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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
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Date of report (Date of earliest event reported): December 8, 1999
ACSYS, INC.
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(Exact Name of Registrant as Specified in Charter)
Georgia 000-23711 58-2299173
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(State or Other Jurisdiction (Commission File Number) (I.R.S. Employer
of Incorporation) Identification No.)
75 14th Street
Suite 2200
Atlanta, Georgia 30309
(Address of Principal Executive Offices, including Zip Code)
Registrant's telephone number, including area code: (404) 817-9440
N/A
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(Former Name or Former Address, if Changed Since Last Report)
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ITEM 5. OTHER EVENTS.
On December 1, 1999, Timothy Mann, Jr. resigned as Chief Executive
Officer and Director of Acsys, Inc. (the "Company"), and, effective upon the
approval of the Company's Board of Directors, entered into a separation and
release agreement and shareholder and restrictive covenant agreement with the
Company. The terms and provisions of these agreements with Mr. Mann are
incorporated herein by reference to Exhibits 10.1 and 10.2 filed with this
Report. Simultaneously with Mr. Mann's resignation, David C. Cooper, the
Chairman of the Company's Board of Directors, was appointed to the position of
Chief Executive Officer of the Company. Brady W. Mullinax Jr., the Chief
Financial Officer of the Company, will take on the additional role of executive
vice president for finance and administration.
In addition to Mr. Mann, the following executive officers of the
Company also resigned on December 1, 1999 and entered into separation and
release agreements and shareholder and restrictive covenant agreements with the
Company:
- - Mary Beth Chase, Executive Vice President, Chief Development Officer;
- - Robert D. Bailey, Group Director, National Products of Acsys IT, a
wholly-owned subsidiary of the Company ("Acsys IT");
- - Robert M. Kwatnez, Group Director, New Products of Acsys IT; and
- - Steven M. Sutton, Group Director, Operations Development of Acsys IT.
Ms. Chase and Mr. Kwatnez also resigned as Directors of the Company. The terms
and provisions of these executive officers' separation and release agreements
and their shareholder and restrictive covenant agreements are incorporated
herein by reference to Exhibits 10.3 - 10.10 filed with this Report.
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ITEM 7. EXHIBITS.
(c) Exhibits
The following exhibits are filed as part of this Report:
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
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<S> <C>
10.1 Separation and Release Agreement, dated November 23, 1999, between Acsys,
Inc. and Timothy Mann, Jr.
10.2 Shareholder and Restrictive Covenant Agreement, dated November 23, 1999,
between Acsys, Inc. and Timothy Mann, Jr.
10.3 Separation and Release Agreement, dated December 1, 1999, between Acsys,
Inc. and Mary Beth Chase
10.4 Shareholder and Restrictive Covenant Agreement, dated December 1, 1999,
between Acsys, Inc. and Mary Beth Chase
10.5 Separation and Release Agreement, dated December 1, 1999, between Acsys,
Inc., Acsys IT, Inc. and Robert M. Kwatnez
10.6 Shareholder and Restrictive Covenant Agreement, dated December 1, 1999,
between Acsys, Inc. and Robert M. Kwatnez
10.7 Separation and Release Agreement, dated December 1, 1999, between Acsys,
Inc., Acsys IT, Inc. and Steven M. Sutton
10.8 Shareholder and Restrictive Covenant Agreement, dated December 1, 1999,
between Acsys, Inc. and Steven M. Sutton
10.9 Separation and Release Agreement, dated December 1, 1999, between Acsys,
Inc., Acsys IT, Inc. and Robert D. Bailey
10.10 Shareholder and Restrictive Covenant Agreement, dated December 1, 1999,
between Acsys, Inc. and Robert D. Bailey
99.1 Press Release, dated December 1, 1999
99.2 Press Release, dated December 1, 1999
</TABLE>
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
ACSYS, INC.
By: /s/ Brady W. Mullinax, Jr.
--------------------------
Brady W. Mullinax, Jr.
Executive Vice President - Finance
and Administration, Chief Financial
Officer and Secretary
Dated: December 8, 1999
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EXHIBIT 10.1
SEPARATION AND RELEASE AGREEMENT
This Separation and Release Agreement (hereinafter the "Separation
Agreement") is entered into as of the 23rd day of November, 1999, by and between
Acsys, Inc., formerly ICCE, Inc., (hereinafter the "Company"), and Timothy Mann,
Jr. (hereinafter the "Employee"). This Separation Agreement shall become
effective when approved by the Board of Directors of the Company or a committee
thereof (the "Effective Date").
WHEREAS, the Employee has been employed by the Company in the capacity
of Chief Executive Officer pursuant to that Employment Agreement dated March 12,
1997, as amended in Amendment No. 1 to Employment Agreement, dated September 3,
1997, and Amendment No. 2 to Employment Agreement, dated October 14, 1997 and by
resolution of the Board of Directors of the Company (collectively referred to
herein as the "Employment Agreement"); and
WHEREAS, the Employee has also served as a member of the Board of
Directors of the Company; and
WHEREAS, the Employee and the Company have mutually agreed to
Employee's resignation from his employment with the Company and his resignation
from the Company's Board of Directors; and
WHEREAS, the Company and the Employee have agreed to a severance
arrangement pursuant to the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual
promises herein contained, the parties hereto agree as follows:
Section 1. Termination of Employment and Resignation from Board of
Directors. The Company and the Employee agree that the Employee's employment
with the Company will be terminated as of the day and year first above written
(the "Separation Date"), that Employee has voluntarily resigned from his
employment and that the Employee has been paid all wages and compensation due
him through the Separation Date. The Company and the Employee further agree
that, contemporaneously with the signing of this Separation Agreement, the
Employee shall resign as a member of the Company's Board of Directors by
executing the letter of resignation attached hereto as Exhibit A, and agree that
the Employee's resignation is not the result of a disagreement with the Company
relating to the Company's operations, policies or practices.
Section 2. Severance Pay. The Company shall make a total gross payment
to the Employee of $200,000.00, less withholding for taxes:
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<TABLE>
<S> <C>
Within 3 business days of the Effective Date
but no later than December 2, 1999 $91,954.03
April 1, 2000 $34,482.76
July 1, 2000 $27,586.21
October 1, 2000 $22,988.50
January 3, 2001 $22,988.50
</TABLE>
The Employee agrees that he shall submit an expense report for all reimbursable
expenses he has incurred between October 31, 1999 and the date of execution of
this Agreement, which total amount shall not exceed One Thousand Dollars
($1,000), no later than December 20, 1999 and the Company agrees to reimburse
the submitted expenses, to the extent that they are approved in accordance with
the Company's normal approval procedures, up to a total of One Thousand Dollars
($1,000) in the regular course of business and in accordance with the Company's
normal reimbursement procedures. The Employee agrees to pay for all expenses he
has incurred or caused to be incurred on the Company's credit cards or through
other Company accounts to the extent that such expenses are not approved by the
Company, and normally are not approvable business expenses, pursuant to the
Company's normal expense approval process.
In the event that the Company fails to make a payment as set forth in this
Section, Mann shall give the Company notice of such failure in accordance with
Section 5.03 herein. The Company shall have ten (10) calendar days after receipt
of notice from Mann within which to cure by making such payment. If the Company
fails to cure by making such payment within ten (10) calendar days of receipt of
notice from Mann, all amounts due hereunder not yet paid shall be accelerated
and become immediately due and payable. If the Company does not make the overdue
payment within the 10-day cure period, interest shall begin to accrue on all
overdue amounts on the eleventh (11th) day (the day following the end of the
cure period) at the then prime rate of interest as published in the Wall Street
Journal.
Such payments shall be reported by the Company as W-2 income received by the
Employee. The Employee agrees that this amount is greater than any amount to
which he could be entitled by contract or law and that it constitutes valuable
and sufficient consideration for the Employee's promises, covenants and releases
herein. Employee agrees that, except as specifically and expressly provided in
this Separation Agreement, no further wages, commissions, backpay, attorneys
fees, severance pay or other employment benefits are due him from the Company or
its officers, directors, employees, affiliates, successors or assigns.
Section 3. Mutual Releases.
(a). By Employee. In consideration for the severance benefits
described in Section 2 hereof and Company's promises and releases herein,
Employee for himself, his successors and assigns, now and forever, hereby
releases and discharges the Company and its officers, directors, stockholders,
employees, agents, parent corporations, subsidiaries, affiliates, successors,
assigns and attorneys (the "Releasees"), from any and
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all claims, legal or equitable actions, liability or litigation, real or
contemplated, known or unknown, that the Employee may now have or may later
claim to have had against any of the Releasees arising out of anything that has
occurred up to and through the date hereof, including without limitation, any
claims arising by virtue of his status as a shareholder and/or director of the
Company or out of his employment or termination of employment with the Company.
Without limiting the foregoing, the Employee hereby releases those claims that
could have been asserted by him in connection with the Employment Agreement or
in connection with any claim or suit for wrongful discharge or any claim under
either state or federal employment or discrimination laws including, without
limitation Title VII of the Civil Rights Act of 1964, and the Americans with
Disabilities Act. The Employee acknowledges that he may have sustained or may
yet sustain damages, costs or expenses that are presently unknown and that
relate to claims between him and the Releasees released by this Separation
Agreement and he agrees that he is waiving all such claims. For the purpose of
implementing a full and complete release and discharge of the Releasees, the
Employee expressly acknowledges this Separation Agreement is intended to include
in its effect, without limitation, all claims that he does not know or suspect
to exist in his favor at the time he signs this Separation Agreement, and that
this Separation Agreement contemplates the extinguishment of any such claim or
claims. The Employee shall forever refrain and forbear from commencing,
instituting or prosecuting any lawsuit, action, claim or proceeding before or in
any court, regulatory, governmental, arbitral or other authority against the
Releasees by or naming or joining such Releasees as parties to collect or
enforce any claims or causes of action which are released and discharged hereby.
Employee hereby acknowledges and agrees that he has knowingly relinquished,
waived and forever released any and all other remedies that might be available
to him, including without limitation, claims for back pay, front pay, fringe
benefits, contract and personal injury damages, punitive damages and attorneys'
fees or expenses of litigation.
The foregoing release and covenant not to sue is not, however, intended
to release or apply to, and shall not release or apply to, any rights of the
Employee: (i) under this Separation Agreement or the Shareholder and Restrictive
Covenant Agreement executed contemporaneously herewith (the "Shareholder and
Restrictive Covenant Agreement") or to enforce any right, term or provision of
this Separation Agreement or the Shareholder and Restrictive Covenant Agreement;
(ii) to receive any COBRA health insurance continuation to which he is otherwise
entitled at his own expense or to receive benefits under any Company insurance
or other benefit plans, including any 401(k) plan, that either have accrued or
vested prior to the date hereof or that, by their terms, expressly are intended
and designed under such plans to survive an employee's termination or separation
from the Company; (iii) now or in the future to be entitled to claim or receive
indemnification and related benefits as an officer or director of the Company
under any applicable state laws, the Company's Articles of Incorporation or the
Company's By-laws, or that certain Acsys, Inc. Directors and Officers
Indemnification Agreement originally executed in 1997 and a replacement document
executed contemporaneous herewith because of the loss of the original (the
"Indemnification Agreement"); (iv) to claim or receive insurance coverage or to
be defended under any directors and officers insurance coverage which applies to
or benefits directors and/or officers of the Company
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and which applies to the Employee; or (v) to exercise stock options granted
pursuant to the Stock Option Agreements defined below in this Agreement.
(b). By Company. In consideration for Employee's promises and
releases herein, the Company, for itself, its subsidiaries, successors and
assigns, now and forever, hereby releases and discharges the Employee from any
and all claims, legal or equitable actions, liability or litigation, real or
contemplated, known or unknown, that the Company may now have or may later claim
to have had against the Employee arising out of anything that has occurred up to
and through the date hereof, including without limitation, any claims arising
out of his employment or termination of employment with the Company; provided,
however, that the Company does not release or waive any claims arising from any
illegal acts by Employee or any claims against the Company for any ultra vires
acts by Employee, which claims are expressly reserved. The Company acknowledges
that it may have sustained or may yet sustain damages, costs or expenses that
are presently unknown and that relate to claims between it and the Employee
which are nonetheless released hereby. For the purpose of implementing a full
and complete release and discharge of the Employee, except with respect to the
exceptions set forth above, the Company expressly acknowledges this Separation
Agreement is intended to include in its effect, without limitation, all claims
that it does not know or suspect to exist in its favor at the time it signs this
Separation Agreement, and that this Separation Agreement contemplates the
extinguishment of any such claim or claims. The Company shall forever refrain
and forbear from commencing, instituting or prosecuting any lawsuit, action,
claim or proceeding before or in any court, regulatory, governmental, arbitral
or other authority against the Employee or naming or joining the Employee as a
party to collect or enforce any claims or causes of action which are released
and discharged hereby. The Company hereby acknowledges and agrees that it has
knowingly relinquished, waived and forever released any and all other remedies
that might be available to it, including without limitation, claims for contract
damages, punitive damages and attorneys' fees or expenses of litigation.
Section 4. Representations and Warranties. Employee represents and
warrants that he has not, as of the date hereof, committed any illegal act which
could give rise to a claim against Employee by the Company, nor has he committed
any ultra vires act which could give rise to a claim against the Company by a
third party. The Company represents and warrants that the Company's Officers
David Cooper and Brady W. Mullinax, Jr. are not aware of any such illegal or
ultra vires acts on the part of the Employee as of the date hereof.
Section 5. Company Property. Employee shall be permitted to retain
without charge as his personal property a Nokia cell phone, Dell laptop computer
and docking station and Motorola two-way pager previously furnished him by the
Company. The Company shall have no responsibility or obligation to Mann or
otherwise for usage fees incurred after the date hereof. Employee agrees that he
will not retain or destroy, and will return to the Company, any and all other
property of Company in his possession or subject to his control including, but
not limited to, keys, credit and identification cards, computers, client files
and information, acquisition files and information, contact
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information for targets, buyers and clients, all other files and documents
relating to the Company, its plans or its business, contracts, personal items or
equipment provided to him for his use, together with all written or recorded
materials, documents, computer discs, plans, records, notes or other papers
belonging to the Company. The Employee further agrees not to make, distribute or
retain any such information or property.
Section 6. Press Release. The Company and the Employee agree that the
fact of the Employee's separation from the Company shall be formally announced
in a press release and the references to the Employee shall use substantially
the language set forth in the form attached hereto as Exhibit B; provided,
however, that if Company requests changes altering the language contemplated by
Exhibit B and provides a copy of such changes to the Employee prior to the
release of the statement; the Employee shall not unreasonably refuse to allow
such changes.
Section 7. Cooperation in Claims. With respect to any claim asserted by
or brought against the Company in relation to its business and/or against the
Employee in his former capacity as employee, officer or Director of the Company,
the Employee, upon reasonable notice and at the written request of the Chief
Executive Officer of the Company, or his designee, and without requiring a court
order or other compulsion, agrees to make himself and any necessary records or
documents in his possession reasonably available to the Company for an aggregate
total of up to thirty (30) hours where necessary to prosecute or defend any such
claim; and will use his best efforts to cooperate with the Company in
prosecuting or defending any such claim, provided, however, that in any case
where the Employee is required to travel for any consultation or legal
proceedings at the express written request of the Chief Executive Officer of the
Company, or his designee, (excluding any instance where the Company and the
Employee are on opposite sides of the litigation or are in any other opposing
position), the Employee shall be entitled to receive reimbursement of reasonable
travel costs reasonably expected to be incurred and properly documented.
Section 8. Use of the Employee's Likeness. The Employee acknowledges
and understands that, for a period of one year from the date hereof, it may be
necessary for the Company to make use of photographs or other material
evidencing the Employee's likeness in brochures, annual reports and the like
which were taken or created prior to the day and year first above written, and
hereby consents to and acknowledges the Company's ability, in the normal course
of business, to make use of such photographs and material evidencing the
Employee's likeness.
Section 9. Neutral Reference. So long as the Employee is in compliance
with all provisions of this Separation Agreement and request for such reference
is directed to the Vice President of Human Resources for the Company, the
Company shall provide Employee and any prospective employers of Employee a
neutral job reference, stating only Employee's dates of employment and positions
held and indicating that provision of such limited information is pursuant to
Company policy.
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Section 10. Successors and Assigns. This Separation Agreement shall be
binding upon, inure to the benefit of and be enforceable by the Employee's
personal or legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. This Separation Agreement shall also be
binding upon, inure to the benefit of and be enforceable by any successor to the
Company by reason of any merger, consolidation or sale of assets, dissolution,
debt foreclosure or other reorganization of the Company.
Section 11. Severability. If any provision hereof is unenforceable,
such provision shall be fully severable, and this Separation Agreement shall be
construed and enforced as if such unenforceable provision had never comprised a
part hereof, the remaining provisions hereof shall remain in full force and
effect, and the court construing this Separation Agreement shall add as a part
hereof a provision as similar in terms and effect to such unenforceable
provision as may be enforceable, in lieu of the unenforceable provision.
Section 12. Knowing and Voluntary. The Employee acknowledges that he
has reviewed the terms and conditions of this Separation Agreement, that he
understands its terms, and that he has executed this Separation Agreement
voluntarily and without any coercion, undue influence, threat or intimidation of
any kind whatsoever. The Employee further acknowledges that the consideration he
receives for this Separation Agreement is in addition to any amounts to which he
was already entitled pursuant to the Employment Agreement or otherwise.
Section 13. Arbitration. Any dispute between the parties pertaining to
this Separation Agreement shall be resolved through binding arbitration
conducted by the American Arbitration Association under the employment rules
then in effect. The parties agree that any arbitration proceeding shall be
conducted in Atlanta, Georgia and consent to exclusive jurisdiction and venue
there. The award of the arbitrator(s) shall be final and binding, and the
parties waive any right to appeal the arbitral award, to the extent that a right
to appeal may be lawfully waived. Each party retains the right to seek judicial
assistance (a) to compel arbitration, (b) to obtain injunctive relief and
interim measures of protection pending arbitration, and (c) to enforce any
decision of the arbitrator(s), including but not limited to the final award.
Section 14. Captions and Paragraph Headings. Captions and paragraph
headings used herein are for convenience only and are not a part of this
Separation Agreement and shall not be used in construing it.
Section 15. Acknowledgment of Obligation to Tender Back Consideration.
The Employee acknowledges and agrees that if he ever attempts to bring a claim
against the Company under state or federal law for discrimination or for
wrongful termination, including but not limited to a claim under Title VII of
the Civil Rights Act of 1964, and/or the Americans with Disabilities Act, which
claims were released by him by virtue of Section 3(a) of this Separation
Agreement, regardless of whether this Separation Agreement or the release and
covenant not to sue are valid or enforceable with respect to
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those claims, he will first pay to the Company all sums paid by it to him or on
his behalf under this Separation Agreement. The Employee also agrees that he
will pay any reasonable attorney's fees and costs incurred by the releasees in
defending themselves against the aforementioned released claim(s) and/or the
attempted revocation, rescission or annulment of the aforementioned released
claim(s), unless he ultimately prevails on the revocation, rescission or
annulment and the substantive claim(s).
Section 16. No Release of Future Claims. The Company and the Employee
understand and agree that, notwithstanding anything in this Separation Agreement
to the contrary, nothing in this Separation Agreement in any way restricts the
rights of the Company and/or the Employee to bring a claim or seek equitable
relief against the other based on acts occurring subsequent to the day and year
first above written.
Section 17. Entire Agreement. Except as otherwise expressly provided
herein (including in the documents referred to herein), this Separation
Agreement constitutes the entire agreement between the Company and the Employee
with respect to the subject matter hereof and supersedes all prior arrangements
or understandings with respect to the subject matter hereof, written or oral.
Nothing in this Separation Agreement expressed or implied is intended to confer
upon any person, other than the Company or the Employee or their respective
successors, any rights, remedies, obligations or liabilities under or by any
reason of this Agreement.
Section 18. Termination of Employment Agreement; Continuation of Stock
Option Agreements and Shareholder and Restrictive Covenant Agreement and Absence
of Other Agreements. The Employment Agreement is hereby terminated in all
respects. The Stock Option Agreements between Employee and the Company, dated
May 19, 1997, February 5, 1998 and October 26, 1998 (the "Stock Option
Agreements"), the Shareholder and Restrictive Covenant Agreement and the
Indemnification Agreement, will continue in full force and effect in accordance
with their terms. The Company and the Employee hereby represent and warrant to
the other that, except for this Separation Agreement, the Stock Option
Agreements, the Indemnification Agreement and the Shareholder and Restrictive
Covenant Agreement there are no agreements, arrangements or understandings,
written or oral, between the parties with respect to any subject matter
whatsoever.
Section 19. Choice of Law. This Separation Agreement, and the rights
and obligations of the parties hereto, shall be governed and construed in
accordance with the laws of the State of Georgia.
Section 20. Negotiated Agreement. The Separation Agreement was
negotiated between the parties hereto, and the fact that one party or the other
drafted this Separation Agreement shall not be used in its interpretation.
Section 21. Notices. All notices, requests and other communications
hereunder must be in writing and will be deemed to have been duly given only if
delivered
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personally or by facsimile transmission or mailed (first class postage prepaid)
to the parties at the following addresses or facsimile numbers:
If to Mann, to:
4439 North Elizabeth Lane
Atlanta, GA 30339
with a copy to:
Michael E. Ross, Esq.
King & Spalding
191 Peachtree Street
Atlanta, GA 30303-1763
Facsimile: (404) 572-5144
If to the Company, to:
Brady W. Mullinax, Jr.
Acsys, Inc.
75 14th Street
Suite 2200
Atlanta, Georgia 30309
Facsimile: (404) 815-4703
with a copy to:
Bryan E. Davis, Esq.
Alston & Bird LLP
One Atlantic Center
1201 West Peachtree Street
Atlanta, Georgia 30309-3424
Facsimile: (404) 881-4777
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section, be deemed given upon
delivery, (ii) if delivered by facsimile transmission to the facsimile number as
provided in this Section, be deemed given upon receipt, and (iii) if delivered
by mail in the manner described above to the address as provided in this
Section, be deemed given upon receipt (in each case regardless of whether such
notice, request or other communication is received by any other person to whom a
copy of such notice, request or other communication is to be delivered pursuant
to this Section). Any party from time to time may change its address, facsimile
number or other information for the purpose of notices to that party by giving
notice specifying such change to the other parties hereto and, if and when Mann
obtains a
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facsimile number prior to January 31, 2001, he shall provide it promptly to all
parties above.
Section 22. Counterparts. This Agreement may be executed in any number
of counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Separation
Agreement to be duly executed as of the day and year first above written. The
parties agree and acknowledge that (i) this Separation Agreement shall become
effective only upon approval by the Board of Directors of the Company or a
committee thereof and (ii) that this Separation Agreement shall be null, void,
and of no effect unless it is so approved by the Board of Directors of the
Company or a committee thereof by 5:00 p.m. EST on December 1, 1999.
ACSYS, INC.
By: /s/ Brady W. Mullinax, Jr.
-----------------------------------
Its: Chief Financial Officer
THE EMPLOYEE
/s/ Timothy Mann, Jr.
-----------------------------------
Timothy Mann, Jr.
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EXHIBIT A
To Whom It May Concern:
I, Timothy Mann, Jr., hereby formally tender my resignation as Chief Executive
Officer and as a Director and Officer of Acsys, Inc. and any of its affiliates
(the "Company"), and note that my resignation is not the result of any
disagreement with the Company relating to the Company's operations, policies or
practices. My resignation will be effective upon approval of my Separation
Agreement and Shareholder and Restrictive Covenant Agreement by the Board of
Directors of Acsys, Inc. or a committee thereof.
Sincerely,
/s/ Timothy Mann, Jr.
- -------------------------------
Timothy Mann, Jr. Date: 11/23/99
-----------------------
Accepted:
/s/ Brady W. Millinax, Jr. Date: 11/23/99
- ------------------------------- -----------------------
Title: Chief Financial Officer
Acsys, Inc.
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EXHIBIT B
FOR IMMEDIATE RELEASE
Contact: David C. Cooper
Chairman
(404) 817-9440
Jodie Land-Charlop
Director, Corporate Communications
(404) 817-9440
ACSYS, INC. CHIEF EXECUTIVE OFFICER RESIGNS
ATLANTA (NOV. XX, 1999) - Acsys, Inc. (AMEX:AYS), the nation's fourth largest
specialty professional staffing firm, today announced that Timothy Mann Jr.,
chief executive officer, has resigned his position and has also stepped down
from the company's board of directors. Mann's resignation is effective
immediately, and will result in a one-time charge in the company's
fourth-quarter results.
Mann served as the chief executive officer of Acsys, Inc. since October
1997, and a director since its formation. Before becoming CEO, Mr. Mann served
the company as chief financial officer.
Commenting on Mann's decision to leave the company, Acsys Chairman of
the Board, David C. Cooper said "Tim played an integral role in the merging of
the companies that ultimately formed Acsys, our subsequent initial public
offering and building the foundation for a new national organization. We
appreciate the leadership he provided during our young company's formation, and
wish him well in his future endeavors."
Based in Atlanta, Georgia, Acsys, Inc. provides professional temporary
staffing and permanent placement services in the U.S. The company's professional
services division, specializing in accounting, finance and corporate staffing,
provides a broad range of staffing and workforce solutions to Fortune 500,
middle-market and emerging growth companies. The company's information
technology (IT) division provides staff augmentation and solutions services in
the areas of SAP(TM), J.D. Edwards(R), PeopleSoft, Siebel, e-Commerce and other
information technology areas to more than 250 clients throughout the U.S.
Acsys has more than 600 employees in 40 offices nationwide with 1998
revenues of $148 million. More information about Acsys can be found on the
Internet at www.acsysinc.com.
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###
INFORMATION CONTAINED IN THIS PRESS RELEASE, OTHER THAN HISTORICAL
INFORMATION, SHOULD BE CONSIDERED FORWARD-LOOKING IN NATURE AND IS SUBJECT TO
VARIOUS RISKS OR UNCERTAINTIES AND ASSUMPTIONS. SHOULD ONE OR MORE OF THESE
RISKS OR UNCERTAINTIES MATERIALIZE, OR SHOULD UNDERLYING ASSUMPTIONS PROVE
INCORRECT, ACTUAL RESULTS MAY VARY MATERIALLY FROM THOSE ANTICIPATED, ESTIMATED
OR EXPECTED. AMONG THE KEY FACTORS THAT MAY HAVE A DIRECT BEARING ON THE
OPERATING RESULTS, PERFORMANCE OR FINANCIAL CONDITION ARE THE COMPANY'S ABILITY
TO ACHIEVE AND MANAGE GROWTH; THE COMPANY'S ABILITY TO SUCCESSFULLY IDENTIFY
SUITABLE ACQUISITION CANDIDATES, COMPLETE ACQUISITIONS OR INTEGRATE THE ACQUIRED
BUSINESS INTO ITS OPERATIONS; THE COMPANY'S ABILITY TO ATTRACT AND RETAIN
QUALIFIED PERSONNEL; THE COMPANY'S ABILITY TO DEVELOP NEW SERVICES; AND OTHER
FACTORS DISCUSSED IN ACSYS'S FILINGS WITH THE SECURITIES AND EXCHANGE
COMMISSION.
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EXHIBIT 10.2
SHAREHOLDER AND RESTRICTIVE COVENANT AGREEMENT
This Shareholder and Restrictive Covenant Agreement (the "Agreement")
is entered into as of the 23rd day of November, 1999, by and between Acsys,
Inc., formerly ICCE, Inc., (hereinafter the "Company"), and Timothy Mann, Jr.
(hereinafter "Mann"). This Agreement shall become effective when approved by the
Board of Directors of the Company or a committee thereof (the "Effective Date").
WHEREAS, Mann has previously been employed by the Company in the
capacity of Chief Executive Officer and has also served as a member of the Board
of Directors of the Company; and
WHEREAS, Mann and the Company have mutually agreed to Mann's
resignation from his employment with the Company and his resignation from the
Company's Board of Directors; and
WHEREAS, by virtue of his service as Chief Executive Officer and as a
member of the Board of Directors of the Company, Mann has comprehensive
knowledge of the Company's business, business relationships and financial
affairs, including confidential and trade secret information regarding the
Company's business and marketing plans, sales, costs, profits, pricing methods,
future business strategies and future business opportunities; and
WHEREAS, maintenance of the confidentiality of the Company's
proprietary business information and trade secrets is vital to the business
well-being of the Company; and
WHEREAS, as the Company's Chief Executive Officer and a member of the
Board of Directors of the Company, Mann has had substantial contacts with the
customers and employees of the Company; and
WHEREAS, Mann acknowledges that the continuing relationships between
the Company and its customers and employees are vital to the business well-being
of the Company;
WHEREAS, Mann continues to own the number of shares of Common Stock of
the Company (sometimes referred to herein as "Company Common Stock") and holds
options to acquire shares of Company Common Stock as set forth on Schedule I
hereto;
WHEREAS, Mann and the Company desire to establish in the Agreement
certain terms and conditions concerning the acquisition and disposition of
securities of the Company by Mann, corporate governance of the Company after the
date hereof, and protection of the Company's legitimate business interests, its
confidential and trade secret information, and its relationships with its
customers and employees;
<PAGE> 2
NOW, THEREFORE, in consideration of the premises and the mutual
promises herein contained, and for other good and valuable consideration the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I.
DEFINITIONS
1.01. Definitions. Except as otherwise specifically indicated, the
following terms have the following meanings for all purposes of this Agreement:
"beneficially owns" (or comparable variations thereof) has the meaning
set forth in Rule 13d-3 promulgated under the Exchange Act.
"Board of Directors" means the Board of Directors of the Company.
"Business Activities" means the business activities over which Mann had
authority and control at the Company, which consist of: (i) outsourcing of
accounting, finance, information technology, administrative (which, for the
purposes of Article IV of this Agreement, shall be defined to consist of
secretarial, administrative assistant, receptionist and similar positions), and
legal (which, for the purposes of Article IV, shall be defined to consist of
paraprofessional and administrative support positions, but not lawyer positions,
for legal departments, law firms and lawyers) staffing services; (ii) temporary
accounting, finance, information technology (including information technology
contract staffing and solution services), administrative and legal staffing
services; and (iii) permanent placement accounting, finance, information
technology (including information technology staffing and solution services),
administrative, and legal staffing services on a contingent fee basis.
"Confidential Information" means all information regarding the Company,
the Company's activities, the Company's business or the Company's clients that
is not generally known to persons not employed by the Company and that is not
generally disclosed by Company practice or authority to persons not employed by
the Company, but that does not rise to the level of a "Trade Secret."
"Confidential Information" shall include, but is not limited to, information
pertaining to the Company's sales and marketing techniques and plans, expansion
or contraction plans, financial data and plans, acquisition plans, management
plans, pricing information, and client information. Confidential Information
shall not include information that has become generally available to the public
by the act of one who has the right to disclose such information without
violating any legal right of the Company. This definition shall not limit any
definition of "Confidential Information" or any equivalent term under state or
federal law.
"Equity Securities" means Voting Securities, Convertible Securities and
Rights to Purchase Voting Securities.
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<PAGE> 3
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
"Liens" means any lien, claim, mortgage, encumbrance, pledge, security
interest, equity or charge of any kind.
"Person" means any individual, corporation, partnership, trust, other
entity or group (within the meaning of Section 13(d)(3) of the Exchange Act).
"Representatives" of any entity means such entity's directors,
officers, employees, legal, investment banking and financial advisors,
accountants and any other agents and representatives of such entity.
"Rule 144" means Rule 144 as presently promulgated under the Securities
Act.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"Subsidiary" means any Person in which-the Company directly or
indirectly through Subsidiaries or otherwise, beneficially owns more than fifty
percent (50%) of either the equity interest in, or the Voting Power of, such
Person.
"Trade Secrets" shall have the meaning assigned thereto by the Georgia
Trade Secrets Act, OCGA ss. 10-1-761.
"Voting Securities" means the Company Common Stock and any other
securities of the Company of any kind or class having power generally to vote
for the election of directors; "Convertible Securities" means securities of the
Company which are convertible or exchangeable (whether presently convertible or
exchangeable or not) into Voting Securities; and "Rights to Purchase Voting
Securities" means options and rights issued by the Company (whether presently
exercisable or not) to purchase Voting Securities or Convertible Voting
Securities.
Unless the context of this Agreement otherwise requires, words of any
gender include each other gender; (ii) words using the singular or plural number
also include the plural or singular number, respectively; (iii) the terms
"hereof," "herein," "hereby" and derivative or similar words refer to this
entire Agreement; and (iv) the terms "Article" or "Section" refer to the
specified Article or Section of this Agreement. Whenever this Agreement refers
to a number of days, such number shall refer to calendar days unless business
days are specified.
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<PAGE> 4
ARTICLE II.
