EXHIBIT C-2 ALS NON-COMPETE/NON-SOLICITATION AGREEMENT
Exhibit
10.34
EXHIBIT
C-2
ALS
NON-COMPETE/NON-SOLICITATION AGREEMENT
This
ALS
NON-COMPETE AND NON-SOLICITATION AGREEMENT
(the
“Agreement”)
is made
and entered into as of this 8th
day of
June, 2005, by and between STRATUS
SERVICES GROUP, INC.,
a
Delaware company (“Stratus”)
and
ALS,
LLC,
a
Florida limited liability company (“ALS”),
and the respective affiliates, officers, directors and/or principals of each
of
Stratus and ALS.
RECITALS:
WHEREAS,
ALS and Stratus have executed an Asset Purchase Agreement (“Asset Purchase
Agreement”) whereby ALS has purchased certain assets related to the ongoing
clerical and light industrial staffing business of Stratus at the Cotati,
Fairfield, Hayward, Napa, Roseville and Sacramento, California branch offices
(the “Purchased Assets”); and
WHEREAS,
ALS 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,
ALS possesses substantial information and knowledge regarding the Purchased
Assets; and
WHEREAS,
the parties desire to enter into an agreement whereby ALS 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
ALS
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 ALS
with
a competitive edge and none of which is readily available except to
Stratus.
ALS
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 ALS
with a competitive edge and none of which is readily available except to
Stratus.
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ALS
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
ALS
acknowledges that, pursuant to the terms of the Outsourcing Agreement between
Stratus and ALS, as amended, the parties have also agreed, in Sections 11 and
12
thereof, to certain non-solicitation provisions, relating to Stratus. This
Agreement shall not, in any way, be deemed to supercede those provisions of
the
Outsourcing Agreement other than those relative to the Cotati, Fairfield,
Hayward, Napa, Roseville and Sacramento, California branch offices (the
“Northern California Offices”) which other such provisions remain in full force
and effect. ALS acknowledges that doing so in any manner would interfere with,
diminish and otherwise jeopardize and damage the business and goodwill of
Stratus. Notwithstanding the foregoing, ALS retains the right to continue to
service the GRM, APX and Spherion Accounts, which are shared by ALS and Stratus
(the “Shared Accounts”) relative to the Northern California Offices and in all
locations not currently being serviced by Stratus.
Non-Disclosure
Agreement
ALS
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
ALS
acknowledges and agrees that any
breach or threatened breach by of this Agreement by ALS would cause immediate
and irreparable injury to Stratus and that money damages alone would not provide
an adequate remedy
in the
event ALS breaches any of the above covenants. Accordingly, ALS agrees that
Stratus shall have the right to seek and obtain an injunction to enjoin any
such
breach by ALS without the requirement of the posting of a bond and, if Stratus
shall institute any action or proceeding to enforce those covenants, ALS 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 ALS 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 ALS 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
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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
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 California, 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.
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STRATUS
SERVICES GROUP, INC.
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By:
/s/
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Chairman
and CEO
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ALS,
LLC
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By:
/s/
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Managing
Member
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