EXHIBIT 99.3
[GEVITY PEOPLE FIRST LOGO] Non-Solicitation, Non-Compete and
Confidentiality Agreement
(ALL STATES)
This Agreement is made this 24th day of September, 2003, between GEVITY HR,
INC., a Florida corporation, and its wholly-owned subsidiaries identified at the
signature line (collectively and individually, "Gevity"), and XXX XXXXXXXX
("Employee"). For good and valuable consideration, including employment of
Employee by Gevity as the Senior Vice President of Insurance Products, in a
position in which Employee will gain specialized and unique knowledge and
experience, will have access to strategic information, will establish personal
relationships with Gevity's vendors, customers, executive officers and other
employees, the continued employment of Employee by Gevity and the mutual
agreements and promises stated below, the sufficiency and receipt of which are
acknowledged by Employee, the parties agree as follows:
1. DEFINITIONS.
The following capitalized terms, when used herein, shall have the
following meanings:
A. "AFFILIATE" means any business entity which controls Gevity
is controlled by Gevity or is under common control with Gevity including any
successor of any such Affiliate.
B. "AGREEMENT" means this Employee Non-Compete, Non-Disclosure
and Confidentiality Agreement, together with any exhibits, schedules, addenda
or amendments hereto.
C. "BUSINESS OF GEVITY" means the business of providing PEO and
HR Outsourcing Services.
D. "COMPETE" means performing, either as a partner, owner,
employee, agent, officer or director of a Competing Business, substantially the
same services that Employee performs or performed for Gevity or performing
substantially the same services as a consultant, manager or broker to or for a
Competing Business.
E. "COMPETING BUSINESS" means any business or enterprise that is
engaged in a business that is the same or substantially the same as the
Business of Gevity.
F. "EMPLOYMENT ACTIVITIES" means the activities that Employee is
compensated by Gevity to perform.
G. "MATERIAL CONTACT" means significant contact between Employee
and a client or customer of Gevity during the course of Employee's employment
by Gevity including, without limitation, more than one telephonic contact or
correspondence.
H. "OFFICE" means a business office operated by Gevity or a
personal office used by Employee in his home or elsewhere to conduct Business
of Gevity.
I. "PEO AND HR OUTSOURCING SERVICES" means an arrangement under
an agreement between a client and a professional employer organization ("PEO"),
where the client outsources to the PEO the administration of some or all of the
following employer functions which the PEO performs off-site for a fee: issuing
paychecks, withholding taxes, providing consultative human resources and/or
risk management products and services, and securing or arranging for insurance
to cover claims for workers' compensation, unemployment and health and welfare
benefits.
J. "GEVITY INFORMATION" means the confidential data, proprietary
information and trade secrets regarding Gevity's business methods, training
programs, financial performance, procedures, pricing policies, marketing
structure and strategy, programs, software and business programs and models,
forms, research and development activities, technical know-how, concepts,
ideas, materials and work product, names and addresses of current, former and
prospective clients and employees, learned by Employee at any time during
Employee's employment with Gevity whether such information is communicated or
conveyed to Employee orally, in writing, by electronic means or otherwise,
which, under ss. 3.B. below, Employee agrees not to use or disclose to others.
Gevity Information will not include any data or information that (i) was
already known to Employee prior to his employment with Gevity; (ii) has become
generally known to the public through no wrongful act of Employee; (iii) has
been rightfully received by Employee from a third party without restriction on
disclosure and without breach of an obligation of confidentiality running
either directly or indirectly to Gevity; (iv) has been approved for release and
released to the general public by written authorization of Gevity; (v) is or
has been disclosed by Employee pursuant to a requirement of a governmental
agency or law without similar restrictions or other protections against public
disclosure, or has been required to be disclosed by operation of law; provided,
however, that Employee must first have given written notice of such required
disclosure to Gevity used reasonable efforts to obtain a protective order
requiring that the Gevity Information so disclosed be used only for the
purposes for which disclosure is required, and taken reasonable steps to allow
Gevity to seek to protect the confidentiality of the information required to be
disclosed; (vi) is independently
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developed by Employee without use, directly or indirectly, of any Gevity
Information and does not relate to the Business of Gevity; or (vii) is
furnished to a non-Affiliated third party by Gevity without restrictions on the
third party's right to disclose the information. Gevity Information includes
any information disclosed to Gevity or its Affiliates by a third party which
Gevity or its Affiliates are obligated to treat as confidential.
