Exhibit 10.23
SEPARATION AND RELEASE AGREEMENT
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This Separation and Release Agreement ("Separation Agreement") is entered
into as of the 12th day of March, 1999, by and between Acsys, Inc., formerly
ICCE, Inc., (hereinafter the "Company"), and Xxxxxx X. Xxxxxxxxx (hereinafter
the "Employee").
WHEREAS, the Employee has been employed by the Company in the capacity of
President and Chief Operating Officer pursuant to that Employment Agreement
dated August, 1997, as amended in Amendment No. 1 to Employment Agreement, dated
October 14, 1997, (collectively referred to herein as the "Employment
Agreement"); and
WHEREAS, the Employee has also served as a member of the Board of Directors
of the Company; and
WHEREAS, the Employee and the Company have mutually agreed to the
termination of his employment and his resignation from the Company's Board of
Directors; and
WHEREAS, the Company and the Employee have agreed to a severance
arrangement pursuant to the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual promises
herein contained, the parties hereto agree as follows:
1. Termination of Employment and Resignation from Board of Directors. The
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Company and the Employee agree that the Employee's employment with the Company
will be terminated as of the day and year first above written, and that the
Employee has been paid all wages and compensation due him through the date of
termination. The Company and the Employee further agree that, contemporaneously
with the signing of this Separation Agreement, the Employee shall resign as a
member of the Company's Board of Directors by executing the letter of
resignation attached hereto as Exhibit A, and agree that the Employee's
resignation is not the result of a disagreement with the Company relating to the
Company's operations, policies or practices.
2. Severance Benefits.
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(a) The Company shall make a one time gross payment to the Employee of
$600,000.00, paid in a lump cash sum immediately following the full
execution of this Separation Agreement, less withholding for
applicable taxes and less the amount set forth in Exhibit B attached
hereto. This payment shall be reported by the Company as W-2 income
received by the Employee. The Employee's obligations and duties
under this Separation Agreement are conditioned and contingent upon
the Employee's receipt of the payment to be made under this Section
2(a).
3. Covenants of Employee. In consideration for the severance benefits
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described in Section 2 hereof and the covenants of the Company set forth in
Section 4 below, the Employee:
(a) Agrees that, subject to the exceptions noted herein, for a period of
one (1) year following the day and year first above written, he will
not say anything that (i) criticizes or disparages the management
practices or services of the Company or any of its affiliates, or
(ii) disrupts or impairs the normal, ongoing business operations of
the Company or any of its affiliates (provided, however, that this
covenant shall not prohibit or impair the Employee's right to
compete with the Company, solicit Customers or engage or participate
in, as a business executive or equity owner of, any business or
enterprise that competes with the Company or any line of business
with the Company), and, further, will not directly or indirectly (a)
call or seek to call a Special Meeting of the shareholders; (b)
execute a written consent under O.C.G.A. (S) 14-2-704 to take action
without the necessity of a shareholder meeting; (c) undertake those
matters set forth in Item 4(b)-(d) of Schedule 13D (Rule 13d-1) of
Section 13 of the Exchange Act of 1934; (d) participate as part of a
"group" for purposes of Section 13 of the Exchange Act or Rule 13(d)
and (e) thereunder; (e) participate in the solicitation of proxies
or a tender-offer pursuant to Regulation 14A and 14D, respectively;
(f) seek or propose to acquire control of the Company's Board of
Directors; (g) take any action that could reasonably be expected to
force the Company to make a public announcement regarding any of the
types of matters referred to above; (h) enter into any discussions,
negotiations, agreements, arrangements or understandings with any
third party with respect to any of the foregoing; or (i) seek or
encourage others (through providing financing or otherwise) to take
any of the actions set forth in (a) through (i) above, provided,
however, that the provisions of this subparagraph 3(a) shall not
restrict the manner in which Employee may vote his shares of stock
in the Company, so long as the restrictions of this subparagraph
3(a) are otherwise complied with. The Employee will be released from
this covenant at the end of the first six (6) months of this one (1)
year period in the event that the NASDAQ National Market closing
sales price of the Company's stock is below $3.00 per share for a
period of twenty (20) consecutive trading days during this first six
(6) month period, provided, however, that the Employee is not
selling his stock during any such consecutive twenty (20) day
period. In addition, the Employee will immediately be released from
this covenant in the event that the NASDAQ National Market closing
sales price of the Company's stock is below $5.00 per share for a
period of twenty (20) consecutive trading days during the second six
(6) months of this one (1) year period, again, provided that the
Employee is not selling his stock during any such consecutive twenty
(20) day period. Notwithstanding the foregoing, the Employee shall
be entitled to respond
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to any inquiry regarding the Company, its performance or its
operations by stating "no comment", or language to that effect.
