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EXHIBIT 10.41
EMPLOYMENT AGREEMENT
(XXXXX XXXXXXX)
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into
the 1st day of November, 1998 by and between Xxxxx Xxxxxxx ("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 Vice President-Corporate
Development and Senior Vice President-Corporate Development upon relocation to
Dallas, Texas. As such, Employee shall have responsibilities, duties and
authority reasonably accorded to and expected of a Vice President-Corporate
Development or Senior Vice President-Corporate Development, as the case may be
and will report directly to the Executive Vice President-Corporate Development
and the CEO, respectively of the Company. The Employee's title will be Vice
President-Corporate Development until such time as the Employee relocates to
Dallas, at which time the Employee's title will become Senior Vice
President-Corporate Development. Employee hereby accepts this
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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 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 $165,000 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). For 1999
and subsequent years, a written Bonus Plan attached hereto as Exhibit A sets
forth the criteria under which Employee will be eligible to receive year-end
bonus awards at the discretion of the Executive Committee of the Board of
Directors.
(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) Coverage for Employee 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) Employee shall be granted options to acquire 40,000
shares of Common Stock at $25.00 per share. The Options shall become
exercisable on the earlier of: (a) 25% increments on each anniversary
of the date of grant; or (b) as to the following chart:
Run Rate Acquired E.B.T.* Amount Vested
------------------------- -------------
$ 4M 10,000
$ 8M 10,000
$12M 10,000
$16M 10,000
*In accordance with Exhibit A solely relates to the Employee's
performance.
The Options shall expire on the tenth anniversary of the date of grant.
(v) In addition, Employee shall be granted options to acquire
5,000 shares of Common Stock at $25.00 per share in accordance with the
Stock Option Grant Certificate and the 1995 Stock Option Plan. The
options shall become exercisable as described in Exhibit B or on the
eighth anniversary of the date of grant if Employee is still employed
by the Company.
(vi) If the Agreement is renewed after the Term, Employee
shall be granted options to acquire 10,000 shares of Common Stock at
the fair market value on the renewal date. Such options shall be
exercisable in 20% increments on each anniversary of the date of grant
as long as Employee is employed by the Company, and in accordance with
the Stock Option Grant Certificate and 1995 Stock Option Plan.
3. Place of Performance. Employee and the Company understand that
Employee will work out of Malvern, Pennsylvania until Employee's home is sold.
Employee will be requested by the Company to relocate from his then current
residence to another Dallas, Texas in order to more efficiently carry out his
duties and responsibilities under this Agreement and as part of a promotion to
Senior Vice President. It is, however, agreed that the Employee will relocate as
soon as his home is sold. In such event, the Company will pay relocation costs
up to $75,000 to move Employee, his immediate family and their personal property
and effects. Such costs may include, by way of example, but are not limited to,
pre-move visits to search for a new residence, investigate schools or for other
purposes; temporary lodging and living costs prior to moving into a new
permanent residence; duplicate home carrying costs; and closing costs on the
sale of Employee's present residence and on the purchase of a comparable
residence in the new location. The general intent of the foregoing is to assist
Employee with the cost of the relocation, with an understanding that Employee
will use his best efforts to incur only those costs which are reasonable and
necessary to effect a smooth, efficient and orderly relocation with minimal
disruption to the business affairs of the Company and the personal life of
Employee and his family.
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In addition, up to $30,000 (the "Loan") will be loaned to Employee.
Such Loan shall be repaid $10,000 per year and at the Company's discretion may
come from Employee's Bonus. If Employee leaves prior to such Loan being paid in
full, Employee must repay such Loan prior to leaving. While the Loan is
outstanding Employee shall not exercise any vested options, unless such exercise
first repays the Loan in full.
4. Term; Termination; Rights on Termination. The term of this
Agreement shall begin on the date hereof and continue for two (2) years (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. However, any
bonuses or incentive payments from companies being acquired or acquired through
the direct and material efforts of Employee prior to death will remain due and
payable to the Employee's estate in accordance with the schedule listed on
Exhibit A.
(b) Disability. The Company will make efforts to reasonably
accommodate Employee as required by applicable state or federal disability laws.
However, the parties irrebuttably 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 six (6) months. In addition, any
bonuses or incentive payments from companies being acquired or acquired through
the direct and material efforts of Employee prior to termination for disability
will remain due and payable in accordance with the schedule listed on Exhibit A.
(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
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receipt of the written notice) of any of Employee's material duties and
responsibilities hereunder; (iii) Employee's dishonesty, breach of
confidentiality, including but not limited to any discussions of the Company's
strategy, acquisitions or acquisition candidates, a breach of any
non-competition agreement, 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 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 six (6) months.
However, if the Company terminates Employee prior to the first anniversary of
this Agreement, 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 six (6) months, plus the number of months remaining until the first
year anniversary of this Agreement. In addition, any bonuses or incentive
payments from companies being acquired or acquired through the direct and
material efforts of Employee prior to termination without cause will remain due
and payable in accordance with the schedule listed on Exhibit A.