2. BUSINESS INTERESTS OF GEVITY. Employee acknowledges that Gevity has a
legitimate business interest in protecting its confidential and proprietary
information, its trade secrets, its valuable business and professional
information which does not qualify as a trade secret, its substantial
relationships with its specific and prospective clients, vendors and referral
sources, the good will and economic advantage associated with Gevity by way of
its trade name, trademarks, service marks, specific geographic areas, specific
marketing areas, and the extraordinary training provided by Gevity to Employee
and other employees of Gevity. Employee further recognizes that the provisions
of this Agreement are reasonably necessary to protect the legitimate business
interests of Gevity.
3. COVENANTS AND RESTRICTIONS. In consideration for receiving specialized
training and/or knowledge and experience (collectively, "Knowledge") from
Gevity and continuous access to Gevity Information, Employee promises to use
such Knowledge and Gevity Information for the exclusive benefit of Gevity.
Accordingly, Employee agrees to be bound by the following covenants and
restrictions:
A. COVENANT NOT TO COMPETE OR INTERFERE. Employee understands
that the Employment Activities performed by Employee during the twelve (12)
month period ("Pre-Termination Period") immediately preceding the effective
date on which Employee ceases to be an employee of Gevity for any reason ("Last
Day") will determine the activity restrictions applicable to Employee under
this non-compete paragraph 3.A. Employee agrees that commencing on the date
Employee becomes an employee of Gevity and ending one (1) year after the Last
Day ("Non-Competition Period"), Employee shall not, in any state in the United
States in which, on the Last Day, Gevity either has a branch office or provides
PEO and HR Outsourcing Services to its clients or client-employees, directly or
indirectly (i) Compete, (ii) provide to any clients of Gevity any services
substantially similar to the PEO and HR Outsourcing Services provided by Gevity
to those clients, or (iii) interfere with any of Gevity's relationships with
its clients, vendors or referral sources. Employee acknowledges that the time
and geographical area applicable to the restrictions in this paragraph 3.A. are
reasonable considering Employee's background, experience and education, the
executive position he will hold within Gevity, his compensation from Gevity,
the national scope of Gevity's operations and the access he will have to
Gevity's strategic business plans.
B. RESTRICTIONS ON USE AND DISCLOSURE OF GEVITY INFORMATION.
(i) During and after Employee's employment with Gevity Employee
agrees (a) to receive and hold all Gevity Information in trust and confidence;
(b) to protect all Gevity Information and not take any action causing any
Gevity Information to lose its confidential character; (c) not to use any
Gevity Information for personal gain or benefit; and (d) not to disclose
directly or indirectly to any person, corporation, partnership or other entity
whatsoever any Gevity Information.
(ii) Employee will not, during the Non-Competition Period (and any
extensions thereof as referenced in ss. 17 below) except in the course of
fulfillment of Employee's duties as an employee of Gevity use or act upon in
any way, directly or indirectly, any information which became known to Employee
during the course of his employment with Gevity concerning the identity or
business activity of any current clients, former clients or prospective clients
or referral sources of Gevity.
C. RETURN OF MATERIALS. All tangible and intangible materials,
paper and electronic documents, assets and equipment, including computers and
computer data, provided to or obtained by Employee during and in furtherance of
Employee's employment by Gevity including documents which contain Gevity
Information, (collectively, the "Materials") are the property of Gevity
regardless of who created the Materials. Employee will not remove from Gevity's
premises or copy or reproduce any Materials (except as required by Employee's
employment by Gevity), and on or before the Last Day, regardless of the reason
for termination of Employee's employment, Employee will leave with Gevity or
immediately return to Gevity all Materials or copies or reproductions thereof
in Employee's possession or control.
D. NON-SOLICITATION OF CLIENTS. Employee covenants and agrees
that during the Non-Competition Period Employee will not (except on behalf of
or with the prior written consent of Gevity), on his own behalf or in the
service of, or on behalf of others, directly or indirectly solicit, divert or
appropriate, or attempt to solicit, divert or appropriate, for a Competing
Business, any business from any client or customer of Gevity with whom Employee
has or had Material Contact during Employee's employment with Gevity.
E. NON-SOLICITATION OF EMPLOYEES. Employee covenants and agrees
that during the Non-Competition Period (and any extension thereof as set forth
in ss. 17 below), Employee will not, on his own behalf or in the service of, or
on behalf of others, directly or indirectly solicit, recruit or hire away, or
attempt to solicit, recruit or hire away, any employee of Gevity
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or former employee of Gevity within six months after the date such person
ceases to be an employee of Gevity whether or not such employee is or was a
full-time employee or a temporary employee of Gevity and whether or not such
employment is or was pursuant to written agreement and whether or not such
employment is or was for a determined period or is or was at-will.
F. GEVITY'S OWNERSHIP OF WORK PRODUCT. Employee understands and
acknowledges that Gevity shall have exclusive rights to anything relating to
its actual or prospective business, marketing plans, or strategies, forms,
contracts, collateral material, logos, service marks, referral relationships or
contact lists which Employee conceives or works on while employed by Gevity.
