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EXHIBIT 10.2
SHAREHOLDER AND RESTRICTIVE COVENANT AGREEMENT
This Shareholder and Restrictive Covenant Agreement (the "Agreement")
is entered into as of the 23rd day of November, 1999, by and between Acsys,
Inc., formerly ICCE, Inc., (hereinafter the "Company"), and Xxxxxxx Xxxx, Xx.
(hereinafter "Xxxx"). This Agreement shall become effective when approved by the
Board of Directors of the Company or a committee thereof (the "Effective Date").
WHEREAS, Xxxx has previously been employed by the Company in the
capacity of Chief Executive Officer and has also served as a member of the Board
of Directors of the Company; and
WHEREAS, Xxxx and the Company have mutually agreed to Xxxx'x
resignation from his employment with the Company and his resignation from the
Company's Board of Directors; and
WHEREAS, by virtue of his service as Chief Executive Officer and as a
member of the Board of Directors of the Company, Xxxx 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 Chief Executive Officer and a member of the
Board of Directors of the Company, Xxxx has had substantial contacts with the
customers and employees of the Company; and
WHEREAS, Xxxx acknowledges that the continuing relationships between
the Company and its customers and employees are vital to the business well-being
of the Company;
WHEREAS, Xxxx 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, Xxxx and the Company desire to establish in the Agreement
certain terms and conditions concerning the acquisition and disposition of
securities of the Company by Xxxx, 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;
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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 Xxxx 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.
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"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.
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ARTICLE II.
PAYMENTS TO XXXX BY THE COMPANY
2.01. Consideration for Xxxx'x Post-Employment Covenants. In
consideration for Xxxx'x promises and covenants set forth in Articles III and IV
below, the Company shall pay to Xxxx the total sum of $235,000.00, such payment
to be made in five (5) installments according to the following schedule:
Within 3 business days of the Effective Date
but no later than December 2, 1999 $108,045.97
April 1, 2000 $ 40,517.24
July 1, 2000 $ 32,413.79
October 1, 2000 $ 27,011.50
January 3, 2001 $ 27,011.50
Xxxx and the Company agree that such payments shall not be considered wage
income and 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, Xxxx 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 Xxxx 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 Xxxx, all amounts due hereunder not yet
paid shall be accelerated and become immediately due and payable. If the Company
does not make the overdue payment within the ten (10) day cure period, interest
shall begin to accrue on the eleventh (11th) day (the day following the end of
the cure period) on all overdue amounts at the then prime rate of interest as
published in the Wall Street Journal.
Xxxx acknowledges and agrees that his receipt of the foregoing described
payments is expressly made contingent upon Xxxx'x promises and covenants as set
forth in Articles III and IV below and agrees that, if Xxxx breaches any of the
provisions of Articles III and IV, Xxxx'x entitlement to further payments will
immediately cease and Xxxx shall be obligated to return to Company all sums of
money previously paid by Company under this Agreement, provided, however, that
no forfeiture because of an alleged breach of Section 3.06(v) shall be deemed
effective until the ten (10) day notice period provided in Section 2.03 below
has expired.
2.03 Notice And Response For Certain Breaches. If the Company
determines that there has been a breach of Section 3.06(v) arising from Xxxx
having entered into a "discussion" as referenced therein, before declaring a
right to cancel further payments and demanding repayment of sums previously
paid, the Company shall first provide Xxxx notice in accordance with Section
5.03 herein of the grounds for the Company's belief that such a breach has
occurred. Xxxx shall have ten (10) calendar days from receipt of such notice
within which to respond to the Company, providing information, if
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any, upon which he would dispute the existence of a breach. Thereafter, the
Company shall decide, in the exercise of its sole, reasonable discretion, if a
breach of Section 3.06(v) as described above has occurred, entitling the Company
to cease further payments and demand return of all sums of money previously paid
by the Company under this Agreement and to seek all other appropriate relief. No
payment shall be due to the Employee from the Company during any such ten (10)
calendar day notice period.
ARTICLE III.
XXXX'X COVENANTS TO THE COMPANY
REGARDING EQUITY SECURITIES OF THE COMPANY
3.01. As a precondition to his receipt of the payments described in
Article II above, Xxxx agrees as follows:
3.02. Board of Directors. For a period of two (2) years following the
date hereof, at each meeting of shareholders of the Company, Xxxx shall vote the
Voting Securities beneficially held by him (A) for the nominees recommended by
the Board of Directors, (B) on all other proposals of the Board of Directors, as
Xxxx determines in his sole discretion, and (C) on all proposals of any other
shareholder of the Company, in accordance with the recommendation of the Board
of Directors.
