<PAGE> 1
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON D.C. 20549
FORM 10-Q
<TABLE>
<S> <S>
(MARK ONE)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED MAY 31, 1997
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM ____________ TO ____________
</TABLE>
Commission File Number 0-22645
LAMALIE ASSOCIATES, INC.
(Exact Name of Registrant as Specified in its Charter)
<TABLE>
<S> <C>
FLORIDA 59-2776441
(State of Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
</TABLE>
200 Park Avenue
New York, New York
10166-0136
(Address of Principal Executive Offices)
(212) 953-7900
(Registrant's Telephone Number, Including Area Code)
Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months, and (2) has been subject to such filing
requirements for the past 90 days. Yes X No ___
At July 8, 1997, the Registrant had outstanding 5,325,000 shares of $.01
par value common stock.
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<PAGE> 2
LAMALIE ASSOCIATES, INC.
INDEX
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
Condensed Statements of Operations for the three-month
periods ended May 31, 1997 and 1996.................... 3
Condensed Balance Sheets at May 31, 1997 and February 28,
1997................................................... 4
Condensed Statements of Cash Flows for the three-month
periods ended May 31, 1997 and 1996.................... 5
Notes to Condensed Financial Statements................... 6
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations....................... 7
PART II. OTHER INFORMATION................................. 8
Signatures.................................................. 10
</TABLE>
2
<PAGE> 3
LAMALIE ASSOCIATES, INC.
CONDENSED STATEMENTS OF OPERATIONS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
(UNAUDITED)
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MAY 31,
-----------------------
1997 1996
---------- ----------
<S> <C> <C>
Fee revenue, net............................................ $ 13,725 $ 11,107
Operating expenses:
Compensation and benefits................................. 10,544 9,548
General and administrative expenses....................... 1,804 1,428
---------- ----------
Total operating expenses.......................... 12,348 10,976
---------- ----------
Operating income............................................ 1,377 131
Interest expense, net....................................... 145 41
---------- ----------
Income before provision for income taxes.................... 1,232 90
Provision for income taxes.................................. 530 95
---------- ----------
Net income (loss)................................. $ 702 $ (5)
========== ==========
Net income per common and common equivalent share........... $ .23 $ --
========== ==========
Weighted average common and common equivalent shares
outstanding............................................... 3,042,000 3,311,000
========== ==========
</TABLE>
The accompanying notes are an integral part of these financial statements.
3
<PAGE> 4
LAMALIE ASSOCIATES, INC.
CONDENSED BALANCE SHEETS
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
(UNAUDITED)
MAY 31, FEBRUARY 28,
1997 1997
----------- ------------
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents................................. $ 15 $ 1,662
Accounts receivable, less allowance of $1,340 and $890,
respectively........................................... 13,567 14,392
Prepaid expenses.......................................... 2,427 937
------- -------
Total current assets.............................. 16,009 16,991
------- -------
Property and equipment, net................................. 4,179 4,184
Deferred tax assets......................................... 1,800 1,958
Other assets................................................ 3,450 2,428
------- -------
Total assets...................................... $25,438 $25,561
======= =======
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable.......................................... $ 819 $ 1,914
Accrued compensation...................................... 6,445 13,255
Deferred tax liabilities.................................. 1,800 643
Current maturities of long-term debt...................... 4,900 387
Other current liabilities................................. 45 175
------- -------
Total current liabilities......................... 14,009 16,374
------- -------
Accrued rent................................................ 1,028 1,038
Long-term debt, less current maturities..................... 1,605 1,650
Deferred compensation....................................... 5,429 3,872
------- -------
Commitments and contingencies
Stockholders' equity:
Preferred stock; $0.01 par value; 3,000,000 shares
authorized; no shares issued and outstanding........... -- --
Common stock; $0.01 par value; 35,000,000 shares
authorized; 3,025,000 and 3,075,000 shares issued and
outstanding, respectively.............................. 30 31
Additional paid-in capital................................ 4,011 4,087
Subscriptions receivable.................................. (38) (153)
Accumulated deficit....................................... (636) (1,338)
------- -------
Total stockholders' equity........................ 3,367 2,627
------- -------
Total liabilities and stockholders' equity........ $25,438 $25,561
======= =======
</TABLE>
The accompanying notes are an integral part of these financial statements.
4
<PAGE> 5
LAMALIE ASSOCIATES, INC.
CONDENSED STATEMENTS OF CASH FLOWS
(DOLLARS IN THOUSANDS)
(UNAUDITED)
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MAY 31,
------------------
1997 1996
------- -------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income (loss)......................................... $ 702 $ (5)
Adjustments to reconcile net income (loss) to net cash
used in operating activities:
Depreciation and amortization.......................... 194 213
Deferred income taxes.................................. 1,340 404
Changes in operating assets and liabilities............... (7,453) (5,747)
------- -------
Net cash used in operating activities............. (5,217) (5,135)
------- -------
CASH FLOWS FROM INVESTING ACTIVITIES:
Capital expenditures, net................................. (189) (197)
Investment in whole life insurance........................ (746) (829)
------- -------
Net cash used in investing activities............. (935) (1,026)
------- -------
CASH FLOWS FROM FINANCING ACTIVITIES:
Line of credit borrowings................................. 4,500 2,000
Other long-term (payments) borrowings..................... (109) 2,144
Payments received on subscriptions receivable............. 114 345
------- -------
Net cash provided by financing activities......... 4,505 4,489
------- -------
NET DECREASE IN CASH AND CASH EQUIVALENTS................... (1,647) (1,672)
CASH AND CASH EQUIVALENTS, at end of prior period........... 1,662 2,529
------- -------
CASH AND CASH EQUIVALENTS, at end of current period......... $ 15 $ 857
======= =======
</TABLE>
The accompanying notes are an integral part of these financial statements.
