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EXHIBIT 10.10
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., (hereinafter the "Company"), and Xxxxxx X. Xxxxxx (hereinafter "Xxxxxx").
WHEREAS, Xxxxxx has previously been employed as Group Director,
National Products of Acsys IT, Inc. (hereinafter "Acsys IT), a wholly owned
subsidiary of the Company; and
WHEREAS, Xxxxxx, the Company and Acsys IT have mutually agreed to
Xxxxxx'x resignation from his employment with Acsys IT; and
WHEREAS, by virtue of his service as an employee of Acsys IT, Xxxxxx
has comprehensive knowledge of Acsys IT's and the Company's business, business
relationships and financial affairs, including confidential and trade secret
information regarding their business and marketing plans, sales, costs,
profits, pricing methods, future business strategies and future business
opportunities; and
WHEREAS, Xxxxxx acknowledges that maintenance of the confidentiality
of Acsys IT's and the Company's proprietary business information and trade
secrets is vital to the business well-being of Acsys IT and the Company; and
WHEREAS, Xxxxxx acknowledges that the continuing relationships between
Acsys IT and its customers and employees are vital to the business well-being
of Acsys IT and the Company; and
WHEREAS, Xxxxxx continues to own the number of shares of Common Stock
of the Company (sometimes referred to herein as "Company Common Stock") as set
forth on Schedule I hereto; and
WHEREAS, Xxxxxx and the Company desire to establish in the Agreement
certain terms and conditions concerning the acquisition and disposition of
securities of the Company by Xxxxxx, corporate governance of the Company after
the date hereof, and protection of the Company's and Acsys IT's legitimate
business interests, confidential and trade secret information, and
relationships with their customers and employees;
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:
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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.
"Change in Control" means an event as a result of which: (i) any
"person" (as such term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934 (the "Exchange Act")), is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act, except that a person
shall be deemed to have "beneficial ownership" of all securities that such
person has the right to acquire, whether such right is exercisable immediately
or only after the passage of time), directly or indirectly, of more than 50% of
the total voting power of the voting stock of the Company; (ii) the Company
consolidates with, or merges with or into another corporation or sells,
assigns, conveys, transfers, leases or otherwise disposes of all or
substantially all of its assets (or substantially all of the assets of, or of
the Company's interest in, the Company) to any person or any corporation
consolidates with, or merges with or into, the Company, in any such event
pursuant to a transaction in which the outstanding voting stock of the Company
is changed into or exchanged for cash, securities or other property, other than
any such transaction where (A) the outstanding voting stock of the Company is
changed into or exchanged for (x) voting stock of the surviving or transferee
corporation or (y) cash, securities (whether or not including voting stock) or
other property, and (B) the holders of the voting stock of the Company
immediately prior to such transaction own, directly or indirectly, not less
than 50% of the voting power of the voting stock of the surviving corporation
immediately after such transaction; or (iii) individuals who at the date hereof
constitute the Board of the Company (together with any new directors whose
election by such Board or whose nomination for election by the stockholders of
the Company was approved by a vote of 66-2/3% of the directors then still in
office who were directors at the date hereof or whose election or nomination
for election was previously so approved) ceased for any reason to constitute a
majority of the Board of the Company then in office; or (iv) the Company is
liquidated or dissolved or adopts a plan of liquidation.
"Confidential Information" means all information regarding Acsys IT
and the Company, their activities, business and clients that is not generally
known to persons not employed by them and that is not generally disclosed by
their practice or authority to persons not employed by them, but that does not
rise to the level of a "Trade Secret." "Confidential Information" shall
include, but is not limited to, information pertaining to Acsys IT's and/or 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 any
person other than
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Xxxxxx or his affiliates. 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.
"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.
"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.
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ARTICLE II.
