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EXHIBIT 10.29
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement"), is made effective as of
____, 2000, (the "Effective Date") by and between XXX XXXXXXX ("Executive"), a
resident of Illinois, and ACSYS, INC. ("Company"), a Georgia corporation.
Because Company desires to employ Executive and because Executive desires to be
employed by Company, both parties, in consideration of the mutual and exchanged
promises and agreements contained herein and of wages paid and services rendered
hereunder, hereby agree as follows:
SECTION 1. EMPLOYMENT.
(a) Subject to the terms contained in this Agreement, Company hereby
employs Executive and Executive hereby accepts such employment. Initially,
Executive shall have the title of Executive Director, IT Division of Company,
though this position and title subsequently may be changed by Company as
Company or its needs grow or change. Executive shall perform all duties
assigned by the Chief Executive Officer ("CEO") of Company or his or her
designee or by the Board of Directors or its designee. At least initially,
those duties shall include the duties set forth in Exhibit A, though such
duties may be changed from time to time by Company. Executive shall devote her
full business time and best efforts exclusively to rendering services on behalf
of Company. Executive agrees to perform faithfully, industriously, and to the
best efforts of Executive's experience and talent all of the duties that may be
required by the express and implicit terms of this Agreement, to the reasonable
satisfaction of Company. Such duties shall be provided at such place(s) and
time(s) as Company may require.
(b) The term of this Agreement (the "Term") shall commence on the
Effective Date and shall continue for a period of three (3) years thereafter,
unless terminated as set forth in Section 4 ("Termination") below. Upon the
expiration of the initial Term, this Agreement shall automatically renew for
successive additional terms ("Renewal Terms") of one (1) year each unless either
party notifies the other in writing of her/its intent to allow the Agreement to
expire at least thirty (30) days prior to the expiration of the then-current
Term or Renewal Term or unless either party terminates the Agreement in another
manner described in Section 4 ("Termination").
(c) Executive recognizes that she owes a duty of loyalty to Company
and she agrees that, while she is employed by Company pursuant to this
Agreement, she shall not be engaged in any other business. Executive shall
provide Company with all information, suggestions and recommendations Executive
conceives or learns regarding Company's business that could be of benefit to
Employer. Executive shall refrain from any activity or action that creates a
conflict of interest with Company, creates the appearance of a conflict of
interest with Company or reasonably could be expected to have a detrimental
effect upon any aspect of Company's performance or upon Executive's ability to
perform her duties. Executive shall not accept any position as a director,
trustee or other affiliate of any business organization, or as a director or
trustee of any civic or charitable organization.
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without the prior written approval of the Chief Executive Officer of Company,
which approval shall not unreasonably be withheld.
SECTION 2. COMPENSATION.
(a) Base Salary. While employed hereunder, Executive shall be paid a
salary at the annual rate of Two Hundred and Fifty Thousand Dollars
($250,000.00), less withholding for taxes and deductions for other appropriate
items ("Base Salary"). Executive's Base Salary shall be paid in approximately
equal installments no less than monthly. Any Base Salary adjustments shall be
in the discretion of the Chief Executive Officer or the Board of Directors but
Base Salary may not be reduced below $250,000.00 during the Term of this
Agreement. All compensation payments will cease upon termination of this
Agreement; provided, however, that Executive shall be paid for all time worked
prior to the termination.
(b) Bonus. During Executive's employment hereunder, Executive will
be eligible to receive certain cash bonus payments in an amount determined by
the Chief Executive Officer, if Executive's performance and the performance of
Company meet certain criteria set by the Chief Executive Officer, and Executive
otherwise complies fully with this Agreement. In no event shall the annual
bonus be less than Fifty Thousand Dollars ($50,000.00) during the Term of this
Agreement.
SECTION 3. BENEFITS.
(a) Employee Benefit Plans. Executive shall be provided the
opportunity to participate in employee benefit plans made available from time
to time to the majority of senior executive management employees of Company,
subject to the terms, conditions and eligibility requirements of each benefit
plan.
