Exhibit (d)(5)
NONCOMPETITION AGREEMENT
THIS NONCOMPETITION AGREEMENT (this "Agreement") is made and entered
into this 28th day of February, 2002, by and among IM Acquisition, Inc., a
Delaware corporation ("IntelliMark"), Technisource, Inc., a Florida corporation
("Technisource"), and Xxx Xxxxxxx ("Stockholder").
RECITALS
WHEREAS, Technisource is engaged in the business of providing
information technology staffing services, solutions services, and computer
hardware sales and services (the "Business"); and
WHEREAS, IntelliMark and Technisource have entered into that certain
Letter Agreement (the "Letter") dated as of February 18, 2002 setting forth
certain binding and nonbinding terms under which IntelliMark, or one of its
wholly owned subsidiaries or affiliates, would acquire through a tender offer
all of the outstanding common stock of Technisource, subject to the conditions
set forth in the Letter and the terms, provisions and conditions that would be
set forth in the Definitive Agreement between IntelliMark and Technisource; and
WHEREAS, Stockholder owns an equity interest in Technisource and as a
material inducement to IntelliMark to proceed with due diligence and to
consummate the Proposed Transaction, subject to the conditions set forth in the
Letter and the terms, provisions and conditions that would be set forth in a
definitive written agreement, Stockholder has agreed to enter into this
Agreement; and
WHEREAS, The parties hereto intend that any capitalized terms in this
Agreement and not otherwise defined herein shall have the meanings ascribed
thereto in the Letter.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing premises and the
representations, warranties, covenants and agreements contained herein and other
good and valuable consideration, the receipt and sufficiency of which the
parties hereby acknowledge, the parties hereto agree as follows:
1. Noncompetition Restrictions. Stockholder agrees that during the
period that ends on two (2) years from the date of the Closing, Stockholder will
not, directly or indirectly:
(a) engage or participate in any way, as an owner, officer, partner,
member, employee, agent, independent contractor, board member, stockholder or
otherwise, in any activities competitive with or directly or indirectly related
to the Business anywhere within fifty (50) miles of any office in which as of
the Closing Technisource or its subsidiaries conduct their businesses; provided,
however,
that (i) providing software and development services by consultants or other
individuals employed outside the United States or (ii) providing training and
management services by certified project managers shall not be deemed to be
competitive activities; for example, and without limiting or enlarging the
foregoing, Stockholder may, without violating Section 1(a) of this Agreement,
but subject to the restrictions contained in Section 1(b) of this Agreement,
employ individuals based outside the United States for the purpose of providing
solutions services (e.g., software development, help desk, etc.) to U.S. and
non-U.S. customers.
(b) without the prior written consent of the CEO of IntelliMark (which
shall not be unreasonably withheld), either on his or her own account or for any
person, firm, partnership, corporation, limited liability company, or other
entity: (i) solicit, interfere with, or endeavor to cause any employee or
consultant of Technisource or any of its affiliates to leave his or her
employment or consultant status, as applicable; or (ii) induce or attempt to
induce any such employee or consultant to breach his or her employment agreement
or consulting agreement, as applicable, with Technisource or any of its
affiliates;
(c) without the prior written consent of the CEO of IntelliMark (which
shall not be unreasonably withheld), directly or indirectly solicit, induce, or
attempt to induce any customer of Technisource as of the Closing: (i) to cease
doing business in whole or in part with or through Technisource or any of its
affiliates; or (ii) to do business with any other person, firm, partnership,
corporation, limited liability company, or other entity; and
(d) notwithstanding items (a) through (c) of this Section 1, ownership
of less than three percent (3%) of a class of equity securities issued by any
competitor of IntelliMark listed on any national securities exchange or
interdealer quotation system shall not be deemed a violation of items (a) - (c)
of Section 1.
If the final judgment of a court of competent jurisdiction declares
that any term or provision of this Section 1 is invalid or unenforceable, the
parties agree that the court making the determination of invalidity or
unenforceability shall have the power to reduce the scope, duration, or area of
the term or provision, to delete specific words or phrases, or to replace any
invalid or unenforceable term or provision with a term or provision that is
valid and enforceable and that comes closest to expressing the intention of the
invalid or unenforceable term or provision, and this Agreement shall be
enforceable as so modified after the expiration of the time within which the
judgment may be appealed.
In those instances in which the consent of the CEO of IntelliMark is
required hereunder, such consent or refusal to consent, as the case may be,
shall be provided to Stockholder no later than fifteen (15) days following
IntelliMark's receipt of Stockholder's written request for consent setting forth
his basis for such request.
2. Confidentiality. Stockholder agrees to keep secret and confidential,
and not to use or disclose directly or indirectly to any third parties, any of
Technisource's or IntelliMark's proprietary
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trade secret information or other confidential business information concerning
the Business. In addition to any common law or statutory restrictions upon
Stockholder's use, disclosure or exploitation of confidential, proprietary or
secret information of Technisource or IntelliMark, Stockholder agrees that he
will not, directly or indirectly, use for himself or use for, or disclose to,
any party other than Technisource or IntelliMark, any secret, proprietary or
confidential information or data regarding the Business, including, but not
limited to, business or trade secrets, price lists, methods, know-how, customer
identities, customer lists, marketing plans, and financial information.
Notwithstanding the foregoing and any other provision of this Agreement to the
contrary, nothing in this Agreement shall prohibit or restrict Stockholder from
using for himself or for any third party entity with which Stockholder is
affiliated, any information in Stockholder's possession, including proprietary
trade secret information and other confidential business information concerning
the Business, to engage in business activities that are not prohibited under
Section 1 of this Agreement.