(b) Agrees that he will not retain or destroy, and will return to the
Company, any and all property of Company in his possession or
subject to his control including, but not limited to, keys, credit
and identification cards, computers, personal items or equipment
provided to him for his use, together with all written or recorded
materials, documents, computer discs, plans, records, notes or other
papers belonging to the Company. Notwithstanding the foregoing, the
Employee shall be permitted to retain (i) the Company issued laptop
computer currently in his possession, provided, however, that the
Company shall retain the hard drive from such computer, and (ii) any
personal correspondence and notes belonging to the Employee relating
to Company business, provided, however, that copies of any such
correspondence and notes are provided to the Company upon request.
(c) Acknowledges and agrees that, for a period of one (1) year from the
day and year first above written, he will not, without the Company's
prior written permission, directly or indirectly hire or assist,
suggest or encourage others to hire any individual who is at any
time during this one (1) year period an employee of the Company or
any of its subsidiaries for the purpose of providing services that
are the same or similar to the types of services offered or engaged
in by the Company or any of its subsidiaries as of the day and year
first above written, provided, however, that nothing herein shall
prohibit the Employee, upon request, from providing a verbal
recommendation or written letter of reference for any individual who
is no longer employed by the Company.
(d) For himself, his successors and assigns, now and forever, hereby
releases and discharges the Company and its officers, directors,
stockholders, employees, agents, parent corporations, subsidiaries,
affiliates, successors, assigns and attorneys, from any and all
claims, legal or equitable actions, liability or litigation, real or
contemplated, known or unknown, that the Employee may now have or
may later claim to have had against any of the releasees arising out
of anything that has occurred up to and through the date hereof,
including without limitation, any claims arising by virtue of his
status as a shareholder and/or director of the Company, and out of
his employment or termination of employment with the Company with
the exception of the Employee's salary, vacation and holiday
benefits accrued through the date hereof, reimbursable expenses
incurred by the Employee through the date hereof, and the Employee's
COBRA benefits. The Employee hereby releases those claims that could
have been asserted by him in connection with any claim or suit for
wrongful discharge or any claim under either state or federal
employment or discrimination laws including, without limitation
Title VII of the Civil Rights Act of 1964, the
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Age Discrimination in Employment Act and the Americans with
Disabilities Act. The Employee acknowledges that he may have
sustained or may yet sustain damages, costs or expenses that are
presently unknown and that relate to claims between him and the
parties released by this Separation Agreement. For the purpose of
implementing a full and complete release and discharge of the
releasees, the Employee expressly acknowledges this Separation
Agreement is intended to include in its effect, without limitation,
all claims that he does not know or suspect to exist in his favor at
the time he signs this Separation Agreement, and that this
Separation Agreement contemplates the extinguishment of any such
claim or claims. The Employee shall forever refrain and forbear from
commencing, instituting or prosecuting any lawsuit, action, claim or
proceeding before or in any court, regulatory, governmental,
arbitral or other authority against the parties released hereby or
naming or joining such releasees as parties to collect or enforce
any claims or causes of action which are released and discharged
hereby. Employee hereby acknowledges and agrees that he has
knowingly relinquished, waived and forever released any and all
other remedies that might be available to him, including without
limitation, claims for back pay, front pay, fringe benefits,
contract and personal injury damages, punitive damages and
attorneys' fees or expenses of litigation.
