<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 30, 1998
Registration Statement No.333-________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
LAMALIE ASSOCIATES, INC.
(Exact name of Registrant as specified in its charter)
FLORIDA 59-2776441
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
200 PARK AVENUE
SUITE 3100
NEW YORK, NEW YORK 10166-0136
(212) 953-7900
(Address, including zip code,
of Registrant's principal executive offices)
LAMALIE ASSOCIATES, INC.
PROFIT SHARING PLAN
(Full title of the plan)
JACK P. WISSMAN, EXECUTIVE VICE PRESIDENT
LAMALIE ASSOCIATES, INC.
3903 NORTHDALE BOULEVARD
TAMPA, FLORIDA 33624
(813) 961-7494
(Name, address, including zip code, and telephone number
including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===========================================================================================================================
Title of Securities Amount to be Proposed Maximum Offering Proposed Maximum Amount of
to be Registered(1) Registered(1) Price Per Share(2) Aggregate Offering Price(2) Registration Fee
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock. . . . . . . . 200,000 shs $22.875 $4,437,500 $1,309.06
===========================================================================================================================
</TABLE>
(1) Pursuant to Rule 416(c), this Registration Statement also covers an
indeterminate amount of participants in the Lamalie Associates, Inc. Profit
Sharing Plan.
(2) Estimated pursuant to Rule 457(c), solely for the purpose of calculating
the registration fee, based upon the average of the high and low prices for
the common stock reported on the Nasdaq National Market System on April 27,
1998.
<PAGE> 2
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
By this reference, the following documents filed or to be filed by Lamalie
Associates, Inc. (the "Company") with the Securities and Exchange Commission
(the "Commission") are incorporated into and made a part of this Registration
Statement:
1. The Company's Prospectus as filed with the Commission under Rule
424(b) of the Securities Act of 1933, which is a part of the Company's
Registration Statement on Form S-1 (Registration Statement No.
333-26027), as amended, contains the Company's audited financial
statements for the fiscal year ended February 28, 1997 (pages F-1
through F-13, inclusive) and a description of the Company's common
stock (page 35), which is incorporated by reference in the Company's
Registration Statement on Form 8-A, as amended, as filed with the
Commissioner under the Securities Exchange Act of 1934 (Registration
Statement No. 000-22645).
2. The Annual Reports on Form 11-K filed with the Commission in the
future on behalf of the Company's Profit Sharing Plan shall be deemed
to be incorporated into and made a part of this Registration Statement
from the date of filing of such documents with the Commission.
3. The Company's Quarterly Reports on Form 10-Q for the Quarters ended
May 31, 1997, August 31, 1997 and November 30, 1997 and current Report
on Form 8-K dated February 27, 1998.
4. All documents filed by the Company with the Commission subsequent to
the date of this Registration Statement under Section 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934, and prior to the
filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated into and
made a part of this Registration Statement from the date of filing of
such documents with the Commission.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Florida Business Corporation Act, as amended (the "Florida Act"),
provides that a business corporation may indemnify any person who is or was a
party to any proceeding (other than an action by, or in the right of, the
corporation) by reason of the fact that he or she is or was a director or
officer of the corporation, against liability incurred in connection with such
proceeding, including any appeal thereof, provided certain standards are met,
including that such officer or director acted in good faith and in a manner he
or she reasonably believed to be in, or not opposed to, the best interests of
the corporation, and provided
II-2
<PAGE> 3
further that, with respect to any criminal action or proceeding, the officer or
director had no reasonable cause to believe his or her conduct was unlawful. In
the case of proceedings by or in the right of the corporation, the Florida Act
provides that, in general, a corporation may indemnify any person who was or is
a party to any such proceeding by reason of the fact that he or she is or was a
director or officer of the corporation against expenses and amounts paid in
settlement actually and reasonably incurred in connection with the defense or
settlement of such proceeding, including any appeal thereof, provided that such
person acted in good faith and in a manner he or she reasonably believed to be
in, or not opposed to, the best interests of the corporation, except that no
indemnification shall be made in respect of any claim as to which such person is
adjudged liable unless a court of competent jurisdiction determines upon
application that such person is fairly and reasonably entitled to indemnity. To
the extent that any officers or directors are successful on the merits or
otherwise in the defense of any of the proceedings described above, the Florida
Act provides that the corporation is required to indemnify such officers or
directors against expenses actually and reasonably incurred in connection
therewith. However, the Florida Act further provides that, in general,
indemnification or advancement of expenses shall not be made to or on behalf of
any officer or director if a judgment or other final adjudication establishes
that his or her actions, or omissions to act, were material to the cause of
action so adjudicated and constitute: (i) a violation of the criminal law,
unless the director or officer had reasonable cause to believe his or her
conduct was lawful or had no reasonable cause to believe it was unlawful; (ii) a
transaction from which the director or officer derived an improper personal
benefit; (iii) in the case of a director, a circumstance under which the
director has voted for or assented to a distribution made in violation of the
Florida Act or the corporation's articles of incorporation; or (iv) willful
misconduct or a conscious disregard for the best interests of the corporation in
a proceeding by or in the right of the corporation to procure a judgment in its
favor or in a proceeding by or in the right of a shareholder. Under the terms of
the Company's Articles of Incorporation and Bylaws, the Company may indemnify
any director, officer or employee or any former director, officer or employee to
the fullest extent permitted by law.
