EXHIBIT 10.1
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement") is entered into as of this 26th
day of May, 1998, by and between AnswerThink Consulting Group, Inc., a Florida
corporation (the "Company"), and [EXECUTIVE] (the "Executive").
WHEREAS, the Company and the Executive have entered into a Senior
Management Agreement dated as of April 23, 1997, as amended (the "Senior
Management Agreement");
WHEREAS, the Company and the Executive desire to amend the Senior
Management Agreement to delete the "Provisions Relating to Employment" therein
and the Company desires to employ the Executive, and the Executive desires to be
employed by the Company, on the terms and conditions set forth herein from and
after the completion of the initial public offering of the Company's Common
Stock (the "Offering Date"); and
WHEREAS, the board of directors of the Company (the "Board") has
approved and authorized the entry into this Agreement with the Executive.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein and other good and valuable consideration, the receipt and
sufficiency of which hereby are acknowledged, the parties hereto agree as
follows:
1. EMPLOYMENT AGREEMENT. On the terms and conditions set forth in this
Agreement, the Company agrees to employ the Executive and the Executive agrees
to be employed by the Company for the Employment Period set forth in Section 2
hereof and in the position and with the duties set forth in Section 3 hereof.
Terms used herein with initial capitalization are defined in Section 21 below.
2. TERM. The initial term of employment under this Agreement shall be
for a three-year period commencing on the Offering Date (the "Initial Term").
The term of employment shall be automatically renewed for an additional
consecutive 12-month period (the "Extended Term") as of the first and every
subsequent anniversary of the Offering Date, unless and until either party
provides written notice to the other party in accordance with Section 11 hereof
not less than 90 days before such anniversary date that such party is
terminating the term of employment under this Agreement, which termination shall
be effective as of the end of such Initial Term or Extended Term, as the case
may be, or until such term of employment is otherwise terminated as hereinafter
set forth. Such Initial Term and all such Extended Terms are collectively
referred to herein as the "Employment Period." The parties' obligations under
Sections 7, 9 and 10 hereof shall survive the expiration or termination of the
Employment Period.
3. POSITION AND DUTIES. The Executive shall serve as [TITLE] of the
Company during the Employment Period. As the [TITLE], the Executive shall render
executive, policy and other management services to the Company of the type
customarily performed by persons serving in a similar [CAPACITY] capacity. As
Chief Executive Officer, the Executive shall be responsible for implementing the
policies of the Board and shall report only to the Board. All other officers of
the Company shall report directly to the Executive, except as the Executive
shall otherwise determine, and except that the internal auditor shall report
directly to the Board. The Executive shall also perform such duties as the Board
may from time to time reasonably determine and assign to the Executive. During
the Employment Period, there shall be no material change in the duties and
responsibilities of the Executive from those previously in effect, other than as
provided herein, unless the parties otherwise agree in writing. The Executive
shall devote the Executive's reasonable best efforts and substantially full
business time to the performance of the Executive's duties and the advancement
of the business and affairs of the Company.
4. PLACE OF PERFORMANCE. In connection with the Executive's employment
by the Company, the Executive shall be based at the principal executive offices
of the Company, except as otherwise agreed by the Executive and the Company and
except for reasonable travel on Company business. If the Executive is required
to relocate his place of employment to a location more than 50 miles from its
location as of the date of this Agreement, the Company shall pay or reimburse
the Executive for the reasonable moving and relocation expenses incurred by him
to establish a personal residence at the new location, including reasonable
traveling and temporary living expenses.
5. COMPENSATION.
(a) BASE SALARY. During the Employment Period, the Company
shall pay to the Executive an annual base salary (the "Base Salary"), which
initially shall be at the rate of $500,000 per year. The Base Salary shall be
reviewed no less frequently than annually and may be increased at the discretion
of the Board. If the Executive's Base Salary is increased, the increased amount
shall be the Base Salary for the remainder of the Employment Period. Except as
otherwise agreed in writing by the Executive, the Base Salary shall not be
reduced from the amount previously in effect during the Employment Term. The
Base Salary shall be payable biweekly or in such other installments as shall be
consistent with the Company's payroll procedures.
