EXHIBIT 10.67
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
(XXXXXX XXXXXXXXX)
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into
effective as of January 1, 2000 by and between Xxxxxx Xxxxxxxxx ("Employee")
and F.Y.I. Incorporated, a Delaware corporation (the "Company"). This
Agreement hereby supersedes any other employment agreements or
understandings, written or oral, between the Company and Employee.
R E C I T A L S
The following statements are true and correct:
As of the date of this Agreement, the Company is engaged primarily in
the document and information management services business (the "Business").
Employee is employed hereunder by the Company in a confidential
relationship wherein Employee, in the course of his employment with the
Company, has and will continue to become familiar with and aware of
information as to the Company's customers, specific manner of doing business,
including the processes, techniques and trade secrets utilized by the
Company, and future plans with respect thereto, all of which has been and
will be established and maintained at great expense to the Company; this
information is a trade secret and constitutes the valuable goodwill of the
Company.
Therefore, in consideration of the mutual promises, terms, covenants
and conditions set forth herein and the performance of each, it is hereby
agreed as follows:
A G R E E M E N T S
1. EMPLOYMENT AND DUTIES.
(a) The Company hereby employs Employee as a Senior Vice
President-Business Unit Executive and Officer of the Company. As such,
Employee shall have responsibilities, duties and authority reasonably
accorded to and expected of a Senior Vice President-Business Unit Executive
and Officer of the Company. Employee hereby accepts this employment upon the
terms and conditions herein contained and, subject to paragraph 1(b), agrees
to devote his working time, attention and efforts to promote and further the
business of the Company.
(b) Employee shall not, during the term of his employment
hereunder, be engaged in any other business activity pursued for gain, profit
or other pecuniary advantage except to the extent that such activity does not
interfere with Employee's duties and responsibilities hereunder. The
foregoing limitations shall not be construed as prohibiting Employee from
making personal
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investments in such form or manner as will neither require his services in
the operation or affairs of the companies or enterprises in which such
investments are made.
2. COMPENSATION. For all services rendered by Employee, the
Company shall compensate Employee as follows:
(a) BASE SALARY; ANNUAL BONUS. The base salary payable to Employee
shall be $250,000 per year, payable on a regular basis in accordance with the
Company's standard payroll procedures but not less than monthly (pro-rated
for any year in which Employee is employed for less than the full year)
beginning January 1, 2000. On at least an annual basis the Board of
Directors (the "Board") will review Employee's performance and make increases
to such base salary if, in its discretionary, any such increase is warranted.
For 2000 and subsequent years, it is the Company's intent to develop a
written Incentive Bonus Plan setting forth the criteria under which Employee
and other officers and key employees will be eligible to receive year-end
bonus awards. Employee shall be eligible for a bonus opportunity of up to 50%
of Employee's annual base salary payable in cash and or equity at the
Company's discretion beginning January 1, 2000 in accordance with this
Incentive Bonus Plan. Such recommended increase would, in all likelihood,
require approval by the Board or a duly constituted committee thereof. For
2000 Employee has already been awarded Warrant No. 16 as partial payment for
any 2000 Bonus opportunity. In addition, Employee shall be eligible for up
to an additional $15,000 cash bonus. The award of any bonus shall be based
on the Company's overall performance and the total performance of the
business unit managed and shall be payable in various increments based on the
performance. The incremental payments and the Company's targeted performance
shall be determined by the Board or the compensation committee thereof.
(b) OTHER COMPENSATION. Employee shall be entitled to receive
additional benefits and compensation from the Company in such form and to
such extent as specified below:
(i) Payment of all premiums for coverage for Employee and
Employee's dependent family members under health, hospitalization,
disability, dental and other insurance plans that the Company may have in
effect from time to time.
(ii) Reimbursement for all business travel and other
out-of-pocket expenses reasonably incurred by Employee in the
performance of his services pursuant to this Agreement and a $500 per
month car allowance (determined on a pre-tax basis). All reimbursable
expenses shall be appropriately documented in reasonable detail by
Employee upon submission of any request for reimbursement, and in a
format and manner consistent with the Company's expense reporting
policy.
