1
EXHIBIT 10.4
SHAREHOLDER AND RESTRICTIVE COVENANT AGREEMENT
This Shareholder and Restrictive Covenant Agreement (the "Agreement")
is entered into as of the 1st day of December, 1999, by and between Acsys, Inc.,
formerly ICCE, Inc., (hereinafter the "Company"), and Xxxx Xxxx Xxxxx
(hereinafter "Chase").
WHEREAS, Chase has previously been employed by the Company in the
capacity of Executive Vice President and Chief Development Officer and has also
served as a member of the Board of Directors of the Company; and
WHEREAS, Chase and the Company have mutually agreed to Chase's
resignation from her employment with the Company and her resignation from the
Company's Board of Directors; and
WHEREAS, by virtue of her service as Executive Vice President and Chief
Development Officer and as a member of the Board of Directors of the Company,
Chase has comprehensive knowledge of the Company's business, business
relationships and financial affairs, including confidential and trade secret
information regarding the Company's business and marketing plans, sales, costs,
profits, pricing methods, future business strategies and future business
opportunities; and
WHEREAS, maintenance of the confidentiality of the Company's
proprietary business information and trade secrets is vital to the business
well-being of the Company; and
WHEREAS, as the Company's Executive Vice President and Chief
Development Officer and a member of the Board of Directors of the Company, Chase
has had substantial contacts with the customers and employees of the Company;
and
WHEREAS, Chase acknowledges that the continuing relationships between
the Company and its customers and employees are vital to the business well-being
of the Company;
WHEREAS, Chase continues to own the number of shares of Common Stock of
the Company (sometimes referred to herein as "Company Common Stock") and holds
options to acquire shares of Company Common Stock as set forth on Schedule I
hereto;
WHEREAS, Chase and the Company desire to establish in the Agreement
certain terms and conditions concerning the acquisition and disposition of
securities of the Company by Chase, corporate governance of the Company after
the date hereof, and protection of the Company's legitimate business interests,
its confidential and trade secret information, and its relationships with its
customers and employees;
2
NOW, THEREFORE, in consideration of the premises and the mutual
promises herein contained, and for other good and valuable consideration the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I.
DEFINITIONS
1.01. Definitions. Except as otherwise specifically indicated, the
following terms have the following meanings for all purposes of this Agreement:
"beneficially owns" (or comparable variations thereof) has the meaning
set forth in Rule 13d-3 promulgated under the Exchange Act.
"Board of Directors" means the Board of Directors of the Company.
"Business Activities" means the business activities over which Chase
had authority and control at the Company, which consist of: (i) outsourcing of
accounting, finance, information technology, administrative (which, for the
purposes of Article IV of this Agreement, shall be defined to consist of
secretarial, administrative assistant, receptionist and similar positions), and
legal (which, for the purposes of Article IV, shall be defined to consist of
paraprofessional and administrative support positions, but not lawyer positions,
for legal departments, law firms and lawyers) staffing services; (ii) temporary
accounting, finance, information technology (including information technology
contract staffing and solution services), administrative and legal staffing
services; and (iii) permanent placement accounting, finance, information
technology (including information technology staffing and solution services),
administrative, and legal staffing services on a contingent fee basis.
"Confidential Information" means all information regarding the Company,
the Company's activities, the Company's business or the Company's clients that
is not generally known to persons not employed by the Company and that is not
generally disclosed by Company practice or authority to persons not employed by
the Company, but that does not rise to the level of a "Trade Secret."
"Confidential Information" shall include, but is not limited to, information
pertaining to the Company's sales and marketing techniques and plans, expansion
or contraction plans, financial data and plans, acquisition plans, management
plans, pricing information, and client information. 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 legal right of the Company. This definition shall not limit any
definition of "Confidential Information" or any equivalent term under state or
federal law.
"Equity Securities" means Voting Securities, Convertible Securities and
Rights to Purchase Voting Securities.
2
3
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
"Liens" means any lien, claim, mortgage, encumbrance, pledge, security
interest, equity or charge of any kind.
"Person" means any individual, corporation, partnership, trust, other
entity or group (within the meaning of Section 13(d)(3) of the Exchange Act).
"Representatives" of any entity means such entity's directors,
officers, employees, legal, investment banking and financial advisors,
accountants and any other agents and representatives of such entity.
"Rule 144" means Rule 144 as presently promulgated under the Securities
Act.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"Subsidiary" means any Person in which-the Company directly or
indirectly through Subsidiaries or otherwise, beneficially owns more than fifty
percent (50%) of either the equity interest in, or the Voting Power of, such
Person.
