EXHIBIT (d)(4)
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made as of May 16, 1997 (the
"Effective Date"), by and between ICCE, Inc., a Georgia corporation, (the
"Company"), and Xxxxx X. Xxxxxx, an individual resident of Georgia (the
"Executive").
WHEREAS, Executive was an executive officer and shareholder of Xxxxx X.
Xxxxxx & Associates, Inc. ("Xxxxxx") and DCCA Professional Temporaries, Inc.
("DCCA"), each of which was merged with and has become a subsidiary of the
Company;
WHEREAS, the Company recognizes the contributions of Executive in such
capacity;
WHEREAS, Executive is expected to make a significant contribution to the
success and development of the Company; and
WHEREAS, Executive is willing to render services to the Company and/or
one or more of its subsidiaries on the terms and subject to the conditions
set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by Executive and the Company
including, without limitation, the promises and covenants of the parties set
forth herein, the parties hereto, intending to be legally bound, hereby agree
as follows:
ARTICLE I
EMPLOYMENT
Section 1.1 TERM OF EMPLOYMENT. The term of Executive's employment
hereunder shall commence on the Effective Date hereof and continue for a
period of three (3) years, unless earlier terminated as provided in this
Agreement. At the end of the initial three year term, this Agreement shall
automatically renew for consecutive one year terms unless either party hereto
gives written notice to the other of its intent to terminate sixty (60) days
prior to the end of any term.
Section 1.2 DUTIES AND RESPONSIBILITIES OF EXECUTIVE. Executive is
hereby employed full time as the Chairman of the Board of the Company.
Executive shall devote his full time, energy, and skill to such office and
shall do and, perform all services and acts necessary or advisable to fulfill
the duties of such office. In his capacity as an officer of the Company,
Executive shall report to the Board of Directors of the Company, and shall
conduct and perform such additional services and activities as may be
determined from time to time by the Board of Directors which are normal and
customary for the Chairman of the Board of a similarly situated Company.
Executive's authority and responsibility in the Company shall at all times be
subject to the review and discretion of the Board of Directors, who shall
have the final authority to make decisions regarding the business of the
Company. Executive acknowledges that he has a duty of loyalty to the Company
and shall not engage in, directly and indirectly, any other business or
activity that could materially and adversely affect the Company's business or
the Executive's ability to perform his duties under this Agreement, provided,
however, that the Executive shall be free to participate in board, civic and
charitable activities so long as such activities do not interfere with his
duties and responsibilities hereunder.
Section 1.3 COMPENSATION. For services to be rendered by Executive under
this Agreement, Company shall pay Executive as follows: Prior to any firm
commitment underwritten public offering of the Company's equity securities
(an "IPO"), Executive shall be paid a monthly base salary of 100% of the cash
basis earnings of Xxxxxx and DCCA for the previous month, adjusted for
non-deductible items and corporate level taxes payable, if any. Such salary
shall be reduced by the Executive's allocable percentage (based on his equity
interest in the Company) of the aggregate of such amounts as in the Board of
Directors' judgment are necessary to operate the Company. Such salary shall
be paid at times during the year to be designated by the Company's Board of
Directors. Subsequent to an IPO, Executive shall be paid an annual base
salary of $200,000. In addition, subsequent to an IPO, the Executive shall
receive bonus compensation in an amount to be agreed upon. Such bonus
compensation shall be based on (1) the year-to-year growth in earnings before
interest, taxes, depreciation and amortization of Xxxxxx and DCCA and (2) the
success of the Company's acquisition program.
Section 1.4 Benefits.
(a) VACATION. Executive shall be entitled to six weeks paid
vacation annually during his employment by the Company hereunder. Any
vacation not used during any calendar year shall be forfeited, except that
one week's unused vacation may be carried forward to the year following the
year in which such vacation entitlement accrued.
(b) LIFE, DISABILITY AND RETIREMENT PROGRAMS. Executive shall be
entitled to participate in any life, disability and retirement programs that
are generally offered to or provided for the senior management personnel of
the Company and its subsidiaries.
(c) GROUP INSURANCE. Executive shall be entitled to participate
in such group health and dental insurance programs (including spouse
coverage) as may from time to time be offered generally to all of the other
members of the senior management personnel of the Company and its
subsidiaries.
