Exhibit 10.8
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") dated as of the 11th day of September,
2001 (the "Effective Date") is made and entered into by and between The A
Consulting Team, Inc. and its affiliates, associated companies, subsidiaries,
parent, divisions or related entities (collectively "Company"), a New York
corporation, having its principal place of business at 000 Xxxx Xxxxxx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000 and Xxxxxxx Xxxxxxx ("Employee"), an individual
residing at 5 Blossom Hill, Colts Neck, New Jersey .
1. The Company hereby employs Employee as Chief Financial
Officer. Employee will be based in the metropolitan New York
area, and TACT will provide Employee with an office and
appropriate computer and communications at both of its offices
in that area. Employee hereby accepts employment in such
capacity and conditions as hereinafter set forth.
2. The initial term of this Agreement is for one (1) year,
commencing on the Effective Date reflected above (the "Initial
Term"). This Agreement shall automatically renew for
subsequent one-year terms, unless and until terminated by
either party in accordance with the provisions of Section 8
hereof. The entire period this Agreement remains in effect is
hereinafter referred to as the "Employment Period".
It is expressly understood and agreed that any changes in the
Employee's compensation, duties, location or title will not invalidate
this Agreement. At the option of the parties, such changes may be
incorporated into an "Addendum" to this Agreement. Failure to so
incorporate such changes will not affect the validity of, or the
enforceability of, terms herein.
3. The Company shall pay to Employee the following compensation
for all the services to be rendered by Employee in any
capacity:
An initial gross salary at the rate of $200,000.00 per year (annual
base salary) payable twice a month, less all applicable and required
federal, state, local and authorized deductions.
Upon approval by the Board of Directors, Company shall grant to
Employee options to purchase 36,000 shares of Company Common Stock in
accordance with the terms of Company's Stock Option and Award Plan. The
options will vest in three equal installments with the first
installment vesting on June 1, 2002. Notwithstanding the foregoing, in
the event a "Sufficient Reason" event occurs as defined hereinafter,
such grant shall become immediately vested and exercisable.
Employee and TACT will jointly develop an annual bonus plan.
Employee shall be entitled to sick days and personal days in accordance
with TACT's then current PTO policy for a Chief Financial Officer
position.
4. Employee shall perform such work as may be required of
Employee by Company in accord with the instructions,
directions and control of Company and at such reasonable time
and places as Company may determine. At all times during the
Employment Period, Employee shall strictly adhere to all the
rules and regulations that have been or that may hereafter be
established by Company for the conduct of its employees and
further, Employee shall strictly adhere to all the provisions
of the Company's handbook(s).
5. Employee hereby consents to the conducting of a background
check by Company and/or Company's broker, customer and/or
client to the full extent permitted by law. Such a background
check may include, but shall not be limited to a judgement and
public criminal record check, fingerprinting, and drug and/or
alcohol screening. The Employee agrees not to hold Company
and/or its broker(s), customer(s) and/or client(s) liable for
any claims in connection with such checking or testing or the
reporting of the results thereof to Company.
6. Employee shall devote full and complete attention and energies
to the business of Company, and shall not during the term of
this Agreement be engaged in any other business activity,
whether or not such business activity is pursued for gain,
profit or other pecuniary advantage and whether or not said
other business activity is directly, indirectly or unrelated
to the business activity of Company, without the express
written consent of Company. However, this shall not be
construed as preventing Employee from investing Employee's
assets in such form or manner as will not require any services
on Employee's part in the operation of the affairs of the
companies in which such investments are made; provided,
however, that any investment in any non-public companies shall
not be in companies having allied or related business
activities to Company.
7. The Company will reimburse Employee for expenses incurred by
Employee in the course of this employment provided that such
expenses are reimbursable by Company policy, and further, such
expenses are authorized by Company and an accounting is made
to Company therefore, in accordance with the procedures of
Company pertaining thereto.
8. The Employment Period shall be terminated at the time of the
death of Employee or may be terminated by Company if Employee
shall fail to render the services provided for hereunder for a
continuous period of sixty (60) days because of Employee's
physical or mental disability. Notwithstanding anything to the
contrary herein, either party may terminate the Employment
Period, with or without cause and for any reason whatsoever,
by giving ten (10) days prior notice to the other party. In
the event Company terminates Employee without Cause, Employee
shall be entitled to receive as severance an amount equal to
three (3) months of Employee's then current base salary. For
purposes of this Section 8, "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
breach by Employee of a material provision of this Agreement
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
(plus any commissions due for that period, if applicable).
