EMPLOYMENT
AGREEMENT
EMPLOYMENT AGREEMENT (this "
Agreement "), dated as of the 8th day of
September, 2006, by and between Advanced Communication
Technologies, Inc., a Florida corporation (" ACT "), and
Steven J. Miller, an individual whose current address is 102
Steeplechase Lane, Winchester, Virginia 22602 (" Executive
"). ACT together with any and all of its respective subsidiaries
shall be referred to collectively herein as the " Company
."
WITNESSETH
WHEREAS , the Company desires to employ Executive, and
Executive desires to accept employment by the Company, on the terms
and conditions set forth herein.
NOW,
THEREFORE , in
consideration of the mutual covenants and promises herein
contained, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
(a) ACT hereby employs Executive, and Executive
hereby accepts employment with ACT, as Chief Operating Officer, or
such other executive position with similar responsibilities and
duties of a chief operating officer of a company as may be
determined by the Board of Directors of ACT (the " Board ")
from time to time during the Employment Period (as defined
below).
(b) In addition to his duties set forth in this
Section 1 and in Section 3 below, Executive shall at the request of
the ACT CEO (as defined below) or the Board serve as an officer or
director of a subsidiary of ACT, without additional compensation
and subject to any policy of the Compensation Committee of the
Board (the " Compensation Committee ") with respect to
directors' fees.
2.
Term
.
The initial term of this Agreement
shall commence on September 25, 2006 (the “
Effective Date ”) and expire on the second anniversary
thereof (the " Initial Employment Period "), unless earlier
terminated in accordance with its terms; provided ,
however , that the Company shall have the option of
retaining the services of Executive, on the terms set forth in this
Agreement, for an additional one-year period by providing Executive
with written notice thereof not less than thirty (30) days prior to
the expiration of the Initial Employment Period (the " Option
Period " and together with the Initial Employment Period, the "
Employment Period "). Unless earlier terminated in
accordance herewith, upon expiration of the Option Period, this
Agreement shall be deemed to have been extended for additional
terms of successive one year periods commencing on the day after
the expiration of the then current Employment Period.
3.
Employment and
Duties .
3.1
D uties and Responsibilities .
(a)
Executive’s area of
responsibility during the Employment Period shall be that of Chief
Operating Officer of ACT and any such other position as an officer
or director of a subsidiary of ACT to which the ACT CEO or the
Board may appoint him. Executive shall directly report to the Chief
Executive Officer of ACT (the " ACT CEO "), or such other
senior executive officer of ACT, as determined from time to time by
the Company. The services to be rendered by Executive pursuant to
this Agreement shall consist of such services as defined and
directed by the Board or the ACT CEO.
(b)
During the Employment Period,
Executive shall serve the Company faithfully and to the best of his
ability; shall devote his entire working time, attention, energy
and skill to his employment and the benefit and business of the
Company; and shall use his best efforts, skills and ability to
promote its interests and to perform such duties as from time to
time may be reasonably assigned to him and are consistent with his
titles and positions with the Company.
(c)
During the Employment Period, in
addition to any other duties or responsibilities the Company gives
to Executive, Executive shall be required to sign, and shall sign,
all certifications and such other documents or instruments required
of an executive of a public company or otherwise by (i) the
Securities and Exchange Commission, (ii) any exchange or
association on which the Company's shares of capital stock are
listed, (iii) any federal, state or local authority, (iv) any other
governmental, quasi-governmental or non-governmental entity or
organization (foreign or domestic) that regulates or has authority
over the Company, and/or (v) the Company in connection with any of
the foregoing.
(d)
During the Employment Period,
Executive shall be required to be physically present at ACT’s
headquarters, currently located at 420 Lexington Avenue, New York,
New York, on a regular basis and no less than four (4) days per
month to ensure the efficient conduct of the Company’s
business.
3.2
Relocation . Executive agrees that he will relocate
his primary residence from Winchester, Virginia to the vicinity of
Longwood, Florida (the current location of the principal offices of
Cyber-Test, Inc.), within six (6) months from the Effective Date.
Executive will be entitled to reimbursement in accordance with the
relocation policy then offered by the Company which reimbursement
shall be for not less than Executive’s reasonable
out-of-pocket costs and expenses of relocating from Winchester,
Virginia to the vicinity of Longwood, Florida. Until Executive
relocates, the Company will reimburse Executive each month in the
manner dictated by the Company’s payroll policies and for
procedures for his reasonable temporary living and travel expenses
between Winchester Virginia and the vicinity of Longwood,
Florida.
