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EXHIBIT 10.31
INCENTIVE STOCK OPTION AGREEMENT
under the
ACSYS, INC.
AMENDED AND RESTATED 1997 STOCK OPTION PLAN
Optionee: Xxxxxxxx Xxxxxxx
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Number Shares Subject to Option: 75,000
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Exercise Price per Share: $1.813
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Date of Grant: February 21, 2000
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1. Grant of Option. Acsys, Inc. (the "Company") hereby grants to
the Optionee named above (the "Optionee"), under the Acsys, Inc. Amended and
Restated 1997 Stock Option Plan (the "Plan"), an Incentive Stock Option to
purchase, on the terms and conditions set forth in this agreement (this "Option
Agreement"), the number of shares indicated above of the Company's common stock
(the "Stock"), at the exercise price per share set forth above (the "Option").
Capitalized terms used herein and not otherwise defined shall have the meanings
assigned such terms in the Plan.
2. Vesting of Option. Unless the exercisability of the Option is
accelerated in accordance with Section (b) below or otherwise, the Option shall
vest (become exercisable) in accordance with the following schedule:
Number of Option
Date Shares Vested
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February 21, 2001 25,000
February 21, 2002 25,000
February 21, 2003 25,000
3. Period of Option and Limitations on Right to Exercise. The
Option will, to the extent not previously exercised, lapse under the earliest of
the following circumstances; provided, however, that the Committee may, prior to
the lapse of the Option under the circumstances described in paragraphs (b), (c)
and (d) below, provide in writing that the Option will extend until a later
date, but if Option is exercised after the dates specified in paragraphs (b),
(c) and (d) above, it will automatically become a Non-Qualified Stock Option:
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(a) The Option shall lapse as of 5:00 p.m., Eastern Time,
on the tenth anniversary of the date of grant (the "Expiration Date").
(b) The Option shall lapse three months after Optionee's
termination of employment for any reason other than Optionee's death or
Permanent and Total Disability.
(c) In the event of termination of employment because of
Optionee's Permanent and Total Disability, the Option shall lapse one
year after the date of the Optionee's termination of employment.
(d) If the Optionee dies while employed by the Company or
any of its Subsidiaries, or during the three-month period described in
subsection (b) above, or during the one-year period described in
subsection (c) above, and before the Option otherwise lapses, the
Option shall lapse one year after the date of the Optionee's death.
Upon the Optionee's death, the Option may be exercised by the
Optionee's beneficiary.
If the Optionee or his beneficiary exercises an Option after
termination of employment, the Option may be exercised only with respect to the
shares that were otherwise vested on the Optionee's termination of employment.
4. Exercise of Option. The Option shall be exercised by written
notice directed to the Secretary of the Company at the principal executive
offices of the Company, in substantially the form attached hereto as Exhibit A,
or such other form as the Committee may approve. Such written notice shall be
accompanied by full payment in cash, shares of Stock previously acquired by the
Optionee, or any combination thereof, for the number of shares specified in such
written notice; provided, however, that if shares of Stock are used to pay the
exercise price, such shares must have been held by the Optionee for at least six
months. The Fair Market Value of the surrendered Stock as of the date of the
exercise shall be determined in valuing Stock used in payment of the exercise
price. To the extent permitted under Regulation T of the Federal Reserve Board,
and subject to applicable securities laws, the Option may be exercised through a
broker in a so-called "cashless exercise" whereby the broker sells the Option
shares and delivers cash sales proceeds to the Company in payment of the
exercise price.
Optionee must exercise the Option for at least the lesser of 100 shares
or the number of shares of Purchasable Stock as to which the Option remains
unexercised. Subject to the terms of this Option Agreement, the Option may be
exercised at any time and without regard to any other option held by the
Optionee to purchase stock of the Company.
5. Termination of Employment.
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(a) In the event of the termination of the Optionee's
employment with the Company or any of its Subsidiaries, other than a
termination that is either (i) for cause, (ii) voluntary on the part of
the Optionee and without written consent of the Company, or (iii) for
reasons of death or disability or retirement, the Optionee may exercise
this Option at any time within 30 days after such termination to the
extent of the number of shares which were Purchasable hereunder at the
date of such termination.
(b) In the event of a termination of the Optionee's
employment that is either (i) for cause or (ii) voluntary on the part
of the Optionee and without the written consent of the Company, this
Option, to the extent not previously exercised, shall terminate
immediately and shall not thereafter be or become exercisable.
(c) In the event of the retirement of the Optionee at the
normal retirement date as prescribed from time to time by the Company
or Subsidiary, the Optionee shall continue to have the right to
exercise any Options for shares which were Purchasable at the date of
the Optionee's retirement provided that, on the date which is three
months after the date of retirement, the Options will become void and
unexercisable unless on the date of retirement the Optionee enters into
a noncompete agreement with the Company and continues to comply with
such noncompete agreement. This Option does not confer upon the
Optionee any right with respect to continuance of employment by the
Company or by any of its Subsidiaries. This Option shall not be
affected by any change of employment so long as the Optionee continues
to be an employee of the Company or one of its Subsidiaries.