The foregoing release and covenant not to xxx is not, however,
intended to release or apply to, and shall not release or apply to,
any rights of the Employee (i) under this Separation Agreement or to
enforce any right, term or provision of this Separation Agreement,
(ii) to receive benefits under any Company insurance or other
benefit plans that either have accrued or vested prior to the date
hereof or that are intended under such plans to survive an
employee's termination or separation from the Company, (iii) now or
in the future to be entitled to claim or receive indemnification as
an officer or director of the Company under any applicable state
laws, the Company's Articles of Incorporation or the Company's By-
laws, and (iv) to claim or receive insurance coverage or to be
defended under any directors and officers insurance coverage which
applies to or benefits directors and/or officers of the Company and
which applies to the Employee in his capacity as former President,
Chief Operating Officer and a Director of the Company.
4. Covenants of the Company. In consideration for the covenants of the
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Employee described in Section 3 hereof, the Company:
(a) Agrees that, subject to the exceptions noted herein, for so long as
the Employee is subject to the covenant set forth in 3(a) hereof,
its Board of Directors and Executive Officers, in their official
capacity as such, will not say or authorize anyone to say anything
that criticizes or disparages the Employee in his capacity as a
former President, Chief Operating
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Officer and Director of the Company, except as may be required by
law. The Company will be released from this covenant in the event
that the Employee during this period engages in any of the
prohibited conduct set forth in Section 3(a) of this Separation
Agreement. In addition, nothing herein shall be construed to
prohibit the Company from responding to any inquiry regarding the
Employee (with the exception of inquiries governed by Section 6 of
this Separation Agreement) by stating "no comment", or language to
that effect.
(b) Agrees to (i) pay the Employee $11,385.54 (net) in equal quarterly
installments, to be paid to the Employee at the beginning of each
calendar quarter, to cover the costs of the Employee and the
Employee's dependents' monthly COBRA coverage expenses (medical and
dental) for the first eighteen (18) full months following the day
and year first above written, and (ii) thereafter, pay the Employee
an additional $11,385.54 (net) in equal quarterly installments to be
paid to the Employee at the beginning of each calendar quarter,
which the Employee can apply towards monthly expenses incurred in
obtaining an additional eighteen (18) months of healthcare coverage
under an individual policy with the carrier of his choice after his
COBRA coverage expires at the close of the first eighteen (18) month
period. Notwithstanding the foregoing, the Company shall have no
obligation under this Section 4(b) from and after any date upon
which the Employee receives coverage under a substantially
equivalent or better health and welfare plan of any subsequent
employer. During the period covered by this subparagraph 4(b),
Employee shall promptly notify Company in writing that Employee has
received coverage under a health and welfare plan and will provide
the Company with such information concerning the plan as it may
reasonably request.
(c) Acknowledges and agrees that the Employee is not bound by the
restrictive covenants set forth in Article II, Sections 2.2, 2.3 and
2.4 of the Employment Agreement, and that the Employee is free to
compete with the Company, solicit customers of the Company or engage
or participate in, as a business executive or equity owner of, any
business or enterprise that competes with the Company or any line of
business of the Company. Notwithstanding the foregoing, the Employee
acknowledges and agrees that he continues to be bound by the
restrictive covenants set forth in Article II, Sections 2.1 and 2.5
of the Employment Agreement.
(d) Agrees to reimburse the Employee for Company-related expenses
reasonably incurred by the Employee through the day and year first
above written provided, however, that the Employee submits any
request for reimbursement as of the day and year first above
written. In addition, the Company will pay any Company credit card
charges by the Employee for Company-related expenses, consistent
with past reimbursement practices,
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received by the Company after the date of this Agreement and
relating to charges made by Employee before the date of this
Agreement.
(e) Agrees to reimburse the Employee for the reasonable legal fees
incurred by the Employee in connection with the negotiation and
making of this Separation Agreement, provided, however, that such
reimbursement shall not exceed the sum of $16,828.08.