The Company has entered into indemnity agreements with each of its
directors and certain officers which provide that the Company will indemnify
such persons against any costs and expenses, judgments, statements and fines
incurred in connection with any claim involving such persons by reason of his or
her position as director or officer, provided that such person meets certain
standards of conduct.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
II-3
<PAGE> 4
<TABLE>
<CAPTION>
ITEM 8. EXHIBITS.
Exhibit
Number Description
- ------ -----------
<S> <C>
4.1 The Company's Profit Sharing Plan (incoporated by reference to
Exhibit 10.3 to the Company's Registration Statement on Form S-1,
as amended, Registration Statement No. 333-26027).
4.2 The Company's Profit Sharing Trust as amended to date.
5.1 Opinion of Trenam, Kemker, Scharf, Barkin, Frye, O'Neill &
Mullis, Professional Association, as to the legality of the
Common Stock being registered.
5.2 The registrant hereby undertakes to submit the Profit Sharing
Plan to the Internal Revenue Service (the "IRS") in a timely
manner to obtain a determination letter from the IRS to the
effect that such Plan is "qualified" under Section 401 of the
Internal Revenue Code and hereby undertakes to make all changes,
if any, required by the IRS in order to qualify such Plan.
23.1 Consent of Trenam, Kemker, Scharf, Barkin, Frye, O'Neill &
Mullis, Professional Association (contained in Exhibit 5.1).
23.2 Consent of Arthur Andersen LLP.
24 Powers of Attorney (contained in signature page)
</TABLE>
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20%
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement;
II-4
<PAGE> 5
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such information
in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with or
furnished to the Commission by the registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the provisions described in Item 6, or
otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
II-5
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Orlando, State of Florida, on the 27th day of April,
1998.
Lamalie Associates, Inc.
By: /s/ Robert L. Pearson
-----------------------------------------------------
Robert L. Pearson, President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS that each of the undersigned officers and
directors of Lamalie Associates, Inc., for himself and not for one another, does
hereby constitute and appoint Robert L. Pearson, Jack P. Wissman and Philip R.
Albright, and each of them, a true and lawful attorney in his name, place and
stead, in any and all capacities, to sign his name to any and all amendments,
including post-effective amendments, to this registration statement, with
respect to the proposed issuance, sale and delivery of shares of its Common
Stock, and to cause the same to be filed with the Securities and Exchange
Commission, granting unto said attorneys and each of them full power and
authority to do and perform any act and thing necessary and proper to be done in
the premises, as fully to all intents and purposes as the undersigned could do
if personally present, and each of the undersigned for himself hereby ratifies
and confirms all that said attorneys or any one of them shall lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
/s/ Robert L. Pearson President and Chief April 27, 1998
- ------------------------ Executive Officer and Director
Robert L. Pearson (Principal Executive Officer)
/s/ Jack P.Wissman Executive Vice President, April 27, 1998
- ------------------------ Chief Administrative and
Jack P. Wissman Financial Officer (Principal
Financial Officer)
</TABLE>
II-6
<PAGE> 7
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
/s/ Philip R. Albright Director of Finance and April 27, 1998
- ------------------------ Controller (Principal
Philip R. Albright Accounting Officer)
/s/ David L. Witte Executive Vice President and April 27, 1998
- ------------------------- Director
David L. Witte
/s/ John F. Johnson Chairman of the Board of April 27, 1998
- ------------------------- Directors
John F. Johnson
/s/ Joe D. Goodwin Director April 27, 1998
- -------------------------
Joe D. Goodwin
/s/ Roderick C.Gow Director April 27, 1998
- -------------------------
Roderick C. Gow
/s/ John S. Rothschild Director April 27, 1998
- -------------------------
John S. Rothschild
/s/ Ray J. Groves Director April 27, 1998
- -------------------------
Ray J. Groves
/s/ Richard W. Pogue Director April 27, 1998
- -------------------------
Richard W. Pogue
/s/ John C. Pope Director April 27, 1998
- -------------------------
John C. Pope
</TABLE>
II-7
<PAGE> 8
The Plan. Pursuant to the requirements of the Securities Act of 1933,
Lamalie Associates, Inc., in its capacity as administrator of the Lamalie
Associates, Inc. Profit Sharing Plan (the employee benefit plan participations
in which are being registered under this registration statement), has duly
caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Orlando, State of
Florida, on the 27th day of April, 1998.
Lamalie Associates, Inc.
Profit Sharing Plan
By: Lamalie Associates, Inc.
(as Plan Administrator)
By: /s/ Robert L. Pearson
-----------------------------------------------------
Robert L. Pearson, President and Chief Executive Officer
II-8
<PAGE> 1
EIGHTH AMENDMENT AND RESTATEMENT
OF THE
LAMALIE ASSOCIATES, INC.
PROFIT SHARING TRUST
<PAGE> 2
EIGHTH AMENDMENT AND RESTATEMENT
OF THE
LAMALIE ASSOCIATES, INC.
PROFIT SHARING TRUST
Table of Contents
-----------------
<TABLE>
<CAPTION>
Page
Article Title Number
- ------- ----- ------
<S> <C> <C>
I Definitions 1
II Name of Trust 2
III Establishment of Trust Fund 2
IV Trust Administration 3
V Investment Managers 5
VI Investment of Trust Fund 6
VII Expenses of Administration
of Plan and Trust Fund 8
VIII Amendment and Termination 8
IX Acceptance of Trust 10
X Miscellaneous 10
</TABLE>
<PAGE> 3
EIGHTH AMENDMENT AND RESTATEMENT
OF THE
LAMALIE ASSOCIATES, INC.