"Trade Secrets" shall have the meaning assigned thereto by the Georgia
Trade Secrets Act, OCGA ss.10-1-761.
"Voting Securities" means the Company Common Stock and any other
securities of the Company of any kind or class having power generally to vote
for the election of directors; "Convertible Securities" means securities of the
Company which are convertible or exchangeable (whether presently convertible or
exchangeable or not) into Voting Securities; and "Rights to Purchase Voting
Securities" means options and rights issued by the Company (whether presently
exercisable or not) to purchase Voting Securities or Convertible Voting
Securities.
Unless the context of this Agreement otherwise requires, words of any
gender include each other gender; (ii) words using the singular or plural number
also include the plural or singular number, respectively; (iii) the terms
"hereof," "herein," "hereby" and derivative or similar words refer to this
entire Agreement; and (iv) the terms "Article" or "Section" refer to the
specified Article or Section of this Agreement. Whenever this Agreement refers
to a number of days, such number shall refer to calendar days unless business
days are specified.
3
4
ARTICLE II.
PAYMENTS TO CHASE BY THE COMPANY
2.01. Consideration for Chase's Post-Employment Covenants. In
consideration for Chase's promises and covenants set forth in Articles III and
IV below, the Company shall pay to Chase the total sum of $150,000.00, such
payment to be made in approximately equal monthly installments on or about the
Company's first regular payroll date on or after the first of each month between
the execution of this Agreement and January 1, 2001.
Chase and the Company agree that such payments shall not be considered wage
income and Chase shall be reported by IRS Form 1099.
2.02 Remedy For Missed Payment. If the Company fails to make a payment
required by this Agreement, Chase shall give the Company notice of such failure
in accordance with Section 5.03 herein. The Company shall have ten (10) calendar
days after receipt of notice from Chase within which to cure by making such
payment. If the Company fails to cure by making such payment within ten (10)
calendar days of receipt of notice from Chase, all amounts due hereunder not yet
paid shall be accelerated and become immediately due and payable.
Chase acknowledges and agrees that her receipt of the foregoing described
payments is expressly made contingent upon Chase's promises and covenants as set
forth in Articles III and IV below and agrees that, if Chase breaches any of the
provisions of Articles III and IV, Chase's entitlement to further payments will
immediately cease. Chase further agrees that if a court, arbitrator or other
decisionmaker with authority to decide such disputes finds that Chase has
willfully breached any of the provisions of Articles III and IV, Chase shall be
obligated to return to Company all sums of money previously paid by Company
under this Agreement.
ARTICLE III.
CHASE'S COVENANTS TO THE COMPANY
REGARDING EQUITY SECURITIES OF THE COMPANY
3.01. As a precondition to her receipt of the payments described in
Article II above, Chase agrees as follows:
3.02. Board of Directors. For the period beginning with the date of
execution of this Agreement and ending at 11:59 p.m., Atlanta, Georgia time, on
December 31, 2000, at each meeting of shareholders of the Company, Chase shall
vote the Voting Securities beneficially held by her (A) for the nominees
recommended by the Board of Directors, (B) on all other proposals of the Board
of Directors, as Chase determines in her sole discretion, and (C) on all
proposals of any other shareholder of the Company, in accordance with the
recommendation of the Board of Directors.
4
5
3.02(I) Grant of Proxy. CHASE HEREBY APPOINTS THE COMPANY AND ANY
DESIGNEE OF THE COMPANY, EACH OF THEM INDIVIDUALLY, CHASE'S PROXY AND
ATTORNEY-IN-FACT PURSUANT TO THE PROVISIONS OF SECTION 14-2-722 OF THE GEORGIA
BUSINESS CORPORATION CODE, OR ANY SUCCESSOR PROVISION THEREOF, WITH FULL POWER
OF SUBSTITUTION AND RESUBSTITUTION, TO VOTE OR ACT BY WRITTEN CONSENT WITH
RESPECT TO CHASE'S SUBJECT VOTING SECURITIES IN CONNECTION WITH THE MATTERS
DESCRIBED IN SECTION 3.02(A) AND 3.02(C) ABOVE IN ACCORDANCE WITH THE TERMS OF
SECTION 3.02(A) AND 3.02(C). THIS PROXY IS GIVEN TO SECURE THE PERFORMANCE OF
THE DUTIES OF CHASE UNDER THIS AGREEMENT. CHASE AFFIRMS THAT THIS PROXY IS
COUPLED WITH AN INTEREST AND SHALL BE IRREVOCABLE, BUT SHALL EXPIRE AT 11:59
P.M., ATLANTA, GEORGIA TIME, ON DECEMBER 31, 2000. CHASE SHALL TAKE SUCH
FURTHER ACTION OR EXECUTE SUCH OTHER INSTRUMENTS AS MAY BE NECESSARY TO
EFFECTUATE THE INTENT OF THIS PROXY.
