EXHIBIT 10.65
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") between F.Y.I.
Incorporated, a Delaware corporation ("Company"), and Xxxxx Xxxxxxxxxx
("Consultant") is hereby entered into and effective as of January 1, 2000.
The Agreement hereby supersedes any other employment or consulting agreement
or understanding, written or oral, between the Company or its subsidiaries
and Consultant.
NOW, THEREFORE, for and in consideration of the mutual promises,
terms, covenants and conditions set forth herein and the performance of each,
it is hereby agreed as follows:
1. ENGAGEMENT AND DUTIES.
(a) The Company hereby engages Consultant as a merger and
acquisition consultant, to assist the Company in implementing its growth
strategies and plans. Specific projects will be identified as required.
EXHIBIT "A" sets forth in summary form a nonexclusive list of the duties
and services that the Company and Consultant contemplate that Consultant
will provide to the Company under this Agreement.
(b) The consulting activities will be provided solely by
Consultant. Consultant hereby accepts this engagement upon the terms and
conditions herein contained and agrees to devote such time as the Company
and Consultant shall reasonably determine to be necessary for Consultant
to render such services.
2. FEES.
(a) The Company shall compensate Consultant on an annual basis
with respect to acquisition transactions closed during each calendar year
during the Term hereof based upon the product of the earnings before
interest and taxes of the acquired entity or assets EBIT (before
deducting Goodwill associated with the subject transactions amortized
over thirty (30) years) ("Acquired EBIT") multiplied by 1.5% (such
product, the "Consulting Compensation").
(b) Within forty-five (45) business days following the end of each
fiscal quarter of the Company, the Company shall determine the estimated
annual aggregate Acquired EBIT and pay Consultant an amount equal to 75%
of the aggregate Consulting Compensation (each such payment, an "Initial
Consulting Compensation Payment"), and shall provide Consultant with
documentation setting forth the Company's calculations for such payment.
At the one-year anniversary of each acquisition, the Company shall
determine the actual aggregate Acquired EBIT recognized by the Company as
adjusted for any post-closing adjustments pursuant to the transaction
documents governing such acquisitions, accounting adjustments or
otherwise ("Final Acquired EBIT"), and shall
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provide Consultant with documentation setting forth the Company's
calculations for such payments. If the aggregate Consulting
Compensation payable with respect to such acquisition based upon Final
Acquired EBIT is greater than the Initial Consulting Compensation
Payment previously made by the Company to Consultant, the Company
shall deliver the balance to Consultant within forty-five (45)
business days following the one-year anniversary; and in the event
that the Initial Consulting Compensation Payment previously made by
the Company to the Consultant with respect to such acquisition is
greater than the aggregate Consulting Compensation payable with
respect to such acquisition based upon Final Acquired EBIT, Consultant
shall deliver to the Company an amount equal to the excess within
forty-five (45) business days following such one-year anniversary, or
this amount may be offset against payments to be made in a subsequent
quarter.
(c) If Consultant objects to the calculation of the Consulting
Compensation based upon Final Acquired EBIT, he shall notify the Company
within ten (10) business days following his receipt of the Company's
calculations, setting forth in writing in specific detail the basis for
his objection and his proposal for any adjustments thereto. The Company
and Consultant shall use their respective best efforts to reach agreement
as to any such adjustments or that no such adjustments are necessary. If
agreement is reached with respect to such matters, the parties shall make
such adjustments and payments as shall have been agreed upon. If the
Company and Consultant are unable to reach agreement within twenty (20)
business days, then Xxxxxx Xxxxxxxx LLP shall be engaged to review the
disagreement and shall make a determination as to the resolution of the
matter. All resolutions shall represent either agreement with the
position taken by the Company or by Consultant or a compromise of such
positions. The determination of Xxxxxx Xxxxxxxx LLP shall be final,
conclusive and binding upon the Company and Consultant. Within five (5)
business days following the conclusion of Xxxxxx Xxxxxxxx LLP, any amount
determined to be owing to Consultant or the Company, whichever the case
may be, shall be paid by the appropriate party. The costs of Xxxxxx
Xxxxxxxx LLP for its services as described in this paragraph 2(c) shall
be borne by the Company.