6. Limitation of Rights. The Option does not confer to the
Optionee or the Optionee's personal representative any rights of a shareholder
of the Company unless and until shares of Stock are in fact issued to such
person in connection with the exercise of the Option. Nothing in this Option
Agreement shall interfere with or limit in any way the right of the Company or
any Subsidiary to terminate the Optionee's employment at any time, nor confer
upon the Optionee any right to continue in the employ of the Company or any
Subsidiary.
7. Stock Reserve. The Company shall at all times during the term
of this Option Agreement reserve and keep available such number of shares of
Stock as will be sufficient to satisfy the requirements of this Option
Agreement.
8. Optionee's Covenant. The Optionee hereby agrees to use his
best efforts to provide services to the Company in a workmanlike manner and to
promote the Company's interests.
9. Restrictions on Transfer and Pledge. The Option may not be
pledged, encumbered, or hypothecated to or in favor of any party other than the
Company or a Parent or Subsidiary, or be subject to any lien, obligation, or
liability of the Optionee to
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any other party other than the Company or a Parent or Subsidiary. The Option is
not assignable or transferable by the Optionee other than by will or the laws of
descent and distribution or pursuant to a Qualified Domestic Relations Order.
The Option may be exercised during the lifetime of the Optionee only by the
Optionee (or by Optionee's guardian or legal representative, should one be
appointed).
10. Plan Controls. The terms contained in the Plan are
incorporated into and made a part of this Option Agreement and this Option
Agreement shall be governed by and construed in accordance with the Plan. In the
event of any actual or alleged conflict between the provisions of the Plan and
the provisions of this Option Agreement, the provisions of the Plan shall be
controlling and determinative.
11. Successors. This Option Agreement shall be binding upon any
successor of the Company, in accordance with the terms of this Option Agreement
and the Plan.
12. Restrictive Covenants. The Company, which for purposes of this
paragraph, its sub-paragraphs and paragraph 13 includes Acsys, Inc., and any of
its Parents or Subsidiaries, is engaged in providing short-term and long-term
outsourcing, technical and professional staffing services, and professional
placement services (the "Business Activities"). The Optionee agrees that, in the
course of the Optionee's employment as an Executive Director of Information
Technology Services for the Company, the Optionee has learned valuable
confidential business information related to the Business Activities. The
Optionee further agrees that this information and the Business Activities of the
Company are legitimate business interests that justify reasonable temporary
restrictions on the Optionee's employment should the Optionee leave the
Company's employment. The Optionee acknowledges and agrees that the Optionee is
qualified and able to obtain reasonable employment without violating these
restrictions. Thus, in consideration of the rights granted to the Optionee
hereunder, the Optionee agrees to abide by the following reasonable restrictions
during the Optionee's employment with the Company, and for a one (1) year period
thereafter:
(a) Non-competition. The Optionee agrees that, while employed by
the Company, and for a one (1) year period after any termination of the
Optionee's employment with the Company, the Optionee shall not, within the
Territory, for the Optionee's own benefit or for the benefit of others, directly
or indirectly, engage in or hold a Competitive Position with any competing
business that engages in the Business Activities. As used herein, the
"Territory" shall mean the twenty-five (25) mile radius surrounding the office
of the Company to which the Optionee is assigned, which office is located at
0000 Xxxxxxxx Xxxxxxx, XX 000 Xxxxxx, Xxxx. Xxx, Xxxxxxxxxx, XX 00000, and a
"Competitive Position" is a position having the same or substantially similar
primary duties as the position of Executive Director of Information Technology
Services that the Optionee now holds with the Company.
(b) Non-Solicitation of Customers and Candidates. The confidential
information maintained by the Company about its customers and candidates
(including but not limited to those customers' and candidates' names and
employment needs) and the nature of its
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relationship with such customers and candidates are among the most valuable
assets of the Company. Thus, the Optionee agrees that while employed by the
Company, and for a one (1) year period after any termination of the Optionee's
employment with the Company, the Optionee shall not solicit the opportunity to
perform the Business Activities from any customer or candidate of the Company
whom the Optionee solicited or contacted on behalf of the Company during the
Optionee's employment with the Company.
(c) Non-Solicitation of Employees. The Company's employees are
among the Company's most valuable assets. Thus, the Optionee agrees that while
employed by the Company, and for a one (1) year period after any termination of
the Optionee's employment with the Company, the Optionee shall not solicit to
employ, on the Optionee's own behalf or on behalf of any other person, firm or
corporation, any person who (a) was employed with the Company as a sales
representative, management employee, temporary placement employee or permanent
placement employee during the Optionee's employment with the Company, and who
(b) has not ceased to be employed by the Company for a period of at least one
year.
(d) Previous Agreements. The language in paragraph 12 and its
sub-paragraphs shall supersede any inconsistent language in any prior stock
option agreements.