Section 1.5 BUSINESS EXPENSES. Executive shall be entitled to
reimbursement of all ordinary and necessary business expenses reasonably
incurred for business travel, communications (including cell phones and
pager), entertainment and meals in connection with the performance of
Executive's duties under this Agreement in accordance with the Company's
established policies for reimbursement of business expenses. The Company
expects Executive to attend and participate in continuing education seminars
and courses with respect to the staffing industry and business management
related to his duties, and the Company will reimburse all ordinary and
necessary expenses of such attendance and participation. Such continuing
education courses and seminars will be scheduled in conjunction with the
other officers of the Company to assure coordination of schedules.
ARTICLE II
COVENANTS OF EXECUTIVE
Section 2.1 CONFIDENTIALITY. Executive recognizes the interest of the
Company in maintaining, the confidential nature of its proprietary and other
business and commercial information. In connection therewith, Executive
covenants that during the term of his employment with Company under this
Agreement, and for a period of one (1) year thereafter, Executive shall not,
directly or indirectly, except as authorized by the Board of Directors,
publish, disclose or use for his own benefit or for the benefit of a business
or entity other than the Company or otherwise, any secret or confidential
matter, or proprietary or other information not in the public domain that was
acquired by Executive during his employment, relating to the Company's, or
any of its subsidiaries' businesses, operations, customers, suppliers,
products, employees, financial affairs or industry practices, technology,
know-how or intellectual property or other similar information (the
"Proprietary Information").
Executive will abide by the Company's policies and regulations, as
established from time to time, for the protection of its Proprietary
Information. Executive acknowledges that all records, files, data, documents
and the like relating to suppliers, customers, costs, prices, systems,
methods, personnel, technology and other materials relating to the Company or
its affiliated entities shall be and remain the sole property of the Company
and/or such affiliated entity and shall, upon the request of the Company,
turn over all copies of such Proprietary Information to the Company (together
with a written statement certifying as to his compliance with the foregoing).
Section 2.2 NON-SOLICITATION OF CUSTOMERS. During the term of his
employment with the Company, and for a period of one (1) year thereafter,
unless Executive is terminated other than for Cause (as defined below) or
Executive resigns for Good Reason (as defined below), Executive shall not
directly or indirectly, through one or more intermediaries or otherwise,
solicit, direct or appropriate, or attempt to solicit, direct or appropriate
any individual or entity which was, at the time of termination of Executive's
employment, a customer or client of the Company for the purpose of providing
a service or product to such customer or client which is the same type of
service or product offered or provided by the Company at the time of
termination of Executive's employment, with the Company.
Section 2.3 NON-COMPETE. During the term of his employment with the
Company, and for a period of two (2) years thereafter, unless Executive is
terminated other than for Cause (as defined below) or Executive
resigns for Good Reason (as defined below), Executive shall not, without the
prior written consent of the Board of Directors, which consent may be
withheld at the sole discretion of the Board of Directors, engage or
participate in, as a business executive or equity owner of any business or
enterprise that directly competes in any geographical area with any line of
business in which the Company was engaged in at the time of termination of
Executive's employment with the Company; provided, however, that nothing in
this Section 2.3 shall prohibit Executive from acquiring or holding, for
investment purposes only, less than five percent (5 %) of the outstanding
publicly traded securities of any corporation which may compete directly or
indirectly with the Company.
Section 2.4 NON-SOLICITATION OF EMPLOYEES. During the term of his
employment with the Company, and for a period of one (1) year thereafter,
unless Executive is terminated other than for Cause (as defined below) or
Executive resigns for Good Reason (as defined below), Executive shall not,
directly or indirectly, through one or more intermediaries or otherwise,
employ, induce, solicit for employment, or assist others in employing,
inducing or soliciting for employment any individual who is at any time
during such period an employee of the Company for the purpose of providing
services that are the same or similar to the types of services offered or
engaged in by the Company at the time of termination of Executive's
employment with the Company.
Section 2.5 TRADE SECRETS. The Executive shall not, at any time, either
during the term of his employment or after any termination of employment, use
or disclose any Trade Secrets (as defined under applicable law) of the
Company or its subsidiaries, except in fulfillment of his duties as the
Executive during his employment, for so long as the pertinent information or
data remain Trade Secrets, whether or not the Trade Secrets are in written or
tangible form.