Accordingly, Employee:
(i) will promptly and fully disclose all such items to Gevity and
will not disclose such items to any other person or entity (other than an
employee or director of Gevity) without Gevity's prior consent;
(ii) will maintain on Gevity's behalf and surrender to Gevity upon
termination of Employee's employment with Gevity appropriate written records
regarding all such items;
(iii) will, but without personal expense, fully cooperate with
Gevity execute all papers and perform all acts requested by Gevity to
establish, confirm, or protect its exclusive rights in such items or to enable
it to transfer legal title to same, together with any patents, trade marks or
service marks that may be issued;
(iv) will, but without personal expense, provide such information
and true testimony as Gevity may request regarding such items including,
without limitation, items which Employee neither conceived nor worked on but
regarding which Employee has knowledge because of Employee's employment by
Gevity; and
(v) hereby assigns to Gevity its Affiliates, successors and
assigns, exclusive right, title and interest in and to all such items
including, without limitation, any intellectual property rights, which have
been or may be issued.
4. REMEDIES. Employee agrees that Employee's covenants and promises
contained in this Agreement are of the essence of this Agreement; that each
such covenant and promise is reasonable and necessary to protect the business,
interests and properties of Gevity; and that irreparable loss and damage will
be suffered by Gevity should Employee breach any of the covenants. Therefore:
A. In the event of a breach or threatened breach by Employee of
his obligations under this Agreement, Employee acknowledges that Gevity will
not have an adequate remedy at law and shall be entitled to such equitable and
injunctive relief as may be available to restrain Employee from the violation
of the provisions hereof. In addition, Employee expressly consents to the entry
of a temporary restraining order and/or injunction without notice and without
bond in the event of any such breach. Nothing herein shall be construed as
prohibiting Gevity from pursuing any other remedies available at law or in
equity for any breach or threatened breach including the recovery of damages
from Employee.
B. Gevity and Employee agree that all remedies available to
Gevity shall be cumulative and that Gevity shall be entitled to collect
separate damages for each covenant or restriction breached.
5. SEVERABILITY. The parties agree that each provision included in this
Agreement is separate, distinct and severable from the other provisions of this
Agreement and that the invalidity or unenforceability of any one provision
shall not affect the validity or enforceability of any other provision of this
Agreement.
6. NO SET-OFF BY EMPLOYEE. This Agreement shall be construed as an
agreement independent of any other agreement or understanding Employee may have
with Gevity and the existence of any claim or cause of action of Employee
against Gevity shall not constitute a defense to the enforcement by Gevity of
its rights hereunder.
7. NOTICE. All notices and other communications required or permitted
under this Agreement may be sent by registered or certified mail, or by any
commercial delivery service that provides written verification of delivery.
Notices and other communications to Employee shall be sent to the address set
forth in his signature block below or to any changed address which may be given
to Gevity in writing hereafter. All notices to Gevity shall be sent to Gevity.
at 600 000 Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxx 00000, Attention: Legal
Department, or to any changed address which may be given to Employee in writing
hereafter.
8. ASSIGNMENT. This Agreement and the rights and obligations of Gevity
hereunder may be assigned by Gevity to any subsidiary or Affiliate of, or
successor to, Gevity and shall inure to the benefit of, be binding upon, and
enforceable by any such assignee. This Agreement and the rights and obligations
of Employee hereunder are personal and are not assignable by Employee.
9. NO WAIVER. The failure of Gevity to enforce any provision or
provisions of this Agreement (or of similar agreements between Gevity and other
employees) shall not in any way be construed as a waiver of any such provisions
as to any future
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violations thereof, nor prevent Gevity thereafter from enforcing each and every
other provision of this Agreement. The rights granted Gevity herein are
cumulative and the waiver of any single remedy shall not constitute a waiver of
Gevity's rights to assert any other legal or equitable remedies available to it
under the circumstances.
10. ATTORNEYS' FEES. In the event this Agreement becomes the subject of
litigation between the parties, the party prevailing in such litigation shall
be entitled to receive from the other party all reasonable costs and expenses,
including without limitation reasonable attorneys' fees, incurred by the
prevailing party in connection with such litigation.
11. APPLICABLE LAW. This Agreement shall be construed, interpreted and
enforced under and in accordance with the laws of the State of Florida, without
regard to principles of conflicts of law. Any action shall be brought in the
courts in and for Manatee County, Florida, which is where Employee primarily
shall perform his Employment Activities and where Gevity's principal executive
offices are located.