(b) BONUS. During the Employment Period, the Executive may
also be eligible to earn an annual bonus pursuant to a bonus plan adopted by the
Board for each fiscal year.
(c) BENEFITS. During the Employment Period, the Executive will
be entitled to such other benefits approved by the Board and made available to
employees. Nothing contained in this Agreement shall prevent the Company from
changing carriers or from effecting modifications in insurance coverage for the
Executive.
(d) VACATION; HOLIDAYS. The Executive shall be entitled to all
public holidays observed by the Company and vacation days in accordance with the
applicable vacation policies for senior executives of the Company, which shall
be taken at a reasonable time or times.
(e) WITHHOLDING TAXES AND OTHER DEDUCTIONS. To the extent
required by law, the Company shall withhold from any payments due Executive
under this Agreement any applicable federal, state or local taxes and such other
deductions as are prescribed by law or Company policy.
6. EXPENSES. The Executive is expected and is authorized to incur
reasonable expenses in the performance of his duties hereunder, including the
costs of entertainment, travel, and similar business expenses incurred in the
performance of his duties. The Employers shall reimburse the Executive for all
such expenses promptly upon periodic presentation by the Executive of an
itemized account of such expenses.
7. CONFIDENTIALITY; WORK PRODUCT.
(a) INFORMATION. The Executive acknowledges that the
information, observations and data obtained by the Executive concerning the
business and affairs of the Company and its Subsidiaries and their predecessors
during the course of the Executive's performance of services for, or employment
with, any of the foregoing persons (whether or not compensated for such
services) are the property of the Company and its Subsidiaries, including
information concerning acquisition opportunities in or reasonably related to the
business or industry of the Company or its Subsidiaries of which the Executive
becomes aware during such period. Therefore, the Executive agrees that he will
not at any time (whether during or after the Employment Period) disclose to any
unauthorized person or, directly or indirectly, use for the Executive's own
account, any of such information, observations or data without the Board's
consent, unless and to the extent that the aforementioned matters become
generally known to and available for use by the public other than as a direct or
indirect result of the Executive's acts or omissions to act or the acts or
omissions to act of other senior or junior management employees of the Company
and its Subsidiaries. The Executive agrees to deliver to the Company at the
termination of the Executive's employment, or at any other time the Company may
request in writing (whether during or after the Employment Period), all
memoranda, notes, plans, records, reports and other documents, regardless of the
format or media (and copies thereof), relating to the business of the Company
and its Subsidiaries and their predecessors (including, without limitation, all
acquisition prospects, lists and contact information) which the Executive may
then possess or have under the Executive's control.
(b) INVENTIONS AND PATENTS. The Executive acknowledges that all
inventions, innovations, improvements, developments, methods, designs, analyses,
drawings, reports and all similar or related information (whether or not
patentable) that relate to the actual or anticipated business, research and
development or existing or future products or services of the Company or its
Subsidiaries that are conceived, developed, made or reduced to practice by the
Executive while employed by the Company or any of its predecessors ("Work
Product") belong to the Company and the Executive hereby assigns, and agrees to
assign, all of the above to the Company. Any copyrightable work prepared in
whole or in part by the Executive in the course of the Executive's work for any
of the foregoing entities shall be deemed a "work made for hire" under the
copyright laws, and the Company shall own all rights therein. To the extent that
any such copyrightable work is not a "work made for hire," the Executive hereby
assigns and agrees to assign to Company all right, title and interest, including
without limitation, copyright in and to such copyrightable work. The Executive
shall promptly disclose such Work Product and copyrightable work to the Board
and perform all actions reasonably requested by the Board (whether during or
after the Employment Period) to establish and confirm the Company's ownership
(including, without limitation, assignments, consents, powers of attorney and
other instruments).