ARTICLE III
TERMINATION OF EMPLOYMENT
Section 3.1 TERMINATION BY COMPANY. Executive's employment may be
terminated by the Company by giving notice during the term of this Agreement
upon the occurrence of one or more of the following events:
(a) Executive's death or disability which renders Executive
incapable of performing his duties for more than one hundred twenty (120)
calendar days (termination under this Section 3.1 (a) shall be deemed
termination without Cause);
(b) for any reason following a determination by the Board of
Directors to terminate Executive's employment (termination under this Section
3. 1(b) shall be deemed termination without Cause); or
(c) "for Cause", which for purposes of this Agreement shall mean
that the Executive shall have:
(i) committed an intentional act of fraud, embezzlement or
theft in connection with his duties or in the course of his employment with
the Company which has a material adverse effect upon the Company;
(ii) inflicted intentional wrongful material damage to any
material asset of the Company or the Company;
(iii) intentionally and wrongfully violates Article II of
this Agreement, which violation has a material adverse effect upon the
Company;
(iv) been convicted of a felony or any similar crime
carrying a prison term of at least one year (regardless of whether
imprisonment is actually imposed);
(v) a habitual and debilitating use of alcohol or drugs; or
(vi) failed to meet performance expectations, as determined
and articulated by the Company's Board of Directors; PROVIDED, HOWEVER, that
in the event of this subsection (vi) being the sole reason for a termination
for Cause, Executive shall have the cure provisions and rights provided for
in Section 3. 1 (d) hereof.
(d) In the event of a determination by the Company's Board of
Directors that the Executive has failed to meet performance expectations, the
Company shall furnish to Executive in writing a notice of proposed
termination setting forth a specific statement of the deficiencies in his
performance. Executive shall then have a period of ninety (90) days after the
giving of such written notice of proposed termination by the Company in which
to attempt to effect a cure of the specified deficiencies. If at the end of
such ninety (90) day period no such cure has been effected to the reasonable
satisfaction of the Board of Directors of the Company, then Executive's
employment shall be terminated as of the end of such ninety (90) day period.
The Company shall be obligated to provide to Executive only one such notice
of proposed termination, and if subsequent to effecting a cure of specified
deficiencies the Executive is determined by the Board of Directors to have
again failed to meet performance expectations, then his employment may be
terminated immediately upon the Company's giving of notice of termination to
Executive which specifies his deficiencies in performance.
Section 3.2 GOOD REASON. For purposes of this Agreement, "Good Reason"
shall mean, without the express written consent of Executive, the occurrence
of any of the following events unless such events are fully corrected within
thirty (30) days following written notification by Executive to the Company
that he intends to terminate his employment hereunder for one of the reasons
set forth below:
(a) a material breach by the Company of any material provision
of this Agreement, the Registration Rights Agreement to which Executive is a
party of even date herewith, or the Shareholders Agreement to which Executive
is a party of even date herewith, including, but not limited to, the
assignment to Executive of any duties inconsistent with Executive's position
in the Company or a material adverse alteration in the nature or status of
Executive's responsibilities;
(b) the relocation of Executive out of the Atlanta area; or
(c) the occurrence of a "Change in Control" as defined below.
For purposes of this Agreement a "Change in Control" shall mean 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 30% 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 all of the Company's
interest in Xxxxxx or DCCA, 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 30% of the voting power of the voting stock of the surviving corporation
immediately after such transaction; or (iii) individuals who at the date of
the Merger 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 of the Merger
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; provided, however, that a Change in Control shall not
include the Merger.
Section 3.3 SEVERANCE. For purposes of this Agreement, Executive's
entitlement to any severance payments upon termination of his employment
shall be as set forth below:
(a) TERMINATION WITHOUT CAUSE.
(i) Executive may not be terminated prior to the IPO;
(ii) If Executive is terminated without Cause or resigns
for Good Reason at any time, Executive shall be entitled to severance pay of
a lump sum equal to three times the sum of (i) his annual salary then in
effect plus (ii) the amount of his bonus as calculated based on the results
of operations for the twelve months prior to such termination.
