EXHIBIT 10.18
Employment Agreement between the Company and Xxxxxx X. Xxxxxxx
dated as of March 31, 1998 and effective on May 22, 1998
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (this "Agreement") is made as of March 31, 1998
(the "Effective Date"), by and between Acsys, Inc. ("Acsys"), a Georgia
corporation, Icon Search and Consulting, Inc. (the "Company"), a Georgia
corporation and a wholly owned subsidiary of Acsys, and Xxxxxx X. Xxxxxxx, an
individual resident of Georgia (the "Executive").
WHEREAS, Executive is an executive officer and shareholder of the Company;
WHEREAS, the Company recognizes the contributions of the Executive in such
capacity;
WHEREAS, the Company is entering into an Agreement and Plan of Merger,
dated of even date herewith (the "Merger Agreement"), providing for the merger
of the Company with a subsidiary of Acsys (the "Merger");
WHEREAS, Executive is expected to make a significant contribution to the
success and development of the Company from and after the Merger; and
WHEREAS, Executive is willing to render services to the Company and/or one
or more of its subsidiaries on the terms and subject to the conditions set forth
herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by Executive, the Company and Acsys,
including, without limitation, the promises and covenants of the parties set
forth herein, the parties hereto, intending to be legally bound, hereby agree as
follows:
ARTICLE I
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EMPLOYMENT
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Section 1.1 Term of Employment. The term of Executive's employment
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hereunder shall commence on the date on which the Merger is consummated in
accordance with the Merger Agreement (the "Effective Date") and continue for a
period of three (3) years thereafter, unless earlier terminated as provided in
this Agreement. At the end of the initial three-year term, this Agreement shall
automatically renew for consecutive one-year terms unless either party hereto
gives written notice to the other of its intent to terminate sixty (60) days
prior to the end of any term.
Section 1.2 Duties and Responsibilities of Executive. Executive is hereby
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employed full time as the Vice President of the Company. Executive shall devote
his full time, energy, and skill to such office and shall do and perform all
services and acts necessary or advisable to fulfill the duties of such office.
In his capacity as an officer of the Company, Executive shall report to the
President of the Company, and shall conduct and perform such additional services
and activities as may be determined from time to time by such superior officer
which are normal and customary for a similar executive of a similarly situated
company. Executive's authority and responsibility in the Company shall at all
times be subject to the review and discretion of the Board of Directors, who
shall have the final authority to make decisions regarding the business of the
Company. Executive acknowledges that he has a duty of loyalty to the Company
and shall not engage in, directly and indirectly, any other business or activity
that could materially and adversely affect the Company's business or the
Executive's ability to perform his duties under this Agreement, provided,
however, that the Executive shall be free to participate in board, civic and
charitable activities so long as such activities do not interfere with his
duties and responsibilities hereunder.
Section 1.3 Compensation. For services to be rendered by Executive under
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this Agreement, the Company shall pay Executive a base salary of $260,000 per
annum payable in semi-monthly installments. The Executive shall also be paid a
bonus described on Exhibit A. At the sole discretion of the Board of Directors
of the Company, Executive's annual gross salary may be increased from time to
time throughout the term of this Agreement. At no time during the term hereof
shall the Executive's base salary be decreased from the amount of the base
salary then in effect.
Section 1.4 Benefits.
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(a) Annual Leave. Executive shall be entitled to up to 26 days paid
vacation annually during his employment by the Company hereunder. Any vacation
not used during any calendar year shall be forfeited, except that two weeks'
unused vacation may be carried forward to the year following the year in which
such vacation entitlement accrued.
