STRATUS NON-COMPETE/NON-SOLICITATION AGREEMENT
EXHIBIT
10.62
STRATUS
NON-COMPETE/NON-SOLICITATION AGREEMENT
This
STRATUS NON-COMPETE
AND NON-SOLICITATION AGREEMENT
(the
“Agreement”)
is made
and entered into as of this 5th
day of
December, 2005, by and between STRATUS
SERVICES GROUP, INC.,
a
Delaware company (“Stratus”)
and
ACCOUNTABILITIES,
INC.,
a
Delaware corporation (“Accountabilities”), and the respective affiliates,
officers, directors and/or principals of each of Stratus and
Accountabilities.
RECITALS:
WHEREAS,
Accountabilities and Stratus have executed an Asset Purchase Agreement whereby
Accountabilities has purchased certain assets related to the ongoing clerical
and light industrial staffing business of Stratus at its offices located
in
Culver City, California, Lawndale, California, and Orange, California (the
“Purchased Assets”); and
WHEREAS,
Stratus possesses substantial information and knowledge regarding the Purchased
Assets; and
WHEREAS,
the parties desire to enter into an agreement whereby Stratus agrees not
to
compete with Accountabilities relating to the Purchased Assets.
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
Stratus
acknowledges that it has had access to confidential information concerning
the
Purchased Assets 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 Stratus with a
competitive edge and none of which is readily available except to Stratus
and
employees of Accountabilities.
Stratus
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 Purchased Assets, 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
Stratus
with a competitive edge and none of which is readily available except to
Stratus
and employees of Accountabilities.
Stratus
agrees that all of the foregoing information regarding the Purchased Assets
and
all clients and employees related thereto constitutes valuable and proprietary
trade secrets and confidential information of Accountabilities (hereafter
“Confidential Information”).
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Non-Competition
Agreement
Stratus
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 of or
deal with any customers or future customers of its offices located in
Bellflower, California and West Covina, California (collectively the
“Accountabilities CA Branch Offices”). Stratus acknowledges that doing so in any
manner would interfere with, diminish and otherwise jeopardize and damage
the
business and goodwill of the Accountabilities CA Branch Offices. Notwithstanding
the foregoing, Stratus retains the right to continue to service all of its
other
existing nationwide customers and accounts.
Non-Disclosure
Agreement
Stratus
agrees that except as directed by Accountabilities, it will not at any time
use
for any reason or disclose to any person any of the Confidential Information
of
the Accountabilities CA Branch Offices 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 Accountabilities.
Agreement
Not to Compete for Accounts or Personnel
Except
as
set forth above, Stratus agrees that during the Restrictive Period it will
not,
directly or indirectly, contact, solicit, divert, take away or attempt to
contact, solicit, divert or take away any staff employee, temporary personnel,
customer, account, business or goodwill from Accountabilities in the
Accountabilities CA Branch Offices, either for Stratus’ own benefit or some
other person or entity, and will not aid or assist any other person or entity
to
engage in any such activities.
No
Adequate Remedy at Law
Stratus
acknowledges and agrees that any
breach or threatened breach by of this Agreement by Stratus would cause
immediate and irreparable injury to Accountabilities and that money damages
alone would not provide an adequate remedy
in the
event Stratus breaches any of the above covenants. Accordingly, Stratus agrees
that Accountabilities shall have the right to seek and obtain an injunction
to
enjoin any such breach by Stratus without the requirement of the posting
of a
bond and, if Accountabilities shall institute any action or proceeding to
enforce those covenants, Stratus hereby waives and agrees not to assert the
claim or defense that Accountabilities has an adequate remedy at law. The
foregoing shall not prejudice Accountabilities’ right to require Stratus to
account for and pay over to Accountabilities the amount of any damages incurred
by Accountabilities as a result of any such breach.
Scope
and Duration
It
is
expressly understood and agreed that Stratus and Accountabilities 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
Accountabilities. Nevertheless, if any of the aforesaid
restrictions
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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.
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
the Buyer may assign Buyer's rights hereunder to a subsidiary or affiliate
of
Buyer, provided
that the
Buyer shall remain liable for its obligations hereunder. Any assignment in
contravention of this provision shall be null and void. No assignment shall
release the Buyer from any obligation or liability under this
Agreement.
Entire
Agreement; Amendment
This
Agreement, all schedules and exhibits 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 Buyer and the Seller, by the consent of their respective Boards
of
Directors, 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 the Buyer and the Seller.
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
ACCOUNTABILITIES,
INC.
By:
/s/
Xxxxx Xxxxxxx
Xxxxx
Xxxxxxx
President
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