Employee or Company may terminate the Employment Period for "Sufficient
Reason" in accordance with the provisions hereof. For purposes of this
Agreement, Sufficient Reason shall mean a direct or indirect 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,
taking the Company private, or any other business transaction involving
Company or any combination of the foregoing transactions which results
in any material demotion of Employee and/or any material reduction in
Employee's authority or responsibilities. In the event Employee or
Company terminates this Agreement for Sufficient Reason, Employee shall
be entitled to receive as severance an amount equal to six (6) months
of Employee's then current base salary if Employee's termination
happens within the first twelve months after the event-giving rise to
the Sufficient Reason occurs.
9. Employee recognizes and acknowledges that Company's trade
secrets, customer/broker/client lists, private processes,
prospective customer/broker/client lists, and staff and
prospective staff lists are deemed to be the private and
proprietary information of Company and are available, special,
unique and significant proprietary assets of Company's
business. Employee will not either during or subsequent to the
Employment Period, in whole or in part, disclose such trade
secrets, customer/broker/client lists, staff or prospective
staff lists, prospective customer/broker/client lists or
private processes to any person, firm, corporation,
association or other entity for any reason or purpose
whatsoever. In addition, Employee shall not make use of any of
the above for Employee's own purposes or for the benefit of
any person, firm, corporation, or other entity other than
Company under any circumstances during the Employment Period
or subsequent to employment.
10. Employee agrees that during the Employment Period and for a
period of one (1) year thereafter, Employee will not directly
or indirectly, or in any capacity, individually or in any
corporation, firm, association or other business entity,
compete or attempt to compete with Company, any parent,
subsidiary, or affiliate of Company, or any corporation merged
into, or merged or consolidated with Company (a) by soliciting
business from any customer, broker and/or client of Company
with which Employee was involved (directly or indirectly)
during the Employment Period, if such solicited business
competes with the business of Company, or (b) inducing any
personnel of Company to leave the service of Company, or by
employing or contracting with any such personnel. The
provisions of this Section 10 shall be construed as an
Agreement independent of any other provision contained herein
and shall be enforceable in both Law and Equity, including by
temporary or permanent Restraining Orders, notwithstanding the
existence of any claim or cause of action by Employee against
Company, whether predicated on this Agreement or otherwise.
11. Employee hereby agrees to assign all rights, title, and
interest in all writings, products, inventions, discoveries,
developments, improvements, ideas, technical notes, programs,
specifications, computer or other apparatus programs and
related documentation, and other works of authorship, tangible
and intangible property, whether or not patentable,
copyrightable or subject to other forms of protection, made,
created, developed, discovered, written or conceived by
Employee, solely or jointly with another, in whole or in part,
for either Company and/or Company's customer(s), broker(s)
and/or client(s) during the Employment Period, whether during
or outside of regular working hours, and to promptly deliver
to Company all such tangible properties and work products at
the request of Company. Employee shall not be entitled to any
compensation in addition to the amount set forth in Section 3
of this Agreement by reason of said assignment.
12. Employee shall, upon termination of employment with Company,
immediately return to Company all equipment and supplies of
Company and all books, records, lists and other written, typed
or printed materials, whether furnished by Company or prepared
by Employee, which contain any information relating to
Company's business or any of its customers, brokers and/or
clients, and Employee agrees that Employee will neither make
nor retain copies of such materials after termination of
employment.
13. Employee hereby authorizes Company, at any time, to offset and
deduct against any and all monies due to Employee by Company,
whether for salary or other remuneration to the full extent
allowed by law, any and all monies owed by Employee to Company
for any reason whatsoever, including, but not limited to the
correction of payroll errors, the repayment of monetary
advances, the reimbursement of tuition or training costs, and
the recoupment of auto allowances, relocation expenses,
expenses, and/or advanced vacation time.
14. The failure of either party to insist upon the performance of
any of the provisions of this agreement, or the waiver of any
breach thereof, shall not be construed as or constitute a
waiver of the rights granted herein with respect to any
subsequent forbearance or breach.
