EXHIBIT B
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NON-COMPETITION AGREEMENT
This NON-COMPETITION AGREEMENT (the "Agreement") is made and entered
into as of ______, 2002 by and between Rainmaker Software, Inc., a Delaware
corporation (the "Purchaser") and Xxxxx X. Xxxxxxxx, an individual residing at
00 Xxxxxxxxxx Xxx, Xxxxxx, Xxxxx 00000 ("Xxxxxxxx"). This Agreement is being
entered into pursuant to Section 6.11 of that certain Agreement and Plan of
Merger dated as of January 3, 2002 (the "Merger Agreement") by and among the
Purchaser, ASA International Ltd. and CompuTrac, Inc. (the "Company"). For
purposes of this Agreement, the business conducted by each of the Purchaser, the
Company and ASA International Ltd., consisting primarily of selling software and
related equipment and services to law firms and other providers of legal
services, is sometimes hereinafter referred to as the "Business". Capitalized
terms used but not otherwise defined herein shall have the meanings set forth in
the Merger Agreement.
Xxxxxxxx agrees that for a period of three (3) years from the date
hereof, Xxxxxxxx shall not directly or indirectly, whether for himself or any
company or entity by which he may be employed or with which he is otherwise
affiliated:
(a) Call upon, divert, influence or solicit, or attempt to call
upon, divert, influence or solicit any employee or customer
of the Business;
(b) Divulge any names and addresses of or any information
concerning any employee or customer of the Business, except as
personal references for Xxxxxxxx under such circumstances as
would not reasonably be expected to have a material adverse
effect on the Business;
(c) Disclose any information or knowledge relating to the
Business that is not in the public domain, including but not
limited to methods of conducting the Business, to any person,
persons, firms, corporations, or other entities unaffiliated
with the Company or the Purchaser for any reason or for any
purpose whatsoever;
(d) Carry on, or own, manage, operate, control, be employed
by, at any level, participate in or be connected in any manner
with any person, firm or corporation that carries on, business
in direct competition with the Business. For the purpose of
this agreement, the term "in direct competition" shall mean
any person, firm or corporation selling software to law firms,
lawyers, in-house legal departments and other providers of
legal services; or
(e) Hire, solicit for employment, or engage as a consultant,
directly or indirectly, any individual who is, or has been
within the preceding twelve months, an employee of or
consultant to either the Purchaser or the Company.
The restrictive covenants contained herein are intended to apply throughout the
world.
Xxxxxxxx acknowledges that the restrictions contained herein, in view
of the nature of the business in which the Purchaser is engaged, are reasonable
and necessary in order to protect the legitimate interests of the Purchaser, and
that any violation thereof could result in irreparable injuries to the
Purchaser. Xxxxxxxx acknowledges that, in the event of a breach or threatened
breach of the restrictions herein, the Purchaser shall be entitled to obtain
from any court of competent jurisdiction, preliminary and permanent injunctive
relief restraining Xxxxxxxx from any violation of the foregoing.
Nothing herein shall be construed as prohibiting the Purchaser from
pursuing any other remedies available for such breach or threatened breach,
including recovery of damages and an equitable accounting of all earnings,
profits and other benefits arising from such violation, from Xxxxxxxx.
Xxxxxxxx acknowledges its intention that the Purchaser shall have the
broadest possible protection of the value of the business of Purchaser in the
trade area set forth above consistent with public policy, and it will not
violate the intent of the parties if any court of competent jurisdiction should
determine, in an appropriate decree, that, consistent with established precedent
of the forum state, the public policy of such state requires a more limited
restriction in geographical area or duration of the aforesaid covenant.
As full consideration for Xxxxxxxx entering into and agreeing to be
bound by the provisions of this Agreement, upon the execution hereof the
Purchaser shall pay to Xxxxxxxx the sum of $275,000.
This Agreement shall be enforceable against and inure to the benefit of
the successors and assigns of the Purchaser and shall be enforceable against and
inure to the benefit of the successors and assigns of the Margolis. Xxxxxxxx
acknowledges that his execution of this Agreement is a condition precedent to
the Closing of the Merger, and that the Purchaser is relying upon this Agreement
in entering into and completing the transactions contemplated by the Merger
Agreement.
This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware without regard to its conflicts of law rules.
This Agreement may be executed in one or more counterparts, each of
which shall be an original, but which together shall constitute one and the same
instrument.
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IN WITNESS WHEREOF, the Purchaser and Xxxxxxxx have each caused this
instrument to be signed in its name by its duly authorized officer to be
effective as of the date first above written.
RAINMAKER SOFTWARE, INC.
By: ____________________________
Name: ____________________________
Title: ____________________________
____________________________
XXXXX X. XXXXXXXX