5
<PAGE> 6
LAMALIE ASSOCIATES, INC.
NOTES TO CONDENSED FINANCIAL STATEMENTS
(UNAUDITED)
NOTE 1. CONDENSED FINANCIAL STATEMENTS
In the opinion of the Company, the accompanying unaudited condensed
financial statements reflect all adjustments (consisting only of normal
recurring adjustments) necessary to present fairly the financial position of the
Company as of May 31, 1997 and February 28, 1997, and the results of operations
and cash flows for the three-month periods ended May 31, 1997 and 1996.
These financial statements, including the condensed balance sheet as of
February 28, 1997, which has been derived from audited financial statements, are
presented in accordance with the requirements of Form 10-Q and consequently may
not include all disclosures normally required by generally accepted accounting
principles or those normally made in the Company's Annual Report on Form 10-K.
The accompanying condensed financial statements and related notes should be read
in conjunction with the Company's Registration Statement on Form S-1 (File
#333-26027) as declared effective by the Securities and Exchange Commission on
July 1, 1997.
NOTE 2. NET INCOME PER COMMON AND COMMON EQUIVALENT SHARE
Net income per common and common equivalent share is determined by dividing
the net income by the weighted average number of shares of common stock
outstanding during the period. There were no common equivalent shares
outstanding during the three-month periods ended May 31, 1997 and 1996. Pursuant
to Securities and Exchange Commission Staff Accounting Bulletin ("SAB") No. 83,
shares of common stock issued by the Company during the 12 months preceding the
initial filing date have been included in the calculation of weighted average
shares of common stock outstanding, using the treasury stock method, as if the
shares were outstanding for all periods presented.
All share and per share information in the financial statements has been
adjusted to give effect to the 1,000 to one common stock split and par value
restatement which became effective June 3, 1997, in connection with the
reincorporation of the Company to Florida.
NOTE 3. LONG-TERM DEBT
The Company has obtained a commitment letter from a bank to provide various
credit facilities of $15 million. Outstanding borrowings under these facilities
will bear interest at various rates based on either a LIBOR index or the bank's
prime lending rate, as determined at the Company's option.
6
<PAGE> 7
ITEM 2: MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS:
FISCAL 1998 COMPARED TO FISCAL 1997
Fee revenue. Fee revenue increased $2.6 million, or 23.6%, to $13.7
million for the quarter-ended May 31, 1997, from $11.1 million for the
quarter-ended May 31, 1996. The increase in fee revenue was primarily a result
of a net increase of 7 search consultants since May 31, 1996, raising the total
number of consultants employed by LAI at May 31, 1997, to 63 from 56 at May 31,
1996. Also, there was an increase of 3.4% in the average fee revenue per
consultant employed for a full year to $213,000 for the quarter-ended May 31,
1997, from $206,000 for the quarter-ended May 31, 1996. The average first-year
cash compensation of positions for which LAI conducted searches increased by
3.6% to $231,000 for the quarter-ended May 31, 1997, from $223,000 for the
quarter-ended May 31, 1996. The Company also opened its Boston office in the
third quarter and its Stamford office in the fourth quarter of fiscal 1997.
Compensation and benefits. Compensation and benefits increased $1.0
million, or 10.4%, to $10.5 million for the quarter-ended May 31, 1997, from
$9.5 million for the quarter-ended May 31, 1996. As a percentage of fee revenue,
compensation and benefits decreased to 76.8% for the quarter-ended May 31, 1997,
from 86.0% for the quarter-ended May 31, 1996. This decrease was primarily the
result of changes to the Company's compensation system for consultants
implemented effective March 1, 1997.
General and administrative expenses. General and administrative expenses
increased $400,000, or 26.3%, to $1.8 million for the quarter-ended May 31,
1997, from $1.4 million for the quarter-ended May 31, 1996. As a percentage of
fee revenue, general and administrative expenses increased to 13.2% for the
quarter-ended May 31, 1997, from 12.9% for the quarter-ended May 31, 1996. These
increases were primarily due to increased costs associated with recruitment and
relocation of additional staff, an initiative to reduce search cycle time, and
the Company's training and development program.
Operating income. Operating income increased $1.3 million to $1.4 million
for the quarter-ended May 31, 1997, from $131,000 for the quarter-ended May 31,
1996. This change was primarily the result of the decreases in compensation and
benefits partially offset by increases in general and administrative expenses
discussed above.
Net interest expense. Net interest expense increased $104,000 to $145,000
for the quarter-ended May 31, 1997, from $41,000 for the quarter-ended May 31,
1996, primarily due to an increase in the accrued liability related to the
Company's deferred compensation plan as well as higher average line of credit
borrowings.
Provision for income taxes. The effective income tax rate for the
quarter-ended May 31, 1997 of 43% varied from the statutory rate of 35% due to
state and local income taxes and because certain expenses, including premiums on
keyperson life insurance policies, a portion of meals and entertainment, and
dues expense were non-deductible for income tax purposes.
LIQUIDITY AND CAPITAL RESOURCES
On July 8, 1997, the Company completed an initial public offering covering
2.3 million shares of its common stock. Net proceeds from the offering were
approximately $25.0 million of which $3.9 million was used to repay all
outstanding indebtedness under the Company's credit facilities. The Company
intends to use approximately $3.0 million of the offering proceeds over the next
12 to 24 months for computer hardware and software purchases, upgrades, and
enhancements. The remaining proceeds will be used for general corporate
purposes, including expansion of the Company's client base, industry coverage,
and geographic reach through selective acquisitions.