PROFIT SHARING TRUST
THIS AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST (the
"Agreement") is made and entered into this 14th day of November, 1985, by and
between LAMALIE ASSOCIATES, INC. (the "Company") and TEXAS COMMERCE BANK
NATIONAL ASSOCIATION (the "Trustee").
WITNESSETH:
----------
WHEREAS, the Company has previously adopted the Lamalie Associates, Inc.
Profit Sharing Trust, which has been amended from time to time (as amended, the
"Trust"); and
WHEREAS, pursuant to Article VIII of the Trust, the Company is authorized
and empowered to amend the Trust; and
WHEREAS, the Company deems it advisable and in the best interests of the
Participants to amend the Trust to reflect changes made to applicable law by
recent Acts of Congress and other desired changes.
NOW, THEREFORE, the Trust is hereby amended in its entirety to read as
follows:
ARTICLE I
Definitions
-----------
As used in this Agreement, the following terms shall have the meaning
hereinafter set out:
(a) "Administrator" shall mean the Plan Administrator.
(b) "Board of Directors" and "Board" shall mean the board of directors of
the Company or, when required by the context, the board of directors of an
Employer other than the Company.
(c) "Code" shall mean the Internal Revenue Code of 1954, as amended.
Reference to a specific section of the Code shall include a reference to any
successor provision.
(d) "Company" shall mean Lamalie Associates, Inc., or its successors.
<PAGE> 4
(e) "Effective Date of this Amendment and Restatement" shall mean July 1,
1984.
(f) "Employer" shall mean the Company or any subsidiary or related
corporation or other entity that adopts the Plan with the consent of the
Company.
(g) "Investment Manager" shall mean the individual, individuals,
partnership, corporation or other entity, if any, appointed by the Administrator
to manage all or a portion of the assets of the Plan. Any Investment Manager
shall be (1) registered as an investment advisor under the Investment Advisors
Act of 1940; (2) a bank as defined in such Act; or (3) an insurance company
qualified to perform the services of an investment manager under the laws of
more than one state.
(h) "Participant" shall mean any eligible employee of an Employer who has
become a Participant under the Plan and, unless the context otherwise indicates,
shall include any former employee of an Employer who became a Participant under
the Plan and who still has an account balance under the Plan.
(i) "Plan" shall mean the Lamalie Associates, Inc. Profit Sharing Plan, as
it may be in effect from time to time.
(j) "Plan Administrator" shall mean the Company.
(k) "Plan Year" shall mean the 12-month period ending on June 30.
(l) "Trust" shall mean the trust established by the Company as herein set
forth.
(m) "Trustee" shall mean the individual, individuals or corporation
designated as trustee under this Agreement, or any amendment hereof.
(n) "Trust Fund" shall mean the trust fund established under this Agreement
from which the amounts of supplementary compensation provided for by the Plan
are to be paid or are to be funded.
ARTICLE II
Name of Trust
-------------
The trust created in accordance with the terms hereof shall be known as the
"LAMALIE ASSOCIATES, INC. PROFIT SHARING TRUST."
ARTICLE III
Establishment of Trust Fund
---------------------------
The Company has previously established, pursuant to the Plan, a trust
comprised of amounts previously contributed by the Company,
2.
<PAGE> 5
together with such other sums of money and property as shall from time to time
be paid or delivered to the Trustee, the earnings and profits thereon and any
assets into which such funds are converted. The Trust Fund shall be held by the
Trustee in trust and dealt with in accordance with the provisions hereof. Except
as otherwise permitted by law, in no event shall any part of the principal or
income of the Trust Fund be used for or diverted to any purpose whatsoever other
than for the exclusive benefit of the Participants and their beneficiaries.
ARTICLE IV
Trust Administration
--------------------
(a) The Trustee shall receive from each Employer the payments made as its
contributions under the Plan and shall perform such duties as are specified
under the Plan and in this Agreement. However, the Trustee shall have no duty or
right to inquire into the amount of any contribution made by an Employer or a
Participant or the method used in determining the amount of such contributions,
but the Trustee shall be accountable only for funds actually received by it.
(b) When directed in writing by the Plan Administrator, the Trustee shall:
(1) value the Trust Fund and allocate the benefits of the Trust to the
various Participants;
(2) make transfers, payments and deliveries to or for the account of
Participants or their beneficiaries; and
(3) borrow money and pledge any Trust property for the payment of any
such loan.
Nothing contained in this paragraph (b) shall prevent the Plan Administrator
itself from performing the actions described in subparagraph (1).
(c) The Trustee is authorized to:
(1) settle, compromise or submit to arbitration any claims, debts or
damages due or owing to or from this Trust, commence or defend suits or
legal or administrative proceedings and represent the Trust in all suits
and legal and administrative proceedings;
(2) employ suitable agents and counsel (who may be counsel for an
Employer), and pay their reasonable expenses and compensation; and
(3) make, execute and deliver as Trustee, with provisions for no
individual responsibility, all instruments in writing necessary or
appropriate for the exercise of any of its powers of administration;
provided, that as a matter of convenience, when the Trustee is two
3.
<PAGE> 6
or more persons, any one of such persons may exercise the powers
contained in this paragraph (c) without the necessity of the other
person or persons joining therein.