(c) ENFORCEMENT. The Executive acknowledges that the
restrictions contained in Section 7(a) hereof are reasonable and necessary, in
view of the nature of the Company's business, in order to protect the legitimate
interests of the Company, and that any violation thereof would result in
irreparable injury to the Company. Therefore, the Executive agrees that in the
event of a breach or threatened breach by the Executive of the provisions of
Section 7(a) hereof, the Company shall be entitled to obtain from any court of
competent jurisdiction, preliminary or permanent injunctive relief restraining
the Executive from disclosing or using any such confidential information.
Nothing herein shall be construed as prohibiting the Company from pursuing any
other remedies available to it for such breach or threatened breach, including,
without limitation, recovery of damages from the Executive.
8. TERMINATION OF EMPLOYMENT.
(a) PERMITTED TERMINATIONS. The Executive's employment
hereunder may be terminated during the Employment Term without any breach of
this Agreement only under the following circumstances:
(i) DEATH. The Executive's employment hereunder shall
terminate upon the Executive's death;
(ii) BY THE COMPANY. The Company may terminate the
Executive's employment:
(A) If the Executive shall have been unable
to perform all of the Executive's duties hereunder by reason of illness,
physical or mental disability or other similar incapacity, which inability shall
continue for more than three consecutive months; or
(B) For Cause; or
(iii) BY THE EXECUTIVE. The Executive may terminate
employment for Good Reason.
(b) TERMINATION. Any termination of the Executive's employment
by the Company or the Executive (other than because of the Executive's death)
shall be communicated by written Notice of Termination to the other party hereto
in accordance with Section 11 hereof. For purposes of this Agreement, a "Notice
of Termination" shall mean a notice which shall indicate the specific
termination provision in this Agreement relied upon, if any, and shall set forth
in reasonable detail the facts and circumstances claimed to provide a basis for
termination of the Executive's employment under the provision so indicated.
Termination of the Executive's employment shall take effect on the Date of
Termination.
9. COMPENSATION UPON TERMINATION.
(a) DEATH. If the Executive's employment is terminated during
the Employment Term as a result of the Executive's death, the Company shall pay
to the Executive's estate, or as may be directed by the legal representatives of
such estate, the Executive's full Base Salary through the Date of Termination
and all other unpaid amounts, if any, to which the Executive is entitled as of
the Date of Termination in connection with any fringe benefits or under any
bonus or incentive compensation plan or program of the Company pursuant to
Sections 5(b) and (c) hereof, at the time such payments are due, and the Company
shall have no further obligations to the Executive under this Agreement.
(b) DISABILITY. If the Company terminates the Executive's
employment during the Employment Term because of the Executive's disability
pursuant to Section 8(a)(ii)(A) hereof, the Company shall pay the Executive the
Executive's full Base Salary through the Date of Termination and all other
unpaid amounts, if any, to which the Executive is entitled as of the Date of
Termination in connection with any fringe benefits or under any bonus or
incentive compensation plan or program of the Company pursuant to Sections 5(b)
and (c) hereof, at the time such payments are due, and the Company shall have no
further obligations to the Executive under this Agreement; PROVIDED, that
payments so made to the Executive during any period that the Executive is unable
to perform all of the Executive's duties hereunder by reason of illness,
physical or mental illness or other similar incapacity shall be reduced by the
sum of the amounts, if any, payable to the Executive at or prior to the time of
any such payment under disability benefit plans of the Company and which amounts
were not previously applied to reduce any such payment.
(c) BY THE COMPANY WITH CAUSE OR BY THE EXECUTIVE WITHOUT GOOD
REASON. If the Company terminates the Executive's employment during the
Employment Term for Cause pursuant to Section 8(a)(ii)(B) hereof or if the
Executive voluntarily terminates the Executive's employment during the
Employment Term other than for Good Reason, the Company shall pay the Executive
the Executive's full Base Salary through the Date of Termination and all other
unpaid amounts, if any, to which Executive is entitled as of the Date of
Termination in connection with any fringe benefits or under any bonus or
incentive compensation plan or program of the Company pursuant to Sections 5(b)
and (c) hereof, at the time such payments are due, and the Company shall have no
further obligations to the Executive under this Agreement.
