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EXHIBIT 10.15
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made and entered into this 15th day of
September, 1998, by and between LAMALIE ASSOCIATES, INC., a Florida corporation
(the "Company"), and PATRICK J. MCDONNELL, residing at 1110 North Sheridan Road,
Lake Forest, Illinois 60045 (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 the date first
above written and shall continue through September 14, 2001; provided, however,
that beginning on September 15, 2000 and on each September 15 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, so that on each
Renewal Date the then remaining unexpired term of this Agreement shall be two
years, 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
$500,000 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. The Executive shall also receive, along with such periodic payments of
Base Salary, on a monthly basis a pro rata portion of $25,000 per year, which
payments shall be treated as an advance against the annual Performance Bonus
which may be paid to the Executive pursuant to Section 3(c)of this Agreement
(the "Advance Bonus").
(b) Sign On Benefit. (i) Upon the execution of this Agreement, the
Executive shall receive from the Company a lump sum payment equal to $525,000
(the "Sign On Benefit").
(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
September 15, 2001, the Executive is obligated to repay the following percentage
of the Sign On Benefit to the Company in cash immediately upon such termination:
(A) 100% if employment is terminated between September 15, 1998 and September
14, 1999, (B) 66 2/3 % if employment is terminated between September 15, 1999
and September 15, 2000, and (C) 33 1/3% if employment is terminated between
September 15, 2000 and September 15, 2001. Any such repayments, if unpaid, 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 Sign On Benefit from
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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 any right to collect the Sign On
Benefit 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
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. Initially, such plan shall provide for a Performance Bonus equal to
between 0% and 120% of Base Salary, with a "Target Bonus" equal to 65% 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, the amount of any Performance Bonus shall be adjusted to take
into account the portion of the year during which the Executive was employed by
the Company.
(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 by the Committee of options
to purchase 200,000 shares of the Company's common stock (the "Options"). The
date of grant for the Options shall be the day two (2) business days after the
press release or releases are issued by the Company announcing (1) the
Executive's hiring and (2) the Company's financial results for the quarter ended
August 31, 1998. The initial exercise price for the Options shall be 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; Life Insurance. 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. In addition, during the term of this
Agreement, the Company shall provide the Executive term life insurance in
addition to that provided by the Company's standard benefits package for members
of senior management, so that the total amount of term life insurance provided
by the Company to the Executive shall be one million dollars in face amount;
provided, however, that in obtaining such term life insurance, the Company shall
not be obligated to pay rates in excess of the standard rates for male
nonsmokers the same age as the Executive.
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(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.
(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 as the Chief Operating Officer and President
of the Company and initially shall be elected as a director of the Company. In
addition, at the request of the Board, the Executive shall serve in the same
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 Executive Officer. The Executive's duties and
responsibilities shall be commensurate with those customarily associated with
the chief operating officer and president of a corporation comparable to the
Company, with such specific duties and powers as shall be assigned by the Board.
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
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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.
(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. The Executive shall also be
entitled to be provided with an executive assistant of his choice, who shall be
compensated at her current salary plus a reasonable sign on inducement to join
the Company in an amount to be agreed upon by the Executive and the Company.
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 during the unexpired
term of this Agreement 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)(iii) 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 over the unexpired term of
this Agreement if the Executive had not become permanently disabled and had
remained employed by the Company
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hereunder. Except as 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. (i) 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)(i),
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)(i), upon receiving the payment provided for under
this Section 8(a)(i), 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.
(ii) If the Executive has not been offered the position of
Chief Executive Officer of the Company on or before the third anniversary of the
date of this Agreement, the Executive shall have the right to terminate the
Executive's employment hereunder for a period of sixty (60) days after the third
anniversary of the date of this Agreement, upon giving at least thirty (30)
days' prior written notice to the Company. If the Executive gives notice
pursuant to this Section 8(a)(ii), 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 at the end of such 30 day notice period
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a lump sum payment which shall be equal to one (1) year's Base Salary. If the
Executive gives notice pursuant to this Section 8(a)(ii), upon receiving the
payment provided for under this Section 8(a)(ii), 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) the substantial, continued
and unjustified refusal or failure of the Executive substantially to perform his
duties with the Company to the extent of his ability to do so (other than any
failure due to physical or mental incapacity) or (b) willful misconduct
materially and demonstrably injurious to the Company, financially or otherwise,
in each case, as determined in the reasonable discretion of the Board, but with
respect to each of the foregoing bases for termination specified in the
preceding clause, only if (1) the Executive has been provided with written
notice from the Board of any assertion that there is a basis for termination for
Good Cause which notice shall specify in reasonable detail specific facts
regarding any such assertion and the Executive has been given a reasonable
period of time within which to remedy or cure the problem or complaint (which
period of time shall in no event exceed 60 days after the receipt of such
notice), (2) an additional written notice is provided to the Executive 10 days
before the Board meets to consider making a determination that this Agreement
will be terminated for Good Cause, (3) at or prior to the meeting of the Board
to consider the matters described in the written notice concerning the upcoming
meeting of the Board, an opportunity is provided to the Executive and his
counsel to be heard by the Board with respect to the matters described in the
written notice, before it acts with respect to such matter, (4) any resolution
or other action by the Board with respect to any deliberation regarding or
decision to terminate the Executive for Good Cause is duly adopted by a vote of
a majority of the entire Board at a meeting of the Board duly called and held
and (5) the Executive is promptly provided with a copy of the resolution or
other corporate action taken with respect to such termination. No act or failure
to act by the Executive shall be considered willful unless done or omitted to be
done by him not in good faith and without reasonable belief that his action or
omission was in the best interests of the Company.