The Company relies primarily upon cash flows from operations and available
borrowings under its credit facilities to finance its operations. During the
quarter-ended May 31, 1997, cash used in operations was $5.2 million. A
significant portion of the Company's compensation expense is accrued and paid
shortly after the end of the Company's fiscal year. Accordingly, amounts
outstanding under the Company's line of credit are highest during the first
quarter of the Company's fiscal year, with such amounts historically being
repaid by
7
<PAGE> 8
cash flows from operations during the remainder of such fiscal year. To provide
additional liquidity, the Company has obtained a commitment letter from a bank
to provide credit facilities of approximately $15.0 million. Outstanding
borrowings under these facilities will bear interest at various rates based on
either a LIBOR index or the bank's prime lending rate, as determined at the
Company's option.
Capital expenditures totaled approximately $189,000 for the quarter-ended
May 31, 1997. These expenditures consisted primarily of purchases of office
equipment, upgrades to information systems, and leasehold improvements.
Additionally, investments in whole life insurance policies intended to fund the
Company's deferred compensation plan were approximately $746,000.
The Company believes that funds from operations, its expanded credit
facilities, and the net proceeds from the offering will be sufficient to meet
its anticipated working capital, capital expenditures, and general corporate
requirements on both a short-term basis (i.e., during the 12 months following
the offering) and a long-term basis (i.e., after such 12-month period).
FORWARD-LOOKING STATEMENTS
This Management's Discussion and Analysis of Financial Condition and
Results of Operations and other sections of this Quarterly Report on Form 10-Q
contain forward-looking statements that are based on the current beliefs and
expectations of the Company's management, as well as assumptions made by, and
information currently available to, the Company's management. Such statements
include those regarding general economic and executive search industry trends.
Because such statements involve risks and uncertainties, actual actions and
strategies and the timing and expected results thereof may differ materially
from those expressed or implied by such forward-looking statements, and the
Company's future results, performance, or achievements could differ materially
from those expressed in, or implied by, any such forward-looking statements.
Future events and actual results could differ materially from those set forth in
or underlying the forward-looking statements.
Forward-looking statements are inherently subject to risks and
uncertainties, some of which cannot be predicted. These potential risks and
uncertainties include dependence on attracting and retaining qualified executive
search consultants, portability of client relationships, restrictions imposed by
blocking arrangements, competition, relationship with Amrop International
alliance of executive search firms, implementation of acquisition strategy,
reliance on information processing systems, and employment liability risk. In
addition to the factors noted above, other risks, uncertainties, assumptions,
and factors that could affect the Company's financial results are described in
the Company's Registration Statement on Form S-1 (File No. 333-26027),
originally filed with the Securities and Exchange Commission April 29, 1997, as
amended and as effective July 1, 1997.
PART II -- OTHER INFORMATION
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS.
During the period covered by this report, and effective May 30, 1997, the
Registrant's stockholders approved by unanimous written consent the adoption and
approval of actions related to the Registrant's initial public offering of
shares of its common stock. The matters approved included the reincorporation of
the Registrant from Delaware to Florida, the adoption of the Registrant's
Articles of Incorporation and Bylaws, the Registrant's Employee Stock Purchase
Plan and Omnibus Stock and Incentive Plan, and the ratification of all prior
issuances of common stock by the Registrant's Delaware predecessor corporation.
All 3,025,000 shares then outstanding (adjusted for a 1,000-for-1 stock split
effective June 3, 1997) were voted in favor of such matters, and such matters
were approved prior to the effectiveness of the registration of the Registrant's
common stock under the Securities Act of 1933 and prior to the effectiveness of
the registration of the Registrant's common stock under the Securities Exchange
Act of 1934.
8
<PAGE> 9
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K.
a. Exhibits
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<C> <C> <S>
10.1 -- 1997 Omnibus Stock and Incentive Plan*
10.2 -- Non-Employee Directors' Stock Option Plan*
10.3 -- Profit Sharing Plan*
10.4 -- 1997 Employee Stock Purchase Plan*
10.5 -- Form of Agreement for Deferred Compensation Plan*
10.6 -- Managing Partners' Compensation Plan*
10.7 -- Partners' Compensation Plan*
10.8 -- Employment Agreement for Mr. Gow*
10.10 -- Employment Agreement for Mr. Rothschild*
10.11 -- Form of Indemnification Agreement entered into with Messrs.
Philip R. Albright, Michael Brenner, Arthur J. Davidson,
Mark P. Elliott, David W. Gallagher, Joe D. Goodwin,
Roderick C. Gow, Ray J. Groves, Harold E. Johnson, John F.
Johnson, Robert L. Pearson, Richard W. Pogue, John C. Pope,
John S. Rothschild, Thomas M. Watkins III, Jack P. Wissman
10.12 -- Directors' Deferral Plan*
27 -- Financial Data Schedule (for SEC use only)
</TABLE>
- ---------------
* Incorporated by reference to the correspondingly numbered exhibit to the
Registrant's Registration Statement on Form S-1 (File No. 333-26027),
originally filed April 29, 1997, as amended and as effective July 1, 1997.
9
<PAGE> 10
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned, Registrant's principal financial officer, thereunto duly
authorized.
LAMALIE ASSOCIATES, INC.
--------------------------------------
(Registrant)
August 8, 1997
/s/ JACK P. WISSMAN
--------------------------------------
Jack P. Wissman
Executive Vice President
(Authorized officer of Registrant and
principal
financial officer)
10
<PAGE> 1
EXHIBIT 10.11
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this "Agreement") is made and entered
into EFFECTIVE as of the ____ day of ____, 1997, by and between ____
(the "Indemnitee"), and LAMALIE ASSOCIATES, INC., a Florida corporation
(the "Corporation").