12. ENTIRE AGREEMENT. This Agreement embodies the entire and final
agreement of the parties on the subject matter of the Agreement. No amendment
or modification of this Agreement shall be valid or binding upon Gevity or
Employee unless made in writing and signed by both parties. All prior
understandings and agreements relating to any subject matter of this Agreement
are hereby expressly superseded by this Agreement, including any non-compete
agreement previously entered into by the parties.
13. NO THIRD PARTY RIGHTS. Nothing herein expressed is intended to or
shall be construed to confer upon or give to any person, firm or other entity,
other than the parties hereto and Gevity's Affiliates and permitted assigns,
any rights or remedies under or by reason of this Agreement.
14. EMPLOYEE'S RESPONSIBILITIES TO OTHER EMPLOYERS OR BUSINESS ENTITIES.
To the extent that Employee is subject to any agreement or understanding with
any other person or business entity that might affect the performance of
Employee's duties as an employee of Gevity Employee warrants that Employee has
provided copies of all such written agreements or understandings to Gevity and
has made any unwritten understandings known to Gevity via appropriate
documentation. Employee acknowledges that Gevity wants Employee to abide by any
valid agreements Employee may have previously made and acknowledges that Gevity
does not wish to interfere with Employee's duties under any such prior
agreements. Employee warrants that during Employee's term of employment with
Gevity Employee will not breach or violate any agreement or understanding to
which Employee is subject, through the performance of Employee's duties as an
employee of Gevity. Employee agrees that, during the term of employment with
Gevity Employee will not improperly use or disclose any proprietary information
or trade secrets of Employee's former employers or of any business entity with
which Employee has come in contact, if any, and Employee will not bring onto
the premises of Gevity any unpublished document or any property belonging to
Employee's former employers or to any other business entity, unless consented
to in writing by such employers or companies. Employee further agrees to
provide a copy of this Agreement to any employer or business entity for whom
Employee provides services after the Last Day, so that employer or entity will
be cognizant of Employee's promises hereunder.
15. SURVIVAL. Employee's obligations under this Agreement shall survive
the termination of the employment of Employee for the period designated under
each applicable Section of this Agreement.
16. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which shall
constitute one instrument.
17. TOLLING. In the event Employee violates any provision of this
Agreement, such violation will toll the running of the period applicable to
that provision from the date of such violation until such violation shall
cease.
18. THIS AGREEMENT, IN EXCHANGE FOR THE CONTINUED EMPLOYMENT OF EMPLOYEE
BY GEVITY AND THE MUTUAL AGREEMENTS AND OTHER CONSIDERATION DESCRIBED HEREIN,
CONTAINS CERTAIN RESTRICTIONS ON EMPLOYEE'S ACTIVITIES AND EMPLOYEE'S USE OR
DISCLOSURE OF CERTAIN INFORMATION OF GEVITY AND ITS AFFILIATES, BOTH DURING AND
FOLLOWING EMPLOYEE'S EMPLOYMENT BY GEVITY. EMPLOYEE HEREBY EXPRESSLY REPRESENTS
AND WARRANTS THAT HIS EXPERIENCE AND CAPABILITIES ARE SUCH THAT NONE OF THE
PROVISIONS OF THIS AGREEMENT WOULD PREVENT HIM FROM EARNING A LIVELIHOOD
FOLLOWING TERMINATION OF HIS EMPLOYMENT BY GEVITY.
19. Employee acknowledges that he or she: (i) has read this Employee
Non-Solicitation, Non-Compete and Confidentiality Agreement and fully
understands its provisions; (ii) has had full opportunity to consult with legal
counsel prior to execution of this Agreement; (iii) has been provided with
seven (7) days following receipt of this Agreement to consider its terms; and
(iv) is satisfied with the terms of this Agreement and intends to be legally
bound by same.
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IN WITNESS WHEREOF, Employee and Gevity have executed this Agreement as of the
date first above written.
GEVITY HR, INC. AND ITS EMPLOYEE:
WHOLLY-OWNED SUBSIDIARIES:
Gevity HR, L.P.,
Gevity HR, II, L.P.,
Gevity HR III, L.P.,
Gevity HR IV, L.P.,
Gevity HR V, L.P. ,
Gevity HR VI, L.P., /s/ Xxx Xxxxxxxx
Gevity HR VII, L.P., ---------------------------------------
Gevity HR VIII, L.P., Signature
Gevity HR IX, L.P.,
Gevity HR X, L.P., Xxx Xxxxxxxx
Gevity HR XI, LLC, ---------------------------------------
Gevity HR XXII, Corp., Print Name
Gevity HR ASO, LLC
/s/ Xxxxxxx X. Xxxxxxx
--------------------------------- ---------------------------------------
Signature Title
Xxxxxxx X. Xxxxxxx
--------------------------------- ---------------------------------------
Print Name Address
Senior Vice President and
General Counsel
--------------------------------- ---------------------------------------
Title Address
