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EXHIBIT 10.3
SEPARATION AND RELEASE AGREEMENT
This Separation and Release Agreement (hereinafter the "Separation
Agreement") is entered into as of the 1st day of December, 1999, by and between
Acsys, Inc., formerly ICCE, Inc., (hereinafter the "Company"), and Xxxx Xxxx
Xxxxx (hereinafter the "Employee").
WHEREAS, the Employee has been employed by the Company in the capacity
of Executive Vice President and Chief Development Officer pursuant to that
Employment Agreement dated May 16, 1997, as amended in Amendment No. 1 to
Employment Agreement, dated May 16, 1997, and by resolution of the Board of
Directors of the Company (collectively referred to herein as the "Employment
Agreement"); and
WHEREAS, the Employee has also served as a member of the Board of
Directors of the Company; and
WHEREAS, the Employee and the Company have mutually agreed to
Employee's resignation from her employment with the Company and her resignation
from the Company's Board of Directors; and
WHEREAS, the Company and the Employee have agreed to a severance
arrangement pursuant to the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual
promises herein contained, the parties hereto agree as follows:
Section 1. Termination of Employment and Resignation from Board of
Directors. The Company and the Employee agree that the Employee's employment
with the Company will be terminated as of the day and year first above written
(the "Separation Date"), that Employee has voluntarily resigned from her
employment and that the Employee has been paid all wages and compensation due
her through the Separation Date. The Company and the Employee further agree
that, contemporaneously with the signing of this Separation Agreement, the
Employee shall resign as a member of the Company's Board of Directors by
executing the letter of resignation attached hereto as Exhibit A, and agree that
the Employee's resignation is not the result of a disagreement with the Company
relating to the Company's operations, policies or practices.
Section 2. Severance Pay. The Company shall make a total gross payment
to the Employee of $150,000.00, less withholding for taxes, paid in
approximately equal monthly installments on or about the Company's first regular
payroll date on or after the first of each month between the execution of this
Agreement and January 1, 2001.
The Employee agrees that, in order to receive reimbursement for any reimbursable
but as yet unsubmitted business expenses she has incurred prior the date of
execution of this Agreement, and for one trip to Atlanta after the date of
execution of this Agreement but
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prior to December 20, 1999, to retrieve personal items from her office, she must
submit to the Company expense reports and proper supporting documentation for
such expenses, which total amount shall not exceed Thirty Thousand Dollars
($30,000), no later than December 20, 1999. The Company agrees to reimburse the
submitted expenses, to the extent that they are submitted by December 20, 1999
and are approved in accordance with the Company's normal approval procedures, up
to a total of Thirty Thousand Dollars ($30,000), in the regular course of
business and in accordance with the Company's normal reimbursement procedures.
The Employee agrees to pay for all expenses she has incurred or caused to be
incurred on the Company's credit cards or through other Company accounts to the
extent that such expenses are not approved by the Company, and normally are not
approvable business expenses, pursuant to the Company's normal expense approval
process.
In the event that the Company fails to make a payment as set forth in this
Section, the Employee shall give the Company notice of such failure in
accordance with Section 21 herein. The Company shall have ten (10) calendar days
after receipt of notice from the Employee 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 the Employee, all amounts due hereunder
not yet paid shall be accelerated and become immediately due and payable.
Such payments shall be reported by the Company as W-2 income received by the
Employee. The Employee agrees that this amount has been negotiated as a
compromise of the parties' divergent positions as to separation payments and
that it constitutes valuable and sufficient consideration for the Employee's
promises, covenants and releases herein. Employee agrees that, except as
specifically and expressly provided in this Separation Agreement, no further
wages, commissions, backpay, attorneys fees, severance pay or other employment
benefits are due her from the Company or its officers, directors, employees,
affiliates, successors or assigns.
Section 3. Mutual Releases.
