Exhibit (d)(12)
ACSYS, INC.
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March 31, 2000
Mr. C K Z Miles
Select Appointments (Holdings) Plc
Ziggurat
Grosvenor Raod
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Dear Zach:
This letter agreement is intended to amend the Confidentiality Agreement between
Acsys, Inc. (the "Company") and Select Appointments (Holdings) Plc ("Select")
dated May 21, 1999, a copy of which is attached hereto as Appendix A (the
"Agreement"). This letter agreement is also intended to serve as a joinder
agreement whereby Vedior N.V. ("Vedior") becomes a party to the Agreement as
amended hereby. Additionally, this letter agreement is intended to extend the
time periods in the employee non-solicitation and standstill provisions to March
31, 2002 and March 31, 2001, respectively. Accordingly, the parties hereto agree
as follows:
1. References to the word "you" shall be read to mean each of
Vedior and Select.
2. The term "the date hereof" in all places in the second and
third paragraphs on Page 3 of the Agreement shall be hereby
replaced with the term "March 31, 2000."
3. Except as amended hereby, the Agreement shall remain in full
force and effect and the parties hereto hereby confirm its
effectiveness and application to each of them.
Sincerely,
Acsys, Inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
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Title: EVP - Finance & Admin.
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Date: March 31, 2000
[SIGNATURES CONTINUED ON NEXT PAGE]
Select Appointments (Holdings) Plc
By: /s/ C K Z Miles
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Name: C K Z Miles
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Title: Finance Director
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Date: March 31, 2000
Vedior N.V.
By: /s/ C K Z Miles
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Name: C K Z Miles
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Title: Chief Financial Officer
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Date: March 31, 2000
[SIGNATURE PAGE TO AMENDMENT TO CONFIDENTIALITY AGREEMENT BETWEEN ACSYS,
INC. AND SELECT APPOINTMENTS (HOLDINGS) PLC DATED MAY 21, 1999]
2
ACSYS, INC. APPENDIX A
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May 21, 1999
STRICTLY CONFIDENTIAL
Mr. C K Z Miles
Select Appointments (Holdings) Plc
Ziggurat
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Dear Zach:
You have requested information from Acsys, Inc. (the "Company") in connection
with your consideration of a possible transaction between the Company or its
shareholders and you. As a condition to your being furnished such information,
you agree to treat any information (whether prepared by the Company, its
advisors or otherwise, and whether oral, computerized or written) that is
furnished (whether before or after the date hereof) to you or your
representatives (which term shall include your directors, officers, partners,
employees, agents, advisors, accountants, consultants, attorneys and potential
financing sources) by or on behalf of the Company and all analyses,
compilations, forecasts, summaries, notes, data and other documents and
materials in whatever form or medium, whether prepared by you or your
representatives (herein collectively referred to as the "Evaluation Material")
In accordance with the provisions of this letter and to take or abstain from
taking certain other actions herein set forth. The term "Evaluation Material"
does not include information which (i) as shown by written records is already
lawfully in your possession, provided that such information is not known by you
to be subject to another confidentiality agreement with or other obligation of
secrecy to the Company or another party, or (ii) is or becomes generally
available to the public other than as a result of disclosure by you, your
representatives or anyone acting on your or their behalf or (iii) becomes
available to you on a non-confidential basis from a source other than the
Company or its advisors, provided that such source is not known by you to be
bound by a confidentiality agreement with or other obligation of secrecy to the
Company or another party.
