about pending or prior executive searches for which
the Partner was the originating or engagement partner and which will result in
an obligation to pay to the Company the liquidated damages amounts set forth in
Section 12(b) hereof (the "Personally Developed Information"). The foregoing
exceptions with respect to the use of Personally Developed Information and the
Partner's personal property shall not relieve the Partner of the Partner's
obligation upon termination of employment with the Company to promptly return to
the Company any and all Company property, including personal property, software,
files and materials used or developed by the Partner during the Partner's
employment with the Company or Ward Howell (other than Personally Developed
Information), regardless of whether such materials are in analog, digital, paper
or electronic documents, files or other media forms.
11. NONSOLICITATION OF EMPLOYEES
(a) General. The Partner hereby acknowledges that, during and as a result
of the Partner's employment by the Company, the Partner has received and shall
continue to receive: (1) special training and education with respect to
executive search research and methods and other related matters, and (2) access
to confidential information and business and professional contacts, including
contacts with clients and prospective clients of the Company. In consideration
of the special and unique opportunities afforded to the Partner by the Company
as a result of the Partner's employment, as outlined in the previous sentence,
the Partner agrees to the restrictive covenants in this Section 11. The parties
hereto also acknowledge that the restrictive covenants in this Section 11 are
being entered into between the parties in connection with and as a result of the
transactions contemplated by the Merger Agreement.
(b) Nonsolicitation of Employees. During the term of the Partner's
employment, 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 years after the termination of the Partner's
employment with the Company for any reason other than termination by the Company
Without Good Cause as defined in Section 8(c) of this Agreement, the Partner
shall not, directly or indirectly, either as an individual, partner, officer,
director, stockholder, executive, advisor, independent contractor, joint
venturer, consultant, agent, employee, representative or salesman for any
person, firm, partnership, corporation or other entity, or otherwise (1) solicit
any of the current or former employees, consultants, directors or officers of
the Company, LAI or any of their affiliates to terminate any business
relationship with the Company, LAI or any of their 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, LAI or any
of their affiliates, unless such persons have been separated from any
relationship with the Company, LAI or any of their affiliates for at least six
(6) months; unless any such employees, consultants, directors or officers of the
Company,
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LAI or any of their affiliates are or have been terminated by the Company, LAI
or any of their affiliates.
(c) Extension of Time. The period of time during which the Partner is
prohibited from engaging in certain business practices pursuant to Section 11
shall be extended by any length of time during which the Partner is in breach of
such covenant.
(d) Essential Element. It is understood by and between the parties hereto
that the foregoing restrictive covenants set forth in this Section 11 are
essential elements of this Agreement, and that, but for the agreement of the
Partner to comply with such covenants, the Company would not have agreed to
enter into this Agreement. Such covenants by the Partner shall be construed as
agreements independent of any other provision in this Agreement.
12. REMEDIES
(a) Specific Performance. The Partner agrees that damages at law will
be an insufficient remedy to the Company if the Partner violates the terms of
Sections 9, 10 or 11 of this Agreement and that the Company would suffer
irreparable damage as a result of any 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 hereunder. The parties consent to the
modification or termination of any injunctive relief obtained pursuant to this
Section 12(a) in accordance with and upon the entry of a final decision obtained
in arbitration pursuant to Section 12(c) of this Agreement with respect to the
subject matter of any such injunction.
(b) Liquidated Damages. The Partner agrees that no exact measure of the
damage caused to the Company if this Agreement is terminated by the Partner
pursuant to Section 8(a) hereof or by the Company for Good Cause as defined in
Section 8(b) hereof can be determined, and, therefore, for the purpose of
liquidating the amount of damages and not as a penalty, it is agreed that in the
case of a termination of this Agreement by the Partner pursuant to Section 8(a)
hereof or by the Company for Good Cause as defined in Section 8(b) hereof, and
in addition to the injunctive relief provided for by Section 12(a) above, the
damages caused shall be and are fixed, liquidated and determined at an amount,
payable in cash, which shall be equal to the sum of (i), (ii) and (iii) below;
provided, however, that this Section 12(b) shall not apply in the case of
termination of this Agreement by the Company for Good Cause as defined in
Section 8(b) hereof if such termination for Good Cause is based on the Partner's
failure to comply with the second or fourth bullet points under
"Professionalism", the sixth bullet point under "Quality," or any of the bullet
points under "Partnership" set forth in the Partner Role Definition attached to
this Agreement as Exhibit B.