(b) VOLUNTARY TERMINATION. If Executive voluntarily resigns for
reason other than Good Cause, Executive shall receive a lump sum severance
payment equal to his then current annual salary. Executive shall provide a
minimum of thirty (30) days prior notice to the Chief Executive Officer of
his resignation. In the event Executive shall provide thirty (30) days prior
written notice of his intent to resign, the Company may accept such
resignation effective as of any date during such thirty (30) day period as
the Company deems appropriate, provided that Executive shall receive from the
Company his salary and be entitled to participate at the Company's expense in
any Company sponsored benefit programs in which he was a participant as of
the effective date of his resignation for the duration of such thirty (30)
day period.
(c) FOR CAUSE. Executive shall not be entitled to any severance
pay whatsoever if his employment is terminated "for Cause" pursuant to
Section 3.1(c) of this Agreement, unless severance pay is approved by the
Board of Directors of the Company in its sole discretion, provided, however,
that the Executive shall receive such annual salary that is accrued but
unpaid up to the date of such termination for Cause. If termination is for
Cause pursuant to Section 3. 1 (c)(vi), then Executive shall be entitled to
severance equal to pay for the remainder of the then current term of this
Agreement, or equal to one year's salary at his then current rate, whichever
is greater.
ARTICLE IV
GENERAL PROVISIONS
Section 4.1 WITHHOLDING OF TAXES. The Company may withhold from any
amounts payable under this Agreement all federal, state, city or other taxes
and withholdings as shall be required pursuant to any applicable law, rule or
regulation.
Section 4.2 NOTICE. For purposes of this Agreement, all communications
including, without limitation, notices, consents, requests or approvals,
provided for herein shall be in writing and shall be deemed to have been duly
given when personally delivered or five (5) business days after having been
mailed by United States registered mail or certified mail, return receipt
requested, postage prepaid, addressed to the Company (to the attention of the
Secretary of the Company) at its principal executive office or to Executive
at his principal residence, or to such other address as any party may have
furnished to the other in writing and in accordance herewith, except the
notices of change of address shall be effective only upon receipt.
Section 4.3 VALIDITY. It is not the intent of any party hereto to
violate any public policy of any jurisdiction in which this Agreement may be
enforced. If any provision of this Agreement or the application of any
provision hereof to any person or circumstances is held invalid,
unenforceable or otherwise illegal, the remainder of this Agreement and the
application of such provision to any other person or circumstances shall not
be affected, and the provision so held to be invalid, unenforceable or
otherwise illegal shall be reformed to the extent (and only to the extent)
necessary to make it valid, enforceable and legal; provided, however, if the
provision so held to be invalid, unenforceable or otherwise illegal
constituted a material inducement to a party's execution and delivery of this
Agreement, then such provision shall not be reformed unless prior to any
reformation that party agrees to be bound by the reformation.
Section 4.4 ENTIRE AGREEMENT. This Agreement supersedes any other
agreements, oral or written, between the parties with respect to the subject
matter hereof, and contains all of the agreements and understandings between
the parties with respect to the employment of Executive by the Company. Any
waiver or modification of any term of this Agreement shall be effective only
if it is set forth in a writing signed by both parties hereto.
Section 4.5 SUCCESSORS AND BINDING AGREEMENT.
(a) This Agreement shall be binding upon and inure to the
benefit of the Company and any Successor of or to the Company, but shall not
otherwise be assignable or delegable by the Company. "Successor" shall mean
any successor in interest, including, without limitation, any entity,
individual or group of persons acquiring directly or indirectly all or
substantially all of the business or assets of the Company, as the case may
be, Whether by sale, merger, consolidation, reorganization or otherwise.
(b) The Company shall require any Successor to agree at the time
of becoming a Successor to perform this Agreement to the same extent as the
original parties would be required if no succession had occurred.
(c) This Agreement shall inure to the benefit of and be
enforceable by Executive's personal or legal representatives, executors,
administrators, heirs, distributee and legatees.
(d) This Agreement is personal in nature and neither of the
parties shall, without the consent of the other, assign, transfer or delegate
this Agreement or any rights or obligations hereunder except as expressly
provided in this Section 4.5.
Section 4.6 CAPTIONS. The captions in this Agreement are solely for
convenience of reference and shall not be given any effect in the
construction or interpretation of this Agreement.
Section 4.7 MISCELLANEOUS. No provisions of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge
is agreed to in a writing signed by Executive and the Company. No waiver by a
party hereto at any time of any breach by another party hereto or compliance
with any condition or provision of this Agreement to be performed by such
other party shall be deemed a waiver of similar or dissimilar provision or
conditions at the same or at any prior or subsequent time.