W I T N E S S E T H:
WHEREAS, it is essential to the Corporation to retain and attract as
Directors, officers and key employees the most capable persons available; and
WHEREAS, the substantial increase in corporate litigation subjects
directors and officers to expensive litigation risks at the same time that the
availability of directors' and officers' liability insurance is severely
limited; and
WHEREAS, in addition, the indemnification provisions of the Florida
Business Corporation Act (the "FBCA," as further defined below) expressly
provide that such provisions are non-exclusive; and
WHEREAS, the Indemnitee does not regard the protection available
under the Articles of Incorporation and Bylaws of the Corporation and
insurance, if any, as adequate in the present circumstances, and considers it
necessary to condition the Indemnitee's agreement to serve as a Director and/or
officer of the Corporation to have appropriate contractual rights to
indemnification from the Corporation, and the Corporation desires the
Indemnitee to serve in such capacity or capacities and to have such rights as
set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained in this Agreement, it is hereby agreed as
follows:
1. DEFINITIONS.
For the purposes of this Agreement, the terms below shall have the
indicated meanings except where the context in which such a term is used in
this Agreement clearly indicates otherwise:
a. Affiliate means, as to any Person (the "first Person"), any other
Person that, either directly or indirectly, controls, is controlled
by or is under common control with the first Person.
b. Agreement of Indemnity means the agreement provided for by Section
3(e)(i) of this Agreement.
c. Associate of a Person means a director, officer, employee, agent,
consultant, independent contractor, stockholder or partner of such
Person.
<PAGE> 2
INDEMNIFICATION AGREEMENT
PAGE 2
- -------------------------------------------------------------------------------
d. Board means the Board of Directors of the Corporation.
e. Evaluation Date means, as to any Indemnification Notice, the date
thirty (30) calendar days after the date of receipt by the Board of
such Indemnification Notice.
f. Expense means any cost or expense (other than a Liability),
including but not limited to Legal Fees, and including interest on
any of the foregoing, reasonably paid or required to be paid by the
Indemnitee on account of or in connection with any Proceeding.
g. Expense Advance Request means the request provided for by Section
3(d)(ii) of this Agreement.
h. FBCA means a the Florida Business Corporation Act, Chapter 607,
Florida Statutes, and any successor statute.
i. Indemnification Notice means the notice provided for by Section
3(a) of this Agreement.
j. Legal Fees means the fees and disbursements of legal counsel,
legal assistants, experts, accountants, consultants and
investigators, before and at trial, in appellate or bankruptcy
proceedings and otherwise.
k. Liability means any amount (other than an Expense), including any
assessment, fine, penalty, excise or other tax, and including
interest on any of the foregoing, paid or required to be paid by the
Indemnitee on account of or in connection with any Proceeding.
l. Nonindemnifiable Conduct means any act or omission to act of the
Indemnitee material to a Proceeding as to which indemnification under
this Agreement is sought, which act or omission is determined to
involve:
i. a violation of criminal law, unless the Indemnitee had
reasonable cause to believe such conduct was lawful or had
no reasonable cause to believe such conduct was unlawful;
ii. a transaction from which the Indemnitee derived an
improper personal benefit;
iii. willful misconduct or a conscious disregard for the
best interests of the Corporation (when indemnification is
sought in a Proceeding by or in the right of the
Corporation to procure a judgment in favor of the
Corporation or when indemnification is sought in a
Proceeding by or in the right of a stockholder); or
<PAGE> 3
INDEMNIFICATION AGREEMENT
PAGE 3
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iv. conduct as to which then applicable law prohibits
indemnification.
m. Person means any natural person or individual, or any artificial
person, including any corporation, association, unincorporated
organization, partnership, joint venture, firm, company, business,
trust, business trust, limited liability company, government, public
body or authority, governmental agency or department, and any other
entity.
n. Proceeding means any threatened, pending or completed claim,
demand, inquiry, investigation, action, suit or proceeding, regarding
any matter (including but not limited to matters arising under or
relating to federal or state securities laws, laws relating to the
protection of the environment, the Employee Retirement Income
Security Act of 1974 ("ERISA") or other laws for the benefit or
protection of employees, federal or state tax laws, laws relating to
discrimination against persons or groups, or any other civil or
criminal law), whether formal or informal, or whether brought by or
in the right of the Corporation, whether brought by a governmental
body, agency or representative or by any other Person, and whether of
a civil, criminal, administrative or investigative nature, and
includes any Third Party Proceeding.
o. Third Party Proceeding means any Proceeding against the Indemnitee
by, or any Proceeding by the Indemnitee against, any third party.
2. GRANT OF INDEMNITY.
The Corporation shall indemnify and hold harmless the Indemnitee in respect of:
a. any and all Liabilities that may be incurred or suffered by the
Indemnitee as a result of or arising out of or in connection with
prosecuting, defending, settling or investigating any Proceeding in
which the Indemnitee may be or may have been involved as a party or
otherwise, arising out of the fact that the Indemnitee is or was an
Associate of the Corporation or any of its Affiliates, or served as
an Associate in or for any Person at the request of the Corporation
(including without limitation service as a trustee or in any
fiduciary or similar capacity for or in connection with any employee
benefit plan maintained by the Corporation or for the benefit of any
of the employees of the Corporation or any of its Affiliates, or
service on any trade association, civic, religious, educational or
charitable boards or committees);
b. any and all Liabilities that may be incurred or suffered by the
Indemnitee as a result of or arising out of or in connection with any
attempt (regardless of its success) by any Person to charge or cause
the Indemnitee to be charged with wrongdoing or with financial
<PAGE> 4
INDEMNIFICATION AGREEMENT
PAGE 4
- -------------------------------------------------------------------------------
responsibility for damages arising out of or incurred in connection
with the matters indemnified against in this Agreement; and
c. any and all Expenses that may be incurred or suffered by the
Indemnitee as a result of or arising out of or in connection with any
matter referred to in the preceding two paragraphs.