PAYMENTS TO XXXXXX BY THE COMPANY
2.01. Consideration for Xxxxxx'x Post-Employment Covenants. In
consideration for Xxxxxx'x promises set forth herein and specifically Xxxxxx'x
covenants set forth in Articles III, IV and V below, the Company shall pay to
Xxxxxx the total sum of $245,555.33, such payment to be made by issuing one
payment to Xxxxxx in the amount of $110,499.90 on January 4, 2000 and the
balance in eleven (11) equal installments according to the following schedule:
December 2, 1999 $12,277.77
December 31, 1999 $12,277.77
January 31, 2000 $12,277.77
February 29, 2000 $12,277.77
March 31, 2000 $12,277.77
April 30, 2000 $12,277.77
May 31, 2000 $12,277.77
June 30, 2000 $12,277.77
July 30, 2000 $12,277.77
August 31, 2000 $12,277.77
September 30, 2000 $12,277.77
Such payments are in addition to amounts payable pursuant to the Separation and
Release Agreement dated of even date herewith between the Company, Acsys IT and
Xxxxxx (the "Separation and Release Agreement"). In the event of a Change of
Control, the schedule of payments shall be accelerated and all sums outstanding
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 on or before the date such payment is due and
payable as set forth above (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 Xxxxxx'x delivery of written notice
of Payment Default in accordance with Section 6.03 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 Separation and Release Agreement.
Accordingly, in the event that the Company fails to make any payment required
to be made hereunder, or under the Separation and Release Agreement, on or
before the date such payment is due and payable as set forth above and in the
Separation and Release 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.
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Xxxxxx acknowledges and agrees that his receipt of the foregoing described
payments is expressly made contingent upon Xxxxxx'x promises and covenants as
set forth in Articles III, IV and V below and agrees that, in the event Xxxxxx
materially breaches any of the provisions of Articles III, IV and V, Xxxxxx'x
entitlement to further payments will immediately cease.
ARTICLE III.
XXXXXX'X COVENANTS TO THE COMPANY
REGARDING EQUITY SECURITIES OF THE COMPANY
3.01. In consideration for the promises and covenants of the Company
and Acsys IT herein, Xxxxxx agrees as follows:
3.02. Board of Directors. Until September 30, 2000, Xxxxxx shall vote
the Voting Securities beneficially owned by him (as defined by Rule 13d-3) with
respect to which he has voting control (A) for the nominees for director of the
Company recommended by the Board of Directors, and (B) on all other proposals
of the Board of Directors or of any other shareholder of the Company, as Xxxxxx
determines in his sole discretion, except that Xxxxxx shall vote in accordance
with the recommendation of the Board of Directors where such proposal(s) by any
other shareholder of the Company relate to matters affecting the Company's
Shareholder Protection Rights Agreement dated as of June 20, 1999 between the
Company and Sun Trust Bank, Atlanta, as rights agent or where such proposal(s)
affect or amend the Company's Charter or By-Laws.
3.02(I) Grant of Proxy. XXXXXX HEREBY APPOINTS THE COMPANY AND ANY
DESIGNEE OF THE COMPANY, EACH OF THEM INDIVIDUALLY, SHAREHOLDER'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 XXXXXX'X SUBJECT VOTING SECURITIES IN CONNECTION WITH THE MATTER
DESCRIBED IN SECTION 3.02(A) ABOVE IN ACCORDANCE WITH THE TERMS OF SECTION
3.02(A). THIS PROXY IS GIVEN TO SECURE THE PERFORMANCE OF THE DUTIES OF XXXXXX
UNDER THIS AGREEMENT. XXXXXX AFFIRMS THAT THIS PROXY IS COUPLED WITH AN
INTEREST AND SHALL BE IRREVOCABLE, BUT SHALL EXPIRE AT 11:59 P.M., ATLANTA
TIME, ON SEPTEMBER 30, 2000. XXXXXX 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. Xxxxxx represents that any proxies
heretofore given in respect of Xxxxxx'x Voting Securities are not irrevocable,
and that all such proxies are hereby revoked.
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3.03. Limitation on Acquisition of Equity Securities. Until December
31, 2000, Xxxxxx 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 by way of stock dividends, stock splits or other
distributions or offerings made available to holders of Equity Securities
generally and other than by exercise of outstanding Convertible Securities or
Rights to Purchase Voting Securities.
3.04. Standstill. Until September 30, 2000, Xxxxxx shall not, and
shall not assist 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)(2)), or form, join or in any way participate in a "group" (as defined
under the Exchange Act), with respect to any Equity Securities in connection
with the types of activities set forth in (i) or (ii) above ), (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 of the Company, (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
or arrangements with any third party with respect to any of the foregoing. So
long as Xxxxxx is in compliance with the foregoing, nothing in this Agreement
shall prohibit Xxxxxx from, or in any way restrict his ability to, sell,
transfer, pledge or otherwise assign any or all of his Equity Securities in the
Company, whether in market transactions, private sales or otherwise.