PAYMENTS TO MANN BY THE COMPANY
2.01. Consideration for Mann's Post-Employment Covenants. In
consideration for Mann's promises and covenants set forth in Articles III and IV
below, the Company shall pay to Mann the total sum of $235,000.00, such payment
to be made in five (5) installments according to the following schedule:
<TABLE>
<S> <C>
Within 3 business days of the Effective Date
but no later than December 2, 1999 $108,045.97
April 1, 2000 $ 40,517.24
July 1, 2000 $ 32,413.79
October 1, 2000 $ 27,011.50
January 3, 2001 $ 27,011.50
</TABLE>
Mann and the Company agree that such payments shall not be considered wage
income and shall be reported by IRS Form 1099.
2.02 Remedy For Missed Payment. If the Company fails to make a payment
required by this Agreement, Mann shall give the Company notice of such failure
in accordance with Section 5.03 herein. The Company shall have ten (10) calendar
days after receipt of notice from Mann within which to cure by making such
payment. If the Company fails to cure by making such payment within ten (10)
calendar days of receipt of notice from Mann, all amounts due hereunder not yet
paid shall be accelerated and become immediately due and payable. If the Company
does not make the overdue payment within the ten (10) day cure period, interest
shall begin to accrue on the eleventh (11th) day (the day following the end of
the cure period) on all overdue amounts at the then prime rate of interest as
published in the Wall Street Journal.
Mann acknowledges and agrees that his receipt of the foregoing described
payments is expressly made contingent upon Mann's promises and covenants as set
forth in Articles III and IV below and agrees that, if Mann breaches any of the
provisions of Articles III and IV, Mann's entitlement to further payments will
immediately cease and Mann shall be obligated to return to Company all sums of
money previously paid by Company under this Agreement, provided, however, that
no forfeiture because of an alleged breach of Section 3.06(v) shall be deemed
effective until the ten (10) day notice period provided in Section 2.03 below
has expired.
2.03 Notice And Response For Certain Breaches. If the Company
determines that there has been a breach of Section 3.06(v) arising from Mann
having entered into a "discussion" as referenced therein, before declaring a
right to cancel further payments and demanding repayment of sums previously
paid, the Company shall first provide Mann notice in accordance with Section
5.03 herein of the grounds for the Company's belief that such a breach has
occurred. Mann shall have ten (10) calendar days from receipt of such notice
within which to respond to the Company, providing information, if
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<PAGE> 5
any, upon which he would dispute the existence of a breach. Thereafter, the
Company shall decide, in the exercise of its sole, reasonable discretion, if a
breach of Section 3.06(v) as described above has occurred, entitling the Company
to cease further payments and demand return of all sums of money previously paid
by the Company under this Agreement and to seek all other appropriate relief. No
payment shall be due to the Employee from the Company during any such ten (10)
calendar day notice period.
ARTICLE III.
MANN'S COVENANTS TO THE COMPANY
REGARDING EQUITY SECURITIES OF THE COMPANY
3.01. As a precondition to his receipt of the payments described in
Article II above, Mann agrees as follows:
3.02. Board of Directors. For a period of two (2) years following the
date hereof, at each meeting of shareholders of the Company, Mann shall vote the
Voting Securities beneficially held by him (A) for the nominees recommended by
the Board of Directors, (B) on all other proposals of the Board of Directors, as
Mann determines in his sole discretion, and (C) on all proposals of any other
shareholder of the Company, in accordance with the recommendation of the Board
of Directors.
3.03. Transfer of Shares. For a period of two (2) years following the
date hereof, Mann shall not directly or indirectly, assign, sell, pledge,
hypothecate or otherwise transfer or dispose of ("Dispose" or a "Disposition")
any Equity Securities beneficially owned by Mann, except (A) a Disposition
through a bona fide underwritten public offering registered under the Securities
Act, (B) a Disposition in a "brokers' transaction" pursuant to Rule 144(f), (C)
pursuant to a merger or consolidation of the Company or a recapitalization of
any Equity Securities, (D) pursuant to a self-tender or exchange offer by the
Company or a third party tender offer recommended by the Board of Directors, or
(E) a Disposition by way of gift to any Person who simultaneously with such
Disposition agrees in a written instrument in form and substance satisfactory to
the Company to be bound by the provisions of this Agreement as though an
original signatory hereto.
3.04. Legend. Each certificate representing Equity Securities
beneficially owned by Mann shall be imprinted with a legend in the following
form until such time as all restrictions on the Disposition of such Equity
Securities hereunder are terminated:
"UNTIL NOVEMBER 23, 2001, THESE SHARES MAY ONLY BE TRANSFERRED PURSUANT
TO THE PROVISIONS OF ARTICLE III OF THAT CERTAIN SHAREHOLDER
RESTRICTIVE COVENANT AGREEMENT DATED AS OF NOVEMBER 23, 1999, BY AND
BETWEEN ACSYS AND TIMOTHY MANN, JR., COPIES OF WHICH AGREEMENT ARE ON
FILE AT THE PRINCIPAL OFFICE OF THE COMPANY."
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<PAGE> 6
The Company shall not (i) give effect on its books to an attempted Disposition
of any Equity Securities which shall have been Disposed of in violation of any
provision of this Agreement, or (ii) treat any transferee who obtains any Equity
Securities in violation of any provision of this Agreement as the owner of such
Equity Securities or accord any transferee thereof the right to vote or to
receive dividends in respect of such Equity Securities. The Company will issue
new certificates not imprinted with the foregoing legend to any holder of Equity
Securities not subject to the restrictions on Disposition contained in this
Agreement; provided that the Company may require an opinion of counsel
reasonably satisfactory to it to the effect that no legend is required under the
Securities Act or applicable state securities or blue sky laws.
3.05. Limitation on Acquisition of Equity Securities. For a period of
two (2) years following the date hereof, Mann shall not, directly or indirectly,
purchase or acquire, or make any offer to or agree to purchase or acquire,
beneficial ownership of any Equity Securities, except (A) by way of stock
dividends, stock splits or other distributions or offerings made available to
holders of Equity Securities generally or (B) in connection with a Disposition
pursuant to a merger or consolidation of the Company or a recapitalization of
any Equity Securities. Nothing in this Agreement shall prevent Mann from
exercising Stock Options pursuant to the terms and time periods set forth in the
Stock Option Agreements covering the stock options described in Schedule I
attached hereto. The sale of any stock so purchased shall be governed by Section
3.03 above.
3.06. Standstill. For a period of two (2) years following the date
hereof, Mann shall not, and shall not assist or encourage others (including by
providing financing) to, directly or indirectly (i) acquire or agree, offer,
seek or propose (whether publicly or otherwise) to acquire ownership (including
but not limited to beneficial ownership) of any portion of the assets or Equity
Securities of the Company or any of its Subsidiaries, whether by means of a
negotiated purchase of assets, tender or exchange offer, merger or other
business combination, recapitalization, restructuring or other extraordinary
transaction, (ii) engage in any "solicitation" of "proxies" (as such terms are
used in the proxy rules promulgated under the Exchange Act, but disregarding
clause (iv) of Rule 14a-1(l)(2) and including any exempt solicitation pursuant
to Rule 14a-2(b)(1) or (2)), or form, join or in any way participate in a
"group" (as defined under the Exchange Act), with respect to any Equity
Securities, (iii) otherwise seek or propose to acquire control of the Board of
Directors or to knowingly disrupt or impair the normal, ongoing business
operations or policies (including determinations of the Board of Directors) of
the Company or any of its affiliates, (iv) knowingly take any action that could
reasonably be expected to force the Company to make a public announcement
regarding any of the types of matters referred to in clause (i), (ii) or (iii)
above, (v) enter into any negotiations, agreements, arrangements or
understandings with any third party with respect to any of the foregoing or (vi)
knowingly enter into any discussions with any third party with respect to any of
the foregoing. Mann shall not request the Company or any of its Representatives
to amend or waive any provision of this Section (including this sentence) or
Section 3.05 during such period. If at any time during such period Mann is
approached by any third party concerning, in the good faith reasonable judgment
of Mann, participation in any of the types of matters referred to in clauses
(i), (ii) and (iii)
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<PAGE> 7
above, Mann shall promptly inform the Company of the nature of such contact and
the parties thereto.
Notwithstanding anything else in this Agreement, if the Employee challenges the
validity or enforceability of any provision of this Article III or seeks to
revoke, rescind or avoid any such provision, the Employee first shall refund all
payments heretofore made to him pursuant to this Agreement and shall be deemed
to have forfeited all other payments to which he otherwise would be entitled
pursuant to this Agreement, provided, however, that Mann's mere exercise of his
right to provide information pursuant to Section 2.03 hereof shall not be deemed
to be a challenge to the validity or enforceability of any provision of this
Article III or an attempt to otherwise seek to revoke, rescind or avoid any
provision of this Article III and Mann shall not be required to refund any
payments or forfeit any right to receive any payment prior to availing himself
of such right.
ARTICLE IV
MANN'S RESTRICTIVE COVENANTS
4.01. As an additional precondition to his receipt of the payments as
described in Article II above, Mann further agrees as follows:
4.02. Noncompete. For a period commencing on the date of this Agreement
and ending on January 1, 2001, Mann shall not, without the Company's prior
written permission, directly or indirectly, on his own behalf or on behalf of
any other person or entity, within the Territory, be engaged as a manager,
executive, or operational consultant in the business of offering the Business
Activities. Mann acknowledges and agrees that the definition of Business
Activities accurately reflects activities he engaged in and had authority over
while employed by the Company, is less extensive than the overall activities he
engaged in and had authority over, and is reasonable in scope. Mann also
acknowledges and agrees that the above phrase, "manager, executive or
operational consultant" accurately describes duties and activities he engaged in
on behalf of the Company, is less extensive than the actual duties and
activities he engaged in, and is reasonable in scope. As used herein the term
"Territory" shall mean the twenty-five (25) mile radius surrounding the
following offices of the Company which Mann had oversight responsibility for
during the last twelve (12) months of his employment by the Company as the
Company's Chief Executive Officer:
1020 19th Street, N.W.
Suite 650
Washington, D.C. 20036
610 Crescent Executive Park
Suite 132
Lake Mary, FL 32746
390 North Orange Avenue
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<PAGE> 8
Suite 1825
Orlando, FL 32801
100 North Tampa Street
Suite 1950
Tampa, FL 33602
5 Concourse Parkway
Suite 2650
Atlanta, GA 30326
75 Fourteenth Street
Suite 2200
Atlanta, GA 30309
2400 Lakeview Parkway
Suite 500
Alpharetta, GA 30004
6701 Democracy Boulevard
Suite 400
Bethesda, MD 20817
1820 Chapel Avenue
Suite 168
Cherry Hill, NJ 08002
379 Thornall Street
Edison, NJ 08837
102 Campus Drive
Princeton, NJ 08540
110 South Jefferson Road
Whippany, NJ 07981
425 Broadhollow Road
Suite 318
Melville, NY 11747
780 Third Avenue
New York, NY 10017
301 South College Street
Charlotte, NC 28202
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<PAGE> 9
1850 Linglestown Rd.
Suite 307
Harrisburg, PA 1711
1850 William Penn Way
Suite 106
Lancaster, PA 17601
1700 Market Street
Suite 3110
Philadelphia, PA 19103
500 East Swedesford Road
Suite 100
Wayne, PA 19087
1340 Braddock Place
Suite 201
Alexandria, VA 22314
8300 Greensboro Drive
Suite 720
McLean, VA 22102
12110 Sunset Hills Road
Reston, VA 20190
7100 Forest Avenue
Suite 101
Richmond, VA 23226
Mann acknowledges and agrees that the definition of Territory accurately
describes geographical area over which he had authority while employed by the
Company, is less extensive than the actual geographical area over which he had
authority, and is reasonable in scope.
Notwithstanding the foregoing, Mann shall be allowed to provide consulting
services to his brother's company, Digital Fusion, Inc., only within its market
areas of the specific Digital Fusion offices set forth below and only in
connection with Digital Fusion's business activities as carried on as of the
date of execution of this Agreement:
400 N. Ashley Drive, Suite 2600
Tampa, FL 33602-4327
125 Patdean Drive
Huntsville, AL 35811-8824
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<PAGE> 10
2 Appletree Square Suite 200
8011 34th Avenue S.
Minneapolis, MN 55425-1224
1301 W. Long Lake Rd. Suite 236
Troy, MI 48098-6319
3730 Kirby Drive Suite 1200
Houston, TX 77098-3979
In addition, nothing herein shall be construed to prevent Mann from (i) engaging
in the private practice of law or (ii) engaging in investment banking provided
that in either such capacity Mann does not personally participate in the
representation of clients whose business involves carrying on the Business
Activities within the Territory. It is understood that the firm by which Mann
may be employed to provide such legal or investment banking services may provide
such services to clients, including Digital Fusion, Inc., engaged in the
Business Activities in the Territory so long as Mann is not personally involved
in any such representation in any way; provided, however, that Mann shall be
permitted to provide legal and/or investment banking advice to Digital Fusion in
connection with one sale of all or part of Digital Fusion during the restricted
period set forth above (from the date of this Agreement through January 1,
2001), so long as he is not involved in any purchases or acquisitions for
Digital Fusion during such period and he does not represent Digital Fusion or
its purchaser or otherwise engage in the Business Activities in connection with
either Digital Fusion or its purchaser after the sale and during the above
restricted period. Permission for Mann to provide legal and/or investment
banking advice to Digital Fusion shall expire upon sale of all or part of
Digital Fusion.
4.03. Nonsolicitation of Prospects. For a period commencing on the date
of this Agreement and ending on January 1, 2001, Mann shall not, without the
Company's prior written permission, directly or indirectly, through one or more
intermediaries or otherwise, on his own behalf or on behalf of any other person
or entity, through one or more intermediaries, or otherwise, solicit an
opportunity to invest in, or to purchase an ownership interest in, any of the
companies described in that certain letter dated November 23, 1999 from Brady W.
Mullinax, Jr. to Mann which Mann acknowledges and agrees were known to him to be
companies which the Company had identified as potential business and/or
acquisition opportunities of the Company and about which Mann received
confidential and trade secret information during the term of his employment with
the Company.
4.04. Nonsolicitation of Employees. For a period commencing on the date
of this Agreement and ending on January 1, 2001, Mann shall not, without the
Company's prior written permission, directly or indirectly, through one or more
intermediaries or otherwise, on his own behalf or on behalf of any other person
or entity, solicit to employ,
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<PAGE> 11
any person (a) who was employed with the Company during the last twelve months
of Mann's employment with the Company, and (b) who has not ceased to be employed
by the Company for a period of at least six months; provided, however, that
after March 1, 2000, Mann shall be free to offer employment to Jerri Davis.
4.05. Nonsolicitation of Customers. For a period commencing on the date
of this Agreement and ending on January 1, 2001, Mann shall not, without the
Company's prior written permission, directly or indirectly, through one or more
intermediaries or otherwise, on his own behalf or on behalf of any other person
or entity, solicit an opportunity to provide the Business activities to any
customer of the Company with whom Mann had material business contact(s) on
behalf of the Company during Mann's last twelve (12) months of employment with
the Company.
4.06. Non-Disclosure. For a period commencing on the date of this
Agreement and ending on January 1, 2001, Mann shall not, without the Company's
prior written permission, directly or indirectly, on his own behalf or on behalf
of any other persons or entity, transmit or disclose any Trade Secret or
Confidential Information of the Company to any person and shall not make use of
any Trade Secret or Confidential Information, for himself or others, except to
the extent required by any law or order, in which case Mann shall provide the
Company prior written notice of such requirement and an opportunity to contest
same. Trade Secrets shall not lose protection from use or disclosure on January
1, 2001, but shall continue to be protected as long as they remain Trade
Secrets.
Notwithstanding anything else in this Agreement, if the Employee challenges the
validity or enforceability of any provision of this Article IV or seeks to
revoke, rescind or avoid any such provision, the Employee first shall refund all
payments heretofore made to him pursuant to this Agreement and shall be deemed
to have forfeited all other payments to which he otherwise would be entitled
pursuant to this Agreement.
ARTICLE V
GENERAL PROVISIONS
5.01. Ownership of Company Shares. Mann represents and warrants to the
Company that (i) he owns, beneficially and of record, as of the date hereof, the
number of shares of Company Common Stock listed on Schedule I hereto
(collectively, the "Company Shares"), subject to no rights of others and free
and clear of all Liens except as noted on Schedule I; (ii) Mann's right to vote
or Dispose of the Company Shares beneficially owned by Mann is not subject to
any voting trust, voting agreement, voting arrangement or proxy, and (iii) Mann
has not entered into any contract, option or other arrangement or undertaking
with respect thereto.
5.02. Amendment and Waiver
(a) This Agreement may be amended, supplemented or modified only
by a written instrument duly executed by or on behalf of each party hereto.
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<PAGE> 12
(b) Any term or condition of this Agreement may be waived at any
time by the party that is entitled to the benefit thereof, but no such waiver
shall be effective unless set forth in a written instrument duly executed by or
on behalf of the party waiving such term or condition. No waiver by any party of
any term or condition of this Agreement, in any one or more instances, shall be
deemed to be or construed as a waiver of the same or any other term or condition
of this Agreement on any future occasion. All remedies, either under this
Agreement or by law or otherwise afforded, will be cumulative and not
alternative.
5.03. Notices. All notices, requests and other communications
hereunder must be in writing and will be deemed to have been duly given only if
delivered personally or by facsimile transmission or mailed (first class postage
prepaid) to the parties at the following addresses or facsimile numbers:
If to Mann, to:
4439 North Elizabeth Lane
Atlanta, GA 30339
with a copy to:
Michael E. Ross, Esq.
King & Spalding
191 Peachtree Street
Atlanta, GA 30303-1763
Facsimile: (404) 572-5144
If to the Company, to:
Brady W. Mullinax, Jr.
Acsys, Inc.
75 14th Street
Suite 2200
Atlanta, Georgia 30309
Facsimile: 404-815-4703
with a copy to:
Bryan E. Davis, Esq.
Alston & Bird LLP
One Atlantic Center
1201 West Peachtree Street
Atlanta, Georgia 30309-3424
Facsimile: (404) 881-4777
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<PAGE> 13
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section, be deemed given upon
delivery, (ii) if delivered by facsimile transmission to the facsimile number as
provided in this Section, be deemed given upon receipt, and (iii) if delivered
by mail in the manner described above to the address as provided in this
Section, be deemed given upon receipt (in each case regardless of whether such
notice, request or other communication is received by any other person to whom a
copy of such notice, request or other communication is to be delivered pursuant
to this Section). Any party from time to time may change its address, facsimile
number or other information for the purpose of notices to that party by giving
notice specifying such change to the other parties hereto and, if and when Mann
obtains a facsimile number prior to January 31, 2001, he shall provide it
promptly to all parties above.
5.04. Entire Agreement. This Agreement supersedes all prior
discussions and agreements among the parties hereto with respect to the subject
matter hereof, and contains, the sole and entire agreement among the parties
hereto with respect to the subject matter hereof. The Stock Option Agreements
between Employee and the Company, dated May 19, 1997, February 5, 1998 and
October 26, 1998 (the "Stock Option Agreements"), the Separation and Release
Agreement, executed contemporaneously herewith (the "Separation Agreement") and
the Director's and Officer's Indemnification Agreement, originally executed in
1997 and a replacement document executed contemporaneous herewith because of the
loss of the original (the "Indemnification Agreement"), will continue in full
force and effect in accordance with their terms. The Company and the Employee
hereby represent and warrant to the other that, except for this Shareholder and
Restrictive Covenant Agreement, the Stock Option Agreements, the Indemnification
Agreement and the Separation Agreement there are no agreements, arrangements or
understandings, written or oral, between the parties with respect to any subject
matter whatsoever.
5.05. Invalid Provisions. If any provision of this Agreement is held
to be illegal, invalid or unenforceable under any present or future law, and if
the rights or obligations of any party hereto under this Agreement will not be
materially and adversely affected thereby, (i) such provision will be fully
severable, (ii) this Agreement will be construed and enforced as if such
illegal, invalid or unenforceable provision had never comprised a part hereof
and (iii) the remaining provisions of this Agreement will remain in full force
and effect and will not be affected by the illegal, invalid or unenforceable
provision or by its severance herefrom.
5.06. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Florida applicable to a contract
executed and performed in such State, without giving effect to the conflicts of
laws principles thereof.
5.07. Consent to Jurisdiction and Service of Process. Each party hereby
irrevocably submits to the jurisdiction of The United States District Court for
the Northern District of Georgia or any court of the State of Georgia located in
Cobb County and in any action, suit or proceeding arising in connection with
this Agreement, agrees
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<PAGE> 14
that any such action, suit or proceeding may be brought in such court (and
waives any objection based on forum non conveniens or any other objection to
venue therein to the extent permitted by law), provided, however, that such
consent to jurisdiction is solely for the purpose referred to in this Section
and shall not be deemed to be a general submission to the jurisdiction of said
courts. Nothing herein shall affect the right of any party to commence legal
proceedings or otherwise proceed against the other in any other jurisdiction.
5.08. Counterparts. This Agreement may be executed in any number of
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
5.09. Injunctive Relief. Mann acknowledges that the covenants and
promises contained in this Agreement are a reasonable and necessary means of
protecting and preserving the Company's goodwill and interests in its
confidential information and trade secrets. Mann agrees that any breach of these
covenants or promises will leave the Company with no adequate remedy at law and
will cause the Company to suffer irreparable damage and injury. Mann further
agrees that any breach of these covenants and promises will entitle the Company
to injunctive relief in any court of competent jurisdiction. Such injunctive
relief shall be in addition to any damages which may be recoverable by the
Company as a result of any breach.
5.10. Assignability The Company shall have the right to assign this
Agreement to its successors and assigns, and all covenants and agreements
hereunder shall inure to the benefit and be enforceable by said successors or
assigns (or any Subsidiary thereof).
5.11. Knowing and Voluntary. Mann acknowledges that he has reviewed the
terms and conditions of this Agreement, that he understands its terms, and that
he has executed this Agreement voluntarily and without any coercion, undue
influence, threat or intimidation of any kind whatsoever and that he has had the
benefit of counsel in negotiating and drafting this Agreement. Mann further
acknowledges that the consideration he receives for this Agreement is in
addition to any amounts to which he was already entitled.
5.12. Captions and Paragraph Headings. Captions and paragraph headings
used herein are for convenience only and are not a part of this Agreement and
shall not be used in construing it.
5.13. Negotiated Agreement. This Agreement was negotiated between the
parties hereto, and the fact that one party or the other drafted this Agreement
shall not be used in its interpretation.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written. The parties agree and
acknowledge (i) that this Agreement shall become effective only upon approval by
the Board of Directors of the Company or a committee thereof and (ii) that this
Agreement
14
<PAGE> 15
shall be null, void, and of no effect unless it is so approved by the Board of
Directors or a committee thereof by 5:00 p.m. EST on December 1, 1999.
ACSYS, INC.
Name: /s/ Brady W. Mullinax, Jr.
---------------------------------
Title: Chief Financial Officer
---------------------------------
/s/ Timothy Mann, Jr.
---------------------------------
Timothy Mann, Jr.
15
<PAGE> 16
SCHEDULE I
<TABLE>
<S> <C> <C>
Shares Beneficially Owned By Mann Number
5,450
Options Owned by Mann Number Exercise Price
135,198 $ 8.00
113,357 $ 8.50
100,000 $10.00
</TABLE>
<PAGE> 1
EXHIBIT 10.3
SEPARATION AND RELEASE AGREEMENT
This Separation and Release Agreement (hereinafter the "Separation
Agreement") is entered into as of the 1st day of December, 1999, by and between
Acsys, Inc., formerly ICCE, Inc., (hereinafter the "Company"), and Mary Beth
Chase (hereinafter the "Employee").
WHEREAS, the Employee has been employed by the Company in the capacity
of Executive Vice President and Chief Development Officer pursuant to that
Employment Agreement dated May 16, 1997, as amended in Amendment No. 1 to
Employment Agreement, dated May 16, 1997, and by resolution of the Board of
Directors of the Company (collectively referred to herein as the "Employment
Agreement"); and
WHEREAS, the Employee has also served as a member of the Board of
Directors of the Company; and
WHEREAS, the Employee and the Company have mutually agreed to
Employee's resignation from her employment with the Company and her resignation
from the Company's Board of Directors; and
WHEREAS, the Company and the Employee have agreed to a severance
arrangement pursuant to the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual
promises herein contained, the parties hereto agree as follows:
Section 1. Termination of Employment and Resignation from Board of
Directors. The Company and the Employee agree that the Employee's employment
with the Company will be terminated as of the day and year first above written
(the "Separation Date"), that Employee has voluntarily resigned from her
employment and that the Employee has been paid all wages and compensation due
her through the Separation Date. The Company and the Employee further agree
that, contemporaneously with the signing of this Separation Agreement, the
Employee shall resign as a member of the Company's Board of Directors by
executing the letter of resignation attached hereto as Exhibit A, and agree that
the Employee's resignation is not the result of a disagreement with the Company
relating to the Company's operations, policies or practices.
Section 2. Severance Pay. The Company shall make a total gross payment
to the Employee of $150,000.00, less withholding for taxes, paid in
approximately equal monthly installments on or about the Company's first regular
payroll date on or after the first of each month between the execution of this
Agreement and January 1, 2001.
The Employee agrees that, in order to receive reimbursement for any reimbursable
but as yet unsubmitted business expenses she has incurred prior the date of
execution of this Agreement, and for one trip to Atlanta after the date of
execution of this Agreement but
<PAGE> 2
prior to December 20, 1999, to retrieve personal items from her office, she must
submit to the Company expense reports and proper supporting documentation for
such expenses, which total amount shall not exceed Thirty Thousand Dollars
($30,000), no later than December 20, 1999. The Company agrees to reimburse the
submitted expenses, to the extent that they are submitted by December 20, 1999
and are approved in accordance with the Company's normal approval procedures, up
to a total of Thirty Thousand Dollars ($30,000), in the regular course of
business and in accordance with the Company's normal reimbursement procedures.
The Employee agrees to pay for all expenses she has incurred or caused to be
incurred on the Company's credit cards or through other Company accounts to the
extent that such expenses are not approved by the Company, and normally are not
approvable business expenses, pursuant to the Company's normal expense approval
process.
In the event that the Company fails to make a payment as set forth in this
Section, the Employee shall give the Company notice of such failure in
accordance with Section 21 herein. The Company shall have ten (10) calendar days
after receipt of notice from the Employee within which to cure by making such
payment. If the Company fails to cure by making such payment within ten (10)
calendar days of receipt of notice from the Employee, all amounts due hereunder
not yet paid shall be accelerated and become immediately due and payable.
Such payments shall be reported by the Company as W-2 income received by the
Employee. The Employee agrees that this amount has been negotiated as a
compromise of the parties' divergent positions as to separation payments and
that it constitutes valuable and sufficient consideration for the Employee's
promises, covenants and releases herein. Employee agrees that, except as
specifically and expressly provided in this Separation Agreement, no further
wages, commissions, backpay, attorneys fees, severance pay or other employment
benefits are due her from the Company or its officers, directors, employees,
affiliates, successors or assigns.
Section 3. Mutual Releases.
(a). By Employee. In consideration for the severance benefits
described in Section 2 hereof and Company's promises and releases herein,
Employee for herself, her successors and assigns, now and forever, hereby
releases and discharges the Company and its officers, directors, stockholders,
employees, agents, parent corporations, subsidiaries, affiliates, successors,
assigns and attorneys (the "Releasees"), from any and all claims, legal or
equitable actions, liability or litigation, real or contemplated, known or
unknown, that the Employee may now have or may later claim to have had against
any of the Releasees arising out of anything that has occurred up to and through
the date hereof, including without limitation, any claims arising by virtue of
her status as a shareholder and/or director of the Company or out of her
employment or termination of employment with the Company. Without limiting the
foregoing, the Employee hereby releases those claims that could have been
asserted by her in connection with the Employment Agreement or any other
agreement or in connection with any claim or suit for wrongful
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<PAGE> 3
discharge or any claim under either state or federal employment or
discrimination laws including, without limitation Title VII of the Civil Rights
Act of 1964, and the Americans with Disabilities Act. The Employee acknowledges
that she may have sustained or may yet sustain damages, costs or expenses that
are presently unknown and that relate to claims between her and the Releasees
released by this Separation Agreement and she agrees that she is waiving all
such claims. For the purpose of implementing a full and complete release and
discharge of the Releasees, the Employee expressly acknowledges this Separation
Agreement is intended to include in its effect, without limitation, all claims
that she does not know or suspect to exist in her favor at the time she signs
this Separation Agreement, and that this Separation Agreement contemplates the
extinguishment of any such claim or claims. The Employee shall forever refrain
and forbear from commencing, instituting or prosecuting any lawsuit, action,
claim or proceeding before or in any court, regulatory, governmental, arbitral
or other authority against the Releasees by or naming or joining such Releasees
as parties to collect or enforce any claims or causes of action which are
released and discharged hereby. Employee hereby acknowledges and agrees that she
has knowingly relinquished, waived and forever released any and all other
remedies that might be available to her, including without limitation, claims
for back pay, front pay, fringe benefits, contract and personal injury damages,
punitive damages and attorneys' fees or expenses of litigation.
The foregoing release and covenant not to sue is not, however,
intended to release or apply to, and shall not release or apply to, any rights
of the Employee: (i) under this Separation Agreement or the Shareholder and
Restrictive Covenant Agreement executed contemporaneously herewith (the
"Shareholder and Restrictive Covenant Agreement") or to enforce any right, term
or provision of this Separation Agreement or the Shareholder and Restrictive
Covenant Agreement; (ii) to receive any COBRA health insurance continuation to
which she is otherwise entitled at her own expense or to receive benefits under
any Company insurance or other benefit plans, including any 401(k) plan, that
either have accrued or vested prior to the date hereof or that, by their terms,
expressly are intended and designed under such plans to survive an employee's
termination or separation from the Company; (iii) now or in the future to be
entitled to claim or receive indemnification as an officer or director of the
Company under any applicable state laws, the Company's Articles of Incorporation
or the Company's By-laws, or that certain Acsys, Inc. Directors and Officers
Indemnification Agreement originally executed in 1997 for which a replacement
document is executed contemporaneous herewith because of the loss of the
original (the "Indemnification Agreement"); (iv) to claim or receive insurance
coverage or to be defended under any directors and officers insurance coverage
which applies to or benefits directors and/or officers of the Company and which
applies to the Employee; (v) to exercise stock options granted pursuant to the
Stock Option Agreements defined below in this Agreement or (vi) to receive
reimbursement for business expenses properly submitted pursuant to Section 2
above and required to be reimbursed by the Company's reimbursement policies.
(b). By Company. In consideration for Employee's promises and
releases herein, the Company, for itself, its subsidiaries, successors and
assigns, now and
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<PAGE> 4
forever, hereby releases and discharges the Employee from any and all claims,
legal or equitable actions, liability or litigation, real or contemplated, known
or unknown, that the Company may now have or may later claim to have had against
the Employee arising out of anything that has occurred up to and through the
date hereof, including without limitation, any claims arising out of her
employment or termination of employment with the Company; provided, however,
that the Company does not release or waive any claims arising from any acts or
omissions by Employee that constitute violation of any law, rule or regulation
to which the Company or the Employee was subject at the time or any claims
against the Company for any ultra vires acts by Employee, which claims are
expressly reserved. The Company acknowledges that it may have sustained or may
yet sustain damages, costs or expenses that are presently unknown and that
relate to claims between it and the Employee which are nonetheless released
hereby. For the purpose of implementing a full and complete release and
discharge of the Employee, except with respect to the exceptions set forth
above, the Company expressly acknowledges this Separation Agreement is intended
to include in its effect, without limitation, all claims that it does not know
or suspect to exist in its favor at the time it signs this Separation Agreement,
and that this Separation Agreement contemplates the extinguishment of any such
claim or claims. The Company shall forever refrain and forbear from commencing,
instituting or prosecuting any lawsuit, action, claim or proceeding before or in
any court, regulatory, governmental, arbitral or other authority against the
Employee or naming or joining the Employee as a party to collect or enforce any
claims or causes of action which are released and discharged hereby. The Company
hereby acknowledges and agrees that it has knowingly relinquished, waived and
forever released any and all other remedies that might be available to it,
including without limitation, claims for contract damages, punitive damages and
attorneys' fees or expenses of litigation.
Section 4. Representations and Warranties. Employee represents and
warrants that she has not, as of the date hereof, committed any illegal act
which could give rise to a claim against Employee by the Company, nor has she
committed any ultra vires act which could give rise to a claim against the
Company by a third party. The Company represents and warrants that the Company's
Officers David Cooper and Brady W. Mullinax, Jr. are not aware of any such
illegal or ultra vires acts on the part of the Employee as of the date hereof.