(b) Pension, Welfare and Fringe Benefit Plans. Executive shall be
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entitled to participate in each "employee welfare benefit plan" (within the
meaning of ERISA (S) 3(1)), "employee pension benefit plan" (within the meaning
of ERISA (S) 3(2)) and "specified fringe benefit plan" (within the meaning of
Code (S) 6039D) which is sponsored, maintained or contributed to by the Company
and in which executives of the Company (a) who are not represented by a
collective bargaining agent or (b) who are executives or officers may
participate in accordance with the terms and provisions of such plans. The
Executive shall receive credit for service with the Company prior to the Merger
for all purposes of such plans (including availability of options, optional
forms of benefit, or subsidies), except benefit accrual. To the extent
permitted by each such plan, any pre-existing limitations or conditions under
such plans shall be waived with respect to Executive and Executive shall be
allowed immediate participation and eligibility in all such plans.
Contributions by the Executive to such plans shall be required only to the
extent required of similarly situated executives.
(c) Notwithstanding the foregoing, the Executive shall be entitled to
continue (for the duration of this Agreement) to have provided by the Company
for business purposes and use: (i) a Company-provided automobile of a make and
model substantially similar to that currently provided to Executive by the
Company; (ii) automobile insurance, required maintenance of such Company-
provided automobile, and the payment of other reasonable expenses associated
with such Company-provided automobile; and (iii) a Company-provided cellular
telephone and the payment of reasonable expenses associated therewith.
(d) Life Insurance Policies. The Company agrees that it will
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reasonably cooperate with the Executive so that the ownership of certain
policies insuring the life of Executive will be transferred from the Company to
the Executive.
Section 1.5 Business Expenses. Executive shall be entitled to
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reimbursement of all ordinary and necessary business expenses reasonably
incurred for business travel, communications (including cell phones and pager),
entertainment and meals in connection with the performance of Executive's duties
under this Agreement in accordance with the Company's generally established
policies for reimbursement of business expenses incurred by similarly situated
executives. The Company expects Executive to attend and participate in
continuing education seminars and courses with respect to the staffing industry
and business management related to his duties, and the Company will reimburse
all ordinary and necessary expenses of such attendance and participation. Such
continuing education courses and seminars will be scheduled in conjunction with
the other officers of the Company to assure coordination of schedules.
ARTICLE II
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COVENANTS OF EXECUTIVE
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Section 2.1 Confidentiality. Executive recognizes the interest of the
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Company in maintaining the confidential nature of its proprietary and other
business and commercial information. In connection therewith, Executive
covenants that during the term of his employment with Company under this
Agreement, and for a period of one (1) year thereafter, Executive shall not,
directly or indirectly, except as authorized by the Board of Directors, publish,
disclose or use for his own benefit or for the benefit of a business or entity
(other than the Company or its subsidiaries) or otherwise, any secret or
confidential matter, or proprietary or other information not in the public
domain that was acquired by Executive during his employment, relating to the
Company's, Acsys' or any of their respective subsidiaries' businesses,
operations, customers, suppliers, products, employees, financial affairs or
industry practices, technology, know-how or intellectual property or other
similar information (the "Proprietary Information"). If and to the extent that
Proprietary Information also is a Trade Secret (as defined under applicable
law), the time limit provided in Section 2.5 shall apply to the disclosure of
such Proprietary Information.
Executive will abide by the Company's policies and regulations, as
established from time to time, for the protection of its Proprietary
Information. Executive acknowledges that all records, files, data, documents
and the like relating to suppliers, customers, costs, prices, systems, methods,
personnel, technology and other materials relating to the Company or its
affiliated entities shall be and remain the sole property of the Company and/or
such affiliated entity and shall, upon the request of the Company, turn over all
copies of such Proprietary Information to the Company (together with a written
statement certifying as to his compliance with the foregoing).
Section 2.2 Non-Solicitation of Customers. During the term of Executive's
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employment with the Company, and for a period of one (1) year thereafter, unless
Executive is terminated other than for Cause (as defined below) or Executive
resigns for Good Reason (as defined below), Executive shall not directly or
indirectly, through one or more intermediaries or otherwise, solicit or attempt
to solicit Customers, in the Restricted Territory, to induce or encourage them
to acquire or obtain from anyone other than the Company, service competitive
with or substitute for any Company Service. For purposes of this Section, a
"Customer" refers to any person or group of persons with whom Employee has
direct material contact with regard to selling, delivery or support of Company
Services, including servicing such person's or group's account, during the
period of two (2) years preceding termination of Employee's employment; and
"Company Services" refers to the services that the Company offered or sold
within six (6) months prior to the date of termination of Employee's employment.