ARTICLE IV.
XXXXXX'X RESTRICTIVE COVENANTS
4.01. In consideration for the promises and covenants of the Company
and Acsys IT herein, Xxxxxx further agrees as follows:
4.02. SAP Noncompete. For a period of one year following the date
hereof, Xxxxxx shall not, without the Company's prior written permission,
directly or indirectly, on his own behalf or on behalf of any other person or
entity, within the SAP Territory, be engaged as a manager, executive,
operational consultant or equity owner in the business of providing consulting
or contract staffing services for any product currently manufactured by SAP AG
or its subsidiaries that are available for general release (excluding products
in alpha or beta stage) and with respect to which the Company or its
subsidiaries currently provide services and support, including, but not by way
of limitation, SAP's products known as ERP, New Dimension, and xxXXX.xxx
products
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(hereinafter the "SAP Services"); provided, however, that nothing in this
Section 4.02 shall prohibit Xxxxxx from providing consulting or contract
staffing services for products not offered by SAP AG as of the date hereof, but
which are subsequently introduced or acquired by SAP AG. As used herein the
term "SAP Territory" shall mean within a fifty (50) mile radius surrounding the
following offices of the Company:
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
0000 Xxxx Xxxxxx Xxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
0000 Xxxxxxxx
Xxxxx 000
Xxxxxx, XX 00000
0000 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
0000 00xx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
0000 00xx Xxxxxx Xxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, XX 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
0 Xxxxxxxxx Xxxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
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00 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
0000 Xxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
0000 Xxxxxx Xxxx Xxxx
Xxxxx 000
Xxxx Xxx Xxxxxx, XX 00000
0000 Xxxx Xxxxxx
Xxx Xxxxxx, XX 00000
0000 Xxxxxxx Xxxxxxx Xxxxxxx
Xxxxx 000X
Xxxxxxx, XX 00000
0000 Xxxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
0000 X.X. Xxxxxxx Xx.
Xxxxxx Xxxx, 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
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000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
0000 Xxxxxxxxxxx Xx.
Xxxxx 000
Xxxxxxxxxx, XX 1711
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
00000 Xxxxx Xxxxxxx Xxxxxxxxxx
Xxxxx 000
Xxxxxx, XX 00000
000 Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, XX 00000
000 Xxxx Xxxxxx
Xxxxx 000
Xxxxx Xxxxx, XX 00000
0000 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxx Xxxxx, XX 00000
0000 Xxxx Xxx Xxxxx
Xxxxx 000
Xxxxxxx, XX 00000
000 Xxxx Xxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxx, XX 00000
000 Xxxx Xxx Xxxxxxx Xxxx.
Xxxxx X 0000
Xxxxxx, XX 00000
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0000 Xxxx Xxxxx Xxxxx
Xxxxx 000
Xxx Xxxxxxx, 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
4.03. Information Technology Noncompete. For a period of one year from
the date hereof, Xxxxxx shall not, without the Company's prior written
permission, directly or indirectly, on his own behalf or on behalf of any other
person or entity, be engaged within the IT Territory as a manager, executive,
operational consultant or equity owner in the business of offering (i)
short-term or long-term outsourcing of information technology staffing
services, (ii) temporary information technology contract staffing services; or
(iii) permanent placement information technology staffing services on a
contingent fee basis (hereinafter the "IT Services"). As used herein, the term
"IT Territory" shall mean within a fifty (50) mile radius of the following
office of the Company where Xxxxxx worked during the last twelve (12) months of
his employment:
0000 Xxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Nothing in this Agreement shall prohibit Xxxxxx from providing IT
Services to any customer that is headquartered or has offices inside the IT
Territory, provided that the services are for locations outside the IT
Territory, whether or not the customer is a current customer of the Company or
Acsys IT, and provided that such IT Services shall not encompass SAP Services
in violation of Section 4.02 herein and provided that Xxxxxx does not solicit
the customer in violation of Section 4.06 herein.