Section 5. Company Property. Employee shall be permitted to retain
without charge as her personal property the cell phone, the laptop computer and
the docking station previously furnished her by the Company. The Company shall
have no responsibility or obligation to the Employee or otherwise for usage fees
incurred after the date hereof. Employee agrees that she will not retain or
destroy, and will return to the Company, any and all other property of Company
in her possession or subject to her control including, but not limited to, keys,
credit and identification cards, computers, client files and information,
acquisition files and information, contact information for targets, buyers and
clients, all other files and documents relating to the Company, its plans or its
business, contracts, personal items or equipment provided to her for her use,
together with all written or recorded materials, documents, computer discs,
plans,
-4-
<PAGE> 5
records, notes or other papers belonging to the Company. The Employee further
agrees not to make, distribute or retain any such information or property.
Section 6. Press Release. The Company and the Employee agree that the
fact of the Employee's separation from the Company shall be formally announced
in a press release and the references to the Employee shall use substantially
the language set forth in the form attached hereto as Exhibit B; provided,
however, that if Company requests changes altering the language contemplated by
Exhibit B and provides a copy of such changes to the Employee prior to the
release of the statement; the Employee shall not unreasonably refuse to allow
such changes.
Section 7. Cooperation in Claims. With respect to any claim asserted by
or brought against the Company in relation to its business and/or against the
Employee in her former capacity as employee, officer or Director of the Company,
the Employee, upon reasonable notice and at the written request of the Chief
Executive Officer of the Company, or her designee, and without requiring a court
order or other compulsion, agrees to make herself and any necessary records or
documents in her possession reasonably available to the Company for an aggregate
total of up to thirty (30) hours where necessary to prosecute or defend any such
claim; and will use her best efforts to cooperate with the Company in
prosecuting or defending any such claim, provided, however, that in any case
where the Employee is required to travel for any consultation or legal
proceedings at the express written request of the Chief Executive Officer of the
Company, or his designee, (excluding any instance where the Company and the
Employee are on opposite sides of the litigation or are in any other opposing
position), the Employee shall be entitled to receive reimbursement of reasonable
travel costs reasonably expected to be incurred and properly documented.
Section 8. Use of the Employee's Likeness. The Employee acknowledges
and understands that, for a period of one year from the date hereof, it may be
necessary for the Company to make use of photographs or other material
evidencing the Employee's likeness in brochures, annual reports and the like
which were taken or created prior to the day and year first above written, and
hereby consents to and acknowledges the Company's ability, in the normal course
of business, to make use of such photographs and material evidencing the
Employee's likeness.
Section 9. Neutral Reference. So long as the Employee is in compliance
with all provisions of this Separation Agreement and request for such reference
is directed to the Vice President of Human Resources for the Company, the
Company shall provide Employee and any prospective employers of Employee a
neutral job reference, stating only Employee's dates of employment and positions
held and indicating that provision of such limited information is pursuant to
Company policy.
Section 10. Successors and Assigns. This Separation Agreement shall be
binding upon, inure to the benefit of and be enforceable by the Employee's
personal or legal representatives, executors, administrators, successors, heirs,
distributees, devisees and
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<PAGE> 6
legatees. This Separation Agreement shall also be binding upon, inure to the
benefit of and be enforceable by any successor to the Company by reason of any
merger, consolidation or sale of assets, dissolution, debt foreclosure or other
reorganization of the Company.
Section 11. Severability. If any provision hereof is unenforceable,
such provision shall be fully severable, and this Separation Agreement shall be
construed and enforced as if such unenforceable provision had never comprised a
part hereof, the remaining provisions hereof shall remain in full force and
effect, and the court construing this Separation Agreement shall add as a part
hereof a provision as similar in terms and effect to such unenforceable
provision as may be enforceable, in lieu of the unenforceable provision.
Section 12. Knowing and Voluntary. The Employee acknowledges that she
has reviewed the terms and conditions of this Separation Agreement, that she has
discussed it with her attorney, that she understands its terms, and that she has
executed this Separation Agreement voluntarily and without any coercion, undue
influence, threat or intimidation of any kind whatsoever.
Section 13. Arbitration. Any dispute between the parties pertaining to
this Separation Agreement shall be resolved through binding arbitration
conducted by the American Arbitration Association under the employment rules
then in effect. The parties agree that any arbitration proceeding shall be
conducted in Atlanta, Georgia and consent to exclusive jurisdiction and venue
there. The award of the arbitrator(s) shall be final and binding, and the
parties waive any right to appeal the arbitral award, to the extent that a right
to appeal may be lawfully waived. Each party retains the right to seek judicial
assistance (a) to compel arbitration, (b) to obtain injunctive relief and
interim measures of protection pending arbitration, and (c) to enforce any
decision of the arbitrator(s), including but not limited to the final award.
Section 14. Captions and Paragraph Headings. Captions and paragraph
headings used herein are for convenience only and are not a part of this
Separation Agreement and shall not be used in construing it.
Section 15. Acknowledgment of Obligation to Tender Back Consideration.
The Employee acknowledges and agrees that if she ever attempts to bring a claim
against the Company under state or federal law for discrimination or for
wrongful termination, including but not limited to a claim under Title VII of
the Civil Rights Act of 1964, and/or the Americans with Disabilities Act, which
claims were released by her by virtue of Section 3(a) of this Separation
Agreement, regardless of whether this Separation Agreement or the release and
covenant not to sue are valid or enforceable with respect to those claims, or if
she seeks to revoke, rescind or annul the release or covenant not to sue in
Section 3(a), she will first pay to the Company all sums paid by it to her or on
her behalf under this Separation Agreement. The Employee also agrees that she
will pay any reasonable attorney's fees and costs incurred by the Releasees in
defending themselves
-6-
<PAGE> 7
against the aforementioned released claim(s) and/or the attempted revocation,
rescission or annulment of the aforementioned released claim(s), unless she
ultimately prevails on the revocation, rescission or annulment and the
substantive claim(s). The Company agrees that, if it ever attempts to bring a
claim against the Employee, which claim was released by it by virtue of Section
3(b) of this Separation Agreement, or if it seeks to revoke, rescind or annul
the release or covenant not to sue in Section 3(b), it will pay any reasonable
attorneys' fees and costs incurred by the Employee in defending herself against
such claim and/or the attempted revocation, rescission or annulment of the
aforementioned released claim, unless it ultimately prevails on the revocation,
rescission or annulment and the substantive claim.
Section 16. No Release of Future Claims. The Company and the Employee
understand and agree that, notwithstanding anything in this Separation Agreement
to the contrary, nothing in this Separation Agreement in any way restricts the
rights of the Company and/or the Employee to bring a claim or seek equitable
relief against the other based on acts occurring subsequent to the day and year
first above written.
Section 17. Entire Agreement. Except as otherwise expressly provided
herein (including in the documents referred to herein), this Separation
Agreement constitutes the entire agreement between the Company and the Employee
with respect to the subject matter hereof and supersedes all prior arrangements
or understandings with respect to the subject matter hereof, written or oral.
Nothing in this Separation Agreement expressed or implied is intended to confer
upon any person, other than the Company or the Employee or their respective
successors, any rights, remedies, obligations or liabilities under or by any
reason of this Agreement.
Section 18. Termination of Employment Agreement; Continuation of
Director's and Officer's Indemnification Agreement and the Shareholder and
Restrictive Covenant Agreement and Absence of Other Agreements. The Employment
Agreement is hereby terminated in all respects. The Shareholder and Restrictive
Covenant Agreement and the Indemnification Agreement will continue in full force
and effect in accordance with their terms. The Company and the Employee hereby
represent and warrant to the other that, except for this Separation Agreement,
the Amended and Restated Registration Rights Agreement dated September 3, 1997,
the Indemnification Agreement and the Shareholder and Restrictive Covenant
Agreement there are no agreements, arrangements or understandings, written or
oral, between the parties with respect to any subject matter whatsoever.
Section 19. Choice of Law. This Separation Agreement, and the rights
and obligations of the parties hereto, shall be governed and construed in
accordance with the laws of the State of Georgia.
Section 20. Negotiated Agreement. The Separation Agreement was
negotiated between the parties hereto, and the fact that one party or the other
drafted this Separation Agreement shall not be used in its interpretation.
-7-
<PAGE> 8
Section 21. Notices. All notices, requests and other communications
hereunder must be in writing and will be deemed to have been duly given only if
delivered personally or by facsimile transmission or mailed (first class postage
prepaid) to the parties at the following addresses or facsimile numbers:
If to the Employee, to:
Mary Beth Chase
311 Tucker Street
Annapolis, Maryland 21401
Facsimile: (410) 268-7711
with a copy to:
Lewis Ferguson, Esq.
Williams & Connolly
725 Twelfth Street, N.W.
Washington, District of Columbia 20005-5901
Facsimile: (202) 434-5573
If to the Company, to:
Brady W. Mullinax, Jr.
Acsys, Inc.
75 14th Street
Suite 2200
Atlanta, Georgia 30309
Facsimile: (404) 815-4703
with a copy to:
Bryan E. Davis, Esq.
Alston & Bird LLP
One Atlantic Center
1201 West Peachtree Street
Atlanta, Georgia 39309-3424
Facsimile: (404) 881-4777
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section, be deemed given upon
delivery, (ii) if delivered by facsimile transmission to the facsimile number as
provided in this Section, be deemed given upon receipt, and (iii) if delivered
by mail in the manner described above to the address as provided in this
Section, be deemed given upon receipt (in each case regardless of whether such
notice, request or other communication is received by any
-8-
<PAGE> 9
other person to whom a copy of such notice, request or other communication is to
be delivered pursuant to this Section). Any party from time to time may change
its address, facsimile number or other information for the purpose of notices to
that party by giving notice specifying such change to the other parties hereto.
Section 22. Counterparts. This Agreement may be executed in any number
of counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Separation
Agreement to be duly executed as of the day and year first above written.
ACSYS, INC.
By: /s/ Brady W. Mullinax, Jr.
---------------------------------
Its: Chief Financial Officer
THE EMPLOYEE
/s/ Mary Beth Chase
---------------------------------
Mary Beth Chase
-9-
<PAGE> 10
EXHIBIT A
To Whom It May Concern:
I, Mary Beth Chase, hereby formally tender my resignation as Executive Vice
President and Chief Development Officer and as a Director and Officer of Acsys,
Inc. and any of its affiliates (the "Company"), and note that my resignation is
voluntary and not the result of any disagreement with the Company relating to
the Company's operations, policies or practices.
Sincerely,
Mary Beth Chase Date:
------------------------
Accepted:
Date:
- ----------------------------- ------------------------
Chairman
Acsys, Inc.
<PAGE> 11
EXHIBIT B
Contact: Brady W. Mullinax, Jr.
Chief Financial Officer
(404) 817-9440, ext. 3312
ACSYS ANNOUNCES MANAGEMENT CHANGE
. . .
Beth Monroe Chase, Executive Vice President and National Director of Sales, has
left the Company to pursue other interests.
"We wish Beth great success in her new endeavors. Beth was one of the founders
of Acsys and has contributed significantly to its growth. Her enormous talent,
experience and enthusiasm are respected and appreciated by everyone in the
company, especially me," concluded Cooper.
<PAGE> 1
EXHIBIT 10.4
SHAREHOLDER AND RESTRICTIVE COVENANT AGREEMENT
This Shareholder and Restrictive Covenant Agreement (the "Agreement")
is entered into as of the 1st day of December, 1999, by and between Acsys, Inc.,
formerly ICCE, Inc., (hereinafter the "Company"), and Mary Beth Chase
(hereinafter "Chase").
WHEREAS, Chase has previously been employed by the Company in the
capacity of Executive Vice President and Chief Development Officer and has also
served as a member of the Board of Directors of the Company; and
WHEREAS, Chase and the Company have mutually agreed to Chase's
resignation from her employment with the Company and her resignation from the
Company's Board of Directors; and
WHEREAS, by virtue of her service as Executive Vice President and Chief
Development Officer and as a member of the Board of Directors of the Company,
Chase has comprehensive knowledge of the Company's business, business
relationships and financial affairs, including confidential and trade secret
information regarding the Company's business and marketing plans, sales, costs,
profits, pricing methods, future business strategies and future business
opportunities; and
WHEREAS, maintenance of the confidentiality of the Company's
proprietary business information and trade secrets is vital to the business
well-being of the Company; and
WHEREAS, as the Company's Executive Vice President and Chief
Development Officer and a member of the Board of Directors of the Company, Chase
has had substantial contacts with the customers and employees of the Company;
and
WHEREAS, Chase acknowledges that the continuing relationships between
the Company and its customers and employees are vital to the business well-being
of the Company;
WHEREAS, Chase continues to own the number of shares of Common Stock of
the Company (sometimes referred to herein as "Company Common Stock") and holds
options to acquire shares of Company Common Stock as set forth on Schedule I
hereto;
WHEREAS, Chase and the Company desire to establish in the Agreement
certain terms and conditions concerning the acquisition and disposition of
securities of the Company by Chase, corporate governance of the Company after
the date hereof, and protection of the Company's legitimate business interests,
its confidential and trade secret information, and its relationships with its
customers and employees;
<PAGE> 2
NOW, THEREFORE, in consideration of the premises and the mutual
promises herein contained, and for other good and valuable consideration the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I.
DEFINITIONS
1.01. Definitions. Except as otherwise specifically indicated, the
following terms have the following meanings for all purposes of this Agreement:
"beneficially owns" (or comparable variations thereof) has the meaning
set forth in Rule 13d-3 promulgated under the Exchange Act.
"Board of Directors" means the Board of Directors of the Company.
"Business Activities" means the business activities over which Chase
had authority and control at the Company, which consist of: (i) outsourcing of
accounting, finance, information technology, administrative (which, for the
purposes of Article IV of this Agreement, shall be defined to consist of
secretarial, administrative assistant, receptionist and similar positions), and
legal (which, for the purposes of Article IV, shall be defined to consist of
paraprofessional and administrative support positions, but not lawyer positions,
for legal departments, law firms and lawyers) staffing services; (ii) temporary
accounting, finance, information technology (including information technology
contract staffing and solution services), administrative and legal staffing
services; and (iii) permanent placement accounting, finance, information
technology (including information technology staffing and solution services),
administrative, and legal staffing services on a contingent fee basis.
"Confidential Information" means all information regarding the Company,
the Company's activities, the Company's business or the Company's clients that
is not generally known to persons not employed by the Company and that is not
generally disclosed by Company practice or authority to persons not employed by
the Company, but that does not rise to the level of a "Trade Secret."
"Confidential Information" shall include, but is not limited to, information
pertaining to the Company's sales and marketing techniques and plans, expansion
or contraction plans, financial data and plans, acquisition plans, management
plans, pricing information, and client information. Confidential Information
shall not include information that has become generally available to the public
by the act of one who has the right to disclose such information without
violating any legal right of the Company. This definition shall not limit any
definition of "Confidential Information" or any equivalent term under state or
federal law.
"Equity Securities" means Voting Securities, Convertible Securities and
Rights to Purchase Voting Securities.
2
<PAGE> 3
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
"Liens" means any lien, claim, mortgage, encumbrance, pledge, security
interest, equity or charge of any kind.
"Person" means any individual, corporation, partnership, trust, other
entity or group (within the meaning of Section 13(d)(3) of the Exchange Act).
"Representatives" of any entity means such entity's directors,
officers, employees, legal, investment banking and financial advisors,
accountants and any other agents and representatives of such entity.
"Rule 144" means Rule 144 as presently promulgated under the Securities
Act.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"Subsidiary" means any Person in which-the Company directly or
indirectly through Subsidiaries or otherwise, beneficially owns more than fifty
percent (50%) of either the equity interest in, or the Voting Power of, such
Person.
"Trade Secrets" shall have the meaning assigned thereto by the Georgia
Trade Secrets Act, OCGA ss.10-1-761.
"Voting Securities" means the Company Common Stock and any other
securities of the Company of any kind or class having power generally to vote
for the election of directors; "Convertible Securities" means securities of the
Company which are convertible or exchangeable (whether presently convertible or
exchangeable or not) into Voting Securities; and "Rights to Purchase Voting
Securities" means options and rights issued by the Company (whether presently
exercisable or not) to purchase Voting Securities or Convertible Voting
Securities.
Unless the context of this Agreement otherwise requires, words of any
gender include each other gender; (ii) words using the singular or plural number
also include the plural or singular number, respectively; (iii) the terms
"hereof," "herein," "hereby" and derivative or similar words refer to this
entire Agreement; and (iv) the terms "Article" or "Section" refer to the
specified Article or Section of this Agreement. Whenever this Agreement refers
to a number of days, such number shall refer to calendar days unless business
days are specified.
3
<PAGE> 4
ARTICLE II.
PAYMENTS TO CHASE BY THE COMPANY
2.01. Consideration for Chase's Post-Employment Covenants. In
consideration for Chase's promises and covenants set forth in Articles III and
IV below, the Company shall pay to Chase the total sum of $150,000.00, such
payment to be made in approximately equal monthly installments on or about the
Company's first regular payroll date on or after the first of each month between
the execution of this Agreement and January 1, 2001.
Chase and the Company agree that such payments shall not be considered wage
income and Chase shall be reported by IRS Form 1099.
2.02 Remedy For Missed Payment. If the Company fails to make a payment
required by this Agreement, Chase shall give the Company notice of such failure
in accordance with Section 5.03 herein. The Company shall have ten (10) calendar
days after receipt of notice from Chase within which to cure by making such
payment. If the Company fails to cure by making such payment within ten (10)
calendar days of receipt of notice from Chase, all amounts due hereunder not yet
paid shall be accelerated and become immediately due and payable.
Chase acknowledges and agrees that her receipt of the foregoing described
payments is expressly made contingent upon Chase's promises and covenants as set
forth in Articles III and IV below and agrees that, if Chase breaches any of the
provisions of Articles III and IV, Chase's entitlement to further payments will
immediately cease. Chase further agrees that if a court, arbitrator or other
decisionmaker with authority to decide such disputes finds that Chase has
willfully breached any of the provisions of Articles III and IV, Chase shall be
obligated to return to Company all sums of money previously paid by Company
under this Agreement.
ARTICLE III.
CHASE'S COVENANTS TO THE COMPANY
REGARDING EQUITY SECURITIES OF THE COMPANY
3.01. As a precondition to her receipt of the payments described in
Article II above, Chase agrees as follows:
3.02. Board of Directors. For the period beginning with the date of
execution of this Agreement and ending at 11:59 p.m., Atlanta, Georgia time, on
December 31, 2000, at each meeting of shareholders of the Company, Chase shall
vote the Voting Securities beneficially held by her (A) for the nominees
recommended by the Board of Directors, (B) on all other proposals of the Board
of Directors, as Chase determines in her sole discretion, and (C) on all
proposals of any other shareholder of the Company, in accordance with the
recommendation of the Board of Directors.
4
<PAGE> 5
3.02(I) Grant of Proxy. CHASE HEREBY APPOINTS THE COMPANY AND ANY
DESIGNEE OF THE COMPANY, EACH OF THEM INDIVIDUALLY, CHASE'S PROXY AND
ATTORNEY-IN-FACT PURSUANT TO THE PROVISIONS OF SECTION 14-2-722 OF THE GEORGIA
BUSINESS CORPORATION CODE, OR ANY SUCCESSOR PROVISION THEREOF, WITH FULL POWER
OF SUBSTITUTION AND RESUBSTITUTION, TO VOTE OR ACT BY WRITTEN CONSENT WITH
RESPECT TO CHASE'S SUBJECT VOTING SECURITIES IN CONNECTION WITH THE MATTERS
DESCRIBED IN SECTION 3.02(A) AND 3.02(C) ABOVE IN ACCORDANCE WITH THE TERMS OF
SECTION 3.02(A) AND 3.02(C). THIS PROXY IS GIVEN TO SECURE THE PERFORMANCE OF
THE DUTIES OF CHASE UNDER THIS AGREEMENT. CHASE AFFIRMS THAT THIS PROXY IS
COUPLED WITH AN INTEREST AND SHALL BE IRREVOCABLE, BUT SHALL EXPIRE AT 11:59
P.M., ATLANTA, GEORGIA TIME, ON DECEMBER 31, 2000. CHASE SHALL TAKE SUCH
FURTHER ACTION OR EXECUTE SUCH OTHER INSTRUMENTS AS MAY BE NECESSARY TO
EFFECTUATE THE INTENT OF THIS PROXY.
3.02(II) Other Proxies Revoked. Chase represents that any proxies
heretofore given in respect of Chase's Voting Securities are not irrevocable,
and that all such proxies are hereby revoked.
3.03. Transfer of Shares. For the period beginning with the date of
execution of this Agreement and ending at 11:59 p.m., Atlanta, Georgia time, on
December 31, 2000, Chase shall not directly or indirectly, assign, sell, pledge,
hypothecate or otherwise transfer or dispose of ("Dispose" or a "Disposition")
any Equity Securities beneficially owned by Chase, except (A) a Disposition
through a bona fide underwritten public offering registered under the Securities
Act, (B) a Disposition in a "brokers' transaction" pursuant to Rule 144(f), (C)
pursuant to a merger or consolidation of the Company or a recapitalization of
any Equity Securities, (D) pursuant to a self-tender or exchange offer by the
Company or a third party tender offer recommended by the Board of Directors, or
(E) a Disposition by way of gift to any Person who simultaneously with such
Disposition agrees in a written instrument in form and substance satisfactory to
the Company to be bound by the provisions of this Agreement as though an
original signatory hereto.
3.04. Legend. Each certificate representing Equity Securities
beneficially owned by Chase shall be imprinted with a legend in the following
form until such time as all restrictions on the Disposition of such Equity
Securities hereunder are terminated:
"THESE SHARES MAY ONLY BE TRANSFERRED PURSUANT TO THE PROVISIONS OF
ARTICLE III OF THAT CERTAIN SHAREHOLDER AND RESTRICTIVE COVENANT
AGREEMENT DATED AS OF DECEMBER 1, 1999, BY AND BETWEEN ACSYS AND MARY
BETH CHASE, COPIES OF WHICH AGREEMENT ARE ON FILE AT THE PRINCIPAL
OFFICE OF THE COMPANY."
5
<PAGE> 6
The Company shall not (i) give effect on its books to an attempted Disposition
of any Equity Securities which shall have been Disposed of in violation of any
provision of this Agreement, or (ii) treat any transferee who obtains any Equity
Securities in violation of any provision of this Agreement as the owner of such
Equity Securities or accord any transferee thereof the right to vote or to
receive dividends in respect of such Equity Securities. The Company will issue
new certificates not imprinted with the foregoing legend to any holder of Equity
Securities not subject to the restrictions on Disposition contained in this
Agreement; provided that the Company may require an opinion of counsel
reasonably satisfactory to it to the effect that no legend is required under the
Securities Act or applicable state securities or blue sky laws.
3.05. Limitation on Acquisition of Equity Securities. For the period
beginning with the date of execution of this Agreement and ending at 11:59 p.m.,
Atlanta, Georgia time, on December 31, 2000, Chase shall not, directly or
indirectly, purchase or acquire, or make any offer to or agree to purchase or
acquire, beneficial ownership of any Equity Securities, except (A) by way of
stock dividends, stock splits or other distributions or offerings made available
to holders of Equity Securities generally or (B) in connection with a
Disposition pursuant to a merger or consolidation of the Company or a
recapitalization of any Equity Securities.
3.06. Standstill. For the period beginning with the date of execution
of this Agreement and ending at 11:59 p.m., Atlanta, Georgia time, on December
31, 2000, Chase shall not, and shall not assist or encourage others (including
by providing financing) to, directly or indirectly (i) acquire or agree, offer,
seek or propose (whether publicly or otherwise) to acquire ownership (including
but not limited to beneficial ownership) of any portion of the assets or Equity
Securities of the Company or any of its Subsidiaries, whether by means of a
negotiated purchase of assets, tender or exchange offer, merger or other
business combination, recapitalization, restructuring or other extraordinary
transaction (ii) engage in any "solicitation" of "proxies" (as such terms are
used in the proxy rules promulgated under the Exchange Act, but disregarding
clause (iv) of Rule 14a-1(l)(2) and including any exempt solicitation pursuant
to Rule 14a-2(b)(1) or (2)), or form, join or in any way participate in a
"group" (as defined under the Exchange Act), with respect to any Equity
Securities, (iii) otherwise seek or propose to acquire control of the Board of
Directors or to disrupt or impair the normal, ongoing business operations or
policies (including determinations of the Board of Directors) of the Company or
any of its affiliates, (iv) take any action that could reasonably be expected to
force the Company to make a public announcement regarding any of the types of
matters referred to in clause (i), (ii) or (iii) above, or (v) enter into any
negotiations, agreements, arrangements or understandings with any third party
with respect to any of the foregoing. Chase shall not request the Company or any
of its Representatives to amend or waive any provision of this Section
(including this sentence) or Section 3.05 during such period.
Notwithstanding anything else in this Agreement, if the Employee challenges the
validity or enforceability of any provision of this Article III or seeks to
revoke, rescind or annul any such provision, the Employee first shall refund all
payments heretofore made to her
6
<PAGE> 7
pursuant to this Agreement and shall be deemed to have forfeited all other
payments to which she otherwise would be entitled pursuant to this Agreement.
ARTICLE IV.
CHASE'S RESTRICTIVE COVENANTS
4.01. As an additional precondition to her receipt of the payments as
described in Article II above, Chase further agrees as follows:
4.02. Noncompete. For a period commencing on the date of this Agreement
and ending at 11:59 p.m., Atlanta, Georgia time, on December 31, 2000, Chase
shall not, without the Company's prior written permission, directly or
indirectly, on her own behalf or on behalf of any other person or entity, within
the Territory, be engaged as a manager, executive, or operational consultant in
the business of offering the Business Activities. Chase acknowledges and agrees
that the definition of Business Activities accurately reflects activities she
engaged in and had authority over while employed by the Company, is less
extensive than the overall activities she engaged in and had authority over, and
is reasonable in scope. Chase also acknowledges and agrees that the above
phrase, "manager, executive or operational consultant" accurately describes
duties and activities she engaged in on behalf of the Company, is less extensive
than the actual duties and activities she engaged in, and is reasonable in
scope. As used herein the term "Territory" shall mean the twenty-five (25) mile
radius surrounding the following offices of the Company which Chase had
oversight responsibility for during the last twelve (12) months of her
employment by the Company as the Company's Executive Vice President and Chief
Development Officer:
1020 19th Street, N.W.
Suite 650
Washington, D.C. 20036
610 Crescent Executive Park
Suite 132
Lake Mary, FL 32746
390 North Orange Avenue
Suite 1825
Orlando, FL 32801
100 North Tampa Street
Suite 1950
Tampa, FL 33602
7
<PAGE> 8
5 Concourse Parkway
Suite 2650
Atlanta, GA 30326
75 Fourteenth Street
Suite 2200
Atlanta, GA 30309
2400 Lakeview Parkway
Suite 500
Alpharetta, GA 30004
6701 Democracy Boulevard
Suite 400
Bethesda, MD 20817
1820 Chapel Avenue
Suite 168
Cherry Hill, NJ 08002
379 Thornall Street
Edison, NJ 08837
102 Campus Drive
Princeton, NJ 08540
110 South Jefferson Road
Whippany, NJ 07981
425 Broadhollow Road
Suite 318
Melville, NY 11747
780 Third Avenue
New York, NY 10017
301 South College Street
Charlotte, NC 28202
1850 Linglestown Rd.
Suite 307
Harrisburg, PA 1711
8
<PAGE> 9
1850 William Penn Way
Suite 106
Lancaster, PA 17601
1700 Market Street
Suite 3110
Philadelphia, PA 19103
500 East Swedesford Road
Suite 100
Wayne, PA 19087
1340 Braddock Place
Suite 201
Alexandria, VA 22314
8300 Greensboro Drive
Suite 720
McLean, VA 22102
12110 Sunset Hills Road
Reston, VA 20190
7100 Forest Avenue
Suite 101
Richmond, VA 23226
Chase acknowledges and agrees that the definition of Territory accurately
describes geographical area over which she had authority while employed by the
Company, is less extensive than the actual geographical area over which she had
authority, and is reasonable in scope.
4.03. Nonsolicitation of Prospects. For a period commencing on the date
of this Agreement and ending at 11:59 p.m., Atlanta, Georgia time, on December
31, 2000, Chase shall not, without the Company's prior written permission,
directly or indirectly, through one or more intermediaries or otherwise, on her
own behalf or on behalf of any other person or entity, through one or more
intermediaries, or otherwise, solicit an opportunity to invest in, or to
purchase an ownership interest in, any of the companies described in that
certain letter dated December 1, 1999 from David C. Cooper to Chase which Chase
acknowledges and agrees were known to her to be companies which the Company had
identified as potential business and/or acquisition opportunities of the Company
and about which Chase received confidential and trade secret information during
the term of her employment with the Company.
9
<PAGE> 10
4.04. Nonsolicitation of Employees. For a period commencing on the date
of this Agreement and ending at 11:59 p.m., Atlanta, Georgia time, on December
31, 2000, Chase shall not, without the Company's prior written permission,
directly or indirectly, through one or more intermediaries or otherwise, on her
own behalf or on behalf of any other person or entity, solicit to employ, any
person (a) who was employed with the Company during the last twelve months of
Chase's employment with the Company, and (b) who has not ceased to be employed
by the Company for a period of at least six months.
4.05. Nonsolicitation of Customers. For a period commencing on the date
of this Agreement and ending at 11:59 p.m., Atlanta, Georgia time, on December
31, 2000, Chase shall not, without the Company's prior written permission,
directly or indirectly, through one or more intermediaries or otherwise, on her
own behalf or on behalf of any other person or entity, solicit an opportunity to
provide the Business activities to any customer of the Company with whom Chase
had material business contact(s) on behalf of the Company during Chase's last
twelve (12) months of employment with the Company.
4.06. Non-Disclosure. For a period commencing on the date of this
Agreement and ending at 11:59 p.m., Atlanta, Georgia time, on December 31, 2000,
Chase shall not, without the Company's prior written permission, directly or
indirectly, on her own behalf or on behalf of any other persons or entity,
transmit or disclose any Trade Secret or Confidential Information of the Company
to any person and shall not make use of any Trade Secret or Confidential
Information, for herself or others, except to the extent required by any law or
order, in which case Chase shall provide the Company prior written notice of
such requirement and an opportunity to contest same. Trade Secrets shall not
lose protection from use or disclosure on December 31, 2000, but shall continue
to be protected as long as they remain Trade Secrets.
Notwithstanding anything else in this Agreement, if the Employee challenges the
validity or enforceability of any provision of this Article IV or seeks to
revoke, rescind or annul any such provision, the Employee first shall refund all
payments heretofore made to her pursuant to this Agreement and shall be deemed
to have forfeited all other payments to which she otherwise would be entitled
pursuant to this Agreement.
ARTICLE V.
GENERAL PROVISIONS
5.01. Ownership of Company Shares. Chase represents and warrants to the
Company that (i) she owns, beneficially and of record, as of the date hereof,
the number of shares of Company Common Stock listed on Schedule I hereto
(collectively, the "Company Shares"), subject to no rights of others and free
and clear of all Liens except as noted on Schedule I; (ii) Chase's right to vote
or Dispose of the Company Shares beneficially owned by Chase is not subject to
any voting trust, voting agreement, voting arrangement or proxy, and (iii) Chase
has not entered into any contract, option or other arrangement or undertaking
with respect thereto.
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<PAGE> 11
5.02. Amendment and Waiver
(a) This Agreement may be amended, supplemented or modified only by a
written instrument duly executed by or on behalf of each party hereto.
(b) Any term or condition of this Agreement may be waived at any time
by the party that is entitled to the benefit thereof, but no such waiver shall
be effective unless set forth in a written instrument duly executed by or on
behalf of the party waiving such term or condition. No waiver by any party of
any term or condition of this Agreement, in any one or more instances, shall be
deemed to be or construed as a waiver of the same or any other term or condition
of this Agreement on any future occasion. All remedies, either under this
Agreement or by law or otherwise afforded, will be cumulative and not
alternative.
5.03. Notices. All notices, requests and other communications hereunder
must be in writing and will be deemed to have been duly given only if delivered
personally or by facsimile transmission or mailed (first class postage prepaid)
to the parties at the following addresses or facsimile numbers:
If to Chase, to:
Mary Beth Chase
311 Tucker Street
Annapolis, Maryland 21401
Facsimile: (410) 268-7711
with a copy to:
Lewis Ferguson, Esq.
Williams & Connolly
725 Twelfth Street, N.W.
Washington, District of Columbia 20005-5901
Facsimile: (202) 434-5573
If to the Company, to:
Brady W. Mullinax, Jr.
Acsys, Inc.
75 14th Street
Suite 2200
Atlanta, Georgia 30309
Facsimile: (404) 815-4703
11
<PAGE> 12
with a copy to:
Bryan E. Davis, Esq.