(a). By Employee. In consideration for the severance benefits
described in Section 2 hereof and Company's promises and releases herein,
Employee for herself, her successors and assigns, now and forever, hereby
releases and discharges the Company and its officers, directors, stockholders,
employees, agents, parent corporations, subsidiaries, affiliates, successors,
assigns and attorneys (the "Releasees"), from any and all claims, legal or
equitable actions, liability or litigation, real or contemplated, known or
unknown, that the Employee may now have or may later claim to have had against
any of the Releasees arising out of anything that has occurred up to and through
the date hereof, including without limitation, any claims arising by virtue of
her status as a shareholder and/or director of the Company or out of her
employment or termination of employment with the Company. Without limiting the
foregoing, the Employee hereby releases those claims that could have been
asserted by her in connection with the Employment Agreement or any other
agreement or in connection with any claim or suit for wrongful
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discharge or any claim under either state or federal employment or
discrimination laws including, without limitation Title VII of the Civil Rights
Act of 1964, and the Americans with Disabilities Act. The Employee acknowledges
that she may have sustained or may yet sustain damages, costs or expenses that
are presently unknown and that relate to claims between her and the Releasees
released by this Separation Agreement and she agrees that she is waiving all
such claims. For the purpose of implementing a full and complete release and
discharge of the Releasees, the Employee expressly acknowledges this Separation
Agreement is intended to include in its effect, without limitation, all claims
that she does not know or suspect to exist in her favor at the time she signs
this Separation Agreement, and that this Separation Agreement contemplates the
extinguishment of any such claim or claims. The Employee shall forever refrain
and forbear from commencing, instituting or prosecuting any lawsuit, action,
claim or proceeding before or in any court, regulatory, governmental, arbitral
or other authority against the Releasees by or naming or joining such Releasees
as parties to collect or enforce any claims or causes of action which are
released and discharged hereby. Employee hereby acknowledges and agrees that she
has knowingly relinquished, waived and forever released any and all other
remedies that might be available to her, including without limitation, claims
for back pay, front pay, fringe benefits, contract and personal injury damages,
punitive damages and attorneys' fees or expenses of litigation.
The foregoing release and covenant not to xxx is not, however,
intended to release or apply to, and shall not release or apply to, any rights
of the Employee: (i) under this Separation Agreement or the Shareholder and
Restrictive Covenant Agreement executed contemporaneously herewith (the
"Shareholder and Restrictive Covenant Agreement") or to enforce any right, term
or provision of this Separation Agreement or the Shareholder and Restrictive
Covenant Agreement; (ii) to receive any COBRA health insurance continuation to
which she is otherwise entitled at her own expense or to receive benefits under
any Company insurance or other benefit plans, including any 401(k) plan, that
either have accrued or vested prior to the date hereof or that, by their terms,
expressly are intended and designed under such plans to survive an employee's
termination or separation from the Company; (iii) now or in the future to be
entitled to claim or receive indemnification as an officer or director of the
Company under any applicable state laws, the Company's Articles of Incorporation
or the Company's By-laws, or that certain Acsys, Inc. Directors and Officers
Indemnification Agreement originally executed in 1997 for which a replacement
document is executed contemporaneous herewith because of the loss of the
original (the "Indemnification Agreement"); (iv) to claim or receive insurance
coverage or to be defended under any directors and officers insurance coverage
which applies to or benefits directors and/or officers of the Company and which
applies to the Employee; (v) to exercise stock options granted pursuant to the
Stock Option Agreements defined below in this Agreement or (vi) to receive
reimbursement for business expenses properly submitted pursuant to Section 2
above and required to be reimbursed by the Company's reimbursement policies.
