NON-COMPETE AND CONFIDENTIALITY AGREEMENT
EXHIBIT
10.2
This
Agreement, by and between Analysts International Corporation (“Analysts
International”) and Xxxxxx X. Xxxxx (“Xxxxx”) shall be effective January 1,
2008.
WHEREAS,
Analysts International desires to retain the services of Xxxxx and has offered
to employ Xxxxx; and
WHEREAS,
Xxxxx desires to become employed by Analysts International; and
WHEREAS,
the parties have negotiated terms of Xxxxx’x employment, including the
requirement that Xxxxx sign this Non-Compete and Confidentiality Agreement
as a
condition of employment; and
WHEREAS,
Xxxxx has accepted the terms of employment offered by Analysts International;
and
THEREFORE,
in consideration of the mutual covenants, the parties agree as
follows:
1.
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Xxxxx
will not solicit, either directly or indirectly, or accept, for Xxxxx’x
own account or for anyone else, business for services or products
similar
in use or application to Analysts International’s services or products
from any Analysts International customer or prospective
customer: (i) which at any time during the last 12 months of
Xxxxx’x employment with Analysts International was a customer of the
office, business group or unit, practice or reporting unit to which
Xxxxx
was assigned; or (ii) to whom, during the last 12 months of Xxxxx’x
employment the Analysts International office, business group or unit,
practice or reporting unit to which Xxxxx was assigned, submitted
a
proposal or proposals for Analysts International's services or products;
or (iii) with whom, during the last 12 months of Xxxxx’x employment, Xxxxx
otherwise dealt or about whom Xxxxx received business
information. Xxxxx will also refrain from participating in or
giving information or other assistance to anyone else in soliciting
such
business from these Analysts International customers and prospective
customers. Xxxxx agrees that he will refrain from this form of
unfair competition during his employment with Analysts International
and
for a period of 12 months after his employment with Analysts International
is terminated, regardless of the reason for termination. If,
during the 12-month period following termination of his employment
with
Analysts International, any business by which Xxxxx is then employed
or
otherwise am affiliated solicits or accepts such business from any
customer or prospective customer set forth above, it will be presumed
that
Xxxxx participated or assisted in the solicitation and acceptance
of such
business unless Xxxxx can prove otherwise.
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For
purposes of this agreement, business done as a Microsoft Certified
Partner
will be considered business with a partner organization, and not
a
customer or client of Analysts International.
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2.
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Recognizing
that Analysts International incurs significant expense in recruiting
its
personnel and has the right to expect their continued service, Xxxxx
will
not interfere with Analysts International's relationships with its
employees and subcontractors. Specifically, Xxxxx will not participate
or
give assistance in any attempted or successful effort of any other
business, including Xxxxx’x own business, to hire or engage the services
of an Analysts International employee or subcontractor; nor xxxx
Xxxxx
encourage any Analysts International employee or subcontractor to
leave
Analysts International's service. Xxxxx agrees that Xxxxx will
not engage in this form of unfair competition during his employment
with
Analysts International and for a period of 12 months after his employment
with Analysts International is terminated for any reason.
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If,
during the 12-month period following termination of Xxxxx’x employment
with Analysts International an Analysts International employee or
subcontractor becomes an employee or subcontractor of the business
by
which Xxxxx is then employed or otherwise affiliated in any way,
it will
be presumed that Xxxxx participated or gave assistance to hire or
engage
the services of such person unless Xxxxx can prove otherwise.
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3.
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During
Xxxxx’x employment and for three years thereafter, Xxxxx will keep
confidential, and not use for Xxxxx’x benefit or the benefit of any other
company or person, confidential Analysts International business
information, including but not limited to the identity of Analysts
International customers and prospective customers and their requirements
for IT consulting and other services provided by Analysts International,
salary information, contract rates and contract expiration dates,
details
of Analysts International projects, business, marketing and strategic
plans and company or office financial information. Xxxxx
recognizes that the Company has furnished any information of this
type to
Xxxxx in confidence on the understanding that Xxxxx would not disclose
it
or use it for the advantage of himself or anyone other than Analysts
International. Xxxxx will give back to Analysts International
any documents which contain confidential information promptly on
Analysts
International's request and will keep them confidential until the
request
is made.