Alston & Bird LLP
One Atlantic Center
1201 West Peachtree Street
Atlanta, Georgia 39309-3424
Facsimile: (404) 881-4777
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section, be deemed given upon
delivery, (ii) if delivered by facsimile transmission to the facsimile number as
provided in this Section, be deemed given upon receipt, and (iii) if delivered
by mail in the manner described above to the address as provided in this
Section, be deemed given upon receipt (in each case regardless of whether such
notice, request or other communication is received by any other person to whom a
copy of such notice, request or other communication is to be delivered pursuant
to this Section). Any party from time to time may change its address, facsimile
number or other information for the purpose of notices to that party by giving
notice specifying such change to the other parties hereto.
5.04. Entire Agreement. This Agreement supersedes all prior discussions
and agreements among the parties hereto with respect to the subject matter
hereof, and contains, the sole and entire agreement among the parties hereto
with respect to the subject matter hereof. The Separation and Release Agreement,
executed contemporaneously herewith (the "Separation Agreement") and the
Director's and Officer's Indemnification Agreement, originally executed in 1997
for which a replacement document is executed contemporaneous herewith because of
the loss of the original (the "Indemnification Agreement"), will continue in
full force and effect in accordance with their terms. The Company and the
Employee hereby represent and warrant to the other that, except for this
Shareholder and Restrictive Covenant Agreement, the Amended and Restated
Registration Rights Agreement dated September 3, 1997, the Indemnification
Agreement and the Separation Agreement there are no agreements, arrangements or
understandings, written or oral, between the parties with respect to any subject
matter whatsoever.
5.05. Invalid Provisions. If any provision of this Agreement is held to
be illegal, invalid or unenforceable under any present or future law, and if the
rights or obligations of any party hereto under this Agreement will not be
materially and adversely affected thereby, (i) such provision will be fully
severable, (ii) this Agreement will be construed and enforced as if such
illegal, invalid or unenforceable provision had never comprised a part hereof
and (iii) the remaining provisions of this Agreement will remain in full force
and effect and will not be affected by the illegal, invalid or unenforceable
provision or by its severance herefrom.
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<PAGE> 13
5.06. Governing Law. Article IV of this Agreement shall be governed by
and construed in accordance with the law of the State of Maryland applicable to
restrictive covenants executed and performed in such State, without giving
effect to the conflicts of laws principles thereof. The remainder of this
Agreement shall be governed by and construed in accordance with the laws of the
State of Georgia applicable to a contract executed and performed in such State,
without giving effect to the conflicts of laws principles thereof.
5.07. Consent to Jurisdiction and Service of Process. Each party hereby
irrevocably submits to the jurisdiction of The United States District Court for
the Northern District of Georgia or any court of the State of Georgia located in
Cobb County and in any action, suit or proceeding arising in connection with
this Agreement, agrees that any such action, suit or proceeding may be brought
in such court (and waives any objection based on forum non conveniens or any
other objection to venue therein to the extent permitted by law), provided,
however, that such consent to jurisdiction is solely for the purpose referred to
in this Section and shall not be deemed to be a general submission to the
jurisdiction of said courts. Nothing herein shall affect the right of any party
to commence legal proceedings or otherwise proceed against the other in any
other jurisdiction.
5.08. Counterparts. This Agreement may be executed in any number of
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
5.09. Injunctive Relief. Chase acknowledges that the covenants and
promises contained in this Agreement are a reasonable and necessary means of
protecting and preserving the Company's goodwill and interests in its
confidential information and trade secrets. Chase agrees that any breach of
these covenants or promises will leave the Company with no adequate remedy at
law and will cause the Company to suffer irreparable damage and injury. Chase
further agrees that any breach of these covenants and promises will entitle the
Company to injunctive relief in any court of competent jurisdiction. Such
injunctive relief shall be in addition to any damages which may be recoverable
by the Company as a result of any breach.
5.10. Assignability The Company shall have the right to assign this
Agreement to its successors and assigns, and all covenants and agreements
hereunder shall inure to the benefit and be enforceable by said successors or
assigns (or any Subsidiary thereof).
5.11. Knowing and Voluntary. Chase acknowledges that she has reviewed
the terms and conditions of this Agreement, that she understands its terms, and
that she has executed this Agreement voluntarily and without any coercion, undue
influence, threat or intimidation of any kind whatsoever and that she has had
the benefit of counsel in negotiating and drafting this Agreement. Chase further
acknowledges that the consideration she receives for this Agreement is in
addition to any amounts to which she was already entitled.
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<PAGE> 14
5.12. Captions and Paragraph Headings. Captions and paragraph headings
used herein are for convenience only and are not a part of this Agreement and
shall not be used in construing it.
5.13. Negotiated Agreement. This Agreement was negotiated between the
parties hereto, and the fact that one party or the other drafted this Agreement
shall not be used in its interpretation.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
ACSYS, INC.
Name: /s/ Brady W. Mullinax, Jr.
---------------------------
Title: Chief Financial Officer
---------------------------
/s/ Mary Beth Chase
---------------------------
Mary Beth Chase
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<PAGE> 15
SCHEDULE I
<TABLE>
<CAPTION>
Shares Owned By Chase Number
<S> <C>
656,143
</TABLE>
<PAGE> 1
EXHIBIT 10.5
SEPARATION AND RELEASE AGREEMENT
This Separation and Release Agreement (hereinafter the "Separation
Agreement") is entered into as of the 1st day of December, 1999, by and
between Acsys, Inc. (the "Company"), Acsys IT, Inc., a wholly owned subsidiary
of the Company ("Acsys IT"), and Robert M. Kwatnez (hereinafter the
"Employee").
WHEREAS, the Employee has been employed by Acsys IT in the capacity of
Group Director, New Products pursuant to that Employment Agreement dated March
31, 1998; and
WHEREAS, the Employee has also served as a member of the Board of
Directors of the Company; and
WHEREAS, the Employee became a shareholder of the Company pursuant to
an Agreement and Plan of Merger, dated as of March 31, 1998 (the "Merger
Agreement"), by and among the Company, Icon Search & Consulting, Inc. ("Icon")
and the shareholders of Icon, including the Employee; and
WHEREAS, on May 22, 1998, the Employee executed a Registration Rights
Joinder Agreement (the "Joinder Agreement"), agreeing thereby to become a party
to an Amended and Restated Registration Rights Agreement, dated as of September
3, 1997 (the "Registration Rights Agreement') governing certain rights and
obligations of certain shareholders of the Company; and
WHEREAS, the Employee, Acsys IT and the Company have mutually agreed
to Employee's resignation from his employment with Acsys IT and from the Board
of Directors of the Company; and
WHEREAS, the Employee, Acsys IT and the Company have agreed to a
severance arrangement and certain limitations on the Employee's shareholder and
other rights pursuant to the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual
promises herein contained, the parties hereto agree as follows:
Section 1. Termination of Employment and Resignation from Board of
Directors. The Employee, Acsys IT and the Company agree that the Employee's
employment with Acsys IT will be terminated as of the day and year first above
written (the "Separation Date"), that Employee has voluntarily resigned from
his employment and that the Employee has been paid all wages and compensation
due him through the Separation Date. The Company and the Employee further agree
that, contemporaneously with the signing of this Separation Agreement, the
Employee shall resign as a member of the Company's Board of Directors by
executing the letter of resignation attached hereto as Exhibit A, and agree
that the Employee's resignation is not the result of a disagreement with the
Company relating to the Company's operations, policies or practices.
<PAGE> 2
Section 2. Severance Pay. The Company shall make a total gross payment
to the Employee of $122,777.66 less withholding for taxes and other required
items, paid in eleven (11) equal installments according to the following
schedule:
December 2, 1999 $ 11,161.60
December 31, 1999 $ 11,161.60
January 31, 2000 $ 11,161.60
February 29, 2000 $ 11,161.60
March 31, 2000 $ 11,161.60
April 30, 2000 $ 11,161.60
May 31, 2000 $ 11,161.60
June 30, 2000 $ 11,161.60
July 30, 2000 $ 11,161.60
August 31, 2000 $ 11,161.60
September 30, 2000 $ 11,161.60
Such payments shall be reported by the Company as W-2 income received by the
Employee and shall be in addition to amounts payable under the Shareholder and
Restrictive Covenant Agreement (the "Restrictive Covenant Agreement") dated of
even date herewith between the Company, Acsys IT and the Employee. In the event
of a Change of Control (as defined in the Restrictive Covenant Agreement), the
schedule of payments shall be accelerated and all amounts outstanding hereunder
(whether or not then due and payable) shall be immediately due and payable upon
the effective date of the Change of Control. Further, in the event that (i) the
Company fails to make any payment required to be made hereunder or under the
Restrictive Covenant Agreement on or before the date such payment is due and
payable as set forth above and in the Restrictive Covenant Agreement (a
"Payment Default") and (ii) the Company does not cure such Payment Default on
or before the later of ten (10) days after the date such payment is due or five
days after the Employee's delivery of written notice of Payment Default in
accordance with Section 21 herein (hereinafter, a "Cure Period"), the schedule
of payments shall be accelerated and all amounts outstanding hereunder (whether
or not then due and payable) shall be immediately due and payable.
Notwithstanding the foregoing, the Company shall be entitled to an aggregate of
only three Cure Periods with respect to Payment Defaults under this Agreement
and under the Restrictive Covenant Agreement. Accordingly, in the event that
the Company fails to make any payment required to be made hereunder or under
the Restrictive Covenant Agreement on or before the date such payment is due
and payable as set forth above and in the Restrictive Covenant Agreement and
the Company has utilized an aggregate of three Cure Periods for previous
Payment Defaults, the schedule of payments shall be accelerated and all amounts
outstanding hereunder (whether or not then due and payable) shall be
immediately due and payable.
The Employee agrees that this amount, together with the payments under
the Restrictive Covenant Agreement, is greater than any amount to which he
would be entitled by contract or law under his Employment Agreement or arising
out of his
- 2 -
<PAGE> 3
employment relationship and that it constitutes valuable and sufficient
consideration for the Employee's promises, covenants and releases herein.
Employee agrees that no further wages, commissions, backpay, attorneys fees,
severance pay or other employment benefits are due him from the Company or its
officers, directors, employees, affiliates, successors or assigns. The Company
acknowledges that Employee is entitled to reimbursement of business expenses
incurred by him prior to the date hereof and that the Employee will be eligible
for continuation of health insurance coverage under COBRA.
Section 3. Mutual Releases.
(a). By Employee. In consideration for the severance benefits
described in Section 2 hereof and the promises and releases herein of Acsys IT
and Company, Employee for himself, his successors and assigns, now and forever,
hereby releases and discharges Acsys IT, the Company and their officers,
directors, stockholders, employees, agents, parent corporations, subsidiaries,
affiliates, successors, assigns and attorneys (the "Releasees"), from any and
all claims, legal or equitable actions, liability or litigation, real or
contemplated, known or unknown, that the Employee may now have or may later
claim to have had against any of the Releasees arising out of anything that has
occurred up to and through the date hereof, including without limitation, any
claims arising under the Joinder Agreement or Registration Rights Agreement or
by virtue of his status as a shareholder and/or director of the Company or
arising out of his employment or termination of employment with Acsys IT and/or
the Company; provided, however, that, the Employee does not release the
Releasees for any claims arising from any illegal acts, claims arising under
this Separation Agreement, or claims arising under the Restrictive Covenant
Agreement.
Subject to, but without limiting the foregoing, the Employee
hereby releases those claims that could have been asserted by him in connection
with the Employment Agreement or in connection with any claim or suit for
wrongful discharge or any claim under either state or federal employment or
discrimination laws including, without limitation Title VII of the Civil Rights
Act of 1964 and the Americans with Disabilities Act. The Employee acknowledges
that he may have sustained or may yet sustain damages, costs or expenses that
are presently unknown and that relate to claims between him and the Releasees
and he agrees that he is waiving all such claims. For the purpose of
implementing a full and complete release and discharge of the Releasees, the
Employee expressly acknowledges this Separation Agreement is intended to
include in its effect, without limitation, all claims that he does not know or
suspect to exist in his favor at the time he signs this Separation Agreement,
and that this Separation Agreement contemplates the extinguishment of any such
claim or claims which are released hereunder. The Employee shall forever
refrain and forbear from commencing, instituting or prosecuting any lawsuit,
action, claim or proceeding before or in any court, regulatory, governmental,
arbitral or other authority against the parties released hereby or naming or
joining such Releasees as parties to collect or enforce any claims or causes of
action which are released and discharged hereby. Employee hereby acknowledges
and agrees that he has knowingly relinquished, waived and forever released any
and all other remedies that might be available to him with respect to claims
released hereby, including
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<PAGE> 4
without limitation, claims for back pay, front pay, fringe benefits, contract
and personal injury damages, punitive damages and attorneys' fees or expenses
of litigation.
The foregoing release and covenant not to sue is not,
however, intended to release or apply to, and shall not release or apply to,
any rights of the Employee (i) under this Separation Agreement or to enforce
any right, term or provision of this Separation Agreement, (ii) to receive
benefits under any Company or Acsys IT insurance or other benefit plans that
either have accrued or vested prior to the date hereof or that are intended
under such plans to survive an employee's termination or separation from the
Company and Acsys IT (including COBRA coverage), (iii) now or in the future to
be entitled to claim or receive indemnification as an officer or director, or
former officer or director, of the Company or Acsys IT under any applicable
state laws, the Company's or Acsys IT's Articles of Incorporation or the
Company's By-laws (which Articles of Incorporation and Bylaws may not be
amended to limit such indemnification), and (iv) to claim or receive insurance
coverage or to be defended under any directors and officers insurance coverage
which applies to or benefits directors and/or officers of the Company and which
applies to the Employee in his capacity as a former officer or employee of
Acsys IT and a Director of the Company.
Notwithstanding the foregoing, Employee does not waive his
future rights under the Joinder Agreement or the Registration Rights Agreement,
except that Employee also hereby unconditionally and irrevocably waives all of
his rights under Section 3 of the Joinder Agreement, which Section relates to
the Shelf Registration (as defined in the Joinder Agreement).
(b). By Acsys IT and the Company. In consideration for
Employee's promises and releases herein, Acsys IT and the Company, for
themselves, their subsidiaries, affiliates, parent corporations, successors and
assigns (the "Releasors") , now and forever, hereby release and discharge the
Employee from any and all claims, legal or equitable actions, liability or
litigation, real or contemplated, known or unknown, that they may now have or
may later claim to have had against the Employee arising out of anything that
has occurred up to and through the date hereof, including without limitation,
any claims arising out of his employment or termination of employment with
Acsys IT and/or the Company; provided, however, that Acsys IT and the Company
do not release or waive any claims arising from any illegal acts by Employee or
any claims against Acsys IT and/or the Company for any ultra vires acts by
Employee, which claims are expressly reserved. The Releasors acknowledge that
it or they may have sustained or may yet sustain damages, costs or expenses
that are presently unknown and that relate to claims between it and the
Employee which are nonetheless released hereby. For the purpose of implementing
a full and complete release and discharge of the Employee, the Releasors
expressly acknowledge this Separation Agreement is intended to include in its
effect, without limitation, all claims that they do not know or suspect to
exist in their favor at the time they sign this Separation Agreement, and that
this Separation Agreement contemplates the extinguishment of any such claim or
claims. The Releasors shall forever refrain and forbear from commencing,
instituting or prosecuting any lawsuit, action, claim or proceeding before or
in any court, regulatory, governmental, arbitral or
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<PAGE> 5
other authority against the Employee or naming or joining the Employee as a
party to collect or enforce any claims or causes of action which are released
and discharged hereby. The Releasors hereby acknowledge and agree that they
have knowingly relinquished, waived and forever released any and all other
remedies that might be available to them, including without limitation, claims
for contract damages, punitive damages and attorneys' fees or expenses of
litigation.
Section 4. Company Property. Employee shall be permitted to retain as
his personal property the Dell Pentium 266 mhz computer and HP inkjet printer
previously furnished by the Company. Employee agrees that he will not retain or
destroy, and will return to Acsys IT and the Company, any and all other
property of Acsys IT and the Company in his possession or subject to his
control including, but not limited to, keys, credit and identification cards,
computers, client files and information, acquisition files and information,
contact information for targets, buyers and clients, all other files and
documents relating to the Company, its plans or its business, contracts,
personal items or equipment provided to him for his use, together with all
written or recorded materials, documents, computer discs, plans, records, notes
or other papers belonging to the Company. The Employee further agrees not to
make, distribute or retain any such information or property.
Section 5. Employee's Car Lease. Employee shall return to the Company
within thirty (30) days of the date hereof the automobile leased by the Company
on Employee's behalf by delivering same to the Company's office at the
following address:
Georgia 400 Center
Building One
2400 Lakeview Parkway
Suite 500
Alpharetta, GA 30004
Section 6. Press Release. Acsys IT, the Company and the Employee agree
that the fact of the Employee's separation from Acsys IT shall be formally
announced in a press release.
Section 7. Cooperation in Claims. With respect to any claim asserted
by or brought against Acsys IT and/or the Company in relation to their business
and/or against the Employee in his former capacity as employee, or officer or
Director of the Company, the Employee, upon reasonable notice and at the
written request of the Chief Executive Officer of the Company, or his designee
agrees to make himself and any necessary records or documents in his possession
reasonably available to Acsys IT and the Company where reasonably necessary to
prosecute or defend any such claim, and will use his reasonable best efforts to
cooperate with Acsys IT and the Company in prosecuting or defending any such
claim, provided, however, that in any case where the Employee is required to
travel for any consultation or legal proceedings at the express written request
of the Chief Executive Officer of the Company (excluding any instance where the
Company and the Employee are on opposite sides of the litigation or are in any
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<PAGE> 6
other opposing position), the Employee shall be entitled to receive
reimbursement of reasonable travel costs reasonably expected to be incurred and
properly documented.
Section 8. Successors and Assigns. This Agreement shall be binding
upon, inure to the benefit of and be enforceable by the Employee's personal or
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. This Agreement shall also be binding upon,
inure to the benefit of and be enforceable by any successor to Acsys IT and/or
the Company by reason of any merger, consolidation, dissolution, debt
foreclosure or other reorganization of the Company.
Section 9. Severability. If any provision hereof is unenforceable,
such provision shall be fully severable, and this Separation Agreement shall be
construed and enforced as if such unenforceable provision had never comprised a
part hereof, the remaining provisions hereof shall remain in full force and
effect, and the court construing this Separation Agreement shall add as a part
hereof a provision as similar in terms and effect to such unenforceable
provision as may be enforceable, in lieu of the unenforceable provision.
Section 10. Knowing and Voluntary. The Employee acknowledges that he
has reviewed the terms and conditions of this Separation Agreement, that he
understands its terms, and that he has executed this Separation Agreement
voluntarily and without any coercion, undue influence, threat or intimidation
of any kind whatsoever. The Employee further acknowledges that a portion of the
consideration he receives for this Separation Agreement is in addition to any
amounts to which he was already entitled pursuant to the Employment Agreement
or otherwise.
Section 11. Arbitration. Any dispute between the parties pertaining to
this Separation Agreement shall be resolved through binding arbitration
conducted by the American Arbitration Association under the employment rules
then in effect. The parties agree that any arbitration proceeding shall be
conducted in Atlanta, Georgia and consent to exclusive jurisdiction and venue
there. The award of the arbitrator(s) shall be final and binding, and the
parties waive any right to appeal the arbitral award, to the extent that a
right to appeal may be lawfully waived. Each party retains the right to seek
judicial assistance (a) to compel arbitration, (b) to obtain injunctive relief
and interim measures of protection pending arbitration, and (c) to enforce any
decision of the arbitrator(s), including but not limited to the final award.
Section 12. Captions and Paragraph Headings. Captions and paragraph
headings used herein are for convenience only and are not a part of this
Separation Agreement and shall not be used in construing it.
Section 13. Acknowledgment of Obligation to Tender Back Consideration.
The Employee acknowledges and agrees that if he ever attempts to bring a claim
against the Releasees under state or federal law for discrimination or for
wrongful termination, including but not limited to a claim under Title VII of
the Civil Rights Act of 1964 and/or the Americans with Disabilities Act, which
claims were released by him by virtue of
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<PAGE> 7
Section 2(a) of this Separation Agreement, regardless of whether this
Separation Agreement or the release and covenant not to sue are valid or
enforceable with respect to those claims, he will first pay to the Company all
sums paid by it to him or on his behalf under this Separation Agreement.
Section 14. No Release of Future Claims. Acsys IT, the Company and the
Employee understand and agree that, notwithstanding anything in this Separation
Agreement to the contrary, nothing in this Separation Agreement in any way
restricts the rights of Acsys IT, the Company and/or the Employee to bring a
claim or seek equitable relief against the other based on acts occurring
subsequent to the day and year first above written.
Section 15. Entire Agreement. Except as otherwise expressly provided
herein (including in the documents referred to herein), this Separation
Agreement constitutes the entire agreement between Acsys IT, the Company and
the Employee with respect to the subject matter hereof and supersedes all prior
arrangements or understandings with respect to the subject matter hereof,
written or oral. Nothing in this Separation Agreement expressed or implied is
intended to confer upon any person, other than Acsys IT, the Company or the
Employee or their respective successors, any rights, remedies, obligations or
liabilities under or by any reason of this Agreement.
Section 16. Termination of Employment Agreement; Continuation of
Joinder Agreement, Indemnification Agreement and Shareholder and Restrictive
Covenant Agreement and Absence of Other Agreements. The Employment Agreement is
hereby terminated in all respects. The Company and the Employee hereby
represent and warrant to the other that, except for this Separation Agreement,
the Joinder Agreement dated May 22, 1998, the Director's and Officer's
Indemnification Agreement between Employee and the Company and the Shareholder
and Restrictive Covenant Agreement executed contemporaneously herewith, there
are no agreements, arrangements or understandings, written or oral, between the
parties with respect to any subject matter whatsoever.
Section 17. Choice of Law. This Separation Agreement, and the rights
and obligations of the parties hereto, shall be governed and construed in
accordance with the laws of the State of Georgia.
Section 18. Negotiated Agreement. The Separation Agreement was
negotiated between the parties hereto, and the fact that one party or the other
drafted this Separation Agreement shall not be used in its interpretation.
Section 19. References. The Company shall provide the Employee, upon
the request of the Employee, with a neutral reference letter in accordance with
the Company's policy which will contain a factual recitation of Employee's
dates of employment, positions held and similar factual information. This
reference letter will contain no negative evaluation information as to the
Employee's job performance or job history.
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<PAGE> 8
Section 20. Legal Fees and Expenses. The Company agrees to reimburse
the Employee, Steven M. Sutton and Robert M. Kwatnez $5,000 for a portion of
the fees and expenses of their legal counsel Morris Manning & Martin, LLP
incurred in connection with their separation from employment with Acsys IT.
Section 21. Notices. Except as otherwise provided herein, all notices,
requests and other communications hereunder must be in writing and will be
deemed to have been duly given only if delivered personally or by facsimile
transmission or mailed (first class postage prepaid) to the parties at the
following addresses or facsimile numbers:
If to Kwatnez, to:
Robert M. Kwatnez
11875 Morning Mist Drive
Alpharetta, GA 30005
Telephone: (770) 663-0110
with a copy to:
David M. Calhoun, Esq.
Morris, Manning & Martin L.L.P.
1600 Atlanta Financial Center
3343 Peachtree Road, N.E.
Atlanta, GA 30326-1044
Telephone: (404) 504-7613
Facsimile: (404) 365-9532
If to the Company, to:
Brady W. Mullinax, Jr.
Acsys, Inc.
75 14th Street
Suite 2200
Atlanta, Georgia 30309
Telephone: (404) 817-9440
Facsimile: (404) 815-4703
with a copy to:
Bryan E. Davis, Esq.
Alston & Bird LLP
One Atlantic Center
1201 West Peachtree Street
Atlanta, Georgia 39309-3424
Telephone: (404) 881-7000
Facsimile (404) 881-7777
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<PAGE> 9
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section, be deemed given upon
delivery, and (ii) if delivered by facsimile transmission to the facsimile
number as provided in this Section, be deemed given upon receipt (confirmation
of delivery by the sender's facsimile machine shall be deemed sufficient
evidence of the recipient's receipt). Any party from time to time may change
its address, facsimile number or other information for the purpose of notices
to that party by giving notice specifying such change to the other parties
hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Separation
Agreement to be duly executed as of the day and year first above written.
ACSYS IT, INC.
By: /s/ Brady W. Mullinax, Jr.
----------------------------------
Its: Executive Vice President
ACSYS, INC.
By: /s/ Brady W. Mullinax, Jr.
----------------------------------
Its: Chief Financial Officer
THE EMPLOYEE
/s/ Robert M. Kwatnez
------------------------------------------
Robert M. Kwatnez
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<PAGE> 10
EXHIBIT A
To Whom It May Concern:
I, Robert M. Kwatnez, hereby formally tender my resignation as an officer and
Director of Acsys, Inc. and any of its affiliates (the "Company"), and note
that my resignation is not the result of any disagreement with the Company
relating to the Company's operations, policies or practices.
Sincerely,
/s/ Robert M. Kwatnez
Robert M. Kwatnez Date: 12-1-99
Accepted:
/s/ Brady W. Mullinax, Jr. Date: 12-1-99
- ----------------------------------------- ----------------------------
By: Brady W. Mullinax, Jr.
Acsys, Inc.
<PAGE> 1
EXHIBIT 10.6
SHAREHOLDER AND RESTRICTIVE COVENANT AGREEMENT
This Shareholder and Restrictive Covenant Agreement (the "Agreement")
is entered into as of the 1st day of December, 1999, by and between Acsys,
Inc., (hereinafter the "Company"), and Robert M. Kwatnez (hereinafter
"Kwatnez").
WHEREAS, Kwatnez has previously been employed as Group Director, New
Products of Acsys IT, Inc. (hereinafter "Acsys IT), a wholly owned subsidiary
of the Company; and
WHEREAS, Kwatnez, the Company and Acsys IT have mutually agreed to
Kwatnez's resignation from his employment with Acsys IT; and
WHEREAS, by virtue of his service as an employee of Acsys IT, Kwatnez
has comprehensive knowledge of Acsys IT's and the Company's business, business
relationships and financial affairs, including confidential and trade secret
information regarding their business and marketing plans, sales, costs,
profits, pricing methods, future business strategies and future business
opportunities; and
WHEREAS, Kwatnez acknowledges that maintenance of the confidentiality
of Acsys IT's and the Company's proprietary business information and trade
secrets is vital to the business well-being of Acsys IT and the Company; and
WHEREAS, Kwatnez acknowledges that the continuing relationships
between Acsys IT and its customers and employees are vital to the business
well-being of Acsys IT and the Company; and
WHEREAS, Kwatnez continues to own the number of shares of Common Stock
of the Company (sometimes referred to herein as "Company Common Stock") as set
forth on Schedule I hereto; and
WHEREAS, Kwatnez and the Company desire to establish in the Agreement
certain terms and conditions concerning the acquisition and disposition of
securities of the Company by Kwatnez, corporate governance of the Company after
the date hereof, and protection of the Company's and Acsys IT's legitimate
business interests, confidential and trade secret information, and
relationships with their customers and employees;
NOW, THEREFORE, in consideration of the premises and the mutual
promises herein contained, and for other good and valuable consideration the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
<PAGE> 2
ARTICLE I.
DEFINITIONS
1.01. Definitions. Except as otherwise specifically indicated, the
following terms have the following meanings for all purposes of this Agreement:
"beneficially owns" (or comparable variations thereof) has the meaning
set forth in Rule 13d-3 promulgated under the Exchange Act.
"Board of Directors" means the Board of Directors of the Company.
"Change in Control" means an event as a result of which: (i) any
"person" (as such term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934 (the "Exchange Act")), is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act, except that a person
shall be deemed to have "beneficial ownership" of all securities that such
person has the right to acquire, whether such right is exercisable immediately
or only after the passage of time), directly or indirectly, of more than 50% of
the total voting power of the voting stock of the Company; (ii) the Company
consolidates with, or merges with or into another corporation or sells,
assigns, conveys, transfers, leases or otherwise disposes of all or
substantially all of its assets (or substantially all of the assets of, or of
the Company's interest in, the Company) to any person or any corporation
consolidates with, or merges with or into, the Company, in any such event
pursuant to a transaction in which the outstanding voting stock of the Company
is changed into or exchanged for cash, securities or other property, other than
any such transaction where (A) the outstanding voting stock of the Company is
changed into or exchanged for (x) voting stock of the surviving or transferee
corporation or (y) cash, securities (whether or not including voting stock) or
other property, and (B) the holders of the voting stock of the Company
immediately prior to such transaction own, directly or indirectly, not less
than 50% of the voting power of the voting stock of the surviving corporation
immediately after such transaction; or (iii) individuals who at the date hereof
constitute the Board of the Company (together with any new directors whose
election by such Board or whose nomination for election by the stockholders of
the Company was approved by a vote of 66-2/3% of the directors then still in
office who were directors at the date hereof or whose election or nomination
for election was previously so approved) ceased for any reason to constitute a
majority of the Board of the Company then in office; or (iv) the Company is
liquidated or dissolved or adopts a plan of liquidation.
"Confidential Information" means all information regarding Acsys IT
and the Company, their activities, business and clients that is not generally
known to persons not employed by them and that is not generally disclosed by
their practice or authority to persons not employed by them, but that does not
rise to the level of a "Trade Secret." "Confidential Information" shall
include, but is not limited to, information pertaining to Acsys IT's and/or the
Company's sales and marketing techniques and plans, expansion or contraction
plans, financial data and plans, acquisition plans, management plans, pricing
information, and client information. "Confidential Information" shall not
include information that has become generally available to the public by any
person other than
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<PAGE> 3
Kwatnez or his affiliates. This definition shall not limit any definition of
"Confidential Information" or any equivalent term under state or federal law.
"Equity Securities" means Voting Securities, Convertible Securities
and Rights to Purchase Voting Securities.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
"Liens" means any lien, claim, mortgage, encumbrance, pledge, security
interest, equity or charge of any kind.
"Person" means any individual, corporation, partnership, trust, other
entity or group (within the meaning of Section 13(d)(3) of the Exchange Act).
"Representatives" of any entity means such entity's directors,
officers, employees, legal, investment banking and financial advisors,
accountants and any other agents and representatives of such entity.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"Subsidiary" means any Person in which-the Company directly or
indirectly through Subsidiaries or otherwise, beneficially owns more than fifty
percent (50%) of either the equity interest in, or the Voting Power of, such
Person.
"Trade Secrets" shall have the meaning assigned thereto by the Georgia
Trade Secrets Act, OCGA ss.10-1-761.
"Voting Securities" means the Company Common Stock and any other
securities of the Company of any kind or class having power generally to vote
for the election of directors; "Convertible Securities" means securities of the
Company which are convertible or exchangeable (whether presently convertible or
exchangeable or not) into Voting Securities; and "Rights to Purchase Voting
Securities" means options and rights issued by the Company (whether presently
exercisable or not) to purchase Voting Securities or Convertible Voting
Securities.
Unless the context of this Agreement otherwise requires, words of any
gender include each other gender; (ii) words using the singular or plural
number also include the plural or singular number, respectively; (iii) the
terms "hereof," "herein," "hereby" and derivative or similar words refer to
this entire Agreement; and (iv) the terms "Article" or "Section" refer to the
specified Article or Section of this Agreement. Whenever this Agreement refers
to a number of days, such number shall refer to calendar days unless business
days are specified.
3
<PAGE> 4
ARTICLE II.
PAYMENTS TO KWATNEZ BY THE COMPANY
2.01. Consideration for Kwatnez's Post-Employment Covenants. In
consideration for Kwatnez's promises set forth herein and specifically
Kwatnez's covenants set forth in Articles III, IV and V below, the Company
shall pay to Kwatnez the total sum of $245,555.33, such payment to be made by
issuing one payment to Kwatnez in the amount of $110,499.90 on January 4, 2000
and the balance in eleven (11) equal installments according to the following
schedule:
December 2, 1999 $ 12,277.77
December 31, 1999 $ 12,277.77
January 31, 2000 $ 12,277.77
February 29, 2000 $ 12,277.77
March 31, 2000 $ 12,277.77
April 30, 2000 $ 12,277.77
May 31, 2000 $ 12,277.77
June 30, 2000 $ 12,277.77
July 30, 2000 $ 12,277.77
August 31, 2000 $ 12,277.77
September 30, 2000 $ 12,277.77
Such payments are in addition to amounts payable pursuant to the Separation and
Release Agreement dated of even date herewith between the Company, Acsys IT and
Kwatnez (the "Separation and Release Agreement"). In the event of a Change of
Control, the schedule of payments shall be accelerated and all sums outstanding
shall be immediately due and payable upon the effective date of the Change of
Control. Further, in the event that (i) the Company fails to make any payment
required to be made hereunder on or before the date such payment is due and
payable as set forth above (a "Payment Default") and (ii) the Company does not
cure such Payment Default on or before the later of ten (10) days after the
date such payment is due or five days after Kwatnez's delivery of written
notice of Payment Default in accordance with Section 6.03 herein (hereinafter,
a "Cure Period"), the schedule of payments shall be accelerated and all amounts
outstanding hereunder (whether or not then due and payable) shall be
immediately due and payable. Notwithstanding the foregoing, the Company shall
be entitled to an aggregate of only three Cure Periods with respect to Payment
Defaults under this Agreement and under the Separation and Release Agreement.
