EXHIBIT 10.2
CONFIDENTIALITY, NON-SOLICITATION AND NON-COMPETITION AGREEMENT
THIS AGREEMENT ("Agreement") dated as of January 19, 1998, is entered
into by and between OUTSOURCE INTERNATIONAL OF AMERICA, INC., a Florida
corporation (the "Company"), and Xxxx Xxxxxxx (the "Employee").
RECITALS
Employee desires to be employed by the Company. As a material
inducement for the Company to employ Employee, the Company desires that Employee
enter into this Agreement.
AGREEMENT
For and in consideration of the foregoing and of the mutual covenants
of the parties herein contained, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties agree
as follows:
1. CONFIDENTIAL INFORMATION. Employee recognizes and acknowledges that he will
have access to certain confidential information of the Company and of
corporations with whom the Company does business, and that such information
constitutes valuable, special and unique property of the Company and such other
corporations. During the term of his employment with the Company and for a
period of five (5) years immediately thereafter, Employee agrees not to disclose
or use any confidential information, including without limitation, information
regarding suppliers, customers, costs or any knowledge or information with
respect to confidential or trade secrets of the Company, it being understood
that such confidential information does not include information that is publicly
available unless such information became publicly available as a result of a
breach of this Agreement. Employee acknowledges and agrees that all notes,
records, reports, sketches, plans, unpublished memoranda or other documents
belonging to the Company, but held by Employee, concerning any information
relating to the Company's business, whether confidential or not, are the
property of the Company and will be promptly delivered to it upon Employee's
leaving the employ of the Company. Employee also agrees to execute such
confidentiality agreements that the Board of Directors may adopt, and may modify
from time to time, as a standard form to be executed by all employees of the
Company, to the extent such standard forms are not materially more restrictive
than the provisions of this Agreement.
2. NON-SOLICITATION. At all times during the term of his employment with the
Company and thereafter, Employee shall not, directly or indirectly, induce,
influence, combine or conspire with, or attempt to induce, influence, combine or
conspire with, any of the officers, employees, service employees, customers,
agents or consultants of the Company to terminate their employment or other
relationship with the Company, or to compete against the Company or any
subsidiaries, parents or affiliates of the Company in the temporary or permanent
staffing business (the "Business").
3. NON-COMPETITION. Employee acknowledges that his services and responsibilities
are unique in character and are of particular significance to the Company, that
the Company engages in a competitive business with a national market and that
Employee's continued and exclusive service to the Company under this Agreement
is of a high degree of importance to the Company. Therefore, during the term of
his employment with the Company and for a period of five (5) years thereafter
(the "Noncompete Period"), Employee shall not, directly or indirectly, engage in
the Business, except as an employee or agent of the Company, and shall not,
directly or indirectly, as owner, partner, joint venturer, employee, broker,
agent, corporate officer, principal, licensor, shareholder (unless as owner of
no more than five percent (5%) of the issued and outstanding capital stock of
such entity if such stock is publicly traded) or in any other capacity
whatsoever, engage in or have any connection with any business which is
competitive with the Business anywhere in the United States.
4. RESTRICTIVE COVENANTS.
(a) If, in any judicial proceedings, a court shall refuse to
enforce any of the covenants included in Paragraphs 1, 2 or 3 hereof, then such
unenforceable covenant shall be amended to relate to such lesser period or
geographical area as shall be enforceable. In the event the Company should bring
any legal action or other proceeding against Employee for enforcement of this
Agreement, the calculation of the Noncompete Period, if any, shall not include
the period of time commencing with the filing of legal action or other
proceeding to enforce this Agreement through the date of final judgment or final
resolution, including all appeals, if any, of such legal action or other
proceeding. The existence of any claim or cause of action by Employee against
the Company predicated on this Agreement shall not constitute a defense to the
enforcement by the Company of these covenants.
(b) Employee hereby acknowledges that the restrictions on his
activity as contained in this Agreement are required for the Company's
reasonable protection and is a material inducement to the Company to enter into
this Agreement. Employee hereby agrees that in the event of the violation by him
of any of the provisions of this Agreement, the Company will be entitled to
institute and prosecute proceedings at law or in equity to obtain damages with
respect to such violation or to enforce the specific performance of this
Agreement by Employee or to enjoin Employee from engaging in any activity in
violation hereof. The prevailing party in any litigation brought to enforce the
restrictive provisions contained in this Agreement shall be entitled to
reimbursement from the nonprevailing party for reasonable attorneys' fees and
expenses incurred in connection with such litigation.