Select Appointments (Holdings) Plc
May 21, 1999
Page 2
You hereby agree that all Evaluation Material is and shall remain the
property of the Company (unless otherwise agreed in writing), that the
Company is only loaning the Evaluation Material to you, and that you have not
received and will not receive any rights or claims with respect to the
Evaluation Material. You further agree that the Evaluation Material will be
used solely for the purpose of evaluating a possible transaction between the
Company or its shareholders and you, will not be used in any way detrimental
to the Company, and will be kept confidential by you and your
representatives. You further agree the Evaluation Material will not be
provided, disclosed or otherwise made directly or indirectly available to any
person or entity other than those individuals who need to know such
information for the sole purpose of evaluating any such possible transaction
between the Company or its shareholders and you. It is understood and agreed
that each of your representatives shall be informed of the confidential
nature of the Evaluation Material prior to delivery thereof to such
representative and that, by receiving such materials, such representative
will be deemed to have agreed to be bound by this letter agreement. In any
event, you shall be responsible for any breach of this letter agreement by
any of your representatives, and you agree, at your sole expense, to take all
reasonable measures (including, without limitation, court proceedings) to
restrain your representatives from prohibited or unauthorized disclosure or
use of the Evaluation Material.
You hereby acknowledge that you are aware, and that you will advise your
representatives who are informed as to the matters which are the subject of
this letter, that the United States and English securities laws prohibit any
person who has received material, non-public information concerning the
matters which are the subject of this letter from purchasing or selling
securities of such issuer or from communicating such information to any other
person under circumstances in which it is reasonably foreseeable that such
person is likely to purchase or sell such securities.
Notwithstanding any provision of this letter agreement to the contrary, in
the event you or your representatives are requested or required in a
judicial, administrative or governmental proceeding, or required pursuant to
any rule or regulation promulgated by the Securities and Exchange Commission,
the Panel On Takeovers And Mergers, the New York Stock Exchange, the London
Stock Exchange or the Nasdaq Stock Market (collectively, the "Rules and
Regulations"), to disclose any Evaluation Material or the existence, content
or status of negotiations relating to the possible transaction, you agree to
provide the Company with prompt written notice of such circumstances and all
related proceedings and information so that the Company may seek an
appropriate protective order, take other action deemed advisable by the
Company or waive your compliance that the confidentiality provisions of this
letter agreement. If, as a result of any such request or requirement, you or
your representatives are, in the written opinion of your outside counsel
("Counsel"), compelled to disclose Evaluation Material or the existence,
content or status of negotiations relating to the possible transaction (i) to
any tribunal or else stand liable for contempt or other censure or penalty,
or (ii) pursuant to the Rules and Regulations, you may disclose that portion
of the Evaluation Material to such tribunal or pursuant to the Rules and
Regulations which your Counsel advises in writing that you or your
representatives are compelled to disclose without liability hereunder,
provided that you comply with the notice provisions of this paragraph and
apply for confidential treatment under the Rules and Regulations and that you
exercise your best efforts to preserve the confidentiality of the Evaluation
Material, including, without limitation, by cooperating with the Company in
attempting to obtain an appropriate protective order or other reliable
assurance that such tribunal will accord the Evaluation Material confidential
treatment.
Select Appointments (Holdings) Plc
May 21, 1999
Page 3
You agree that you will not, and will cause your representatives not to,
disclose to any person (i) the fact that you or your representatives are or have
been receiving and reviewing Evaluation Material, (ii) the fact that discussions
or negotiations are taking place concerning a possible transaction between the
Company or its shareholders and you, (iii) that this agreement exists or was
entered into or (iv) any of the terms, conditions or other facts with respect to
any such possible transactions, including the status thereof, except that
disclosure of such information may be made to the extent required by applicable
law, including applicable Rules and Regulations if and to the extent, in the
written opinion of your Counsel, you are required to make such disclosure
pursuant to applicable law, including applicable Rules and Regulations; provided
that prior to any such disclosure, you shall first give the Company a reasonable
opportunity to review the proposed disclosure and to comment thereon. The term
"person" as used in this letter agreement shall be broadly interpreted to
include the media and any individual, corporation, partnership, group or other
entity.
You agree that for a period of two (2) years from the date hereof, you will
not solicit or entice or approach any of the current officers or employees of
the Company or its affiliates identified by you during your evaluation of the
Company to leave his or her employment, without the prior written consent of the
Company; provided, however, that this prohibition shall not apply either to
situations in which the Company's employee made the initial contact with you
or to employment solicitations made independently by recruiters without your
specific direction or to the ongoing execution of your general, non-directed
recruiting advertising programs in the ordinary course of business.