(d) In allocating the benefits of the Trust to the respective Participants,
the Trustee shall rely entirely on the written directions of the Plan
Administrator. The Trustee shall have no dealings with the beneficiaries under
this Agreement except under the direction of the Plan Administrator to make
payment to them. If and when the Trustee is a corporation, all directions,
papers and communications addressed to it or intended to be filed with it shall
be delivered at its principle office.
(e) The Trustee shall keep accurate and detailed accounts on all
investments, receipts, disbursements and other transactions hereunder. All
accounts, books and records relating to this transaction shall be open to
inspection and audit at all reasonable times by any person designated by the
Plan Administrator.
(f) (1) The Company may at any time remove any Trustee acting hereunder by
providing written notice to such Trustee, which removal shall take effect
on the date therein specified; and any Trustee acting hereunder may at any
time resign by providing the Company and the Plan Administrator with a
written resignation, which resignation shall take effect on the date
therein specified, but not less than thirty (30) days from the date of
the giving of such notice unless the Plan Administrator shall agree to an
earlier date. The Company may appoint a corporation or an individual or
individuals to be successor Trustee hereunder in the place of any removed
or resigned Trustee. Any notice required or permitted by this subparagraph
shall be deemed given upon the mailing thereof to the appropriate person by
certified or registered U.S. mail, return receipt requested, in a properly
addressed envelope, postage prepaid.
(2) After receiving notice of removal or after the effective date of
resignation, the removed or resigning Trustee shall transfer, pay over and
deliver the Trust Fund to the successor Trustee, or if no successor Trustee
be appointed within thirty (30) days from the Trustee's receipt of notice
of removal or within thirty (30) days from the effective date of the
Trustee's resignation, as the case may be, the removed or resigning Trustee
shall, upon the expiration of such 30-day period, transfer, pay over and
deliver the Trust Fund to the Plan Administrator, without any
responsibility upon the removed or resigning Trustee for any misapplication
or to see to the further application or disposition of the Trust Fund by
any successor Trustee or the Plan Administrator, as the case may be.
Notwithstanding any such transfer, payment and delivery of the Trust Fund
to any successor Trustee or to the Administrator, as the case may be, the
removed or resigning Trustee may have its entire account judicially settled
and it shall be entitled to the payment out of the Trust Fund of any
compensation due to it up to the time of removal or resignation and of any
expenses or other disbursements, whether theretofore or thereafter arising,
for which the removed or resigning Trustee would be entitled to
reimbursement if the Trust Fund had not been so transferred, paid over and
delivered.
4.
<PAGE> 7
(g)(1) Within thirty (30) days after the end of each Plan Year, and within
thirty (30) days after removal or resignation, the Trustee shall furnish
the Plan Administrator with a verified accounting of the Trust Fund for
such Plan Year, or for the portion thereof ending with the date of such
removal or resignation, which accounting shall include a record of receipts
and disbursements, changes in investments and realized appreciation and
depreciation for such year or period, and a statement of assets (showing
both book value and fair market value) and liabilities on hand as of the
end of such year or period.
(2) Except as otherwise permitted by law, all rights of every
Participant and every beneficiary of a Participant under the Plan or this
Agreement with relation to the Trust Fund or that may arise against or
affect the Trustee shall be enforced exclusively by the Administrator,
which is hereby given the express power and authority to enforce all such
rights as a representative of every Participant and beneficiary under the
Plan, and in any action or proceeding with relation to the Trust Fund or
brought by or against the Trustee, the Plan Administrator shall be deemed
to represent every interested Participant and beneficiary.
(h) The Trustee shall establish in writing a funding policy and method
for the Plan and this Trust, which policy shall be reviewed at least once each
year. All actions taken with respect to such funding policy and the reasons
therefor shall be recorded in writing by the Trustee.
ARTICLE V
Investment Managers
-------------------
(a) The Plan Administrator may appoint one or more Investment Managers
to manage all or part of the assets of the Plan in accordance with the
provisions of Article VI; each such appointment shall specify the particular
assets of the Trust Fund to be managed by such Investment Manager.
(b) Before any such appointment becomes effective, any Investment
Manager so appointed shall accept such designation in writing and, as part of
such acceptance, shall acknowledge that it is a fiduciary with respect to the
Plan.
(c) The Plan Administrator may at any time remove an Investment Manager
acting hereunder, and any Investment Manager acting hereunder may at any time
resign, in each case in such manner as may be or may have been agreed by the
Plan Administrator and the Investment Manager. The Administrator may appoint
any individual, individuals, partnership, corporation or other entity to be a
successor Investment Manager hereunder in the place of any removed or resigned
Investment Manager.
5.
<PAGE> 8
ARTICLE VI
Investment of Trust Fund
(a) Except to the extent that a Participant designates that all or a
portion of his accounts are to be held in a fixed income fund as provided in
Article X of the Plan and paragraph (f) below, the responsibility for all
investment decisions with respect to the assets of the Trust shall be that of
the Trustee, unless one or more Investment Managers has been appointed, in which
event the responsibility for investment decisions shall be allocated between the
Trustee and the Investment Managers in accordance with the written direction of
the Plan Administrator, and the Trustee and each Investment Manager shall have
no responsibility for each other's investment decisions.