(d) BY THE COMPANY WITHOUT CAUSE OR BY THE EXECUTIVE FOR GOOD
REASON. If the Company terminates the Executive's employment during the
Employment Term other than for Cause, disability or death pursuant to Section
8(a)(i) or (ii) hereof, or the Executive terminates his employment during the
Employment Term for Good Reason pursuant to Section 8(a)(iii) hereof, the
Company shall pay the Executive (A) the Executive's full Base Salary through the
Date of Termination and all other unpaid amounts, if any, to which the Executive
is entitled as of the Date of Termination in connection with any fringe benefits
or under any bonus or incentive compensation plan or program of the Company
pursuant to Sections 5(b) and (c) hereof, at the time such payments are due and
(B) subject to Sections 9(e) and 9(f) hereof:
(i) NO CHANGE OF CONTROL. Except as provided in
Section 9(d)(ii) hereof, during the one-year period commencing on the Date of
Termination (the "Initial Period"), the Company shall pay the Executive an
aggregate amount equal to Executive's Base Salary, payable in equal installments
on the Company's regular salary payment dates, and any other amounts that would
have been payable to or on behalf of the Executive under Section 5(c) hereof
(the "Severance Payments"). In addition, the Company shall have the option, by
delivering written notice to the Executive in accordance with Section 11 hereof
within 90 days after the Date of Termination, to extend the severance period to
the second anniversary of the Date of Termination (the "Extended Period").
During the Extended Period, the Company will continue to make Severance Payments
at the same annual rate to the Executive. Notwithstanding the foregoing and
without in any way modifying the provisions of Sections 7 and 10 hereof, from
and after the first date that Executive becomes employed with another Person or
provides services as a consultant or other self-employed individual, the
Company, at its option, may eliminate or otherwise reduce the amount of
Severance Payments otherwise required to be made pursuant to this Section
9(d)(i) to the extent of the compensation and benefits received by the Executive
from such other employment or self-employment; or
(ii) CHANGE OF CONTROL. If such termination is in
anticipation of, in connection with or within one year after the date of a
Change of Control, the Company shall pay the Executive an aggregate amount equal
to Executive's Base Salary, payable in equal installments on the Company's
regular salary payment dates, and any other amounts that would have been payable
to or on behalf of the Executive under Section 5(c) hereof (the "Severance
Payments") from the Date of Termination through the second anniversary of the
Date of Termination at the time such payments would otherwise have been due in
accordance with the Company's normal payroll practices, and the Company shall
have no further obligations to the Executive under this Agreement. In addition,
in such event, the Executive's rights with respect to stock options and shares
of restricted stock previously granted by the Company, deferred and incentive
compensation or bonus amounts awarded by the Company and other contingent or
deferred compensation awards or grants made by the Company, or otherwise made in
connection with the Executive's employment hereunder, shall be fully vested and
nonforfeitable as of the Date of Termination, except to the extent inconsistent
with the terms of any such plan or arrangement that is intended to qualify under
Section 401(a) or 423 of the Code. For purposes of Section 10 hereof, the
"Initial Period" shall be the first 24 months following the Date of Termination.
