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EXHIBIT 10.5
SEPARATION AND RELEASE AGREEMENT
This Separation and Release Agreement (hereinafter the "Separation
Agreement") is entered into as of the 1st day of December, 1999, by and
between Acsys, Inc. (the "Company"), Acsys IT, Inc., a wholly owned subsidiary
of the Company ("Acsys IT"), and Xxxxxx X. Xxxxxxx (hereinafter the
"Employee").
WHEREAS, the Employee has been employed by Acsys IT in the capacity of
Group Director, New Products pursuant to that Employment Agreement dated March
31, 1998; and
WHEREAS, the Employee has also served as a member of the Board of
Directors of the Company; and
WHEREAS, the Employee became a shareholder of the Company pursuant to
an Agreement and Plan of Merger, dated as of March 31, 1998 (the "Merger
Agreement"), by and among the Company, Icon Search & Consulting, Inc. ("Icon")
and the shareholders of Icon, including the Employee; and
WHEREAS, on May 22, 1998, the Employee executed a Registration Rights
Joinder Agreement (the "Joinder Agreement"), agreeing thereby to become a party
to an Amended and Restated Registration Rights Agreement, dated as of September
3, 1997 (the "Registration Rights Agreement') governing certain rights and
obligations of certain shareholders of the Company; and
WHEREAS, the Employee, Acsys IT and the Company have mutually agreed
to Employee's resignation from his employment with Acsys IT and from the Board
of Directors of the Company; and
WHEREAS, the Employee, Acsys IT and the Company have agreed to a
severance arrangement and certain limitations on the Employee's shareholder and
other rights 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:
Section 1. Termination of Employment and Resignation from Board of
Directors. The Employee, Acsys IT and the Company agree that the Employee's
employment with Acsys IT will be terminated as of the day and year first above
written (the "Separation Date"), that Employee has voluntarily resigned from
his employment and that the Employee has been paid all wages and compensation
due him through the Separation Date. 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.
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Section 2. Severance Pay. The Company shall make a total gross payment
to the Employee of $122,777.66 less withholding for taxes and other required
items, paid in eleven (11) equal installments according to the following
schedule:
December 2, 1999 $ 11,161.60
December 31, 1999 $ 11,161.60
January 31, 2000 $ 11,161.60
February 29, 2000 $ 11,161.60
March 31, 2000 $ 11,161.60
April 30, 2000 $ 11,161.60
May 31, 2000 $ 11,161.60
June 30, 2000 $ 11,161.60
July 30, 2000 $ 11,161.60
August 31, 2000 $ 11,161.60
September 30, 2000 $ 11,161.60
Such payments shall be reported by the Company as W-2 income received by the
Employee and shall be in addition to amounts payable under the Shareholder and
Restrictive Covenant Agreement (the "Restrictive Covenant Agreement") dated of
even date herewith between the Company, Acsys IT and the Employee. In the event
of a Change of Control (as defined in the Restrictive Covenant Agreement), the
schedule of payments shall be accelerated and all amounts outstanding hereunder
(whether or not then due and payable) shall be immediately due and payable upon
the effective date of the Change of Control. Further, in the event that (i) the
Company fails to make any payment required to be made hereunder or under the
Restrictive Covenant Agreement on or before the date such payment is due and
payable as set forth above and in the Restrictive Covenant Agreement (a
"Payment Default") and (ii) the Company does not cure such Payment Default on
or before the later of ten (10) days after the date such payment is due or five
days after the Employee's delivery of written notice of Payment Default in
accordance with Section 21 herein (hereinafter, a "Cure Period"), the schedule
of payments shall be accelerated and all amounts outstanding hereunder (whether
or not then due and payable) shall be immediately due and payable.
Notwithstanding the foregoing, the Company shall be entitled to an aggregate of
only three Cure Periods with respect to Payment Defaults under this Agreement
and under the Restrictive Covenant Agreement. Accordingly, in the event that
the Company fails to make any payment required to be made hereunder or under
the Restrictive Covenant Agreement on or before the date such payment is due
and payable as set forth above and in the Restrictive Covenant Agreement and
the Company has utilized an aggregate of three Cure Periods for previous
Payment Defaults, the schedule of payments shall be accelerated and all amounts
outstanding hereunder (whether or not then due and payable) shall be
immediately due and payable.
The Employee agrees that this amount, together with the payments under
the Restrictive Covenant Agreement, is greater than any amount to which he
would be entitled by contract or law under his Employment Agreement or arising
out of his
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employment relationship and that it constitutes valuable and sufficient
consideration for the Employee's promises, covenants and releases herein.
Employee agrees that no further wages, commissions, backpay, attorneys fees,
severance pay or other employment benefits are due him from the Company or its
officers, directors, employees, affiliates, successors or assigns. The Company
acknowledges that Employee is entitled to reimbursement of business expenses
incurred by him prior to the date hereof and that the Employee will be eligible
for continuation of health insurance coverage under COBRA.
Section 3. Mutual Releases.