(b) Investment decisions made by any Investment Manager shall be
communicated to the Trustee and the Plan Administrator, and shall be carried out
forthwith either by the Investment Manager or its agent or by the Trustee acting
upon the direction of the Investment Manager.
(c) Subject to the other provisions of this Article VI, in carrying out
their duties hereunder, each Investment Manager, if any (with respect to making
and carrying out its investment decisions) and the Trustee (with respect to
carrying out the decisions of an Investment Manager or, to the extent there is
none, with respect to making and carrying out investment decisions) are
authorized and empowered to:
(1) sell, redeem or otherwise realize the value of any assets of the
Trust Fund;
(2) invest and reinvest all or any part of the Trust Fund, the income
therefrom and the increment thereof in any common or preferred stocks,
bonds, mortgages, secured or unsecured notes, secured or unsecured
debentures, mutual funds, other securities, or commodities; any common
trust fund operated by the Trustee (provided that as long as the Trust has
any investments in a common fund available only to pension trusts and
profit sharing trusts that meet the requirements of Section 401(a) of the
Code, then such common trust fund shall constitute an integral part of this
Trust and of the Plan); insurance and/or annuities on the lives of the
Participants; or property of any kind or nature whatsoever, real, personal
or mixed, including mortgaged real property, without regard to any rule of
law or statute designating securities to be held for trust funds; and to
hold cash uninvested (or in deposits bearing a reasonable rate of interest,
in a bank or other similar institution supervised by the United States or a
state, including, if applicable, the Trustee) at any time and from time to
time;
(3) without limitation on the foregoing, buy and sell listed options
and/or sell covered options and repurchase the same;
(4) vote upon any stocks, bonds or other securities of any corporation
or other issuer held in the Trust, and otherwise consent
6.
<PAGE> 9
to or request any action on the part of such corporation or other issuer,
and give general or special proxies or powers of attorneys with or without
power of substitution;
(5) become a party to the reorganization, consolidation or merger of
any corporation, and for such purposes execute any agreements or consents,
or participate in or take any steps to effectuate the same, whether or not
any specific plans have been formulated therefor and in connection
therewith, deposit any such securities with creditors or stockholders'
committees, bodies or other protective groups, and surrender or exchange
any such securities for such debentures, certificates, receipts,
agreements or proceeds as may be issued or paid by such committees, bodies
or groups, or reorganized, consolidated or merged corporations, and
generally exercise all the rights and powers, whether herein enumerated or
not, as may be lawfully exercised by persons holding similar property in
their own right; and
(6) to the extent allowable by law, acquire an individual life
insurance or annuity contract from a Participant on whose life the
contract is issued, or from an Employer, if the Trustee pays, transfers or
otherwise exchanges no more than the lesser of the cash surrender value of
the contract or the value of the Participant's account balance, and such
sale, transfer or exchange does not involve any contract which is subject
to a mortgage or similar lien which the Plan assumes.
(d) If under the authority of paragraph (c)(2), investment is to be made in
a life insurance and/or annuity contract or contracts for the benefit of the
insured, such contract or contracts shall be purchased for all Participants
proportionately; and any such insurance shall be ordinary life or term
insurance. At any particular time, the aggregate premiums for such insurance in
the case of each Participant shall be less than one-half (1/2) of the
contributions then allocated to the Accounts A and B of such Participant; and,
for the purpose of making such calculation, the premiums for any term insurance
purchased shall be deemed to be twice the amount of the actual premiums paid for
such insurance. Dividends paid on life insurance contract or contracts of a
Participant shall be allocated to the accounts of such Participant. No part of
any contribution by a Participant to his Account B shall be used by the Trustee
to purchase life insurance for such Participant.
(e) The Trustee and each Investment Manager shall make, execute and
deliver, as Trustee or Investment Manager, as the case may be, with provisions
for no individual liability, all instruments in writing necessary for the
exercise of any of the foregoing powers.
(f) The Participants shall have the right, in accordance with the
provisions of Article X of the Plan, to designate that all or a portion of their
accounts be placed in a fixed income fund. The Plan Administrator shall inform
the Investment Manager for such assets of any such election made by a
Participant and, upon being so informed by the Plan Administrator, the
Investment Manager shall invest the accounts of such Participant, to the extent
so elected, in a fixed income fund. Any assets to be
7.
<PAGE> 10
invested in a fixed income fund shall be invested in Certificates of Deposit,
variable amount notes, commercial paper, United States Treasury and Agency
Bonds, Notes and Bills, repurchase agreements, savings accounts, money market
funds, STIFs and comparable investments; provided, that with respect to such
fund, the Trustee and Investment Manager shall have all of the powers provided
in this Trust to the Trustee and Investment Manager(s), as the case may be, and
the Investment Manager shall have the right to make all investment decisions as
to the specific investments in the fixed income fund within the limitations
described above.
ARTICLE VII
Expenses of Administration of Plan and Trust Fund
The Company shall bear all expenses of implementing the Plan and this
Trust. For its services hereunder, any corporate trustee shall be entitled to
receive reasonable compensation in accordance with its rate schedule in effect
from time to time for the handling of a pension trust. Any individual Trustee
shall be entitled to such compensation as shall be arranged between the Company
and such individual Trustee by separate instrument; provided, that no person who
is already receiving full-time pay from any Employer or any Affiliate shall
receive compensation from the Trust Fund (except for the reimbursement of
expenses properly and actually incurred). All expenses of the administration of
the Trust Fund, including the Trustee's compensation, the compensation of any
Investment Manager, the expenses incurred by the Plan Administrator in
discharging its duties, all income or other taxes of any kind whatsoever that
may be levied or assessed under existing or future laws upon or in respect of
the Trust Fund, and any interest that may be payable on money borrowed by the
Trustee for the purpose of the Trust, shall be paid out of the assets of the
Trust Fund unless paid or provided for by an Employer. Notwithstanding anything
contained herein to the contrary, no excise tax or other liability imposed upon
the Trustee, the Plan Administrator or anyone else for failure to comply with
the provisions of any federal law shall be subject to payment or reimbursement
from the assets of the Trust.