3. Third Party Beneficiaries. Stockholder acknowledges and agrees that
any Person or entity directly or indirectly controlling, controlled by or under
direct or indirect common control with IntelliMark is a third party beneficiary
of this Agreement and shall have any and all rights as set forth in Section 5 of
this Agreement.
4. Non-Waiver of Rights. Technisource's or IntelliMark's failure to
enforce at any time any of the provisions of this Agreement or to require at any
time performance by Stockholder of any of the provisions or to affect either the
validity of this Agreement, or any party hereof, or the right of Technisource or
IntelliMark thereafter to enforce each and every provision in accordance with
the terms of this Agreement.
5. IntelliMark's and Technisource's Right to Injunctive Relief. In the
event of a breach or threatened breach of any of the duties and obligations of
Stockholder under this Agreement, Technisource or IntelliMark shall be entitled,
in addition to any other legal or equitable remedies they may have in connection
therewith (including any right to damages that Technisource or IntelliMark may
suffer), to a temporary, preliminary and/or permanent injunction restraining
such breach or threatened breach. Stockholder specifically agrees that, in the
event there is a question as to the enforceability of Section 1 hereof,
Stockholder will not engage in any conduct inconsistent with or contrary to that
Section until after the question has been resolved by a final judgment of a
court of competent jurisdiction. Neither IntelliMark or Technisource shall
commence an action against Stockholder for breach hereof unless Stockholder has
substantially failed to remedy such breach within fifteen (15) days following
Stockholder's receipt of written notice from IntelliMark or Technisource
demanding that he remedy such breach.
6. Invalidity of Provisions. In the event that any provision of this
Agreement is adjudicated to be invalid or unenforceable under applicable law,
the validity or enforceability of the remaining provisions shall be unaffected.
To the extent that any provision of this Agreement is adjudicated to be invalid
or unenforceable because it is overbroad, that provision shall not be void but
rather shall be limited only to the extent required by applicable law and
enforced as so limited.
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7. Assignment. This Agreement shall be freely assignable by
Technisource or IntelliMark to, and shall inure to the benefit of, any other
corporate entity that shall succeed to all or a portion of the Business
presently being conducted by Technisource or IntelliMark.
8. Choice of Forum and Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of Delaware.
9. Representations of Stockholder. Stockholder represents that the
execution and delivery of this Agreement does not violate any other contractual
obligation of Stockholder. Stockholder further agrees to defend, indemnify and
hold harmless Technisource and IntelliMark against all adverse consequences
suffered or incurred as a result of any violation of its or his respective
representations contained in this Section 9.
10. Right to Recover Costs. In the event of breach of the Agreement by
any party, the prevailing party shall be entitled to recover all reasonable
attorneys' fees and costs incurred in connection with enforcing its rights
hereunder.
11. Amendments. No modification, amendment or waiver of any of the
provisions of this Agreement shall be effective unless in writing specifically
referring hereto and signed by the parties hereto. Stockholder agrees to execute
amendments to this Agreement which counsel for IntelliMark and Technisource deem
reasonably necessary for this Agreement to conform with the provisions of the
Definitive Agreement, but which do not materially change Stockholder's
obligations hereunder.
12. Tolling. Stockholder acknowledges and agrees that the running of
the time period in Section 1 shall be tolled with respect to Stockholder during
any period in which Stockholder violates that Section.
13. Rule of Construction. The rule of construction to the effect that
ambiguities are to be resolved against the drafting party shall not be employed
in interpreting this Agreement.
14. Headings. Section headings are provided in this Agreement for
convenience only and shall not be deemed to substantively alter the content of
such sections.
15. Counterparts. This Agreement may be executed simultaneously in
multiple counterparts (including execution by facsimile), each of which shall be
deemed an original, but all of which taken together shall constitute one and the
same instrument.
PLEASE NOTE: BY SIGNING THIS AGREEMENT, STOCKHOLDER IS HEREBY
CERTIFYING THAT IT, HE OR SHE: (A) RECEIVED A COPY OF THIS AGREEMENT
FOR REVIEW AND STUDY BEFORE EXECUTING IT; (B) READ THIS AGREEMENT
CAREFULLY BEFORE SIGNING IT; (C) HAD SUFFICIENT OPPORTUNITY BEFORE
SIGNING THE AGREEMENT TO ASK
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ANY QUESTIONS IT, HE OR SHE HAD ABOUT THE AGREEMENT AND RECEIVED
SATISFACTORY ANSWERS TO ALL SUCH QUESTIONS; (D) HAS RECEIVED THE ADVICE
OF COUNSEL WITH RESPECT TO THIS AGREEMENT; AND (E) UNDERSTANDS ITS OR
HIS OR HER RIGHTS AND OBLIGATIONS UNDER THIS AGREEMENT.
16. No Obligation to Proceed with the Proposed Transaction. Nothing
herein shall obligate IntelliMark or Technisource to proceed with the Proposed
Transaction or the Closing. If within ninety (90) days of the date hereof
IntelliMark and Technisource have not entered into the Definitive Agreement,
this Agreement shall terminate ab initio, and IntelliMark, Technisource and
Stockholder shall have no rights or obligations hereunder; provided, however,
that this Agreement may be extended by the mutual agreement of IntelliMark,
Technisource and the Stockholder.
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IN WITNESS WHEREOF, the parties have executed this Agreement to be
effective as of the date first above written.
IM ACQUISITION, INC.
By: /s/ Xxxxx X. Xxxxxx
_________________________
Print Name: Xxxxx X. Xxxxxx
__________________
Title: Secretary
_______________________
TECHNISOURCE, INC.
By: /s/ C. Xxxxxxx Xxxxx
___________________________
Print Name: C. Xxxxxxx Xxxxx
___________________
Title: Chief Executive Officer
________________________
STOCKHOLDER
/s/ Xxx Xxxxxxx
___________________________
Xxx Xxxxxxx
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