For purposes of this Article II, the "Restricted Territory" shall be the area
that is within a thirty (30) mile radius of the city of Atlanta, or such other
city in which the Company maintains an office at which Executive is located on
the date of termination of Executive's employment with the Company and such
other cities in which the Company maintains offices at which Executive had
material customer contacts within the year preceding the termination of
Executive's employment with the Company.
Section 2.3 Non-Compete. During the term of Executive's employment with
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the Company, and for a period of two (2) years thereafter, unless Executive is
terminated other than for
Cause (as defined below) or Executive resigns for Good Reason (as defined
below), Executive shall not, without the prior written consent of the Board of
Directors, which consent may be withheld at the sole discretion of the Board of
Directors, engage or participate in, as a business executive or equity owner of
any business or enterprise that directly competes in the Restricted Area with
any line of business in which (i) the Company was engaged at the time of
termination of Executive's employment with the Company and (ii) Executive was
materially involved with regard to the selling, delivery or support of services
within such line of business; provided, however, that nothing in this Section
2.3 shall prohibit Executive from acquiring or holding, for investment purposes
only, less than five percent (5%) of the outstanding publicly traded securities
of any corporation which may compete directly or indirectly with the Company or
any of its subsidiaries.
Section 2.4 Non-Solicitation of Employees. During the term of his
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employment with the Company, and for a period of one (1) year thereafter, unless
Executive is terminated other than for Cause (as defined below) or Executive
resigns for Good Reason (as defined below), Executive shall not, directly or
indirectly, through one or more intermediaries or otherwise, employ, induce,
solicit for employment, or assist others in employing, inducing or soliciting
for employment any individual who is at any time during such period an employee
of the Company for the purpose of providing services that are the same or
similar to the types of services offered or engaged in by the Company, Acsys or
any of their respective subsidiaries with the Executive providing services at
the time of termination of Executive's employment with the Company.
Section 2.5 Trade Secrets. The Executive shall not, at any time, either
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during the term of his employment or after any termination of employment, use or
disclose any Trade Secrets (as defined under applicable law) of the Company,
Acsys, or any of their respective subsidiaries, except in fulfillment of his
duties as the Executive during his employment, for so long as the pertinent
information or data remain Trade Secrets, whether or not the Trade Secrets are
in written or tangible form.
Section 2.6 Consideration. Executive acknowledges that his agreement to
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the covenants provided in this Article II constitutes a major portion of the
consideration for the entry by the Company into this Agreement, and that the
Company's covenants under this Agreement are of direct and material benefit to
Executive and are good and adequate consideration for the covenants given
herein. Executive also acknowledges that the Company has a present and future
expectation of business within the geographic areas served by the Company and
from the present and proposed customers of the Company. Executive acknowledges
the reasonableness of the term, geographic area and scope of the covenants set
forth in this Agreement, and agrees that he will not, in any action, suit or
other proceeding, deny the reasonableness of, or assert the unreasonableness of,
the premises, consideration or scope of the covenants set forth herein.
Executive further acknowledges that complying with the provisions contained in
this Agreement will not preclude him from engaging in a lawful profession, trade
or business, or from becoming gainfully employed.