15. Both Parties hereto do hereby consent to jurisdiction in the
State of New Jersey with regard to all controversies which may
arise with respect to the execution, interpretation of and
compliance with the terms and provisions of this Agreement;
and both Parties hereto agree that New Jersey Law applies and,
in addition, waive any other venue or forum which they might
otherwise be entitled by virtue or domicile or otherwise.
16. This Agreement shall be binding upon and inure to the benefit
of the parties hereto and any successor to the business of
Company, but neither the Agreement nor any rights hereunder
may be assigned, pledged or encumbered by Employee without the
written consent of Company. This Agreement may not be changed,
modified or terminated orally.
This Agreement supersedes any prior agreements made between
the parties, whether oral or written, and constitutes that
final and entire agreement and understanding of the parties,
all prior representations and agreements having been merged
into this Agreement, and this Agreement shall amend, restate
and replace all prior employment agreements entered into
between Company and Employee. No waiver or modification of
this Agreement or of any covenant, condition, or limitation
herein contained shall be valid unless in writing and duly
executed by the party to be charged therewith and no evidence
of any waiver or modification shall be offered or received in
evidence in any proceeding, arbitration or litigation between
the parties hereto arising out of or affecting this Agreement,
or the rights or obligations of the parties hereunder, unless
such waiver or modification is in writing, duly executed as
aforesaid, and the parties agree that the provisions of this
Section 16 may not be waived except as herein set forth.
17. All agreements and covenants contained herein are severable,
and in the event any of them shall be held to be invalid by
any competent court, this Agreement shall be interpreted as if
such invalid agreements or covenants were not contained
herein.
18. Employee hereby represents and warrants that the execution of
this Agreement by Employee and the performance of Employee's
duties and obligations hereunder will not breach or be in
conflict with any other agreement to which Employee is a party
or by which Employee is bound, and that Employee is not now
subject to any covenant against competition or similar
covenant which would affect the performance of Employee's
duties hereunder. Employee hereby agrees to indemnify Company
for all claims arising out or related to Employee's breach of
this Section 18.
19. All disputes, controversies, or differences arising in
connection with the validity, execution, performance, breach,
non-renewal or termination of this Agreement shall be finally
settled in an arbitration proceeding under the Rules of the
American Arbitration Association by three arbitrators with
expertise in employment and labor law in accordance with the
Commercial Arbitration Rules then in effect of the American
Arbitration Association. Selection of the arbitrators shall be
as follows: each party shall appoint one arbitrator within
twenty (20) days after the parties have agreed to go to
arbitration, and those two arbitrators shall appoint a third
arbitrator who shall act as chairman, within a twenty (20) day
period thereafter. If the parties fail to appoint the chairman
within said period, the parties will apply to the American
Arbitration Association for appointment of the third
arbitrator. The parties agree to be bound by the findings of
the arbitration. Notwithstanding the foregoing, the courts
shall have jurisdiction over injunctive or provisional relief
pending arbitration. The arbitrators shall only be empowered
to award direct damages. In no event shall the arbitrators be
permitted to award special, consequential, indirect,
incidental or punitive damages or lost profits. The
non-prevailing party to the arbitration shall pay all the
prevailing party's expenses of the arbitration, including
reasonable attorneys' fees and other costs and expenses
incurred in connection with the prosecution or defense of such
arbitration.
20. Any offer, notice, or request or other communication hereunder
shall be in writing and shall be deemed to have been duly
delivered if hand or mailed by registered or certified mail,
return receipt requested, addressed to the respective address
of each party herein set forth, or to such other address as
each party may designate by a notice pursuant hereto:
If to Company: The A Consulting Team, Inc.
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx, Chief Executive Officer
cc: Xxxx Xxxxxxx, General Counsel
If to the Employee: Xxxxxxx Xxxxxxx
5 Blossom Hill
Colts Neck, New Jersey
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of
the Effective Date.
COMPANY EMPLOYEE
By: /s/ Xxxxxx XxxXxx By: /s/ Xxxxxxx X. Xxxxxxx
Xxxxxx XxxXxx Xxxxxxx X. Xxxxxxx
