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EXHIBIT 10.2
NONCOMPETITION, CONFIDENTIALITY, AND
NONDISPARAGEMENT AGREEMENT
This NONCOMPETITION, CONFIDENTIALITY, AND NONDISPARAGEMENT AGREEMENT
(the "Agreement"), made as of August 27, 1998, is by and between SCB Computer
Technology, Inc., a Tennessee corporation (the "Company"), and Xxxxx X. Xxxxx
("White").
WHEREAS, White has been employed by the Company in varying capacities,
including as an executive officer, since 1979, has intimate knowledge of the
Company's policies, processes, plans, models, trade secrets, customers, and
employees, and has the potential to compete with the Company, if he chose to do
so, in a manner that could adversely affect the Company's competitive position;
WHEREAS, simultaneously herewith, White has voluntarily resigned,
subject to this Agreement becoming effective and White receiving payment
hereunder in good funds, from all positions with the Company and its
subsidiaries; and
WHEREAS, White and the Company desire to enter into an agreement to
provide for certain payments to White in consideration for the execution of this
Agreement;
NOW, THEREFORE, in consideration of the mutual promises contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. In consideration for White's obligations under this Agreement, the
Company will pay to White, in the form of a Company check payable to the order
of White, the amount of $980,000, subject to applicable state and federal tax
withholding, on the "Effective Date" (if any) as defined in the Mutual Release
between the Company and White dated August 27, 1998.
2. White agrees that for a period of five years following the date
hereof, he will not, directly or indirectly, within the territorial limits of
the United States of America, without the prior written consent of the Company,
which consent may be withheld in the Company's sole discretion:
(a) own or have a proprietary or equity interest in, be
employed by, or serve as a consultant or advisor to, or in any other capacity
for, any business or firm, that is engaged in the information technology
services business; provided, however, that beneficial ownership by White of less
than 1% of the outstanding capital stock of a publicly-held corporation will not
violate this provision. For purposes of this Agreement, the "information
technology services business" shall include, without limitation: (i) advising
persons on the acquisition and strategic utilization of information technology
systems, planning and designing new information technology systems, and
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redesigning existing information technology systems; (ii) providing network
design and management, systems support and maintenance, programming and
application software development, computer code review, data center management,
and information technology outsourcing services; (iii) recruiting or training
persons with information technology skills; and (iv) leasing information
technology systems and equipment, including computer hardware and software.
(b) recruit or hire or solicit for business any person who,
during the twelve month period preceding the date of recruitment or hiring or
solicitation, was an employee, customer, or client of the Company or any of its
affiliates.
3. White will not, without the prior written consent of the Company,
disclose to any person, directly or indirectly, any confidential information
obtained by him while in the employ of the Company or any of its affiliates with
respect to any of the Company's or any of its affiliates' services, products,
processes, customers, employees, marketing methods, systems, procedures, plans,
proposals, or policies, except as may be required by applicable law or legal
process.
4. Except as may be necessary to comply with the Company's disclosure
obligations, and then only to the extent such information is accurate, each
party agrees that neither party will say, write, or communicate in any manner to
any person or entity any information derogatory, defamatory, or disparaging
about the other party (including, in the case of information regarding the
Company, any of its directors, officers, or other affiliates or its other
employees), regardless of the truth or falsity of such information.
5. White agrees to cooperate with the Company and its affiliates for a
period of two years following the date hereof and to be available during such
period to answer any questions or furnish any information regarding matters that
White handled or of which he has knowledge; provided, that such cooperation does
not unreasonably interfere with White's ability to seek or hold new employment.
6. The Company will continue to indemnify and hold harmless White for
acts or omissions of White prior to the date hereof to the full extent required
or permitted under Tennessee law and the Company's charter and bylaws.
7. The Company and White acknowledge and agree that the restrictions
contained in Sections 2, 3, and 4 of this Agreement are reasonable and necessary
to protect the legitimate interests of the Company, that the violation of these
covenants will result in irreparable injury to the Company, that money damages
for any such violation or threatened violation would be inadequate, and that in
the event of any such breach or violation, the Company, in addition to any other
remedies or damages available to it, will be entitled to temporary injunctive
relief before trial from any court of competent jurisdiction as a matter of
course and to permanent injunctive relief without the necessity of proving
actual damages.
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8. If any provision of this Agreement is declared or found to be
illegal, unenforceable, or void, in whole or in part, then both parties shall be
relieved of all obligations arising under such provision, but only to the extent
such provision is illegal, unenforceable, or void, it being the intent and
agreement of the parties that this Agreement shall be deemed amended by
modifying such provision to the extent necessary to make it legal and
enforceable while preserving its intent or, if such is not possible, by
substituting therefor another provision that is legal and enforceable and
achieves the same objectives. The foregoing notwithstanding, if the remainder of
this Agreement shall not be affected by such declaration or finding and is
capable of substantial performance, then each provision not so affected shall be
enforced to the extent permitted by law.
9. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective heirs, successors, and assigns.
10. This Agreement may be executed in counterparts, all of which taken
together will constitute but a single document.
11. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Tennessee, without giving effect to the choice of
law principles thereof.
IN WITNESS WHEREOF, the undersigned have executed this Agreement to be
effective on the Effective Date referenced in Section 1 hereof.
SCB COMPUTER TECHNOLOGY, INC.
By: /s/ Xxx X. Xxxxxx
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Title: President
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/s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
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