Accordingly, in the event that the Company fails to make any payment required
to be made hereunder, or under the Separation and Release Agreement, on or
before the date such payment is due and payable as set forth above and in the
Separation and Release Agreement and the Company has utilized an aggregate of
three Cure Periods for previous Payment Defaults, the schedule of payments
shall be accelerated and all amounts outstanding hereunder (whether or not then
due and payable) shall be immediately due and payable.
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<PAGE> 5
Kwatnez acknowledges and agrees that his receipt of the foregoing described
payments is expressly made contingent upon Kwatnez's promises and covenants as
set forth in Articles III, IV and V below and agrees that, in the event Kwatnez
materially breaches any of the provisions of Articles III, IV and V, Kwatnez's
entitlement to further payments will immediately cease.
ARTICLE III.
KWATNEZ'S COVENANTS TO THE COMPANY
REGARDING EQUITY SECURITIES OF THE COMPANY
3.01. In consideration for the promises and covenants of the Company
and Acsys IT herein, Kwatnez agrees as follows:
3.02. Board of Directors. Until September 30, 2000, Kwatnez shall vote
the Voting Securities beneficially owned by him (as defined by Rule 13d-3) with
respect to which he has voting control (A) for the nominees for director of the
Company recommended by the Board of Directors, and (B) on all other proposals
of the Board of Directors or of any other shareholder of the Company, as
Kwatnez determines in his sole discretion, except that Kwatnez shall vote in
accordance with the recommendation of the Board of Directors where such
proposal(s) by any other shareholder of the Company relate to matters affecting
the Company's Shareholder Protection Rights Agreement dated as of June 20, 1999
between the Company and Sun Trust Bank, Atlanta, as rights agent or where such
proposal(s) affect or amend the Company's Charter or By-Laws.
3.02(I) Grant of Proxy. KWATNEZ HEREBY APPOINTS THE COMPANY AND ANY
DESIGNEE OF THE COMPANY, EACH OF THEM INDIVIDUALLY, SHAREHOLDER'S PROXY AND
ATTORNEY-IN-FACT PURSUANT TO THE PROVISIONS OF SECTION 14-2-722 OF THE GEORGIA
BUSINESS CORPORATION CODE, OR ANY SUCCESSOR PROVISION THEREOF, WITH FULL POWER
OF SUBSTITUTION AND RESUBSTITUTION, TO VOTE OR ACT BY WRITTEN CONSENT WITH
RESPECT TO KWATNEZ'S SUBJECT VOTING SECURITIES IN CONNECTION WITH THE MATTER
DESCRIBED IN SECTION 3.02(A) ABOVE IN ACCORDANCE WITH THE TERMS OF SECTION
3.02(A). THIS PROXY IS GIVEN TO SECURE THE PERFORMANCE OF THE DUTIES OF KWATNEZ
UNDER THIS AGREEMENT. KWATNEZ AFFIRMS THAT THIS PROXY IS COUPLED WITH AN
INTEREST AND SHALL BE IRREVOCABLE, BUT SHALL EXPIRE AT 11:59 P.M., ATLANTA
TIME, ON SEPTEMBER 30, 2000. KWATNEZ SHALL TAKE SUCH FURTHER ACTION OR EXECUTE
SUCH OTHER INSTRUMENTS AS MAY BE NECESSARY TO EFFECTUATE THE INTENT OF THIS
PROXY.
3.02(II) Other Proxies Revoked. Kwatnez represents that any proxies
heretofore given in respect of Kwatnez's Voting Securities are not irrevocable,
and that all such proxies are hereby revoked.
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<PAGE> 6
3.03. Limitation on Acquisition of Equity Securities. Until December
31, 2000, Kwatnez shall not, directly or indirectly, purchase or acquire, or
make any offer to or agree to purchase or acquire, beneficial ownership of any
Equity Securities, except by way of stock dividends, stock splits or other
distributions or offerings made available to holders of Equity Securities
generally and other than by exercise of outstanding Convertible Securities or
Rights to Purchase Voting Securities.
3.04. Standstill. Until September 30, 2000, Kwatnez shall not, and
shall not assist others (including by providing financing) to, directly or
indirectly (i) acquire or agree, offer, seek or propose (whether publicly or
otherwise) to acquire ownership (including but not limited to beneficial
ownership) of any portion of the assets or Equity Securities of the Company or
any of its Subsidiaries, whether by means of a negotiated purchase of assets,
tender or exchange offer, merger or other business combination,
recapitalization, restructuring or other extraordinary transaction, (ii) engage
in any "solicitation" of "proxies" (as such terms are used in the proxy rules
promulgated under the Exchange Act, but disregarding clause (iv) of Rule
14a-1(l)(2) and including any exempt solicitation pursuant to Rule
14a-2(b)(2)), or form, join or in any way participate in a "group" (as defined
under the Exchange Act), with respect to any Equity Securities in connection
with the types of activities set forth in (i) or (ii) above ), (iii) otherwise
seek or propose to acquire control of the Board of Directors, or to disrupt or
impair the normal, ongoing business operations or policies of the Company, (iv)
take any action that could reasonably be expected to force the Company to make
a public announcement regarding any of the types of matters referred to in
clause (i), (ii) or (iii) above, or (v) enter into any negotiations, agreements
or arrangements with any third party with respect to any of the foregoing. So
long as Kwatnez is in compliance with the foregoing, nothing in this Agreement
shall prohibit Kwatnez from, or in any way restrict his ability to, sell,
transfer, pledge or otherwise assign any or all of his Equity Securities in the
Company, whether in market transactions, private sales or otherwise.
ARTICLE IV.
KWATNEZ'S RESTRICTIVE COVENANTS
4.01. In consideration for the promises and covenants of the Company
and Acsys IT herein, Kwatnez further agrees as follows:
4.02. SAP Noncompete. For a period of one year following the date
hereof, Kwatnez shall not, without the Company's prior written permission,
directly or indirectly, on his own behalf or on behalf of any other person or
entity, within the SAP Territory, be engaged as a manager, executive,
operational consultant or equity owner in the business of providing consulting
or contract staffing services for any product currently manufactured by SAP AG
or its subsidiaries that are available for general release (excluding products
in alpha or beta stage) and with respect to which the Company or its
subsidiaries currently provide services and support, including, but not by way
of limitation, SAP's products known as ERP, New Dimension, and mySAP.com
products
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<PAGE> 7
(hereinafter the "SAP Services"); provided, however, that nothing in
this Section 4.02 shall prohibit Kwatnez from providing consulting or contract
staffing services for products not offered by SAP AG as of the date hereof, but
which are subsequently introduced or acquired by SAP AG. As used herein the
term "SAP Territory" shall mean within a fifty (50) mile radius surrounding the
following offices of the Company:
2200 North Central Avenue
Suite 300
Phoenix, AZ 85004
3160 Crow Canyon Road
Suite 230
San Ramon, CA 94583
1700 Broadway
Suite 700
Denver, CO 80290
1300 Market Street
Suite 501
Wilmington, DE 19801
1020 19th Street, N.W.
Suite 650
Washington, D.C. 20036
1020 19th Street North West
Suite 650
Washington, DC 20036
610 Crescent Executive Park
Suite 132
Lake Mary, FL 32746
390 North Orange Avenue
Suite 1825
Orlando, FL 32801
100 North Tampa Street
Suite 1950
Tampa, FL 33602
5 Concourse Parkway
Suite 2650
Atlanta, GA 30326
7
<PAGE> 8
75 Fourteenth Street
Suite 2200
Atlanta, GA 30309
2400 Lakeview Parkway
Suite 500
Alpharetta, GA 30004
1001 Office Park Road
Suite 320
West Des Moines, IA 50265
2464 East Euclid
Des Moines, IA 50317
4220 Shawnee Mission Parkway
Suite 101B
Fairway, KS 66205
6701 Democracy Boulevard
Suite 400
Bethesda, MD 20817
5522 M.E. Antioch Rd.
Kansas City, MO 64119
1820 Chapel Avenue
Suite 168
Cherry Hill, NJ 08002
379 Thornall Street
Edison, NJ 08837
102 Campus Drive
Princeton, NJ 08540
110 South Jefferson Road
Whippany, NJ 07981
425 Broadhollow Road
Suite 318
Melville, NY 11747
780 Third Avenue
New York, NY 10017
8
<PAGE> 9
301 South College Street
Charlotte, NC 28202
1850 Linglestown Rd.
Suite 307
Harrisburg, PA 1711
1850 William Penn Way
Suite 106
Lancaster, PA 17601
1700 Market Street
Suite 3110
Philadelphia, PA 19103
500 East Swedesford Road
Suite 100
Wayne, PA 19087
12655 North Central Expressway
Suite 310
Dallas, TX 75243
714 Jackson Street
Suite 715
Dallas, TX 75202
512 Main Street
Suite 401
Forth Worth, TX 76102
5601 Bridge Street
Suite 408
Forth Worth, TX 76112
4544 Post Oak Place
Suite 375
Houston, TX 77027
800 West Airport Freeway
Suite 712
Irving, TX 75062
222 West Las Calinas Blvd.
Suite E 1050
Irving, TX 75039
9
<PAGE> 10
7411 John Smith Drive
Suite 110
San Antonio, TX 78229
1340 Braddock Place
Suite 201
Alexandria, VA 22314
8300 Greensboro Drive
Suite 720
McLean, VA 22102
12110 Sunset Hills Road
Reston, VA 20190
7100 Forest Avenue
Suite 101
Richmond, VA 23226
4.03. Information Technology Noncompete. For a period of one year from
the date hereof, Kwatnez shall not, without the Company's prior written
permission, directly or indirectly, on his own behalf or on behalf of any other
person or entity, be engaged within the IT Territory as a manager, executive,
operational consultant or equity owner in the business of offering (i)
short-term or long-term outsourcing of information technology staffing
services, (ii) temporary information technology contract staffing services; or
(iii) permanent placement information technology staffing services on a
contingent fee basis (hereinafter the "IT Services"). As used herein, the term
"IT Territory" shall mean within a fifty (50) mile radius of the following
office of the Company where Kwatnez worked during the last twelve (12) months
of his employment:
2400 Lakeview Parkway
Suite 500
Alpharetta, GA 30004
Nothing in this Agreement shall prohibit Kwatnez from providing IT
Services to any customer that is headquartered or has offices inside the IT
Territory, provided that the services are for locations outside the IT
Territory, whether or not the customer is a current customer of the Company or
Acsys IT, and provided that such IT Services shall not encompass SAP Services
in violation of Section 4.02 herein and provided that Kwatnez does not solicit
the customer in violation of Section 4.06 herein.
Kwatnez shall not be prohibited from merely maintaining one or more
offices in the IT Territory or the SAP Territory, so long as Kwatnez otherwise
complies with the provisions of this Section and Section 4.02 herein. Kwatnez
agrees, however, that for a period of one year from the date hereof, Kwatnez
shall not, without the Company's prior
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<PAGE> 11
written permission, maintain an office for purposes of offering IT Services,
either on his own behalf or on behalf of a business entity in which he together
with Steven M. Sutton and/or Robert M. Kwatnez owns a majority interest, within
a fifty (50) mile radius of the following offices of the Company which Kwatnez
acknowledges offered IT Services during the last six (6) months of Kwatnez's
employment by Acsys IT under Kwatnez's oversight as Group Director, New
Products:
610 Crescent Executive Park
Suite 132
Lake Mary, FL 32746
1700 Market Street
Suite 3110
Philadelphia, PA 19103
222 West Las Calinas Blvd.
Suite E1050
Irving, TX 75039
4.04. Non-Disclosure. For a period of one year from the date hereof,
Kwatnez shall not, without the Company's prior written permission, directly or
indirectly, on his own behalf or on behalf of any other persons or entity,
transmit or disclose any Confidential Information of Acsys IT or the Company to
any person and shall not make use of any Confidential Information, for himself
or others, except to the extent required by any law or order, in which case
Kwatnez shall provide the Company prior written notice of such requirement and
an opportunity to contest same. Trade Secrets of the Company and Acsys IT shall
continue to be protected from disclosure or use so long as they remain Trade
Secrets.
4.05. Nonsolicitation of Employees. For a period of one year from the
date hereof, Kwatnez shall not, without the Company's prior written permission,
directly or indirectly, through one or more intermediaries or otherwise, on his
own behalf or on behalf of any other person or entity, solicit to employ any
person who is an employee or consultant of Acsys IT or the Company as of the
date hereof who was engaged within the twelve (12) months preceding the date
hereof in the provision of SAP Services or IT Services on behalf of Acsys IT or
the Company. The foregoing provision shall apply only to those employees who
are full time employees of the Company or Acsys IT entitled to health insurance
and other employee benefits provided by the Company to its employees,
generally, and to certain salaried "benchable" consultants. It is understood
and agreed that this Section shall not prohibit Kwatnez from engaging in
discussions with, or hiring, any such employee or consultant of the Company or
Acsys IT who first initiates contact with Kwatnez for purposes of seeking
employment, so long as there has been no prior solicitation of the employee or
consultant by Kwatnez, directly or indirectly, through one or more
intermediaries or otherwise.
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<PAGE> 12
4.06. Nonsolicitation of Customers. For a period of one year after the
date hereof, Kwatnez shall not, without the Company's prior written permission,
directly or indirectly, through one or more intermediaries or otherwise, on his
own behalf or on behalf of any other person or entity, solicit Customers of
Acsys IT and/or the Company to induce or encourage them to acquire or obtain
from anyone other than Acsys IT and/or the Company, SAP Services within the SAP
Territory or IT Services within the IT Territory. Nothing herein shall prohibit
Kwatnez from soliciting Customers of Acsys IT and/or the Company for providing
SAP Services outside the SAP Territory or IT Services outside the IT Territory
even if such Customer is headquartered or has offices within the SAP Territory
or the IT Territory, as the case may be. For purposes of this Section,
"Customer" refers to any person or group of persons with whom Kwatnez had
direct material contact(s) within the six (6) months preceding the date hereof
with regard to selling, delivery or support of SAP Services within the SAP
Territory or IT Services within the IT Territory on behalf of Acsys IT and/or
the Company.
ARTICLE V.
CRM PRODUCTS
5.01 In consideration for the promises and covenants of the Company
and Acsys IT herein, Kwatnez further agrees as follows:
5.02 For a period of one year from the date hereof, Kwatnez agrees
that if he individually or together with Robert D. Bailey and/or Steven M.
Sutton owns a majority interest in a business enterprise offering staffing
support services for Siebel, Inc.'s current products known as CRM Products,
Kwatnez and such business enterprise shall provide the Company notice of any
job orders received by Kwatnez or his business enterprise for support of
Siebel's CRM Products (hereinafter "Notice of Job Order"). Any such Notice of
Job Order shall be addressed to the attention of Brad Elster and communicated
by facsimile to facsimile number 678-393-2101 or by email to the following
address: [email protected]. The Notice of Job Order will include a
description of the job, the skills required, availability requirements and
maximum rate that may be charged for the job by the Company. The Company will
have until 3:00 p.m. Atlanta time the following business day or eight (8)
business hours following delivery of a Notice of Job Order, whichever is
greater, within which to respond by submitting to Kwatnez and/or his business
enterprise candidate resumes to provide staffing for the job order. Business
hours shall be from 9:00 a.m. to 5:00 p.m., Atlanta time, on each business day.
Candidate resumes received within the time set forth above shall be submitted
by Kwatnez and/or his business enterprise to the customer requesting support of
Seibel's CRM Products, provided that Kwatnez or his business enterprise
reasonably deems the candidate(s) to be qualified to fill the position based
upon all reasonable factors, including the job description, the candidate's
skills, experience, availability and billing rate. Kwatnez agrees that if the
Company submits at least two qualified candidates within the time set forth
above pursuant to a Notice of Job Order, Kwatnez and/or his business enterprise
will refrain from submitting any candidate resumes from any other third party
recruiting firms. Kwatnez and/or his business enterprise may submit
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<PAGE> 13
candidates identified by Kwatnez and/or his enterprise and who are not
represented in the transaction by any other third party recruiting firms. If
the Company fails to submit at least two qualified candidates within the time
set forth herein, or the customer does not select any of the candidates
submitted by the Company, Kwatnez and/or his business enterprise may attempt to
fill the job order from any other source, including any other third party
recruiting firm.
ARTICLE VI
GENERAL PROVISIONS
6.01. Ownership of Company Shares. Kwatnez represents and
warrants to the Company that (i) he owns, beneficially and of record, as of the
date hereof, the number of shares of Company Common Stock listed on Schedule I
hereto (collectively, the "Company Shares"), subject to no rights of others and
free and clear of all Liens; (ii) Kwatnez's right to vote the Company Shares
beneficially owned by Kwatnez is not subject to any voting trust, voting
agreement, voting arrangement or proxy; and (iii) Kwatnez has not entered into
any contract, option or other arrangement or undertaking with respect thereto.
So long as Kwatnez is in compliance with Section 3.04 above, nothing herein
shall in any way restrict Kwatnez's right to transfer, assign, pledge, sell or
otherwise dispose of any of his Company Shares.
6.02. Amendment and Waiver
(a) This Agreement may be amended, supplemented or modified only by a
written instrument duly executed by or on behalf of each party hereto.
(b) Any term or condition of this Agreement may be waived at any time
by the party that is entitled to the benefit thereof, but no such waiver shall
be effective unless set forth in a written instrument duly executed by or on
behalf of the party waiving such term or condition. No waiver by any party of
any term or condition of this Agreement, in any one or more instances, shall be
deemed to be or construed as a waiver of the same or any other term or
condition of this Agreement on any future occasion. All remedies, either under
this Agreement or by law or otherwise afforded, will be cumulative and not
alternative.
6.03. Notices. Except as otherwise provided herein, all notices,
requests and other communications hereunder must be in writing and will be
deemed to have been duly given only if delivered personally or by facsimile
transmission to the parties at the following addresses or facsimile numbers:
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<PAGE> 14
If to Kwatnez, to:
Robert M. Kwatnez
11875 Morning Mist Drive
Alpharetta, GA 30005
Telephone: (770) 663-0110
with a copy to:
David M. Calhoun, Esq.
Morris, Manning & Martin L.L.P.
1600 Atlanta Financial Center
3343 Peachtree Road, N.E.
Atlanta, GA 30326-1044
Telephone: (404) 504-7613
Facsimile: (404) 365-9532
If to the Company, to:
Brady W. Mullinax, Jr.
Acsys, Inc.
75 14th Street
Suite 2200
Atlanta, GA 30309
Telephone: (404) 817-9440
Facsimile: (404) 815-4703
with a copy to:
Bryan E. Davis, Esq.
Alston & Bird LLP
One Atlantic Center
1201 West Peachtree Street
Atlanta, GA 39309-3424
Telephone: (404) 881-7000
Facsimile (404) 881-7777
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section, be deemed given upon
delivery, and (ii) if delivered by facsimile transmission to the facsimile
number as provided in this Section, be deemed given upon receipt (confirmation
of delivery by the sender's facsimile machine shall be deemed sufficient
evidence of the recipient's receipt). Any party from time to time may change
its address, facsimile number or other information for the purpose of notices
to that party by giving notice specifying such change to the other parties
hereto.
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<PAGE> 15
6.04. Entire Agreement. This Agreement supersedes all prior
discussions and agreements among the parties hereto with respect to the subject
matter hereof, and contains the sole and entire agreement among the parties
hereto with respect to the subject matter hereof, except that the Separation
and Release Agreement dated of even date herewith between Kwatnez, the Company
and Acsys IT, the Joinder Agreement dated as of May 22, 1998 (as modified by
the Separation and Release Agreement) , and the Director's and Officer's
Indemnification Agreement between Kwantez and the Company shall remain in full
force and effect. shall remain in full force and effect.
6.05. Invalid Provisions. If any provision of this Agreement is held
to be illegal, invalid or unenforceable under any present or future law, and if
the rights or obligations of any party hereto under this Agreement will not be
materially and adversely affected thereby, (i) such provision will be fully
severable, (ii) this Agreement will be construed and enforced as if such
illegal, invalid or unenforceable provision had never comprised a part hereof
and (iii) the remaining provisions of this Agreement will remain in full force
and effect and will not be affected by the illegal, invalid or unenforceable
provision or by its severance herefrom.
6.06. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Georgia applicable to a contract
executed and performed in such State, without giving effect to the conflicts of
laws principles thereof.
6.07. Consent to Jurisdiction and Service of Process. Each party
hereby irrevocably submits to the jurisdiction of The United States District
Court for the Northern District of Georgia or any court of the State of Georgia
located in Cobb County and in any action, suit or proceeding arising in
connection with this Agreement, agrees that any such action, suit or proceeding
may be brought in such court (and waives any objection based on forum non
conveniens or any other objection to venue therein to the extent permitted by
law), provided, however, that such consent to jurisdiction is solely for the
purpose referred to in this Section and shall not be deemed to be a general
submission to the jurisdiction of said courts. Nothing herein shall affect the
right of any party to commence legal proceedings or otherwise proceed against
the other in any other jurisdiction.
6.08. Counterparts. This Agreement may be executed in any number of
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
6.09. Injunctive Relief. Kwatnez acknowledges that the covenants and
promises contained in this Agreement are a reasonable and necessary means of
protecting and preserving the Company's goodwill and interests in its
confidential information and trade secrets. Kwatnez agrees that any breach of
these covenants or promises will leave the Company with no adequate remedy at
law and will cause the Company to suffer irreparable damage and injury. Kwatnez
further agrees that any breach of these covenants and promises will entitle the
Company to injunctive relief in any court of competent jurisdiction without the
necessity of posting any bond. Such injunctive relief
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<PAGE> 16
shall be in addition to any damages which may be recoverable by the Company as
a result of any breach.
6.10. Successors and Assigns. This Agreement shall be binding upon,
inure to the benefit of and be enforceable by Kwatnez's personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees. This Agreement shall also be binding upon, inure to the
benefit of and be enforceable by any successor to Acsys IT and/or the Company
by reason of any merger, consolidation, dissolution, debt foreclosure or other
reorganization of the Company.
6.11. Knowing and Voluntary. Kwatnez acknowledges that he has reviewed
the terms and conditions of this Agreement, that he understands its terms, and
that he has executed this Agreement voluntarily and without any coercion, undue
influence, threat or intimidation of any kind whatsoever and that he has had
the benefit of counsel in negotiating and drafting this Agreement. Kwatnez
further acknowledges that the consideration he receives for this Agreement is
in addition to any amounts to which he was already entitled.
6.12. Captions and Paragraph Headings. Captions and paragraph headings
used herein are for convenience only and are not a part of this Agreement and
shall not be used in construing it.
6.13. Negotiated Agreement. This Agreement was negotiated between the
parties hereto, and the fact that one party or the other drafted this Agreement
shall not be used in its interpretation.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
ACSYS, INC.
Name: /s/ Brady W. Mullinax, Jr.
---------------------------------
Title: Chief Financial Officer
--------------------------------
/s/ Robert M. Kwatnez
--------------------------------------
Robert M. Kwatnez
16
<PAGE> 17
SCHEDULE I
<TABLE>
<CAPTION>
SHARES NUMBER
- ------ ------
<S> <C>
Acsys Common Stock 710,090
</TABLE>
<PAGE> 1
EXHIBIT 10.7
SEPARATION AND RELEASE AGREEMENT
This Separation and Release Agreement (hereinafter the "Separation
Agreement") is entered into as of the 1st day of December, 1999, by and
between Acsys, Inc. (the "Company"), Acsys IT, Inc., a wholly owned subsidiary
of the Company ("Acsys IT"), and Steven M. Sutton (hereinafter the "Employee").
WHEREAS, the Employee has been employed by Acsys IT in the capacity of
Group Director, Operations Development pursuant to that Employment Agreement
dated March 31, 1998; and
WHEREAS, the Employee became a shareholder of the Company pursuant to
an Agreement and Plan of Merger, dated as of March 31, 1998 (the "Merger
Agreement"), by and among the Company, Icon Search & Consulting, Inc. ("Icon")
and the shareholders of Icon, including the Employee; and
WHEREAS, on May 22, 1998, the Employee executed a Registration Rights
Joinder Agreement (the "Joinder Agreement"), agreeing thereby to become a party
to an Amended and Restated Registration Rights Agreement, dated as of September
3, 1997 (the "Registration Rights Agreement') governing certain rights and
obligations of certain shareholders of the Company; and
WHEREAS, the Employee, Acsys IT and the Company have mutually agreed
to Employee's resignation from his employment with Acsys IT; and
WHEREAS, the Employee, Acsys IT and the Company have agreed to a
severance arrangement and certain limitations on the Employee's shareholder and
other rights pursuant to the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual
promises herein contained, the parties hereto agree as follows:
Section 1. Termination of Employment. The Employee, Acsys IT and the
Company agree that the Employee's employment with Acsys IT will be terminated
as of the day and year first above written (the "Separation Date"), that
Employee has voluntarily resigned from his employment and that the Employee has
been paid all wages and compensation due him through the Separation Date.
Section 2. Severance Pay. The Company shall make a total gross payment
to the Employee of $122,777.66 less withholding for taxes and other required
items, paid in eleven (11) equal installments according to the following
schedule:
<PAGE> 2
December 2, 1999 $ 11,161.60
December 31, 1999 $ 11,161.60
January 31, 2000 $ 11,161.60
February 29, 2000 $ 11,161.60
March 31, 2000 $ 11,161.60
April 30, 2000 $ 11,161.60
May 31, 2000 $ 11,161.60
June 30, 2000 $ 11,161.60
July 30, 2000 $ 11,161.60
August 31, 2000 $ 11,161.60
September 30, 2000 $ 11,161.60
Such payments shall be reported by the Company as W-2 income received by the
Employee and shall be in addition to amounts payable under the Shareholder and
Restrictive Covenant Agreement (the "Restrictive Covenant Agreement") dated of
even date herewith between the Company, Acsys IT and the Employee. In the event
of a Change of Control (as defined in the Restrictive Covenant Agreement), the
schedule of payments shall be accelerated and all amounts outstanding hereunder
(whether or not then due and payable) shall be immediately due and payable upon
the effective date of the Change of Control. Further, in the event that (i) the
Company fails to make any payment required to be made hereunder or under the
Restrictive Covenant Agreement on or before the date such payment is due and
payable as set forth above and in the Restrictive Covenant Agreement (a
"Payment Default") and (ii) the Company does not cure such Payment Default on
or before the later of ten (10) days after the date such payment is due or five
days after the Employee's delivery of written notice of Payment Default in
accordance with Section 21 herein (hereinafter, a "Cure Period"), the schedule
of payments shall be accelerated and all amounts outstanding hereunder (whether
or not then due and payable) shall be immediately due and payable.
Notwithstanding the foregoing, the Company shall be entitled to an aggregate of
only three Cure Periods with respect to Payment Defaults under this Agreement
and under the Restrictive Covenant Agreement. Accordingly, in the event that
the Company fails to make any payment required to be made hereunder or under
the Restrictive Covenant Agreement on or before the date such payment is due
and payable as set forth above and in the Restrictive Covenant Agreement and
the Company has utilized an aggregate of three Cure Periods for previous
Payment Defaults, the schedule of payments shall be accelerated and all amounts
outstanding hereunder (whether or not then due and payable) shall be
immediately due and payable.
The Employee agrees that this amount, together with the payments under
the Restrictive Covenant Agreement, is greater than any amount to which he
would be entitled by contract or law under his Employment Agreement or arising
out of his employment relationship and that it constitutes valuable and
sufficient consideration for the Employee's promises, covenants and releases
herein. Employee agrees that no further wages, commissions, backpay, attorneys
fees, severance pay or other employment benefits are due him from the Company
or its officers, directors, employees, affiliates, successors or assigns. The
Company acknowledges that Employee is entitled to
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<PAGE> 3
reimbursement of business expenses incurred by him prior to the date hereof and
that the Employee will be eligible for continuation of health insurance
coverage under COBRA.
Section 3. Mutual Releases.
(a). By Employee. In consideration for the severance benefits
described in Section 2 hereof and the promises and releases herein of Acsys IT
and Company, Employee for himself, his successors and assigns, now and forever,
hereby releases and discharges Acsys IT, the Company and their officers,
directors, stockholders, employees, agents, parent corporations, subsidiaries,
affiliates, successors, assigns and attorneys (the "Releasees"), from any and
all claims, legal or equitable actions, liability or litigation, real or
contemplated, known or unknown, that the Employee may now have or may later
claim to have had against any of the Releasees arising out of anything that has
occurred up to and through the date hereof, including without limitation, any
claims arising under the Joinder Agreement or Registration Rights Agreement or
by virtue of his status as a shareholder of the Company or arising out of his
employment or termination of employment with Acsys IT and/or the Company;
provided, however, that, the Employee does not release the Releasees for any
claims arising from any illegal acts, claims arising under this Separation
Agreement, or claims arising under the Restrictive Covenant Agreement.
Subject to, but without limiting the foregoing, the Employee
hereby releases those claims that could have been asserted by him in connection
with the Employment Agreement or in connection with any claim or suit for
wrongful discharge or any claim under either state or federal employment or
discrimination laws including, without limitation Title VII of the Civil Rights
Act of 1964 and the Americans with Disabilities Act. The Employee acknowledges
that he may have sustained or may yet sustain damages, costs or expenses that
are presently unknown and that relate to claims between him and the Releasees
and he agrees that he is waiving all such claims. For the purpose of
implementing a full and complete release and discharge of the Releasees, the
Employee expressly acknowledges this Separation Agreement is intended to
include in its effect, without limitation, all claims that he does not know or
suspect to exist in his favor at the time he signs this Separation Agreement,
and that this Separation Agreement contemplates the extinguishment of any such
claim or claims which are released hereunder. The Employee shall forever
refrain and forbear from commencing, instituting or prosecuting any lawsuit,
action, claim or proceeding before or in any court, regulatory, governmental,
arbitral or other authority against the parties released hereby or naming or
joining such Releasees as parties to collect or enforce any claims or causes of
action which are released and discharged hereby. Employee hereby acknowledges
and agrees that he has knowingly relinquished, waived and forever released any
and all other remedies that might be available to him with respect to claims
released hereby, including without limitation, claims for back pay, front pay,
fringe benefits, contract and personal injury damages, punitive damages and
attorneys' fees or expenses of litigation.
The foregoing release and covenant not to sue is not,
however, intended to release or apply to, and shall not release or apply to,
any rights of the Employee (i) under
- 3 -
<PAGE> 4
this Separation Agreement or to enforce any right, term or provision of this
Separation Agreement, (ii) to receive benefits under any Company or Acsys IT
insurance or other benefit plans that either have accrued or vested prior to
the date hereof or that are intended under such plans to survive an employee's
termination or separation from the Company and Acsys IT (including COBRA
coverage), (iii) now or in the future to be entitled to claim or receive
indemnification as an officer or director, or former officer or director, of
the Company or Acsys IT under any applicable state laws, the Company's or Acsys
IT's Articles of Incorporation or the Company's By-laws (which Articles of
Incorporation and Bylaws may not be amended to limit such indemnification), and
(iv) to claim or receive insurance coverage or to be defended under any
directors and officers insurance coverage which applies to or benefits
directors and/or officers of the Company and which applies to the Employee in
his capacity as a former officer or employee of Acsys IT.
Notwithstanding the foregoing, Employee does not waive his
future rights under the Joinder Agreement or the Registration Rights Agreement,
except that Employee also hereby unconditionally and irrevocably waives all of
his rights under Section 3 of the Joinder Agreement, which Section relates to
the Shelf Registration (as defined in the Joinder Agreement).