(b) Vacation. Executive shall be entitled to twenty-six (26) days
paid time off ("PTO") annually during her employment hereunder. Any PTO not
used during any calendar year shall be forfeited, except that eighty (80)
hours' unused PTO may be carried forward to the calendar year immediately
following the year in which such paid time off entitlement accrued.
(c) Business Expenses. Executive shall be entitled to 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 for the benefit of Company and subject to Company's
established policies for reimbursement of business expenses. Company expects
Executive to attend and participate in continuing education seminars and
courses with respect to the staffing industry and business management related
to her duties, and Company will reimburse Executive for all ordinary and
necessary expenses of such attendance and participation subject to Executive
having obtained prior approval for such participation from the Chief Executive
Officer. Such continuing education courses and seminars will be scheduled in
conjunction with the other senior management employees of the Company in order
to assure coordination of schedules.
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SECTION 4. TERMINATION.
Notwithstanding anything contained herein to the contrary, this
Agreement may be terminated at any time by either party in accordance with the
following terms:
(a) Death. In the event of Executive's death, this Agreement shall
terminate immediately and Company shall be obligated to Executive's family or
estate only for pro-rated salary and bonus actually earned or accrued as of the
date of Executive's death.
(b) Termination -Without Cause. Company may terminate Executive's
employment at any time without cause by providing Executive with written notice
of the termination. If Company terminates Executive's employment hereunder,
Company shall be obligated to pay Executive's pro-rated salary and pro-rated
bonus, if any, only through the actual effective date of termination. In
addition, if Executive executes a separation agreement including a general
release and reaffirmation of certain covenants in this Agreement in a form
acceptable to Company, Company shall pay Executive an amount equal to one (1)
year of Executive's salary and guaranteed bonus; provided, however, that if such
termination occurs upon or after a Change in control, as defined below,
Executive shall be paid in accordance with Section 4(f) below. Company shall
have no other payment obligation under this Agreement or otherwise. Unless
specifically required to be paid by law, other compensation and benefits,
including accrued but unused PTO, will not be provided or paid after
termination.
(c) Termination for Cause. Company may terminate Executive's
employment at any time for Cause by providing Executive with written notice of
the termination. "Cause" shall include, but not be limited to, the following:
(i) any conduct by Executive involving moral turpitude that has
the potential to result in adverse publicity for Company or otherwise to damage
the business or reputation of Company;
(ii) Executive's commission or conviction of, or pleading guilty
or nolo contendere (or any similar plea or admission) to, a felony or a criminal
act involving dishonesty or other moral turpitude;
(iii) any misconduct on the part of Executive in complying with
the terms of this Agreement, in connection with her employment or in connection
with or affecting the business of the Company or any parent or subsidiary of
Company, if not remedied within ten (10) business days after Company's
providing notice thereof;
(iv) any failure or refusal on the part of Executive to perform
her duties under this Agreement or to obey lawful directives from the Chief
Executive Officer or Board of Directors of Company, or either of their
designees, if not remedied within ten (10) business days after Company's
providing notice thereof;
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(v) Executive's disability (defined as her inability to
perform the essential functions of her job for more than twelve (12) workweeks
in any one (1) year period);
(vi) any violation of any policy of Company relating to equal
employment opportunity or harassment;
(vii) any material violation of any policy of Company relating
to business conduct or conflict of interest if not remedied within ten (10)
business days after Company's providing notice thereof;
(viii) any breach by Executive of any obligation under this
Agreement if not remedied within ten (10) business days after Company's
providing notice thereof.
(ix) Executive's failure to meet performance expectations which
are reasonable and consistent with Executive's position, as determined by the
Company's Chief Executive Officer, provided, however, that in the event of this
Section 4(c)(ix) being the sole reason for termination for Cause, Executive
shall have the following cure provisions and rights: In the event of a
determination by the Company's Chief Executive Officer that 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 her performance. Executive shall then have a period of
thirty (30) 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 thirty (30) day period no such
cure has been effected to the reasonable satisfaction of the Chief Executive
Officer of the Company, then Executive's employment shall be terminated as of
the end of such thirty (30) 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 Executive is
determined by the Chief Executive Officer to have again failed to meet
performance expectations, then her employment may be terminated immediately
upon the Company's giving of notice of termination to Executive which specifies
her deficiencies in performance.