(iii) Four (4) weeks paid vacation for each year during the
period of employment or such greater amount as may be afforded officers
and key employees generally under the Company's policies in effect from
time to time (pro-rated for any year in which Employee is employed for
less than the full year).
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(iv) The Company shall provide Employee with other executive
perquisites as may be available to or deemed appropriate for Employee by
the Board and participation in all other Company-wide employee benefits
as available from time to time.
3. [INTENTIONALLY LEFT BLANK]
4. TERM; TERMINATION; RIGHTS ON TERMINATION. The term of this
Agreement shall begin on the date hereof and continue for three (3) years.
On the annual anniversary, the agreement shall automatically renew for a two
(2) year period, unless prior written notice is provided to Employee that it
will not be renewed (the "Term"). This Agreement and Employee's employment
may be terminated in any one of the following ways:
(a) DEATH. The death of Employee shall immediately terminate the
Agreement with no severance compensation due to Employee's estate.
(b) DISABILITY. The Company will make efforts to reasonably
accommodate Employee as required by applicable state or federal disability
laws. However, the parties irrebutably presume that, given Employee's
position, it would be an undue hardship to the Company if Employee is absent
for more than three (3) consecutive months. Therefore, if as a result of
incapacity due to physical or mental illness or injury, Employee shall have
been absent from his full-time duties hereunder for three (3) consecutive
months, then thirty (30) days after receiving written notice (which notice
may occur before or after the end of such three (3) month period, but which
shall not be effective earlier than the last day of such three (3) month
period), the Company may terminate Employee's employment hereunder provided
Employee is unable to resume his full-time duties at the conclusion of such
notice period. Also, Employee may terminate his employment hereunder if his
health should become impaired to an extent that makes the continued
performance of his duties hereunder hazardous to his physical or mental
health or his life, provided that Employee shall have furnished the Company
with a written statement from a qualified doctor to such effect and provided,
further, that at the Company's request made within thirty (30) days of the
date of such written statement, Employee shall submit to an examination by a
doctor selected by the Company who is reasonably acceptable to Employee or
Employee's doctor and such doctor shall have concurred in the conclusion of
Employee's doctor. In the event this Agreement is terminated as a result of
Employee's disability, Employee shall receive from the Company, in a lump-sum
payment due within ten (10) days of the effective date of termination, the
base salary at the rate then in effect for whatever time period is remaining
under the Term of this Agreement or for six (6) months, whichever amount is
greater.
(c) GOOD CAUSE. The Company may terminate the Agreement five (5)
days after written notice to Employee for good cause, which shall be: (i)
Employee's breach of this Agreement; (ii) Employee's negligence in the
performance or nonperformance (continuing for five (5) days after receipt of
the written notice) of any of Employee's material duties and responsibilities
hereunder; (iii) Employee's dishonesty, fraud or misconduct with respect to
the business or affairs of the Company that adversely affects the operations
or reputation of the Company; (iv) Employee's conviction of a felony crime;
or (v) chronic alcohol abuse or illegal
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drug abuse by Employee. In the event of a termination for good cause, as
enumerated above, Employee shall have no right to any severance compensation.
(d) WITHOUT CAUSE. At any time after the commencement of
employment, the Company may, without cause, terminate this Agreement and
Employee's employment, effective ten (10) days after written notice is
provided to Employee. Employee may only be terminated without cause by the
Company during the Term hereof if such termination is approved by the Board
of Directors of the Company. Should Employee be terminated by the Company
without cause, Employee shall receive from the Company, in a lump-sum payment
due on the effective date of termination, the base salary at the rate then in
effect for whatever time period is remaining under the Term of this Agreement.
(e) CHANGE IN CONTROL. Refer to paragraph 20 below.
