EXHIBIT
10.64
NON-COMPETE AND
NON-SOLICITATION AGREEMENT
This NON-COMPETE AND NON-SOLICITATION
AGREEMENT (the “ Agreement” )
is made and entered into this 7th day of December, 2005, by and
between STRATUS SERVICES GROUP, INC. , a Delaware
company ( “ Stratus ”
) and SOURCE ONE PERSONNEL,
INC. , a New Jersey corporation (“Source
One”).
RECITALS:
WHEREAS, Source One and Stratus have executed an
Asset Purchase Agreement whereby Source One has purchased a portion
of Stratus’ business as more particularly described in the
Asset Purchase Agreement (the “Purchased Business”);
and
WHEREAS, Stratus has retained that portion of
its business other than the Purchased Business (the “Retained
Business”), which includes nationwide customers and accounts;
and
WHEREAS, Stratus possesses substantial
information and knowledge regarding the Purchased Business;
and
WHEREAS, the parties desire to enter into an
agreement whereby Stratus agrees not to compete with Source One
relating to the Purchased Business.
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:
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1.
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Confidentiality and Trade
Secrets
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(a) Stratus acknowledges that it has had access to
Confidential Information concerning the Purchased 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 Stratus
with a competitive edge and none of which is readily available
except to Stratus and Source One.
(b) 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 in connection with the Purchased
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 Stratus with
a competitive edge and none of which is readily available except to
Stratus and Source One.
(c) Stratus agrees that all of the Confidential
Information, including, but not limited to the information
described in Sections 1(a) and (b), constitutes valuable and
proprietary trade secrets and confidential information of Source
One.
(d) “Confidential Information” means
any proprietary information, technical data, trade secrets or
know-how, including, but not limited to, research, product plans,
products, services, customer lists and customers, software,
developments, inventions, processes, technology, designs, drawings,
hardware and software configuration information, marketing,
financial or other business information relating to the Purchased
Business, including the terms of the Asset Purchase Agreement and
this Agreement. Confidential Information may also include
proprietary information, trade secrets or know-how received in
confidence from third parties.
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2.
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Non-Competition Agreement
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Stratus agrees, on its own behalf and on behalf
of its affiliates, that neither it nor any affiliate will, during
the two (2) year period commencing with the Effective Date of the
Asset Purchase Agreement (“Restrictive Period”),
directly or indirectly, own, manage, control, join, operate,
perform, finance, participate in, permit their names to be used in
connection with, or otherwise be engaged in a business that
competes with the Purchased Business. Stratus acknowledges that
doing so in any manner would interfere with, diminish and otherwise
jeopardize and damage the business and goodwill of the Purchased
Business. For purposes of this Section 2, “participate”
includes any direct or indirect interest in any enterprise, whether
as a stockholder, partner, joint ve
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