If Company terminates Executive's employment for Cause hereunder, Company shall
be obligated to pay Executive's prorated Base Salary and accrued guaranteed
bonus only through the actual effective date of termination and shall have no
other payment obligation or other liability to Executive under this Agreement
or otherwise. If Company terminates Executive's employment for Cause pursuant
to Section 4(c)(ix), Executive shall not be bound by the noncompetition
restriction in Section 7(c) below. Unless specifically required to be paid by
law, other compensation and benefits will not be provided or paid after
termination.
(d) Resignation Without Good Reason. Executive may resign from
employment hereunder at any time by providing Company with written notice at
least one (1) month in advance of the effective date of the resignation.
Company may, at its sole discretion, elect
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to pay Executive prorated salary and guaranteed bonus, if applicable, in lieu
of any part, or all, of the notice period and shall have no other payment
obligation under this Agreement or otherwise. In addition, in event of such
termination, Executive shall repay to Employer in a lump sum on the effective
date of her resignation that pro rata amount of any relocation expenses paid to
her, or on her behalf, by Company as the then-unexpired Term hereof bears to
the term of this Agreement.
(e) Resignation With Good Reason. Executive may resign from
employment for Good Reason. For purposes of this Agreement, "Good Reason" shall
mean:
(i) Company's material breach of any material provision of this
Agreement that is not cured within ten (10) business days after Company's
receipt of written notice from Executive describing the alleged breach;
(ii) After a Change of Control, as defined below, Company's
assignment to Executive, without the consent of Executive, of duties materially
inconsistent with Executive's position in Company, Company's removing Executive
from executive job status, Company's reduction in Executive's Base Salary as
defined above or Company's materially changing the method of operating the
business for which Executive was responsible prior to the Change of Control; or
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 Rule13d-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 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 70% 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
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then in office; or (iv) the Company is liquidated or dissolved or adopts a plan
of liquidation.
(f) In the event of Executive's resignation for Good Reason prior to
a Change of Control, and if Executive executes a separation agreement including
a general release and reaffirmation of certain covenants in this Agreement in a
form acceptable to Company, Executive shall be entitled to severance pay of a
lump sum equal to one (1) year of Base Salary and guaranteed bonus at her
then-current rate. In the event of Executive's resignation for Good Reason that
occurs after a Change of Control, or the termination of her employment by
Company without Cause upon or after a Change of Control, and if Executive
executes a separation agreement including a general release, reaffirmation of
certain covenants in this Agreement and other promises in a form acceptable to
Company, Executive shall be entitled to severance pay of a lump sum equal to
three (3) times her Base Salary and guaranteed bonus at her then-current rate.
In the event of a Change in Control, there shall be deposited into escrow
immediately prior to the Change in Control the cash amounts payable to the
Executive pursuant to this Section 4(f). If, within one (1) year following the
Change of Control, the Executive terminates her employment for Good Reason
pursuant to Section 4(e) above or Company terminates Executive's employment
without Cause, the escrowed funds will be released to Executive at that time.
If Executive does not resign for Good Reason and her employment is not
terminated by Company without Cause within one (1) year following the Change of
Control, the escrowed funds will be released to the Company at the end of such
one-year period, without prejudice to the Company's obligation to pay such
amounts when and if they later become due under Section 4(e) or (f). Any
interest earned on the escrowed funds during escrow will be paid to the
Company.
(g) Limitation of Benefits.