3.03. Transfer of Shares. For a period of two (2) years following the
date hereof, Xxxx 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 Xxxx, 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 Xxxx 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:
"UNTIL NOVEMBER 23, 2001, THESE SHARES MAY ONLY BE TRANSFERRED PURSUANT
TO THE PROVISIONS OF ARTICLE III OF THAT CERTAIN SHAREHOLDER
RESTRICTIVE COVENANT AGREEMENT DATED AS OF NOVEMBER 23, 1999, BY AND
BETWEEN ACSYS AND XXXXXXX XXXX, XX., COPIES OF WHICH AGREEMENT ARE ON
FILE AT THE PRINCIPAL OFFICE OF THE COMPANY."
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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 a period of
two (2) years following the date hereof, Xxxx 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. Nothing in this Agreement shall prevent Xxxx from
exercising Stock Options pursuant to the terms and time periods set forth in the
Stock Option Agreements covering the stock options described in Schedule I
attached hereto. The sale of any stock so purchased shall be governed by Section
3.03 above.
3.06. Standstill. For a period of two (2) years following the date
hereof, Xxxx 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 knowingly 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) knowingly 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, (v) enter into any negotiations, agreements, arrangements or
understandings with any third party with respect to any of the foregoing or (vi)
knowingly enter into any discussions with any third party with respect to any of
the foregoing. Xxxx 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. If at any time during such period Xxxx is
approached by any third party concerning, in the good faith reasonable judgment
of Xxxx, participation in any of the types of matters referred to in clauses
(i), (ii) and (iii)
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above, Xxxx shall promptly inform the Company of the nature of such contact and
the parties thereto.
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 avoid any such provision, the Employee first shall refund all
payments heretofore made to him pursuant to this Agreement and shall be deemed
to have forfeited all other payments to which he otherwise would be entitled
pursuant to this Agreement, provided, however, that Xxxx'x mere exercise of his
right to provide information pursuant to Section 2.03 hereof shall not be deemed
to be a challenge to the validity or enforceability of any provision of this
Article III or an attempt to otherwise seek to revoke, rescind or avoid any
provision of this Article III and Xxxx shall not be required to refund any
payments or forfeit any right to receive any payment prior to availing himself
of such right.
ARTICLE IV
XXXX'X RESTRICTIVE COVENANTS
4.01. As an additional precondition to his receipt of the payments as
described in Article II above, Xxxx further agrees as follows:
4.02. Noncompete. For a period commencing on the date of this Agreement
and ending on January 1, 2001, Xxxx 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 Territory, be engaged as a manager,
executive, or operational consultant in the business of offering the Business
Activities. Xxxx acknowledges and agrees that the definition of Business
Activities accurately reflects activities he engaged in and had authority over
while employed by the Company, is less extensive than the overall activities he
engaged in and had authority over, and is reasonable in scope. Xxxx also
acknowledges and agrees that the above phrase, "manager, executive or
operational consultant" accurately describes duties and activities he engaged in
on behalf of the Company, is less extensive than the actual duties and
activities he 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 Xxxx had oversight responsibility for
during the last twelve (12) months of his employment by the Company as the
Company's Chief Executive 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
0
0
Xxxxx 0000
Xxxxxxx, XX 00000
000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxxx, XX 00000
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
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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
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
Xxxx acknowledges and agrees that the definition of Territory accurately
describes geographical area over which he had authority while employed by the
Company, is less extensive than the actual geographical area over which he had
authority, and is reasonable in scope.
Notwithstanding the foregoing, Xxxx shall be allowed to provide consulting
services to his brother's company, Digital Fusion, Inc., only within its market
areas of the specific Digital Fusion offices set forth below and only in
connection with Digital Fusion's business activities as carried on as of the
date of execution of this Agreement:
000 X. Xxxxxx Xxxxx, Xxxxx 0000
Xxxxx, XX 00000-0000
000 Xxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000-0000
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0 Xxxxxxxxx Xxxxxx Xxxxx 000
0000 00xx Xxxxxx X.