Section 4.8 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of
which together will constitute one and the same Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the date first above written.
"Company":
ICCE, Inc. "Executive"
By: /S/ XXXXXXX XXXX /S/ XXXXX X. XXXXXX
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Signature Xxxxx X. Xxxxxx
XXXXXXX XXXX Print Residence Address:
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Print Name
---------------------------------
PRESIDENT
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Print Title ---------------------------------
AMENDMENT NO. 1 TO
EMPLOYMENT AGREEMENT
THIS AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT (the "Amendment") is made
as of May 16, 1997 (the "Effective Date"), by and between ICCE, Inc., a
Georgia corporation, (the "Company"), and Xxxxx X. Xxxxxx, an individual
resident of Georgia ("Executive").
WHEREAS, Executive is an executive officer and shareholder of the
Company; and
WHEREAS, Executive and the Company entered into that certain Employment
Agreement dated as of May 16, 1997 (the "Agreement"); and
NOW, THEREFORE, for $10.00 in hand paid by the Company to Executive and
for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged by Executive and the Company including, without
limitation, the promises and covenants of the parties set forth herein, the
parties hereto, intending to be legally bound, hereby agree as follows:
ARTICLE I
AMENDMENTS TO
EMPLOYMENT AGREEMENT
Section 1.1 AMENDMENT TO ARTICLE I. Section 1.3 of the Agreement is
hereby deleted and replaced with the following:
"Section 1.3 COMPENSATION. For services to be rendered by Executive
under this Agreement, Company shall pay Executive as follows: Executive shall
be paid an annual base salary of $200,000, plus bonus compensation in an
amount to be agreed upon by Company and Executive. At the sole discretion of
the Board of Directors of the Company, Executive's annual salary may be
increased from time to time."
Section 1.2 AMENDMENTS TO ARTICLE II. Sections 2.1, 2.2, 2.3, 2.4 and
2.5 of the Agreement are hereby deleted and replaced with the following:
"Section 2.1 CONFIDENTIALITY. Executive recognizes the interest of the
Company in maintaining the confidential nature of its proprietary and other
confidential business and commercial information. In connection therewith,
Executive covenants that during the term of Executive's employment with
Company under this Agreement, and for a period of two (2) years thereafter,
Executive shall not, directly or indirectly, except as authorized by the
Board, publish, disclose or use for Executive's own benefit or for the
benefit of a business or entity (other than the Company) or otherwise, any
secret or confidential matter, or proprietary or other information not in the
public domain that was acquired by Executive during Executive's employment,
relating to the Company's or any of its subsidiaries' businesses, operations,
customers, suppliers, products, employees, financial affairs or industry
practices, technology, know-how or intellectual property or other similar
information (the "Proprietary Information").
Notwithstanding the foregoing, to the extent Proprietary Information
constitutes a Trade Secret (as that term is defined below, or otherwise
defined under applicable law), then Executive shall not, at any time, either
during the term of Executive's employment or after any termination of
employment, use or disclose any Trade Secrets of the Company or any of its
subsidiaries, except in fulfillment of Executive's duties as the Executive
during Executive's employment, for so long as the pertinent information or
data remain Trade Secrets, whether or not the Trade Secrets are in written or
tangible form. As used herein, "Trade Secret" means information which derives
economic value, actual or potential, from not being generally known to, or
readily ascertainable by proper means by, other persons who can obtain
economic value from its disclosure or use, and which is subject to reasonable
efforts by the Company to maintain the secrecy thereof.
Executive will abide by the Company's policies and regulations, as
established from time to time, for the protection of its Proprietary
Information. Executive acknowledges that all records, files, data, documents
and the like relating to suppliers, customers, costs, prices, systems,
methods, personnel, technology and other materials relating to the Company or
its affiliated entities shall be and remain the sole property of the Company
and/or such affiliated entity and shall, upon the request of the Company,
turn over all copies of such Proprietary
Information to the Company (together with a written statement certifying as
to Executive's compliance with the foregoing).