(i) Notwithstanding anything in this Agreement to the
contrary, in the event it shall be determined that any benefit, payment or
distribution by the Company to or for the benefit of Executive (whether payable
or distributable pursuant to the terms of this Agreement or otherwise) (such
benefits, payments or distributions are hereinafter referred to as "Payments")
would, if paid, be subject to the excise tax (the "Excise Tax") imposed by
Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"),
then the aggregate present value of the Payments shall be reduced (but not
below zero) to an amount expressed in present value that maximizes the
aggregate present value of the Payments without causing the Payments or any
part thereof to be subject to the Excise Tax and therefore nondeductible by the
Company because of Section 28OG of the Code (the "Reduced Amount"). For
purposes of this Section 4(g), present value shall be determined in accordance
with Section 280G(d)(4) of the Code. In the event, after the exhaustion of all
remedies, it is necessary to reduce the Payments, the Executive shall direct
which Payments are to be modified or reduced, and the difference between the
Payments and the Reduced Amount shall be treated for all purposes as a loan to
Executive, which Executive shall repay to the Company together with interest at
the applicable Federal rate provided for in Section 7872(f)(2) of the Code.
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(ii) All determinations required to be made under this Section
4(g), including whether an Excise Tax would otherwise be imposed, whether the
Payments shall be reduced, the amount of the Reduced Amount, and the
assumptions to be utilized in arriving at such determinations, shall be made by
Xxxxxx Xxxxxxxx LLP or such other certified public accounting firm reasonably
acceptable to the Company as may be designated by Executive (the "Accounting
Firm") which shall provide detailed supporting calculations both to the Company
and Executive within fifteen (15) business days of the receipt of notice from
Executive that a Payment is due to be made, or such earlier time as is
requested by the Company. All fees and expenses of the Accounting Firm shall be
borne solely by the Company. Any determination by the Accounting Firm shall be
binding upon the Company and Executive. As a result of the uncertainty in the
application of Section 4999 of the Code at the time of the initial
determination by the Accounting Firm hereunder, it is possible that Payments
hereunder will have been unnecessarily limited by this Section 3.4
("Underpayment"), consistent with the calculations required to be made
hereunder. The Accounting Firm shall determine the amount of the Underpayment
that has occurred and any such Underpayment shall be promptly paid by the
Company to or for the benefit of Executive together with interest at the
applicable Federal rate provided for in Section 7872(f)(2) of the Code.
Termination of Executive's employment for any reason other than Retirement shall
constitute Executive's resignation from the Board of Directors of the Company,
to the extent that the Executive is a Director at such time.
SECTION 5. CONDITIONS OF EMPLOYMENT.
(a) In accordance with the Immigration Reform Control Act of 1986,
Executive must provide Company with documents demonstrating her identity and
authorization to work in the United States. If Executive fails to provide said
documents to Company, the Company's offer of employment pursuant to this
Agreement will be null and void.
(b) Executive shall sign an 1-9 form within the first three days of
Executive's employment.
SECTION 6. NONDISCLOSURE OF TRADE SECRETS AND CONFIDENTIAL INFORMATION.
(a) Trade Secrets Defined. As used in this Agreement, the term
"Trade Secrets" shall mean all secret, proprietary or confidential information
regarding Company or Company activities that fits within the definition of
"trade secrets" under the Georgia Trade Secrets Act. Without limiting the
foregoing or any definition of Trade Secrets, Trade Secrets protected hereunder
shall include all source codes and object codes for Company software and all
client consulting information and all lists of clients to the extent that such
information fits within the Georgia Trade Secrets Act. Nothing in this
Agreement is intended, or shall be construed, to limit the protections of the
Georgia Trade Secrets Act or any other applicable law protecting trade secrets
or other confidential information. "Trade Secrets" 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 right or
privilege of Company. This definition shall not limit any
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definition of "trade secrets" or any equivalent term under the Georgia Trade
Secrets Act or any other state, local or federal law.