(e) PARACHUTE LIMITATIONS. Notwithstanding any other provision
of this Agreement or of any other agreement, contract or understanding
heretofore or hereafter entered into by the Executive with the Company or any
subsidiary or affiliate thereof, except an agreement, contract or understanding
hereafter entered into that expressly modifies or excludes application of this
Section 9(e) (the "Other Agreements"), and notwithstanding any formal or
informal plan or other arrangement heretofore or hereafter adopted by the
Company (or any subsidiary or affiliate thereof) for the direct or indirect
compensation of the Executive (including groups or classes of participants or
beneficiaries of which the Executive is a member), whether or not such
compensation is deferred, is in cash, or is in the form of a benefit to or for
the Executive (a "Benefit Plan"), if the Executive is a "disqualified
individual" (as defined in Section 280G(c) of the Internal Revenue Code of 1986,
as amended (the "Code")), the Executive shall not have any right to receive any
payment or benefit under this Agreement, any Other Agreement or any Benefit Plan
(i) to the extent that such payment or benefit, taking into account all other
rights, payments or benefits to or for the Executive under this Agreement, all
Other Agreements and all Benefit Plans, would cause any payment or benefit to
the Executive under this Agreement, any Other Agreement or any Benefit Plan to
be considered a "parachute payment" within the meaning of Section 280G(b)(2) of
the Code as then in effect (a "Parachute Payment") AND (ii) if, as a result of
receiving a Parachute Payment, the aggregate after-tax amount received by the
Executive under this Agreement, all Other Agreements and all Benefit Plans would
be less than the maximum after-tax amount that could be received by the
Executive without causing any such payment or benefit to be considered a
Parachute Payment. In the event that the receipt of any such payment or benefit
under this Agreement, any Other Agreement or any Benefit Plan would cause the
Executive to be considered to have received a Parachute Payment that would have
the adverse after-tax effect described in clause (ii) of the preceding sentence,
then the Executive shall have the right, in the Executive's sole discretion, to
designate those rights, payments or benefits under this Agreement, any Other
Agreement and any Benefit Plan that should be reduced or eliminated so as to
avoid having the payment or benefit to the Executive under this Agreement be
deemed to be a Parachute Payment.
(f) MITIGATION. The Company's obligation to continue to
provide the Executive with benefits pursuant to Section 9(d)(i) or (ii) above
shall cease if the Executive becomes eligible to participate in benefits
substantially similar to those provided under this Agreement as a result of the
Executive's subsequent employment during the period that the Executive is
entitled to receive Severance Payments.
(g) LIQUIDATED DAMAGES. The parties acknowledge and agree that
damages which will result to the Executive for termination by the Company
without Cause or by the Executive for Good Reason shall be extremely difficult
or impossible to establish or prove, and agree that the Severance Payments shall
constitute liquidated damages for any breach of this Agreement by the Company
through the Date of Termination. The Executive agrees that, except for such
other payments and benefits to which the Executive may be entitled as expressly
provided by the terms of this Agreement or any applicable Benefit Plan, such
liquidated damages shall be in lieu of all other claims that the Executive may
make by reason of termination of his employment or any such breach of this
Agreement and that, as a condition to receiving the Severance Payments, the
Executive will execute a release of claims in a form reasonably satisfactory to
the Company.
10. NONCOMPETITION AND NONSOLICITATION.
(a) NONCOMPETITION. The Executive acknowledges that in the
course of his employment with the Company and its Subsidiaries and their
predecessors, he has and will continue to become familiar with the trade secrets
of, and other confidential information concerning, the Company and its
Subsidiaries, that the Executive's services will be of special, unique and
extraordinary value to the Company and its Subsidiaries and that the Company's
ability to accomplish its purposes and to successfully pursue its business plan
and compete in the marketplace depend substantially on the skills and expertise
of the Executive. Therefore, and in further consideration of the compensation
being paid to the Executive hereunder, the Executive agrees that, during the
Employment Period and any Initial Period or Extended Period, so long as
Severance Payments are being made or during any portion of the Initial or
Extended Period that Severance Payments are not required to be made pursuant to
the last sentence of Section 9(d)(i) hereof (the "Noncompete Period"), he shall
not directly or indirectly own, manage, control, participate in, consult with,
render services for, or in any manner engage in any business competing with the
businesses of the Company, its Subsidiaries, or any business in which the
Company or its Subsidiaries has commenced negotiations or has requested and
received information relating to the acquisition of such business within
eighteen months prior to the termination of the Executive's employment with the
Company, in any country where the Company, its Subsidiaries, or other
aforementioned business conducts business.