Xxxxxx shall not be prohibited from merely maintaining one or more
offices in the IT Territory or the SAP Territory, so long as Xxxxxx otherwise
complies with the provisions of this Section and Section 4.02 herein. Xxxxxx
agrees, however, that for a period of one year from the date hereof, Xxxxxx
shall not, without the Company's prior
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written permission, maintain an office for purposes of offering IT Services,
either on his own behalf or on behalf of a business entity in which he together
with Xxxxxx X. Xxxxxx and/or Xxxxxx X. Xxxxxxx owns a majority interest, within
a fifty (50) mile radius of the following offices of the Company which Xxxxxx
acknowledges offered IT Services during the last six (6) months of Xxxxxx'x
employment by Acsys IT under Xxxxxx'x oversight as Group Director, National
Products:
000 Xxxxxxxx Xxxxxxxxx Xxxx
Xxxxx 000
Xxxx Xxxx, XX 00000
0000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
000 Xxxx Xxx Xxxxxxx Xxxx.
Xxxxx X0000
Xxxxxx, XX 00000
4.04. Non-Disclosure. For a period of one year from the date hereof,
Xxxxxx shall not, without the Company's prior written permission, directly or
indirectly, on his own behalf or on behalf of any other persons or entity,
transmit or disclose any Confidential Information of Acsys IT or the Company to
any person and shall not make use of any Confidential Information, for himself
or others, except to the extent required by any law or order, in which case
Xxxxxx shall provide the Company prior written notice of such requirement and
an opportunity to contest same. Trade Secrets of the Company and Acsys IT shall
continue to be protected from disclosure or use so long as they remain Trade
Secrets.
4.05. Nonsolicitation of Employees. For a period of one year from the
date hereof, Xxxxxx shall not, without the Company's prior written permission,
directly or indirectly, through one or more intermediaries or otherwise, on his
own behalf or on behalf of any other person or entity, solicit to employ any
person who is an employee or consultant of Acsys IT or the Company as of the
date hereof who was engaged within the twelve (12) months preceding the date
hereof in the provision of SAP Services or IT Services on behalf of Acsys IT or
the Company. The foregoing provision shall apply only to those employees who
are full time employees of the Company or Acsys IT entitled to health insurance
and other employee benefits provided by the Company to its employees,
generally, and to certain salaried "benchable" consultants. It is understood
and agreed that this Section shall not prohibit Xxxxxx from engaging in
discussions with, or hiring, any such employee or consultant of the Company or
Acsys IT who first initiates contact with Xxxxxx for purposes of seeking
employment, so long as there has been no prior solicitation of the employee or
consultant by Xxxxxx, directly or indirectly, through one or more
intermediaries or otherwise.
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4.06. Nonsolicitation of Customers. For a period of one year after the
date hereof, Xxxxxx shall not, without the Company's prior written permission,
directly or indirectly, through one or more intermediaries or otherwise, on his
own behalf or on behalf of any other person or entity, solicit Customers of
Acsys IT and/or the Company to induce or encourage them to acquire or obtain
from anyone other than Acsys IT and/or the Company, SAP Services within the SAP
Territory or IT Services within the IT Territory. Nothing herein shall prohibit
Xxxxxx from soliciting Customers of Acsys IT and/or the Company for providing
SAP Services outside the SAP Territory or IT Services outside the IT Territory
even if such Customer is headquartered or has offices within the SAP Territory
or the IT Territory, as the case may be. For purposes of this Section,
"Customer" refers to any person or group of persons with whom Xxxxxx had direct
material contact(s) within the six (6) months preceding the date hereof with
regard to selling, delivery or support of SAP Services within the SAP Territory
or IT Services within the IT Territory on behalf of Acsys IT and/or the
Company.
ARTICLE V.
CRM PRODUCTS
5.01 In consideration for the promises and covenants of the Company
and Acsys IT herein, Xxxxxx further agrees as follows:
5.02 For a period of one year from the date hereof, Xxxxxx agrees
that if he individually or together with Xxxxxx X. Xxxxxxx and/or Xxxxxx X.