3.02(II) Other Proxies Revoked. Chase represents that any proxies
heretofore given in respect of Chase's Voting Securities are not irrevocable,
and that all such proxies are hereby revoked.
3.03. Transfer of Shares. For the period beginning with the date of
execution of this Agreement and ending at 11:59 p.m., Atlanta, Georgia time, on
December 31, 2000, Chase shall not directly or indirectly, assign, sell, pledge,
hypothecate or otherwise transfer or dispose of ("Dispose" or a "Disposition")
any Equity Securities beneficially owned by Chase, except (A) a Disposition
through a bona fide underwritten public offering registered under the Securities
Act, (B) a Disposition in a "brokers' transaction" pursuant to Rule 144(f), (C)
pursuant to a merger or consolidation of the Company or a recapitalization of
any Equity Securities, (D) pursuant to a self-tender or exchange offer by the
Company or a third party tender offer recommended by the Board of Directors, or
(E) a Disposition by way of gift to any Person who simultaneously with such
Disposition agrees in a written instrument in form and substance satisfactory to
the Company to be bound by the provisions of this Agreement as though an
original signatory hereto.
3.04. Legend. Each certificate representing Equity Securities
beneficially owned by Chase shall be imprinted with a legend in the following
form until such time as all restrictions on the Disposition of such Equity
Securities hereunder are terminated:
"THESE SHARES MAY ONLY BE TRANSFERRED PURSUANT TO THE PROVISIONS OF
ARTICLE III OF THAT CERTAIN SHAREHOLDER AND RESTRICTIVE COVENANT
AGREEMENT DATED AS OF DECEMBER 1, 1999, BY AND BETWEEN ACSYS AND XXXX
XXXX XXXXX, COPIES OF WHICH AGREEMENT ARE ON FILE AT THE PRINCIPAL
OFFICE OF THE COMPANY."
5
6
The Company shall not (i) give effect on its books to an attempted Disposition
of any Equity Securities which shall have been Disposed of in violation of any
provision of this Agreement, or (ii) treat any transferee who obtains any Equity
Securities in violation of any provision of this Agreement as the owner of such
Equity Securities or accord any transferee thereof the right to vote or to
receive dividends in respect of such Equity Securities. The Company will issue
new certificates not imprinted with the foregoing legend to any holder of Equity
Securities not subject to the restrictions on Disposition contained in this
Agreement; provided that the Company may require an opinion of counsel
reasonably satisfactory to it to the effect that no legend is required under the
Securities Act or applicable state securities or blue sky laws.
3.05. Limitation on Acquisition of Equity Securities. For the period
beginning with the date of execution of this Agreement and ending at 11:59 p.m.,
Atlanta, Georgia time, on December 31, 2000, Chase shall not, directly or
indirectly, purchase or acquire, or make any offer to or agree to purchase or
acquire, beneficial ownership of any Equity Securities, except (A) by way of
stock dividends, stock splits or other distributions or offerings made available
to holders of Equity Securities generally or (B) in connection with a
Disposition pursuant to a merger or consolidation of the Company or a
recapitalization of any Equity Securities.
3.06. Standstill. For the period beginning with the date of execution
of this Agreement and ending at 11:59 p.m., Atlanta, Georgia time, on December
31, 2000, Chase shall not, and shall not assist or encourage others (including
by providing financing) to, directly or indirectly (i) acquire or agree, offer,
seek or propose (whether publicly or otherwise) to acquire ownership (including
but not limited to beneficial ownership) of any portion of the assets or Equity
Securities of the Company or any of its Subsidiaries, whether by means of a
negotiated purchase of assets, tender or exchange offer, merger or other
business combination, recapitalization, restructuring or other extraordinary
transaction (ii) engage in any "solicitation" of "proxies" (as such terms are
used in the proxy rules promulgated under the Exchange Act, but disregarding
clause (iv) of Rule 14a-1(l)(2) and including any exempt solicitation pursuant
to Rule 14a-2(b)(1) or (2)), or form, join or in any way participate in a
"group" (as defined under the Exchange Act), with respect to any Equity
Securities, (iii) otherwise seek or propose to acquire control of the Board of
Directors or to disrupt or impair the normal, ongoing business operations or
policies (including determinations of the Board of Directors) of the Company or
any of its affiliates, (iv) 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 in clause (i), (ii) or (iii) above, or (v) enter into any
negotiations, agreements, arrangements or understandings with any third party
with respect to any of the foregoing. Chase shall not request the Company or any
of its Representatives to amend or waive any provision of this Section
(including this sentence) or Section 3.05 during such period.