ARTICLE III
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TERMINATION OF EMPLOYMENT
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Section 3.1 Termination by Company. Executive's employment may be
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terminated by the Company by giving notice during the term of this Agreement
upon the occurrence of one or more of the following events:
(a) Executive's death or disability which renders Executive incapable
of performing his duties after reasonable accommodation (without undue hardship)
for more than one hundred twenty (120) calendar days (termination under this
Section 3.1(a) shall be deemed termination without Cause);
(b) for any reason following a determination by the Board of Directors
to terminate Executive's employment (termination under this Section 3.1(b) shall
be deemed termination without Cause); or
(c) "for Cause", which for purposes of this Agreement shall mean that
the Executive shall have:
(i) committed an intentional act of fraud, embezzlement or theft
in connection with his duties or in the course of his employment with the
Company which has a material adverse effect upon the Company;
(ii) inflicted intentional wrongful material damage to any
material asset of the Company or the Company;
(iii) intentionally and wrongfully materially violated Article II
of this Agreement, which violation has a material adverse effect upon the
Company;
(iv) been convicted of a felony or any similar crime carrying a
prison term of at least one year (regardless of whether imprisonment is actually
imposed);
(v) a habitual and debilitating use of alcohol or drugs; or
(vi) failed to meet performance expectations, as determined
by the Company's Board of Directors in good faith, provided, however, that
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in the event of this subsection (vi) being the sole reason for termination for
Cause, Executive shall have the cure provisions and rights provided for in
Section 3.1(d) hereof.
(d) In the event of a determination by the Company's Board of
Directors that the Executive has failed to meet performance expectations, the
Company shall furnish to Executive in writing a notice of proposed termination
setting forth a specific statement of the deficiencies in his performance.
Executive shall then have a period of ninety (90) days after the giving of such
written notice of proposed termination by the Company in which to attempt to
effect a cure of the specified deficiencies. If at the end of such ninety (90)
day period no such cure has been effected to the reasonable satisfaction of the
Board of Directors of the Company, then Executive's employment shall be
terminated as of the end of such ninety (90) day period. The Company shall be
obligated to provide to Executive only one such notice of proposed termination,
and if subsequent to effecting a cure of specified deficiencies the Executive is
determined by the Board of Directors to have again failed to meet performance
expectations, then his employment may be terminated immediately upon the
Company's giving of notice of termination to Executive which specifies his
deficiencies in performance.
Section 3.2 Good Reason. For purposes of this Agreement, "Good Reason"
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shall mean, without the express written consent of Executive, the occurrence of
any of the following events unless such events are fully corrected within thirty
(30) days following written notification by Executive to the Company that he
intends to terminate his employment hereunder for one of the reasons set forth
below:
(a) a material breach by the Company of any material provision of this
Agreement or the Registration Rights Joinder Agreement, dated as of March
31, 1998, to which Executive is a party, including, but not limited to, the
assignment to Executive of any duties inconsistent with Executive's
position in the Company or a material adverse alteration in the nature or
status of Executive's responsibilities;
(b) relocation of Executive out of the metropolitan Atlanta area
provided, however, that the Executive shall from time to time, as may be
necessary to facilitate the Company's business, be required to render a
portion of his services hereunder at the Company's corporate headquarters
in Washington D.C.; or
(c) the occurrence of a "Change in Control" as defined below.
For purposes of this Agreement a "Change in Control" shall mean 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 30% 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 Acsys' 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
30% of the voting power of the voting stock of the surviving corporation
immediately after such transaction; or (iii) individuals who at the date of the
Merger 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 of the Merger 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.
Section 3.3 Severance. For purposes of this Agreement, Executive's
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entitlement to any severance payments upon termination of his employment shall
be as set forth below:
(a) Termination Without Cause. If Executive is terminated without
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Cause or resigns for Good Reason at any time, Executive shall be entitled to
severance pay of a lump sum equal to three times the sum of (i) his annual
salary then in effect plus (ii) the amount of his bonus as calculated based on
the results of operations for the twelve months prior to such termination.
(b) Voluntary Termination. If Executive voluntarily resigns for
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reason other than Good Cause, Executive shall receive a lump sum severance
payment equal to his then current annual salary. Executive shall provide a
minimum of thirty (30) days prior notice to the President of his resignation.
