1
EXHIBIT 10.3
NON-COMPETITION AGREEMENT
THIS NON-COMPETITION AGREEMENT (the "Agreement") is made and entered
into as of August 4, 2000, by and between Xxxxx Xxxxxx (the "Shareholder"), who
constitutes the record and/or beneficial owner of all of the issued and
outstanding capital stock of MicroBiz, Inc. a New York corporation ("MicroBiz
"), and CAM Commerce Solutions, Inc., a Delaware corporation (the "Buyer"),
which this day is purchasing all of the outstanding shares of MicroBiz's capital
stock (the "Shares") for the purpose of continuing to engage in the conduct of
MicroBiz 's business and operations from and after the date hereof.
R E C I T A L S:
----------------
WHEREAS, the Shareholder, on the one hand, and Buyer, on the other
hand, have entered into that certain Agreement for Purchase and Sale of Stock,
dated as of August ___, 2000 (the "Purchase Agreement"), which provides, among
other things, for the purchase by Buyer of all of the Shares of MicroBiz;
WHEREAS, the execution and delivery of this Agreement by the
Shareholder is a condition precedent to the obligation of Buyer to consummate
the transactions contemplated by the Purchase Agreement;
WHEREAS, the Shareholder will receive substantial consideration as a
consequence of the purchase and sale of the Shares of MicroBiz; and
WHEREAS, the Shareholder, as a principal shareholder and as an
executive officer and director of MicroBiz , possesses confidential and
proprietary information regarding the business and customers of MicroBiz;
NOW, THEREFORE, in consideration of the foregoing premises and the
consummation of the transactions contemplated by the Purchase Agreement, and in
furtherance thereof, and the mutual agreements of the parties contained herein,
the parties hereto agree as follows:
1. (a) The Shareholder hereby agrees that he will not, at any time
within a ten (10) year period (the "Effective Period") commencing immediately
following the "Closing" (as defined in the Purchase Agreement), directly or
indirectly engage in, or have any interest in any person, firm, corporation or
business (whether as an employee, officer, director, agent, security holder,
creditor, consultant, contractor or otherwise) that engages in any activity in
any county or counties in any area throughout the world, which is the same as,
similar to, or competitive in any manner with the "POS Software Market" ( as
hereinafter defined) engaged in by MicroBiz, in any such area as of the
effective date of this Agreement, for either the above-mentioned ten-year period
or for so long as Buyer or any of its successors shall engage in any of such
activities in any such area (whichever period is the lesser), it being expressly
understood and agreed that the Buyer is purchasing the Shares for the purpose of
continuing to engage in such activities within such areas. POS Software Market
is defined as providing traditional as well as web-based retailers with commerce
solutions based on open architecture software products for managing inventory,
point of sale, sales transaction processing, other than automobile repair
transactions.
1
2
(b) Notwithstanding anything to the contrary hereinabove,
nothing contained herein shall prevent the Shareholder from owning less than one
percent (1%) of the capital stock of a corporation the common stock of which is
publicly traded on a national securities exchange or through NASDAQ.
(c) The parties intend that the covenant contained in
subparagraphs 1(a) shall be construed as a series of separate covenants, one for
each area (whether a country, state, county or other political subdivision)
referred to, and one for each one-year period. Except for geographic coverage,
each such separate covenant shall be deemed identical in terms to the covenant
contained in subparagraph 1(a). If in any judicial proceeding a court shall
refuse any of the separate covenants deemed included in subparagraph 1(a), then
such unenforceable covenant shall be deemed eliminated from this Agreement to
the extent necessary to permit the remaining separate covenants to be enforced.
2. The Shareholder further agrees (a) to hold in strictest confidence
and not to divulge, communicate, use to the detriment of Buyer or any of its
successors or for the benefit of any other person or person, or misuse in any
way, any confidential information or trade secrets of either MicroBiz or Buyer,
including without limitation, personnel information, trade secrets, secret
processes, know-how, customer lists, marketing strategies or other technical
data; and (b) that during the Effective Period he shall not directly or
indirectly, either for himself or for any other person, firm or other entity,
divert or take away or solicit or attempt to divert or take away any present or
former customers of MicroBiz , including without limitation those customers whom
such Shareholder solicited or with whom he became acquainted while employed by
MicroBiz or have or will become acquainted while employed by Buyer; provided,
however, that this provision shall not apply to the solicitation of such
customers relating to a business activity that is not the same as, similar to or
competitive with any activity of MicroBiz or Buyer. The Shareholder agrees that
during the Effective Period he will not initiate any offer of employment to, or
in any other manner solicit the services of, directly or indirectly, any person
who is an employee or service provider of MicroBiz as of the date hereof. In
addition, the Shareholder agrees that he will not at any time within the
Effective Period: (i) disrupt, damage, impair or interfere with the business of
Buyer whether by way of interference with or raiding its employees, disrupting
its relationships with customers, agents, representatives or vendors, or
otherwise; or (ii) undertake planning for or organization of any activity
competitive with Buyer's business, or conspire with employees or representatives
of Buyer for the purpose of organizing any such competitive activity.
3. This Agreement shall be binding upon and inure to the benefit of the
parties hereto, and the successors, heirs, personal representatives and assigns
of either.
4. The parties acknowledge and agree that the obligations of the
Shareholder under this Agreement are of a unique character that gives them a
peculiar value, and therefore the extent of damages to MicroBiz or Buyer, or any
successor of either of them, in the event of a breach by the Shareholder of any
of the covenants contained in this Agreement may be impossible to ascertain and
that there is and will be available to MicroBiz or Buyer, or any successor of
either of them, no adequate remedy at law to compensate it in the event of any
such
2
3
breach. Consequently, the Shareholder agrees that in the event of a breach of
any of such covenants, in addition to any other relief to which MicroBiz or
Buyer, or any successor of either of them, may be entitled, and not in lieu of
any other rights and remedies available, it shall be entitled to enforce any or
all of such covenants by injunctive or other equitable relief ordered by any
court of competent jurisdiction.
5. This Agreement is entered into, and shall be governed in all
respects, including validity, interpretation and effect, under the laws of the
State of New Jersey.
6. Any notice, request, demand or other communication required or
permitted hereunder shall be deemed to be properly given when personally served
in writing, when deposited in the United States mail, postage prepaid, or when
communicated to a public telegraph company for transmittal, addressed to Buyer
or to the Shareholder at their respective last known address. Any party may
change its address by written notice given in accordance with this subparagraph.
7. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
8. The parties acknowledge and agree that each provision herein shall
be treated as a separate and independent clause, and the unenforceability of any
one clause shall in no way impair the enforceability of any of the other clauses
herein. Moreover, if one or more of the provisions contained in this Agreement
shall for any reason be held to be excessively broad as to scope, activity or
subject so as to be unenforceable at law, such provision or provisions shall be
construed by the appropriate judicial body by limiting and reducing it or them,
so as to be enforceable to the maximum extent compatible with the applicable law
as it shall then appear.
9. This Agreement contains the entire agreement of the parties with
respect to the subject matter hereof and supersedes all prior understandings,
whether oral or written. This Agreement may not be changed orally, but only by
an agreement in writing, signed by the parties against whom enforcement of any
waiver, change, modification, extension or discharge is sought.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered as of the date first above written.
"Buyer" "Shareholder"
CAM Commerce Solutions, Inc. /s/ XXXXX XXXXXX
---------------------------------
Xxxxx Xxxxxx
By: /s/ XXXX XXXXXXX, XX.
---------------------------------
Xxxx Xxxxxxx, Xx.
3