(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") but not during the six month and 60 day period
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following the occurrence of a "Change in Control" as defined in Section 8(d)(i)
of this Agreement, the Executive, until the date which is two (2) years 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)(iii) 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,
minus (3) an equal monthly pro rata portion of an amount of cash equal to the
Sign On Benefit received by the Executive pursuant to Section 3(b) hereof;
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) 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 and during the six month and 60 day period
following the occurrence of a Change in Control as defined in Section 8(d) of
this Agreement, the Executive shall receive in cash a lump sum payment in an
amount equal to the sum of (1) two times the annual Base Salary then in effect,
(2) two times 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)(iii) of this Agreement, the "Termination Target Bonus") or 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 such
termination Without Good Cause occurs and (3) the additional payments necessary
to discharge certain tax liabilities (the "Gross Up") as that term is defined in
Section 13 of this Agreement; 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.
(iii) 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 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)(iii), 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), if applicable, or paid in a lump sum
pursuant to Section 8(c)(ii), if applicable.
(iv) 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(g) of this Agreement, also shall be deemed to constitute
full consideration for any such
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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) Termination Following Change of Control. (i) For purposes of this
Agreement, a "Change in Control" shall mean the first to occur of:
(1) a change in control of the Company of a nature that is
required, pursuant to the Securities Exchange Act of 1934 (the
"1934 Act"), to be reported in response to Item 1(a) of a
Current Report on Form 8-K or Item 6(e) of Schedule 14A under
the 1934 Act (in each case under this Agreement, references to
provisions of the 1934 Act and the rules and regulations
promulgated thereunder being understood to refer to such law,
rules and regulations as the same are in effect on April 1,
1997); or
(2) the acquisition of "beneficial ownership" (as defined in Rule
13d-3 under the 1934 Act) of the Company's securities
comprising 35% or more of the combined voting power of the
Company's outstanding securities by any "person" (as that term
is used in Sections 13(d) and 14(d)(2) of the 1934 Act and the
rules and regulations promulgated thereunder, but not including
the Company or any trustee or fiduciary acting in that capacity
for an employee benefit plan sponsored by the Company) and such
person's "affiliates" and "associates" (as those terms are
defined under the 1934 Act), but excluding any ownership by the
Executive and his affiliates and associates; or
(3) the failure of the "Incumbent Directors" (as defined below) to
constitute at least a majority of all directors of the Company
(for these purposes, "Incumbent Directors" means individuals
who were the directors of the Company on September 1, 1998,
and, after his or her election, any individual becoming a
director subsequent to September 1, 1998, whose election, or
nomination for election by the Company's stockholders, is
approved by a vote of at least two-thirds 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 the Company, as such terms are used in Rule
14a-11 of Regulation 14A under the 1934 Act); or
(4) the closing of a sale of all or substantially all of the assets
of the Company;
(5) the Company's adoption of a plan of dissolution or liquidation;
or
(6) the closing of a merger or consolidation involving the Company
in which the Company is not the surviving corporation or if,
immediately following such merger or consolidation, less than
sixty-six and two-thirds (66 2/3%) of the surviving
corporation's outstanding voting stock is held or is
anticipated to be held by persons who are stockholders of the
Company immediately prior to such merger or consolidation.
