EXHIBIT (d)(2)
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made as of September,
1997 (the "Effective Date"), by and between ICCE, Inc. ("ICCE"), a Georgia
corporation, ACSYS Resources, Inc. (the "Company"), a Pennsylvania
corporation and a wholly owned subsidiary of the Company, and Xxxxx X. Xxxxx,
an individual resident of Pennsylvania (the "Executive").
WHEREAS, Executive was an executive officer and shareholder of ACSYS
prior to its merger with a subsidiary of the Company (the "Merger");
WHEREAS, the Company recognizes the contributions of the Executive in
such capacity;
WHEREAS, Executive is expected to make a significant contribution to the
success and development of the Company; 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 and the Company
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
EMPLOYMENT
Section 1.1 TERM OF EMPLOYMENT. The term of Executive's employment
hereunder shall commence on the Effective Date hereof and continue for a
period of three (3) years, 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 employed full time as the 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 Chief Operating Officer of ICCE, 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
this Agreement, the Company shall pay Executive a base salary of $150,000 per
annum payable in bi-weekly installments. The Executive shall also be paid a
bonus 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 ICCE as a whole and the success of the integration of such
businesses as the Company may acquire. 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.
(a) VACATION. Executive shall be entitled to six (6) weeks paid
vacation annually during his employment by the Company hereunder. Any
vacation not used during any calendar year shall be forfeited, except that
one week's unused vacation may be carried forward to the year following the
year in which such vacation entitlement accrued.
(b) LIFE, DISABILITY AND RETIREMENT PROGRAMS. Executive shall be
entitled to participate in any life, disability and retirement programs that
are generally offered to or provided for the senior management personnel of
the Company and its subsidiaries.
(c) GROUP INSURANCE. Executive shall be entitled to participate
in such group health and dental insurance programs (including spouse
coverage) as may from time to time be offered generally to all of the other
members of the senior management personnel of the Company and its
subsidiaries.
Section 1.5 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 in accordance with the Company's
established policies for reimbursement of business expenses. 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
COVENANTS OF EXECUTIVE
Section 2.1 CONFIDENTIALITY. Executive recognizes the interest of the
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, ICCE's 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 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 substitiute 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 Philadelphia, 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
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
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, ICCE 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
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, ICCE, 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
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 is of direct and material benefit to
Executive and is 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
TERMINATION OF EMPLOYMENT
Section 3.1 TERMINATION BY COMPANY. Executive's employment may be
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 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 violates 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, PROVIDED, however, that 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"
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 Agreement, dated as of May
16, 1997, 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 Philadelphia
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 ICCE'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 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
entitlement to any severance payments upon termination of his employment
shall be as set forth below:
(a) TERMINATION WITHOUT CAUSE.
(i) Executive may not be terminated prior to a firm
commitment underwritten public offering of the
Company's equity securities;
(ii) If Executive is terminated without 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
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 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
GENERAL PROVISIONS
Section 4.1 WITHHOLDING OF TAXES. The 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.
Section 4.2 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 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
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
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
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.
(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
construed and enforced in accordance with the laws of the Commonwealth of
Pennsylvania without regard to the choice of law rules utilized in that
jurisdiction.
Section 4.8 CAPTIONS. The captions in this Agreement are solely for
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, 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
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":
ICCE, Inc. "Executive"
By: /s/ Xxxx Xxxxxxxxx /s/ Xxxxx X. Xxxxx
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Signature Xxxxx X. Xxxxx
Xxxx Xxxxxxxxx Print Residence Address:
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Print Name
0000 Xxxxxx Xxxx
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President
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Print Title Xxxx Xxxx, XX 00000
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