(f) TERMINATION BY EMPLOYEE FOR GOOD REASON. Employee may
terminate his employment hereunder for "Good Reason." As used herein, "Good
Reason" shall mean the continuance of any of the following after fifteen (15)
days' prior written notice by Employee to the Company, specifying the basis
for such Employee's having Good Reason to terminate this Agreement:
(i) Employee's removal from, or failure to be reappointed or
reelected to, Employee's position under this Agreement, except as
contemplated by paragraphs 4(a), (b), (c) and (e); or
(ii) Any other material breach of this Agreement by the Company
that is not cured within the fifteen (15) day time period set forth in
paragraph 4(f) above, including the failure to pay Employee on a timely
basis the amounts to which he is entitled under this Agreement.
In the event of any dispute with respect to the termination by the Employee
for Good Reason, such dispute shall be resolved pursuant to the provisions of
paragraph 16 below. In the event that it is determined that Good Reason did
exist, the Company shall pay all amounts and damages to which Employee may be
entitled as a result of such breach, including interest thereon and all
reasonable legal fees and expenses and other costs incurred by Employee to
enforce his rights hereunder. Should Employee terminate his employment for
Good Reason, Employee shall receive from the Company, in a lump-sum payment
due on the effective date of termination, the base salary at the rate then in
effect for whatever time period is remaining under the Term of this Agreement
or for six (6) months, whichever amount is greater.
(g) TERMINATION BY EMPLOYEE WITHOUT CAUSE. If Employee resigns or
otherwise terminates his employment without Good Reason pursuant to paragraph
4(f), Employee shall receive no severance compensation.
Upon termination of this Agreement for any reason provided in clauses (a)
through (g) above, Employee shall be entitled to receive all compensation
earned and all benefits and reimbursements vested or due through the
effective date of termination. Additional compensation subsequent to
termination, if any, will be due and payable to Employee only to the
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extent and in the manner expressly provided above or in paragraph 16. All
other rights and obligations of the Company and Employee under this Agreement
shall cease as of the effective date of termination, except that the
Company's obligations under paragraph 10 herein and Employee's obligations
under paragraphs 5, 6, 7, 8, 9 and 11 herein shall survive such termination
in accordance with their terms.
5. RETURN OF COMPANY PROPERTY. All records, designs, patents, business
plans, financial statements, manuals, memoranda, lists and other property
delivered to or compiled by Employee by or on behalf of the Company
(including the Company's subsidiaries) or their representatives, vendors or
customers which pertain to the business of the Company (including the
Company's subsidiaries) shall be and remain the property of the Company, as
the case may be, and be subject at all times to their discretion and control.
Likewise, all correspondence, reports, records, charts, advertising
materials and other similar data pertaining to the business, activities or
future plans of the Company (including the Company's subsidiaries) that is
collected by Employee shall be delivered promptly to the Company without
request by it upon termination of Employee's employment.
6. INVENTIONS. Employee shall disclose promptly to the Company
any and all significant conceptions and ideas for inventions, improvements
and valuable discoveries, whether patentable or not, which are conceived or
made by Employee, solely or jointly with another, during the period of
employment or within one (1) year thereafter, and which are directly related
to the business or activities of the Company (including the Company's
subsidiaries) and that Employee conceives as a result of his employment by
the Company. Employee hereby assigns and agrees to assign all his interests
therein to the Company or its nominee. Whenever requested to do so by the
Company, Employee shall execute any and all applications, assignments or
other instruments that the Company shall deem necessary to apply for and
obtain letters patent of the United States or any foreign country or to
otherwise protect the Company's interest therein.
7. TRADE SECRETS. Employee agrees that he will not, during or
after the term of this Agreement with the Company, disclose the specific
terms of the Company's (including the Company's subsidiaries) relationships
or agreements with their respective significant vendors or customers or any
other significant and material trade secret of the Company (including the
Company's subsidiaries), whether in existence or proposed, to any person,
firm, partnership, corporation or business for any reason or purpose
whatsoever.
