EXHIBIT 10.2
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") dated as of the 1st day of December,
2005 (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 200 Park Avenue South,
New York, New York 10003 and Richard Falcone ("Employee"), an individual
residing at 5 Blossom Hill, Colts Neck, New Jersey, 07722.
1. The Company hereby employs Employee as Chief Financial Officer. TACT
will provide Employee with an office and appropriate computer and
communications at metropolitan area office. 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 and 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, the other
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 $210,000.00 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, the Company shall grant to
Employee options to shares of Company Common Stock, from time to time,
in accordance with the terms of Company's Stock Option and Award Plan.
. 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 plans.
Employee shall be entitled to sick days and personal days in accordance
with TACT's 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
ninety (90) 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, death or
disability, Employee shall be entitled to receive as severance an
amount equal to six (6) 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 and/or vacation pay due for that period, if applicable).
Employee 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 or a request, written, verbal
or implied, by the Company to perform illegal acts including by not
limited to violating SEC or NASDAQ rules or regulations. In the event
Employee or Company terminates this Agreement for Sufficient Reason,
Employee shall be entitled to receive as severance an amount equal to
twelve (12) 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.
200 Park Avenue South
New York, New York 10003
Attention: Shmuel Bentov, Chief Executive Officer
If to the Employee: Richard Falcone
5 Blossom Hill
Colts Neck, New Jersey 07722
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of
the Effective Date.
COMPANY EMPLOYEE
By: /s/ Shmuel BenTov By: /s/ Richard D. Falcone
--------------------- ----------------------------
Shmuel BenTov Richard D. Falcone