(f) For itself, its subsidiaries, parent corporations, successors and
assigns, now and forever, hereby releases and discharges the
Employee from any and all claims, legal or equitable actions,
liability or litigation, real or contemplated, known or unknown,
that the Company may now have or may later claim to have had against
the Employee arising out of anything that has occurred up to and
through the date hereof, including without limitation, any claims
arising out of his employment or termination of employment with the
Company. The Company acknowledges that it may have sustained or may
yet sustain damages, costs or expenses that are presently unknown
and that relate to claims between it and the Employee. For the
purpose of implementing a full and complete release and discharge of
the Employee, the Company expressly acknowledges this Separation
Agreement is intended to include in its effect, without limitation,
all claims that it does not know or suspect to exist in its favor at
the time it signs this Separation Agreement, and that this
Separation Agreement contemplates the extinguishment of any such
claim or claims. The Company shall forever refrain and forbear from
commencing, instituting or prosecuting any lawsuit, action, claim or
proceeding before or in any court, regulatory, governmental,
arbitral or other authority against the Employee or naming or
joining the Employee as a party to collect or enforce any claims or
causes of action which are released and discharged hereby. The
Company hereby acknowledges and agrees that it has knowingly
relinquished, waived and forever released any and all other remedies
that might be available to it, including without limitation, claims
for contract damages, punitive damages and attorneys' fees or
expenses of litigation.
5. Press Release. The Company and the Employee agree that the fact of the
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Employee's separation from the Company shall be formally announced in a press
release in the form attached hereto as Exhibit C.
6. Reference. The Company and the Employee agree that the Company shall
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execute a letter of reference for the Employee in the form attached hereto as
Exhibit D, which the Employee may distribute to potential future employers as he
sees fit. The Company and the Employee further agree that, in the event that the
Company is asked about the Employee's former employment with the Company by a
prospective future employer of the Employee, that the Company shall respond in a
manner consistent with the language of Exhibit D attached hereto.
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7. Cooperation in Claims. With respect to any claim asserted by or brought
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against the Company in relation to its business and/or against the Employee in
his former capacity as President, Chief Operating Officer or Director of the
Company, the Employee, upon reasonable notice and at the written request of the
Chief Executive Officer of the Company, or his designee (such designation to be
in writing from the Chief Executive Officer) agrees to make himself and any
necessary records or documents in his possession reasonably available to the
Company where necessary to prosecute or defend any such claim, and will use his
best efforts to cooperate with the Company in prosecuting or defending any such
claim, provided, however, that in any case where the Employee is required to
travel for any consultation or legal proceedings at the express written request
of the Chief Executive Officer of the Company (excluding any instance where the
Company and the Employee are on opposite sides of the litigation), the Employee
shall be entitled (i) to receive in advance all travel and/or lodging costs
reasonably expected to be incurred, (ii) to be reimbursed for the reasonable
cost of any meals, auto rentals or cabs, and (iii) to be compensated for the
value of his time at a daily rate of $500.00 where the Employee spends four (4)
hours or less that day traveling or providing assistance under this Section 7,
and at a daily rate of $1,000.00 where the Employee spends more than four (4)
hours that day traveling or providing assistance under this Section 7. The
Company shall use its best efforts to schedule any travel or other activity
required of the Employee under this Section 7 at times and places that minimize
any interference with any other employment or business activities of the
Employee. Employee shall have no obligation to cooperate in the prosecution or
defense of any matter (through subpoena or otherwise) unless requested to do so
in writing, in the manner set forth in this Section 7.
8. The Employee's Car Lease. The Employee understands and agrees that any
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obligation he may have undertaken with respect to any automobile, whether on
behalf of himself individually or in his former capacity as President, Chief
Operating Officer or Director of the Company, shall be borne and paid for by the
Employee.
9. Use of the Employee's Likeness. The Employee acknowledges and
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understands that it may be necessary for the Company to make use of photographs
or other material evidencing the Employee's likeness in brochures, annual
reports and the like which were taken or created prior to the day and year first
above written, and hereby consents to and acknowledges the Company's ability, in
the normal course of business, to make use of such photographs and material
evidencing the Employee's likeness.
10. Successors and Assigns. This Separation Agreement shall be binding
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upon, inure to the benefit of and be enforceable by the Employee's personal or
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. This Separation Agreement shall also be
binding upon, inure to the benefit of and be enforceable by any successor to the
Company by reason of any merger, consolidation, sale of assets, dissolution,
debt foreclosure or other reorganization of the Company.
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11. Miscellaneous. This Separation Agreement, and the rights and
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obligations of the parties hereto, shall be governed by and construed in
accordance with the laws of the State of Pennsylvania. If any provision hereof
is unenforceable, such provision shall be fully severable, and this Separation
Agreement shall be construed and enforced as if such unenforceable provision had
never comprised a part hereof, the remaining provisions hereof shall remain in
full force and effect, and the court construing this Separation Agreement shall
add as a part hereof a provision as similar in terms and effect to such
unenforceable provision as may be enforceable, in lieu of the unenforceable
provision. This Separation Agreement contains the entire agreement between the
Company and the Employee regarding the subject matter hereof, and supersedes and
invalidates any previous agreements or contracts regarding this subject matter.