3.3
Observance of Rules and Regulations . Executive
agrees to observe and comply with all applicable laws and
regulations, as well as the rules and regulations of the Company,
with respect to the performance of his duties.
3.4
Resignation from Other Positions . On or prior to the
date hereof, Executive shall resign from any and all other
positions he may hold as an officer or director with any other
company.
4.
Compensation; Benefits
and Expenses .
4.1
Restricted Stock Award . Upon the Effective Date, ACT
shall grant to Executive an award of 50,000,000 restricted shares
of common stock, no par value, of ACT, priced at the Fair Market
Value per share as of the date of grant, of which (i) 10,000,000
shares shall be vested immediately upon the Effective Date, (ii)
15,000,000 shares will fully vest on September 26, 2007,
and (iii) 25,000,000 shares will fully vest on
September 26, 2008 (together, the " ACT Shares ");
provided, as to each vesting tranche, that Executive is then
employed by the Company; and provided further that the number of
ACT Shares shall be adjusted accordingly for stock splits, reverse
stock splits and other recapitalizations effected by ACT. The Fair
Market Value per share shall be determined as follows: (x) if the
principal trading market for the common stock of ACT is a national
securities exchange, the closing price thereof on the relevant date
or (if there were no trades on that date) the latest preceding date
upon which a sale was reported, or (y) if the common stock of ACT
is not principally traded on such exchange, the mean between the
last reported “bid” and “asked” prices of
the common stock of ACT on the relevant date, as reported by the
NASDAQ OTC Bulletin Board, the National Daily Quotation Bureau,
Inc. or as reported in a customary financial reporting service, as
applicable and as the Board determines. If the common stock of ACT
is not publicly traded or, if publicly traded, is not subject to
reported transactions or “bid” or “asked”
quotations as set forth above, the Fair Market Value per share
shall be as determined by the Board.
4.2
Base Salary . As compensation for the services to be
rendered hereunder, during the Initial Employment Period, the
Company shall pay to Executive an annual base salary (the " Base
Salary ") of $175,000 during the first year of the Initial
Employment Period, and $200,000 during the second year of the
Initial Employment Period; and during the Option Period, the Base
Salary shall be $225,000. The Base Salary shall be payable in
accordance with usual payroll practices of the Company.
(a)
For each fiscal year or portion
thereof after the Effective Date and during the Employment Period,
the Company shall pay to Executive an annual performance bonus, in
cash, options to purchase shares of ACT’s common stock and/or
restricted shares of ACT’s common stock, in an amount
determined at the sole discretion of the Compensation Committee,
taking into account such factors as it considers appropriate,
including but not necessarily limited to, Executive's contribution
to ACT's consolidated net earnings and stock appreciation during
such fiscal year (the " Performance Bonus ").
(b)
In addition to the Performance
Bonus, the Company may grant cash bonuses, options to purchase
shares of ACT’s common stock and/or restricted shares of
ACT’s common stock to Executive, with a vesting schedule and
other terms established by the Compensation Committee, in its sole
discretion (the " Incentive Bonus ").
(c)
Executive acknowledges that the
amount of the Performance Bonus, if any, and the amount of the
Incentive Bonus, if any, shall at all times be determined by the
Compensation Committee, in its sole discretion. The Company shall
pay each of the Performance Bonus and the Incentive Bonus to
Executive within thirty (30) days after the Company's audited
results for the applicable fiscal year are delivered to the
Company, but in no event later than September 15th of the
immediately following fiscal year.
(a)
During the Employment Period, the
Company shall provide Executive with term life insurance with a
death benefit equal to $1,000,000, provided that Executive is
insurable. The Company shall pay all premiums with respect to such
life insurance. Such life insurance may be provided either through
the Company's group life insurance programs, by an individual
policy, or by a combination of both group and individual policies.
Executive shall at all times designate the beneficiary(ies) of such
life insurance.
(b)
In addition to Section 4.4(a)
above, the Company shall maintain "key man" life insurance on the
life of Executive with a death benefit equal to $2,000,000. The
Company shall pay all premiums with respect to such life insurance.