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Xxxxx
will refrain from the unfair competition above described either directly
or indirectly as an employee, agent, consultant, or operative of
another
business.
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Because
Analysts International is a Minnesota corporation and has its principal
administrative office in Minneapolis, Xxxxx understands that this agreement
will
be construed and applied in accordance with the laws of the State of
Minnesota.
Xxxxx
understands that the amount of incentive compensation to be paid to Xxxxx will
be determined by Analysts International management in its discretion, and that
either Analysts International or himself may terminate our at-will employment
relationship at any time for any reason or no reason.
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Xxxxx
understands and acknowledges that it would be difficult to ascertain actual
damages which Analysts International would sustain if Xxxxx violates any of
the
provisions of this agreement. Accordingly, Xxxxx further agrees that
Xxxxx’x violation of this agreement will be presumed to have damaged Analysts
International and that the actual damages resulting from such breach will be
measured as follows: (i) for solicitation or acceptance of business or assisting
another party with such in violation of the terms of this agreement, damages
shall be the gross revenue amount Analysts International would have realized
on
the business so solicited or accepted less direct expense Analysts International
would have incurred on account of such business; (ii) for participation or
assistance in a successful effort to hire or engage an Analysts International
employee or subcontractor, actual damages will be the customary fee a reputable
placement agency would charge for providing a suitable replacement or the profit
Analysts International would have received from the continued services of such
employee or subcontractor, whichever is greater. Xxxxx understands
that the foregoing in no way limits Analysts International's right to have
a
court issue an injunction against Xxxxx to prevent violations of this agreement
or to ask the court to use some other method of determining damages if
circumstances warrant.
If
control of the Company or its assets (including its rights under this agreement)
is hereafter acquired by any person, group or entity (whether by merger,
purchase of assets, tender offer or otherwise) without the approval or
acquiescence of the Company's Board of Directors as constituted prior to such
change in control, the limitations on Xxxxx’x right to compete after termination
of employment shall be of no force and effect. "Control" means in
this context the power to change management policies of the
Company.
Xxxxx
wishes to confirm that he will comply with Analysts International's Code of
Ethical Business Conduct, conflict of interest and other similar policies during
Xxxxx’x employment with Analysts International, as follows:
1.
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Xxxxx
will not be affiliated (as an employee; director; consultant; or
owner,
either in whole or in part, of the business or otherwise) with any
competitor, supplier or customer of Analysts International, and neither
Xxxxx nor any business with which Xxxxx is affiliated has transacted
any
business with any customer or supplier of Analysts International
except
for routine purchases at standard rates and on terms provided to
other
customers (such as utility service);
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2.
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Xxxxx
will not accept any money, goods or services from any Analysts
International customer or supplier, except ordinary business meals
and
standard business gifts which have a value of less than $100 per
year from
any single customer;
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3.
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Xxxxx
will not give any gratuities, compensation or anything else of value
to
any Analysts International customers, prospective customers or employees
other than as previously disclosed to Xxxxx’x immediate supervisor and in
accordance with Analysts International policies;
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4.
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Xxxxx’x
outside business activities, if any, are listed on the schedule attached
to this letter, and none of these outside business activities have
prevented Xxxxx from discharging fully Xxxxx’x employment responsibilities
with Analysts International, and Xxxxx will not used Analysts
International equipment, property or personnel in any of these outside
business activities;
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5.
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Xxxxx
will not use any information or business opportunities which Xxxxx
learns
about in Xxxxx’x capacity as an Analysts International employee, either
for Xxxxx’x benefit or for the benefit of anyone else (by way of example,
Xxxxx will not utilize resumes of prospective Analysts International
employees or requirements for services for Xxxxx’x own benefit or pass
them along to other persons outside of Analysts International for
their
benefit); and
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6.
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Xxxxx
has no information which leads Xxxxx to believe that any other employee
of
Analysts International is or has violated Analysts International
conflict
of interest policies. Xxxxx understands that it is Xxxxx’x responsibility
to report to Analysts International Corporate any information which
suggests that another Analysts International employee has, is or
is about
to violate Analysts International's conflict of interest policies.
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___________________________ _____________________
Xxxxxx
X.
Xxxxx
Date
Received
by Analysts International Legal Department on:
___________________________
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