Exhibit 10.1
EMPLOYMENT AGREEMENT
AGREEMENT made by and between The A Consulting Team, Inc. ("Employer") with a
principal place of business at 000 Xxxx Xxxxxx Xxxxx, Xxx Xxxx, XX 00000, and
the employee ("Employee") named in Attachment A attached hereto and expressly
made a part hereof. In the event that any part of this Employment Agreement and
any part of Attachment A hereto shall be in conflict, then the conflicting
term(s) of the Attachment A shall prevail.
Employer desires to employ Employee and Employee desires to be employed by
Employer in connection with certain aspects of Employer's business under certain
terms and conditions.
In connection with such employment, Employee may be given access to, generate,
or otherwise come into contact with certain proprietary, confidential
information of Employer or clients of Employer.
Since Employer is a publicly traded company, and for other reasons, in the
interests of preserving the assets of Employer, Employer desires and Employee
agrees to prevent the dissemination or misuse of such information.
In consideration of Employee's continued employment, and in consideration of the
mutual promises set forth in this Agreement, the parties hereto mutually agree
as follows:
1. TERMS OF EMPLOYMENT
This Agreement is an "at-will" employment agreement. Accordingly, either
Employer or Employee can terminate the relationship at will, with or without
cause, at any time, so long as there is no violation of applicable federal,
state or local law. Employer hereby employs or continues to employ Employee and
Employee hereby accepts employment, upon the terms and conditions contained
herein and at a compensation and under such additional terms and conditions as
may be set forth in Attachment A, which is expressly made a part hereof.
Employee also expressly agrees to be bound by Employer's standards of
performance as required from time to time.
This Agreement shall commence on the start date indicated in Attachment A and
shall remain in effect for an indefinite time until terminated by one party
giving the other party advance notice of any intended termination. The Employee
shall give the Employer notice of termination at least ten (10) working days in
advance. The length of the advance notice for the Employer shall be determined
by Employer's severance policy and procedure. At Employer's sole option, instead
of providing advance notice, Employer may pay Employee the base salary
equivalent for a certain number of days based on Employer's severance policy and
procedure.
However, if termination by Employer is for cause, Employer shall have the right
to terminate this Agreement immediately without prior notice, and Employee will
be paid only up to the last day worked. While employed by Employer, Employee
shall devote Employee's full working time to Employer's affairs and shall
faithfully and diligently serve Employer's interests.
2. REIMBURSEMENT OF EXPENSES
Employer shall reimburse Employee for "out of pocket" expenses in accordance
with Employer policies and procedures in effect from time to time. All "out of
pocket" expenses must be pre-approved by Employer, and must be evidenced by
receipts or similar documentation.
4. CONFIDENTIALITY
Employee recognizes, acknowledges and agrees that the computer systems,
including specifications, programs and documentation, the methods and data which
Employer owns, plans or develops, whether for
its own use or for use by its clients, developments, designs, inventions and
improvements, trade secrets and works of authorship are confidential and the
property of Employer. Employee also recognizes that Employer's customer lists,
consultant lists, supplier lists, proposals, job openings, projects and
procedures, and other information and property are confidential and are the
property of Employer. Employee further recognizes, acknowledges and agrees that
in order to enable Employer and Employee to perform services for its clients,
those clients may furnish to Employer or Employee confidential information
concerning client business affairs, property, methods of operation or other
data; that the goodwill afforded to Employer depends upon, among other things,
Employer and all of its employees keeping such services and information
confidential. All of the aforementioned materials and information including that
relating to Employer's systems and information and Employer's clients and their
systems and information, will be referred to below as "Proprietary Information".
5. NON-DISCLOSURE
Employee agrees that, except as directed by Employer, in the ordinary course of
Employer's business, Employee will not at any time, whether during or after
Employee's employment with Employer, disclose to any person or for any use,
directly or indirectly, for Employee's own benefit or the benefit of others, any
Proprietary Information, or permit any person to examine or make copies of any
documents which may contain or is derived from Proprietary Information, whether
prepared by Employee or otherwise coming into Employee's possession or control.
If it appears that Employee has disclosed (or threatened or threatens to
disclose) Proprietary Information in violation of this Agreement, Employer shall
be entitled to an injunction to restrain Employee from disclosing, in whole or
in part, such Proprietary Information, or from providing any services to any
party to whom such Proprietary Information has been or may be disclosed.