(b). By Acsys IT and the Company. In consideration for
Employee's promises and releases herein, Acsys IT and the Company, for
themselves, their subsidiaries, affiliates, parent corporations, successors and
assigns (the "Releasors") , now and forever, hereby release and discharge the
Employee from any and all claims, legal or equitable actions, liability or
litigation, real or contemplated, known or unknown, that they may now have or
may later claim to have had against the Employee arising out of anything that
has occurred up to and through the date hereof, including without limitation,
any claims arising out of his employment or termination of employment with
Acsys IT and/or the Company; provided, however, that Acsys IT and the Company
do not release or waive any claims arising from any illegal acts by Employee or
any claims against Acsys IT and/or the Company for any ultra vires acts by
Employee, which claims are expressly reserved. The Releasors acknowledge that
it or they may have sustained or may yet sustain damages, costs or expenses
that are presently unknown and that relate to claims between it and the
Employee which are nonetheless released hereby. For the purpose of implementing
a full and complete release and discharge of the Employee, the Releasors
expressly acknowledge this Separation Agreement is intended to include in its
effect, without limitation, all claims that they do not know or suspect to
exist in their favor at the time they sign this Separation Agreement, and that
this Separation Agreement contemplates the extinguishment of any such claim or
claims. The Releasors shall forever refrain and forbear from commencing,
instituting or prosecuting any lawsuit, action, claim or proceeding before or
in any court, regulatory, governmental, arbitral or other authority against the
Employee or naming or joining the Employee as a party to collect or enforce any
claims or causes of action which are released and discharged hereby. The
Releasors hereby acknowledge and agree that they have knowingly relinquished,
waived and forever released any and all other remedies that might be
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<PAGE> 5
available to them, including without limitation, claims for contract damages,
punitive damages and attorneys' fees or expenses of litigation.
Section 4. Company Property. Employee shall be permitted to retain as
his personal property the Dell Pentium 266 mhz computer and HP inkjet printer
previously furnished by the Company. Employee agrees that he will not retain or
destroy, and will return to Acsys IT and the Company, any and all other
property of Acsys IT and the Company in his possession or subject to his
control including, but not limited to, keys, credit and identification cards,
computers, client files and information, acquisition files and information,
contact information for targets, buyers and clients, all other files and
documents relating to the Company, its plans or its business, contracts,
personal items or equipment provided to him for his use, together with all
written or recorded materials, documents, computer discs, plans, records, notes
or other papers belonging to the Company. The Employee further agrees not to
make, distribute or retain any such information or property.
Section 5. Employee's Car Lease. Employee shall return to the Company
within thirty (30) days of the date hereof the automobile leased by the Company
on Employee's behalf by delivering same to the Company's office at the
following address:
Georgia 400 Center
Building One
2400 Lakeview Parkway
Suite 500
Alpharetta, GA 30004
Section 6. Press Release. Acsys IT, the Company and the Employee agree
that the fact of the Employee's separation from Acsys IT shall be formally
announced in a press release.
Section 7. Cooperation in Claims. With respect to any claim asserted
by or brought against Acsys IT and/or the Company in relation to their business
and/or against the Employee in his former capacity as an employee or officer of
the Company, the Employee, upon reasonable notice and at the written request of
the Chief Executive Officer of the Company, or his designee agrees to make
himself and any necessary records or documents in his possession reasonably
available to Acsys IT and the Company where reasonably necessary to prosecute
or defend any such claim, and will use his reasonable best efforts to cooperate
with Acsys IT and the Company in prosecuting or defending any such claim,
provided, however, that in any case where the Employee is required to travel
for any consultation or legal proceedings at the express written request of the
Chief Executive Officer of the Company (excluding any instance where the
Company and the Employee are on opposite sides of the litigation or are in any
other opposing position), the Employee shall be entitled to receive
reimbursement of reasonable travel costs reasonably expected to be incurred and
properly documented.
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<PAGE> 6
Section 8. Successors and Assigns. This Agreement shall be binding
upon, inure to the benefit of and be enforceable by the Employee's personal or
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. This Agreement shall also be binding upon,
inure to the benefit of and be enforceable by any successor to Acsys IT and/or
the Company by reason of any merger, consolidation, dissolution, debt
foreclosure or other reorganization of the Company.
Section 9. Severability. If any provision hereof is unenforceable,
such provision shall be fully severable, and this Separation Agreement shall be
construed and enforced as if such unenforceable provision had never comprised a
part hereof, the remaining provisions hereof shall remain in full force and
effect, and the court construing this Separation Agreement shall add as a part
hereof a provision as similar in terms and effect to such unenforceable
provision as may be enforceable, in lieu of the unenforceable provision.
Section 10. Knowing and Voluntary. The Employee acknowledges that he
has reviewed the terms and conditions of this Separation Agreement, that he
understands its terms, and that he has executed this Separation Agreement
voluntarily and without any coercion, undue influence, threat or intimidation
of any kind whatsoever. The Employee further acknowledges that a portion of the
consideration he receives for this Separation Agreement is in addition to any
amounts to which he was already entitled pursuant to the Employment Agreement
or otherwise.
Section 11. Arbitration. Any dispute between the parties pertaining to
this Separation Agreement shall be resolved through binding arbitration
conducted by the American Arbitration Association under the employment rules
then in effect. The parties agree that any arbitration proceeding shall be
conducted in Atlanta, Georgia and consent to exclusive jurisdiction and venue
there. The award of the arbitrator(s) shall be final and binding, and the
parties waive any right to appeal the arbitral award, to the extent that a
right to appeal may be lawfully waived. Each party retains the right to seek
judicial assistance (a) to compel arbitration, (b) to obtain injunctive relief
and interim measures of protection pending arbitration, and (c) to enforce any
decision of the arbitrator(s), including but not limited to the final award.
Section 12. Captions and Paragraph Headings. Captions and paragraph
headings used herein are for convenience only and are not a part of this
Separation Agreement and shall not be used in construing it.
Section 13. Acknowledgment of Obligation to Tender Back Consideration.
The Employee acknowledges and agrees that if he ever attempts to bring a claim
against the Releasees under state or federal law for discrimination or for
wrongful termination, including but not limited to a claim under Title VII of
the Civil Rights Act of 1964 and/or the Americans with Disabilities Act, which
claims were released by him by virtue of Section 2(a) of this Separation
Agreement, regardless of whether this Separation Agreement or the release and
covenant not to sue are valid or enforceable with respect to
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<PAGE> 7
those claims, he will first pay to the Company all sums paid by it to him or on
his behalf under this Separation Agreement.
Section 14. No Release of Future Claims. Acsys IT, the Company and the
Employee understand and agree that, notwithstanding anything in this Separation
Agreement to the contrary, nothing in this Separation Agreement in any way
restricts the rights of Acsys IT, the Company and/or the Employee to bring a
claim or seek equitable relief against the other based on acts occurring
subsequent to the day and year first above written.
Section 15. Entire Agreement. Except as otherwise expressly provided
herein (including in the documents referred to herein), this Separation
Agreement constitutes the entire agreement between Acsys IT, the Company and
the Employee with respect to the subject matter hereof and supersedes all prior
arrangements or understandings with respect to the subject matter hereof,
written or oral. Nothing in this Separation Agreement expressed or implied is
intended to confer upon any person, other than Acsys IT, the Company or the
Employee or their respective successors, any rights, remedies, obligations or
liabilities under or by any reason of this Agreement.
Section 16. Termination of Employment Agreement; Continuation of
Joinder Agreement, Indemnification and Shareholder and Restrictive Covenant
Agreement and Absence of Other Agreements. The Employment Agreement is hereby
terminated in all respects. The Company and the Employee hereby represent and
warrant to the other that, except for this Separation Agreement, the Joinder
Agreement dated May 22, 1998, the Director's and Officer's Indemnification
Agreement between Employee and the Company and the Shareholder and Restrictive
Covenant Agreement executed contemporaneously herewith, there are no
agreements, arrangements or understandings, written or oral, between the
parties with respect to any subject matter whatsoever.
Section 17. Choice of Law. This Separation Agreement, and the rights
and obligations of the parties hereto, shall be governed and construed in
accordance with the laws of the State of Georgia.
Section 18. Negotiated Agreement. The Separation Agreement was
negotiated between the parties hereto, and the fact that one party or the other
drafted this Separation Agreement shall not be used in its interpretation.
Section 19. References. The Company shall provide the Employee, upon
the request of the Employee, with a neutral reference letter in accordance with
the Company's policy which will contain a factual recitation of Employee's
dates of employment, positions held and similar factual information. This
reference letter will contain no negative evaluation information as to the
Employee's job performance or job history.
Section 20. Legal Fees and Expenses. The Company agrees to reimburse
the Employee, Steven M. Sutton and Robert M. Kwatnez $5,000 for a portion of
the fees and
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<PAGE> 8
expenses of their legal counsel Morris Manning & Martin, LLP incurred in
connection with their separation from employment with Acsys IT.
Section 21. Notices. Except as otherwise provided herein, all notices,
requests and other communications hereunder must be in writing and will be
deemed to have been duly given only if delivered personally or by facsimile
transmission or mailed (first class postage prepaid) to the parties at the
following addresses or facsimile numbers:
If to Sutton, to:
Steven M. Sutton
1905 Denton Walk Court
Marietta, GA 30062
Telephone: (770) 650-5717
with a copy to:
David M. Calhoun, Esq.
Morris, Manning & Martin L.L.P.
1600 Atlanta Financial Center
3343 Peachtree Road, N.E.
Atlanta, GA 30326-1044
Telephone: (404) 504-7613
Facsimile: (404) 365-9532
If to the Company, to:
Brady W. Mullinax, Jr.
Acsys, Inc.
75 14th Street
Suite 2200
Atlanta, Georgia 30309
Telephone: (404) 817-9440
Facsimile: (404) 815-4703
with a copy to:
Bryan E. Davis, Esq.
Alston & Bird LLP
One Atlantic Center
1201 West Peachtree Street
Atlanta, Georgia 39309-3424
Telephone: (404) 881-7000
Facsimile (404) 881-7777
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<PAGE> 9
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section, be deemed given upon
delivery, and (ii) if delivered by facsimile transmission to the facsimile
number as provided in this Section, be deemed given upon receipt (confirmation
of delivery by the sender's facsimile machine shall be deemed sufficient
evidence of the recipient's receipt). Any party from time to time may change
its address, facsimile number or other information for the purpose of notices
to that party by giving notice specifying such change to the other parties
hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Separation
Agreement to be duly executed as of the day and year first above written.
ACSYS IT, INC.
By: /s/ Brady W. Mullinax, Jr.
------------------------------------------
Its: Executive Vice President
ACSYS, INC.
By: /s/ Brady W. Mullinax, Jr.
------------------------------------------
Its: Chief Financial Officer
THE EMPLOYEE
/s/ Steven M. Sutton
---------------------------------------------
Steven M. Sutton
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<PAGE> 1
EXHIBIT 10.8
SHAREHOLDER AND RESTRICTIVE COVENANT AGREEMENT
This Shareholder and Restrictive Covenant Agreement (the "Agreement")
is entered into as of the 1st day of December, 1999, by and between Acsys,
Inc., (hereinafter the "Company"), and Steven M. Sutton (hereinafter "Sutton").
WHEREAS, Sutton has previously been employed as Group Director,
Operations Development of Acsys IT, Inc. (hereinafter "Acsys IT), a wholly
owned subsidiary of the Company; and
WHEREAS, Sutton, the Company and Acsys IT have mutually agreed to
Sutton's resignation from his employment with Acsys IT; and
WHEREAS, by virtue of his service as an employee of Acsys IT, Sutton
has comprehensive knowledge of Acsys IT's and the Company's business, business
relationships and financial affairs, including confidential and trade secret
information regarding their business and marketing plans, sales, costs,
profits, pricing methods, future business strategies and future business
opportunities; and
WHEREAS, Sutton acknowledges that maintenance of the confidentiality
of Acsys IT's and the Company's proprietary business information and trade
secrets is vital to the business well-being of Acsys IT and the Company; and
WHEREAS, Sutton acknowledges that the continuing relationships between
Acsys IT and its customers and employees are vital to the business well-being
of Acsys IT and the Company; and
WHEREAS, Sutton continues to own the number of shares of Common Stock
of the Company (sometimes referred to herein as "Company Common Stock") as set
forth on Schedule I hereto; and
WHEREAS, Sutton and the Company desire to establish in the Agreement
certain terms and conditions concerning the acquisition and disposition of
securities of the Company by Sutton, corporate governance of the Company after
the date hereof, and protection of the Company's and Acsys IT's legitimate
business interests, confidential and trade secret information, and
relationships with their customers and employees;
NOW, THEREFORE, in consideration of the premises and the mutual
promises herein contained, and for other good and valuable consideration the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
<PAGE> 2
ARTICLE I.
DEFINITIONS
1.01. Definitions. Except as otherwise specifically indicated, the
following terms have the following meanings for all purposes of this Agreement:
"beneficially owns" (or comparable variations thereof) has the meaning
set forth in Rule 13d-3 promulgated under the Exchange Act.
"Board of Directors" means the Board of Directors of the Company.
"Change in Control" means an event as a result of which: (i) any
"person" (as such term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934 (the "Exchange Act")), is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act, except that a person
shall be deemed to have "beneficial ownership" of all securities that such
person has the right to acquire, whether such right is exercisable immediately
or only after the passage of time), directly or indirectly, of more than 50% of
the total voting power of the voting stock of the Company; (ii) the Company
consolidates with, or merges with or into another corporation or sells,
assigns, conveys, transfers, leases or otherwise disposes of all or
substantially all of its assets (or substantially all of the assets of, or of
the Company's interest in, the Company) to any person or any corporation
consolidates with, or merges with or into, the Company, in any such event
pursuant to a transaction in which the outstanding voting stock of the Company
is changed into or exchanged for cash, securities or other property, other than
any such transaction where (A) the outstanding voting stock of the Company is
changed into or exchanged for (x) voting stock of the surviving or transferee
corporation or (y) cash, securities (whether or not including voting stock) or
other property, and (B) the holders of the voting stock of the Company
immediately prior to such transaction own, directly or indirectly, not less
than 50% of the voting power of the voting stock of the surviving corporation
immediately after such transaction; or (iii) individuals who at the date hereof
constitute the Board of the Company (together with any new directors whose
election by such Board or whose nomination for election by the stockholders of
the Company was approved by a vote of 66-2/3% of the directors then still in
office who were directors at the date hereof or whose election or nomination
for election was previously so approved) ceased for any reason to constitute a
majority of the Board of the Company then in office; or (iv) the Company is
liquidated or dissolved or adopts a plan of liquidation.
"Confidential Information" means all information regarding Acsys IT
and the Company, their activities, business and clients that is not generally
known to persons not employed by them and that is not generally disclosed by
their practice or authority to persons not employed by them, but that does not
rise to the level of a "Trade Secret." "Confidential Information" shall
include, but is not limited to, information pertaining to Acsys IT's and/or the
Company's sales and marketing techniques and plans, expansion or contraction
plans, financial data and plans, acquisition plans, management plans, pricing
information, and client information. "Confidential Information" shall not
include information that has become generally available to the public by any
person other than
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<PAGE> 3
Sutton or his affiliates. This definition shall not limit any definition of
"Confidential Information" or any equivalent term under state or federal law.
"Equity Securities" means Voting Securities, Convertible Securities
and Rights to Purchase Voting Securities.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
"Liens" means any lien, claim, mortgage, encumbrance, pledge, security
interest, equity or charge of any kind.
"Person" means any individual, corporation, partnership, trust, other
entity or group (within the meaning of Section 13(d)(3) of the Exchange Act).
"Representatives" of any entity means such entity's directors,
officers, employees, legal, investment banking and financial advisors,
accountants and any other agents and representatives of such entity.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"Subsidiary" means any Person in which-the Company directly or
indirectly through Subsidiaries or otherwise, beneficially owns more than fifty
percent (50%) of either the equity interest in, or the Voting Power of, such
Person.
"Trade Secrets" shall have the meaning assigned thereto by the Georgia
Trade Secrets Act, OCGA ss.10-1-761.
"Voting Securities" means the Company Common Stock and any other
securities of the Company of any kind or class having power generally to vote
for the election of directors; "Convertible Securities" means securities of the
Company which are convertible or exchangeable (whether presently convertible or
exchangeable or not) into Voting Securities; and "Rights to Purchase Voting
Securities" means options and rights issued by the Company (whether presently
exercisable or not) to purchase Voting Securities or Convertible Voting
Securities.
Unless the context of this Agreement otherwise requires, words of any
gender include each other gender; (ii) words using the singular or plural
number also include the plural or singular number, respectively; (iii) the
terms "hereof," "herein," "hereby" and derivative or similar words refer to
this entire Agreement; and (iv) the terms "Article" or "Section" refer to the
specified Article or Section of this Agreement. Whenever this Agreement refers
to a number of days, such number shall refer to calendar days unless business
days are specified.
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<PAGE> 4
ARTICLE II.
PAYMENTS TO SUTTON BY THE COMPANY
2.01. Consideration for Sutton's Post-Employment Covenants. In
consideration for Sutton's promises set forth herein and specifically Sutton's
covenants set forth in Articles III, IV and V below, the Company shall pay to
Sutton the total sum of $245,555.33, such payment to be made by issuing one
payment to Sutton in the amount of $110,499.90 on January 4, 2000 and the
balance in eleven (11) equal installments according to the following schedule:
December 2, 1999 $12,277.77
December 31, 1999 $12,277.77
January 31, 2000 $12,277.77
February 29, 2000 $12,277.77
March 31, 2000 $12,277.77
April 30, 2000 $12,277.77
May 31, 2000 $12,277.77
June 30, 2000 $12,277.77
July 30, 2000 $12,277.77
August 31, 2000 $12,277.77
September 30, 2000 $12,277.77
Such payments are in addition to amounts payable pursuant to the Separation and
Release Agreement dated of even date herewith between the Company, Acsys IT and
Sutton (the "Separation and Release Agreement"). In the event of a Change of
Control, the schedule of payments shall be accelerated and all sums outstanding
shall be immediately due and payable upon the effective date of the Change of
Control. Further, in the event that (i) the Company fails to make any payment
required to be made hereunder on or before the date such payment is due and
payable as set forth above (a "Payment Default") and (ii) the Company does not
cure such Payment Default on or before the later of ten (10) days after the
date such payment is due or five days after Sutton's delivery of written notice
of Payment Default in accordance with Section 6.03 herein (hereinafter, a "Cure
Period"), the schedule of payments shall be accelerated and all amounts
outstanding hereunder (whether or not then due and payable) shall be
immediately due and payable. Notwithstanding the foregoing, the Company shall
be entitled to an aggregate of only three Cure Periods with respect to Payment
Defaults under this Agreement and under the Separation and Release Agreement.
Accordingly, in the event that the Company fails to make any payment required
to be made hereunder, or under the Separation and Release Agreement, on or
before the date such payment is due and payable as set forth above and in the
Separation and Release Agreement and the Company has utilized an aggregate of
three Cure Periods for previous Payment Defaults, the schedule of payments
shall be accelerated and all amounts outstanding hereunder (whether or not then
due and payable) shall be immediately due and payable.
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<PAGE> 5
Sutton acknowledges and agrees that his receipt of the foregoing described
payments is expressly made contingent upon Sutton's promises and covenants as
set forth in Articles III, IV and V below and agrees that, in the event Sutton
materially breaches any of the provisions of Articles III, IV and V, Sutton's
entitlement to further payments will immediately cease.
ARTICLE III.
SUTTON'S COVENANTS TO THE COMPANY
REGARDING EQUITY SECURITIES OF THE COMPANY
3.01. In consideration for the promises and covenants of the Company
and Acsys IT herein, Sutton agrees as follows:
3.02. Board of Directors. Until September 30, 2000, Sutton shall vote
the Voting Securities beneficially owned by him (as defined by Rule 13d-3) with
respect to which he has voting control (A) for the nominees for director of the
Company recommended by the Board of Directors, and (B) on all other proposals
of the Board of Directors or of any other shareholder of the Company, as Sutton
determines in his sole discretion, except that Sutton shall vote in accordance
with the recommendation of the Board of Directors where such proposal(s) by any
other shareholder of the Company relate to matters affecting the Company's
Shareholder Protection Rights Agreement dated as of June 20, 1999 between the
Company and Sun Trust Bank, Atlanta, as rights agent or where such proposal(s)
affect or amend the Company's Charter or By-Laws.
3.02(I) Grant of Proxy. SUTTON HEREBY APPOINTS THE COMPANY AND ANY
DESIGNEE OF THE COMPANY, EACH OF THEM INDIVIDUALLY, SHAREHOLDER'S PROXY AND
ATTORNEY-IN-FACT PURSUANT TO THE PROVISIONS OF SECTION 14-2-722 OF THE GEORGIA
BUSINESS CORPORATION CODE, OR ANY SUCCESSOR PROVISION THEREOF, WITH FULL POWER
OF SUBSTITUTION AND RESUBSTITUTION, TO VOTE OR ACT BY WRITTEN CONSENT WITH
RESPECT TO SUTTON'S SUBJECT VOTING SECURITIES IN CONNECTION WITH THE MATTER
DESCRIBED IN SECTION 3.02(A) ABOVE IN ACCORDANCE WITH THE TERMS OF SECTION
3.02(A). THIS PROXY IS GIVEN TO SECURE THE PERFORMANCE OF THE DUTIES OF SUTTON
UNDER THIS AGREEMENT. SUTTON AFFIRMS THAT THIS PROXY IS COUPLED WITH AN
INTEREST AND SHALL BE IRREVOCABLE, BUT SHALL EXPIRE AT 11:59 P.M., ATLANTA
TIME, ON SEPTEMBER 30, 2000. SUTTON SHALL TAKE SUCH FURTHER ACTION OR EXECUTE
SUCH OTHER INSTRUMENTS AS MAY BE NECESSARY TO EFFECTUATE THE INTENT OF THIS
PROXY.
3.02(II) Other Proxies Revoked. Sutton represents that any proxies
heretofore given in respect of Sutton's Voting Securities are not irrevocable,
and that all such proxies are hereby revoked.
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<PAGE> 6
3.03. Limitation on Acquisition of Equity Securities. Until December
31, 2000, Sutton shall not, directly or indirectly, purchase or acquire, or
make any offer to or agree to purchase or acquire, beneficial ownership of any
Equity Securities, except by way of stock dividends, stock splits or other
distributions or offerings made available to holders of Equity Securities
generally and other than by exercise of outstanding Convertible Securities or
Rights to Purchase Voting Securities.
3.04. Standstill. Until September 30, 2000, Sutton shall not, and
shall not assist others (including by providing financing) to, directly or
indirectly (i) acquire or agree, offer, seek or propose (whether publicly or
otherwise) to acquire ownership (including but not limited to beneficial
ownership) of any portion of the assets or Equity Securities of the Company or
any of its Subsidiaries, whether by means of a negotiated purchase of assets,
tender or exchange offer, merger or other business combination,
recapitalization, restructuring or other extraordinary transaction, (ii) engage
in any "solicitation" of "proxies" (as such terms are used in the proxy rules
promulgated under the Exchange Act, but disregarding clause (iv) of Rule
14a-1(l)(2) and including any exempt solicitation pursuant to Rule
14a-2(b)(2)), or form, join or in any way participate in a "group" (as defined
under the Exchange Act), with respect to any Equity Securities in connection
with the types of activities set forth in (i) or (ii) above ), (iii) otherwise
seek or propose to acquire control of the Board of Directors, or to disrupt or
impair the normal, ongoing business operations or policies of the Company, (iv)
take any action that could reasonably be expected to force the Company to make
a public announcement regarding any of the types of matters referred to in
clause (i), (ii) or (iii) above, or (v) enter into any negotiations, agreements
or arrangements with any third party with respect to any of the foregoing. So
long as Sutton is in compliance with the foregoing, nothing in this Agreement
shall prohibit Sutton from, or in any way restrict his ability to, sell,
transfer, pledge or otherwise assign any or all of his Equity Securities in the
Company, whether in market transactions, private sales or otherwise.
ARTICLE IV.
SUTTON'S RESTRICTIVE COVENANTS
4.01. In consideration for the promises and covenants of the Company
and Acsys IT herein, Sutton further agrees as follows:
4.02. SAP Noncompete. For a period of one year following the date
hereof, Sutton shall not, without the Company's prior written permission,
directly or indirectly, on his own behalf or on behalf of any other person or
entity, within the SAP Territory, be engaged as a manager, executive,
operational consultant or equity owner in the business of providing consulting
or contract staffing services for any product currently manufactured by SAP AG
or its subsidiaries that are available for general release (excluding products
in alpha or beta stage) and with respect to which the Company or its
subsidiaries currently provide services and support, including, but not by way
of limitation, SAP's products known as ERP, New Dimension, and mySAP.com
products
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<PAGE> 7
(hereinafter the "SAP Services"); provided, however, that nothing in this
Section 4.02 shall prohibit Sutton from providing consulting or contract
staffing services for products not offered by SAP AG as of the date hereof, but
which are subsequently introduced or acquired by SAP AG. As used herein the
term "SAP Territory" shall mean within a fifty (50) mile radius surrounding the
following offices of the Company:
2200 North Central Avenue
Suite 300
Phoenix, AZ 85004
3160 Crow Canyon Road
Suite 230
San Ramon, CA 94583
1700 Broadway
Suite 700
Denver, CO 80290
1300 Market Street
Suite 501
Wilmington, DE 19801
1020 19th Street, N.W.
Suite 650
Washington, D.C. 20036
1020 19th Street North West
Suite 650
Washington, DC 20036
610 Crescent Executive Park
Suite 132
Lake Mary, FL 32746
390 North Orange Avenue
Suite 1825
Orlando, FL 32801
100 North Tampa Street
Suite 1950
Tampa, FL 33602
5 Concourse Parkway
Suite 2650
Atlanta, GA 30326
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<PAGE> 8
75 Fourteenth Street
Suite 2200
Atlanta, GA 30309
2400 Lakeview Parkway
Suite 500
Alpharetta, GA 30004
1001 Office Park Road
Suite 320
West Des Moines, IA 50265
2464 East Euclid
Des Moines, IA 50317
4220 Shawnee Mission Parkway
Suite 101B
Fairway, KS 66205
6701 Democracy Boulevard
Suite 400
Bethesda, MD 20817
5522 M.E. Antioch Rd.
Kansas City, MO 64119
1820 Chapel Avenue
Suite 168
Cherry Hill, NJ 08002
379 Thornall Street
Edison, NJ 08837
102 Campus Drive
Princeton, NJ 08540
110 South Jefferson Road
Whippany, NJ 07981
425 Broadhollow Road
Suite 318
Melville, NY 11747
780 Third Avenue
New York, NY 10017
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301 South College Street
Charlotte, NC 28202
1850 Linglestown Rd.
Suite 307
Harrisburg, PA 1711
1850 William Penn Way
Suite 106
Lancaster, PA 17601
1700 Market Street
Suite 3110
Philadelphia, PA 19103
500 East Swedesford Road
Suite 100
Wayne, PA 19087
12655 North Central Expressway
Suite 310
Dallas, TX 75243
714 Jackson Street
Suite 715
Dallas, TX 75202
512 Main Street
Suite 401
Forth Worth, TX 76102
5601 Bridge Street
Suite 408
Forth Worth, TX 76112
4544 Post Oak Place
Suite 375
Houston, TX 77027
800 West Airport Freeway
Suite 712
Irving, TX 75062
222 West Las Calinas Blvd.
Suite E 1050
Irving, TX 75039
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7411 John Smith Drive
Suite 110
San Antonio, TX 78229
1340 Braddock Place
Suite 201
Alexandria, VA 22314
8300 Greensboro Drive
Suite 720
McLean, VA 22102
12110 Sunset Hills Road
Reston, VA 20190
7100 Forest Avenue
Suite 101
Richmond, VA 23226
4.03. Information Technology Noncompete. For a period of one year from
the date hereof, Sutton shall not, without the Company's prior written
permission, directly or indirectly, on his own behalf or on behalf of any other
person or entity, be engaged within the IT Territory as a manager, executive,
operational consultant or equity owner in the business of offering (i)
short-term or long-term outsourcing of information technology staffing
services, (ii) temporary information technology contract staffing services; or
(iii) permanent placement information technology staffing services on a
contingent fee basis (hereinafter the "IT Services"). As used herein, the term
"IT Territory" shall mean within a fifty (50) mile radius of the following
office of the Company where Sutton worked during the last twelve (12) months of
his employment:
2400 Lakeview Parkway
Suite 500
Alpharetta, GA 30004
Nothing in this Agreement shall prohibit Sutton from providing IT
Services to any customer that is headquartered or has offices inside the IT
Territory, provided that the services are for locations outside the IT
Territory, whether or not the customer is a current customer of the Company or
Acsys IT, and provided that such IT Services shall not encompass SAP Services
in violation of Section 4.02 herein and provided that Sutton does not solicit
the customer in violation of Section 4.06 herein.
Sutton shall not be prohibited from merely maintaining one or more
offices in the IT Territory or the SAP Territory, so long as Sutton otherwise
complies with the provisions of this Section and Section 4.02 herein. Sutton
agrees, however, that for a period of one year from the date hereof, Sutton
shall not, without the Company's prior
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<PAGE> 11
written permission, maintain an office for purposes of offering IT Services,
either on his own behalf or on behalf of a business entity in which he together
with Steven M. Sutton and/or Robert M. Kwatnez owns a majority interest, within
a fifty (50) mile radius of the following offices of the Company which Sutton
acknowledges offered IT Services during the last six (6) months of Sutton's
employment by Acsys IT under Sutton's oversight as Group Director, Operations
Development:
610 Crescent Executive Park
Suite 132
Lake Mary, FL 32746
1700 Market Street
Suite 3110
Philadelphia, PA 19103
222 West Las Calinas Blvd.
Suite E1050
Irving, TX 75039
4.04. Non-Disclosure. For a period of one year from the date hereof,
Sutton shall not, without the Company's prior written permission, directly or
indirectly, on his own behalf or on behalf of any other persons or entity,
transmit or disclose any Confidential Information of Acsys IT or the Company to
any person and shall not make use of any Confidential Information, for himself
or others, except to the extent required by any law or order, in which case
Sutton shall provide the Company prior written notice of such requirement and
an opportunity to contest same. Trade Secrets of the Company and Acsys IT shall
continue to be protected from disclosure or use so long as they remain Trade
Secrets.
4.05. Nonsolicitation of Employees. For a period of one year from the
date hereof, Sutton shall not, without the Company's prior written permission,
directly or indirectly, through one or more intermediaries or otherwise, on his
own behalf or on behalf of any other person or entity, solicit to employ any
person who is an employee or consultant of Acsys IT or the Company as of the
date hereof who was engaged within the twelve (12) months preceding the date
hereof in the provision of SAP Services or IT Services on behalf of Acsys IT or
the Company. The foregoing provision shall apply only to those employees who
are full time employees of the Company or Acsys IT entitled to health insurance
and other employee benefits provided by the Company to its employees,
generally, and to certain salaried "benchable" consultants. It is understood
and agreed that this Section shall not prohibit Sutton from engaging in
discussions with, or hiring, any such employee or consultant of the Company or
Acsys IT who first initiates contact with Sutton for purposes of seeking
employment, so long as there has been no prior solicitation of the employee or
consultant by Sutton, directly or indirectly, through one or more
intermediaries or otherwise.
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<PAGE> 12
4.06. Nonsolicitation of Customers. For a period of one year after the
date hereof, Sutton shall not, without the Company's prior written permission,
directly or indirectly, through one or more intermediaries or otherwise, on his
own behalf or on behalf of any other person or entity, solicit Customers of
Acsys IT and/or the Company to induce or encourage them to acquire or obtain
from anyone other than Acsys IT and/or the Company, SAP Services within the SAP
Territory or IT Services within the IT Territory. Nothing herein shall prohibit
Sutton from soliciting Customers of Acsys IT and/or the Company for providing
SAP Services outside the SAP Territory or IT Services outside the IT Territory
even if such Customer is headquartered or has offices within the SAP Territory
or the IT Territory, as the case may be. For purposes of this Section,
"Customer" refers to any person or group of persons with whom Sutton had direct
material contact(s) within the six (6) months preceding the date hereof with
regard to selling, delivery or support of SAP Services within the SAP Territory
or IT Services within the IT Territory on behalf of Acsys IT and/or the
Company.
ARTICLE V.
CRM PRODUCTS
5.01 In consideration for the promises and covenants of the
Company and Acsys IT herein, Sutton further agrees as follows:
5.02 For a period of one year from the date hereof, Sutton
agrees that if he individually or together with Robert D. Bailey and/or Robert
M. Kwatnez owns a majority interest in a business enterprise offering staffing
support services for Siebel, Inc.'s current products known as CRM Products,
Sutton and such business enterprise shall provide the Company notice of any job
orders received by Sutton or his business enterprise for support of Siebel's
CRM Products (hereinafter "Notice of Job Order"). Any such Notice of Job Order
shall be addressed to the attention of Brad Elster and communicated by
facsimile to facsimile number 678-393-2101 or by email to the following
address: [email protected]. The Notice of Job Order will include a
description of the job, the skills required, availability requirements and
maximum rate that may be charged for the job by the Company. The Company will
have until 3:00 p.m. Atlanta time the following business day or eight (8)
business hours following delivery of a Notice of Job Order, whichever is
greater, within which to respond by submitting to Sutton and/or his business
enterprise candidate resumes to provide staffing for the job order. Business
hours shall be from 9:00 a.m. to 5:00 p.m., Atlanta time, on each business day.