The Company shall at all times designate the beneficiary(ies) of
such "key man" life insurance.
4.5
Other Benefits . Executive shall also be eligible to
participate in any life and health insurance programs that the
Company makes available to all of its executives of similar
seniority. Executive shall also be eligible to receive
discretionary performance based bonuses as approved and authorized
by the Compensation Committee, including any incentive stock
programs approved by ACT’s shareholders.
4.6
Business Expenses . Executive will be reimbursed, in
accordance with the Company’s expense reimbursement policy,
for travel and lodging expenses as contemplated by Section 3.1(d)
and Section 3.2 hereof and for business expenses that have been
pre-approved by the Board or the ACT CEO upon presentation of
vouchers or other documents reasonably necessary to verify the
expenditures and sufficient, in form and substance, to satisfy
Internal Revenue Service requirements for such expenses.
4.7
Automobile Allowance . Executive will receive an
automobile allowance of Seven Hundred Fifty Dollars ($750.00) per
month, payable at the time and in the manner dictated by the
Company’s payroll policies and procedures, but not less
frequently than monthly. Executive shall provide his own automobile
and pay all operating expenses of any nature whatsoever with regard
to such automobile.
4.8
Vacation . Executive shall be entitled to
take up to four (4) weeks of vacation per calendar year, which
shall be taken in accordance with the Company’s vacation
policy in effect from time to time for executives of comparable
seniority.
5.
No Competitive
Activities; Confidentiality; Invention
5.1 General
Restriction . During the Employment Period and for a period of
two (2) years thereafter (the " Restricted Period "),
Executive covenants and agrees that, except on behalf of the
Company, he will not, directly or indirectly:
(a) Competing Business . Own, manage, operate, control, participate in
the ownership, management, operation or control of, be employed by,
or provide services as a consultant to, any individual or business
that is involved in business activities that are the same as,
similar to or in competition with, directly or indirectly, with any
business activities conducted, or actively being planned, by the
Company during the Restricted Period (it being acknowledged that
the Company's business is national in scope). The ownership of less
than one percent (1%) of the outstanding stock of any public
corporation shall not be deemed a violation of this
provision.
(b) Soliciting Customers . Attempt in any manner to contact or solicit
any individual, firm, corporation or other entity (i) that is or
has been, a customer of the Company at any time during the
Restricted Period, (ii) to which a proposal has been made by the
Company during the Restricted Period or (iii) appearing on the
Company's new business target list on the date of Executive's
termination (as such list has been prepared and maintained in
accordance with the Company's past practice), for the purpose of
providing services or products similar to the services and products
provided by the Company, or engaging in any activity which could
be, directly or indirectly, competitive with the business of the
Company.
(c) Interfering with Other Relations
. Persuade or attempt to persuade
any supplier, vendor, licensor or other entity or individual doing
business with the Company to discontinue or reduce its business
with the Company or otherwise interfere in any way with the
business relationships and activities of the Company.
(d) Employees . Attempt in any manner to solicit any
individual, who is at the time of such attempted solicitation, or
at any time during the one (1) year period preceding the
termination of Executive's employment, an employee or consultant of
the Company, to terminate his or her employment or relationship
with the Company, or engage such individual, as an employee or
consultant. Cooperate with any other person in persuading, enticing
or aiding, or attempting to persuade, entice or aid, any employee
of or consultant to the Company to terminate his or her employment
or business relationship with the Company, or to become employed as
an employee or retained as a consultant by any person other than
the Company.
5.2
Confidentiality Agreement . Executive shall not, either
during the Employment Period or at any time thereafter, use or
disclose to any third person any Confidential Information of the
Company, other than at the direction of the Company, or pursuant to
a court order or subpoena, provided that Executive will give notice
of such court order or subpoena to the Company prior to such
disclosure. Upon the termination of Executive’s employment
with the Company for any reason, Executive shall return any notes,
records, charts, formulae or other materials (whether in hard copy
or computer readable form) containing Confidential Information, and
will not make or retain any copies of such materials. Without
limiting the generality of the foregoing, the parties acknowledge
that the Company from time to time may be subject to agreements
with its customers, suppliers or licensors to maintain the
confidence of such other persons’ confidential information.
The terms of such agreements may require that the Company's
employees, including Executive, be bound by such agreements, and
Executive shall be deemed so bound upon notice t
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