EXHIBIT 10.3
FORM OF
STRATEGIC MARKETING AND CROSS-SELLING AGREEMENT
This Strategic Marketing and Cross-Selling Agreement dated as of
___________, 1998 (the "Effective Date") is entered into between ACCUSTAFF
INCORPORATED, a Florida corporation having a principal place of business at Xxx
Xxxxxxxxxxx Xxxxx, Xxxxxxxxxxxx, XX 00000 (together with all subsidiary and
affiliated companies and their respective successors and assigns collectively
referred to as "AccuStaff") and STRATEGIX SOLUTIONS, INC., a Delaware
corporation, having a principal place of business at Xxx Xxxxxxxxxxx Xxxxx,
Xxxxxxxxxxxx, XX 00000 (together with all subsidiary and affiliated companies
collectively referred to as "Strategix").
PRELIMINARY STATEMENT:
AccuStaff is a leading provider of business services that include
consulting and strategic services in the areas of information technology and
professional services (the "AccuStaff Services"). Strategix is a leading
provider of business services that include diversified temporary commercial
staffing, training, and outsourcing services (the "Strategix Services"). As of
the date of this Agreement, AccuStaff owns all of the issued and outstanding
common stock of Strategix. Strategix is effecting an initial public offering of
certain shares of its common stock. Subject to the receipt of a favorable IRS
Private Letter Ruling and certain other conditions, AccuStaff plans to
distribute all of its shares of Strategix Common Stock to its shareholders in
1999 (the "Spin-off"). Prior to and subsequent to the Spin-off, (i) AccuStaff
desires to offer to its clients a range of business services and solutions,
including the Strategix Services and (ii) Strategix desires to offer to its
clients a range of business services, including the AccuStaff Services. To
preserve and continue to maximize the business opportunities available to both
AccuStaff and Strategix, AccuStaff and Strategix desire to execute and deliver
this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, the parties, intending to be legally bound hereby, agree as
follows:
ARTICLE 1
SERVICES
Section 1.1 Strategix Services. Strategix grants to AccuStaff a non-
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exclusive, worldwide license to market the Strategix Services separately or in
combination with or bundled together with the AccuStaff Services. Except as
provided in Section 2.1, AccuStaff may, in its sole discretion, market the
Strategix Services to its customers. To the extent necessary to give effect to
this Agreement, the license granted hereby to AccuStaff includes any and all
rights under any applicable patents, copyrights, trademarks and trade secrets
and any other intellectual property rights belonging to Strategix or which
Strategix has acquired or may acquire from any third party (collectively, the
"Strategix Marks"). AccuStaff will take such actions as are necessary to protect
the Strategix Marks. Strategix shall use commercially reasonable efforts to
provide to AccuStaff customers those Strategix Services marketed by AccuStaff in
accordance with this Agreement and such services shall be provided at prices and
on terms that are reasonably acceptable to Strategix.
Section 1.2 AccuStaff Services. AccuStaff grants to Strategix a non-
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exclusive, worldwide license to market the AccuStaff Services separately or in
combination with or bundled together with the Strategix Services. Except as
provided in Section 2.1, Strategix may, in its sole discretion market the
AccuStaff Services to its customers. To the extent necessary to give effect to
this Agreement, the license granted hereby to Strategix shall include any and
all rights under any applicable patents, copyrights, trademarks and trade
secrets and any other intellectual property rights belonging to AccuStaff or
which AccuStaff has acquired or may acquire from any third party (collectively,
the "AccuStaff Marks"). Strategix will take such actions as are necessary to
protect the AccuStaff Marks. AccuStaff shall use commercially reasonable efforts
to provide to Strategix customers those AccuStaff services marketed by Strategix
in accordance with this Agreement and such services shall be provided at prices
and on terms that are reasonably acceptable to AccuStaff.
Section 1.3 Joint Contracts. AccuStaff has entered into various
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agreements with customers agreeing to provide both AccuStaff Services and
Strategix Services (the "Joint Contracts"). AccuStaff agrees to fulfill the
obligations under each such Joint Contract to provide the AccuStaff Services
required to be provided thereunder in accordance with the terms and conditions
thereof. Strategix agrees to fulfill the obligations under each such Joint
Contract to provide the Strategix Services required to be provided thereunder in
accordance with the terms and conditions thereof. Revenues from the Joint
Contracts shall be allocated in accordance with the services provided.
Notwithstanding anything to the contrary in this Agreement, the obligations of
the parties under this Section 1.3 shall survive any termination of this
Agreement for a period equal to the term of the Joint Contracts. Neither
Strategix nor AccuStaff shall extend the term of any Joint Contract beyond its
current term without the written consent of the other. AccuStaff and
Strategix shall cooperate and, if deemed mutually advisable or if required by
the terms of the Joint Contracts, use their reasonable efforts to negotiate
separate agreements with the customers that are parties to the Joint Contracts
in order to permit the Company and Strategix and their respective subsidiaries,
as appropriate, each to have the benefits of such agreements after the Effective
Date.
ARTICLE 2
MARKETING
Section 2.1 Marketing Plan. Strategix and AccuStaff will jointly use the
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services of AccuStaff's Market Development Managers, the cost of which will be
allocated in accordance with the Services Agreement between the parties. Market
Development Managers shall market the services of both companies and encourage
cross-selling opportunities.
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Section 2.2 Publicity. AccuStaff and Strategix will inform the sales and
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support personnel of each as to the availability, pricing, and positioning of
the AccuStaff services and the Strategix Services consistent with the purposes
of this Agreement.