3. CLAIMS FOR INDEMNIFICATION; PROCEDURES
a. Submission of Claims. Whenever any Proceeding shall occur as to
which indemnification under this Agreement may be sought by the
Indemnitee, the Indemnitee shall give the Corporation written notice
thereof as promptly as reasonably practicable after the Indemnitee
has actual knowledge of such Proceeding (an "Indemnification
Notice"). The Indemnification Notice shall specify in reasonable
detail the facts known to the Indemnitee giving rise to such
Proceeding, the positions and allegations of the parties to such
Proceeding and the factual bases therefor, and the amount or an
estimate of the amount of Liabilities and Expenses reasonably
expected to arise therefrom. A delay by the Indemnitee in providing
such notice shall not relieve the Corporation from its obligations
under this Agreement unless and only to the extent that the
Corporation is materially and adversely affected by the delay. If the
Indemnitee desires to personally retain the services of an attorney
in connection with any Proceeding, the Indemnitee shall notify the
Corporation of such desire in Indemnification Notice relating
thereto, and such notice shall identify the counsel to be retained.
b. Presumption of Right to Indemnification. Upon submission of an
Indemnification Notice to the Corporation, the Board shall review
such Notice and endeavor to determine whether the Indemnitee is
entitled to indemnification under this Agreement with respect to the
matters described therein. As of the Evaluation Date, unless the
Board has reasonably determined that the Indemnitee is not entitled
to indemnification under this Agreement with respect to the matters
described in such Indemnification Notice, there shall be created a
presumption that the Indemnitee is entitled to such indemnification.
Such presumption shall continue, and indemnification and payment
shall be provided under this Agreement, unless and such time as the
Board shall reasonably determine that the Indemnitee is not entitled
to indemnification under this Agreement. This paragraph is procedural
only and shall not affect the right of the Indemnitee to
indemnification under this Agreement. Any determination by the Board
that the Indemnitee is not entitled to indemnification under this
Agreement and any failure to make any payments requested in an
Indemnification Notice or otherwise shall be subject to judicial
review.
c. Limitation on Adverse Determinations by the Board. Subject to
applicable law, no determination by the Board that the Indemnitee is
not entitled to indemnification or payment
<PAGE> 5
INDEMNIFICATION AGREEMENT
PAGE 5
- -------------------------------------------------------------------------------
under this Agreement shall be given effect under this Agreement unless (i) such
determination is based upon clear and convincing evidence, (ii) such
determination is made by a vote of a majority of the Corporation's
Directors at a meeting at which a quorum is present, and (iii) the Indemnitee
is given written notice of such meeting at least ten days in advance of such
meeting and given a meaningful opportunity to present at such meeting
information in support of the claim for indemnification or payment.
d. Expenses.
i. With respect to any Proceeding as to which the Indemnitee is
entitled (or presumed entitled) to indemnification under this
Agreement, Expenses incurred or required to be incurred by the
Indemnitee in connection with such Proceeding, but prior to the final
disposition of such Proceeding, shall be paid or caused to be paid by
the Corporation to or on behalf of the Indemnitee notwithstanding
that there has been no final disposition of such Proceeding, to the
extent provided in the following paragraph.
ii. For purposes of determining whether to authorize advancement of
Expenses pursuant to the preceding paragraph, the Indemnitee shall
from time to time submit to the Board a statement requesting
advancement of Expenses (an "Expense Advance Request." Each Expense
Advance Request shall set forth (i) in reasonable detail, all
Expenses already incurred or required to be incurred by the
Indemnitee and the reason therefor, and (ii) an undertaking by the
Indemnitee, in form and substance reasonably satisfactory to the
Corporation, to repay all the Expenses set forth therein if it shall
ultimately be determined that the Indemnitee is not entitled to be
indemnified with respect to such Proceeding by the Corporation under
this Agreement or otherwise. Upon receipt of an Expense Advance
Request satisfying the foregoing requirements, as to each Expense set
forth therein, unless the Board reasonably determines that the
Indemnitee is not entitled to payment of such Expense, the
Corporation shall, within 10 business days thereafter (or, if later
as to any Expense yet to be incurred by the Indemnitee, on or before
the date three business days prior to the date such Expense is
required to be paid by the Indemnitee), pay or cause to be paid by
the Corporation the amount of such Expense to or on behalf of the
Indemnitee. No security shall be required in connection with any
Expense Advance Request, and the ability or inability of the
Indemnitee to make repayment shall not be considered in any
evaluation of an Expense Advance Request.
e. Rights to Defend or Settle; Third Party Proceedings, etc.
i. If the Corporation at any time provides the Indemnitee with an
agreement in writing, in form and substance reasonably satisfactory
to the Indemnitee and the
<PAGE> 6
INDEMNIFICATION AGREEMENT
PAGE 6
- -------------------------------------------------------------------------------
Indemnitee's counsel, agreeing to indemnify, defend or
prosecute and hold the Indemnitee harmless from all
Liabilities and Expenses arising from any Third Party
Proceeding (an "Agreement of Indemnity"), and demonstrating
to the reasonable satisfaction of the Indemnitee the
Corporation's financial wherewithal to accomplish such
indemnification, the Corporation may thereafter at its own
expense undertake full responsibility for and control of
the defense or prosecution of such Third Party Proceeding.