(b) Confidential Information Defined. As used in this Agreement, the
term "Confidential Information" shall mean all information regarding Company,
Company's activities, Company's business or Company's clients that is not
generally known to persons not employed (as employees or independent agents) by
Company, that is not generally disclosed by Company practice or authority to
persons not employed by Company and is the subject of reasonable efforts to
keep it confidential. Confidential Information shall include, but not be
limited to product code, product concepts, production techniques, technical
information regarding Company products or services, production processes and
product/service development, operations techniques, product/service formulas,
information concerning Company techniques for use and integration of its
website and other products/services, current and future development and
expansion or contraction plans of Company, sale/acquisition plans and contacts,
marketing plans and contacts, information concerning the legal affairs of
Company and certain information concerning the strategy, tactics and financial
affairs of Company. "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 right or privilege of
Company. This definition shall not limit any definition of "confidential
information" or any equivalent term under the Georgia Trade Secrets Act or any
other state, local or federal law.
(c) Nondisclosure of Confidential Information. During Executive's
employment hereunder, except in the course of her duties hereunder and in
furtherance of the best interests of Company, and for a period of two (2) years
after Executive's employment with Company terminates for any reason, Executive
shall not directly or indirectly transmit or disclose any Trade Secrets or
Confidential Information to any person, concern or entity, or make use of any
such Confidential Information, directly or indirectly, for herself or for
others, without the prior express written consent of the Chief Executive
Officer of Company. During the term of this Agreement, except in the course of
her duties hereunder and in furtherance of the best interests of Company, and
perpetually thereafter, for so long as the information remains a Trade Secret,
Executive shall not directly or indirectly, for herself or for others, without
the prior express written consent of the Chief Executive Officer of Company,
transmit or disclose any Trade Secrets to any person, concern or entity, or
make use of any such Trade Secrets. Executive warrants that she has not
disclosed or used for her own benefit or the benefit of anyone other than
Company any Confidential Information or Trade Secrets prior to the execution of
this Agreement.
(d) Enforceability of Covenants. Executive and Company agree that
Executive's obligations under these nondisclosure covenants are separate and
distinct from other provisions of this Agreement, and a failure or alleged
failure of Company to perform their obligations under any provision of this
Agreement or other agreements with Company shall not constitute a defense to
the enforceability of these nondisclosure covenants.
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Nothing in this provision or this Agreement shall limit any rights or remedies
otherwise available to Company under federal, state or local law.
SECTION 7. NONRECRUITMENT, NONSOLICITATION AND NONCOMPETITION COVENANTS.
(a) Nonrecruitment of Employees. In consideration of the
compensation and benefits being paid and to be paid by Company to Executive
hereunder, Executive hereby agrees that, during employment with Company and for
one (1) year after the termination of Executive's employment for any reason,
Executive shall not, directly or indirectly solicit or recruit for employment
or encourage to leave employment with Company, on her own behalf or on behalf
of any other person or entity other than Company or any affiliate of Company,
any person with whom Executive worked during Executive's employment and who
performed services for Company clients or worked on Company products or
services while employed by Company and who has not thereafter ceased to be
employed by Company for a period of at least one (1) year. Executive agrees to
exercise her best efforts to prevent any of the activities listed in this
Section from occurring.
(b) Nonsolicitation of Customers. In consideration of the
compensation and benefits being paid and to be paid by Company to Executive
hereunder, Executive hereby agrees that, during employment with Company and
for one (1) year after the termination of Executive's employment, Executive
shall not, directly or indirectly, on behalf of herself or of anyone other than
Company, solicit or attempt to solicit for the purpose of providing permanent
and contract information technology staffing, information technology solutions
or information technology consulting services, any client of Company whom
Executive actively solicited or with whom Executive worked or otherwise had
material contact in the course of Executive's employment with Company.
Executive agrees to exercise her best efforts to prevent any of the activities
listed in this Section from occurring.
(c) Noncompetition. During the term of Executive's employment with
the Company, and for a period of one (1) year thereafter, except as provided in
Section 4(c)(ix) above 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 Company, the Business Activities. For purposes of this
Section 7(c), the "Business Activities" shall be the business activities over
which Executive had authority and control at Company, which consist of: (i)
outsourcing of information technology staffing services; (ii) temporary
information technology staffing services; and (iii) permanent placement
information technology (including information technology staffing and solution
services) staffing and consulting services on a contingent fee basis. For
purposes of this Section 7(c), the "Restricted Area" shall be the area that
is within a thirty (30) mile radius of the city of Atlanta, and within a thirty
(30) mile radius of the cities where Executive is responsible for carrying out
the Business Activities on behalf of Company, which cities are listed on
Exhibit B. Exhibit B may be amended from time to time to ensure that it
accurately reflects the actual territory in which Executive has responsibility
for carrying out Business Activities and Executive agrees to execute amendments
proposed by Company for that
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purpose. Nothing in this Section 7(c) 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.