Candidate resumes received within the time set forth above shall be submitted
by Sutton and/or his business enterprise to the customer requesting support of
Seibel's CRM Products, provided that Sutton or his business enterprise
reasonably deems the candidate(s) to be qualified to fill the position based
upon all reasonable factors, including the job description, the candidate's
skills, experience, availability and billing rate. Sutton agrees that if the
Company submits at least two qualified candidates within the time set forth
above pursuant to a Notice of Job Order, Sutton and/or his business enterprise
will refrain from submitting any candidate resumes from any other third party
recruiting firms. Sutton and/or his business enterprise may submit candidates
identified
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<PAGE> 13
by Sutton and/or his enterprise and who are not represented in the transaction
by any other third party recruiting firms. If the Company fails to submit at
least two qualified candidates within the time set forth herein, or the
customer does not select any of the candidates submitted by the Company, Sutton
and/or his business enterprise may attempt to fill the job order from any other
source, including any other third party recruiting firm.
ARTICLE VI
GENERAL PROVISIONS
6.01. Ownership of Company Shares. Sutton represents and warrants to
the Company that (i) he owns, beneficially and of record, as of the date
hereof, the number of shares of Company Common Stock listed on Schedule I
hereto (collectively, the "Company Shares"), subject to no rights of others and
free and clear of all Liens; (ii) Sutton's right to vote the Company Shares
beneficially owned by Sutton is not subject to any voting trust, voting
agreement, voting arrangement or proxy; and (iii) Sutton has not entered into
any contract, option or other arrangement or undertaking with respect thereto.
So long as Sutton is in compliance with Section 3.04 above, nothing herein
shall in any way restrict Sutton's right to transfer, assign, pledge, sell or
otherwise dispose of any of his Company Shares.
6.02. Amendment and Waiver
(a) This Agreement may be amended, supplemented or modified
only by a written instrument duly executed by or on behalf of each party
hereto.
(b) Any term or condition of this Agreement may be waived at
any time by the party that is entitled to the benefit thereof, but no such
waiver shall be effective unless set forth in a written instrument duly
executed by or on behalf of the party waiving such term or condition. No waiver
by any party of any term or condition of this Agreement, in any one or more
instances, shall be deemed to be or construed as a waiver of the same or any
other term or condition of this Agreement on any future occasion. All remedies,
either under this Agreement or by law or otherwise afforded, will be cumulative
and not alternative.
6.03. Notices. Except as otherwise provided herein, all notices,
requests and other communications hereunder must be in writing and will be
deemed to have been duly given only if delivered personally or by facsimile
transmission to the parties at the following addresses or facsimile numbers:
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<PAGE> 14
If to Sutton, to:
Steven M. Sutton
1905 Denton Walk Court
Marietta, GA 30062
Telephone: (770) 650-5717
with a copy to:
David M. Calhoun, Esq.
Morris, Manning & Martin L.L.P.
1600 Atlanta Financial Center
3343 Peachtree Road, N.E.
Atlanta, GA 30326-1044
Telephone: (404) 504-7613
Facsimile: (404) 365-9532
If to the Company, to:
Brady W. Mullinax, Jr.
Acsys, Inc.
75 14th Street
Suite 2200
Atlanta, GA 30309
Telephone: (404) 817-9440
Facsimile: (404) 815-4703
with a copy to:
Bryan E. Davis, Esq.
Alston & Bird LLP
One Atlantic Center
1201 West Peachtree Street
Atlanta, GA 39309-3424
Telephone: (404) 881-7000
Facsimile (404) 881-7777
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section, be deemed given upon
delivery, and (ii) if delivered by facsimile transmission to the facsimile
number as provided in this Section, be deemed given upon receipt (confirmation
of delivery by the sender's facsimile machine shall be deemed sufficient
evidence of the recipient's receipt). Any party from time to time may change
its address, facsimile number or other information for the purpose of notices
to that party by giving notice specifying such change to the other parties
hereto.
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<PAGE> 15
6.04. Entire Agreement. This Agreement supersedes all prior
discussions and agreements among the parties hereto with respect to the subject
matter hereof, and contains the sole and entire agreement among the parties
hereto with respect to the subject matter hereof, except that the Separation
and Release Agreement dated of even date herewith between Sutton, the Company
and Acsys IT, the Joinder Agreement dated as of May 22, 1998 (as modified by
the Separation and Release Agreement), and the Director's and Officer's
Indemnification Agreement between Sutton and the Company shall remain in full
force and effect. shall remain in full force and effect.
6.05. Invalid Provisions. If any provision of this Agreement is held
to be illegal, invalid or unenforceable under any present or future law, and if
the rights or obligations of any party hereto under this Agreement will not be
materially and adversely affected thereby, (i) such provision will be fully
severable, (ii) this Agreement will be construed and enforced as if such
illegal, invalid or unenforceable provision had never comprised a part hereof
and (iii) the remaining provisions of this Agreement will remain in full force
and effect and will not be affected by the illegal, invalid or unenforceable
provision or by its severance herefrom.
6.06. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Georgia applicable to a contract
executed and performed in such State, without giving effect to the conflicts of
laws principles thereof.
6.07. Consent to Jurisdiction and Service of Process. Each party
hereby irrevocably submits to the jurisdiction of The United States District
Court for the Northern District of Georgia or any court of the State of Georgia
located in Cobb County and in any action, suit or proceeding arising in
connection with this Agreement, agrees that any such action, suit or proceeding
may be brought in such court (and waives any objection based on forum non
conveniens or any other objection to venue therein to the extent permitted by
law), provided, however, that such consent to jurisdiction is solely for the
purpose referred to in this Section and shall not be deemed to be a general
submission to the jurisdiction of said courts. Nothing herein shall affect the
right of any party to commence legal proceedings or otherwise proceed against
the other in any other jurisdiction.
6.08. Counterparts. This Agreement may be executed in any number of
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
6.09. Injunctive Relief. Sutton acknowledges that the covenants and
promises contained in this Agreement are a reasonable and necessary means of
protecting and preserving the Company's goodwill and interests in its
confidential information and trade secrets. Sutton agrees that any breach of
these covenants or promises will leave the Company with no adequate remedy at
law and will cause the Company to suffer irreparable damage and injury. Sutton
further agrees that any breach of these covenants and promises will entitle the
Company to injunctive relief in any court of competent jurisdiction without the
necessity of posting any bond. Such injunctive relief shall be in
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<PAGE> 16
addition to any damages which may be recoverable by the Company as a result of
any breach.
6.10. Successors and Assigns. This Agreement shall be binding upon,
inure to the benefit of and be enforceable by Sutton's personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees. This Agreement shall also be binding upon, inure to the
benefit of and be enforceable by any successor to Acsys IT and/or the Company
by reason of any merger, consolidation, dissolution, debt foreclosure or other
reorganization of the Company.
6.11. Knowing and Voluntary. Sutton acknowledges that he has reviewed
the terms and conditions of this Agreement, that he understands its terms, and
that he has executed this Agreement voluntarily and without any coercion, undue
influence, threat or intimidation of any kind whatsoever and that he has had
the benefit of counsel in negotiating and drafting this Agreement. Sutton
further acknowledges that the consideration he receives for this Agreement is
in addition to any amounts to which he was already entitled.
6.12. Captions and Paragraph Headings. Captions and paragraph headings
used herein are for convenience only and are not a part of this Agreement and
shall not be used in construing it.
6.13. Negotiated Agreement. This Agreement was negotiated between the
parties hereto, and the fact that one party or the other drafted this Agreement
shall not be used in its interpretation.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
ACSYS, INC.
Name: /s/ Brady W. Mullinax, Jr.
--------------------------
Title: Chief Financial Officer
--------------------------
/s/ Steven M. Sutton
---------------------------
Steven M. Sutton
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<PAGE> 17
SCHEDULE I
<TABLE>
<CAPTION>
SHARES NUMBER
- ------ ------
<S> <C>
Acsys Common Stock 705,090
</TABLE>
<PAGE> 1
EXHIBIT 10.9
SEPARATION AND RELEASE AGREEMENT
This Separation and Release Agreement (hereinafter the "Separation
Agreement") is entered into as of the 1st day of December, 1999, by and
between Acsys, Inc. (the "Company"), Acsys IT, Inc., a wholly owned subsidiary
of the Company ("Acsys IT"), and Robert D. Bailey (hereinafter the "Employee").
WHEREAS, the Employee has been employed by Acsys IT in the capacity of
Group Director, National Products pursuant to that Employment Agreement dated
March 31, 1998; and
WHEREAS, the Employee became a shareholder of the Company pursuant to
an Agreement and Plan of Merger, dated as of March 31, 1998 (the "Merger
Agreement"), by and among the Company, Icon Search & Consulting, Inc. ("Icon")
and the shareholders of Icon, including the Employee; and
WHEREAS, on May 22, 1998, the Employee executed a Registration Rights
Joinder Agreement (the "Joinder Agreement"), agreeing thereby to become a party
to an Amended and Restated Registration Rights Agreement, dated as of September
3, 1997 (the "Registration Rights Agreement') governing certain rights and
obligations of certain shareholders of the Company; and
WHEREAS, the Employee, Acsys IT and the Company have mutually agreed
to Employee's resignation from his employment with Acsys IT; and
WHEREAS, the Employee, Acsys IT and the Company have agreed to a
severance arrangement and certain limitations on the Employee's shareholder and
other rights pursuant to the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual
promises herein contained, the parties hereto agree as follows:
Section 1. Termination of Employment. The Employee, Acsys IT and the
Company agree that the Employee's employment with Acsys IT will be terminated
as of the day and year first above written (the "Separation Date"), that
Employee has voluntarily resigned from his employment and that the Employee has
been paid all wages and compensation due him through the Separation Date.
Section 2. Severance Pay. The Company shall make a total gross payment
to the Employee of $122,777.66 less withholding for taxes and other required
items, paid in eleven (11) equal installments according to the following
schedule:
<PAGE> 2
December 2, 1999 $11,161.60
December 31, 1999 $11,161.60
January 31, 2000 $11,161.60
February 29, 2000 $11,161.60
March 31, 2000 $11,161.60
April 30, 2000 $11,161.60
May 31, 2000 $11,161.60
June 30, 2000 $11,161.60
July 30, 2000 $11,161.60
August 31, 2000 $11,161.60
September 30, 2000 $11,161.60
Such payments shall be reported by the Company as W-2 income received by the
Employee and shall be in addition to amounts payable under the Shareholder and
Restrictive Covenant Agreement (the "Restrictive Covenant Agreement") dated of
even date herewith between the Company, Acsys IT and the Employee. In the event
of a Change of Control (as defined in the Restrictive Covenant Agreement), the
schedule of payments shall be accelerated and all amounts outstanding hereunder
(whether or not then due and payable) shall be immediately due and payable upon
the effective date of the Change of Control. Further, in the event that (i) the
Company fails to make any payment required to be made hereunder or under the
Restrictive Covenant Agreement on or before the date such payment is due and
payable as set forth above and in the Restrictive Covenant Agreement (a
"Payment Default") and (ii) the Company does not cure such Payment Default on
or before the later of ten (10) days after the date such payment is due or five
days after the Employee's delivery of written notice of Payment Default in
accordance with Section 21 herein (hereinafter, a "Cure Period"), the schedule
of payments shall be accelerated and all amounts outstanding hereunder (whether
or not then due and payable) shall be immediately due and payable.
Notwithstanding the foregoing, the Company shall be entitled to an aggregate of
only three Cure Periods with respect to Payment Defaults under this Agreement
and under the Restrictive Covenant Agreement. Accordingly, in the event that
the Company fails to make any payment required to be made hereunder or under
the Restrictive Covenant Agreement on or before the date such payment is due
and payable as set forth above and in the Restrictive Covenant Agreement and
the Company has utilized an aggregate of three Cure Periods for previous
Payment Defaults, the schedule of payments shall be accelerated and all amounts
outstanding hereunder (whether or not then due and payable) shall be
immediately due and payable.
The Employee agrees that this amount, together with the payments under
the Restrictive Covenant Agreement, is greater than any amount to which he
would be entitled by contract or law under his Employment Agreement or arising
out of his employment relationship and that it constitutes valuable and
sufficient consideration for the Employee's promises, covenants and releases
herein. Employee agrees that no further wages, commissions, backpay, attorneys
fees, severance pay or other employment benefits are due him from the Company
or its officers, directors, employees, affiliates, successors or assigns. The
Company acknowledges that Employee is entitled to
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<PAGE> 3
reimbursement of business expenses incurred by him prior to the date hereof and
that the Employee will be eligible for continuation of health insurance
coverage under COBRA.
Section 3. Mutual Releases.
(a). By Employee. In consideration for the severance benefits
described in Section 2 hereof and the promises and releases herein of Acsys IT
and Company, Employee for himself, his successors and assigns, now and forever,
hereby releases and discharges Acsys IT, the Company and their officers,
directors, stockholders, employees, agents, parent corporations, subsidiaries,
affiliates, successors, assigns and attorneys (the "Releasees"), from any and
all claims, legal or equitable actions, liability or litigation, real or
contemplated, known or unknown, that the Employee may now have or may later
claim to have had against any of the Releasees arising out of anything that has
occurred up to and through the date hereof, including without limitation, any
claims arising under the Joinder Agreement or Registration Rights Agreement or
by virtue of his status as a shareholder and/or director of the Company or
arising out of his employment or termination of employment with Acsys IT and/or
the Company; provided, however, that, the Employee does not release the
Releasees for any claims arising from any illegal acts, claims arising under
this Separation Agreement, or claims arising under the Restrictive Covenant
Agreement.
Subject to, but without limiting the foregoing, the Employee
hereby releases those claims that could have been asserted by him in connection
with the Employment Agreement or in connection with any claim or suit for
wrongful discharge or any claim under either state or federal employment or
discrimination laws including, without limitation Title VII of the Civil Rights
Act of 1964 and the Americans with Disabilities Act. The Employee acknowledges
that he may have sustained or may yet sustain damages, costs or expenses that
are presently unknown and that relate to claims between him and the Releasees
and he agrees that he is waiving all such claims. For the purpose of
implementing a full and complete release and discharge of the Releasees, the
Employee expressly acknowledges this Separation Agreement is intended to
include in its effect, without limitation, all claims that he does not know or
suspect to exist in his favor at the time he signs this Separation Agreement,
and that this Separation Agreement contemplates the extinguishment of any such
claim or claims which are released hereunder. The Employee shall forever
refrain and forbear from commencing, instituting or prosecuting any lawsuit,
action, claim or proceeding before or in any court, regulatory, governmental,
arbitral or other authority against the parties released hereby or naming or
joining such Releasees as parties to collect or enforce any claims or causes of
action which are released and discharged hereby. Employee hereby acknowledges
and agrees that he has knowingly relinquished, waived and forever released any
and all other remedies that might be available to him with respect to claims
released hereby, including without limitation, claims for back pay, front pay,
fringe benefits, contract and personal injury damages, punitive damages and
attorneys' fees or expenses of litigation.
The foregoing release and covenant not to sue is not, however,
intended to release or apply to, and shall not release or apply to, any rights
of the Employee (i) under
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<PAGE> 4
this Separation Agreement or to enforce any right, term or provision of this
Separation Agreement, (ii) to receive benefits under any Company or Acsys IT
insurance or other benefit plans that either have accrued or vested prior to
the date hereof or that are intended under such plans to survive an employee's
termination or separation from the Company and Acsys IT (including COBRA
coverage), (iii) now or in the future to be entitled to claim or receive
indemnification as an officer or director, or former officer or director, of
the Company or Acsys IT under any applicable state laws, the Company's or Acsys
IT's Articles of Incorporation or the Company's By-laws (which Articles of
Incorporation and Bylaws may not be amended to limit such indemnification), and
(iv) to claim or receive insurance coverage or to be defended under any
directors and officers insurance coverage which applies to or benefits
directors and/or officers of the Company and which applies to the Employee in
his capacity as a former officer or employee of Acsys IT.
Notwithstanding the foregoing, Employee does not waive his
future rights under the Joinder Agreement or the Registration Rights Agreement,
except that Employee also hereby unconditionally and irrevocably waives all of
his rights under Section 3 of the Joinder Agreement, which Section relates to
the Shelf Registration (as defined in the Joinder Agreement).
(b). By Acsys IT and the Company. In consideration for
Employee's promises and releases herein, Acsys IT and the Company, for
themselves, their subsidiaries, affiliates, parent corporations, successors and
assigns (the "Releasors"), now and forever, hereby release and discharge the
Employee from any and all claims, legal or equitable actions, liability or
litigation, real or contemplated, known or unknown, that they may now have or
may later claim to have had against the Employee arising out of anything that
has occurred up to and through the date hereof, including without limitation,
any claims arising out of his employment or termination of employment with
Acsys IT and/or the Company; provided, however, that Acsys IT and the Company
do not release or waive any claims arising from any illegal acts by Employee or
any claims against Acsys IT and/or the Company for any ultra vires acts by
Employee, which claims are expressly reserved. The Releasors acknowledge that
it or they may have sustained or may yet sustain damages, costs or expenses
that are presently unknown and that relate to claims between it and the
Employee which are nonetheless released hereby. For the purpose of implementing
a full and complete release and discharge of the Employee, the Releasors
expressly acknowledge this Separation Agreement is intended to include in its
effect, without limitation, all claims that they do not know or suspect to
exist in their favor at the time they sign this Separation Agreement, and that
this Separation Agreement contemplates the extinguishment of any such claim or
claims. The Releasors shall forever refrain and forbear from commencing,
instituting or prosecuting any lawsuit, action, claim or proceeding before or
in any court, regulatory, governmental, arbitral or other authority against the
Employee or naming or joining the Employee as a party to collect or enforce any
claims or causes of action which are released and discharged hereby. The
Releasors hereby acknowledge and agree that they have knowingly relinquished,
waived and forever released any and all other remedies that might be
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<PAGE> 5
available to them, including without limitation, claims for contract damages,
punitive damages and attorneys' fees or expenses of litigation.
Section 4. Company Property. Employee shall be permitted to retain as
his personal property the Dell Pentium 266 mhz computer and HP inkjet printer
previously furnished by the Company. Employee agrees that he will not retain or
destroy, and will return to Acsys IT and the Company, any and all other
property of Acsys IT and the Company in his possession or subject to his
control including, but not limited to, keys, credit and identification cards,
computers, client files and information, acquisition files and information,
contact information for targets, buyers and clients, all other files and
documents relating to the Company, its plans or its business, contracts,
personal items or equipment provided to him for his use, together with all
written or recorded materials, documents, computer discs, plans, records, notes
or other papers belonging to the Company. The Employee further agrees not to
make, distribute or retain any such information or property.
Section 5. Employee's Car Lease. Employee shall return to the Company
within thirty (30) days of the date hereof the automobile leased by the Company
on Employee's behalf by delivering same to the Company's office at the
following address:
Georgia 400 Center
Building One
2400 Lakeview Parkway
Suite 500
Alpharetta, GA 30004
Section 6. Press Release. Acsys IT, the Company and the Employee agree
that the fact of the Employee's separation from Acsys IT shall be formally
announced in a press release.
Section 7. Cooperation in Claims. With respect to any claim asserted
by or brought against Acsys IT and/or the Company in relation to their business
and/or against the Employee in his former capacity as employee, officer or
Director of the Company, the Employee, upon reasonable notice and at the
written request of the Chief Executive Officer of the Company, or his designee
agrees to make himself and any necessary records or documents in his possession
reasonably available to Acsys IT and the Company where reasonably necessary to
prosecute or defend any such claim, and will use his reasonable best efforts to
cooperate with Acsys IT and the Company in prosecuting or defending any such
claim, provided, however, that in any case where the Employee is required to
travel for any consultation or legal proceedings at the express written request
of the Chief Executive Officer of the Company (excluding any instance where the
Company and the Employee are on opposite sides of the litigation or are in any
other opposing position), the Employee shall be entitled to receive
reimbursement of reasonable travel costs reasonably expected to be incurred and
properly documented.
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<PAGE> 6
Section 8. Successors and Assigns. This Agreement shall be binding
upon, inure to the benefit of and be enforceable by the Employee's personal or
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. This Agreement shall also be binding upon,
inure to the benefit of and be enforceable by any successor to Acsys IT and/or
the Company by reason of any merger, consolidation, dissolution, debt
foreclosure or other reorganization of the Company.
Section 9. Severability. If any provision hereof is unenforceable,
such provision shall be fully severable, and this Separation Agreement shall be
construed and enforced as if such unenforceable provision had never comprised a
part hereof, the remaining provisions hereof shall remain in full force and
effect, and the court construing this Separation Agreement shall add as a part
hereof a provision as similar in terms and effect to such unenforceable
provision as may be enforceable, in lieu of the unenforceable provision.
Section 10. Knowing and Voluntary. The Employee acknowledges that he
has reviewed the terms and conditions of this Separation Agreement, that he
understands its terms, and that he has executed this Separation Agreement
voluntarily and without any coercion, undue influence, threat or intimidation
of any kind whatsoever. The Employee further acknowledges that a portion of the
consideration he receives for this Separation Agreement is in addition to any
amounts to which he was already entitled pursuant to the Employment Agreement
or otherwise.
Section 11. Arbitration. Any dispute between the parties pertaining to
this Separation Agreement shall be resolved through binding arbitration
conducted by the American Arbitration Association under the employment rules
then in effect. The parties agree that any arbitration proceeding shall be
conducted in Atlanta, Georgia and consent to exclusive jurisdiction and venue
there. The award of the arbitrator(s) shall be final and binding, and the
parties waive any right to appeal the arbitral award, to the extent that a
right to appeal may be lawfully waived. Each party retains the right to seek
judicial assistance (a) to compel arbitration, (b) to obtain injunctive relief
and interim measures of protection pending arbitration, and (c) to enforce any
decision of the arbitrator(s), including but not limited to the final award.
Section 12. Captions and Paragraph Headings. Captions and paragraph
headings used herein are for convenience only and are not a part of this
Separation Agreement and shall not be used in construing it.
Section 13. Acknowledgment of Obligation to Tender Back Consideration.
The Employee acknowledges and agrees that if he ever attempts to bring a claim
against the Releasees under state or federal law for discrimination or for
wrongful termination, including but not limited to a claim under Title VII of
the Civil Rights Act of 1964 and/or the Americans with Disabilities Act, which
claims were released by him by virtue of Section 2(a) of this Separation
Agreement, regardless of whether this Separation Agreement or the release and
covenant not to sue are valid or enforceable with respect to
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<PAGE> 7
those claims, he will first pay to the Company all sums paid by it to him or on
his behalf under this Separation Agreement.
Section 14. No Release of Future Claims. Acsys IT, the Company and the
Employee understand and agree that, notwithstanding anything in this Separation
Agreement to the contrary, nothing in this Separation Agreement in any way
restricts the rights of Acsys IT, the Company and/or the Employee to bring a
claim or seek equitable relief against the other based on acts occurring
subsequent to the day and year first above written.
Section 15. Entire Agreement. Except as otherwise expressly provided
herein (including in the documents referred to herein), this Separation
Agreement constitutes the entire agreement between Acsys IT, the Company and
the Employee with respect to the subject matter hereof and supersedes all prior
arrangements or understandings with respect to the subject matter hereof,
written or oral. Nothing in this Separation Agreement expressed or implied is
intended to confer upon any person, other than Acsys IT, the Company or the
Employee or their respective successors, any rights, remedies, obligations or
liabilities under or by any reason of this Agreement.
Section 16. Termination of Employment Agreement; Continuation of
Joinder Agreement, Indemnification Agreement and Shareholder and Restrictive
Covenant Agreement and Absence of Other Agreements. The Employment Agreement is
hereby terminated in all respects. The Company and the Employee hereby
represent and warrant to the other that, except for this Separation Agreement,
the Joinder Agreement dated May 22, 1998, the Director's and Officer's
Indemnification Agreement between Employee and the Company and the Shareholder
and Restrictive Covenant Agreement executed contemporaneously herewith, there
are no agreements, arrangements or understandings, written or oral, between the
parties with respect to any subject matter whatsoever.
Section 17. Choice of Law. This Separation Agreement, and the rights
and obligations of the parties hereto, shall be governed and construed in
accordance with the laws of the State of Georgia.
Section 18. Negotiated Agreement. The Separation Agreement was
negotiated between the parties hereto, and the fact that one party or the other
drafted this Separation Agreement shall not be used in its interpretation.
Section 19. References. The Company shall provide the Employee, upon
the request of the Employee, with a neutral reference letter in accordance with
the Company's policy which will contain a factual recitation of Employee's
dates of employment, positions held and similar factual information. This
reference letter will contain no negative evaluation information as to the
Employee's job performance or job history.
Section 20. Legal Fees and Expenses. The Company agrees to reimburse
the Employee, Steven M. Sutton and Robert M. Kwatnez $5,000 for a portion of
the fees and
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<PAGE> 8
expenses of their legal counsel Morris Manning & Martin, LLP incurred in
connection with their separation from employment with Acsys IT.
Section 21. Notices. Except as otherwise provided herein, all notices,
requests and other communications hereunder must be in writing and will be
deemed to have been duly given only if delivered personally or by facsimile
transmission or mailed (first class postage prepaid) to the parties at the
following addresses or facsimile numbers:
If to Bailey, to:
Robert D. Bailey
1180 Lake Shore Overlook
Alpharetta, GA 30005
Telephone: (770) 664-8213
Facsimile: 240-255-1192
with a copy to:
David M. Calhoun, Esq.
Morris, Manning & Martin L.L.P.
1600 Atlanta Financial Center
3343 Peachtree Road, N.E.
Atlanta, GA 30326-1044
Telephone: (404) 504-7613
Facsimile: (404) 365-9532
If to the Company, to:
Brady W. Mullinax, Jr.
Acsys, Inc.
75 14th Street
Suite 2200
Atlanta, Georgia 30309
Telephone: (404) 817-9440
Facsimile: (404) 815-4703
with a copy to:
Bryan E. Davis, Esq.
Alston & Bird LLP
One Atlantic Center
1201 West Peachtree Street
Atlanta, Georgia 39309-3424
Telephone: (404) 881-7000
Facsimile (404) 881-7777
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<PAGE> 9
ll such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section, be deemed given upon
delivery, and (ii) if delivered by facsimile transmission to the facsimile
number as provided in this Section, be deemed given upon receipt (confirmation
of delivery by the sender's facsimile machine shall be deemed sufficient
evidence of the recipient's receipt). Any party from time to time may change
its address, facsimile number or other information for the purpose of notices
to that party by giving notice specifying such change to the other parties
hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Separation
Agreement to be duly executed as of the day and year first above written.
ACSYS IT, INC.
By: /s/ Brady W. Mullinax, Jr.
--------------------------
Its: Executive Vice President
ACSYS, INC.
By: /s/ Brady W. Mullinax, Jr.
--------------------------
Its: Chief Financial Officer
THE EMPLOYEE
/s/ Robert D. Bailey
--------------------------
Robert D. Bailey
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<PAGE> 1
EXHIBIT 10.10
SHAREHOLDER AND RESTRICTIVE COVENANT AGREEMENT
This Shareholder and Restrictive Covenant Agreement (the "Agreement")
is entered into as of the 1st day of December, 1999, by and between Acsys,
Inc., (hereinafter the "Company"), and Robert D. Bailey (hereinafter "Bailey").
WHEREAS, Bailey has previously been employed as Group Director,
National Products of Acsys IT, Inc. (hereinafter "Acsys IT), a wholly owned
subsidiary of the Company; and
WHEREAS, Bailey, the Company and Acsys IT have mutually agreed to
Bailey's resignation from his employment with Acsys IT; and
WHEREAS, by virtue of his service as an employee of Acsys IT, Bailey
has comprehensive knowledge of Acsys IT's and the Company's business, business
relationships and financial affairs, including confidential and trade secret
information regarding their business and marketing plans, sales, costs,
profits, pricing methods, future business strategies and future business
opportunities; and
WHEREAS, Bailey acknowledges that maintenance of the confidentiality
of Acsys IT's and the Company's proprietary business information and trade
secrets is vital to the business well-being of Acsys IT and the Company; and
WHEREAS, Bailey acknowledges that the continuing relationships between
Acsys IT and its customers and employees are vital to the business well-being
of Acsys IT and the Company; and
WHEREAS, Bailey continues to own the number of shares of Common Stock
of the Company (sometimes referred to herein as "Company Common Stock") as set
forth on Schedule I hereto; and
WHEREAS, Bailey and the Company desire to establish in the Agreement
certain terms and conditions concerning the acquisition and disposition of
securities of the Company by Bailey, corporate governance of the Company after
the date hereof, and protection of the Company's and Acsys IT's legitimate
business interests, confidential and trade secret information, and
relationships with their customers and employees;
NOW, THEREFORE, in consideration of the premises and the mutual
promises herein contained, and for other good and valuable consideration the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
<PAGE> 2
ARTICLE I.
DEFINITIONS
1.01. Definitions. Except as otherwise specifically indicated, the
following terms have the following meanings for all purposes of this Agreement:
"beneficially owns" (or comparable variations thereof) has the meaning
set forth in Rule 13d-3 promulgated under the Exchange Act.
"Board of Directors" means the Board of Directors of the Company.
"Change in Control" means an event as a result of which: (i) any
"person" (as such term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934 (the "Exchange Act")), is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act, except that a person
shall be deemed to have "beneficial ownership" of all securities that such
person has the right to acquire, whether such right is exercisable immediately
or only after the passage of time), directly or indirectly, of more than 50% of
the total voting power of the voting stock of the Company; (ii) the Company
consolidates with, or merges with or into another corporation or sells,
assigns, conveys, transfers, leases or otherwise disposes of all or
substantially all of its assets (or substantially all of the assets of, or of
the Company's interest in, the Company) to any person or any corporation
consolidates with, or merges with or into, the Company, in any such event
pursuant to a transaction in which the outstanding voting stock of the Company
is changed into or exchanged for cash, securities or other property, other than
any such transaction where (A) the outstanding voting stock of the Company is
changed into or exchanged for (x) voting stock of the surviving or transferee
corporation or (y) cash, securities (whether or not including voting stock) or
other property, and (B) the holders of the voting stock of the Company
immediately prior to such transaction own, directly or indirectly, not less
than 50% of the voting power of the voting stock of the surviving corporation
immediately after such transaction; or (iii) individuals who at the date hereof
constitute the Board of the Company (together with any new directors whose
election by such Board or whose nomination for election by the stockholders of
the Company was approved by a vote of 66-2/3% of the directors then still in
office who were directors at the date hereof or whose election or nomination
for election was previously so approved) ceased for any reason to constitute a
majority of the Board of the Company then in office; or (iv) the Company is
liquidated or dissolved or adopts a plan of liquidation.
"Confidential Information" means all information regarding Acsys IT
and the Company, their activities, business and clients that is not generally
known to persons not employed by them and that is not generally disclosed by
their practice or authority to persons not employed by them, but that does not
rise to the level of a "Trade Secret." "Confidential Information" shall
include, but is not limited to, information pertaining to Acsys IT's and/or the
Company's sales and marketing techniques and plans, expansion or contraction
plans, financial data and plans, acquisition plans, management plans, pricing
information, and client information. "Confidential Information" shall not
include information that has become generally available to the public by any
person other than
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<PAGE> 3
Bailey or his affiliates. This definition shall not limit any definition of
"Confidential Information" or any equivalent term under state or federal law.
"Equity Securities" means Voting Securities, Convertible Securities
and Rights to Purchase Voting Securities.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
"Liens" means any lien, claim, mortgage, encumbrance, pledge, security
interest, equity or charge of any kind.
"Person" means any individual, corporation, partnership, trust, other
entity or group (within the meaning of Section 13(d)(3) of the Exchange Act).
"Representatives" of any entity means such entity's directors,
officers, employees, legal, investment banking and financial advisors,
accountants and any other agents and representatives of such entity.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"Subsidiary" means any Person in which-the Company directly or
indirectly through Subsidiaries or otherwise, beneficially owns more than fifty
percent (50%) of either the equity interest in, or the Voting Power of, such
Person.
"Trade Secrets" shall have the meaning assigned thereto by the Georgia
Trade Secrets Act, OCGA ss.10-1-761.
"Voting Securities" means the Company Common Stock and any other
securities of the Company of any kind or class having power generally to vote
for the election of directors; "Convertible Securities" means securities of the
Company which are convertible or exchangeable (whether presently convertible or
exchangeable or not) into Voting Securities; and "Rights to Purchase Voting
Securities" means options and rights issued by the Company (whether presently
exercisable or not) to purchase Voting Securities or Convertible Voting
Securities.
Unless the context of this Agreement otherwise requires, words of any
gender include each other gender; (ii) words using the singular or plural
number also include the plural or singular number, respectively; (iii) the
terms "hereof," "herein," "hereby" and derivative or similar words refer to
this entire Agreement; and (iv) the terms "Article" or "Section" refer to the
specified Article or Section of this Agreement. Whenever this Agreement refers
to a number of days, such number shall refer to calendar days unless business
days are specified.