The Corporation may contest or settle any such Third Party
Proceeding for money damages on such terms and conditions
as it deems appropriate but shall be obligated to consult
in good faith with the Indemnitee and not to contest or
settle any Third Party Proceeding involving injunctive or
equitable relief against or affecting the Indemnitee or the
Indemnitee's properties or assets without the prior written
consent of the Indemnitee, such consent not to be
unreasonably withheld. The Indemnitee may participate at
the Indemnitee's own expense and with the Indemnitee's own
counsel in defense or prosecution of a Third Party
Proceeding controlled by the Corporation. Such
participation shall not relieve the Corporation of its
obligation to indemnify the Indemnitee with respect to such
Third Party Proceeding under this Agreement.
ii. If, as of ten (10) business days after the receipt by
the Board of an Indemnification Notice, the Corporation has
not delivered to the Indemnitee a reasonably satisfactory
Agreement of Indemnity and evidence of financial
wherewithal as contemplated by the preceding paragraph, the
Indemnitee may contest or settle the Third Party Proceeding
on such terms as it sees fit but shall not reach a
settlement with respect to the payment of money damages
without consulting in good faith with the Corporation. As
to any Third Party Proceeding as to which the Indemnitee is
entitled (or presumed entitled) to indemnification under
this Agreement, unless and until such time as the
Corporation at its own expense undertakes full
responsibility for and control of the defense or
prosecution of such Third Party Proceeding, the Indemnitee
shall be entitled to indemnification under this Agreement
with respect any Expenses of the Indemnitee, including
Legal Fees, relating to such Third Party Proceeding.
Notwithstanding the foregoing, the Corporation may at any
time deliver to the Indemnitee a reasonably satisfactory
Agreement of Indemnity and evidence of financial
wherewithal as contemplated by the preceding paragraph, and
thereafter at its own expense undertake full responsibility
for and control of the defense or prosecution of such Third
Party Proceeding.
iii. All Expenses incurred in defending or prosecuting any
Third Party Proceeding shall be paid in accordance with the
procedure set forth in Section 3(d) of this Agreement.
<PAGE> 7
INDEMNIFICATION AGREEMENT
PAGE 7
- -------------------------------------------------------------------------------
iv. If, by reason of any Third Party Proceeding as to which
the Indemnitee is entitled (or presumed entitled) to
indemnification under this Agreement, a lien, attachment,
garnishment or execution is placed upon any of the property
or assets of the Indemnitee, the Corporation shall promptly
furnish a reasonably satisfactory indemnity bond to obtain
the prompt release of such lien, attachment, garnishment or
execution.
v. The Corporation may participate at its own expense and
with its own counsel in defense or prosecution of any Third
Party Proceeding, but any such participation shall not
relieve the Corporation of its obligations to indemnify the
Indemnitee under this Agreement. Any election by the
Corporation to at its own expense undertake full
responsibility for and control of the defense or
prosecution of a Third Party Proceeding shall not affect
the entitlement of the Indemnitee to indemnification under
this Agreement.
vi. The Indemnitee shall cooperate in the defense or
prosecution of any Third Party Proceeding controlled by the
Corporation.
vii. The parties shall cooperate in good faith and use
reasonable efforts to mitigate and minimize any Expense or
Liability.
f. Choice of Counsel. In all matters as to which indemnification is
or may be available to the Indemnitee under this Agreement, the
Indemnitee shall be free to choose and retain counsel of the
Indemnitee's choice, provided that the Indemnitee shall secure the
prior written consent of the Corporation as to such selection, which
consent shall not be unreasonably withheld.
g. Repayment. Notwithstanding anything to the contrary, if the
Corporation has paid or advanced any Liability or Expense under this
Agreement (including pursuant to an Expense Advance Request) to, on
behalf of or for the benefit of the Indemnitee and it is determined
by a court of competent jurisdiction, in a decision which the
Indemnitee does not properly appeal or which decision is affirmed on
appeal, that the Indemnitee's actions or omissions constitute
Nonindemnifiable Conduct or that the Indemnitee otherwise is not or
was not entitled to such payment or advance or that the Indemnitee is
required to reimburse or repay the Corporation for the amount
thereof, the Indemnitee shall and does hereby undertake in such
circumstances to reimburse and repay the Corporation for any and all
such amounts paid, which thereupon shall be deemed and shall be and
become the legal, valid and enforceable debt and obligation of the
Indemnitee to the Corporation.
h. Representations and Agreements of the Corporation.
<PAGE> 8
INDEMNIFICATION AGREEMENT
PAGE 8
- -------------------------------------------------------------------------------
i. Authority. The Corporation represents, covenants and
agrees that it has the corporate power and authority to
enter into this Agreement and to carry out its obligations
under this Agreement. The execution, delivery and
performance of this Agreement and the consummation of the
transactions contemplated by this Agreement have been duly
authorized by the Board. This Agreement is a valid and
binding obligation of the Corporation and is enforceable
against the Corporation in accordance with its terms.
ii. Noncontestability. The Corporation represents,
covenants and agrees that it will not initiate, and will
use its best efforts to cause each of its Affiliates not to
initiate, any action, suit or proceeding challenging the
validity or enforceability of this Agreement.
iii. Good Faith Judgment. The Corporation represents,
covenants and agrees that it will exercise good faith and
its best reasonable judgment in determining the entitlement
of the Indemnitee to indemnification under this Agreement.