You hereby represent and warrant to the Company that as of the date hereof
neither you nor any of your affiliates (as defined below) holds any
securities of the Company, other than 50,000 shares of the Company's Common
Stock held by you. You hereby acknowledge that the Evaluation Material is
being furnished to you in consideration of your agreement that for a period
of one year from the date hereof you and your affiliates (as defined in Rule
12b-2 under the Securities Exchange Act of 1934 (the "Exchange Act")) will
not (and you and they will not assist, provide or arrange financing to or for
others or encourage others to), directly or indirectly, acting alone or in
concert with others, unless specifically requested in writing in advance by
the Board of Directors of the Company:
(i) acquire or agree, offer, seek or propose to acquire (or request
permission to do so), ownership (including, but not limited to,
beneficial ownership as defined in Rule 13d-3 under the Exchange
Act) of any of the assets or businesses of the Company or any
securities issued by the Company, or any rights or options to
acquire such ownership (including from a third party), or make any
public announcement (or request permission to make any such
announcement) with respect to any of the foregoing, provided,
however, that the provisions of this sub-paragraph (i) shall not
apply to any acquisition of, or any agreement or offer seeking or
proposing to acquire (or requesting permission to do so), any
securities issued by the Company by your directors or officers in an
aggregate amount of up to ten per cent (10%) of the issued and
outstanding shares of capital stock of the Company, provided that
such acquisition or agreement or offer is in the ordinary course of
business and not in connection with any change of control, or
contemplated change of control, of the Company or any subsidiary
thereof, or
Select Appointments (Holdings) Plc
May 21, 1999
Page 4
(ii) participate in any recapitalization, restructuring, liquidation,
dissolution or other extraordinary transaction with respect to the
Company or any of its subsidiaries, or
(iii) seek or propose to influence or control the management or the
policies of the Company or to obtain representation on the Company's
Board of Directors, or solicit, or participate in the solicitation
of, any proxies or consents with respect to any securities of
the Company, or make any public announcement with respect to any
of the foregoing or request permission to do any of the foregoing,
or
(iv) enter into any discussions, negotiations, arrangements or
understandings with any third party with respect to any of the
foregoing, or
(v) take any action which might force the Company to make a public
announcement regarding any of the types of matters set forth above.
Although the Company has endeavored to include in the Evaluation Material
information which it believes to be relevant for the purpose of your
investigation, you understand that except as specifically provided hereafter in
a definitive, written agreement providing for a negotiated transaction, neither
the Company nor any of its representatives or advisors have made or make any
representation or warranty as to the accuracy or completeness of the Evaluation
Material. Except as may be specifically provided hereafter in a definitive,
written agreement providing for a negotiated transaction, you agree that neither
the Company nor its representatives or advisors shall have any liability to you
or any of your representatives resulting from the use or contents of the
Evaluation Material or from any action taken or any inaction occurring in
reliance on the Evaluation Material.
At the request of the Company or in the event that you do not proceed with a
transaction which is the subject of this letter, you and your representatives
shall promptly redeliver to the Company all written Evaluation Material and any
other written material containing or reflecting any information in the
Evaluation Material (whether prepared by the Company, its advisors, agents or
otherwise) that was delivered to you by the Company or its representatives and
will not retain any copies, extracts or other reproductions in whole or in part
of any such written material. At the request of the Company or in the event that
you do not proceed with a transaction which is the subject of this letter, all
documents, memoranda, notes and other writings whatsoever prepared by you or
your representatives based on the Evaluation Material shall be destroyed, and
such destruction shall be certified in writing to the Company by an authorized
officer supervising such destruction. The term "writing" shall include data in
computer format. Notwithstanding the return or destruction of the Evaluation
Material, you and your representatives will continue to be bound by your
obligations of confidentiality and other obligations hereunder.