(a). By Employee. In consideration for the severance benefits
described in Section 2 hereof and the promises and releases herein of Acsys IT
and Company, Employee for himself, his successors and assigns, now and forever,
hereby releases and discharges Acsys IT, the Company and their officers,
directors, stockholders, employees, agents, parent corporations, subsidiaries,
affiliates, successors, assigns and attorneys (the "Releasees"), 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 under the Joinder Agreement or Registration Rights Agreement or
by virtue of his status as a shareholder and/or director of the Company or
arising out of his employment or termination of employment with Acsys IT and/or
the Company; provided, however, that, the Employee does not release the
Releasees for any claims arising from any illegal acts, claims arising under
this Separation Agreement, or claims arising under the Restrictive Covenant
Agreement.
Subject to, but without limiting the foregoing, the Employee
hereby releases those claims that could have been asserted by him in connection
with the Employment Agreement or 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 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 Releasees
and he agrees that he is waiving all such claims. 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 which are released hereunder. 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 with respect to claims
released hereby, including
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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 or Acsys IT 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 and Acsys IT (including COBRA coverage), (iii) now or in the future to
be entitled to claim or receive indemnification as an officer or director, or
former officer or director, of the Company or Acsys IT under any applicable
state laws, the Company's or Acsys IT's Articles of Incorporation or the
Company's By-laws (which Articles of Incorporation and Bylaws may not be
amended to limit such indemnification), 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 a former officer or employee of
Acsys IT and a Director of the Company.
Notwithstanding the foregoing, Employee does not waive his
future rights under the Joinder Agreement or the Registration Rights Agreement,
except that Employee also hereby unconditionally and irrevocably waives all of
his rights under Section 3 of the Joinder Agreement, which Section relates to
the Shelf Registration (as defined in the Joinder Agreement).
(b). By Acsys IT and the Company. In consideration for
Employee's promises and releases herein, Acsys IT and the Company, for
themselves, their subsidiaries, affiliates, parent corporations, successors and
assigns (the "Releasors") , now and forever, hereby release and discharge the
Employee from any and all claims, legal or equitable actions, liability or
litigation, real or contemplated, known or unknown, that they 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
Acsys IT and/or the Company; provided, however, that Acsys IT and the Company
do not release or waive any claims arising from any illegal acts by Employee or
any claims against Acsys IT and/or the Company for any ultra xxxxx acts by
Employee, which claims are expressly reserved. The Releasors acknowledge that
it or they 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 which are nonetheless released hereby. For the purpose of implementing
a full and complete release and discharge of the Employee, the Releasors
expressly acknowledge this Separation Agreement is intended to include in its
effect, without limitation, all claims that they do not know or suspect to
exist in their favor at the time they sign this Separation Agreement, and that
this Separation Agreement contemplates the extinguishment of any such claim or
claims. The Releasors 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
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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 Releasors hereby acknowledge and agree that they
have knowingly relinquished, waived and forever released any and all other
remedies that might be available to them, including without limitation, claims
for contract damages, punitive damages and attorneys' fees or expenses of
litigation.
Section 4. Company Property. Employee shall be permitted to retain as
his personal property the Dell Pentium 266 mhz computer and HP inkjet printer
previously furnished by the Company. Employee agrees that he will not retain or
destroy, and will return to Acsys IT and the Company, any and all other
property of Acsys IT and the Company in his possession or subject to his
control including, but not limited to, keys, credit and identification cards,
computers, client files and information, acquisition files and information,
contact information for targets, buyers and clients, all other files and
documents relating to the Company, its plans or its business, contracts,
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. The Employee further agrees not to
make, distribute or retain any such information or property.
Section 5. Employee's Car Lease. Employee shall return to the Company
within thirty (30) days of the date hereof the automobile leased by the Company
on Employee's behalf by delivering same to the Company's office at the
following address:
Georgia 400 Center
Building One
0000 Xxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Section 6. Press Release. Acsys IT, the Company and the Employee agree
that the fact of the Employee's separation from Acsys IT shall be formally
announced in a press release.
Section 7. Cooperation in Claims. With respect to any claim asserted
by or brought against Acsys IT and/or the Company in relation to their business
and/or against the Employee in his former capacity as employee, or 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
agrees to make himself and any necessary records or documents in his possession
reasonably available to Acsys IT and the Company where reasonably necessary to
prosecute or defend any such claim, and will use his reasonable best efforts to
cooperate with Acsys IT and 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 or are in any
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other opposing position), the Employee shall be entitled to receive
reimbursement of reasonable travel costs reasonably expected to be incurred and
properly documented.
Section 8. Successors and Assigns. This Agreement shall be binding
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 Agreement shall also be binding upon,
inure to the benefit of and be enforceable by any successor to Acsys IT and/or
the Company by reason of any merger, consolidation, dissolution, debt
foreclosure or other reorganization of the Company.
Section 9. Severability. 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.