In the event Executive shall provide thirty (30) days prior written notice of
his intent to resign, the Company may accept such resignation effective as of
any date during such thirty (30) day
period as the Company deems appropriate, provided that Executive shall receive
from the Company his salary and be entitled to participate at the Company's
expense in any Company sponsored benefit programs in which he was a participant
as of the effective date of his resignation for the duration of such thirty (30)
day period.
(c) For Cause. Executive shall not be entitled to any severance pay
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whatsoever if his employment is terminated "for Cause" pursuant to Section
3.1(c) of this Agreement, unless severance pay is approved by the Board of
Directors of the Company in its sole discretion, provided, however, that the
Executive shall receive such annual salary that is accrued but unpaid up to the
date of such termination for Cause. If termination is for Cause pursuant to
Section 3.1(c)(vi), then Executive shall be entitled to severance equal to pay
for the remainder of the then current term of this Agreement, or equal to one
year's salary at his then current rate, whichever is greater.
ARTICLE IV
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GENERAL PROVISIONS
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Section 4.1 Withholding of Taxes. The Company may withhold from any
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amounts payable under this Agreement all federal, state, city or other taxes and
withholdings as shall be required pursuant to any applicable law, rule or
regulation.
Section 4.2 Notice. For purposes of this Agreement, all communications
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including, without limitation, notices, consents, requests or approvals,
provided for herein shall be in writing and shall be deemed to have been duly
given when personally delivered or five (5) business days after having been
mailed by United States registered mail or certified mail, return receipt
requested, postage prepaid, addressed to the Company (to the attention of the
Secretary of the Company) at its principal executive office or to Executive at
his principal residence, or to such other address as any party may have
furnished to the other in writing and in accordance herewith, except the notices
of change of address shall be effective only upon receipt.
Section 4.3 Validity; Severability. The covenants set forth in this
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Agreement are and shall be deemed and construed as separate and independent
covenants. It is not the intent of any party hereto to violate any public
policy of any jurisdiction in which this Agreement may be enforced. If any
term, covenant, condition or provision of this Agreement, or the application
thereof to any person or circumstance, shall to any extent be held invalid or
unenforceable by a court of competent jurisdiction because its duration, the
territory and/or the restricted activities are invalid or unreasonable in scope,
(i) each such term, covenant or provision of this Agreement shall be valid and
be enforced to the fullest extent permitted by law, shall be reformed to the
extent (and only to the extent) necessary to make it valid, enforceable and
legal taking into consideration the reasonable concerns and needs of the
Company's business interests such that the intent of the Company, in
consummating the transactions contemplated by the Agreement, will not be
impaired, provided that such invalid or unenforceable term, covenant, condition
or provision shall be curtailed, limited or eliminated only to the extent
necessary to remove such invalidity or unenforceability with respect to the
applicable law as it shall then be applied, and (ii) the remainder of this
Agreement or the application of such term, covenant, condition or provision to
persons or circumstances other than those as to which it is held invalid or
unenforceable shall not be affected thereby.
Section 4.4 Remedies. The restrictions contained in Article II of this
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Agreement are considered by the parties hereto to be fair and reasonable and
necessary for the protection of the legitimate business interests of the
Company. It is recognized that damages in the event of breach of
the provisions of this Agreement by Executive would be difficult, if not
impossible, to ascertain, and it is therefore agreed that the Company, in
addition to and without limiting any other remedy or right it may have, shall
have the right to an injunction or other equitable relief in any court of
competent jurisdiction, enjoining any such breach. The existence of this right
shall not preclude any other rights and remedies at law or in equity which the
Company may have. Any violation of the restrictions contained in Article II of
this Agreement shall automatically toll and suspend the period of restraint for
the amount of time that the violation continues, provided that the Company seeks
enforcement of such restraint promptly after discovery of the violation.
Executive agrees to indemnify and hold harmless the Company from and against any
loss, damage, liability, cost or expense, including but not limited to
reasonable attorneys fees, suffered or incurred by the Company as and when
incurred, by reason of, or arising out of, any breach of the covenants contained
in this Agreement.
