EXHIBIT 10.2
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 Luis San Miguel (the Executive).
WHEREAS, the Company and the Executive have entered into an Employment
Agreement dated as of July 22, 1997 (the Employment Agreement);
WHEREAS, the Company and the Executive desire to terminate and replace
the Employment Agreement by entering into this Agreement 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 Companys 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 Section2
hereof and in the position and with the duties set forth in Section3 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 Executive Vice
President, Finance and Chief Financial Officer of the Company during the
Employment Period. As the Executive Vice President, Finance and Chief Financial
Officer of the Company, the Executive shall render executive, policy and other
management services to the Company of the type customarily performed by persons
serving in a similar officer capacity. The Executive shall report to the Chief
Executive Officer of the Company, except as otherwise determined by the Chief
Executive Officer or the Board. The Executive shall also perform such duties as
the Chief Executive Officer or 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 Executives reasonable
best efforts and substantially full business time to the performance of the
Executives duties and the advancement of the business and affairs of the
Company.
4. PLACE OF PERFORMANCE. In connection with the Executives 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 $175,000 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 Executives 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
Companys 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 Executives 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 Executives own account, any of
such information, observations or data without the Boards 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
Executives 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 Executives
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 Executives 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 Executives 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 Companys ownership
(including, without limitation, assignments, consents, powers of attorney and
other instruments).
(c) ENFORCEMENT. The Executive acknowledges that the restrictions
contained in Section7(a) hereof are reasonable and necessary, in view of the
nature of the Companys 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 Section7(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 Executives employment hereunder may be
terminated during the Employment Term without any breach of this Agreement only
under the following circumstances:
(i) DEATH. The Executives employment hereunder shall terminate
upon the Executives death;
(ii) BY THE COMPANY. The Company may terminate the Executives
employment:
(A) If the Executive shall have been unable to
perform all of the Executives 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 Executives employment by the
Company or the Executive (other than because of the Executives death) shall be
communicated by written Notice of Termination to the other party hereto in
accordance with Section11 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 Executives employment under the provision so
indicated. Termination of the Executives employment shall take effect on the
Date of Termination.
9. COMPENSATION UPON TERMINATION.
(a) DEATH. If the Executives employment is terminated during the
Employment Term as a result of the Executives death, the Company shall pay to
the Executives estate, or as may be directed by the legal representatives of
such estate, the Executives 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 Sections5(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 Executives employment
during the Employment Term because of the Executives disability pursuant to
Section 8(a)(ii)(A) hereof, the Company shall pay the Executive the Executives
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 Sections5(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
Executives 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 Executives employment during the Employment Term
for Cause pursuant to Section8(a)(ii)(B) hereof or if the Executive voluntarily
terminates the Executives employment during the Employment Term other than for
Good Reason, the Company shall pay the Executive the Executives 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 Sections5(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 Executives 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 Executives 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 Sections5(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 six-month period commencing on the Date of Termination (the
Initial Period), the Company shall pay the Executive an aggregate amount equal
to Executives Base Salary, payable in equal installments on the Companys regular
salary payment dates, and any other amounts that would have been payable to or
on behalf of the Executive under Section5(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 first 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 and10 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 Section9(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 Executives Base
Salary, payable in equal installments on the Companys regular salary payment
dates, and any other amounts that would have been payable to or on behalf of the
Executive under Section5(c) hereof (the Severance Payments) from the Date of
Termination through the first anniversary of the Date of Termination at the time
such payments would otherwise have been due in accordance with the Companys
normal payroll practices, and the Company shall have no further obligations to
the Executive under this Agreement. In addition, in such event, the Executives
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 Executives
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
12 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 Section9(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 Section280G(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 Executives 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 Companys 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 Executives 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
Executives services will be of special, unique and extraordinary value to the
Company and its Subsidiaries and that the Companys 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 Executives 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 Executives 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 Executives 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:
Luis San Miguel
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 Sections7, 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 Executives death, the personal representative or legatees or distributees of
the Executives 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; EMPLOYMENT AGREEMENT TERMINATED AND SUPERSEDED.
By mutual consent, effective as of the Offering Date, the parties hereby
terminate the Employment Agreement and this Agreement shall supersede and
replace the Employment 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 Section7 or 10 of this Agreement.
"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 Executives employment is
terminated by the Executives death, the date of the Executives death; (ii)if the
Executives employment is terminated because of the Executives disability
pursuant to Section8(a)(ii)(A) hereof, 30 days after Notice of Termination,
provided that the Executive shall not have returned to the performance of the
Executives duties on a full-time basis during such 30-day period; (iii)if the
Executives employment is terminated by the Company for Cause pursuant to
Section8(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 Executives employment is terminated during the Employment Term other
than pursuant to Section 8(a), the date on which Notice of Termination is given.
"EMPLOYMENT AGREEMENT" means the Employment Agreement dated as of
July 22, 1997, as amended, by and between the Company and the Executive.
"EMPLOYMENT PERIOD" is defined in Section 2 above.
"EXECUTIVE" means Luis San Miguel.
"EXTENDED PERIOD" is defined in Section 9(d)(i) above.
"EXTENDED TERM" is defined in Section 2 above.
"GOOD REASON" means (i)the Companys 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 Executives 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 Companys 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.
"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/ Luis E. San Miguel
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