Employer shall not be prohibited by this provision from pursuing any and all
remedies, including but not limited to a claim for losses and damages.
6. POSSESSION
Employee agrees that upon request by Employer, and in any event upon termination
of Employee's employment, Employee shall turn over to Employer all documents,
papers or other material in Employee's possession or under Employee's control
which may contain or be derived from Proprietary Information, together with all
documents, notes or Employee's work products which are connected with or derived
from Employee's services to Employer and all copies of software obtained from
Employer shall be either returned to Employer or, as appropriate, permanently
deleted. Upon termination of Employee's employment with Employer, Employee
agrees to pay in full any amount owed to Employer, including but not limited to
moneys loaned by Employer to Employee. In addition, all computer hardware and
software, electronic devices or other property and equipment loaned to Employee
by Employer or by a client must be returned immediately.
7. OWNERSHIP
Employee hereby agrees to assign to Employer or client, as required, Employee's
entire right, title and interest in any developments, designs, patents,
inventions and improvements, trade secrets, trademarks, copyrightable matter or
proprietary information which Employee has made or conceived, or may make or
conceive, either solely or jointly with others, while providing services to
Employer or client, or with the use of the time, material or facilities of
Employer or client or relating to any actual or anticipated business, research,
development, product, service or activity of Employer or client known to
Employee while employed at Employer, or suggested by or resulting from any task
assigned to Employee or work performed by Employee for or on behalf of Employer
or client, whether or not such work was performed prior to the effective date of
this Agreement.
8. NON-COMPETITION
Until the expiration of one (1) year after the date on which Employee's
employment with Employer terminates for any reason, Employee shall not engage,
directly or indirectly, or through any corporation or association, in any
business, enterprise or employment which directly solicits business, performs
services or delivers goods that are competitive to those of Employer to any
client to whom Employee has provided consulting or other services through
Employer. Employer and Employee agree that this covenant is fair and reasonable,
because the confidential and sensitive nature and value of the Proprietary
Information and because the use of, or even the likelihood or the appearance of
the use of, the Proprietary Information in certain circumstances may cause
irreparable damage to Employer, or to clients of Employer. However, in the event
a court should decline to enforce the foregoing provision, Employee and Employer
agree that this provision should be modified to restrict Employee's competition
with Employer to the maximum extent enforceable.
Employee further acknowledges and agrees that, for a period of one (1) year
following termination of employment with TACT (the "Restrictive Period"),
Employee will not solicit for employment or cause others to solicit for
employment, any person who is employed by Employer or its clients before or
during the term of the Restrictive Period.
9. INJUNCTIVE RELIEF
Employee acknowledges that disclosure of any Proprietary Information by Employee
or breach by Employee of the covenant not to compete herein will give rise to
irreparable injury to Employer or to clients of Employer. Employee also agrees
that this injury to Employer, or client(s) of Employer, would be inadequately
compensated in money damages alone. Accordingly, Employer or, where appropriate
the client of Employer, may seek and obtain injunctive relief against the
breach, or threatened breach, of the disclosure of any Proprietary Information
by Employee, or breach by Employee of any of the covenants not to compete, in
addition to any other legal remedies which may be available. Employee further
acknowledges and agrees that the enforcement of a remedy hereunder by way of
injunction would not prevent Employee from earning a reasonable livelihood since
Employee's experience and capabilities would be such that Employee will be able
to obtain employment in business activities not restricted by this Agreement.
10. GENERAL
Employee represents and warrants that Employee's entering into, execution and
performance of this Agreement shall not violate any agreement or contract which
Employee may have entered into or any obligation which Employee may be under,
and Employee expressly agrees to be liable for and hold Employer harmless with
regard to any breach of the foregoing warranty.
This Agreement, in conjunction with Attachment A, contains the entire
understanding between Employer and Employee relating to the subject matter of
employment generally.
This Agreement shall by governed by and construed in accordance with the laws of
the State of New York and may be modified only by a writing signed by both
parties. Both parties hereby consent to and waive any objection to the exclusive
jurisdiction of the state and federal courts sitting in New York in any action
on a claim arising out of, under or in connection with this Agreement.
If any provision of this Agreement shall be held invalid or unenforceable for
any reason, the remaining provisions shall continue in full force and effect.
The provisions of paragraphs 4 through 10 of this Agreement shall survive any
termination of employment.
