AGREEMENT
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This Agreement made and entered into this _____ day of August 1999, by and
between XXXXXX X. XXXXXXXXX (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 a Stock Purchase Agreement ("Stock Purchase Agreement") with Owner and
XXXXXX XXXX (hereinafter referred to collectively as the Shareholders) for the
acquisition by Purchaser of one hundred percent (100%) of the outstanding
capital shares in ACME DATA SYSTEMS, INC., an Ohio corporation (Company); and
WHEREAS, immediately prior to the closing date (as defined in the Stock Purchase
Agreement), Owner owned twenty-five (25) shares of the outstanding capital stock
of Company; and
WHEREAS, Purchaser would not have entered into the Stock Purchase Agreement with
all of the Shareholders without the consent of Owner to enter into this covenant
not to compete agreement; and
WHEREAS, pursuant to Article VII of said Stock 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 Stock
Purchase Agreement, the parties hereto agree as follows:
1. As an inducement for Purchaser to enter into the Stock Purchase Agreement
with the Shareholders, Owner covenants and agrees that for a period equal to the
later of four (4) years from the closing of the Stock Purchase Agreement of even
date or one (1) year after the termination of Owners employment with Purchaser
pursuant to the terms of an Employment Agreement of even date, Owner will not,
or with any other person, corporation or entity, directly or indi-rectly, by
stock or other ownership, investment, management, employment or otherwise, or in
any relation-ship whatsoever:
(a) Solicit, divert or take away or attempt to solicit, divert or take
away, any of the business, clients, customers or patronage of Purchaser or any
affiliate or subsidiary thereof relating to the Business of Purchaser, as
defined below; or
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(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; or
(c) Engage in the Business of Purchaser in any state in which Purchaser
or its subsidiaries has an office 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; or
(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 or
purchasing less than five percent (5%) of the outstanding stock of any
publicly-traded company whose stock is traded on a nationally or regionally
recognized stock exchange or is quoted on NASDAQ or the OTC bulletin board or
from taking any action described in items 1(b)-(d) above for the benefit of or
on behalf of Purchaser or any of its subsidiaries.
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 wholesale 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;
(iii) Sale, servicing or supporting of microcomputer products and
microcomputer support solutions and computer integration products, peripheral
devices and related products, and the sale of networking services; and
(iv) Any other business activity which can reasonably be determined to
be competitive with the principal business activity being engaged in by
Purchaser or any of its subsidiaries.
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 Owner's Business acquired by Purchaser and have been
separately bargained for and agrees that Purchaser has been induced to enter
into the Stock Purchase Agree-ment and pay the consideration described in
Paragraph 2 by the represen-tation of Owner that he will abide by and be bound
by each of the covenants and restrictions herein; and Owner agrees that
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 length of time and geographic area embraced therein, and agrees that
irrespec-tive 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, which Agreement is ancillary
to the main thrust of the Stock Purchase Agreement, is being entered into to
protect the legitimate business interests 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 on-going business
by way of trade name, trademark, or service xxxx, 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 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 pro-visions of Paragraph 1 of
this Agreement shall continue in force and effect; and that if such invalidity
or unenforceability is due to the reason-ableness 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 deter-mined by
arbitration or by a Court of competent jurisdiction to be reasonable.
2. The consideration for Owner's covenant not to compete shall be One Dollar
($1.00) and other valuable consideration, including the consideration paid by
the Purchaser to Owner pursuant to an Stock Purchase Agreement.
3. The terms and conditions of this Agreement shall be binding upon the
Owner and Purchaser, and their successors, heirs and assigns.
4. This Agreement shall be construed in accordance with and governed by the
laws of the State of Ohio.
IN WITNESS WHEREOF, the parties hereto have executed this Agree-ment on the day
and year first above written.
__________________________________
XXXXXX X. XXXXXXXXX
XXXXXXX COMPUTER RESOURCES, INC.
By:________________________________
XXXXXXX X. XXXXXXX, Chief Financial Officer
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EXHIBIT A
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STATES IN WHICH XXXXXXX
AND/OR ITS PARENT CORPORATION
AND/OR SUBSIDIARIES TRANSACT BUSINESS
1. Alabama
2. Arkansas
3. Florida
4. Georgia
5. Indiana
6. Illinois
7. Iowa
8. Kentucky
9. Mississippi
10. North Carolina
11. Ohio
12. Oklahoma
13. Pennsylvania
14. South Carolina
15. Tennessee
16. Texas
17. Virginia
18. West Virginia
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