(i) If the date of termination occurs on or before one year after
the date of execution of this Agreement, a lump sum cash payment in the amount
of $Liquidated Damages (the "Lump Sum Liquidated Damage Payment"); if the
termination date occurs more than one year after the date of execution of this
Agreement, but no later than the end of the second year after such execution, a
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lump sum cash payment equal to two-thirds (2/3) of the Lump Sum Liquidated
Damage Payment; if the termination date occurs more than two years after the
date of execution of this Agreement but before the expiration of the three-year
term of this Agreement, a lump sum cash payment equal to one-third (1/3) of the
Lump Sum Liquidated Damage Payment; and if the termination date occurs more than
three years after the date of execution of this Agreement, no Lump Sum
Liquidated Damage Payment shall be made.
(ii) Fifty percent (50%) of the gross fee revenues derived by
the Partner personally or by any entity with which Partner becomes employed or
otherwise associated (whichever is greater) from any executive search work
performed or assignment obtained as a result of or in connection with
Competition by the Partner with the Company as defined below during the
remainder of the unexpired term of this Agreement (the "Competition Period"),
including revenues paid later than the Competition Period as a result of work
performed during the Competition Period, to the extent that such revenues are
generated from existing clients of LAI or any of its affiliates as of the date
of this Agreement or from new clients of the Company, LAI or any of their
affiliates acquired after the date of this Agreement which are not set forth on
Exhibit D hereto. If the date of termination occurs within 90 days after the
occurrence of any "Pivotal Change in Control of LAI," as that term is defined in
Section 12(b)(v), the Partner's obligation to make payment to the Company of the
amounts set forth in this Section 12(b)(ii) shall terminate.
(iii) Thirty-five percent (35%) of the gross fee revenues derived
by the Partner personally or by any entity with which Partner becomes employed
or otherwise associated (whichever is greater) from any executive search work
performed or assignment obtained as a result of or in connection with
Competition by the Partner with the Company as defined below during the
remainder of the unexpired term of this Agreement, including revenues paid later
than the Competition Period as a result of work performed during the Competition
Period, to the extent that such revenues are generated from the clients of Ward
Howell as listed on Exhibit D. If the date of termination occurs within 90 days
after the occurrence of any "Pivotal Change in Control of LAI," as that term is
defined in Section 12(b)(v), the Partner's obligation to make payment to the
Company of the amounts set forth in this Section 12(b)(iii) shall terminate.
(iv) "Competition" by the Partner with the Company for purposes
of this Section 12 shall be defined as any of the following actions taken by the
Partner, directly or indirectly, either as an individual, partner, officer,
director, stockholder, executive, advisor, independent contractor, joint
venturer, consultant, agent, employee, representative or salesman for any
person, firm, partnership, corporation or other entity, or otherwise, during the
Competition Period: (1) soliciting or counseling any third person, partnership,
joint venture, company, corporation, association or other organization that is
or was a client (including for purposes of this clause (1) and not for purposes
of clause (2) below, any individual who is or was an employee, principal,
partner, officer or director of a client) of the Company, LAI, Ward Howell, or
any of their affiliates, regardless of such person's or entity's location, to
terminate any business relationship with the Company, LAI, Ward Howell or any of
their affiliates and/or to commence a similar business relationship with any
other individual or entity; (2) accepting, with or without solicitation, any
business from any third person, partnership, joint venture, company,
corporation, association or other organization that is or was a client of the
Company, LAI, Ward Howell or any of their affiliates, regardless of such
person's or entity's location.