No representations, inducements, promises or agreements, oral or otherwise,
which are not embodied herein, shall be of any force or effect.
12. Knowing and Voluntary. The Employee acknowledges that he has reviewed
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the terms and conditions of this Separation Agreement, that he understands its
terms, and that he has executed this Separation Agreement voluntarily and
without any coercion, undue influence, threat or intimidation of any kind
whatsoever. The Employee further acknowledges that the consideration he receives
for this Separation Agreement is in addition to amounts to which he was already
entitled pursuant to the Employment Agreement or otherwise.
13. Arbitration. Any dispute between the parties pertaining to this
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Separation Agreement shall be resolved through binding arbitration conducted by
the American Arbitration Association under the rules then in effect. The parties
agree that any arbitration proceeding shall be conducted in Atlanta, Georgia and
consent to exclusive jurisdiction and venue there. The award of the
arbitrator(s) shall be final and binding, and the parties waive any right to
appeal the arbitral award, to the extent that a right to appeal may be lawfully
waived. Each party retains the right to seek judicial assistance (a) to compel
arbitration, (b) to obtain interim measures of protection pending arbitration,
and (c) to enforce any decision of the arbitrator(s), including but not limited
to the final award.
14. Captions and Paragraph Headings. Captions and paragraph headings used
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herein are for convenience only and are not a part of this Agreement and shall
not be used in construing it.
15. Acknowledgment of Obligation to Tender Back Consideration. The
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Employee acknowledges and agrees that if he ever attempts to bring a claim
against the Company under state or federal law for discrimination or for
wrongful termination, including but not limited to a claim under Title VII of
the Civil Rights Act of 1964, the Age Discrimination in Employment Act, and/or
the Americans with Disabilities Act, which claims were released by him by virtue
of Section 3(d) of this Separation Agreement, regardless of whether this
Separation Agreement or the release and covenant not to xxx are valid or
enforceable with respect to those claims, he will first pay to the Company all
sums paid by it to him or on his behalf under this Separation Agreement.
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The Employee also agrees that he will pay any reasonable attorney's fees and
costs incurred by the releasees in defending themselves against the
aforementioned released claim(s) and/or the attempted revocation, rescission or
annulment of the aforementioned released claim(s), unless he ultimately prevails
on the claim(s).
16. No Release of Future Claims. The Company and the Employee understand
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and agree that, notwithstanding anything in this Separation Agreement to the
contrary, nothing in this Separation Agreement in any way restricts the rights
of the Company and/or the Employee to bring a claim or seek equitable relief
against the other based on acts occurring subsequent to the day and year first
above written.
17. Entire Agreement. Except as otherwise expressly provided herein
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(including in the documents referred to herein), this Separation Agreement
constitutes the entire agreement between the Company and the Employee with
respect to the subject matter hereof and supersedes all prior arrangements or
understandings with respect to the subject matter hereof, written or oral.
Nothing in this Agreement expressed or implied is intended to confer upon any
person, other than the Company or the Employee or their respective successors,
any rights, remedies, obligations or liabilities under or by any reason of this
Agreement.
18. Termination of Employment Agreement. Continuation of Registration
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Rights Agreement and Absence of Other Agreements. The Employment Agreement is
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hereby terminated in all respects except as expressly incorporated herein by
reference. The Amended and Restated Registration Rights Agreement by and among
the Company, the Employee and certain other holders of the capital stock of the
Company identified on Schedule I thereto, dated September 3, 1997 (the
"Registration Rights Agreement"), will continue in full force and effect in
accordance with its terms. The Company and the Employee hereby represent and
warrant to the other that, except for this Separation Agreement and the
Registration Rights Agreement, there are no agreements, arrangements or
understandings, written or oral, between the parties with respect to any subject
matter whatsoever. Upon Employee's request made at any time after the expiration
of ninety (90) days from the date Employee ceases to be an officer and director
of the Company, the Company will cause the restrictive legend on the Employee's
common stock certificates and any stop transfer instructions on the Company's
stock books to be removed promptly upon receipt by the Company of an opinion of
counsel from the Employee's counsel or from the Company's counsel that such
legend may be removed in compliance with applicable securities laws. In the
event that the Company's counsel is requested by the Employee to provide such
opinion, the Employee agrees that he will deliver such certificates as are
reasonable and customary for such counsel to request and receive before issuing
any such opinion. The Company covenants that it will not interfere with or delay
the issuance of instructions to the transfer agent to remove such legend from
the Employee's common stock certificates, and it will instruct the transfer
agent to accept the customary opinion of the Employee's counsel, Xxxxxxx X.