(d) Enforceability of Covenants. Executive 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 she
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 her from engaging
in a lawful profession, trade or business, or from becoming gainfully employed.
Executive and Company agree that Executive's obligations under the above
covenant are separate and distinct under this Agreement, and the failure or
alleged failure of Company to perform its obligations under any other
provisions of this Agreement shall not constitute a defense to the
enforceability of this covenant. Executive agrees that any breach of this
covenant will result in irreparable damage and injury to Company and that
Company will be entitled to injunctive relief in any court of competent
jurisdiction without the necessity of posting any bond. Executive also agrees
that she shall be responsible for all damages incurred by Company due to any
breach of the restrictive covenants contained in this Agreement and that
Company shall be entitled to have Executive pay all costs and attorneys' fees
incurred by Company in enforcing the restrictive covenants in this Agreement.
SECTION 8. OWNERSHIP OF PROTECTED WORKS.
(a) Protected Works. The term "Protected Works" as used in this
Agreement means any and all ideas, inventions, formulas, source codes, object
codes, techniques, processes, concepts, systems, programs, software, software
integration techniques, hardware systems, schematics, flow charts, computer
data bases, client lists, trademarks, service marks, brand names, trade names,
compilations, documents, data, notes, designs, drawings, technical data and/or
training materials, including improvements thereto or derivatives therefrom,
whether or not patentable, or subject to copyright or trademark or trade secret
protection, developed and produced by Executive pursuant to this Agreement or
other agreements between Executive and Company and used or intended for use by
or on behalf of Company, or Company's clients.
(b) Ownership and Assignment of Protected Work. Executive agrees that
any and all Protected Works developed by Executive during her employment or
other engagement with Company under this Agreement and during her employment
with, or other engagement by Company prior to the execution of this Agreement
(whether as employee or independent contractor) are the sole property of
Company, and that no compensation in addition to the amounts set forth in
Section 2 of this Agreement is due to Executive for development or transfer of
such Protected Works. Executive hereby assigns
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and agrees to assign all of her respective rights, title and interest in
Protected Works, including all patents or patent applications, and all
copyrights therein, to Company. Executive further agrees at Company's request
and without further consideration, but at the expense of Company, that
Executive will communicate to Company any facts known to Executive and testify
in any legal proceedings, sign all lawful papers, make all rightful oaths,
execute all divisional, continuing, continuation-in-part, or reissue
applications, all assignments, all registration applications and all other
instruments or papers to carry into full force and effect, the assignment,
transfer and conveyance hereby made or intended to be made and generally do
everything possible for title to the Protected Works and all patents or
copyrights or trademarks or service marks therein to be clearly and exclusively
held by Company. Executive agrees that she will not apply for any state,
federal, or other jurisdiction's registration of rights in any of the Protected
Works and that she will not oppose or object in any way to applications for
registration of same by Company or others designated by Company. Executive
agrees to exercise reasonable care to avoid making the Protected Works
available to any third party. Executive also agrees that she shall be liable to
Company for all damages, including reasonable attorneys' fees and other
expenses of litigation, if the Protected Works are made available to third
parties in any manner by Executive, intentionally or because of her failure to
use reasonable care to avoid disclosure, without the express written consent of
Company.
(c) Executive agrees to disclose and describe to Company, as soon as
possible after their creation, (i) all copyrightable works, databases, data and
other "Protected Works," as defined in subsection (a) above, which are
created by Executive, either alone or with others, during the term of
Executive's employment, or in connection with the formation of Company, and
(ii) all Protected Works which are based in whole or in part upon Confidential
Information or Trade Secrets and are created by Executive, either alone or with
others, within one (1) year after Executive's leaving Company's employ.
