Exhibit 10.10
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement") is entered into this 26th day
of December, 2001, and is effective as of the 1st day of January, 1999 (the
"Effective Date"), by and between Answerthink, Inc., a Florida corporation (the
"Company"), and Xxxxx X. Xxxxxx (the "Executive").
WHEREAS, the Company and the Executive have entered into a Senior
Management Agreement dated as of July 11, 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 Effective 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
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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
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a three-year period commencing on the Effective 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 Effective 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
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President, Chief Operating Officer of the Company during the Employment Period.
As the Executive Vice President, Chief Operating 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 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
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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.
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(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 $500,000.00 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 Period. 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
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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 Company 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.
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(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.
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(a) Permitted Terminations. The Executive's employment hereunder may
be terminated during the Employment Period 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.
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(a) Death. If the Executive's employment is terminated during the
Employment Period 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 Period 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
of 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 Period for Cause pursuant to Section 8(a)(ii)(B) hereof or
if the Executive voluntarily terminates the Executive's employment
during the Employment Period 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 Period 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 Period 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.
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(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 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 communication required
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or permitted to be given or made hereunder shall be in writing an shall be
delivered, telecopied or mailed by first class registered or certified mail,
postage prepaid, addressed as follows:
(a) If to the Company: Xxx Xxxxxxxxx, Chief Executive Officer,
Answerthink, Inc. 0000 Xxxxxxxx Xxx Xxxxx, Xxxxx 0000, Xxxxx, XX 00000.
Copy to: Corporate Counsel.
(b) If to the Executive:______________________________________________.
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
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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
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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
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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
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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
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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
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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
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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
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consent, effective as of the Effective 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
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counterparts, each of which shall be an original and all of which shall be
deemed to constitute one and the same instrument.
21. Definitions.
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"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, 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
Period 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 Xxxxx X. Xxxxxx.
"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 July 11, 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.
"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, INC.
By: /s/ Xxx X. Xxxxxxxxx
Name: Xxx X. Xxxxxxxxx
Title: Chief Executive Officer
THE EXECUTIVE:
/s/ Xxxxx X. Xxxxxx
------------------------------
Xxxxx X. Xxxxxx