ARTICLE VIII
Amendment and Termination
-------------------------
(a) The Plan and this Trust may be amended or terminated by the Company
in accordance with the terms of the Plan and this Trust; provided, however, no
such amendment:
(1) shall have the effect of vesting in any Employer, directly or
indirectly, any interest, ownership or control in any of the present or
subsequent funds held subject to the terms of this Trust;
8.
<PAGE> 11
(2) shall cause or permit any property held subject to the terms of
this Trust to be diverted to purposes other than the exclusive benefit of
the Participants and their beneficiaries or for the administration expenses
of the Plan Administrator and this Trust;
(3) shall reduce any vested interest of a Participant on the later of
the date the amendment is adopted or the date the amendment is effective,
except as permitted by law;
(4) shall reduce the accounts of any Participant;
(5) shall amend any vesting schedule with respect to any Participant
who has at least five (5) Years of Service at the end of the election
period described below, except as permitted by law, unless each such
Participant shall have the right to elect to have the vesting schedule in
effect prior to such amendment apply with respect to him, such election, if
any, to be made during the period beginning not later than the date the
amendment is adopted and ending no earlier than sixty (60) days after the
latest of the date the amendment is adopted, the amendment becomes
effective or the Participant is issued written notice of the amendment by
his Employer or the Plan Administrator; or
(6) shall increase the duties or liabilities of the Trustee without
its written consent.
(b) Subject to paragraph (a), any Employer, in its sole and absolute
discretion, may terminate the Plan and this Trust (with respect to all Employers
if it is the Company, or with respect to itself alone if it is an Employer
other than the Company), completely or partially, at any time without any
liability whatsoever for such complete or partial termination.
(c) In the event an Employer decides to terminate the Plan and this Trust,
such decision shall be evidenced by an appropriate resolution of its Board and a
certified copy of such resolution shall be delivered to the Plan Administrator
and the Trustee. After payment of all expenses and proportional adjustments of
individual accounts to reflect such expenses and other changes in the value of
the Trust Fund as of the date of termination, each affected Participant or the
beneficiary of any such Participant shall be entitled to receive, in a lump sum,
any amount then credited to his accounts.
(d) In the event an Employer decides to permanently discontinue making
contributions, such decision shall be evidenced by an appropriate resolution of
its Board and a certified copy of such resolution shall be delivered to the Plan
Administrator and the Trustee. All of the assets in the Trust Fund belonging to
the affected Participants on the date of discontinuance specified in such
resolutions shall be held, administered and distributed by the Trustee in the
manner provided under this Agreement.
9.
<PAGE> 12
ARTICLE IX
Acceptance of Trust
-------------------
The Trustee hereby accepts this trust and agrees to hold all the property
now or hereafter constituting the Trust Fund hereunder, subject to all the
terms and conditions of this Agreement.
ARTICLE X
Miscellaneous
-------------
(a) The Plan and this Trust may not be merged or consolidated with, and
the assets or liabilities of the Plan and this Trust may not be transferred to,
any other plan or trust unless each Participant would receive a benefit
immediately after the merger, consolidation or transfer if the plan and trust
then terminated that is equal to or greater than the benefit the Participant
would have received immediately before the merger, consolidation or transfer if
the Plan and this Trust had then terminated.
(b) (1) Except as provided in subparagraph (2), no Participant or any
beneficiary of a Participant shall have any right to assign, transfer,
appropriate, encumber, commute, anticipate or otherwise alienate his
interest in the Trust, or any payments to be made hereunder; no benefits,
payments, rights or interests of a Participant or a beneficiary of a
Participant of any kind or nature shall be in any way subject to legal
process to levy upon, garnish or attach the same for payment of any claim
against the Participant or beneficiary of a Participant; and no Participant
or beneficiary of a Participant have any right of any kind whatsoever with
respect to the Trust, or any estate or interest therein, or with respect to
any other property or right, other than the right to receive such
distributions as are lawfully made out of this Trust, as and when the same
respectively are due and payable under the terms of this Agreement.
(2) Notwithstanding the provisions of subparagraph (1), the Plan
Administrator shall direct the Trustee to make payments pursuant to a
Qualified Domestic Relations Order as defined in Section 414(p) of the
Code. The Plan Administrator shall establish procedures consistent with
Section 414(p) of the Code to determine if any order received by the Plan
Administrator or any other fiduciary of the Plan is a Qualified Domestic
Relations Order.
(c) This Agreement and Declaration of Trust shall be administered,
construed and enforced according to the laws of the State of Florida, except to
the extent such laws have been expressly preempted by federal law.
(d) Whenever the Company or any other Employer under the terms of this
Agreement is permitted or required to do or perform any act, it shall be done
and performed by the Board of Directors of the Company or
10.