8. DISCLOSURE OF INFORMATION. Employee agrees that for a period
of three (3) years after the date hereof or during the Term of this Agreement
and for a period of three (3) years thereafter, whichever is longer, without
the prior written consent of the Company, Employee shall not, directly or
indirectly, through any form of ownership, in any individual or
representative or affiliated capacity whatsoever, except as may be required
by law, reveal, divulge, disclose or communicate to any person, firm,
association, corporation or other entity in any manner whatsoever information
of any kind, nature or description concerning: (i) the names of any prior or
present suppliers or customers with respect to the Business, (ii) the prices
for products or services with respect to the Business, (iii) the names of
personnel with respect to the Business, (iv) the manner of operation with
respect to the Business, (v) the plans, trade secrets, or other data of any
kind, nature or description, whether tangible or intangible, with respect to
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the Business, or (vi) any other financial, statistical or other information
regarding the business acquired by the Company that the Company designates or
treats as confidential or proprietary. The agreements set forth herein shall
not apply to any information that at the time of disclosure or thereafter is
generally available to and known by the public (other than as a result of a
disclosure directly or indirectly by Employee in violation of this
Agreement). Without regard to whether any or all of the foregoing matters
would be deemed confidential, material or important, the parties hereto
stipulate that as between them, the same are important, material and
confidential and gravely affect the effective and successful conduct of the
Business and its goodwill.
9. NONCOMPETITION. (a) Employee agrees that during the Term of
this Agreement and, upon termination of Employee's employment by the Company
for a period of three (3) years thereafter, he shall not:
(i) Call upon, solicit, divert, take away or attempt to call
upon, solicit, divert or take away any existing customers, suppliers,
businesses, or accounts of the Business in connection with any business
substantially similar to the Business in the territory defined as 100
miles in and around the Company's and its affiliates' operations (the
"Territory");
(ii) Hire, attempt to hire, contact or solicit with respect to
hiring for himself or on behalf of any other person any present employee
of the Company in the Business;
(iii) Lend credit, money or reputation for the purpose of
establishing or operating a business substantially similar to the
Business in the Territory;
(iv) Do any act that Employee knew or reasonably should have
known might directly injure the Company in any material respect or that
might divert customers, suppliers or employees from the Business; and
(v) Without limiting the generality of the foregoing
provisions, conduct a business substantially similar to the Business
under the name "F.Y.I. Incorporated" or any other trade names, trademarks
or service marks heretofore used by the Company or its affiliates.
The covenants in subsections (i) through (v) are intended to restrict
Employee from competing in any manner with the Company or the Business in the
activities that have heretofore been carried on by the Company or its
affiliates. The obligations set forth in subsections (i) through (v) above
shall apply to actions by Employee, through any form of ownership, and
whether as principal, officer, director, agent, employee, employer,
consultant, stockholder or holder of any equity security (beneficially or as
trustee of any trust), lender, partner, joint venturer or in any other
individual or representative or affiliated capacity whatsoever. However,
none of the foregoing shall prevent Employee from being the holder of up to
5.0% in the aggregate of any class of securities of any corporation engaged
in the activities described in subsection (i) through (v) above, provided
that such securities are listed on a national securities exchange or reported
on the Nasdaq National Market.
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10. INDEMNIFICATION. In the event Employee is made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by the
Company against Employee), by reason of the fact that he is or was performing
services under this Agreement, then the Company shall indemnify Employee
against all expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement, as actually and reasonably incurred by Employee
in connection therewith. In the event that both Employee and the Company are
made a party to the same third-party action, complaint, suit or proceeding,
the Company agrees to engage competent legal representation, and Employee
agrees to use the same representation, provided that if counsel selected by
the Company shall have a conflict of interest that prevents such counsel from
representing Employee, Employee may engage separate counsel and the Company
shall pay all attorneys' fees of such separate counsel. Further, while
Employee is expected at all times to use his best efforts to faithfully
discharge his duties under this Agreement, Employee shall not be held liable
to the Company for errors or omissions made in good faith where Employee has
not exhibited negligence or performed criminal and fraudulent acts which
damage the business of the Company.