ACCEPTED AND AGREED:
Employer Employee
/s/ Xxxxxx XxXxxx /s/ Xxxxxxx Xxxxx
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By: Signature
Assistant Secretary 10/12/98
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Title: Date:
October 12, 1998
-------------------------------- --------------------------------
Date:
Employment Agreement (Revised 8-7-98)
ATTACHMENT A TO EMPLOYMENT AGREEMENT
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This Attachment ("Attachment A") is attached to and is expressly made a part of
the Employment Agreement entered into by and between the Employer and Employee
(defined therein and more fully defined or described below). The additional
terms and conditions included in this Attachment A are intended to supplement
and further define the terms and conditions of the at-will relationship between
Employer and Employee.
In the event that any part of this Attachment A and any part the Employment
Agreement shall be in conflict, then the conflicting term(s) of the Attachment A
shall prevail.
BY SIGNING BELOW, EMPLOYEE AGREES THAT INCREASES IN THE RATE OF COMPENSATION
WILL NOT REQUIRE AN AMENDMENT TO THE EMPLOYMENT AGREEMENT OR THIS ATTACHMENT A.
Employer: The A Consulting Team, Inc.
Employee: Xxxxxxx Xxxxx
Position: Director of Technical Practices
Start Date: September 16, 1998
Base Salary: $6666.67 paid twice monthly according to the
Employer's regular payroll schedule and policies.
Special Terms: Section 2. Terms of Employment: the severance
provision has been modified to provide for severance
pay based on Employee's position and length of
service to the Company, according to TACT policy and
procedure.
Employee may be eligible to receive a bonus, at the
sole discretion of Employer, in consideration of
Employee's performance, based upon Employer's policy
and procedure.
Employee may be eligible to receive an award, in
consideration of Employee's performance, pursuant to
a Stock Option Award Program that may be in effect
from time to time, at the sole discretion of
Employer, based upon Employer's policy and procedure.
ACCEPTED AND AGREED:
Employer Employee
/s/ Xxxxxx XxXxxx /s/ Xxxxxxx Xxxxx
-------------------------------- --------------------------------------
By: Signature
Assistant Secretary 10/12/98
-------------------------------- --------------------------------------
Title: Date:
October 12, 1998 000 XxXxxx Xxxxxx, Xxxxxxxx, XX 00000
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Date: Address:
EA A REV. 8110198
T A C T (R) 000 Xxxx Xxxxxx Xxxxx
--------------------------- Xxx Xxxx, XX 00000
THE A CONSULTING TEAM, INC. 000 000 0000
000 000 0000 fax
January 7, 2005
Xx. Xxxxxxx Xxxxx
Chief Technology Officer
The A Consulting Team, Inc.
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
Dear Xx. Xxxxx:
The purpose of this letter agreement between you (Employee) and The A
Consulting Team, Inc. (TACT or the Company) is to define the terms of
any severance you may be entitled to in the event of a change of
control of TACT.
For purposes of this Agreement, "change of control "shall mean a
direct change in the ownership or control of Company by purchase,
merger, consolidation, reorganization, lease, exchange, transfer or
sale of all or substantially all of the assets and/or outstanding
stock of Company, or any combination of the foregoing transactions.
Either party may terminate the Employee's employment with the
Company, with or without cause and for any reason whatsoever, by
giving ten (10) days prior notice to the other party. In the event
the Company terminates Employee without Cause within the first
eighteen months of a change of control, Employee shall be entitled to
receive as severance an amount equal to twelve (12) months of
Employee's then current base salary. For purposes of this agreement,
"Cause" shall mean: (a) Employee's embezzlement, willful breach of
fiduciary duty or fraud with regard to Company or any of Company's
assets or businesses, (b) Employee's conviction of, or pleading of
nolo contendere with regard to a felony (other than a traffic
violation) or any other crime involving moral turpitude and involving
activity related to the affairs of Company, or (c) any other material
breach by Employee of his duties and responsibilities that remains
uncured for thirty (30) days after written notice thereof is given to
Employee. In the event Company terminates the Employment Period for
Cause, Company's sole obligation is to pay Employee for that period
actually worked by Employee.
Please indicate your acceptance of this agreement by signing below.
Regards:
/s/ Xxxxxx XxxXxx
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Xxxxxx XxxXxx
Chief Executive Officer and President
Agreed to by:
/s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx
1/7/05
Date:
