AMENDED AND RESTATED EMPLOYMENT AGREEMENT
(XXXXX XXXXXXX)
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement") is
made and entered into effective as of January 1, 2000 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 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-Corporate Development. As such, Employee shall have
responsibilities, duties and authority reasonably accorded to and expected of
a Senior Vice President-Corporate Development. 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 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.
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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) 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, a written Bonus Plan attached hereto on
EXHIBIT A sets forth the criteria under which Employee will be eligible to
receive year-end bonus awards. 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).
(iv) Provided that Employee is employed by the Company at
November 1, 2000, Employee shall be granted options to acquire 10,000
shares of Common Stock of the Company at the fair market value thereof
under the terms of the Company's 1995 Stock Option Plan (the "1995
Plan"). Such options shall be exercisable in twenty percent (20%)
increments on each anniversary of the date of grant for so long as
Employee is employed by the Company and in accordance with the terms
set forth in the related Stock Option Grant Certificate and the 1995
Plan.
(v) The Company shall provide Employee with other
executive perquisites as may be available to or deemed appropriate for
Employee by the
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Board and participation in all other Company-wide employee benefits as
available from time to time.
3. PLACE OF PERFORMANCE. [INTENTIONALLY OMITTED.]
4. TERM; TERMINATION; RIGHTS ON TERMINATION. The term of this
Agreement shall begin on the date hereof and continue until December 31, 2001
(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 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 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 material 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, 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)
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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 whatever time period is remaining under the Term of this Agreement
or for six (6) months, whichever is greater. 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) CHANGE IN CONTROL. See 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. 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.
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(g) TERMINATION BY EMPLOYEE WITHOUT CAUSE. If Employee resigns
or otherwise terminates his employment without Good Reason pursuant to
paragraph 4(f) 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 (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 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, acquisition candidate lists and all related documentation 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.
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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, or 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;
(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 or acquisition
candidates who have been contacted by the Company or who are on
acquisition target lists of the Company from the Business; and
Page 6
(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.
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
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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.
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
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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.
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) Employee understands and acknowledges that the Company may
be merged or consolidated with or into another entity.
(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 two (2) times Employee's annual
salary immediately prior to 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 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 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 severance payment due to Employee shall be two (2) times
Employee's annual salary immediately prior to the Change in
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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 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 Stock Option Plan, 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
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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.
(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
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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.
------------------------------------------
Xx X. Xxxxxx, Xx.
EMPLOYEE:
/s/ Xxxxx Xxxxxxx
---------------------------------------------
XXXXX XXXXXXX
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