(d) There is no other contract or duty on Executive's part now in
existence to assign Protected Works to anyone other than Company. Executive
will not disclose or induce Company to use any confidential information or
material that Executive is now or shall become aware of which belongs to
anyone other than Company.
SECTION 9. RIGHTS TO MATERIALS AND RETURN OF MATERIALS.
All records, files, software, software code, memoranda, reports, price
lists, customer lists, drawings, plans, sketches, documents, technical
information, information on the use, development and integration of software,
and the like (together with all copies of such documents and things) relating
to the business of Company, which Executive shall use or prepare or come in
contact with in the course of, or as a result of, Executive's employment or
other engagement by Company shall, as between the parties to this Agreement,
remain the sole property of Company. Laptop computers, other computers,
software and related data, information and things provided to Executive by
Company or obtained by Executive, directly or indirectly, from Company, also
shall remain the sole property of Company. Upon the termination of Executive's
employment or upon the prior demand of Company, Executive shall immediately
return all such materials and things to Company and shall not
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retain any copies or remove or participate in removing any such materials or
things from the premises of Company after termination or Company's request for
return.
SECTION 10. INVENTIONS, DISCOVERIES AND IMPROVEMENTS.
(a) Executive will promptly disclose and describe to Company (i) all
inventions, improvements, discoveries and technical developments, whether or
not patentable, made or conceived by Executive, either alone or with others
("Inventions"), during the term of Executive's employment with Company or other
engagement with Company, provided that Company shall receive such information
in confidence and (ii) all Inventions which are based in whole or in part upon
Confidential Information or Trade Secrets and are made or conceived by
Executive, either alone or with others, within one (1) year after Executive's
leaving Company's employ. All such Inventions, whether patentable or
unpatentable, made, devised or discovered by Executive, whether by herself or
jointly with others, which relate or pertain in any way to the business of
Company, shall be used solely for the benefit of Company and become and remain
their sole and exclusive property. Executive agrees to execute an assignment to
Company or its nominee of Executive's entire right, title and interest in and
to such Inventions made or conceived by Executive, either alone or with others,
during the term of Executive's employment or within one (1) year after
Executive's leaving Company's employ, and to execute any other instruments and
documents that may be requested by Company for the purpose of applying for and
obtaining patents with respect to such Inventions in the United States and in
all foreign countries. Executive further agrees, whether or not in the employ
of Company, to cooperate to the extent and in the manner reasonably requested
by Company in the prosecution or defense of any patent claims or any litigation
or other proceedings involving any such Inventions, but all of Executive's
reasonable expenses in connection with such litigation or other proceedings
shall be paid by Company.
(b) If a patent application or copyright registration is filed by
Executive or on Executive's behalf during Executive's employment or other
engagement with Company, whether before or after execution of this Agreement,
or within one (1) year after Executive's leaving Company's employ, describing
an Invention within the scope of Executive's work for Company or which
otherwise relates to a portion of Company's business, of which Executive had
knowledge during Executive's employment with Company, it is to be conclusively
presumed that the Invention was conceived by Executive during the period of
such employment.
(c) There is no other contract or duty on Executive's part now in
existence to assign Inventions other than to Company. Executive will not
disclose or induce Company to use any confidential information or material that
Executive is now or shall become aware of which belongs to anyone other than
Company.
(d) Executive warrants and represents that attached to this
Agreement as an Exhibit (Exhibit C) and incorporated in this Agreement by
reference is a complete list of all inventions, whether owned by Executive or
by others, conceived by Executive prior to Executive's employment by Company,
that these are the only inventions which are not
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subject to this Agreement, and that Executive has not conceived or reduced to
practice any invention not described on such Exhibit B.
SECTION 11. WORKS MADE FOR HIRE.