(c) Notwithstanding anything to the contrary contained herein,
in the event that Employee engages in any conduct prohibited by Paragraphs 1, 2
or 3 hereof for any reason whatsoever, Employee shall not receive any of the
severance benefits he otherwise would be entitled to receive pursuant to
Paragraph 7(e) of that certain Employment Agreement by and between the Company
and Xxxxxxx of even date herewith.
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5. NOTICES. Any notice required or permitted to be given under this Agreement
shall be sufficient if in writing and if sent by registered mail to the
addresses below or to such other address as either party shall designate by
written notice to the other:
IF TO THE EMPLOYEE: To the address set forth below his signature on the
signature page hereof.
IF TO THE COMPANY:
OutSource International of America, Inc.
0000 Xxxx Xxxxxxx Xxxxxx Xxxxx
Xxxxxxxxx Xxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
6. ENTIRE AGREEMENT; MODIFICATION.
(a) This Agreement contains the entire agreement of the
Company and Employee with respect to the matters set forth herein, and the
Company and Employee hereby acknowledge and agree that this Agreement supersedes
any prior statements, writings, promises, understandings or commitments between
the parties hereof.
(b) No future oral statements, promises or commitments with
respect to the subject matter hereof, or other purported modification hereof,
shall be binding upon the parties hereto unless the same is reduced to writing
and signed by each party hereto.
7. ASSIGNMENT. The rights and obligations of the Company under this Agreement
shall inure to the benefit of and shall be binding upon the successors and
assigns of the Company. The Employee may not assign his rights and obligations
under this Agreement.
8. MISCELLANEOUS.
(a) This Agreement shall be subject to and governed by the
laws of the State of Florida, without regard to the conflicts of laws principles
thereof.
(b) The parties to this Agreement agree that any claim, suit,
action or proceeding, brought by either party, arising out of or relating to
this Agreement or the transactions contemplated hereby shall be submitted for
adjudication exclusively in any Florida state or federal court sitting in
Broward County, Florida, and each of the parties hereto expressly agrees to be
bound by such selection of jurisdiction and venue for purposes of such
adjudication. Each party: (i) waives any objection which it may have that such
court is not a convenient forum for any such adjudication; (ii) agrees and
consents to the personal jurisdiction of such court with respect to any claim or
dispute arising out of or relating to this Agreement or the transactions
contemplated hereby; and (iii) agrees that process issued out of such court or
in accordance with the rules of practice of such court shall be properly served
if
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served personally or served by certified mail or other form of substituted
service, as provided under the rules of practice of such court. In the event of
any suit, action or proceeding arising out of or relating to this Agreement or
the transactions contemplated hereby the prevailing party thereunder shall be
entitled to recover reasonable attorneys' and paralegals' fees (for
negotiations, trials, appeals and collection efforts) and court costs incurred
in connection therewith in addition to any other relief to which such party may
be entitled. The prevailing party shall be the party that prevails on its claim
whether or not an award or judgement is entered in its favor.
(c) The section headings contained herein are for reference
purposes only and shall not in any way affect the meaning or the interpretation
of this Agreement.
(d) The failure of any party to enforce any provision of this
Agreement shall in no manner affect the right to enforce the same, and the
waiver by any party of any breach of any provision of this Agreement shall not
be construed to be a waiver by such party of any succeeding breach of such
provision or a waiver by such party of any breach of any other provision.
(e) All written notices required in this Agreement shall be
sent postage prepaid by certified or registered mail, return receipt requested.
(f) In the event any one or more of the provisions of this
Agreement shall for any reason be held invalid, illegal or unenforceable, the
remaining provisions of this Agreement shall be unimpaired, and the invalid,
illegal or unenforceable provision shall be replaced by a mutually acceptable
valid, and enforceable provision which comes closest to the intent of the
parties.
(g) This Agreement may be executed in any number of
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have executed this Employment Agreement
as of the day and year first above written.
OUTSOURCE INTERNATIONAL OF AMERICA, INC.
/s/ XXXXXX X. XXXXX
------------------------------------
By: Xxxxxx X. Xxxxx
Its: Field V.P.
Employee
/s/ XXXX XXXXXXX
-----------------------------------------
Xxxx Xxxxxxx
Address:
0000 Xxxxxxxx Xxx
Xxxxxxxx, Xxxxxxxxx 00000
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