ARTICLE 3
RELATIONSHIP OF PARTIES
Section 3.1 Independent Contractors. Strategix and AccuStaff are
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independent contractors acting for their own accounts and are not authorized to
make any commitment or representation on the other's behalf unless authorized in
writing. Each party is solely responsible for establishing prices for its
services.
Section 3.2 Competition. AccuStaff shall have no duty to Strategix,
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except pursuant to Section 1.3 hereof, to refrain from engaging in the business
of providing services similar or identical to the Strategix Services. Strategix
shall have no duty to AccuStaff, except pursuant to Section 1.3 hereof, to
refrain from engaging in the business of providing services similar or identical
to the AccuStaff Services.
ARTICLE 4
DISCLAIMER
NEITHER PARTY HERETO SHALL BE LIABLE TO THE OTHER PARTY HERETO FOR ANY SPECIAL,
DIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY
THEREOF. THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY REGARDLESS OF THE
CAUSE OF ACTION UNDER WHICH SUCH DAMAGES ARE SOUGHT, INCLUDING, WITHOUT
LIMITATION, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT.
ARTICLE 5
TERM AND TERMINATION
Section 5.1 Initial Term. This Agreement shall be effective until the
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earlier of the day prior to the Spin-off or eight months from the Effective Date
(the "Initial Term") unless terminated sooner in accordance herewith.
Section 5.2 Early Termination. This Agreement shall be subject to early
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termination by either Strategix or AccuStaff upon thirty (30) days' written
notice if AccuStaff ceases to own shares of Common Stock representing more than
50% of the combined voting power of Strategix's outstanding capital stock. In
addition,either party may terminate this Agreement:
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(a) if the other party breaches or fails to perform any material
obligation hereunder, and such breach is not remedied within thirty (30) days
after written notice thereof to the party in default; or
(b) at any time, if the other party shall become insolvent or make an
assignment for the benefit of creditors, or if a receiver or similar officer
shall be appointed to take charge of all or part of that party's assets.
ARTICLE 6
GENERAL
Section 6.1 Nonexclusivity. The rights and remedies of the parties
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provided in this Agreement shall not be exclusive and are in addition to any
other rights and remedies provided at law or in equity.
Section 6.2 Binding Effect. This Agreement shall be binding upon and
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inure to the benefit of the successors and assigns of the parties hereto, except
that no obligation under this Agreement may be delegated, nor may any rights
under this Agreement be assigned by either party, without the prior written
consent of the other party (which shall not unreasonably be withheld), except by
operation of law. Except as expressly provided in this Agreement, the parties
hereto intend that this Agreement shall not benefit or create any right or cause
of action in or on behalf of any person other than the parties hereto.
Section 6.3 No Agency. Nothing in this Agreement shall be construed as
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making either party the agent of the other or as creating a partnership, joint
venture or similar arrangement. Each party to this Agreement may engage in,
acquire or possess an interest in other business ventures of any nature or
description, independently or with others, whether currently existing or
hereafter acquired or created, which may be in direct or indirect competition
with the other party to this Agreement. Neither party to this Agreement shall
have any rights in or to such other party's independent ventures or the income
or profits derived therefrom, or to any opportunities offered or created
thereby. Such activities or arrangements shall not constitute a breach by any
party to this Agreement. Nothing in this Agreement shall prohibit a party from
benefiting from the other party's actions solely because such party is a
shareholder of the other party.
Section 6.4 Notices. All notices and other communications required or
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permitted hereunder shall be in writing and shall be delivered personally,
delivered by facsimile transmission (with confirmation of receipt immediately
thereafter by telephone), telegraphed, sent by nationally recognized overnight
courier (marked for overnight delivery), or sent by registered, certified or
express mail, postage prepaid, return receipt requested, addressed to the
parties at the address appearing on the first page of this Agreement or to such
other address as may be hereafter designated in writing hereunder by the
respective parties. Each party shall promptly advise the other in writing of
any change of address.
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Section 6.5 Severability. If any provision of this Agreement is held
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illegal or unenforceable by any court of competent jurisdiction, such provision
shall be deemed separable from the remaining provisions of this Agreement and
shall not affect or impair the validity or enforceability of the remaining
provisions of this Agreement. The parties hereto agree to replace any such
illegal or unenforceable provision that has the most nearly similar permissible
economic or other effect.
Section 6.6 Governing Law. This Agreement shall be governed by the laws
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of the State of Florida, without regard to its conflicts of law principles.
Section 6.7 No Waiver. The failure of either party to enforce, in any one
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or more instances, any of the terms or conditions of the Agreement shall not be
construed as a waiver of the future performance of any such term or condition.
Section 6.8 Force Majeure. Neither party shall be liable for its failure
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to perform any of its obligations hereunder during any period in which such
performance is directly delayed by the occurrence of events beyond the control
of the failing party such as fire, explosion, flood, storm or the acts of God,
war, embargo, riot, or the intervention of any government authority, provided
that the party suffering the delay immediately notifies the other party of the
delay.
Section 6.9 Final Agreement. This Agreement supersedes all prior oral and
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written understandings and agreements between the parties concerning the subject
matter hereof and may not be modified except in a writing signed by the
authorized representatives of the parties hereto.
Section 6.10 Counterparts. This Agreement may be executed in one or more
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counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
ACCUSTAFF INCORPORATED STRATEGIX SOLUTIONS, INC.
By:____________________________ By:___________________________
Name:_______________________ Name:______________________
Title:______________________ Title:_____________________
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