4. RELATIONSHIP OF THIS AGREEMENT TO OTHER INDEMNITIES.
a. Nonexclusivity.
i. This Agreement and all rights granted to the Indemnitee
under this Agreement are in addition to and are not deemed
to be exclusive with or of any other rights that may be
available to the Indemnitee under any Articles of
Incorporation, bylaw, statute, agreement, or otherwise.
ii. The rights, duties and obligations of the Corporation
and the Indemnitee under this Agreement do not limit,
diminish or supersede the rights, duties and obligations of
the Corporation and the Indemnitee with respect to the
indemnification afforded to the Indemnitee under any
liability insurance, the FBCA, or under the Bylaws or the
Articles of Incorporation of the Corporation. In addition,
the Indemnitee's rights under this Agreement will not be
limited or diminished in any respect by any amendment to
the Bylaws or the Articles of Incorporation of the
Corporation.
b. Availability, Contribution, Etc.
i. The availability or nonavailability of indemnification
by way of insurance policy, Articles of Incorporation,
bylaw, vote of stockholders, or otherwise from the
Corporation to the Indemnitee shall not affect the right of
the Indemnitee to
<PAGE> 9
INDEMNIFICATION AGREEMENT
PAGE 9
- --------------------------------------------------------------------------------
indemnification under this Agreement, provided that all
rights under this Agreement shall be subject to applicable
statutory provisions in effect from time to time.
ii. Any funds actually received by the Indemnitee by way of
indemnification or payment from any source other than from
the Corporation under this Agreement shall reduce any
amount otherwise payable to the Indemnitee under this
Agreement.
iii. If the Indemnitee is entitled under any provision of
this Agreement to indemnification by the Corporation for
some Liabilities or Expenses but not as to others, or for
some or a portion thereof actually incurred by the
Indemnitee or amounts actually paid in settlement by the
Indemnitee in the investigation, defense, appeal or
settlement of any Proceeding for which indemnification is
sought under this Agreement but not for the total amount
thereof, the Corporation shall indemnify the Indemnitee for
the portion thereof to which the Indemnitee is entitled.
iv. If for any it is determined by a court of competent
jurisdiction, in a decision which neither party to this
Agreement properly appeals or which decision is affirmed on
appeal, that the indemnity provided under this Agreement is
unavailable, or if for any reason the indemnity under this
Agreement is insufficient to hold the Indemnitee harmless
as provided in this Agreement, then, in any such event, the
Corporation shall contribute to the amounts paid or payable
by the Indemnitee in such proportion as equitably reflects
the relative benefits received by, and fault of, the
Indemnitee and the Corporation and its Affiliates and its
and their respective Associates.
c. Coordination With Insurance. The obligation of the
Corporation under this Agreement is not conditioned in any way on any
attempt, whether or not successful, by the Indemnitee or the
Corporation to collect from an insurer any amount under any insurance
policy.
5. LIMITATIONS.
In no case shall any indemnification or payment be provided or made under this
Agreement to or on behalf of or for the direct or indirect benefit of the
Indemnitee by the Corporation:
a. except as set forth in Section 6(g) of this Agreement, in
any Proceeding brought by or in the name or interest of the Indemnitee
against the Corporation;
b. except as set forth in Section 6(g) of this Agreement, in
any Proceeding brought by the Corporation against the Indemnitee,
which action is initiated at the direction of the Board; or
<PAGE> 10
INDEMNIFICATION AGREEMENT
PAGE 10
c. for any Nonindemnifiable Conduct.
6. MISCELLANEOUS.
a. Cooperation. The parties to this Agreement shall execute such
powers of attorney as may be necessary or appropriate to permit
participation of counsel selected by any party hereto and, as may be
reasonably related to any such claim or action, shall provide to the
counsel, accountants and other representatives of each party access
during normal business hours to all properties, personnel, books,
records, contracts, commitments and all other business records of
such other party and will furnish to such other party copies of all
such documents as may be reasonably requested (certified, if
requested).
b. Further Assurances. The parties to this Agreement will execute and
deliver, or cause to be executed and delivered, such additional or
further documents, agreements or instruments and shall cooperate with
one another in all respects for the purpose of carrying out the
transactions contemplated by this Agreement.
c. Notices. Any notice, request, demand or other communication
required or permitted to be given or made under this Agreement shall
be in writing and shall be deemed to have been duly given: upon
receipt if personally delivered; upon successful completion of
transmission if transmitted by telecopy, electronic telephone line
facsimile transmission or other similar electronic or digital
transmission method; at the close of business on the next business
day after it is sent, if sent by recognized overnight delivery
service with all fees payable by the sender; or at the close of
business on the fifth business day after it is sent, if mailed, first
class mail, postage prepaid. In each case such notice, request,
demand or other communication shall be sent to:
if to the Indemnitee:
At the Indemnitee's address on file with the
Corporation.
if to the Corporation:
At the Corporation's principal executive
offices.
or to such other address as either party may have specified in
writing to the other using the procedures specified above in this
Section 6(c).
<PAGE> 11
INDEMNIFICATION AGREEMENT
PAGE 11
- --------------------------------------------------------------------------------
d. Governing Law. This Agreement shall be construed pursuant to and
governed by the substantive laws of the State of Florida (but 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).
e. Severability. Any provision of this Agreement that is determined
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.
f. Specific Enforcement; Presumption.
i. The parties agree and acknowledge that, in the event of a
breach by the Corporation of its obligation promptly to
indemnify the Indemnitee as provided in this Agreement, or
breach of any other material provision of this Agreement,
damages at law will be an insufficient remedy to the
Indemnitee. Accordingly, the parties agree that, in addition
to any other remedies or rights that may be available to the
Indemnitee, the Indemnitee shall also be entitled, upon
application to a court of competent jurisdiction, to obtain
temporary or permanent injunctions to compel specific
performance of the obligations of the Corporation under this
Agreement.
ii. There shall exist in any action to enforce the rights of
the Indemnitee under this Agreement a rebuttable presumption
that the Indemnitee has met the applicable standard(s) of
conduct and is therefore entitled to indemnification pursuant
to this Agreement, and the burden of proving that the
relevant standards have not been met by the Indemnitee shall
be on the Corporation. Neither the failure of the Corporation
(including the Board or independent legal counsel) prior to
the commencement of such action to have made a determination
that indemnification is proper in the circumstances because
the Indemnitee has met the applicable standard of conduct,
nor an actual determination by the Corporation (including the
Board or independent legal counsel) that the Indemnitee has
not met such applicable standard of conduct, shall (X)
constitute a defense to the action, (Y) create a presumption
that the Indemnitee has not met the applicable standard of
conduct, or (Z) otherwise alter the presumption in favor of
the Indemnitee referred to in the preceding sentence.
