Exhibit 10.9
FORM OF
NON-SOLICITATION,
NON-COMPETITION AND NON-DISCLOSURE AGREEMENT
This Non-Solicitation, Non-competition and Non-Disclosure Agreement (the
"Agreement") is entered into by and between Stride & Associates, Inc., with its
principal office at 000 Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxxxxxxx 00000
(the "Company") and _________________, an individual residing at ______________,
__________, ________________ (the "Principal Stockholder").
RECITALS
Pursuant to the terms of that certain Securities Purchase and Redemption
Agreement (the "Purchase Agreement") by and between the Company, the principal
stockholders of the Company and the Investors named therein, the Principal
Stockholder has sold a majority of his or her shares in the Company. The
Principal Stockholder is executing this Agreement as an inducement to the
Investors to enter into and perform the Purchase Agreement.
DEFINITIONS
1.01 "BUSINESS" shall mean (a) the Company's present business, which
consists of permanent placement of information technology professionals, and,
subject to the last sentence of this Section 1.01, (b) such other business as
the Company may undertake during the Restriction Period (as herein defined) so
long as such other business is reasonably related or incidental to, or an
outgrowth of, the permanent placement of information technology professionals.
It is expressly acknowledged and agreed that the term "Business" shall not
include (a) activities currently conducted by Bond Technologies and Percussion
Software, Inc., (which current activities the Principal Stockholder acknowledges
do not include the permanent placement of information technology professionals)
or (b) activities undertaken after the date hereof by Bond Technologies and
Percussion Software, Inc. if at the time such entities or the Principal
Stockholder first become engaged in such activities, such activities have not
theretofore been engaged in by the Company.
1.03 "COMPETE" OR "COMPETING" shall mean entering into or attempting to
enter into any business which competes with the Business, either alone or with
any individual, partnership, corporation or association.
1.04 "DIRECTLY OR INDIRECTLY" as they modify the word "compete" shall mean:
(i) acting in a management or oversight capacity as an agent, representative,
consultant, officer, director, independent contractor or employee of any entity
or enterprise which is competing (as defined in Section 1.03) with the Business;
or (ii) participating in any material management or oversight role in any such
competing entity or enterprise as an owner, partner, limited partner, joint
venturer, creditor or stockholder (except as a stockholder owning less than a
five percent interest
in a corporation or other entity whose shares are actively traded on a national
securities exchange or in the over-the-counter market).
1.06 "TERRITORY" shall mean all countries in which the Company is
conducting Business, or actively preparing to conduct Business at any time
during the Restriction Period (as herein defined).
NON-COMPETITION AND NON-DISCLOSURE
2.01 SCOPE AND REASONABLENESS. The Principal Stockholder acknowledges that
the Company has a present and future expectation of conducting operations and
generating revenues within the Territory and that, in his or her capacity with
the Company, the Principal Stockholder had important duties and responsibilities
with respect to the Business. The Company is engaged in a highly competitive
business and the success of the Company's Business in the marketplace depends
upon its goodwill and reputation for quality and dependability. The Principal
Stockholder further agrees that reasonable limits may be placed on his or her
ability to compete against the Company as provided herein so as to protect and
preserve the legitimate business interests and goodwill of the Company.
2.02 CONFIDENTIALITY AND TRADE SECRETS.
(a) The Principal Stockholder acknowledges and agrees that his or her prior
and current position as an stockholder of the Company has afforded him or her,
and will continue to afford him or her, a unique opportunity to acquire
confidential information concerning the Company and that the misappropriation or
disclosure of such confidential information would cause irreparable harm to the
Company. The Principal Stockholder recognizes and agrees that he or she has had
and will continue to have access to certain confidential information of the
Company and its subsidiaries which is not generally available to the public and
that such information constitutes valuable, special and unique property of the
Company or one of its subsidiaries. The Principal Stockholder acknowledges that
such confidential information includes information concerning the Business, the
Company and its subsidiaries, including without limitation financial information
concerning the Business and the Company, the names and addresses of actual and
potential customers of the Business or the Company, studies of prospective
market areas for the Business, supply sources, products, technical data, ideas,
processes, and trade secrets of the Business and the Company (such information
whether related to the Business the Company or its subsidiaries being referred
to collectively as the "Confidential Information"). Confidential Information
shall not include any information or documents (i) that are or become publicly
available without breach of this Section 2.02, (ii) that the Principal
Stockholder rightfully receives from any third party which is not breaching an
obligation of confidence with the Company or any of its subsidiaries or without
an accompanying obligation of confidence or (iii) that are required to be
released by a valid court or governmental order. In the event that the Principal
Stockholder is requested in any court or governmental proceeding to
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disclose any Confidential Information, the Principal Stockholder shall give the
Company prompt notice of such request such that the Company may seek a
protective order or other appropriate relief and shall cooperate with all
reasonable requests of the Company in connection therewith.
(b) The Principal Stockholders will keep confidential and will not, at any
time hereafter, directly or indirectly, divulge to anyone, use or otherwise
appropriate any of the Confidential Information for any reason or purpose
whatsoever except to authorized representatives of the Company.
(c) With respect to any trade secrets included in the Confidential
Information, the Principal Stockholder also agrees not to use or disclose any of
such trade secrets at any time until such trade secrets become generally
available to the public by independent discovery or development and publication
through no fault of the Principal Stockholder. The Principal Stockholder
acknowledges and agrees that these prohibitions against disclosure of
Confidential Information are in addition to, and not in lieu of, any rights or
remedies which the Company or any of its subsidiaries may have available
pursuant to the laws of any jurisdiction or at common law to prevent the
disclosure of trade secrets or proprietary information, and the enforcement by
the Company of any of its rights and remedies pursuant to this Agreement shall
not be construed as a waiver of any other rights or available remedies which it
may possess in law or equity absent this Agreement.
