Tri-State NON-COMPETE/NON-SOLICITATION AGREEMENT
EXHIBIT
10.66
Tri-State
NON-COMPETE/NON-SOLICITATION AGREEMENT
This
Tri-State
NON-COMPETE AND NON-SOLICITATION AGREEMENT
(the
“Agreement”)
is made
and entered into as of this 7th
day of
December, 2005, by and between STRATUS
SERVICES GROUP, INC.,
a
Delaware company (“Stratus”)
and
TRI-STATE
EMPLOYMENT SERVICE, INC.,
a New
York corporation (“Tri-State”),
and the respective affiliates, officers, directors and/or principals of each
of
Stratus and Tri-State.
RECITALS:
WHEREAS,
Tri-State and Stratus have executed an Asset Purchase Agreement (“Asset Purchase
Agreement”) whereby Tri-State has purchased certain assets related to the
ongoing clerical and light industrial staffing business of Stratus at the
offices located in Bellflower, California and West Covina, California (the
“Purchased Assets”); and
WHEREAS,
Tri-State and Stratus are currently parties to a certain Outsourcing Agreement,
as amended, which clarifies certain non-competition and non-solicitation
provisions among the parties; and
WHEREAS,
Tri-State possesses substantial information and knowledge regarding the
Purchased Assets; and
WHEREAS,
the parties desire to enter into an agreement whereby Tri-State acknowledges
its
obligations under the Outsourcing Agreement, and reaffirms same except as
amended hereby.
NOW,
THEREFORE, for consideration, the receipt and sufficiency of which is hereby
acknowledged, and other good and valuable consideration, the parties hereto
agree as follows:
Confidentiality
and Trade Secrets
Tri-State
acknowledges that it has had access to confidential information concerning
Stratus’ business and clients relating thereto, including their business
affairs, special needs, preferred methods of doing business, methods of
operation, key contact personnel and other data, all of which provides Tri-State
with a competitive edge and none of which is readily available except to
Stratus.
Tri-State
further acknowledges that it has had access to the names, addresses, telephone
numbers, qualifications, education, accomplishments, experience, availability,
resumes and other data regarding persons who have applied or been recruited
for
temporary or permanent employment relating to the Stratus’ business, as well as
job order specifications and the particular characteristics and requirements
of
persons generally hired by a client, specific job listings, mailing lists,
computer runoffs, financial and other information, all of which provides
Tri-State with a competitive edge and none of which is readily available
except
to Stratus.
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Tri-State
agrees that all of the foregoing information regarding Stratus’ business and all
clients and employees related thereto constitutes valuable and proprietary
trade
secrets and confidential information of Stratus (hereafter “Confidential
Information”).
Non-Competition
Agreement
Tri-State
agrees that it will not, during the three
(3)
year
period commencing with the Effective Date of the Asset Purchase Agreement
(“Restrictive Period”) service, solicit, compete in the geographic area or deal
with any customers or future customers of Stratus’ existing nationwide customers
and accounts that operate in the geographic area of the CA Branch
Offices.
Non-Disclosure
Agreement
Tri-State
agrees that except as directed by Stratus, it will not at any time use for
any
reason or disclose to any person any of the Stratus Confidential Information
or
permit any person to examine and/or make copies of any documents which may
contain or are derived from Confidential Information, whether prepared by
Stratus or otherwise, without the prior written permission of
Stratus.
No
Adequate Remedy at Law
Tri-State
acknowledges and agrees that any
breach or threatened breach by of this Agreement by Tri-State would cause
immediate and irreparable injury to Stratus and that money damages alone
would
not provide an adequate remedy
in the
event Tri-State breaches any of the above covenants. Accordingly, Tri-State
agrees that Stratus shall have the right to seek and obtain an injunction
to
enjoin any such breach by Tri-State without the requirement of the posting
of a
bond and, if Stratus shall institute any action or proceeding to enforce
those
covenants, Tri-State hereby waives and agrees not to assert the claim or
defense
that Stratus has an adequate remedy at law. The foregoing shall not prejudice
Stratus’ right to require Tri-State to account for and pay over to Stratus the
amount of any damages incurred by Stratus as a result of any such
breach.
Scope
and Duration
It
is
expressly understood and agreed that Stratus and Tri-State consider the
restrictions contained in this Agreement to be reasonable and necessary for
the
purposes of preserving and protecting the goodwill, legitimate business
interests, and proprietary trade secrets and confidential information of
Stratus. Nevertheless, if any of the aforesaid restrictions are found by
a court
having jurisdiction to be unreasonable, or to be overbroad as to geographic
area, or time,
or with
respect to a particular scope of commerce,
or to
be otherwise unenforceable, the parties intend for the restrictions set forth
above to be modified by such court so as to be reasonable and enforceable
and,
as so modified by the court, to be fully enforced.
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Successors
and Assigns
This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective heirs, successors and assigns, except that neither party
may assign its obligations hereunder without the prior written consent of
the
other parties hereto; provided,
however,
that
either party may assign its rights hereunder to a subsidiary or affiliate,
provided
that the
party assigning shall remain liable for its obligations hereunder. Any
assignment in contravention of this provision shall be null and void. No
assignment shall release either party from any obligation or liability under
this Agreement.
Entire
Agreement; Amendment
This
Agreement, the Asset Purchase Agreement, of even date herewith, all schedules
and exhibits thereto and hereto, and all agreements and instruments to be
delivered by the parties pursuant hereto represent the entire understanding
and
agreement between the parties hereto with respect to the subject matter hereof
and supersede all prior oral and written, and all contemporaneous oral
negotiations, commitments and understandings between such parties. The parties,
by the consent of their respective Boards of Directors, Members or officers
authorized by such Boards, may amend or modify this Agreement, in such manner
as
may be agreed upon, by a written instrument executed by both
parties.
Governing
Law
This
Agreement shall be governed by and construed in accordance with the laws
of the
State of New Jersey, without regard to conflicts of law principles.
Section
Headings
The
section headings are for the convenience of the parties and in no way alter,
modify, amend, limit, or restrict the contractual obligations of the
parties.
Severability
The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this
Agreement.
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Counterparts
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed an original but all of which, when taken together, shall be one and
the
same document.
STRATUS
SERVICES GROUP, INC.
By:
/s/
Xxxxxx X. Xxxxxxx
Xxxxxx
X.
Xxxxxxx
Chairman
and CEO
TRI-STATE
EMPLOYMENT SERVICE, INC.
By:
/s/
Xxxxxx Xxxxxxx
Name:
Xxxxxx Xxxxxxx
Title:
President
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