Xxxxxx or the law firm with which he is associated, with respect to the removal
of the legend from the Employee's stock certificates.
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IN WITNESS WHEREOF, the parties hereto have caused this Separation
Agreement to be duly executed as of the day and year first above written.
ACSYS, INC.
By:
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Chief Executive Officer
THE EMPLOYEE
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Xxxxxx X. Xxxxxxxxx
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EXHIBIT A
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To Whom It May Concern:
1, Xxxxxx X. Xxxxxxxxx, hereby formally tender my resignation as a Director and
Officer of Acsys, Inc. and any of its affiliates (the "Company"), and note that
my resignation is not the result of any disagreement with the Company relating
to the Company's operations, policies or practices.
Sincerely,
Xxxxxx X. Xxxxxxxxx Date:
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Accepted:
Date:
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Chief Executive Officer
Acsys, Inc.
EXHIBIT B
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The Employee and the Company acknowledge and agree that the Company has
advanced the following sums to the Employee and that the Employee is entitled to
reimbursement for the following Company-related expenses. The Employee and the
Company further agree that the total amount advanced to the Employee less the
Employee's business-related expenses (as set forth below) shall be deducted from
the amount required to be paid by Company under Section 2(a) of the Separation
Agreement:
Advances to Employee Amount
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Car Related Expenses $15,910.91
Tax Advance $40,000.00
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Total Advances: $55,910.91
Expenses Owed by
Company to Employee: $ 6,453.44
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Total Amount to be Deducted from the Amount Payable
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To the Employee Under Section 2(a) of the Agreement: $49,457.47
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EXHIBIT C
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Contact: Xxxxx X. Xxxxxxxx, Xx.
Chief Financial Officer
(000) 000-0000, ext. 3312
ACSYS ANNOUNCES MANAGEMENT CHANGE
ATLANTA (March , 1999) - Acsys, Inc. (Nasdaq/NM:ACSYS), a leading provider
--
of specialty professional staffing services, announced that Xxxxxx X. Xxxxxxxxx
has resigned today as president and chief operating officer and as a member of
the Board of Directors of the Company in order to pursue other interests. The
cost associated with Xx. Xxxxxxxxx'x separation from the Company was included in
the previously reported one time severance charge.
Xx. Xxxxxxxxx, a key member of the founding companies that formed Acsys,
Inc., played an integral role in the merging of the founding companies, its
subsequent initial public offering, as well as the early development of its
management structure.
The Company wishes him well in his future endeavors.
Acsys, Inc. is one of the leading specialty professional staffing firms in
the United States. Acsys, Inc. currently operates over 40 offices, serving
metropolitan markets across the U.S. with a more significant presence in the
Eastern and Midwestern U.S.
EXHIBIT D
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(insert Acsys, Inc. letterhead)
Re: Xxxxxx X. Xxxxxxxxx
To Whom it May Concern:
This is to confirm that Xxxxxx X. Xxxxxxxxx was employed by Acsys, Inc.
from August 1997 through March , 1999, as its President and Chief Operating
--
Officer. Xx. Xxxxxxxxx was a key member of the founding companies that formed
Acsys, Inc., and played an integral role in the merging of the founding
companies, in the initial public offering of Acsys, Inc., and in the early
development of the management structure of Acsys, Inc. Xx. Xxxxxxxxx voluntarily
resigned from Acsys, Inc. in order to pursue other interests. Acsys, Inc. wishes
Xx. Xxxxxxxxx well in his future career pursuits.
Sincerely,
Chief Executive Officer
Acsys, Inc.