Notwithstanding anything else in this Agreement, if the Employee challenges the
validity or enforceability of any provision of this Article III or seeks to
revoke, rescind or annul any such provision, the Employee first shall refund all
payments heretofore made to her
6
7
pursuant to this Agreement and shall be deemed to have forfeited all other
payments to which she otherwise would be entitled pursuant to this Agreement.
ARTICLE IV.
CHASE'S RESTRICTIVE COVENANTS
4.01. As an additional precondition to her receipt of the payments as
described in Article II above, Chase further agrees as follows:
4.02. Noncompete. For a period commencing on the date of this Agreement
and ending at 11:59 p.m., Atlanta, Georgia time, on December 31, 2000, Chase
shall not, without the Company's prior written permission, directly or
indirectly, on her own behalf or on behalf of any other person or entity, within
the Territory, be engaged as a manager, executive, or operational consultant in
the business of offering the Business Activities. Chase acknowledges and agrees
that the definition of Business Activities accurately reflects activities she
engaged in and had authority over while employed by the Company, is less
extensive than the overall activities she engaged in and had authority over, and
is reasonable in scope. Chase also acknowledges and agrees that the above
phrase, "manager, executive or operational consultant" accurately describes
duties and activities she engaged in on behalf of the Company, is less extensive
than the actual duties and activities she engaged in, and is reasonable in
scope. As used herein the term "Territory" shall mean the twenty-five (25) mile
radius surrounding the following offices of the Company which Chase had
oversight responsibility for during the last twelve (12) months of her
employment by the Company as the Company's Executive Vice President and Chief
Development Officer:
0000 00xx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
000 Xxxxxxxx Xxxxxxxxx Xxxx
Xxxxx 000
Xxxx Xxxx, XX 00000
000 Xxxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxxx, XX 00000
7
8
0 Xxxxxxxxx Xxxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
00 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
0000 Xxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
0000 Xxxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
0000 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxx Xxxx, XX 00000
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
000 Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
000 Xxxxx Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
000 Xxxxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxx, XX 00000
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
0000 Xxxxxxxxxxx Xx.
Xxxxx 000
Xxxxxxxxxx, XX 1711
8
9
0000 Xxxxxxx Xxxx Xxx
Xxxxx 000
Xxxxxxxxx, XX 00000
0000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
000 Xxxx Xxxxxxxxxx Xxxx
Xxxxx 000
Xxxxx, XX 00000
0000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
0000 Xxxxxxxxxx Xxxxx
Xxxxx 000
XxXxxx, XX 00000
00000 Xxxxxx Xxxxx Xxxx
Xxxxxx, XX 00000
0000 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Chase acknowledges and agrees that the definition of Territory accurately
describes geographical area over which she had authority while employed by the
Company, is less extensive than the actual geographical area over which she had
authority, and is reasonable in scope.
4.03. Nonsolicitation of Prospects. For a period commencing on the date
of this Agreement and ending at 11:59 p.m., Atlanta, Georgia time, on December
31, 2000, Chase shall not, without the Company's prior written permission,
directly or indirectly, through one or more intermediaries or otherwise, on her
own behalf or on behalf of any other person or entity, through one or more
intermediaries, or otherwise, solicit an opportunity to invest in, or to
purchase an ownership interest in, any of the companies described in that
certain letter dated December 1, 1999 from Xxxxx X. Xxxxxx to Xxxxx which Xxxxx
acknowledges and agrees were known to her to be companies which the Company had
identified as potential business and/or acquisition opportunities of the Company
and about which Chase received confidential and trade secret information during
the term of her employment with the Company.