11. NO PRIOR AGREEMENTS. Employee hereby represents and warrants
to the Company that the execution of this Agreement by Employee and his
employment by the Company and the performance of his duties hereunder will
not violate or be a breach of any agreement with a former employer, client or
any other person or entity. Further, Employee agrees to indemnify the
Company for any claim, including, but not limited to, attorneys' fees and
expenses of investigation, by any such third party that such third party may
now have or may hereafter come to have against the Company based upon or
arising out of any non-competition agreement, invention or secrecy agreement
between Employee and such third party which was in existence as of the date
of this Agreement.
12. ASSIGNMENT; BINDING EFFECT. Employee understands that he has
been selected for employment by the Company on the basis of his personal
qualifications, experience and skills. Employee agrees, therefore, he cannot
assign all or any portion of his performance under this Agreement. Subject
to the preceding, this Agreement shall be binding upon, inure to the benefit
of and be enforceable by the parties hereto and their respective heirs, legal
representatives, successors and assigns.
13. COMPLETE AGREEMENT. This Agreement is not a promise of future
employment. Employee has no oral representations, understandings or
agreements with the Company or any of its officers, directors or
representatives covering the same subject matter as this Agreement. This
written Agreement is the final, complete and exclusive statement and
expression of the agreement between the Company and Employee and of all the
terms of this Agreement, and it cannot be varied, contradicted or
supplemented by evidence of any prior or contemporaneous oral or written
agreements. This Agreement may not be later modified except by a further
writing signed by a duly authorized officer of the Company and Employee, and
no term of this Agreement may be waived except by writing signed by the party
waiving the benefit of such term.
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14. NOTICE. Whenever any notice is required hereunder, it shall be
given in writing addressed as follows:
To the Company: F.Y.I. Incorporated
0000 XxXxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxx X. Xxxxxxxxx, Esq.
To Employee: Xxxxxx Xxxxxxxxx
000 Xxx Xxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Notice shall be deemed given and effective three (3) days after the deposit
in the United States mail of a writing addressed as above and sent first
class mail, certified, return receipt requested, or when actually received.
Either party may change the address for notice by notifying the other party
of such change in accordance with this paragraph 14.
15. SEVERABILITY; HEADINGS. If any portion of this Agreement is
held invalid or inoperative, the other portions of this Agreement shall be
deemed valid and operative and, so far as is reasonable and possible, effect
shall be given to the intent manifested by the portion held invalid or
inoperative. The paragraph headings herein are for reference purposes only
and are not intended in any way to describe, interpret, define or limit the
extent or intent of the Agreement or of any part hereof.
16. ARBITRATION. Any unresolved dispute or controversy arising
under or in connection with this Agreement shall be settled exclusively by
arbitration, conducted before a panel of three (3) arbitrators in Dallas,
Texas, in accordance with the rules of the American Arbitration Association
then in effect. The arbitrators shall not have the authority to add to,
detract from, or modify any provision hereof nor to award punitive damages to
any injured party. The arbitrators shall have the authority to order
back-pay, severance compensation, vesting of options (or cash compensation in
lieu of vesting of options), reimbursement of costs, including those incurred
to enforce this Agreement, and interest thereon in the event the arbitrators
determine that Employee was terminated without disability or good cause, as
defined in paragraphs 4(b) and 4(c), respectively, or that the Company has
otherwise materially breached this Agreement. A decision by a majority of
the arbitration panel shall be final and binding. Judgment may be entered on
the arbitrators' award in any court having jurisdiction. The costs of any
arbitration proceeding shall be borne by the party or parties not prevailing
in such proceeding as determined by the arbitrators.
17. GOVERNING LAW. This Agreement shall in all respects be
construed according to the laws of the State of Texas.
18. COUNTERPARTS. This Agreement may be executed simultaneously in
two (2) or more counterparts, each of which shall be deemed an original and
all of which together shall constitute but one and the same instrument.
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19. ATTORNEYS' FEES. In the event of any litigation or arbitration
arising under or in connection with this Agreement, the prevailing party
shall be entitled to reasonable attorneys' fees as determined by the court or
arbitration panel, as the case may be. Each party to this Agreement
represents and warrants that it has been represented by counsel in the
negotiation and execution of this Agreement, including without limitation the
provisions set forth in this paragraph 19.