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(ii) Six months after the occurrence of a Change of Control,
the Executive shall have the right, exercisable for a period of 60 days
thereafter by delivering a written statement to that effect to the Company, to
immediately terminate this Agreement and, upon such delivery, the Executive
shall have the right to receive and the Company shall be obligated to pay to the
Executive in cash a lump sum payment in an amount equal to the sum of (1) two
times the annual Base Salary then in effect, (2) two times the Target Bonus
payable to the Executive under Section 3(c) of this Agreement or 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 exercises his rights to terminate his employment under this Section
8(d)(ii) and (3) the additional payments necessary to discharge certain tax
liabilities (the "Gross Up") as that term is defined in Section 13 of this
Agreement (the sum of the foregoing amounts other than the Gross Up being
referred to as the "Change of Control Termination Payment"). If the Executive
fails to exercise his rights under this Section 8(d)(ii) within the 60 day
period specified in the first sentence of this Section 8(d)(ii), such rights
shall expire and be of no further force or effect.
(e) Certain Rights Mutually Exclusive. The provisions of Section
8(c)(i) and Section 8(d) are mutually exclusive, provided, however, that if
during the payout period under Section 8(c)(i), there shall be a Change in
Control as defined in Section 8(d)(i), then the Executive shall be entitled to
receive a lump sum payment equal to the sum of (1) the amounts remaining to be
paid pursuant to Section 8(c)(i) on the date of the Change in Control and (2)
the additional payments necessary to discharge certain tax liabilities (the
"Gross Up") as that term is defined in Section 13 of this Agreement. The
triggering of the lump sum payment requirements of Section 8(d) or this Section
8(e) shall cause the provisions of Section 8(c)(i) to become inoperative.
(f) 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.
(g) 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.
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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 candidates and companies, including but not limited to that available on
the Company's CMS system (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 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 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.
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(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 the
Company is obligated to make payments of Base Salary or other compensation in a
lump sum, for the number of years or fractions thereof equal to the number of
years or fractions thereof of Base Salary or other compensation being paid in a
lump sum.
(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, 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.
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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. PAYMENT OF EXCISE TAXES
(a) Payment of Excise Taxes. If the Executive is to receive any (1)
Change of Control Payment under Section 8(d) of this Agreement, (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 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 under this Section 13) shall be equal to the Payments.
(b) Certain Adjustment Payments. 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. Appropriate adjustments shall be computed (without interest
but with additional Gross Up, if applicable) by such tax counsel based upon the
amount of the Excise Tax finally determined by the Internal Revenue Service or a
court of law; 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.
14. 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
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resolved by arbitration as provided in this Agreement. This agreement to
arbitrate will survive the recission 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 14 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 the scope of this Section 14, 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 15(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.
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(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.
15. 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 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) No Duty to Mitigate. The Executive shall be under no duty to
mitigate any loss of income as result of the termination of his employment
hereunder and any payments due the Executive upon termination of employment
shall not be reduced in respect of any other employment compensation received by
the Executive following such termination.
(g) 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).
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(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 14, 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.
(i) Severability. Any provision of this Agreement which is determined
pursuant to arbitration under Section 14 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 14, 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
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lower rate as may be required to avoid any limit imposed by applicable law)
commencing 30 days after any such expenses are incurred.
(l) 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.
(m) 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 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.
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
EXECUTIVE
Witnesses:
- -------------------------------- -------------------------------
PATRICK J. MCDONNELL
- --------------------------------
As to Executive
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EXHIBIT A
TO
EMPLOYMENT AGREEMENT WITH PATRICK MCDONNELL
DATED SEPTEMBER 15, 1998
STOCK OPTION AGREEMENT
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LAMALIE ASSOCIATES, INC.
1998 OMNIBUS STOCK AND INCENTIVE PLAN
STOCK OPTION CERTIFICATE
Date Granted: , 1998 Option Certificate No.: NISO-
---------- ----------
NON-INCENTIVE STOCK OPTION TO PURCHASE SHARES AT $ XYZ PER SHARE
-----
GRANTED TO:
-------------------------
THIS IS TO CERTIFY THAT, pursuant to the provisions of the Lamalie
Associates, Inc. 1998 Omnibus Stock and Incentive Plan (the "Plan"), and
effective as of the date indicated above, Lamalie Associates, 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
VESTING DATES CUMULATIVELY 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 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 3903
Northdale Boulevard, Tampa, Florida 33624, 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
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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 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.
LAMALIE ASSOCIATES, INC.
By:
----------------------------------
ACKNOWLEDGED AND ACCEPTED:
this day of , 1998.
--- ------------
- -----------------------------------
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EXHIBIT B
TO
EMPLOYMENT AGREEMENT WITH PATRICK MCDONNELL
DATED SEPTEMBER 15, 1998
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 their 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
(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.
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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.
Dated:
-------------------------------- -------------------------------------
Executive
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