Section 2.2 NON-SOLICITATION OF CUSTOMERS. During the term of
Executive's employment with the Company, and for a period of two (2) years
thereafter, unless Executive is terminated other than for Cause (as defined
below) or Executive resigns for Good Reason (as defined below), Executive
shall not directly or indirectly, through one or more intermediaries or
otherwise, solicit or attempt to solicit Customers to induce or encourage
them to acquire or obtain from anyone other than the Company, service
competitive with or substitute for any Company Service. For purposes of this
Section, a "Customer" refers to any person or group of persons with whom
Employee had direct material contact with regard to the selling, delivery or
support of Company Services, including servicing such person's or group's
account, during the two (2) year period preceding termination of Executive's
employment; and "Company Services" refers to the services that the Company or
any of its subsidiaries offered or sold within six (6) months prior to the
date of termination of Executive's employment. For purposes of this Article
II the "Restricted Territory" shall be the area that is within thirty (30)
miles of the city limits of Atlanta, Georgia. In the event Executive manages
additional offices for the Company, the Executive and the Company agree to
amend this Agreement, by execution of an amendment pursuant to Section 4.5
hereof, to change the Restricted Territory accordingly.
Section 2.3 NON-COMPETE. During the term of Executive's employment with
the Company, and for a period of two (2) years thereafter, unless Executive
is terminated other than for Cause (as defined below) or Executive resigns
for Good Reason (as defined below), Executive shall not, without the prior
written consent of the Board of Directors, which consent may be withheld at
the sole discretion of the Board of Directors, engage or participate within
the Restricted Territory, as a business executive, employee, consultant, or
equity owner of any business or enterprise that directly competes with any
line of business (i) in which the Company or any of its subsidiaries was
engaged at the time of termination of Executive's employment with the Company
and (ii) in which Executive was materially involved or responsible for;
provided, however, that nothing in this Section 2.3 shall prohibit Executive
from acquiring or holding, for investment purposes only, five percent (5%) or
less of the outstanding publicly traded securities of any corporation.
Section 2.4 NON-SOLICITATION OF EMPLOYEES. During the term of
Executive's employment with the Company, and for a period of two (2) years
thereafter, unless Executive is terminated other than for Cause (as defined
below) or Executive resigns for Good Reason (as defined below), Executive
shall not, directly or indirectly, through one or more intermediaries or
otherwise, employ, induce, solicit for employment, or assist others in
employing, inducing or soliciting for employment any individual who is at any
time during such period an employee of the Company or any of its subsidiaries
for the purpose of providing services within the Restricted Area that are the
same or similar to the types of services offered or engaged in by the Company
or any of its subsidiaries at the time of termination of Executive's
employment with the Company.
Section 2.5 Intentionally Omitted.
ARTICLE II
GENERAL PROVISIONS
Section 2.1 WAIVER. Executive hereby waives any "change in control" as
that term is defined in the Employment Agreement which occurs due to any
transaction between the Company and Acsys Resources, Inc.
Section 2.2 VALIDITY. It is not the intent of any party to this
Amendment to violate any public policy of any jurisdiction in which the
Agreement, as amended hereby, may be enforced. If any provision of this
Amendment or the application of any provision hereof to any person or
circumstances is held invalid, unenforceable or otherwise illegal, the
remainder of this Amendment and the application of such provision to any
other person or circumstances shall not be affected, and the provision so
held to be invalid, unenforceable or otherwise illegal shall be reformed to
the extent (and only to the extent) necessary to make it valid, enforceable
and legal; provided, however, if the provision so held to be invalid,
unenforceable or otherwise illegal constituted a material inducement to a
party's execution and delivery of this Amendment, then such provision shall
not be reformed unless prior to any reformation that party agrees to be bound
by the reformation.
Section 2.3 ENTIRE AGREEMENT. The Agreement, as amended hereby,
supersedes any other agreements, oral or written, between the parties with
respect to the subject matter hereof, and contains all of the agreements and
understandings between the parties with respect to the employment of
Executive by the Company. Any waiver or modification of any term of the
Agreement, as amended hereby, shall be effective only if it is set forth
in a writing signed by both parties hereto. Except as amended and modified by
this Amendment, the Agreement remains in full force and effect and is hereby
ratified and affirmed by the parties hereto.
Section 2.4 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of
which together will constitute one and the same Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the date first above written.
"Company":
ICCE, Inc. "Executive"
By: /S/ Xxxx Xxxxxxxxx /S/ Xxxxx X. Xxxxxx
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Signature Xxxxx X. Xxxxxx
Xxxx Xxxxxxxxx
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Print Name
President
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Print Title