20. CHANGE IN CONTROL.
(a) Unless he elects to terminate this Agreement pursuant to (c)
below, Employee understands and acknowledges that the Company may be merged
or consolidated with or into another entity and that such entity shall
automatically succeed to the rights and obligations of the Company hereunder.
(b) In the event of a pending Change in Control wherein the
Employee has not received written notice at least fifteen (15) business days
prior to the anticipated closing date of the transaction giving rise to the
Change in Control from the successor to all or a substantial portion of the
Company's business and/or assets that such successor is willing as of the
closing to assume and agree to perform the Company's obligations under this
Agreement in the same manner and to the same extent that the Company is
hereby required to perform, such Change in Control shall be deemed to be a
termination of this Agreement by the Company and the amount of the lump-sum
severance payment due to Employee shall be 2-1/2 times Employee's annual
salary immediately prior to the Change in Control and the non-competition
provisions of paragraph 9 shall not apply whatsoever. Payment shall be made
either at closing of the transaction if notice is served at least five (5)
days before closing or within ten (10) days of Employee's written notice.
(c) In any Change in Control situation in which Employee has
received written notice from the successor to the Company that such pending
successor is willing to assume the Company's obligations hereunder or
Employee receives notice after the Change in Control that Employee is being
terminated, Employee may nonetheless, at his sole discretion, elect to
terminate this Agreement by providing written notice to the Company at any
time prior to closing of the transaction and up to two (2) years after the
closing of the transaction giving rise to the Change in Control. In such
case, the amount of the lump-sum severance payment due to Employee shall be
2 1/2 times Employee's annual salary immediately prior to the Change in Control
and the non-competition provisions of paragraph 9 shall all apply. Payment
shall be made either at closing if notice is served at least five (5) days
before closing or within ten (10) days of written notice by Employee.
(d) For purposes of applying paragraph 4 under the circumstances
described in (b) and (c) above, the effective date of termination will be the
later of the closing date of the transaction giving rise to the Change in
Control or Employee's notice as described above, and all compensation,
reimbursements and lump-sum payments due Employee must be paid in full by the
Company at such time. Further, Employee will be given sufficient time in
order to comply with then Securities and Exchange Commission's regulations to
elect whether to exercise and sell all or any of his vested options to
purchase Common Stock of the Company, including any options with accelerated
vesting under the provisions of the Company's 1995 Stock Option Plan,
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as amended or any warrants, such that he may convert the options or warrants
to shares of Common Stock of the Company at or prior to the closing of the
transaction giving rise to the Change in Control, if he so desires.
(e) A "Change in Control" shall be deemed to have occurred if:
(i) any person, other than the Company or an employee benefit
plan of the Company, acquires directly or indirectly the Beneficial
Ownership (as defined in Section 13(d) of the Securities Exchange Act of
1934, as amended) of any voting security of the Company and immediately
after such acquisition such person is, directly or indirectly, the
Beneficial Owner of voting securities representing 50% or more of the
total voting power of all of the then-outstanding voting securities of
the Company;
(ii) the individuals (A) who, as of the effective date of the
Company's registration statement with respect to its initial public
offering, constitute the Board of Directors of the Company (the
"Original Directors") or (B) who thereafter are elected to the Board
of Directors of the Company and whose election, or nomination for
election, to the Board of Directors of the Company was approved by a
vote of at least two-thirds (2/3) of the Original Directors then still
in office (such directors becoming "Additional Original Directors"
immediately following their election) or (C) who are elected to the
Board of Directors of the Company and whose election, or nomination
for election, to the Board of Directors of the Company was approved by
a vote of at least two-thirds (2/3) of the Original Directors and
Additional Original Directors then still in office (such directors
also becoming "Additional Original Directors" immediately following
their election), cease for any reason to constitute a majority of the
members of the Board of Directors of the Company;
(iii) the stockholders of the Company shall approve a merger,
consolidation, recapitalization or reorganization of the Company, a
reverse stock split of outstanding voting securities, or consummation of
any such transaction if stockholder approval is not sought or obtained,
other than any such transaction which would result in at least 75% of the
total voting power represented by the voting securities of the surviving
entity outstanding immediately after such transaction being Beneficially
Owned by at least 75% of the holders of outstanding voting securities of
the Company immediately prior to the transaction, with the voting power
of each such continuing holder relative to other such continuing holders
not substantially altered in the transaction; or
(iv) the stockholders of the Company shall approve a plan of
complete liquidation of the Company or an agreement for the sale or
disposition by the Company of all or a substantial portion of the
Company's assets (i.e., 50% or more of the total assets of the Company
(including the Company's subsidiaries)).
