NONCOMPETITION AGREEMENT
THIS NONCOMPETITION AGREEMENT (the "Agreement") is made and entered
into as of the 18th day of May, 1998, by and between OutSource International of
America, Inc., a Florida corporation ("OutSource"), and Xxxxxxx Xxxxx
("Covenantor").
W I T N E S S E T H:
WHEREAS, Covenantor is a principal shareholder of Mid-West Temps, Inc.,
an Illinois corporation ("Seller"); and
WHEREAS, Seller is selling substantially all of its assets to OutSource
pursuant to the Asset Purchase Agreement among OutSource, Covenantor, and Seller
of even date herewith (the "Asset Purchase Agreement"); and
WHEREAS, this Agreement is required to be executed and delivered by
Covenantor pursuant to Section 2 of the Asset Purchase Agreement; and
WHEREAS, all terms in this Agreement which are not otherwise defined
herein are used herein with the meanings assigned to them in the Asset Purchase
Agreement;
NOW, THEREFORE, in consideration of the consummation of the
transactions contemplated by the Asset Purchase Agreement, the parties hereto
agree as follows:
1. NONCOMPETITION AGREEMENT. Covenantor agrees that, for a period from
the date of this Agreement and up to and including May 11, 2003, without the
prior written consent of OutSource, Covenantor shall not:
1.1 engage in a Competitive Business (as hereafter defined) or
in a Competitive Business perform services, directly or indirectly, on
behalf of itself or in connection with any other person, or as an
employee, proprietor, owner, partner, director, officer, associate,
shareholder, agent, contractor, employer, or consultant, of any entity,
within the state of Illinois (collectively the "Territory").
1.2 have any direct or indirect interest, as a disclosed or
beneficial owner, in any Competitive Business within the Territory
except that Covenantor may own up to 5% of the issued and outstanding
stock in a Competitive Business which is a publicly held company.
1.3 perform services as a director, officer, manager,
employee, consultant, representative, agent, independent contractor or
otherwise for any Competitive Business
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within the Territory;
1.4 have any direct or indirect interest in any entity which
is granted or is granting franchises or licenses to others to operate a
Competitive Business within the Territory except for an ownership of up
to 5% of the issued and outstanding shares of a Competitive Business
which is a publicly held company.
1.5 solicit, recruit or hire any employee of OutSource, its
affiliates or franchise associates, except for non-staffing employees
who respond to a general solicitation of employment or approach
Covenantor without prior solicitation;
1.6 except as allowed above with respect to a Competitive
Business, directly or indirectly, on behalf of itself or any other
person, or as an employee, proprietor, consultant, agent, contractor,
employer, affiliate, partner, owner, officer, director, associate, or
stockholder of any other person or entity, or in any other capacity,
solicit, divert, take away or interfere with any of the business,
customers, clients, contractors, trade or patronage of OutSource, its
affiliates or franchise associates.
In the event that any provisions of this Section 1 should be deemed to exceed
the time or geographic limitations permitted under any applicable law, then such
provision shall be, and hereby is, reformed to the maximum time or geographic
limitations permitted under such applicable law.
2. COMPETITIVE BUSINESS. "Competitive Business" means any business
operating, or granting franchises or licenses to others to operate, any light
industrial temporary labor business.
3. MATERIALITY. Covenantor recognizes and hereby agrees that the
purchase price paid by OutSource for Seller's business exceeds the book value of
Seller's business, and that a portion of the purchase price is attributed to the
execution and delivery of this Agreement by Covenantor and related agreements by
certain other individuals. Covenantor further recognizes and agrees that the
execution and delivery of this Agreement by Covenantor and the representations,
warranties, covenants and agreements of Covenantor set forth in Section 1 hereof
are material and substantial parts of the transactions contemplated by the Asset
Purchase Agreement.
4. PAYMENT. In consideration of the noncompetition agreement set forth
in Section 1 hereof, upon execution of this Agreement, OutSource will deliver or
cause to be delivered to the Seller the amount set forth in Section 1 of the
Asset Purchase Agreement pursuant to the terms of the Asset Purchase Agreement.
5. SEVERABILITY. If for any reason any provision of this Agreement
shall be held invalid, such invalidity shall not affect any other provision of
this Agreement not so held invalid, and all other such provisions shall to the
full extent consistent with law continue in full force and effect. If any such
provisions shall be held invalid in part, such invalidity shall in no way affect
the rest of such
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provision which, together with all other provisions of this Agreement, shall
likewise to the full extent consistent with law continue in full force and
effect.
6. SUCCESSORS AND ASSIGNS. The obligations of the Covenantor under this
Agreement are personal and may not be assigned or delegated to any other person.
The rights and obligations of Covenantor under this Agreement shall inure to the
benefit of and be binding upon the respective successors and assigns of
OutSource.
7. MISCELLANEOUS. No provision of this Agreement may be modified,
waived or discharged unless such modification, waiver or discharge is agreed to
in writing and is signed by the parties hereto. No waiver by any other party
hereto at any time of any breach by any other party hereto of, or compliance
with, any provision of this Agreement to be performed by such other party shall
be deemed a waiver of similar or dissimilar provisions at the same or at any
prior or subsequent time.
8. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Illinois. The sole venue for any action
arising hereunder shall be Xxxx County, Illinois.
9. COUNTERPARTS. This Agreement may be executed in one or more
counterparts each of which shall constitute an original and all of which
together shall constitute one and the same Agreement. Facsimile signatures shall
have the same effect as original signatures.
IN WITNESS WHEREOF, the parties have executed and caused this Agreement
to be executed and delivered as of the date first written above.
OUTSOURCE:
Witness: OutSource International
of America, Inc.
/S/ XXXXXXX XXXXXXXX By: /S/ XXXXX XXXXXXXX
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Zone Vice President
Witness: COVENANTOR:
/S/ XXXXXX X. XXXXX /S/ XXXXXXX XXXXX
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Xxxxxxx Xxxxx
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