9
10
4.04. Nonsolicitation of Employees. For a period commencing on the date
of this Agreement and ending at 11:59 p.m., Atlanta, Georgia time, on December
31, 2000, Chase shall not, without the Company's prior written permission,
directly or indirectly, through one or more intermediaries or otherwise, on her
own behalf or on behalf of any other person or entity, solicit to employ, any
person (a) who was employed with the Company during the last twelve months of
Chase's employment with the Company, and (b) who has not ceased to be employed
by the Company for a period of at least six months.
4.05. Nonsolicitation of Customers. For a period commencing on the date
of this Agreement and ending at 11:59 p.m., Atlanta, Georgia time, on December
31, 2000, Chase shall not, without the Company's prior written permission,
directly or indirectly, through one or more intermediaries or otherwise, on her
own behalf or on behalf of any other person or entity, solicit an opportunity to
provide the Business activities to any customer of the Company with whom Chase
had material business contact(s) on behalf of the Company during Chase's last
twelve (12) months of employment with the Company.
4.06. Non-Disclosure. For a period commencing on the date of this
Agreement and ending at 11:59 p.m., Atlanta, Georgia time, on December 31, 2000,
Chase shall not, without the Company's prior written permission, directly or
indirectly, on her own behalf or on behalf of any other persons or entity,
transmit or disclose any Trade Secret or Confidential Information of the Company
to any person and shall not make use of any Trade Secret or Confidential
Information, for herself or others, except to the extent required by any law or
order, in which case Chase shall provide the Company prior written notice of
such requirement and an opportunity to contest same. Trade Secrets shall not
lose protection from use or disclosure on December 31, 2000, but shall continue
to be protected as long as they remain Trade Secrets.
Notwithstanding anything else in this Agreement, if the Employee challenges the
validity or enforceability of any provision of this Article IV or seeks to
revoke, rescind or annul any such provision, the Employee first shall refund all
payments heretofore made to her pursuant to this Agreement and shall be deemed
to have forfeited all other payments to which she otherwise would be entitled
pursuant to this Agreement.
ARTICLE V.
GENERAL PROVISIONS
5.01. Ownership of Company Shares. Chase represents and warrants to the
Company that (i) she owns, beneficially and of record, as of the date hereof,
the number of shares of Company Common Stock listed on Schedule I hereto
(collectively, the "Company Shares"), subject to no rights of others and free
and clear of all Liens except as noted on Schedule I; (ii) Chase's right to vote
or Dispose of the Company Shares beneficially owned by Chase is not subject to
any voting trust, voting agreement, voting arrangement or proxy, and (iii) Chase
has not entered into any contract, option or other arrangement or undertaking
with respect thereto.
10
11
5.02. Amendment and Waiver
(a) This Agreement may be amended, supplemented or modified only by a
written instrument duly executed by or on behalf of each party hereto.
(b) Any term or condition of this Agreement may be waived at any time
by the party that is entitled to the benefit thereof, but no such waiver shall
be effective unless set forth in a written instrument duly executed by or on
behalf of the party waiving such term or condition. No waiver by any party of
any term or condition of this Agreement, in any one or more instances, shall be
deemed to be or construed as a waiver of the same or any other term or condition
of this Agreement on any future occasion. All remedies, either under this
Agreement or by law or otherwise afforded, will be cumulative and not
alternative.
5.03. Notices. All notices, requests and other communications hereunder
must be in writing and will be deemed to have been duly given only if delivered
personally or by facsimile transmission or mailed (first class postage prepaid)
to the parties at the following addresses or facsimile numbers:
If to Chase, to:
Xxxx Xxxx Xxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
with a copy to:
Xxxxx Xxxxxxxx, Esq.
Xxxxxxxx & Xxxxxxxx
725 Twelfth Street, N.W.
Washington, District of Columbia 20005-5901
Facsimile: (000) 000-0000
If to the Company, to:
Xxxxx X. Xxxxxxxx, Xx.
Acsys, Inc.
00 00xx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
11
12
with a copy to:
Xxxxx X. Xxxxx, Esq.
Xxxxxx & Bird LLP
One Atlantic Center
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Facsimile: (000) 000-0000
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section, be deemed given upon
delivery, (ii) if delivered by facsimile transmission to the facsimile number as
provided in this Section, be deemed given upon receipt, and (iii) if delivered
by mail in the manner described above to the address as provided in this
Section, be deemed given upon receipt (in each case regardless of whether such
notice, request or other communication is received by any other person to whom a
copy of such notice, request or other communication is to be delivered pursuant
to this Section). Any party from time to time may change its address, facsimile
number or other information for the purpose of notices to that party by giving
notice specifying such change to the other parties hereto.