<PAGE> 12
INDEMNIFICATION AGREEMENT
PAGE 12
- -------------------------------------------------------------------------------
g. Cost of Enforcement; Interest.
i. If either party to this Agreement engages the
services of an attorney or any other third party or in
any way initiates legal action to enforce the party's rights
under this Agreement, including but not limited to the
collection of monies due, the prevailing party in such action
shall be entitled to recover all Expenses incurred in
connection therewith. Should the Indemnitee prevail, such
Expenses shall be in addition to monies otherwise due the
Indemnitee under this Agreement.
ii. If any amount shall be due or payable under this
Agreement (including under an Expense Advance Request) and
shall not be paid within 30 days from the date as of which
the obligation to make such payment arises, interest shall
accrue on such unpaid amount from the date when due until it
is paid in full at the rate of 2% per annum in excess of the
prime rate published from time to time in The Wall Street
Journal in its "Money Rates" column or any similar or
successor column or feature, or such lower rate as may be
required to comply with applicable law.
h. No Assignment. Any claim, right, title, benefit, remedy or
interest of the Indemnitee in, to or under or arising out of or in
connection with this Agreement is personal and may not be sold,
assigned, transferred, pledged or hypothecated, but the provisions of
this Agreement shall survive the death, disability or incapacity of
the Indemnitee or the termination of the Indemnitee's service as a
Director or officer of the Corporation and shall inure to the benefit
of the Indemnitee's heirs, executors and administrators. This
Agreement shall inure to the benefit of and shall be binding upon the
successors in interest and assigns of the Corporation, including any
successor corporation resulting from a merger, consolidation,
recapitalization, reorganization, sale of all or substantially all of
the assets of the Corporation, or any other transaction resulting in
the successor corporation assuming the liabilities of the Corporation
under this Agreement (by operation of law or otherwise).
i. No Third Party Beneficiaries. This Agreement is not intended to
benefit or entered into for the benefit of any third parties and,
other than as set forth in the preceding paragraph as to heirs,
assignees and successors, nothing in this Agreement, whether express
or implied, is intended or should be construed to confer upon, or to
grant to, any person, except the Corporation and the Indemnitee, any
claim, right, benefit or remedy under or because of this Agreement or
any provision set forth in this Agreement.
j. Construction. As used in this Agreement, (1) the word
"including" is always without limitation, and (2) words in the
singular number include words of the plural number and vice versa.
<PAGE> 13
INDEMNIFICATION AGREEMENT
PAGE 13
- -------------------------------------------------------------------------------
k. Venue; Process. 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 and only in
the Circuit Court of the Sixth Judicial Circuit of the State of
Florida in and for Pinellas County (the "Circuit Court") and the
parties agree that jurisdiction shall not properly lie in any other
jurisdiction provided, however, if jurisdiction does not properly lie
with the Circuit Court, the parties agree that jurisdiction and venue
shall properly lie in and only in the United States District Court
for the Middle District of Florida, Tampa Division. The parties
hereby waive any objections which they may now or hereafter have
based on venue and/or forum non conveniens and irrevocably submit to
the jurisdiction of any such court in any legal suit, action or
proceeding arising out of or relating to this Agreement. 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.
l. Waiver and Delay. No waiver or delay in enforcing the terms of
this Agreement or in taking any action with respect to any breach of
this Agreement shall be construed as a waiver of any subsequent
breach. No action taken by the Indemnitee shall constitute a waiver
of the Indemnitee's rights under this Agreement.
m. Modification. This Agreement contains the entire agreement of the
parties, and supersedes any prior written or oral agreement of the
parties, with respect to the subject matter hereof. This Agreement
may be modified only by an instrument in writing signed by both
parties hereto.
n. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be considered an original, but all
of which together shall constitute one and the same instrument.
o. Headings. The headings of the various sections in this Agreement
are inserted for the convenience of the parties and shall not affect
the meaning, construction or interpretation of this Agreement.
<PAGE> 14
INDEMNIFICATION AGREEMENT
PAGE 14
- --------------------------------------------------------------------------------
IN WITNESS WHEREOF, the parties have executed this Agreement EFFECTIVE
as of the date first above written.
INDEMNITEE
- -------------------------------------------
Signature Date
LAMALIE ASSOCIATES, INC.
By:
----------------------------------------
Date
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
FINANCIAL STATEMENTS OF LAMALIE AMROP INTERNATIONAL FOR THE THREE MONTHS ENDED
MAY 31,1997 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL
STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> FEB-28-1998
<PERIOD-START> MAR-01-1997
<PERIOD-END> MAY-31-1997
<CASH> 15
<SECURITIES> 0
<RECEIVABLES> 14,907
<ALLOWANCES> 1,340
<INVENTORY> 0
<CURRENT-ASSETS> 16,009
<PP&E> 6,097
<DEPRECIATION> 1,918
<TOTAL-ASSETS> 25,438
<CURRENT-LIABILITIES> 14,009
<BONDS> 0
0
0
<COMMON> 30
<OTHER-SE> 3,337
<TOTAL-LIABILITY-AND-EQUITY> 25,438
<SALES> 0
<TOTAL-REVENUES> 13,725
<CGS> 0
<TOTAL-COSTS> 12,348
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 450
<INTEREST-EXPENSE> 145
<INCOME-PRETAX> 1,232
<INCOME-TAX> 530
<INCOME-CONTINUING> 702
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 702
<EPS-PRIMARY> .23
<EPS-DILUTED> .23
</TABLE>