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<PAGE> 4
ARTICLE II.
PAYMENTS TO BAILEY BY THE COMPANY
2.01. Consideration for Bailey's Post-Employment Covenants. In
consideration for Bailey's promises set forth herein and specifically Bailey's
covenants set forth in Articles III, IV and V below, the Company shall pay to
Bailey the total sum of $245,555.33, such payment to be made by issuing one
payment to Bailey in the amount of $110,499.90 on January 4, 2000 and the
balance in eleven (11) equal installments according to the following schedule:
December 2, 1999 $12,277.77
December 31, 1999 $12,277.77
January 31, 2000 $12,277.77
February 29, 2000 $12,277.77
March 31, 2000 $12,277.77
April 30, 2000 $12,277.77
May 31, 2000 $12,277.77
June 30, 2000 $12,277.77
July 30, 2000 $12,277.77
August 31, 2000 $12,277.77
September 30, 2000 $12,277.77
Such payments are in addition to amounts payable pursuant to the Separation and
Release Agreement dated of even date herewith between the Company, Acsys IT and
Bailey (the "Separation and Release Agreement"). In the event of a Change of
Control, the schedule of payments shall be accelerated and all sums outstanding
shall be immediately due and payable upon the effective date of the Change of
Control. Further, in the event that (i) the Company fails to make any payment
required to be made hereunder on or before the date such payment is due and
payable as set forth above (a "Payment Default") and (ii) the Company does not
cure such Payment Default on or before the later of ten (10) days after the
date such payment is due or five days after Bailey's delivery of written notice
of Payment Default in accordance with Section 6.03 herein (hereinafter, a "Cure
Period"), the schedule of payments shall be accelerated and all amounts
outstanding hereunder (whether or not then due and payable) shall be
immediately due and payable. Notwithstanding the foregoing, the Company shall
be entitled to an aggregate of only three Cure Periods with respect to Payment
Defaults under this Agreement and under the Separation and Release Agreement.
Accordingly, in the event that the Company fails to make any payment required
to be made hereunder, or under the Separation and Release Agreement, on or
before the date such payment is due and payable as set forth above and in the
Separation and Release Agreement and the Company has utilized an aggregate of
three Cure Periods for previous Payment Defaults, the schedule of payments
shall be accelerated and all amounts outstanding hereunder (whether or not then
due and payable) shall be immediately due and payable.
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<PAGE> 5
Bailey acknowledges and agrees that his receipt of the foregoing described
payments is expressly made contingent upon Bailey's promises and covenants as
set forth in Articles III, IV and V below and agrees that, in the event Bailey
materially breaches any of the provisions of Articles III, IV and V, Bailey's
entitlement to further payments will immediately cease.
ARTICLE III.
BAILEY'S COVENANTS TO THE COMPANY
REGARDING EQUITY SECURITIES OF THE COMPANY
3.01. In consideration for the promises and covenants of the Company
and Acsys IT herein, Bailey agrees as follows:
3.02. Board of Directors. Until September 30, 2000, Bailey shall vote
the Voting Securities beneficially owned by him (as defined by Rule 13d-3) with
respect to which he has voting control (A) for the nominees for director of the
Company recommended by the Board of Directors, and (B) on all other proposals
of the Board of Directors or of any other shareholder of the Company, as Bailey
determines in his sole discretion, except that Bailey shall vote in accordance
with the recommendation of the Board of Directors where such proposal(s) by any
other shareholder of the Company relate to matters affecting the Company's
Shareholder Protection Rights Agreement dated as of June 20, 1999 between the
Company and Sun Trust Bank, Atlanta, as rights agent or where such proposal(s)
affect or amend the Company's Charter or By-Laws.
3.02(I) Grant of Proxy. BAILEY HEREBY APPOINTS THE COMPANY AND ANY
DESIGNEE OF THE COMPANY, EACH OF THEM INDIVIDUALLY, SHAREHOLDER'S PROXY AND
ATTORNEY-IN-FACT PURSUANT TO THE PROVISIONS OF SECTION 14-2-722 OF THE GEORGIA
BUSINESS CORPORATION CODE, OR ANY SUCCESSOR PROVISION THEREOF, WITH FULL POWER
OF SUBSTITUTION AND RESUBSTITUTION, TO VOTE OR ACT BY WRITTEN CONSENT WITH
RESPECT TO BAILEY'S SUBJECT VOTING SECURITIES IN CONNECTION WITH THE MATTER
DESCRIBED IN SECTION 3.02(A) ABOVE IN ACCORDANCE WITH THE TERMS OF SECTION
3.02(A). THIS PROXY IS GIVEN TO SECURE THE PERFORMANCE OF THE DUTIES OF BAILEY
UNDER THIS AGREEMENT. BAILEY AFFIRMS THAT THIS PROXY IS COUPLED WITH AN
INTEREST AND SHALL BE IRREVOCABLE, BUT SHALL EXPIRE AT 11:59 P.M., ATLANTA
TIME, ON SEPTEMBER 30, 2000. BAILEY SHALL TAKE SUCH FURTHER ACTION OR EXECUTE
SUCH OTHER INSTRUMENTS AS MAY BE NECESSARY TO EFFECTUATE THE INTENT OF THIS
PROXY.
3.02(II) Other Proxies Revoked. Bailey represents that any proxies
heretofore given in respect of Bailey's Voting Securities are not irrevocable,
and that all such proxies are hereby revoked.
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<PAGE> 6
3.03. Limitation on Acquisition of Equity Securities. Until December
31, 2000, Bailey shall not, directly or indirectly, purchase or acquire, or
make any offer to or agree to purchase or acquire, beneficial ownership of any
Equity Securities, except by way of stock dividends, stock splits or other
distributions or offerings made available to holders of Equity Securities
generally and other than by exercise of outstanding Convertible Securities or
Rights to Purchase Voting Securities.
3.04. Standstill. Until September 30, 2000, Bailey shall not, and
shall not assist others (including by providing financing) to, directly or
indirectly (i) acquire or agree, offer, seek or propose (whether publicly or
otherwise) to acquire ownership (including but not limited to beneficial
ownership) of any portion of the assets or Equity Securities of the Company or
any of its Subsidiaries, whether by means of a negotiated purchase of assets,
tender or exchange offer, merger or other business combination,
recapitalization, restructuring or other extraordinary transaction, (ii) engage
in any "solicitation" of "proxies" (as such terms are used in the proxy rules
promulgated under the Exchange Act, but disregarding clause (iv) of Rule
14a-1(l)(2) and including any exempt solicitation pursuant to Rule
14a-2(b)(2)), or form, join or in any way participate in a "group" (as defined
under the Exchange Act), with respect to any Equity Securities in connection
with the types of activities set forth in (i) or (ii) above ), (iii) otherwise
seek or propose to acquire control of the Board of Directors, or to disrupt or
impair the normal, ongoing business operations or policies of the Company, (iv)
take any action that could reasonably be expected to force the Company to make
a public announcement regarding any of the types of matters referred to in
clause (i), (ii) or (iii) above, or (v) enter into any negotiations, agreements
or arrangements with any third party with respect to any of the foregoing. So
long as Bailey is in compliance with the foregoing, nothing in this Agreement
shall prohibit Bailey from, or in any way restrict his ability to, sell,
transfer, pledge or otherwise assign any or all of his Equity Securities in the
Company, whether in market transactions, private sales or otherwise.
ARTICLE IV.
BAILEY'S RESTRICTIVE COVENANTS
4.01. In consideration for the promises and covenants of the Company
and Acsys IT herein, Bailey further agrees as follows:
4.02. SAP Noncompete. For a period of one year following the date
hereof, Bailey shall not, without the Company's prior written permission,
directly or indirectly, on his own behalf or on behalf of any other person or
entity, within the SAP Territory, be engaged as a manager, executive,
operational consultant or equity owner in the business of providing consulting
or contract staffing services for any product currently manufactured by SAP AG
or its subsidiaries that are available for general release (excluding products
in alpha or beta stage) and with respect to which the Company or its
subsidiaries currently provide services and support, including, but not by way
of limitation, SAP's products known as ERP, New Dimension, and mySAP.com
products
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(hereinafter the "SAP Services"); provided, however, that nothing in this
Section 4.02 shall prohibit Bailey from providing consulting or contract
staffing services for products not offered by SAP AG as of the date hereof, but
which are subsequently introduced or acquired by SAP AG. As used herein the
term "SAP Territory" shall mean within a fifty (50) mile radius surrounding the
following offices of the Company:
2200 North Central Avenue
Suite 300
Phoenix, AZ 85004
3160 Crow Canyon Road
Suite 230
San Ramon, CA 94583
1700 Broadway
Suite 700
Denver, CO 80290
1300 Market Street
Suite 501
Wilmington, DE 19801
1020 19th Street, N.W.
Suite 650
Washington, D.C. 20036
1020 19th Street North West
Suite 650
Washington, DC 20036
610 Crescent Executive Park
Suite 132
Lake Mary, FL 32746
390 North Orange Avenue
Suite 1825
Orlando, FL 32801
100 North Tampa Street
Suite 1950
Tampa, FL 33602
5 Concourse Parkway
Suite 2650
Atlanta, GA 30326
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75 Fourteenth Street
Suite 2200
Atlanta, GA 30309
2400 Lakeview Parkway
Suite 500
Alpharetta, GA 30004
1001 Office Park Road
Suite 320
West Des Moines, IA 50265
2464 East Euclid
Des Moines, IA 50317
4220 Shawnee Mission Parkway
Suite 101B
Fairway, KS 66205
6701 Democracy Boulevard
Suite 400
Bethesda, MD 20817
5522 M.E. Antioch Rd.
Kansas City, MO 64119
1820 Chapel Avenue
Suite 168
Cherry Hill, NJ 08002
379 Thornall Street
Edison, NJ 08837
102 Campus Drive
Princeton, NJ 08540
110 South Jefferson Road
Whippany, NJ 07981
425 Broadhollow Road
Suite 318
Melville, NY 11747
780 Third Avenue
New York, NY 10017
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301 South College Street
Charlotte, NC 28202
1850 Linglestown Rd.
Suite 307
Harrisburg, PA 1711
1850 William Penn Way
Suite 106
Lancaster, PA 17601
1700 Market Street
Suite 3110
Philadelphia, PA 19103
500 East Swedesford Road
Suite 100
Wayne, PA 19087
12655 North Central Expressway
Suite 310
Dallas, TX 75243
714 Jackson Street
Suite 715
Dallas, TX 75202
512 Main Street
Suite 401
Forth Worth, TX 76102
5601 Bridge Street
Suite 408
Forth Worth, TX 76112
4544 Post Oak Place
Suite 375
Houston, TX 77027
800 West Airport Freeway
Suite 712
Irving, TX 75062
222 West Las Calinas Blvd.
Suite E 1050
Irving, TX 75039
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7411 John Smith Drive
Suite 110
San Antonio, TX 78229
1340 Braddock Place
Suite 201
Alexandria, VA 22314
8300 Greensboro Drive
Suite 720
McLean, VA 22102
12110 Sunset Hills Road
Reston, VA 20190
7100 Forest Avenue
Suite 101
Richmond, VA 23226
4.03. Information Technology Noncompete. For a period of one year from
the date hereof, Bailey shall not, without the Company's prior written
permission, directly or indirectly, on his own behalf or on behalf of any other
person or entity, be engaged within the IT Territory as a manager, executive,
operational consultant or equity owner in the business of offering (i)
short-term or long-term outsourcing of information technology staffing
services, (ii) temporary information technology contract staffing services; or
(iii) permanent placement information technology staffing services on a
contingent fee basis (hereinafter the "IT Services"). As used herein, the term
"IT Territory" shall mean within a fifty (50) mile radius of the following
office of the Company where Bailey worked during the last twelve (12) months of
his employment:
2400 Lakeview Parkway
Suite 500
Alpharetta, GA 30004
Nothing in this Agreement shall prohibit Bailey from providing IT
Services to any customer that is headquartered or has offices inside the IT
Territory, provided that the services are for locations outside the IT
Territory, whether or not the customer is a current customer of the Company or
Acsys IT, and provided that such IT Services shall not encompass SAP Services
in violation of Section 4.02 herein and provided that Bailey does not solicit
the customer in violation of Section 4.06 herein.
Bailey shall not be prohibited from merely maintaining one or more
offices in the IT Territory or the SAP Territory, so long as Bailey otherwise
complies with the provisions of this Section and Section 4.02 herein. Bailey
agrees, however, that for a period of one year from the date hereof, Bailey
shall not, without the Company's prior
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written permission, maintain an office for purposes of offering IT Services,
either on his own behalf or on behalf of a business entity in which he together
with Steven M. Sutton and/or Robert M. Kwatnez owns a majority interest, within
a fifty (50) mile radius of the following offices of the Company which Bailey
acknowledges offered IT Services during the last six (6) months of Bailey's
employment by Acsys IT under Bailey's oversight as Group Director, National
Products:
610 Crescent Executive Park
Suite 132
Lake Mary, FL 32746
1700 Market Street
Suite 3110
Philadelphia, PA 19103
222 West Las Calinas Blvd.
Suite E1050
Irving, TX 75039
4.04. Non-Disclosure. For a period of one year from the date hereof,
Bailey shall not, without the Company's prior written permission, directly or
indirectly, on his own behalf or on behalf of any other persons or entity,
transmit or disclose any Confidential Information of Acsys IT or the Company to
any person and shall not make use of any Confidential Information, for himself
or others, except to the extent required by any law or order, in which case
Bailey shall provide the Company prior written notice of such requirement and
an opportunity to contest same. Trade Secrets of the Company and Acsys IT shall
continue to be protected from disclosure or use so long as they remain Trade
Secrets.
4.05. Nonsolicitation of Employees. For a period of one year from the
date hereof, Bailey shall not, without the Company's prior written permission,
directly or indirectly, through one or more intermediaries or otherwise, on his
own behalf or on behalf of any other person or entity, solicit to employ any
person who is an employee or consultant of Acsys IT or the Company as of the
date hereof who was engaged within the twelve (12) months preceding the date
hereof in the provision of SAP Services or IT Services on behalf of Acsys IT or
the Company. The foregoing provision shall apply only to those employees who
are full time employees of the Company or Acsys IT entitled to health insurance
and other employee benefits provided by the Company to its employees,
generally, and to certain salaried "benchable" consultants. It is understood
and agreed that this Section shall not prohibit Bailey from engaging in
discussions with, or hiring, any such employee or consultant of the Company or
Acsys IT who first initiates contact with Bailey for purposes of seeking
employment, so long as there has been no prior solicitation of the employee or
consultant by Bailey, directly or indirectly, through one or more
intermediaries or otherwise.
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4.06. Nonsolicitation of Customers. For a period of one year after the
date hereof, Bailey shall not, without the Company's prior written permission,
directly or indirectly, through one or more intermediaries or otherwise, on his
own behalf or on behalf of any other person or entity, solicit Customers of
Acsys IT and/or the Company to induce or encourage them to acquire or obtain
from anyone other than Acsys IT and/or the Company, SAP Services within the SAP
Territory or IT Services within the IT Territory. Nothing herein shall prohibit
Bailey from soliciting Customers of Acsys IT and/or the Company for providing
SAP Services outside the SAP Territory or IT Services outside the IT Territory
even if such Customer is headquartered or has offices within the SAP Territory
or the IT Territory, as the case may be. For purposes of this Section,
"Customer" refers to any person or group of persons with whom Bailey had direct
material contact(s) within the six (6) months preceding the date hereof with
regard to selling, delivery or support of SAP Services within the SAP Territory
or IT Services within the IT Territory on behalf of Acsys IT and/or the
Company.
ARTICLE V.
CRM PRODUCTS
5.01 In consideration for the promises and covenants of the Company
and Acsys IT herein, Bailey further agrees as follows:
5.02 For a period of one year from the date hereof, Bailey agrees
that if he individually or together with Robert M. Kwatnez and/or Steven M.
Sutton owns a majority interest in a business enterprise offering staffing
support services for Siebel, Inc.'s current products known as CRM Products,
Bailey and such business enterprise shall provide the Company notice of any job
orders received by Bailey or his business enterprise for support of Siebel's
CRM Products (hereinafter "Notice of Job Order"). Any such Notice of Job Order
shall be addressed to the attention of Brad Elster and communicated by
facsimile to facsimile number 678-393-2101 or by email to the following
address: [email protected]. The Notice of Job Order will include a
description of the job, the skills required, availability requirements and
maximum rate that may be charged for the job by the Company. The Company will
have until 3:00 p.m. Atlanta time the following business day or eight (8)
business hours following delivery of a Notice of Job Order, whichever is
greater, within which to respond by submitting to Bailey and/or his business
enterprise candidate resumes to provide staffing for the job order. Business
hours shall be from 9:00 a.m. to 5:00 p.m., Atlanta time, on each business day.
Candidate resumes received within the time set forth above shall be submitted
by Bailey and/or his business enterprise to the customer requesting support of
Seibel's CRM Products, provided that Bailey or his business enterprise
reasonably deems the candidate(s) to be qualified to fill the position based
upon all reasonable factors, including the job description, the candidate's
skills, experience, availability and billing rate. Bailey agrees that if the
Company submits at least two qualified candidates within the time set forth
above pursuant to a Notice of Job Order, Bailey and/or his business enterprise
will refrain from submitting any candidate resumes from any other third party
recruiting firms. Bailey and/or his business enterprise may submit candidates
identified
12
<PAGE> 13
by Bailey and/or his enterprise and who are not represented in the transaction
by any other third party recruiting firms. If the Company fails to submit at
least two qualified candidates within the time set forth herein, or the
customer does not select any of the candidates submitted by the Company, Bailey
and/or his business enterprise may attempt to fill the job order from any other
source, including any other third party recruiting firm.
ARTICLE VI
GENERAL PROVISIONS
6.01. Ownership of Company Shares. Bailey represents and warrants to
the Company that (i) he owns, beneficially and of record, as of the date
hereof, the number of shares of Company Common Stock listed on Schedule I
hereto (collectively, the "Company Shares"), subject to no rights of others and
free and clear of all Liens; (ii) Bailey's right to vote the Company Shares
beneficially owned by Bailey is not subject to any voting trust, voting
agreement, voting arrangement or proxy; and (iii) Bailey has not entered into
any contract, option or other arrangement or undertaking with respect thereto.
So long as Bailey is in compliance with Section 3.04 above, nothing herein
shall in any way restrict Bailey's right to transfer, assign, pledge, sell or
otherwise dispose of any of his Company Shares.
6.02. Amendment and Waiver
(a) This Agreement may be amended, supplemented or modified only by a
written instrument duly executed by or on behalf of each party hereto.
(b) Any term or condition of this Agreement may be waived at any time
by the party that is entitled to the benefit thereof, but no such waiver shall
be effective unless set forth in a written instrument duly executed by or on
behalf of the party waiving such term or condition. No waiver by any party of
any term or condition of this Agreement, in any one or more instances, shall be
deemed to be or construed as a waiver of the same or any other term or
condition of this Agreement on any future occasion. All remedies, either under
this Agreement or by law or otherwise afforded, will be cumulative and not
alternative.
6.03. Notices. Except as otherwise provided herein, all notices,
requests and other communications hereunder must be in writing and will be
deemed to have been duly given only if delivered personally or by facsimile
transmission to the parties at the following addresses or facsimile numbers:
13
<PAGE> 14
If to Bailey, to:
Robert D. Bailey
1180 Lake Shore Overlook
Alpharetta, GA 30005
Telephone: (770) 664-8213
Facsimile: 240-255-1192
with a copy to:
David M. Calhoun, Esq.
Morris, Manning & Martin L.L.P.
1600 Atlanta Financial Center
3343 Peachtree Road, N.E.
Atlanta, GA 30326-1044
Telephone: (404) 504-7613
Facsimile: (404) 365-9532
If to the Company, to:
Brady W. Mullinax, Jr.
Acsys, Inc.
75 14th Street
Suite 2200
Atlanta, GA 30309
Telephone: (404) 817-9440
Facsimile: (404) 815-4703
with a copy to:
Bryan E. Davis, Esq.
Alston & Bird LLP
One Atlantic Center
1201 West Peachtree Street
Atlanta, GA 39309-3424
Telephone: (404) 881-7000
Facsimile (404) 881-7777
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section, be deemed given upon
delivery, and (ii) if delivered by facsimile transmission to the facsimile
number as provided in this Section, be deemed given upon receipt (confirmation
of delivery by the sender's facsimile machine shall be deemed sufficient
evidence of the recipient's receipt). Any party from time to time may change
its address, facsimile number or other information for the purpose of notices
to that party by giving notice specifying such change to the other parties
hereto.
14
<PAGE> 15
6.04. Entire Agreement. This Agreement supersedes all prior
discussions and agreements among the parties hereto with respect to the subject
matter hereof, and contains the sole and entire agreement among the parties
hereto with respect to the subject matter hereof, except that the Separation
and Release Agreement dated of even date herewith between Bailey, the Company
and Acsys IT, the Joinder Agreement dated as of May 22, 1998 (as modified by
the Separation and Release Agreement), and the Director's and Officer's
Indemnification Agreement between Bailey and the Company shall remain in full
force and effect.
6.05. Invalid Provisions. If any provision of this Agreement is held
to be illegal, invalid or unenforceable under any present or future law, and if
the rights or obligations of any party hereto under this Agreement will not be
materially and adversely affected thereby, (i) such provision will be fully
severable, (ii) this Agreement will be construed and enforced as if such
illegal, invalid or unenforceable provision had never comprised a part hereof
and (iii) the remaining provisions of this Agreement will remain in full force
and effect and will not be affected by the illegal, invalid or unenforceable
provision or by its severance herefrom.
6.06. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Georgia applicable to a contract
executed and performed in such State, without giving effect to the conflicts of
laws principles thereof.
6.07. Consent to Jurisdiction and Service of Process. Each party
hereby irrevocably submits to the jurisdiction of The United States District
Court for the Northern District of Georgia or any court of the State of Georgia
located in Cobb County and in any action, suit or proceeding arising in
connection with this Agreement, agrees that any such action, suit or proceeding
may be brought in such court (and waives any objection based on forum non
conveniens or any other objection to venue therein to the extent permitted by
law), provided, however, that such consent to jurisdiction is solely for the
purpose referred to in this Section and shall not be deemed to be a general
submission to the jurisdiction of said courts. Nothing herein shall affect the
right of any party to commence legal proceedings or otherwise proceed against
the other in any other jurisdiction.
6.08. Counterparts. This Agreement may be executed in any number of
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
6.09. Injunctive Relief. Bailey acknowledges that the covenants and
promises contained in this Agreement are a reasonable and necessary means of
protecting and preserving the Company's goodwill and interests in its
confidential information and trade secrets. Bailey agrees that any breach of
these covenants or promises will leave the Company with no adequate remedy at
law and will cause the Company to suffer irreparable damage and injury. Bailey
further agrees that any breach of these covenants and promises will entitle the
Company to injunctive relief in any court of competent jurisdiction without the
necessity of posting any bond. Such injunctive relief shall be in
15
<PAGE> 16
addition to any damages which may be recoverable by the Company as a result of
any breach.
6.10. Successors and Assigns. This Agreement shall be binding upon,
inure to the benefit of and be enforceable by Bailey's personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees. This Agreement shall also be binding upon, inure to the
benefit of and be enforceable by any successor to Acsys IT and/or the Company
by reason of any merger, consolidation, dissolution, debt foreclosure or other
reorganization of the Company.
6.11. Knowing and Voluntary. Bailey acknowledges that he has reviewed
the terms and conditions of this Agreement, that he understands its terms, and
that he has executed this Agreement voluntarily and without any coercion, undue
influence, threat or intimidation of any kind whatsoever and that he has had
the benefit of counsel in negotiating and drafting this Agreement. Bailey
further acknowledges that the consideration he receives for this Agreement is
in addition to any amounts to which he was already entitled.
6.12. Captions and Paragraph Headings. Captions and paragraph headings
used herein are for convenience only and are not a part of this Agreement and
shall not be used in construing it.
6.13. Negotiated Agreement. This Agreement was negotiated between the
parties hereto, and the fact that one party or the other drafted this Agreement
shall not be used in its interpretation.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
ACSYS, INC.
Name: /s/ Brady W. Mullinax, Jr
-------------------------
Title: Chief Financial Officer
-------------------------
/s/ Robert D. Bailey
-------------------------
Robert D. Bailey
16
<PAGE> 17
SCHEDULE I
<TABLE>
<CAPTION>
SHARES NUMBER
- ------ ------
<S> <C>
Acsys Common Stock 705,090
</TABLE>
<PAGE> 1
EXHIBIT 99.1
[ACSYS LETTERHEAD] NEWS RELEASE
[ACSYS(SM) LOGO]
FOR IMMEDIATE RELEASE
Contact for Investors: David C. Cooper
Chairman
(404) 817-9440
Contact for News Media: Jodie Land-Charlop/[email protected]
Director, Corporate Communications
(404) 817-9440
John L'Abate/[email protected]
Manager, Corporate Communications
(404) 817-9440
ACSYS, INC. CHIEF EXECUTIVE OFFICER RESIGNS
ATLANTA (December 1, 1999) - Acsys, Inc. (AMEX: AYS) ("the Company"), a leading
specialty professional staffing firm, today announced that Timothy Mann Jr.,
chief executive officer, has resigned his position and has also stepped down
from the Company's board of directors. Mann's resignation is effective
immediately and will result in a one-time charge in the Company's fourth-quarter
results.
Mann served as chief executive officer of Acsys, Inc. since October
1997 and a director since its formation. Before becoming CEO, Mr. Mann served
the Company as chief financial officer.
Commenting on Mann's decision to leave the Company, Acsys Chairman of
the Board David C. Cooper said, "Tim played an integral role in the merging of
the companies that ultimately formed Acsys, our subsequent initial public
offering and building the foundation for a new national organization. We
appreciate the leadership he provided during our young company's formation, and
wish him well in his future endeavors."
-MORE-
<PAGE> 2
AYS Announces CEO Resignation
Page 2
December 1, 1999
Based in Atlanta, Acsys, Inc. provides professional temporary staffing
and permanent placement services in the U.S. The Company's professional services
division, specializing in accounting, finance and corporate staffing, provides a
broad range of staffing and workforce solutions to Fortune 500, middle-market
and emerging growth companies. The Company's information technology (IT)
division provides staff augmentation and solutions services in the areas of
SAP(TM), J.D. Edwards(R), PeopleSoft, Siebel Systems, e-Commerce and other
information technology areas to more than 250 clients throughout the U.S. Acsys
has more than 600 employees in 40 offices nationwide with 1998 revenues of $148
million. More information about Acsys can be found on the Internet at
www.acsysinc.com.
###
Information contained in this press release, other than historical
information, should be considered forward-looking in nature and is subject to
various risks or uncertainties and assumptions. Should one or more of these
risks or uncertainties materialize, or should underlying assumptions prove
incorrect, actual results may vary materially from those anticipated, estimated
or expected. Among the key factors that may have a direct bearing on the
operating results, performance or financial condition are the company's ability
to achieve and manage growth; the company's ability to successfully identify
suitable acquisition candidates, complete acquisitions or integrate the acquired
business into its operations; the company's ability to attract and retain
qualified personnel; the company's ability to develop new services; and other
factors discussed in Acsys's filings with the Securities and Exchange
Commission.
<PAGE> 1
EXHIBIT 99.2
[ACSYS LETTERHEAD] NEWS RELEASE
[ACSYS(SM) LOGO]
FOR IMMEDIATE RELEASE
Contact for Investors: David C. Cooper
Chairman and CEO
(404) 817-9440
Contact for News Media: Jodie Land-Charlop/[email protected]
Director, Corporate Communications
(404) 817-9440
John L'Abate/[email protected]
Manager, Corporate Communications
(404) 817-9440
ACSYS, INC. ANNOUNCES REORGANIZATION
ATLANTA (December 1, 1999) - Acsys, Inc. (AMEX: AYS) ("the Company"), a leading
specialty professional staffing firm, today announced several management and
organizational changes, including the appointment of Chairman of the Board David
C. Cooper to the additional position of Chief Executive Officer. Cooper's
appointment follows the resignation of CEO Timothy Mann, Jr.
Cooper led the effort to create the Company in 1997 and has served
continuously as its chairman throughout its rapid growth. He began his staffing
industry career almost 20 years ago in 1980 when he formed David C. Cooper &
Associates, an Atlanta-based financial search and staffing firm, which
ultimately became one of the largest founding companies of the Company.
"Acsys has emerged from an idea in just two years to one of the
nation's largest professional staffing firms," added Cooper. "We have
successfully integrated 11 companies and now operate under one unified national
brand, and have consistently achieved internal growth rates at the top of the
range for companies within our staffing sector. We continue to redefine our
organization to meet the needs of our employees, clients and candidates. As a
growing national company, it's essential that we embrace positive change and
capitalize on opportunities to position this company for growth in 2000 and
beyond."
Cooper stated that the Company has restructured its operations into two
key business units, Professional Services and Information Technology. This
reorganization
-MORE-
<PAGE> 2
AYS Announces Reorganization
Page 2
December 1, 1999
will streamline and strengthen management and improve operating efficiencies. It
will also promote greater focus and synergy within each unit, enabling the
Company to better service clients and candidates nationwide.
To support the new operating structure, the Company announced several
veteran executives now have expanded roles designed to strengthen its
operational and financial performance, including:
- Harry J. Sauer, formerly group director for the Company's
Northeast division, has been promoted to executive director of
professional services, a new management position;
- Chief Financial Officer Brady W. Mullinax Jr. will take on the
additional role of executive vice president for finance and
administration. Mullinax will add to his responsibilities the
management of all corporate office functions that support the
Company's field operations, including human resources,
corporate communications, marketing, information solutions and
investor relations;
- Executive Director of Information Technology Ted Weyn will
expand his responsibilities to include management of all of
the Company's information technology operations;
- Jim Rudman has been promoted to group director for the
Company's Northeast division, replacing Sauer. Rudman, as
group director for the Northeast division, will be responsible
for the Company's operations in Pennsylvania, New Jersey, New
York and Delaware.
- Acsys Information Technology Group Directors and former owners
of ICON Search & Consulting, Robert D. Bailey, Robert M.
Kwatnez and Steven M. Sutton, have left the Company to form a
new business venture in Customer Resource Management. Acsys
has signed an agreement with the three former owners to supply
information technology staffing services to their new
organization.
- Beth Monroe Chase, Executive Vice President and National
Director of Sales, has left the Company to pursue other
interests.
The senior management changes will result in a one-time charge in the
Company's fourth-quarter results estimated to be $2.2 million.
Added Cooper, "I am confident that these changes put our most seasoned
professionals in key functional roles to drive the success of our operating
units. Harry Sauer was one of the founding members of Acsys and has more than 22
years of
-MORE-
<PAGE> 3
AYS Announces Reorganization
Page 3
December 1, 1999
experience in professional staffing. Under Harry's leadership, Acsys's Northeast
Group has become our largest and most profitable operation.
"Brad's expanded corporate role, along with Harry's and Ted's
operational leadership, will be invaluable in the continued growth of our core
accounting, finance and information technology staffing businesses," said
Cooper.
"We wish Beth great success in her new endeavors. Beth was one of the
founders of Acsys and has contributed significantly to its growth. Her enormous
talent, experience, and enthusiasm are respected and appreciated by everyone in
the Company, especially me," concluded Cooper.
Based in Atlanta, Acsys, Inc. provides professional temporary staffing
and permanent placement services in the U.S. The Company's professional services
division, specializing in accounting, finance and corporate staffing, provides a
broad range of staffing and workforce solutions to Fortune 500, middle-market
and emerging growth companies. The Company's information technology (IT)
division provides staff augmentation and solutions services in the areas of
SAP(TM), J.D. Edwards(R), PeopleSoft, Siebel, e-Commerce and other information
technology areas to more than 250 clients throughout the U.S. Acsys has more
than 600 employees in 40 offices nationwide with 1998 revenues of $148 million.
More information about Acsys can be found on the Internet at www.acsysinc.com.
###
Information contained in this press release, other than historical
information, should be considered forward-looking in nature and is subject to
various risks or uncertainties and assumptions. Should one or more of these
risks or uncertainties materialize, or should underlying assumptions prove
incorrect, actual results may vary materially from those anticipated, estimated
or expected. Among the key factors that may have a direct bearing on the
operating results, performance or financial condition are the company's ability
to achieve and manage growth; the company's ability to successfully identify
suitable acquisition candidates, complete acquisitions or integrate the acquired
business into its operations; the company's ability to attract and retain
qualified personnel; the company's ability to develop new services; and other
factors discussed in Acsys's filings with the Securities and Exchange
Commission.