5.04. Entire Agreement. This Agreement supersedes all prior discussions
and agreements among the parties hereto with respect to the subject matter
hereof, and contains, the sole and entire agreement among the parties hereto
with respect to the subject matter hereof. The Separation and Release Agreement,
executed contemporaneously herewith (the "Separation Agreement") and the
Director's and Officer's Indemnification Agreement, originally executed in 1997
for which a replacement document is executed contemporaneous herewith because of
the loss of the original (the "Indemnification Agreement"), will continue in
full force and effect in accordance with their terms. The Company and the
Employee hereby represent and warrant to the other that, except for this
Shareholder and Restrictive Covenant Agreement, the Amended and Restated
Registration Rights Agreement dated September 3, 1997, the Indemnification
Agreement and the Separation Agreement there are no agreements, arrangements or
understandings, written or oral, between the parties with respect to any subject
matter whatsoever.
5.05. Invalid Provisions. If any provision of this Agreement is held to
be illegal, invalid or unenforceable under any present or future law, and if the
rights or obligations of any party hereto under this Agreement will not be
materially and adversely affected thereby, (i) such provision will be fully
severable, (ii) this Agreement will be construed and enforced as if such
illegal, invalid or unenforceable provision had never comprised a part hereof
and (iii) the remaining provisions of this Agreement will remain in full force
and effect and will not be affected by the illegal, invalid or unenforceable
provision or by its severance herefrom.
12
13
5.06. Governing Law. Article IV of this Agreement shall be governed by
and construed in accordance with the law of the State of Maryland applicable to
restrictive covenants executed and performed in such State, without giving
effect to the conflicts of laws principles thereof. The remainder of this
Agreement shall be governed by and construed in accordance with the laws of the
State of Georgia applicable to a contract executed and performed in such State,
without giving effect to the conflicts of laws principles thereof.
5.07. Consent to Jurisdiction and Service of Process. Each party hereby
irrevocably submits to the jurisdiction of The United States District Court for
the Northern District of Georgia or any court of the State of Georgia located in
Xxxx County and in any action, suit or proceeding arising in connection with
this Agreement, agrees that any such action, suit or proceeding may be brought
in such court (and waives any objection based on forum non conveniens or any
other objection to venue therein to the extent permitted by law), provided,
however, that such consent to jurisdiction is solely for the purpose referred to
in this Section and shall not be deemed to be a general submission to the
jurisdiction of said courts. Nothing herein shall affect the right of any party
to commence legal proceedings or otherwise proceed against the other in any
other jurisdiction.
5.08. Counterparts. This Agreement may be executed in any number of
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
5.09. Injunctive Relief. Chase acknowledges that the covenants and
promises contained in this Agreement are a reasonable and necessary means of
protecting and preserving the Company's goodwill and interests in its
confidential information and trade secrets. Chase agrees that any breach of
these covenants or promises will leave the Company with no adequate remedy at
law and will cause the Company to suffer irreparable damage and injury. Chase
further agrees that any breach of these covenants and promises will entitle the
Company to injunctive relief in any court of competent jurisdiction. Such
injunctive relief shall be in addition to any damages which may be recoverable
by the Company as a result of any breach.
5.10. Assignability The Company shall have the right to assign this
Agreement to its successors and assigns, and all covenants and agreements
hereunder shall inure to the benefit and be enforceable by said successors or
assigns (or any Subsidiary thereof).
5.11. Knowing and Voluntary. Chase acknowledges that she has reviewed
the terms and conditions of this Agreement, that she understands its terms, and
that she has executed this Agreement voluntarily and without any coercion, undue
influence, threat or intimidation of any kind whatsoever and that she has had
the benefit of counsel in negotiating and drafting this Agreement. Chase further
acknowledges that the consideration she receives for this Agreement is in
addition to any amounts to which she was already entitled.
13
14
5.12. Captions and Paragraph Headings. Captions and paragraph headings
used herein are for convenience only and are not a part of this Agreement and
shall not be used in construing it.
5.13. Negotiated Agreement. This Agreement was negotiated between the
parties hereto, and the fact that one party or the other drafted this Agreement
shall not be used in its interpretation.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
ACSYS, INC.
Name: /s/ Xxxxx X. Xxxxxxxx, Xx.
---------------------------
Title: Chief Financial Officer
---------------------------
/s/ Xxxx Xxxx Xxxxx
---------------------------
Xxxx Xxxx Xxxxx
14
15
SCHEDULE I
Shares Owned By Chase Number
656,143