<PAGE> 13
such other Employer and shall be evidenced by proper resolution of the Board
of Directors of the Company or such other Employer.
(e) In the event it becomes impossible for the Company, any other
Employer, the Plan Administrator or the Trustee to perform any act required by
this Agreement, then the Company, such other Employer, the Plan Administrator
or the Trustee, as the case may be, may perform such alternative act that most
nearly carries out the intent and purpose of this Agreement.
(f) Throughout this Agreement, and whenever appropriate, the masculine
gender shall be deemed to include the feminine and neuter; the singular, the
plural; and vice versa.
IN WITNESS WHEREOF, the parties have executed this Eighth Amendment
and Restatement this 14th day of November 1985.
ATTEST: LAMALIE ASSOCIATES, INC.
(Corporate Seal)
By:
- ---------------------------------- ---------------------------------
Secretary Chairman of the Board
"COMPANY"
ATTEST: TEXAS COMMERCE BANK NATIONAL
ASSOCIATION
By:
- ---------------------------------- ---------------------------------
"TRUSTEE"
11.
<PAGE> 14
NINTH AMENDMENT
TO THE
LAMALIE ASSOCIATES, INC.
PROFIT SHARING TRUST
This Ninth Amendment to the Lamalie Associates, Inc. Profit Sharing Trust
is made and entered into this 16th day of March, 1987, but is effective for all
purposes as provided herein, by and between Lamalie Associates, Inc., an Ohio
corporation (the "Company"), and Texas Commerce Bank National Association (the
"Trustee").
W I T N E S S E T H:
WHEREAS, the Company has previously adopted the Lamalie Associates, Inc.
Profit Sharing Trust, which has been amended from time to time (as amended, the
"Trust"); and
WHEREAS, pursuant to Article VIII of the Trust, the Company is authorized
and empowered to amend the Trust further; and
WHEREAS, certain assets of the Company may be acquired in the future by
Lamalie Associates, Inc., a Delaware corporation (the "Acquiring Corporation"),
and it is intended that the Acquiring Corporation will continue to carry out
the Company's business and to employ the Company's employees; and
WHEREAS, the Company desires to amend the Trust further to make certain
changes consistent with such anticipated acquisition, and to make certain other
changes to comply with rules governing plan loans pursuant to requirements of
the Tax Reform Act of 1986.
NOW, THEREFORE, the Trust is hereby amended as follows:
<PAGE> 15
I.
Effective as of the date of any acquisition of the Company's assets by the
Acquiring Corporation, the Company shall cease to be the sponsor of the Plan and
the Trust, and paragraph (d) of Article I of the Trust shall be amended to read
as follows:
(d) "Company" shall mean Lamalie Associates, Inc., a Delaware corporation,
or its successors.
II.
Effective as of January 1, 1987, paragraph (b)(1) of Article X of the Trust
is hereby amended by inserting the phrase "in paragraph (e) of the Plan or"
immediately following the word "provided" in the first line thereof.
IN WITNESS WHEREOF, this Ninth Amendment has been made and entered into the
day first above written, effective as provided herein.
ATTEST: LAMALIE ASSOCIATES, INC.
(CORPORATE SEAL)
- ------------------------- ------------------------
Secretary Chairman of the Board
"COMPANY"
ATTEST: TEXAS COMMERCE BANK NATIONAL
ASSOCIATION
By: /s/ CYNTHIA L. COLES
- ------------------------- --------------------------
"TRUSTEE"
Cynthia L. Coles
Vice President and Trust
Officer
2.
<PAGE> 16
TENTH AMENDMENT
OF THE
LAMALIE ASSOCIATES, INC.
PROFIT SHARING TRUST
This Tenth Amendment of the Lamalie Associates, Inc. Profit Sharing Trust
is made and entered into this 15th day of May, 1987, but is effective for all
purposes as of February 28, 1987, by Lamalie Associates, Inc. (the "Company")
and Texas Commerce Bank National Association (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Company has previously adopted the Lamalie Associates, Inc.
Profit Sharing Trust, which has been amended from time to time (as amended, the
"Trust"), and
WHEREAS, pursuant to Article VIII of the Trust, the Company is authorized
and empowered further to amend the Trust; and
WHEREAS, the Company deems it advisable to amend the Trust to change the
Plan Year end to coincide with the Company's fiscal year end.
NOW, THEREFORE, paragraph (k) of Article I is hereby amended to read as
follows:
(k) "Plan Year" shall mean the 12-month period ending June 30; provided,
however, that the Plan Year beginning July 1, 1986, shall end on February 28,
1987, and the Plan Year beginning March 1, 1987 and all Plan Years thereafter
shall be the 12-month period ending on the last day of February of each year.
IN WITNESS WHEREOF, the Tenth Amendment has been executed this 15th day of
May, 1987, but is effective for all purposes as of February 28, 1987.
ATTEST: LAMALIE ASSOCIATES, INC.
(CORPORATE SEAL)
By:
- --------------------------- -------------------------
Secretary President
"COMPANY"
<PAGE> 17
ATTEST: TEXAS COMMERCE BANK NATIONAL
ASSOCIATION
(CORPORATE SEAL)
By: /s/ Luke Provemano
- ----------------------------- ------------------------------
Secretary Vice President & Trust Officer
"TRUSTEE"
2.
<PAGE> 18
ELEVENTH AMENDMENT
OF THE
LAMALIE ASSOCIATES, INC.