(d) In no event shall the aggregate Consulting Compensation
paid to Consultant for each calendar year during the term of this
Agreement exceed $250,000.
(e) The Company shall reimburse Consultant for all ordinary and
necessary business expenses lawfully and reasonably incurred by
Consultant in the performance of its services. Consultant shall document
in reasonable detail all reimbursable expenses upon submission of any
request for reimbursement.
3. AGREEMENTS CONCERNING OPTIONS AND WARRANTS.
(a) Any and all outstanding options for the Company's Common Stock
granted to Consultant prior to the date of termination of this Agreement
(including without limitation any Early Termination) shall continue to
vest through December 31, 2001 in accordance with their respective
vesting schedules notwithstanding the change in
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Consultant's relationship with the Company from that of an employee to
a consultant and (to the extent vested on or before December 31, 2001)
shall remain exercisable through such date; provided, however, that in
the event that the Company achieves net income per common share
diluted of $1.93 for the fiscal year ended December 31, 2000,
Consultant's options for 20,000 shares of the Company's Common Stock
granted to Consultant in May 1999 shall become 100% vested effective
upon the Company's public announcement of such net income per share or
upon action by the Company's Board certifying that such target
earnings for 2000 has been achieved. The Company shall take all
actions and execute all documents reasonably necessary to evidence the
foregoing agreements.
(b) The Company and Consultant agree that the warrants to
purchase 20,000 shares of the Company's Common Stock issued in May 1999
shall be cancelled effective upon execution of this Agreement, and that
Consultant shall take all actions and execute all documents reasonably
requested by the Company to evidence such cancellation.
4. TERM; TERMINATION.
(a) The term of this Agreement shall begin on the date of this
Agreement and continue until December 31, 2001 unless earlier terminated
as described below, and shall continue thereafter on a year-to-year basis
until written notice of termination is given by the Company or Consultant
on or before October 1 of each year to terminate this Agreement effective
as of December 31st of such year. Notwithstanding the foregoing, the
Company may terminate this Agreement effective as of December 31, 2000 by
providing written notice of termination to Consultant on or before
October 1, 2000 (such termination being hereinafter referred to as an
"Early Termination").
(b) Upon termination of this Agreement, including an Early
Termination, the Company shall pay Consultant all aggregate Consulting
Compensation and other amounts due and owing to Consultant with respect
to acquisitions closed on or before the effective date of termination in
accordance with the provisions of paragraph 2 hereof. All other rights
and obligations of the Company and Consultant under this Agreement shall
cease as of the effective date of termination, except that the Company's
obligations under paragraph 3 and 9 herein and Consultant's obligations
under paragraphs 2, 6, 7 and 8 herein shall survive such termination in
accordance with their terms.
5. RELATIONSHIP OF PARTIES. It is mutually understood and agreed
that in the performance of his services under this Agreement, Consultant is
at all times performing his services as an independent contractor, and
acknowledges that he is responsible for payment of his income tax, employment
taxes and social security taxes, if any. Further, Consultant will comply
with all applicable taxing authorities, regulations and laws, whether
federal, state or local or otherwise. Consultant shall not take any actions
or make any representations to any person that would suggest that an
employer-employee or principal-agent relationship exists between the Company
and Consultant; PROVIDED, HOWEVER, that the Company and Consultant agree that
Consultant's activities under this Agreement shall be performed by Consultant
under the titles of "Founder"
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and "Director," and that the Company shall describe Consultant in such manner
to third parties and provide Consultant with business cards featuring such
titles. Consultant shall have no right or authority to assume or create any
obligations on behalf of the Company, express or implied, nor shall
Consultant represent to any person that he has such authority or that he
serves the Company in any capacity other than as an outside consultant or in
the manner described in the proviso of the immediately preceding sentence. In
addition, the Company shall not be liable for any injuries suffered by
Consultant while Consultant is consulting for the Company.