Xxxxxxxxxxx, XX 00000-0000
0000 X. Xxxx Xxxx Xx. Xxxxx 000
Xxxx, XX 00000-0000
0000 Xxxxx Xxxxx Xxxxx 0000
Xxxxxxx, XX 00000-0000
In addition, nothing herein shall be construed to prevent Xxxx from (i) engaging
in the private practice of law or (ii) engaging in investment banking provided
that in either such capacity Xxxx does not personally participate in the
representation of clients whose business involves carrying on the Business
Activities within the Territory. It is understood that the firm by which Xxxx
may be employed to provide such legal or investment banking services may provide
such services to clients, including Digital Fusion, Inc., engaged in the
Business Activities in the Territory so long as Xxxx is not personally involved
in any such representation in any way; provided, however, that Xxxx shall be
permitted to provide legal and/or investment banking advice to Digital Fusion in
connection with one sale of all or part of Digital Fusion during the restricted
period set forth above (from the date of this Agreement through January 1,
2001), so long as he is not involved in any purchases or acquisitions for
Digital Fusion during such period and he does not represent Digital Fusion or
its purchaser or otherwise engage in the Business Activities in connection with
either Digital Fusion or its purchaser after the sale and during the above
restricted period. Permission for Xxxx to provide legal and/or investment
banking advice to Digital Fusion shall expire upon sale of all or part of
Digital Fusion.
4.03. Nonsolicitation of Prospects. For a period commencing on the date
of this Agreement and ending on January 1, 2001, Xxxx 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, 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 November 23, 1999 from Xxxxx X.
Xxxxxxxx, Xx. to Xxxx which Xxxx acknowledges and agrees were known to him to be
companies which the Company had identified as potential business and/or
acquisition opportunities of the Company and about which Xxxx received
confidential and trade secret information during the term of his employment with
the Company.
4.04. Nonsolicitation of Employees. For a period commencing on the date
of this Agreement and ending on January 1, 2001, Xxxx 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,
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any person (a) who was employed with the Company during the last twelve months
of Xxxx'x employment with the Company, and (b) who has not ceased to be employed
by the Company for a period of at least six months; provided, however, that
after March 1, 2000, Xxxx shall be free to offer employment to Xxxxx Xxxxx.
4.05. Nonsolicitation of Customers. For a period commencing on the date
of this Agreement and ending on January 1, 2001, Xxxx 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 an opportunity to provide the Business activities to any
customer of the Company with whom Xxxx had material business contact(s) on
behalf of the Company during Xxxx'x 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 on January 1, 2001, Xxxx 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 Trade Secret or
Confidential Information of the Company to any person and shall not make use of
any Trade Secret or Confidential Information, for himself or others, except to
the extent required by any law or order, in which case Xxxx 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 January
1, 2001, 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 avoid any such provision, the Employee first shall refund all
payments heretofore made to him pursuant to this Agreement and shall be deemed
to have forfeited all other payments to which he otherwise would be entitled
pursuant to this Agreement.
ARTICLE V
GENERAL PROVISIONS
5.01. Ownership of Company Shares. Xxxx 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 except as noted on Schedule I; (ii) Xxxx'x right to vote
or Dispose of the Company Shares beneficially owned by Xxxx is not subject to
any voting trust, voting agreement, voting arrangement or proxy, and (iii) Xxxx
has not entered into any contract, option or other arrangement or undertaking
with respect thereto.
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.
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(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 Xxxx, to:
0000 Xxxxx Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000
with a copy to:
Xxxxxxx X. Xxxx, Esq.
King & Spalding
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
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
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
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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, (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 and, if and when Xxxx
obtains a facsimile number prior to January 31, 2001, he shall provide it
promptly to all parties above.
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 Stock Option Agreements
between Employee and the Company, dated May 19, 1997, February 5, 1998 and
October 26, 1998 (the "Stock Option Agreements"), the Separation and Release
Agreement, executed contemporaneously herewith (the "Separation Agreement") and
the Director's and Officer's Indemnification Agreement, originally executed in
1997 and a replacement document 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 Stock Option Agreements, 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.
5.06. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Florida 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
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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. Xxxx 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. Xxxx 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. Xxxx 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. Xxxx 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. Xxxx further
acknowledges that the consideration he receives for this Agreement is in
addition to any amounts to which he was already entitled.
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. The parties agree and
acknowledge (i) that this Agreement shall become effective only upon approval by
the Board of Directors of the Company or a committee thereof and (ii) that this
Agreement
14
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shall be null, void, and of no effect unless it is so approved by the Board of
Directors or a committee thereof by 5:00 p.m. EST on December 1, 1999.
ACSYS, INC.
Name: /s/ Xxxxx X. Xxxxxxxx, Xx.
---------------------------------
Title: Chief Financial Officer
---------------------------------
/s/ Xxxxxxx Xxxx, Xx.
---------------------------------
Xxxxxxx Xxxx, Xx.
15
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SCHEDULE I
Shares Beneficially Owned By Xxxx Number
5,450
Options Owned by Xxxx Number Exercise Price
135,198 $ 8.00
113,357 $ 8.50
100,000 $10.00