Section 10. Knowing and Voluntary. The Employee acknowledges that he
has reviewed 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 a portion of the
consideration he receives for this Separation Agreement is in addition to any
amounts to which he was already entitled pursuant to the Employment Agreement
or otherwise.
Section 11. Arbitration. Any dispute between the parties pertaining to
this Separation Agreement shall be resolved through binding arbitration
conducted by the American Arbitration Association under the employment 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 injunctive relief
and interim measures of protection pending arbitration, and (c) to enforce any
decision of the arbitrator(s), including but not limited to the final award.
Section 12. Captions and Paragraph Headings. Captions and paragraph
headings used herein are for convenience only and are not a part of this
Separation Agreement and shall not be used in construing it.
Section 13. Acknowledgment of Obligation to Tender Back Consideration.
The Employee acknowledges and agrees that if he ever attempts to bring a claim
against the Releasees 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 and/or the Americans with Disabilities Act, which
claims were released by him by virtue of
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Section 2(a) 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.
Section 14. No Release of Future Claims. Acsys IT, the Company and the
Employee understand and agree that, notwithstanding anything in this Separation
Agreement to the contrary, nothing in this Separation Agreement in any way
restricts the rights of Acsys IT, 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.
Section 15. Entire Agreement. Except as otherwise expressly provided
herein (including in the documents referred to herein), this Separation
Agreement constitutes the entire agreement between Acsys IT, 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 Separation Agreement expressed or implied is
intended to confer upon any person, other than Acsys IT, the Company or the
Employee or their respective successors, any rights, remedies, obligations or
liabilities under or by any reason of this Agreement.
Section 16. Termination of Employment Agreement; Continuation of
Joinder Agreement, Indemnification Agreement and Shareholder and Restrictive
Covenant Agreement and Absence of Other Agreements. The Employment Agreement is
hereby terminated in all respects. The Company and the Employee hereby
represent and warrant to the other that, except for this Separation Agreement,
the Joinder Agreement dated May 22, 1998, the Director's and Officer's
Indemnification Agreement between Employee and the Company and the Shareholder
and Restrictive Covenant Agreement executed contemporaneously herewith, there
are no agreements, arrangements or understandings, written or oral, between the
parties with respect to any subject matter whatsoever.
Section 17. Choice of Law. This Separation Agreement, and the rights
and obligations of the parties hereto, shall be governed and construed in
accordance with the laws of the State of Georgia.
Section 18. Negotiated Agreement. The Separation Agreement was
negotiated between the parties hereto, and the fact that one party or the other
drafted this Separation Agreement shall not be used in its interpretation.
Section 19. References. The Company shall provide the Employee, upon
the request of the Employee, with a neutral reference letter in accordance with
the Company's policy which will contain a factual recitation of Employee's
dates of employment, positions held and similar factual information. This
reference letter will contain no negative evaluation information as to the
Employee's job performance or job history.
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Section 20. Legal Fees and Expenses. The Company agrees to reimburse
the Employee, Xxxxxx X. Xxxxxx and Xxxxxx X. Xxxxxxx $5,000 for a portion of
the fees and expenses of their legal counsel Xxxxxx Xxxxxxx & Xxxxxx, LLP
incurred in connection with their separation from employment with Acsys IT.
Section 21. Notices. Except as otherwise provided herein, 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 Kwatnez, to:
Xxxxxx X. Xxxxxxx
00000 Xxxxxxx Xxxx Xxxxx
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
with a copy to:
Xxxxx X. Xxxxxxx, Esq.
Xxxxxx, Xxxxxxx & Xxxxxx L.L.P.
1600 Atlanta Financial Center
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxxxx, XX 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Company, to:
Xxxxx X. Xxxxxxxx, Xx.
Acsys, Inc.
00 00xx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Xxxxx X. Xxxxx, Esq.
Xxxxxx & Bird LLP
One Atlantic Center
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Telephone: (000) 000-0000
Facsimile (000) 000-0000
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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, and (ii) if delivered by facsimile transmission to the facsimile
number as provided in this Section, be deemed given upon receipt (confirmation
of delivery by the sender's facsimile machine shall be deemed sufficient
evidence of the recipient's receipt). 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.
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 IT, INC.
By: /s/ Xxxxx X. Xxxxxxxx, Xx.
----------------------------------
Its: Executive Vice President
ACSYS, INC.
By: /s/ Xxxxx X. Xxxxxxxx, Xx.
----------------------------------
Its: Chief Financial Officer
THE EMPLOYEE
/s/ Xxxxxx X. Xxxxxxx
------------------------------------------
Xxxxxx X. Xxxxxxx
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EXHIBIT A
To Whom It May Concern:
I, Xxxxxx X. Xxxxxxx, hereby formally tender my resignation as an officer and
Director 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,
/s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx Date: 12-1-99
Accepted:
/s/ Xxxxx X. Xxxxxxxx, Xx. Date: 12-1-99
----------------------------------------- ----------------------------
By: Xxxxx X. Xxxxxxxx, Xx.
Acsys, Inc.