6. NONDISCLOSURE AND NONUSE OF CONFIDENTIAL INFORMATION. Except
as required by the nature of Consultant's duties or with the prior written
approval of an authorized officer of the Company, Consultant will not during
the term of this Agreement or thereafter use or disclose any confidential or
proprietary information of the Company or its subsidiaries, any of its
customers or any potential acquisition candidates, including without
limitation customer lists, market research, strategic plans or other
information or discoveries, inventions, improvements, know-how, methods or
other trade secrets, whether developed by Consultant or others. Consultant
will comply with the Company's policies and procedures from time to time in
effect for the protection of confidential or proprietary information.
7. NON-COMPETITION AGREEMENT.
(a) Consultant will not, during the term of this Agreement and
for a period of two (2) years immediately following the termination of
Consultant's engagement under this Agreement, for any reason whatsoever,
directly or indirectly, for himself or on behalf of or in conjunction
with any other person, company, partnership, corporation, business or
entity of whatever nature:
(i) engage, as an officer, director, shareholder, owner,
partner, joint venturer, or in a managerial capacity, whether as an
employee, independent contractor, consultant or advisor, or as a sales
representative, in any business selling any products or services in
direct competition with the Company, within 100 miles of (i) the
principal executive offices of the Company or (ii) any place to which the
Company (including the subsidiaries thereof) provides products or
services or in which the Company (including the subsidiaries thereof) is
in the process of initiating business operations during the term of this
covenant (the "Territory");
(ii) call upon any person who is, at that time, within the
Territory, an employee of the Company (including the subsidiaries
thereof) in a managerial capacity for the purpose or with the intent of
enticing such employee away from or out of the employ of the Company
(including the subsidiaries thereof), provided that Consultant shall be
permitted to call upon and hire any member of his immediate family;
(iii) call upon any person or entity which is, at that time, or
which has been, within one (1) year prior to that time, a customer of the
Company (including the subsidiaries thereof) within the Territory for the
purpose of soliciting or selling products or services in direct
competition with the Company within the Territory;
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(iv) call upon any prospective acquisition candidate, on
Consultant's own behalf or on behalf of any competitor, which candidate
was either called upon by the Company (including the subsidiaries
thereof) or for which the Company made an acquisition analysis, for the
purpose of acquiring such entity; or
(v) disclose customers, whether in existence or proposed, of
the Company (or the subsidiaries thereof) to any person, firm,
partnership, corporation or business for any reason or purpose
whatsoever.
Notwithstanding the above, the foregoing covenant shall not be deemed
to prohibit Consultant from acquiring as an investment not more than three
percent (5%) of the capital stock of a competing business, whose stock is
traded on a national securities exchange or over-the-counter.
(b) Because of the difficulty of measuring economic losses to
the Company as a result of a breach of the foregoing covenant, and
because of the immediate and irreparable damage that could be caused to
the Company for which it would have no other adequate remedy, Consultant
agrees that the foregoing covenant may be enforced by the Company in the
event of breach by him by injunctions and restraining orders without the
necessity of posting any bond therefor.
(c) It is agreed by the parties that the foregoing covenants
in this paragraph 7 impose a reasonable restraint on Consultant in
light of the activities and business of the Company (including the
Company's subsidiaries) on the date of the execution of this Agreement
and the current plans of the Company (including the Company's
subsidiaries); but it is also the intent of the Company and Consultant
that such covenants be construed and enforced in accordance with the
changing activities, business and locations of the Company (including
the Company's subsidiaries) throughout the term of this covenant,
whether before or after the date of termination of Consultant's
engagement hereunder, subject to the following paragraph. For
example, if, during the term of this Agreement, the Company (including
the Company's subsidiaries) engages in new and different activities,
enters a new business or established new locations for its current
activities or businesses in addition to or other than the activities
or businesses in which the Company and its subsidiaries are engaged as
of the date hereof or the locations currently established therefor,
then Consultant will be precluded from soliciting the customers or
employees of such new activities or businesses or from such new
location and from directly competing with such new businesses within
100 miles of its then-established operating locations through the term
of this covenant.