Select Appointments (Holdings) Plc
May 21, 1999
Page 5
You shall not knowingly export, directly or indirectly, any United States
source technical data, acquired from the Company or any company affiliated
with it or any direct product of that data, to any country for which the
United States government or any agency of that government, at the time of
export, requires an export license or other governmental approval without
first obtaining that license or approval when required by applicable United
States law. This obligation shall survive any termination or expiration of
this letter, and shall be independent of any other obligations, any
limitations thereon, and any exceptions thereto, which may be stated
elsewhere in this letter.
It is further understood and agreed that no failure or delay by the Company
in exercising any right, power or privilege hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any right, power or
privilege hereunder.
You understand and agree that no contract or agreement providing for any
transaction involving the Company shall be deemed to exist between you or
your shareholders and the Company unless and until a final definitive
agreement has been executed and delivered, and hereby waive, in advance, any
claims (including, without limitation, claims of breach of contract) in
connection with any transactions involving the Company unless and until you
or your shareholders and the Company shall have entered into a final
definitive agreement. You also agree that unless and until a definitive
agreement regarding a transaction between the Company and you or your
shareholders has been executed and delivered, neither the Company nor you or
your shareholders will be under any obligation of any kind whatsoever with
respect to such a transaction by virtue of this letter agreement except for
the matters specifically agreed to herein. You further acknowledge and agree
that the Company reserves the right, in its sole discretion, to reject any
and all proposals made by you or any of your representatives with regard to a
transaction between the Company and you, and to terminate discussions and
negotiations with you at any time. You further understand that (i) the
Company and its representatives shall be free to conduct any process for any
transaction involving the Company, if and as they in their sole discretion
shall determine (including, without limitation, negotiating with any other
interested parties and entering into a definitive agreement without prior
notice to you or any other person), (ii) any procedures relating to such
process or transaction may be changed at any time without notice to you or
any other person, and (iii) you shall not have any claims whatsoever against
the Company, its representatives or any of their respective directors,
officers, stockholders, owners, affiliates or agents arising out of or
relating to any transaction involving the Company (other than those as
against the parties to a definitive agreement with you in accordance with the
terms thereof) nor, unless a definitive agreement is entered into with you,
against any third party with whom a transaction is entered into. Neither this
paragraph nor any other provision in this agreement can be waived or amended
except by written consent of the Company, which consent shall specifically
refer to this paragraph (or such provision) and explicitly make such waiver
or amendment.
Select Appointments (Holdings) Plc
May 21, 1999
Page 6
The parties hereto acknowledge that money damages are inadequate to protect
against any actual or threatened breach of this letter agreement because of
the difficulty of ascertaining the amount of damage that will be suffered by
the Company in the event that this agreement is breached.
Therefore, you, on behalf of yourself and your affiliates, acknowledge and
agree that in the event of any actual or threatened breach of this agreement
by you or your affiliates, and without prejudice to any rights and remedies
otherwise available to the Company, the Company shall be entitled (i) to
equitable relief by way of injunction and (ii) to compel specific performance
without the need of proof of actual damages. You and your affiliates further
agree to waiver, and upon being deemed to be a party to this agreement your
representatives will have agreed to waive, any requirement for the securing
or posting of any bond in connection with such remedies. In the event of
litigation relating to this letter agreement, if a court of competent
jurisdiction determines that you or any of your representatives have breached
this letter agreement, then you shall be liable and pay to the Company the
reasonable legal fees incurred by the Company in connection with such
litigation, including any appeal therefrom. If any term, provision, covenant
or restriction of this letter agreement is held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this agreement shall remain
in full force and effect and shall in no way be affected, impaired or
invalidated.
This agreement shall be governed by, and construed in accordance with, the
laws of the State of Georgia, without regard to principles of conflicts of
laws.
Sincerely,
Acsys, Inc.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: Chief Financial Officer
AGREED AND ACCEPTED this
21st day of May, 1999
Select Appointments (Holdings) Plc
/s/ C. K. Z. Miles
By: C. K. Z. Miles
Title: Director