(b). By Company. In consideration for Employee's promises and
releases herein, the Company, for itself, its subsidiaries, successors and
assigns, now and
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forever, hereby releases and discharges the Employee from any and all claims,
legal or equitable actions, liability or litigation, real or contemplated, known
or unknown, that the Company may now have or may later claim to have had against
the Employee arising out of anything that has occurred up to and through the
date hereof, including without limitation, any claims arising out of her
employment or termination of employment with the Company; provided, however,
that the Company does not release or waive any claims arising from any acts or
omissions by Employee that constitute violation of any law, rule or regulation
to which the Company or the Employee was subject at the time or any claims
against the Company for any ultra xxxxx acts by Employee, which claims are
expressly reserved. The Company acknowledges that it may have sustained or may
yet sustain damages, costs or expenses that are presently unknown and that
relate to claims between it and the Employee which are nonetheless released
hereby. For the purpose of implementing a full and complete release and
discharge of the Employee, except with respect to the exceptions set forth
above, the Company expressly acknowledges this Separation Agreement is intended
to include in its effect, without limitation, all claims that it does not know
or suspect to exist in its favor at the time it signs this Separation Agreement,
and that this Separation Agreement contemplates the extinguishment of any such
claim or claims. The Company shall forever refrain and forbear from commencing,
instituting or prosecuting any lawsuit, action, claim or proceeding before or in
any court, regulatory, governmental, arbitral or other authority against the
Employee or naming or joining the Employee as a party to collect or enforce any
claims or causes of action which are released and discharged hereby. The Company
hereby acknowledges and agrees that it has knowingly relinquished, waived and
forever released any and all other remedies that might be available to it,
including without limitation, claims for contract damages, punitive damages and
attorneys' fees or expenses of litigation.
Section 4. Representations and Warranties. Employee represents and
warrants that she has not, as of the date hereof, committed any illegal act
which could give rise to a claim against Employee by the Company, nor has she
committed any ultra xxxxx act which could give rise to a claim against the
Company by a third party. The Company represents and warrants that the Company's
Officers Xxxxx Xxxxxx and Xxxxx X. Xxxxxxxx, Xx. are not aware of any such
illegal or ultra xxxxx acts on the part of the Employee as of the date hereof.
Section 5. Company Property. Employee shall be permitted to retain
without charge as her personal property the cell phone, the laptop computer and
the docking station previously furnished her by the Company. The Company shall
have no responsibility or obligation to the Employee or otherwise for usage fees
incurred after the date hereof. Employee agrees that she will not retain or
destroy, and will return to the Company, any and all other property of Company
in her possession or subject to her control including, but not limited to, keys,
credit and identification cards, computers, client files and information,
acquisition files and information, contact information for targets, buyers and
clients, all other files and documents relating to the Company, its plans or its
business, contracts, personal items or equipment provided to her for her use,
together with all written or recorded materials, documents, computer discs,
plans,
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records, notes or other papers belonging to the Company. The Employee further
agrees not to make, distribute or retain any such information or property.
Section 6. Press Release. The Company and the Employee agree that the
fact of the Employee's separation from the Company shall be formally announced
in a press release and the references to the Employee shall use substantially
the language set forth in the form attached hereto as Exhibit B; provided,
however, that if Company requests changes altering the language contemplated by
Exhibit B and provides a copy of such changes to the Employee prior to the
release of the statement; the Employee shall not unreasonably refuse to allow
such changes.
Section 7. Cooperation in Claims. With respect to any claim asserted by
or brought against the Company in relation to its business and/or against the
Employee in her former capacity as employee, officer or Director of the Company,
the Employee, upon reasonable notice and at the written request of the Chief
Executive Officer of the Company, or her designee, and without requiring a court
order or other compulsion, agrees to make herself and any necessary records or
documents in her possession reasonably available to the Company for an aggregate
total of up to thirty (30) hours where necessary to prosecute or defend any such
claim; and will use her best efforts to cooperate with the Company in
prosecuting or defending any such claim, provided, however, that in any case
where the Employee is required to travel for any consultation or legal
proceedings at the express written request of the Chief Executive Officer of the
Company, or his designee, (excluding any instance where the Company and the
Employee are on opposite sides of the litigation or are in any other opposing
position), the Employee shall be entitled to receive reimbursement of reasonable
travel costs reasonably expected to be incurred and properly documented.