(b) NONSOLICITATION. During the Employment Period and for two
years following the Date of Termination, the Executive shall not directly or
indirectly through another entity (i) induce or attempt to induce any employee
of the Company or any Subsidiary to leave the employ of the Company or such
Subsidiary, or in any way willfully interfere with the relationship between the
Company or any Subsidiary and any employee thereof, (ii) induce or attempt to
induce any customer, supplier, licensee or other business relation of the
Company or any Subsidiary to cease doing business with the Company or such
Subsidiary, or in any way interfere with the relationship between any such
customer, supplier, licensee or business relation and the Company or any
Subsidiary or (iii) initiate or engage in any discussions regarding an
acquisition of, or the Executive's employment (whether as an employee, an
independent contractor or otherwise) by, any businesses in which the Company or
any of its Subsidiaries has entertained discussions or has requested and
received information relating to the acquisition of such business by the Company
or its Subsidiaries upon or within the 18-month period prior to the Date of
Termination.
(c) ENFORCEMENT. If, at the time of enforcement of this
Section 10, a court holds that the restrictions stated herein are unreasonable
under circumstances then existing, the parties hereto agree that the maximum
duration, scope or geographical area reasonable under such circumstances shall
be substituted for the stated period, scope or area and that the court shall be
allowed to revise the restrictions contained herein to cover the maximum
duration, scope and area permitted by law. Because the Executive's services are
unique and because the Executive has access to confidential information, the
parties hereto agree that money damages would be an inadequate remedy for any
breach of any provision of this Agreement. Therefore, in the event a breach or
threatened breach by the Executive of any provision of this Agreement, the
Company may, in addition to other rights and remedies existing in its favor,
apply to any court of competent jurisdiction for specific performance and/or
injunctive or other relief in order to enforce, or prevent any violations of,
the provisions hereof (without posting a bond or other security).
11. NOTICES. All notices, demands, requests or other communications
required or permitted to be given or made hereunder shall be in writing and
shall be delivered, telecopied or mailed by first class registered or certified
mail, postage prepaid, addressed as follows:
(a) If to the Company:
AnswerThink Consulting Group, Inc.
1401 Brickell Avenue, Suite 350
Miami, Florida 33131
ATTN: General Counsel
Fax: 305/373-0911
WITH A COPY (WHICH SHALL NOT CONSTITUTE
NOTICE) TO:
David B.H. Martin, Jr., Esq.
Hogan & Hartson, L.L.P.
555 13th Street, N.W.
Washington, D.C. 20004-1190
Fax: 202/637-5910
(b) If to the Executive:
[EXECUTIVE]
AnswerThink Consulting Group, Inc.
1401 Brickell Avenue, Suite 350
Miami, Florida 33131
or to such other address as may be designated by either party in a notice to the
other. Each notice, demand, request or other communication that shall be given
or made in the manner described above shall be deemed sufficiently given or made
for all purposes three days after it is deposited in the U.S. mail, postage
prepaid, or at such time as it is delivered to the addressee (with the return
receipt, the delivery receipt, the answer back or the affidavit of messenger
being deemed conclusive evidence of such delivery) or at such time as delivery
is refused by the addressee upon presentation.
12. SEVERABILITY. The invalidity or unenforceability of any one or more
provisions of this Agreement shall not affect the validity or enforceability of
the other provisions of this Agreement, which shall remain in full force and
effect.
13. SURVIVAL. It is the express intention and agreement of the parties
hereto that the provisions of Sections 7, 9 and 10 hereof shall survive the
termination of employment of the Executive. In addition, all obligations of the
Company to make payments hereunder shall survive any termination of this
Agreement on the terms and conditions set forth herein.
14. ASSIGNMENT. The rights and obligations of the parties to this
Agreement shall not be assignable or delegable, except that (i) in the event of
the Executive's death, the personal representative or legatees or distributees
of the Executive's estate, as the case may be, shall have the right to receive
any amount owing and unpaid to the Executive hereunder and (ii) the rights and
obligations of the Company hereunder shall be assignable and delegable in
connection with any subsequent merger, consolidation, sale of all or
substantially all of the assets of the Company or similar reorganization of a
successor corporation.
