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Exhibit 10.2
NON-COMPETITION AGREEMENT
This Non-Competition Agreement (this "Agreement") is dated as of July
30, 1999 by and among SEEC, Inc., a Pennsylvania corporation ("SEEC"), and Xxxx
X. Xxxxxxx ("Xxxx") and Xxx X. Xxxxxxx ("Xxx"), both individuals residing in the
state of California. Xxxx and Xxx are referred to collectively herein as the
"Controlling Shareholders."
RECITALS
A. The Controlling Shareholders hold substantially all of the
outstanding capital stock of Mozart Systems Corporation, a California
corporation ("Mozart").
B. SEEC and Mozart have entered into an Agreement and Plan of Merger
dated as of July 16, 1999 (the "Merger Agreement") pursuant to which all the
capital stock of Mozart outstanding immediately prior to the Merger (as defined
therein) shall be converted into the right to receive the consideration
described in the Merger Agreement, and a wholly-owned subsidiary of SEEC wiill
be merged with and into Mozart.
C. As an inducement to SEEC to enter into the Merger Agreement, and to
consummate the transactions contemplated by the Merger Agreement and in order to
preserve the value of the business and goodwill of Mozart, the Controlling
Shareholders have agreed to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual promises, terms, provisions and conditions set forth in this Agreement,
the parties hereto agree as follows:
1. Definitions. Terms defined in the Merger Agreement and not otherwise
defined herein are used herein as so defined.
2. Covenant Not To Compete.
2.1 Non-Compete. The Controlling Shareholders each covenant and
agree that for two (2) years following the Effective Time, the Controlling
Shareholders shall not, directly or indirectly, as principal, partner, agent,
servant, employee, shareholder, or otherwise, anywhere in the world, engage or
attempt to engage in any business activity competitive with the business
conducted as of the Effective Time by Mozart. The foregoing shall not prohibit
the Controlling Shareholders or their children from owning beneficially (i) any
security, so long as the beneficial ownership by them, when combined with the
beneficial ownership of such security of any group (as the term is used in
Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) of which
any of them is a member constitutes (x) less than, in the case of publicly
traded securities, one percent (1%) of the class of such security, or (ii) any
shares in an "investment company" (as defined in the Investment Company Act of
1940, as amended).
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2.2 Non-Solicit. The Controlling Shareholders each agree that for a
period of two (2) years following the Effective Time, the Controlling
Shareholders shall not: (i) solicit, encourage, or take any other action which
is intended to induce any employee of SEEC or Mozart to terminate his or her
employment with SEEC or Mozart, as the case may be; or (ii) knowingly and
intentionally interfere in any manner with the contractual or employment
relationship between SEEC or Mozart and any employee, supplier or customer of
SEEC or Mozart.
2.3 Reasonableness of Restrictions. The Controlling Shareholders
each recognize that the consideration to be paid and all other obligations of
SEEC to be performed pursuant to the Merger Agreement are intended to secure the
Controlling Shareholders' agreement to the conditions of this Agreement, and the
Controlling Shareholders each recognize that the scope of the restrictions and
the foregoing territorial and time limitations are reasonable and properly
required for the adequate protection of the business of SEEC and its
subsidiaries and affiliates, including, following the Effective Time, Mozart,
and that in the event the foregoing restrictions are deemed to be unreasonable
for any reason by any tribunal having jurisdiction, the Controlling Shareholders
each agrees to request, and to submit to, a narrowing of the scope of the
foregoing restrictions or the reduction of either said territorial or time
limitation to such an area or period as shall be deemed reasonable by such
tribunal.
3. Injunctive and Other Relief. The Controlling Shareholders each agree
that a remedy at law for any breach of the provisions of Section 2 hereof may be
inadequate and that SEEC shall be entitled to injunctive relief, in addition to
any other remedy it might have in the event of breach or threatened breach of
the provisions of Section 2 of this Agreement.
4. Assignment. Neither SEEC nor either of the Controlling Shareholders
may make any assignment of this Agreement or any interest herein, by operation
of law or otherwise, without the prior written consent of the other; provided,
however, that SEEC may assign its rights and obligations under this Agreement
without the consent of the Controlling Shareholders to any entity to which SEEC
transfers all or substantially all of its properties or assets. This Agreement
shall inure to the benefit of and be binding upon SEEC and the Controlling
Shareholders, their respective successors, executors, administrators, heirs and
permitted assigns.
5. Severability. If any term or provision of this Agreement shall
become or be declared illegal, invalid or unenforceable, such term or provision
shall be divisible from this Agreement and shall be deemed to be deleted from
this Agreement, provided that if such deletion substantially affects or alters
the commercial basis of this Agreement the parties shall negotiate in good faith
to amend and modify the terms and provisions of this Agreement to give effect to
the original intent of the parties.
6. Waiver. No waiver of any provision hereof shall be effective unless
made in writing and signed by the waiving party. The failure of either party to
require the performance of any term or obligation of this Agreement, or the
waiver by either party of any breach of this Agreement, shall not prevent any
subsequent enforcement of such term or obligation or be deemed a waiver of any
subsequent breach.
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7. Notices. Any and all notices, requests, demands and other
communications provided for by this Agreement shall be in writing and shall be
effective when delivered in person to the Controlling Shareholders at each of
the Controlling Shareholders' last known address on the books of SEEC or, in the
case of SEEC, at its principal place of business, attention to President, or to
such other address as either party may specify by notice to the other.
8. Termination. If, prior to the Effective Time, the Merger Agreement
shall be terminated or if, after the Effective Time, Alan's employment is
terminated by Mozart without Good Cause, or by Xxxx for Good Reason (both as
defined in the Employment Agreement attached as Exhibit B to the Merger
Agreement), this Agreement shall automatically terminate and be without further
force or effect.
9. Miscellaneous. This Agreement constitutes the entire agreement
between the parties and supersedes all prior communications, agreements and
understandings, written or oral, with respect to the subject matter hereof. This
Agreement may be amended or modified only by a written instrument signed by the
Controlling Shareholders and by an expressly authorized representative of SEEC.
The headings and captions in this Agreement are for convenience only and in no
way define or describe the scope or content of any provision of this Agreement.
This Agreement may be executed in two or more counterparts, each of which shall
be an original and all of which together shall constitute one and the same
instrument. This Agreement shall be construed and enforced under and be governed
in all respects by the laws of the State of California, without regard to the
conflict of laws principles thereof.
IN WITNESS WHEREOF, this Agreement has been executed by SEEC, by its
duly authorized representative, and by the Controlling Shareholders, as of the
date first above written.
/s/ Xxxx X. Xxxxxxx SEEC, INC.
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Xxxx X. Xxxxxxx
By: /s/ Xxxxxxxx Xxxx
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/s/ Xxx X. Xxxxxxx Title: President & CEO
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Xxx X. Xxxxxxx
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