Section 8. Use of the Employee's Likeness. The Employee acknowledges
and understands that, for a period of one year from the date hereof, it may be
necessary for the Company to make use of photographs or other material
evidencing the Employee's likeness in brochures, annual reports and the like
which were taken or created prior to the day and year first above written, and
hereby consents to and acknowledges the Company's ability, in the normal course
of business, to make use of such photographs and material evidencing the
Employee's likeness.
Section 9. Neutral Reference. So long as the Employee is in compliance
with all provisions of this Separation Agreement and request for such reference
is directed to the Vice President of Human Resources for the Company, the
Company shall provide Employee and any prospective employers of Employee a
neutral job reference, stating only Employee's dates of employment and positions
held and indicating that provision of such limited information is pursuant to
Company policy.
Section 10. Successors and Assigns. This Separation Agreement shall be
binding upon, inure to the benefit of and be enforceable by the Employee's
personal or legal representatives, executors, administrators, successors, heirs,
distributees, devisees and
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legatees. This Separation Agreement shall also be binding upon, inure to the
benefit of and be enforceable by any successor to the Company by reason of any
merger, consolidation or sale of assets, dissolution, debt foreclosure or other
reorganization of the Company.
Section 11. Severability. If any provision hereof is unenforceable,
such provision shall be fully severable, and this Separation Agreement shall be
construed and enforced as if such unenforceable provision had never comprised a
part hereof, the remaining provisions hereof shall remain in full force and
effect, and the court construing this Separation Agreement shall add as a part
hereof a provision as similar in terms and effect to such unenforceable
provision as may be enforceable, in lieu of the unenforceable provision.
Section 12. Knowing and Voluntary. The Employee acknowledges that she
has reviewed the terms and conditions of this Separation Agreement, that she has
discussed it with her attorney, that she understands its terms, and that she has
executed this Separation Agreement voluntarily and without any coercion, undue
influence, threat or intimidation of any kind whatsoever.
Section 13. Arbitration. Any dispute between the parties pertaining to
this Separation Agreement shall be resolved through binding arbitration
conducted by the American Arbitration Association under the employment rules
then in effect. The parties agree that any arbitration proceeding shall be
conducted in Atlanta, Georgia and consent to exclusive jurisdiction and venue
there. The award of the arbitrator(s) shall be final and binding, and the
parties waive any right to appeal the arbitral award, to the extent that a right
to appeal may be lawfully waived. Each party retains the right to seek judicial
assistance (a) to compel arbitration, (b) to obtain injunctive relief and
interim measures of protection pending arbitration, and (c) to enforce any
decision of the arbitrator(s), including but not limited to the final award.
Section 14. Captions and Paragraph Headings. Captions and paragraph
headings used herein are for convenience only and are not a part of this
Separation Agreement and shall not be used in construing it.
Section 15. Acknowledgment of Obligation to Tender Back Consideration.
The Employee acknowledges and agrees that if she ever attempts to bring a claim
against the Company under state or federal law for discrimination or for
wrongful termination, including but not limited to a claim under Title VII of
the Civil Rights Act of 1964, and/or the Americans with Disabilities Act, which
claims were released by her by virtue of Section 3(a) of this Separation
Agreement, regardless of whether this Separation Agreement or the release and
covenant not to xxx are valid or enforceable with respect to those claims, or if
she seeks to revoke, rescind or annul the release or covenant not to xxx in
Section 3(a), she will first pay to the Company all sums paid by it to her or on
her behalf under this Separation Agreement. The Employee also agrees that she
will pay any reasonable attorney's fees and costs incurred by the Releasees in
defending themselves
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against the aforementioned released claim(s) and/or the attempted revocation,
rescission or annulment of the aforementioned released claim(s), unless she
ultimately prevails on the revocation, rescission or annulment and the
substantive claim(s). The Company agrees that, if it ever attempts to bring a
claim against the Employee, which claim was released by it by virtue of Section
3(b) of this Separation Agreement, or if it seeks to revoke, rescind or annul
the release or covenant not to xxx in Section 3(b), it will pay any reasonable
attorneys' fees and costs incurred by the Employee in defending herself against
such claim and/or the attempted revocation, rescission or annulment of the
aforementioned released claim, unless it ultimately prevails on the revocation,
rescission or annulment and the substantive claim.