PROFIT SHARING TRUST
This Eleventh Amendment of the Lamalie Associates, Inc. Profit Sharing
Trust is made and entered into this eleventh day June, 1992, but is effective
for all purposes as of April 3, 1992, by Lamalie Associates, Inc. (the
"Company") and Jack P. Wissman and Cynthia S. Jetmore (collectively, the
"Trustees").
W I T N E S S E T H:
The Company has previously adopted the Lamalie Associates, Inc. Profit
Sharing Trust, which has been amended from time to time (as amended to date,
the "Trust"); and
WHEREAS, pursuant to Article VIII of the Trust, the Company is authorized
and empowered further to amend the Trust; and
WHEREAS, the Company deems it advisable to amend the Trust further to
reflect a change in the identity of the Trustee.
NOW, THEREFORE, the Trust is hereby amended by removing Texas Commerce
Bank National Association as the Trustee and by replacing such entity with Jack
P. Wissman and Cynthia S. Jetmore. By their signatures to this Eleventh
Amendment, Jack P. Wissman and Cynthia S. Jetmore hereby accept the Trust and
agree to hold all the property now or hereafter constituting the Trust Fund
under the Trust, subject to all the terms and conditions of the Trust.
IN WITNESS WHEREOF, this Eleventh Amendment has been executed this
eleventh day of June, 1992, but is effective for all purposes as of April 3,
1992.
ATTEST: LAMALIE ASSOCIATES, INC.
(CORPORATE SEAL)
/s/ Jack P. Wissman By: /s/
- ----------------------------- ------------------------------
Secretary President
"COMPANY"
/s/ Rachel A. Muller /s/ Jack P. Wissman
- ----------------------------- ---------------------------------
Jack P. Wissman
/s/ Barbara A. Erickson
- -----------------------------
Witnesses as to Wissman
/s/ Rachel A. Muller /s/ Cynthia S. Jetmore
- ----------------------------- ---------------------------------
Cynthia S. Jetmore
/s/ Barbara A. Erickson
- -----------------------------
Witnesses as to Jetmore "TRUSTEE"
<PAGE> 1
EXHIBIT 5
[TRENAM, KEMKER, SCHARF, BARKIN, FRYE, O'NEILL & MULLIS LETTERHEAD]
April 29, 1998
Securities and Exchange Commission
450 5th Street, N.W.
Judiciary Plaza
Washington, DC 20549
Re: Lamalie Associates, Inc.
Profit Sharing Plan
Registration Statement on Form S-8
Ladies and Gentlemen:
We have represented Lamalie Associates, Inc. (the "Company") in
connection with the Company's Registration Statement on Form S-8 (the
"S-8 Registration Statement") relating to the offering by the Company (the
"Offering") of 200,000 shares of the Company's Common Stock under the Company's
Profit Sharing Plan (the "Plan"). This opinion is being provided as Exhibit 5
to the S-8 Registration Statement.
In our capacity as counsel to the Company in connection with the S-8
Registration Statement and the Offering, we have examined and are familiar with
(1) the Company's Articles of Incorporation and Bylaws, each as currently in
effect, (2) the Plan, (3) the S-8 Registration Statement and (4) such other
corporate records and documents and instruments as in our opinion are necessary
or relevant as the basis for the opinion expressed below.
As to various questions of fact material to our opinion, we have
relied without independent investigation on statements or certificates of
officials and representatives of the Company, the Department of State of the
State of Florida and others. In all such examinations, we have assumed the
genuineness of all signatures on original and certified documents and the
conformity to original and certified documents of all copies submitted to us as
conformed, photostatic or other exact copies.
We express no opinion as to the law of any jurisdiction other than of
the State of Florida and the federal laws of the United States of America.
<PAGE> 2
SECURITIES AND EXCHANGE COMMISSION APRIL 29, 1998
PAGE 2
- -------------------------------------------------------------------------------
Based upon and in reliance on the foregoing, we are of the opinion
that:
1. The Company is a validly existing corporation under the laws of the
State of Florida and its status is active.
2. The Plan has been duly and legally authorized by all required
corporate action.
3. When the following events shall have occurred:
a. the S-8 Registration Statement shall have become effective
in accordance with the Securities Act of 1933, as amended;
b. the participations relating to shares of Common Stock shall
have been offered as contemplated in Plan;
c. the consideration specified in the Plan shall have been
received; and
d. the certificates representing such shares of Common Stock
shall have been duly executed, counter-signed and issued by
or on behalf of the Company.
the shares of Common Stock so offered and sold in the Offering will be duly
authorized, validly issued, fully paid and non-assessable shares of the capital
stock of the Company.
This firm hereby consents to the filing of this opinion as an Exhibit
to the S-8 Registration Statement.
Sincerely,
TRENAM, KEMKER, SCHARF, BARKIN
FRYE, O'NEILL & MULLIS
Professional Association
By:
Richard M. Leisner
<PAGE> 1
Exhibit 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
As independent certified public accountants, we hereby consent to the
incorporation by reference in this registration statement of our report dated
April 11, 1997 (except with respect to the matters discussed in Note 9, as to
which the date is June 3, 1997) in Lamalie Associates, Inc.'s Registration
Statement on Form S-1 (No. 333-26027) and our report dated February 27, 1998,
in Lamalie Associates, Inc.'s Report on Form 8-K.
/s/ Arthur Anderson LLP
Tampa, Florida,
April 30, 1998