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(v) "Pivotal Change in Control of LAI" shall mean any of the
following: (1) the acquisition of "beneficial ownership" as that term is defined
in Rule 13d-3 under the Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder (the "1934 Act") of LAI's
securities comprising 51% or more of the combined voting power of LAI's
outstanding securities by any "person" (as that term is used in Sections 13(d)
and 14(d)(2) of the 1934 Act), but shall not include any acquisition or
ownership by (X) LAI, (Y) any trustee or fiduciary acting in that capacity for
an employee benefit plan sponsored by LAI or (Z) persons who prior to any such
acquisition were employees of the Company, LAI and any subsidiary of the Company
or LAI and, in each of the foregoing, each such person's "affiliates" and
"associates" (as those terms are defined under the 1934 Act), (2) the failure of
the "Incumbent Directors" (as defined below) to constitute at least a majority
of all directors of LAI (for these purposes, "Incumbent Directors" means
individuals who were the directors of LAI on January 1, 1998, and, after his or
her election, any individual becoming a director subsequent to January 1, 1998,
whose election, or nomination for election by LAI's stockholders, is approved by
a vote of at least a majority of the directors then comprising the Incumbent
Directors, except that no individual shall be considered an Incumbent Director
who is not recommended by management and whose initial assumption of office as a
director is in connection with an actual or threatened "election contest"
relating to the "election of directors" of LAI, as such terms are used in Rule
14a-11 of Regulation 14A under the 1934 Act; (3) the closing of a sale of all or
substantially all of the assets of LAI; or (4) the closing of a merger or
consolidation involving LAI in which LAI is not the surviving corporation and
then only if immediately following such merger or consolidation, less than a
majority of the surviving corporation's outstanding voting stock is held by
persons who were stockholders of LAI immediately prior to such merger or
consolidation.
(c) Mandatory Arbitration.
(i) General. Should any dispute arise among or between one or
more of the parties to this Agreement relating to this Agreement, the
interpretation of any provision hereof, or any of the rights or obligations
hereunder of any of the parties to this Agreement, then at the election of any
party involved in such dispute, such dispute shall be resolved finally by a
single arbitrator (who, to the extent reasonably practical in accordance with
the rules and procedures of the American Arbitration Association, will be a
retired judge) in an arbitration proceeding conforming to the rules of the
American Arbitration Association applicable to commercial arbitrations. If the
arbitration proceeding would qualify as an expedited arbitration proceeding
pursuant to the rules of the American Arbitration Association based on the
amount in controversy, the rules applicable to expedited arbitrations shall
apply.
(ii) Appointment of Arbitrator. The arbitrator shall be appointed
as follows: the party not electing to submit the matter to arbitration (the
"Non-Electing Party") shall provide to the other (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.
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(iii) Location of Arbitration. The arbitration shall take place
in the closest of Atlanta, Georgia, Chicago, Illinois, Houston, Texas, Los
Angeles, California, New York, New York, Phoenix, Arizona or Tampa, Florida, to
the city in which the Partner's Home Office is located.
(iv) Effect of Arbitration. The decision of such 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(a)
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 the 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.
(v) 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, that 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.
13. MISCELLANEOUS
(a) Waiver of Breach. The waiver by either party to this Agreement of a
breach of 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 Partner represents and warrants
that the execution of this Agreement by him and the Partner's performance of the
Partner'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 Partner is a party or by which the Partner 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 Partner 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
13
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, Etc. The headings contained in this Agreement are for
reference purposes only and shall not affect the meaning or interpretation of
this Agreement. Use of the term "Partner" is for the convenience of the parties
and is not intended to alter the employee-employer relationship between the
Company as a corporation and the Partner as an employee of a corporation
described in 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).
(g) 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 12, 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
or in any state or federal court located in Chicago, Illinois, Los Angeles,
California and New York, New York. 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.
(h) Severability. Any provision of this Agreement which is determined
pursuant to arbitration under Section 12 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 12, 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.
14
(i) Enforcement. If after written 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 litigation
or arbitration, 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 or arbitration 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.
(j) 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
3903 Northdale Boulevard
Tampa, FL 33624
Attn: Chief Financial Officer
Fax: (813) 962-2138
To the Partner at the Partner's address as set forth on the first page of
this Agreement, or to such other address as either party may specify by written
notice to the other.
(k) LAI Guaranty. LAI unconditionally guarantees the full and prompt
performance by the Company of all of the Company's duties and obligations under
this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year first above written.
ATTEST: LAMALIE ASSOCIATES, INC.
(Corporate Seal)
________________________________ By:____________________________________
Secretary Robert L. Pearson, President
15
"LAI"
ATTEST: WARD HOWELL INTERNATIONAL, INC.
(Corporate Seal)
By:
- -------------------------------- -------------------------------
Secretary
"Company"
Witnesses:
- -------------------------------- --------------------------------------
Shareholder
- --------------------------------
As to Partner
"Partner"