Section 16. No Release of Future Claims. The Company and the Employee
understand and agree that, notwithstanding anything in this Separation Agreement
to the contrary, nothing in this Separation Agreement in any way restricts the
rights of the Company and/or the Employee to bring a claim or seek equitable
relief against the other based on acts occurring subsequent to the day and year
first above written.
Section 17. Entire Agreement. Except as otherwise expressly provided
herein (including in the documents referred to herein), this Separation
Agreement constitutes the entire agreement between the Company and the Employee
with respect to the subject matter hereof and supersedes all prior arrangements
or understandings with respect to the subject matter hereof, written or oral.
Nothing in this Separation Agreement expressed or implied is intended to confer
upon any person, other than the Company or the Employee or their respective
successors, any rights, remedies, obligations or liabilities under or by any
reason of this Agreement.
Section 18. Termination of Employment Agreement; Continuation of
Director's and Officer's Indemnification Agreement and the Shareholder and
Restrictive Covenant Agreement and Absence of Other Agreements. The Employment
Agreement is hereby terminated in all respects. The Shareholder and Restrictive
Covenant Agreement and 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 Separation Agreement,
the Amended and Restated Registration Rights Agreement dated September 3, 1997,
the Indemnification Agreement and the Shareholder and Restrictive Covenant
Agreement there are no agreements, arrangements or understandings, written or
oral, between the parties with respect to any subject matter whatsoever.
Section 19. Choice of Law. This Separation Agreement, and the rights
and obligations of the parties hereto, shall be governed and construed in
accordance with the laws of the State of Georgia.
Section 20. Negotiated Agreement. The Separation Agreement was
negotiated between the parties hereto, and the fact that one party or the other
drafted this Separation Agreement shall not be used in its interpretation.
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Section 21. 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 the Employee, to:
Xxxx Xxxx Xxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
with a copy to:
Xxxxx Xxxxxxxx, Esq.
Xxxxxxxx & Xxxxxxxx
725 Twelfth Street, N.W.
Washington, District of Columbia 20005-5901
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
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
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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.
Section 22. 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.
IN WITNESS WHEREOF, the parties hereto have caused this Separation
Agreement to be duly executed as of the day and year first above written.
ACSYS, INC.
By: /s/ Xxxxx X. Xxxxxxxx, Xx.
---------------------------------
Its: Chief Financial Officer
THE EMPLOYEE
/s/ Xxxx Xxxx Xxxxx
---------------------------------
Xxxx Xxxx Xxxxx
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EXHIBIT A
To Whom It May Concern:
I, Xxxx Xxxx Xxxxx, hereby formally tender my resignation as Executive Vice
President and Chief Development Officer and as a Director and Officer of Acsys,
Inc. and any of its affiliates (the "Company"), and note that my resignation is
voluntary and not the result of any disagreement with the Company relating to
the Company's operations, policies or practices.
Sincerely,
Xxxx Xxxx Xxxxx Date:
------------------------
Accepted:
Date:
----------------------------- ------------------------
Chairman
Acsys, Inc.
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EXHIBIT B
Contact: Xxxxx X. Xxxxxxxx, Xx.
Chief Financial Officer
(000) 000-0000, ext. 3312
ACSYS ANNOUNCES MANAGEMENT CHANGE
. . .
Xxxx Xxxxxx Xxxxx, Executive Vice President and National Director of Sales, has
left the Company to pursue other interests.
"We wish Xxxx great success in her new endeavors. Xxxx was one of the founders
of Acsys and has contributed significantly to its growth. Her enormous talent,
experience and enthusiasm are respected and appreciated by everyone in the
company, especially me," concluded Xxxxxx.