15. BINDING EFFECT. Subject to any provisions hereof restricting
assignment, this Agreement shall be binding upon the parties hereto and shall
inure to the benefit of the parties and their respective heirs, devisees,
executors, administrators, legal representatives, successors and assigns.
16. AMENDMENT; WAIVER. This Agreement shall not be amended, altered or
modified except by an instrument in writing duly executed by the parties hereto.
Neither the waiver by either of the parties hereto of a breach of or a default
under any of the provisions of this Agreement, nor the failure of either of the
parties, on one or more occasions, to enforce any of the provisions of this
Agreement or to exercise any right or privilege hereunder, shall thereafter be
construed as a waiver of any subsequent breach or default of a similar nature,
or as a waiver of any such provisions, rights or privileges hereunder.
17. HEADINGS. Section and subsection headings contained in this
Agreement are inserted for convenience of reference only, shall not be deemed to
be a part of this Agreement for any purpose, and shall not in any way define or
affect the meaning, construction or scope of any of the provisions hereof.
18. GOVERNING LAW. This Agreement, the rights and obligations of the
parties hereto, and any claims or disputes relating thereto, shall be governed
by and construed in accordance with the laws of the State of Florida (but not
including the choice of law rules thereof).
19. ENTIRE AGREEMENT; SENIOR MANAGEMENT AGREEMENT AMENDED. By mutual
consent, effective as of the Offering Date, the parties hereby amend the Senior
Management Agreement by deleting Sections 7, 8 and 9 thereof and this Agreement
shall supersede the Provisions Relating to Employment set out in the Senior
Management Agreement. This Agreement constitutes the entire agreement between
the parties respecting the employment of Executive, there being no
representations, warranties or commitments except as set forth herein.
20. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be an original and all of which shall be
deemed to constitute one and the same instrument.
21. DEFINITIONS.
"AGREEMENT" means this Employment Agreement.
"BASE SALARY" is defined in Section 5(a) above.
"BENEFICIAL OWNER" means a beneficial owner within the meaning
of Rule 13d-3 under the Securities Exchange Act of 1934, as amended.
"BENEFIT PLAN" is defined in Section 9(e) above.
"BOARD" means the board of directors of the Company.
"CAUSE" means (i) the commission of a felony or a crime
involving moral turpitude or the commission of any other act or omission
involving dishonesty or fraud with respect to the Company or any of its
Subsidiaries or any of their customers or suppliers, (ii) conduct tending to
bring the Company or any of its Subsidiaries into substantial public disgrace or
disrepute, (iii) substantial and repeated failure to perform duties of the
office held by the Executive as reasonably directed by the Board, and such
failure is not cured within 30 days after the Executive receives notice thereof
from the Board, (iv) gross negligence or willful misconduct with respect to the
Company or any of its Subsidiaries or (v) any breach of Section 7 or 10 of this
Agreement.
"CHANGE IN CONTROL" means (A) any Person, other than any
Person who is a Beneficial Owner of the Company's securities before the Offering
Date, becomes, after the Offering Date, the beneficial owner, directly or
indirectly, of securities of the Company representing 40% or more of the
combined voting power of the Company's then outstanding securities; (B) during
any two-year period, individuals who at the beginning of such period constitute
the Board (including, for this purpose, any director who after the beginning of
such period filled a vacancy on the Board caused by the resignation, mandatory
retirement, death, or disability of a director and whose election or appointment
was approved by a vote of at least two-thirds of the directors then in office
who were directors at the beginning of such period) cease for any reason to
constitute a majority thereof; (C) notwithstanding clauses (A) or (E) of this
paragraph, the Company consummates a merger or consolidation of the Company with
or into another corporation, the result of which is that the Persons who were
stockholders of the Company at the time of the execution of the agreement to
merge or consolidate own less than 80% of the total equity of the corporation
surviving or resulting from the merger or consolidation or of a corporation
owning, directly or indirectly, 100% of the total equity of such surviving or
resulting corporation; or (D) the sale in one or a series of transactions of all
or substantially all of the assets of the Company; (E) any Person has commenced
a tender or exchange offer, or entered into an agreement or received an option
to acquire beneficial ownership of 40% or more of the total number of voting
shares of the Company, unless the Board has made a determination that such
action does not constitute and will not constitute a material change in the
Persons having control of the Company; or (F) there is a change of control in
the Company of a nature that would be required to be reported in response to
Item 6(e) of Schedule 14A of Regulation 14A promulgated under the Exchange Act
other than in circumstances specifically covered by clauses (A) through (E)
above.
