AGREEMENT
This Agreement made and entered into this ______ day of
___________, 1997, by and between XXXXXX XXXXX (hereinafter
referred to as "Owner") and XXXXXXX COMPUTER RESOURCES, INC., a
Delaware corporation (hereinafter referred to as "Purchaser").
W I T N E S S E T H :
WHEREAS, simultaneously with the execution of this Agreement,
Purchaser entered into an Asset Purchase Agreement ("Asset
Purchase Agreement") with Magic Box, Inc., a Florida corporation
(hereinafter referred to as "Seller" ), for the acquisition of
substantially all of Seller's assets relating to its business of
providing micro-computer products and computer integration and
networking services to customers in southern Florida (the
"Business"); and
WHEREAS, Owner owns forty percent (40%) percent of the
outstanding stock of Seller; and
WHEREAS, Purchaser would not have entered into the Asset Purchase
Agreement with Seller without the consent of Owner to enter into
this covenant not to compete agreement; and
WHEREAS, pursuant to Sections 8 and 13.2(d)(vii) of said Asset
Purchase Agreement, Owner agreed to enter into this Agreement;
NOW, THEREFORE, in consideration of the mutual promises and
covenants herein contained and in consideration of the execution
and closing of the Asset Purchase Agreement, the parties hereto
agree as follows:
1. As an inducement for Purchaser to enter into the Asset
Purchase Agreement with Seller (40% of the stock of which is
owned by Owner), Owner covenants and agrees that for a period
equal to the later of (i) three (3) years from the closing of the
Asset Purchase Agreement of even date herewith, or (ii) one (1)
year after the termination of Owner's employment with Purchaser
under an Employment Agreement executed by and between Owner and
Purchaser of even date herewith (except that if Owner is
terminated from employment by the Purchaser without cause during
the term of his Employment Agreement with Purchaser of even date,
or if the Employment Agreement is terminated by the Owner for
Good Reason as defined therein, then the term of this Agreement
shall be for a period equal to three (3) years from the closing
date of the Asset Purchase Agreement), Owner will not, or with
any other person, corporation or entity, directly or indirectly,
by stock or other ownership, investment, management, employment
or otherwise, or in any relationship whatsoever:
(a) Solicit, divert or take away, or attempt to solicit,
divert or take away, any of the business, clients, customers or
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patronage of Purchaser or any affiliate or subsidiary thereof
relating to the Business of Purchaser, as defined below;
(b) Attempt to seek or cause any clients or customers of
Purchaser or any such affiliate or subsidiary relating thereto to
refrain from continuing their patronage of the Business of
Purchaser;
(c) Engage in the Business of Purchaser in any state in
which Purchaser or its subsidiaries do business during the term
of this Agreement. A list of the states in which Purchaser and
its subsidiaries currently transact business is attached hereto
as Exhibit A;
(d) Knowingly employ or engage, or attempt to employ or
engage, in any capacity, any person in the employ of the
Purchaser or any affiliate or subsidiary;
(e) Nothing in this Agreement shall prohibit Owner from
owning stock in a computer-based training services business known
as Ace Education, Inc.
For purposes of this Section, the "Business of Purchaser"
shall mean any person, corporation, partnership or other legal
entity engaged, directly or indirectly, through subsidiaries or
affiliates, in the following line of business:
(i) Distributing of computer hardware, software, peripheral
devices, and related products and services to other entities or
persons engaged in any manner in the business of the
distribution, sale, resale or servicing, whether at the wolesale
or retail level, or leasing or renting, of computer hardware,
software, peripheral devices or related products;
(ii) Sale or servicing, whether at the wholesale or retail
level, or leasing or renting, of computer hardware, software,
peripheral devices or related products; and
(iii) Sale or servicing of microcomputer products and
computer integration products, peripheral devices and related
products and the sale of microcomputer products and computer
integration and networking services.
Owner has carefully read all the terms and conditions of
this Paragraph 1 and has given careful consideration to the
covenants and restrictions imposed upon Owner herein, and agrees
that the same are necessary for the reasonable and proper
protection of the Seller's Business acquired by Purchaser and
have been separately bargained for and agrees that Purchaser has
been induced to enter into the Asset Purchase Agreement and pay
the consideration described in Paragraph 2 by the representation
of Owner that he will abide by and be bound by each of the
covenants and restrictions herein; and Owner agrees that
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Purchaser is entitled to injunctive relief in the event of any
breach of any covenant or restriction contained herein in
addition to all other remedies provided by law or equity. Owner
hereby acknowledges that each and every one of said covenants and
restrictions is reasonable with respect to the subject matter,
the line of business, the length of time and geographic area
embraced therein, and agrees that irrespective of when or in what
manner this agreement may be terminated, said covenants and
restrictions shall be operative during the full period or periods
hereinbefore mentioned and throughout the area hereinbefore
described.
The parties acknowledge that this Agreement is being entered
into to protect a legitimate business interest of Purchaser
including, but not limited to, (i) trade secrets; (ii) valuable
confidential business or professional information that otherwise
does not qualify as trade secrets; (iii) substantial
relationships with specific prospective or existing customers or
clients; (iv) client or customer good will associated with an
ongoing business by way of trade name, trademark, service xxxx,
or trade dress, a specific geographic location, or a specific
marketing or trade area; and (v) extraordinary or specialized
training. In the event that any provision or portion of this
Paragraph 1 shall for any reason be held invalid or
unenforceable, it is agreed that the same shall not affect the
validity or enforceability of any other provision of Paragraph 1
of this Agreement, but the remaining provisions of Paragraph 1 of
this Agreement shall continue in force and effect; and that if
such invalidity or unenforceability is due to the reasonableness
of the line of business, time or geographical area covered by
certain covenants and restrictions contained in Paragraph 1, said
covenants and restrictions shall nevertheless be effective for
such line of business, period of time and for such area as may be
determined by arbitration or by a Court of competent jurisdiction
to be reasonable.
Notwithstanding anything to the contrary herein, the terms
of this non-competition agreement shall be null, void and of no
force and effect against Owner if there is an uncured Event of
Default under the promissory note executed by Purchaser in favor
of Seller.
2. The consideration for Owner's covenant not to compete shall
be One Dollar ($1.00) and other valuable consideration, including
consideration paid by the Purchaser to Seller pursuant to an
Asset Purchase Agreement to which Owner is a party of even date
herewith.
3. The terms and conditions of this Agreement shall be binding
upon the Owner and Purchaser, and their successors, heirs and
assigns.
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IN WITNESS WHEREOF, the parties hereto have executed this Agree-
ment on the day and year first above written.
OWNER
_____
__________________________________
XXXXXX XXXXX
PURCHASER
_________
XXXXXXX COMPUTER RESOURCES, INC.
By:________________________________
-
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EXHIBIT A
STATES IN WHICH PURCHASER
AND/OR ITS SUBSIDIARIES TRANSACT BUSINESS
1. Alabama
2. Florida
3. Indiana
4. Iowa
5. Kentucky
6. North Carolina
7. Ohio
8. South Carolina
9. Tennessee
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