13. Confidentiality of Trade Secrets. The Optionee agrees that in
the course of employment with the Company, the Optionee has learned various
Trade Secrets possessed by the Company. "Trade Secret" means information,
without regard to form, including, but not limited to, technical or
non-technical data, a formula, a pattern, a compilation, a program, a device, a
method, a technique, a drawing, a process, financial data, financial plans,
product plans, or a list of actual or potential customers or suppliers which is
not commonly known by or available to the public and which information (1) the
Company derives economic value, actual or potential, from not being known to,
and not being readily ascertainable by proper means by, other persons who can
obtain economic value from its disclosure or use; and (2) is the subject of
efforts that are reasonable under the circumstances to maintain its secrecy.
Accordingly, in consideration for the rights granted the Optionee hereunder, the
Optionee agrees to maintain the confidentiality of the Company's Trade Secrets
while employed with the Company, and for as long thereafter as each particular
Trade Secret remains a Trade Secret pursuant to this Agreement or applicable
law. Nothing in this Agreement shall limit the definition of the term "Trade
Secret" or any similar term under applicable law.
14. Severability. All clauses of this Agreement are severable, and
the enforceability (or lack thereof) of one clause shall not affect the
enforceability of any other clause.
15. Reformation. Should any clause(s) of this Agreement be held
unenforceable by a court of competent jurisdiction, the parties agree that the
court may modify the unenforceable clause(s) to make the clause(s) enforceable,
so that the court
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may grant the relief reasonably necessary to protect each party's interests, as
reflected by this Agreement.
16. Notice. Notices and communications under this Option Agreement
must be in writing and either personally delivered or sent by registered or
certified United States mail, return receipt requested, postage prepaid. Notices
to the Company must be addressed to:
Acsys, Inc.
00 00xx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Secretary
or any other address designated by the Company in a written notice to the
Optionee. Notices to the Optionee will be directed to the address of the
Optionee then currently on file with the Company, or at any other address given
by the Optionee in a written notice to the Company.
17. Binding Agreement. This Agreement shall be binding upon the
parties hereto and their representatives, successors and assigns.
18. Governing Law. This Agreement is executed and delivered in,
and shall be governed by the laws of, the State of Georgia.
19. Amendments. This Agreement may not be modified except in a
writing executed by each of the parties hereto.
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IN WITNESS WHEREOF, Acsys, Inc., acting by and through its duly
authorized officers, has caused this Option Agreement to be executed, and the
Optionee has executed this Option Agreement, all as of the day and year first
above written.
ACSYS, INC.
By:
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Name: Xxxxx X. Xxxxxx
Title: Chairman and CEO
OPTIONEE:
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Name: Xxxxxxxx Xxxxxxx
Address:
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EXHIBIT A
NOTICE OF EXERCISE OF OPTION TO PURCHASE
COMMON STOCK OF
ACSYS, INC.
Name:
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Address:
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Date:
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Acsys, Inc.
00 00xx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Secretary
Re: Exercise of Incentive Stock Option
I elect to purchase ______________ shares of Common Stock of Acsys,
Inc. pursuant to the Acsys, Inc. Incentive Stock Option Agreement dated
______________ and the Acsys, Inc. Amended and Restated 1997 Stock Option Plan.
The purchase will take place on the Exercise Date, which will be as soon as
practicable following the date this notice and all other necessary forms and
payments are received by the Company, unless I specify a later date (not to
exceed 30 days following the date of this notice).
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On or before the Exercise Date, I will pay the full exercise price in
the form specified below (check one):
[ ] Cash Only: by delivering a certified or a cashier's check to
Acsys, Inc. for $___________.
[ ] Cash and Shares: by delivering a certified or a cashier's
check to Acsys, Inc. for $_________ for the part of the
exercise price. I will pay the balance of the exercise price
by delivering to the Company a stock certificate with my
endorsement for shares of Acsys Stock that I have owned for at
least six months. If the number of shares of Acsys Stock
represented by such stock certificate exceeds the number
needed to pay the exercise price (based on the Fair Market
Value of the Acsys Stock on the date of delivery), the Company
will issue me a new stock certificate for the excess.
[ ] Shares Only: by delivering to the Company a stock
certificate with my endorsement for shares of Acsys Stock that
I have owned for at least six months. If the number of shares
of Acsys Stock represented by such stock certificate exceeds
the number needed to pay the exercise price (based on the Fair
Market Value of the Acsys Stock on the date of delivery), the
Company will issue me a new stock certificate for the excess.
[ ] Cash From Broker: by delivering the purchase price from
_______________________, a broker, dealer or other "creditor"
as defined by Regulation T issued by the Board of Governors of
the Federal Reserve System (the "Broker"). I authorize the
Company to issue a stock certificate in the number of shares
indicated above in the name of the Broker in accordance with
instructions received by the Company from the Broker and to
deliver such stock certificate directly to the Broker (or to
any other party specified in the instructions from the Broker)
upon receiving the exercise price from the Broker.
Please deliver the stock certificate to me (unless I have chosen to pay
the purchase price through a broker).
Very truly yours,
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AGREED TO AND ACCEPTED:
ACSYS, INC.
By:
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Title:
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Number of Option Shares
Exercised:
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Number of Option Shares
Remaining:
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Date:
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