Section 4.5 Entire Agreement. This Agreement supersedes any other
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agreements, oral or written, between the parties with respect to the subject
matter hereof, and contains all of the agreements and understandings between the
parties with respect to the employment of Executive by the Company. Any waiver
or modification of any term of this Agreement shall be effective only if it is
set forth in a writing signed by both parties hereto.
Section 4.6 Successors and Binding Agreement.
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(a) This Agreement shall be binding upon and inure to the benefit of
the Company and any Successor of or to the Company, but shall not otherwise be
assignable or delegable by the Company. "Successor" shall mean any successor in
interest, including, without limitation, any entity, individual or group of
persons acquiring directly or indirectly all or substantially all of the
business or assets of the Company, as the case may be, whether by sale, merger,
consolidation, reorganization or otherwise.
(b) The Company shall require any Successor to agree at the time of
becoming a Successor to perform this Agreement to the same extent as the
original parties would be required if no succession had occurred.
(c) This Agreement shall inure to the benefit of and be enforceable by
Executive's personal or legal representatives, executors, administrators, heirs,
distributes and legatees.
(d) This Agreement is personal in nature and neither of the parties
shall, without the consent of the other, assign, transfer or delegate this
Agreement or any rights or obligations hereunder except as expressly provided in
this Section 4.6.
Section 4.7 Governing Law. This Agreement shall be governed by, and
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construed and enforced in accordance with the laws of the State of Georgia
without regard to the choice of law rules utilized in that jurisdiction.
Section 4.8 Captions. The captions in this Agreement are solely for
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convenience of reference and shall not be given any effect in the construction
or interpretation of this Agreement.
Section 4.9 Miscellaneous. No provisions of this Agreement may be modified,
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waived or discharged unless such waiver, modification or discharge is agreed to
in a writing signed by Executive and the Company. No waiver by a party hereto
at any time of any breach by another party hereto or compliance with any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provision or conditions at the
same or at
any prior or subsequent time. Failure by the Company to insist upon strict
compliance with any of the terms, covenants or conditions hereof shall not be
deemed to be a waiver of such term, covenant or condition, nor shall any
relinquishment of any right of power hereunder by the Company any one or more
times be deemed a waiver or relinquishment of such right or power by the Company
at any other time or times.
Section 4.10 Counterparts. This Agreement may be executed in one or more
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counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the date first above written.
"Company":
ICON SEARCH AND CONSULTING, INC. "Executive":
By: /s/ Xxxxxx X. Xxxxxx /s/ Xxxxxx X. Xxxxxxx
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SIGNATURE XXXXXX X. XXXXXXX
Xxxxxx X. Xxxxxx Print Residence Address:
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Print Name 00000 Xxxxxxx Xxxx Xxxxx
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President
--------------------------- Xxxxxxxxxx, Xxxxxxx 00000
Print Title --------------------------
ACSYS, INC.
By: /s/ Xxxxxxx Xxxx, Xx.
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Xxxxxxx Xxxx, Xx.
Chief Executive Officer
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Print Title
EXHIBIT A
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BONUS CALCULATION
Executive shall receive quarterly bonuses for calendar year 1998 as follows:
Q2 1998: 10% OF ALL EBIT IN EXCESS OF $1,016,000
Q3 1998: 10% OF ALL EBIT IN EXCESS OF $1,520,000
Q4 1998: 10% OF ALL EBIT IN EXCESS OF $2,080,000
The quarterly bonus will be prorated for the remaining portion of the quarter
that the transaction is closed. the EBIT will be prorated actual EBIT for the
period the transaction closes based on the above benchmarks for the quarter.
the amounts will be prorated by the number of days remaining in the quarter that
the closing occurs.
After calendar year 1998, Executive shall receive such bonus compensation as
determined by the Board of Directors of the Company from time to time. Such
bonus compensation shall be determined based on the performance of the Company
and Acsys as a whole and the success of the integration of such businesses as
the Company may acquire.