"CODE" is defined in Section 9(e) above.
"COMPANY" means AnswerThink Consulting Group, Inc. and its
successors and assigns.
"DATE OF TERMINATION" means (i) if the Executive's employment
is terminated by the Executive's death, the date of the Executive's death; (ii)
if the Executive's employment is terminated because of the Executive's
disability pursuant to Section 8(a)(ii)(A) hereof, 30 days after Notice of
Termination, provided that the Executive shall not have returned to the
performance of the Executive's duties on a full-time basis during such 30-day
period; (iii) if the Executive's employment is terminated by the Company for
Cause pursuant to Section 8(a)(ii)(B) hereof or by the Executive for Good Reason
pursuant to Section 8(a)(iii) hereof, the date specified in the Notice of
Termination; or (iv) if the Executive's employment is terminated during the
Employment Term other than pursuant to Section 8(a), the date on which Notice of
Termination is given.
"EMPLOYMENT PERIOD" is defined in Section 2 above.
"EXECUTIVE" means [EXECUTIVE].
"EXTENDED PERIOD" is defined in Section 9(d)(i) above.
"EXTENDED TERM" is defined in Section 2 above.
"GOOD REASON" means (i) the Company's failure to perform or
observe any of the material terms or provisions of this Agreement, and the
continued failure of the Company to cure such default within 30 days after
written demand for performance has been given to the Company by the Executive,
which demand shall describe specifically the nature of such alleged failure to
perform or observe such material terms or provisions; or (ii) a material
reduction in the scope of the Executive's responsibilities and duties.
"INITIAL PERIOD" is defined in Section 9(d) above.
"INITIAL TERM" is defined in Section 2 above.
"NONCOMPETE PERIOD" is defined in Section 10(a) above.
"NOTICE OF TERMINATION" is defined in Section 8(b) above.
"OFFERING DATE" means the date of the completion of an initial
public offering of the Company's Common Stock.
"OTHER AGREEMENTS" is defined in Section 9(e) above.
"PARACHUTE PAYMENT" is defined in Section 9(e) above.
"PERSON" means an individual, a partnership, a limited
liability company, a corporation, an association, a joint stock company, a
trust, a joint venture, an unincorporated organization and a governmental entity
or any department, agency or political subdivision thereof.
"SENIOR MANAGEMENT AGREEMENT" means the Senior Management
Agreement dated as of April 23, 1997, as amended, by and between the Company and
the Executive.
"SEVERANCE PAYMENTS" is defined in Section 9(d) above.
"SUBSIDIARY" means any corporation of which the Company owns
securities having a majority of the ordinary voting power in electing the board
of directors directly or through one or more subsidiaries.
"SUBSIDIARY" means any corporation of which the Company owns
securities having a majority of the ordinary voting power in electing the board
of directors directly or through one or more subsidiaries.
"WORK PRODUCT" is defined in Section 7(b) above.
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement,
or have caused this Agreement to be duly executed on their behalf, as of the day
and year first hereinabove written.
ANSWERTHINK CONSULTING GROUP, INC.
By:/S/ TED A. FERNANDEZ
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Name: T. Fernandez
Title: CEO
THE EXECUTIVE:
/S/ [EXECUTIVE]
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SCHEDULE TO EMPLOYMENT AGREEMENT
EXECUTIVE TITLE CAPACITY
Ted A. Fernandez President, Chief Executive chief executive
Officer and Chairman officer
Allan R. Frank Executive Vice President and officer
Chief Technology Officer
Ulysses S. Knotts, III Executive Vice President, officer
Sales and Marketing