(f) Employee must be notified in writing by the Company at any time
that the Company or any member of its Board anticipates that a Change in
Control may take place.
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(g) If any portion of the severance benefits, Change in Control
benefits or any other payment under this Agreement, or under any other
agreement with, or plan of the Company, including but not limited to stock
options, warrants and other long-term incentives (in the aggregate "Total
Payments") would be subject to the excise tax imposed by Section 4999 of the
Code, as amended (or any similar tax that may hereafter be imposed) or any
interest or penalties with respect to such excise tax (such excise tax,
together with any such interest and penalties, are hereinafter collectively
referred to as the "Excise Tax"), then Employee shall be entitled under this
paragraph to an additional amount (the "Gross-Up Payment") such that after
payment by Employee of all of Employee's applicable Federal, state and local
taxes, including any Excise Tax, imposed upon such additional amount,
Employee will retain an amount equal to the Excise Tax imposed on the Total
Payments.
For purposes of this paragraph Employee's applicable Federal, state
and local taxes shall be computed at the maximum marginal rates, taking into
account the effect of any loss of personal exemptions resulting from receipt
of the Gross-Up Payment.
All determinations required to be made under this Agreement, including
whether a Gross-Up Payment is required under this paragraph, and the
assumptions to be used in determining the Gross-Up Payment, shall be made by
the Company's current independent accounting firm, or such other firm as the
Company may designate in writing prior to a Change in Control (the
"Accounting Firm"), which shall provide detailed supporting calculations both
to the Company and Employee within twenty business days of the receipt of
notice from Employee that there will likely be a Change in Control, or such
earlier time as is requested by the Company. In the event that the
Accounting Firm is serving as accountant or auditor for the party effecting
the Change in Control or is otherwise unavailable, Employee may appoint
another nationally recognized accounting firm to make the determinations
required hereunder (which accounting firm shall then be referred to as the
Accounting Firm hereunder). All fees and expenses of the Accounting Firm
with respect to such determinations described above shall be borne solely by
the Company.
Employee agrees (unless requested otherwise by the Company) to use
reasonable efforts to contest in good faith any subsequent determination by
the Internal Revenue Service that Employee owes an amount of Excise Tax
greater than the amount determined pursuant to this paragraph; PROVIDED, that
Employee shall be entitled to reimbursement by the Company of all fees and
expenses reasonably incurred by Employee in contesting such determination.
In the event the Internal Revenue Service or any court of competent
jurisdiction determines that Employee owes an amount of Excise Tax that is
either greater than the amount previously taken into account and paid under
this Agreement, the Company shall promptly pay to Employee the amount of such
shortfall. In the case of any payment that the Company is required to make
to Employee pursuant to the preceding sentence (a "Later Payment"), the
Company shall also pay to Employee an additional amount such that after
payment by Employee of all of Employee's applicable Federal, state and local
taxes, including any interest and penalties assessed by any taxing authority,
on such additional amount, Employee will retain an amount equal to the total
of Employee's applicable Federal, state and local taxes, including any
interest and penalties assessed by any taxing authority, arising due to the
Later Payment.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
F.Y.I. INCORPORATED
By: /s/Xx X. Xxxxxx, Xx.
---------------------------------------
Title:
EMPLOYEE:
/s/Xxxxxx Xxxxxxxxx
-------------------------------------------
XXXXXX XXXXXXXXX
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