Xxxxxx owns a majority interest in a business enterprise offering staffing
support services for Siebel, Inc.'s current products known as CRM Products,
Xxxxxx and such business enterprise shall provide the Company notice of any job
orders received by Xxxxxx or his business enterprise for support of Siebel's
CRM Products (hereinafter "Notice of Job Order"). Any such Notice of Job Order
shall be addressed to the attention of Xxxx Xxxxxx and communicated by
facsimile to facsimile number 000-000-0000 or by email to the following
address: belster@xxxxxxxx.xxx. The Notice of Job Order will include a
description of the job, the skills required, availability requirements and
maximum rate that may be charged for the job by the Company. The Company will
have until 3:00 p.m. Atlanta time the following business day or eight (8)
business hours following delivery of a Notice of Job Order, whichever is
greater, within which to respond by submitting to Xxxxxx and/or his business
enterprise candidate resumes to provide staffing for the job order. Business
hours shall be from 9:00 a.m. to 5:00 p.m., Atlanta time, on each business day.
Candidate resumes received within the time set forth above shall be submitted
by Xxxxxx and/or his business enterprise to the customer requesting support of
Xxxxxx'x CRM Products, provided that Xxxxxx or his business enterprise
reasonably deems the candidate(s) to be qualified to fill the position based
upon all reasonable factors, including the job description, the candidate's
skills, experience, availability and billing rate. Xxxxxx agrees that if the
Company submits at least two qualified candidates within the time set forth
above pursuant to a Notice of Job Order, Xxxxxx and/or his business enterprise
will refrain from submitting any candidate resumes from any other third party
recruiting firms. Xxxxxx and/or his business enterprise may submit candidates
identified
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by Xxxxxx and/or his enterprise and who are not represented in the transaction
by any other third party recruiting firms. If the Company fails to submit at
least two qualified candidates within the time set forth herein, or the
customer does not select any of the candidates submitted by the Company, Xxxxxx
and/or his business enterprise may attempt to fill the job order from any other
source, including any other third party recruiting firm.
ARTICLE VI
GENERAL PROVISIONS
6.01. Ownership of Company Shares. Xxxxxx represents and warrants to
the Company that (i) he 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; (ii) Xxxxxx'x right to vote the Company Shares
beneficially owned by Xxxxxx is not subject to any voting trust, voting
agreement, voting arrangement or proxy; and (iii) Xxxxxx has not entered into
any contract, option or other arrangement or undertaking with respect thereto.
So long as Xxxxxx is in compliance with Section 3.04 above, nothing herein
shall in any way restrict Xxxxxx'x right to transfer, assign, pledge, sell or
otherwise dispose of any of his Company Shares.
6.02. 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.
6.03. 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 to the parties at the following addresses or facsimile numbers:
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If to Xxxxxx, to:
Xxxxxx X. Xxxxxx
0000 Xxxx Xxxxx Xxxxxxxx
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: 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, XX 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, XX 00000-0000
Telephone: (000) 000-0000
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, 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.
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6.04. 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, except that the Separation
and Release Agreement dated of even date herewith between Xxxxxx, the Company
and Acsys IT, the Joinder Agreement dated as of May 22, 1998 (as modified by
the Separation and Release Agreement), and the Director's and Officer's
Indemnification Agreement between Xxxxxx and the Company shall remain in full
force and effect.
6.05. 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.
6.06. Governing Law. 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.
6.07. 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.
6.08. 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.
6.09. Injunctive Relief. Xxxxxx 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. Xxxxxx 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. Xxxxxx
further agrees that any breach of these covenants and promises will entitle the
Company to injunctive relief in any court of competent jurisdiction without the
necessity of posting any bond. Such injunctive relief shall be in
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addition to any damages which may be recoverable by the Company as a result of
any breach.
6.10. Successors and Assigns. This Agreement shall be binding upon,
inure to the benefit of and be enforceable by Xxxxxx'x 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.
6.11. Knowing and Voluntary. Xxxxxx acknowledges that he has reviewed
the terms and conditions of this Agreement, that he understands its terms, and
that he has executed this Agreement voluntarily and without any coercion, undue
influence, threat or intimidation of any kind whatsoever and that he has had
the benefit of counsel in negotiating and drafting this Agreement. Xxxxxx
further acknowledges that the consideration he receives for this Agreement is
in addition to any amounts to which he was already entitled.
6.12. 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.
6.13. 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
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/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
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SCHEDULE I
SHARES NUMBER
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Acsys Common Stock 705,090