Company and Executive acknowledge that in the course of Executive's
employment (as employee or independent contractor) by Company, Executive may
from time to time create, and has previously created, for Company copyrightable
works. Such works may consist of manuals, pamphlets, instructional materials,
computer programs, software, software integration techniques, software codes,
and data, technical data, photographs, drawings, logos, designs, artwork or
other copyrightable material, or portions thereof, and may be created within or
without Company's facilities and before, during or after normal business hours.
All such works related to or useful in the business of Company are specifically
intended to be works made by hire by Executive, and Executive shall cooperate
with Company in the protection of Company's copyrights in such works and, to
the extent deemed desirable by Company, the registration of such copyrights.
SECTION 12. COMPLIANCE WITH POLICIES AND LAWS.
(a) Policies. Executive agrees to comply in all material respects
with any and all Company policies, work rules or standards of conduct and
pledges to observe order and discipline of work.
(b) Waiver. Executive agrees to abide by the laws of the United
States and all other applicable jurisdictions and to act in the best interest
of Company.
SECTION 13. MISCELLANEOUS.
(a) Severability. The covenants set forth in this Agreement shall be
considered and construed as separate and independent covenants. Should any part
or provision of any covenant be held invalid, void or unenforceable in any
court of competent jurisdiction, such invalidity, voidness or unenforceablity
shall not tender invalid, void or unenforceable any other part or provision of
this Agreement. If any portion of the foregoing provisions is found to be
invalid or unenforceable by a court of competent jurisdiction because of its
duration, the territory, the definition of activities or the definition of
information covered is invalid or unreasonable in scope, the invalid or
unreasonable term shall be redefined, or a new enforceable term provided, such
that the intent of Company and Executive in agreeing to the provisions of this
Agreement will not be impaired and the provision in question shall be
enforceable to the fullest extent of the applicable laws.
(b) Waiver. The waiver by any party to this Agreement of a breach of
any of the provisions of this Agreement shall not operate or be construed as a
waiver of any other or subsequent breach.
(c) Withholding of Taxes. Company may withhold from any 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.
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(d) Notice. For purposes of this Agreement, all communications
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 Company (to the attention of the
Secretary of the Company) at its principal executive office or to Executive at
her 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.
(e) Governing Law. This Agreement shall be deemed to be made in and
shall in all respects be interpreted, construed and governed by and in
accordance with the laws of the State of Georgia (without giving effect to the
conflict of law principles thereof), except for Section 7 ("Nonrecruitment,
Nonsolicitation and Noncompetition"), which shall be governed by Illinois law
(without giving effect to the conflict of law principles thereof). No provision
of this Agreement or any related documents shall be construed against, or
interpreted to the disadvantage of, any party hereto by any court or any
governmental or judicial authority by reason of such party having, or being
deemed to have, structured or drafted such provision.
(f) Entire Agreement. This Agreement is intended by the parties
hereto to be the final expression of their agreement with respect to the subject
matter hereof and this is the complete and exclusive statement of the terms of
their agreement, notwithstanding any representations, statements or agreements
to the contrary heretofore made. This Agreement supersedes any former agreements
governing the same subject matter. This Agreement may be modified only by a
written instrument signed by each of the parties hereto expressly stating that
it is intended to amend this Agreement. Nothing in this Agreement or Executive's
employment shall be construed to give Executive any rights, of ownership or
otherwise, in any Protected Works, Inventions, Works Made for hire or other
software, hardware, data or systems that she creates or obtains, or has created
or obtained, while employed or otherwise engaged by Company.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
ACSYS, INC EXECUTIVE
By: /s/ /s/ Xxx Xxxxxxx
--------------------------- -------------------------
Title: CEO Xxx Xxxxxxx
2-28-2000 2-7-2000
------------------------------ -------------------------
DATE DATE
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EXHIBIT A
EXECUTIVE'S DUTIES
00
XXXXXXX X
XXXXXXXXX
Xxxxxxx, XX
Tampa, FL
Lake Mary, FL
Charlotte, NC
Philadelphia, PA
Xxxxx, PA
Melville, NY
Los Colinas, TX
Dallas, TX
17
EXHIBIT C
EXECUTIVE'S PRIOR INVENTIONS