(e) 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) and (c); or
(ii) Any other material breach of this Agreement by the
Company, 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
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then in effect for six (6) months. In addition, any bonuses or incentive
payments from companies being acquired or acquired through the direct and
material efforts of Employee prior to termination will remain due and payable in
accordance with the schedule listed on Exhibit A.
(f) Termination by Employee Without Cause. If Employee resigns or
otherwise terminates his employment without Good Reason pursuant to paragraph
4(e) or if this Agreement is not renewed at the end of the Term, Employee shall
receive no severance compensation. However, any bonuses or incentive payments
from companies being acquired or acquired through the direct and material
efforts of Employee prior to termination by employee without cause will remain
due and payable to Employee in accordance with the schedule listed on Exhibit A.
Upon termination of this Agreement for any reason provided in clauses (a)
through (f) 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 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, 10 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 or
their representatives, vendors or customers, acquisition candidate lists and all
related documentation which pertain to the business of the Company 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 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 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 relationships or
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agreements with their respective significant vendors or customers or any other
significant and material trade secret of the Company, 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,
customers or acquisition candidates 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 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 (i) two (2) years thereafter in the case of termination pursuant to
sections 4(b), 4(c) and 4(f) of this Agreement and (ii) one (1) year in the case
of termination pursuant to sections 4(d) and 4(e) of this Agreement or if this
Agreement is not renewed, 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, accounts or acquisition candidates who have been contacted by the
Company or who are on acquisition target lists of the Company 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;
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(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 existing customers, suppliers or employees or acquisition candidates who
have been contacted by the Company or who are on acquisition target lists of the
Company 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 Stock Market.
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 gross 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 the 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
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Company based upon or arising out of any non-competition agreement, employment
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.
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: Xxxxx Xxxxxxx
000 Xxxxxxx Xxxx
Xxxx Xxxxxxx, XX 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.
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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 direct expense of any arbitration
proceeding shall be borne by the Company.
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.
19. Attorneys' Fees. In the event of any litigation or arbitration
arising under or in connection with this Agreement, each party shall be
responsible for their own attorneys' fees. 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 Company
and Employee have 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, then such Change in Control
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shall be deemed to be a termination of this Agreement by the Company without
cause and paragraph 4(d) will apply; however, under such circumstances, the
amount of the lump-sum severance payment due to Employee shall be the equivalent
of Employee's salary for one year and the non-competition provisions of
paragraph 3 shall not apply whatsoever.
(c) In any Change in Control situation in which Employee has received
written notice from the successor to the Company that such successor is willing
to assume the Company's obligations hereunder, Employee may nonetheless, at his
sole discretion, elect to terminate this Agreement by providing written notice
to the Company at least five (5) business days prior to the anticipated closing
of the transaction giving rise to the Change in Control. In such case, paragraph
4(d) will apply as though the Company had terminated the Agreement without
cause; however, under such circumstances, the amount of the lump-sum severance
payment due to Employee shall be the equivalent of Employee's salary for one
year and the non-competition provisions of paragraph 9 shall all apply for a
period of one (1) year from the effective date of termination.
(d) For purposes of applying paragraph 4 under the circumstances
described in (b) and (c) above, the effective date of termination will be the
closing date of the transaction giving rise to the Change in Control and all
compensation, reimbursements, bonus incentive and lump-sum payments due Employee
must be paid in full by the Company at or prior to such closing. Further,
Employee will be given an opportunity to elect whether to exercise 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, such that he may convert the options 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
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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).
(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.
(g) Employee shall be reimbursed by the Company or its successor for
any excise taxes and/or interest or penalties with respect to such excise taxes
that Employee incurs under Section 4999 of the Internal Revenue Code of 1986, as
amended (or any similar tax that may hereafter be imposed), as a result of any
Change in Control. Such amount will be due and payable by the Company or its
successor within ten (10) days after Employee delivers a written request for
reimbursement accompanied by a copy of his tax return(s) showing the excise tax
actually incurred by Employee.
[BALANCE OF SHEET INTENTIONALLY LEFT BLANK]
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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/ Xxxxx Xxxxxxxxxx
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Title: Executive Vice President
Corporate Development and
Treasurer
EMPLOYEE:
/s/ Xxxxx Xxxxxxx
-----------------------------------
Xxxxx Xxxxxxx
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EXHIBIT A
BONUS PLAN
Bonus is to be determined as follows:
Half of Employee's bonus shall be based on the Company hitting certain
earnings targets ("Earnings Bonus"). The other half of Employee's bonus shall be
based on the corporate development team and Employee hitting certain acquisition
targets. For 1999, the acquisition team shall have acquired at least $12.0 EBIT
and Employee must contribute at least $4.0 EBIT (the "Acquisition Bonus") to
receive the Acquisition Bonus. The Acquisition Bonus will be uncapped and will
be increased based on actual performance at the discretion of the Executive
Committee of the Board of Directors of the Company.
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EXHIBIT B
OPTIONS
Number = 5,000
Strike Price = $25.00
Vesting = Sole discretion of F.Y.I. based on mutually agreeable
objectives, provided always that 50% will be based on
developing a strategic plan for providing document
information outsourcing solutions for state and local
government.
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