It is further agreed by the parties hereto that, in the event that
Consultant shall cease to be engaged hereunder, and shall enter into a
business or pursue other activities not in competition with the Company
(including the Company's subsidiaries) or similar activities or business in
locations the operation of which, under such circumstances, does not violate
clause (i) of this paragraph 7, and in any event such new business,
activities or location are not in violation of this
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paragraph 7 or of Consultant's obligations under this paragraph 7, Consultant
shall not be chargeable with a violation of this paragraph 7 if the Company
(including the Company's subsidiaries) shall thereafter enter the same,
similar or a competitive (i) business, (ii) course of activities or (iii)
location, as applicable.
(d) The covenants in this paragraph 7 are severable and
separate, and the unenforceability of any specific covenant shall not
affect the provisions of any other covenant. Moreover, in the event any
court of competent jurisdiction shall determine that the scope, time or
territorial restrictions set forth are unreasonable, then it is the
intention of the parties that such restrictions be enforced to the
fullest extent which the court deems reasonable, and the Agreement shall
thereby be reformed to such extent.
(e) All of the covenants in this paragraph 7 shall be construed
as an agreement independent of any other provision in this Agreement, and
the existence of any claim or cause of action of Consultant against the
Company, whether predicated on this Agreement or otherwise, shall not
constitute a defense to the enforcement by the Company of such covenants.
It is specifically agreed that the period of two (2) years following
Consultant's engagement set forth at the beginning of this paragraph 7,
during which the agreements and covenants of Consultant made in this
paragraph 7 shall be effective, shall be computed by excluding from such
computation any time during which Consultant is in violation of any
provision of this paragraph 7.
8. USE AND RETURN OF DOCUMENTS. Consultant will not disclose any
documents, record, tapes and other media that contain confidential
information and will not copy any such material or remove it from the
Company's offices except as approved by an authorized officer of the Company.
Upon termination of this Agreement, Consultant will return to the Company
all copies of documents, records, tapes and other media that contain
confidential information.
9. CHANGE IN CONTROL.
(a) Unless he elects to terminate this Agreement pursuant to
(c) below, Consultant 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
Consultant 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 termination payment due to
Consultant shall be $1.5 million and the non-competition provisions of
paragraph 7 shall
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all apply. 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 Consultant's written notice.
(c) In any Change in Control situation in which (i) Consultant
has received written notice from the successor to the Company that such
pending successor is willing to assume the Company's obligations
hereunder or (ii) Consultant receives notice after the Change in Control
that Consultant is being terminated, Consultant 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, subject to the termination provisions of paragraph 3 hereof, up to
one (1) year after the closing of the transaction giving rise to the
Change in Control. In such case, the amount of the lump-sum termination
payment due to Consultant shall be $1.5 million and the non-competition
provisions of paragraph 7 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 Consultant.
(d) For purposes of applying paragraph 3 under the
circumstances described in (b) and (c)(ii) above, the effective date of
termination will be the closing date of the transaction giving rise to
the Change in Control, and all fees, reimbursements and lump-sum payments
due Consultant must be paid in full by the Company at such time.
Further, Consultant will be given sufficient time in order to comply with
the 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 Long-Term Incentive
Compensation Plan 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
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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) The Company shall notify Consultant in writing at any time
that the Company or any member of its Board anticipates that a Change in
Control is reasonably likely to take place.
(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 Consultant shall be entitled under this paragraph to an additional
amount (the "Gross-Up Payment") such that after payment by Consultant of
all of Consultant's applicable Federal, state and local taxes, including
any Excise Tax, imposed upon such additional amount, Consultant will
retain an amount equal to the Excise Tax imposed on the Total Payments.
For purposes of this paragraph Consultant'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
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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 Consultant within twenty business days of the receipt
of notice from Consultant 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,
Consultant 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.