2.03 NON-COMPETITION. The Principal Stockholder agrees that for a period
(the "Restriction Period") from the date hereof through the later of (i) May 31,
2003; or (ii), if applicable, the first anniversary of termination of his or her
employment with the Company, he or she will not directly or indirectly, for
himself or herself, or on behalf of or in conjunction with any other person,
partnership, firm or corporation, engage in the Business within the Territory,
or, except as an owner of less than 5% of the capital stock of any publicly held
company or entity, directly or indirectly be an owner, partner, director,
manager, officer or employee, of consultant or advisor to, or otherwise render
services to or be associated with any business which competes with the Business
of the Company in the Territory and in any other geographical area in which the
Company establishes offices during the term of this Agreement. Notwithstanding
the provisions of this Section 2.03, the Principal Stockholder shall be
permitted to engage in those activities described in EXHIBIT A hereto, so long
as in doing so the Principal Stockholder does not violate any of the other
provisions of this Agreement.
2.04 NON-SOLICITATION AND NON-INTERFERENCE. The Principal Stockholder
agrees that during the Restriction Period, he or she will not in any way,
directly or indirectly (but only to the extent with his or her control), for
himself or herself or on behalf of or in conjunction with any other person,
partnership, firm or corporation:
(i) Solicit or divert away or attempt to solicit or divert any
customer served or solicited by the Company, in each case to provide
services in competition with the Business; or
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(ii) Solicit or induce or attempt to induce any employee of the
Company or independent contractor who, over the six months immediately
preceding such solicitation or inducement, has spent at least
two-thirds of his or her business time providing services to the
Company (a "Protected Consultant"), to terminate his or her employment
with the Company, or employ or otherwise engage as an employee,
independent contractor or otherwise, except in an enterprise in which
the Principal Stockholder has no responsibility or authority for
hiring decisions, any person who is an employee or Protected
Consultant of the Company or was an employee or Protected Consultant
of the Company in the four (4) months preceding the proposed date of
hiring of such person.
2.05 REMEDIES. The Principal Stockholder acknowledges that any violation of
this Section 2 will cause irreparable harm to the Company and that damages are
not an adequate remedy. The Principal Stockholder therefore agrees that the
Company shall be entitled to seek an injunction enjoining, prohibiting and
restraining the Principal Stockholder from the continuance of any such
violation, in addition to any monetary damages which might occur by reason of a
violation of this Agreement or any other remedies at law or in equity, including
without limitation specific performance, and that in any such action, the
Principal Stockholder will not raise as a defense the argument that an adequate
remedy for such breach exists at law.
2.06 INDEPENDENT. The covenants set forth in the foregoing Sections of this
Section 2 are and shall be deemed and construed as separate and independent
covenants. Should any part or provision of such covenants be held invalid, void
or unenforceable in any court of competent jurisdiction, such invalidity,
voidness or unenforceability shall not render invalid, void or unenforceable any
other part or provision thereof. Specifically, and without limiting the
generality of the foregoing, if any portion of Sections 2.01, 2.02, 2.03 or 2.04
is found to be invalid by a court of competent jurisdiction because its
duration, the Territory and/or the Business are invalid or unreasonable in
scope, such duration, Territory and/or Business, as the case may be, shall be
redefined (but in no event expanded or enlarged) by consideration of the
reasonable concerns and needs of the Company such that the intent of the Company
and the Principal Stockholder, in agreeing to Sections 2.01, 2.02, 2.03 and
2.04, will not be impaired and shall be enforceable to the fullest extent of the
applicable laws.
3. NOTICES. All notices or elections required or permitted under this
Agreement shall be in writing and shall be hand delivered, sent by facsimile or
other electronic medium, or first class mail, postage prepaid, to the Company or
the Principal Stockholder to the address set forth above, or to such other
address as one party may advise the other as provided in this Agreement.
4. PRONOUNS. Whenever the context may require, any pronouns used in this
Agreement shall include the corresponding masculine, feminine or neuter forms,
and the singular forms of nouns and pronouns shall include the plural, and vice
versa.
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5. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties and supersedes all prior agreements and understandings,
whether written or oral, relating to the subject matter of this Agreement.
6. AMENDMENT. This Agreement may be amended or modified only by a written
instrument executed by both the Company and the Principal Stockholder.
7. GOVERNING LAW. This Agreement shall be construed, interpreted and
enforced in accordance with the internal laws (and not the laws of conflicts) of
The Commonwealth of Massachusetts.
8. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure
to the benefit of both parties and their respective successors and assigns,
including any corporation with which or into which the Company may be merged or
which may succeed to its assets or business; provided, however, that the
obligations of the Principal Stockholders are personal and shall not be
assigned, and provided, further no such assignment shall expand or enlarge the
scope or breadth of any of the provisions hereof.
9. MISCELLANEOUS.
9.1. No delay or omission by the Company in exercising any right under
this Agreement shall operate as a waiver of that or any other right. A waiver or
consent given by the Company on any one occasion shall be effective only in that
instance and shall not be construed as a bar or waiver of any right on any other
occasion.
9.2. The captions of the sections of this Agreement are for
convenience of reference only and in no way define, limit or affect the scope or
substance of any section of this Agreement.
9.3. In case any provision of this Agreement shall be invalid, illegal
or otherwise unenforceable, the validity, legality and enforceability of the
remaining provisions shall in no way be affected or impaired thereby.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year set forth above.
COMPANY:
STRIDE & ASSOCIATES, INC.
By:
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Title:
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PRINCIPAL STOCKHOLDER:
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EXHIBIT A
1.
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