Consultant 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 Consultant owes an
amount of Excise Tax greater than the amount determined pursuant to this
paragraph; PROVIDED, that Consultant shall be entitled to reimbursement
by the Company of all fees and expenses reasonably incurred by Consultant
in contesting such determination. In the event the Internal Revenue
Service or any court of competent jurisdiction determines that Consultant
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 Consultant the amount of such shortfall. In the
case of any payment that the Company is required to make to Consultant
pursuant to the preceding sentence (a "Later Payment"), the Company shall
also pay to Consultant an additional amount such that after payment by
Consultant of all of Consultant's applicable Federal, state and local
taxes, including any interest and penalties assessed by any taxing
authority, on such additional amount, Consultant will retain an amount
equal to the total of Consultant's applicable Federal, state and local
taxes, including any interest and penalties assessed by any taxing
authority, arising due to the Later Payment.
10. REMEDIES. Consultant acknowledges that in the event of a
violation by him of this Agreement the harm to the Company could be
irreparable. Consultant agrees that, in addition to any other remedies
provided by law, the Company will be entitled to obtain injunctive relief
against any such violation without having to post a bond.
11. COMPLETE AGREEMENT. There are 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 Consultant
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 written Agreement may not be later modified except by a
further writing signed by the Company and Consultant, and no term of this
Agreement may be waived except by writing signed by the party waiving the
benefit of such terms.
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12. NO WAIVER. No waiver by the parties hereto of any default or
breach of any term, condition or covenant of this Agreement shall be deemed
to be a waiver of any subsequent default or breach of the same or any other
term, condition or covenant contained herein.
13. NOTICES. 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, XX 00000
Attention: Xxxxxx X. Xxxxxxxxx
Senior Vice President and General Counsel
To Consultant: Xxxxx Xxxxxxxxxx
1 Palace Pier Court, Suite 2303
Xxxxxxxxx, Xxxxxxx X0X 0X0
Notice shall be deemed given and effective five (5) days after the deposit in
the 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 13.
14. 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 the way to describe, interpret, defined or limit the
extent or intent of this Agreement or of any part hereof.
15. GOVERNING LAW; PLACE OF PERFORMANCE. This Agreement shall in
all respects be construed according to the laws of the State of Texas and
Consultant accepts Texas jurisdiction.
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. 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.
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IN WITNESS WHEREOF, the parties hereto have duly caused this Agreement to
be executed as of the date first above written.
F.Y.I. INCORPORATED CONSULTANT
By: /s/Xx X. Xxxxxx, Xx. /s/Xxxxx Xxxxxxxxxx
-------------------------- ----------------------------
Xx X. Xxxxxx, Xx. Xxxxx Xxxxxxxxxx
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EXHIBIT "A"
Set forth below is a nonexclusive list in summary form of certain of
Consultant's responsibilities under the Consulting Agreement dated as of
January 1, 2000, it being understood and agreed by the parties to the
Consulting Agreement that in light of the fluid nature of acquisition
transactions additional services may be requested and that certain of the
services described below may not be applicable.
- Consultant will consult with the Company's executives concerning
the tone and direction of the Company's acquisition program with
respect to all business units (now or hereafter existing) of the
Company and its subsidiaries
- On selected acquisition transactions, Consultant will work as an
acquisition team with Xxxxxx X. Xxxxxx, the Company's Chairman of
the Board and Chief Development Officer
- Consultant will provide advice and guidance to Xxxxx X. Xxxxxxx,
the Company's Senior Vice President-Corporate Development, or any
successor thereto, with respect to acquisition transactions
- Consultant will review the details of all pending acquisition
transactions of the Company and its subsidiaries concerning the
terms thereof and the strategic goals to be effected thereby,
including without limitation the following:
- Whether or not to go forward with the pending acquisition
on the proposed terms thereof or to modify the terms
- The most advantageous tax, corporate and managerial
structure of the proposed transaction and of the acquired
entity or assets on a post-acquisition basis
- The status of the negotiations with respect to the
acquisition and the suggested resolutions of outstanding
issues with respect thereto, in light of the transaction at
issue, the Company's objectives and the Company's past
acquisitions
- Compliance with the Company's goals, standards and best
practices
- Final review and approval of transactions prior to closing
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- Consultant shall assist the Company and its representatives in
selected investor relations activities and events as reasonably
determined by the Company and Consultant
- Consultant, in his capacity as a Director of the Company, shall
serve on the Executive Committee of the Board of Directors of the
Company
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