Exhibit (d)(8)
NONCOMPETITION AGREEMENT
THIS NONCOMPETITION AGREEMENT (this "Noncompetition Agreement") is made
and entered into this 10th day of June, 2002, by and among IM Acquisition, Inc.,
a Delaware corporation, IM Merger Corp., a Florida corporation (both
individually and collectively referred to herein as "IntelliMark"),
Technisource, Inc., a Florida corporation ("Technisource"), and Xxxxxx Xxxx
("Executive").
RECITALS
WHEREAS, Technisource is engaged in the business of providing
information technology staffing services, solutions services, and computer
hardware sales and services (the "Business"); and
WHEREAS, IntelliMark and Technisource have entered into that certain
Agreement and Plan of Merger (the "Merger Agreement") dated as of June 10, 2002
pursuant to which IntelliMark would acquire all of the outstanding common stock
of Technisource, subject to the conditions set forth in the Merger Agreement;
and
WHEREAS, Executive is a key employee of Technisource and as a material
inducement to IntelliMark to enter into the Merger Agreement Executive has
agreed to enter into this Noncompetition Agreement; and
WHEREAS, the parties hereto intend that any capitalized terms in this
Noncompetition Agreement and not otherwise defined herein shall have the
meanings ascribed thereto in the Merger Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing premises and the
representations, warranties, covenants and agreements contained herein and other
good and valuable consideration, the receipt and sufficiency of which the
parties hereby acknowledge, the parties hereto agree as follows:
1. Noncompetition Restrictions. Executive agrees that during the
Restricted Period Executive will not, directly or indirectly:
(a) engage or participate in any way, as an owner, officer, partner,
member, employee, agent, independent contractor, board member, stockholder or
otherwise, in any activities competitive with or directly or indirectly related
to the Business anywhere within fifty (50) miles of any office in which as of
the Closing Technisource or its subsidiaries conduct their businesses.
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(b) either on his or her own account or for any person, firm,
partnership, corporation, limited liability company, or other entity: (i)
solicit, interfere with, or endeavor to cause any employee or consultant of
Technisource or any of its affiliates to leave his or her employment or
consultant status, as applicable; or (ii) induce or attempt to induce any such
employee or consultant to breach his or her employment agreement or consulting
agreement, as applicable, with Technisource or any of its affiliates;
(c) directly or indirectly solicit, induce, or attempt to induce any
customer of Technisource as of the Closing: (i) to cease doing business in whole
or in part with or through Technisource or any of its affiliates; or (ii) to do
business with any other person, firm, partnership, corporation, limited
liability company, or other entity engaged in the Business; and
(d) notwithstanding items (a) through (c) of this Section 1, ownership
of less than three percent (3%) of a class of equity securities issued by any
competitor of IntelliMark listed on any national securities exchange or
interdealer quotation system shall not be deemed a violation of items (a) - (c)
of Section 1.
For purposes of item (a) of this Section 1, the Restricted Period shall
be the period during which the Executive is employed by Technisource or one of
its affiliates and continuing thereafter until the date that is one (1) year
following the Executive's termination of employment by Executive, IntelliMark or
Technisource for any reason or no reason whatsoever. For purposes of item (b)
and (c) of this Section 1, the Restricted Period shall be the period during
which the Executive is employed by Technisource or one of its affiliates and
continuing thereafter until the date that is two (2) years following the
Executive's termination of employment by Executive, IntelliMark or Technisource
for any reason or no reason whatsoever.
If the final judgment of a court of competent jurisdiction declares
that any term or provision of this Section 1 is invalid or unenforceable, the
parties agree that the court making the determination of invalidity or
unenforceability shall have the power to reduce the scope, duration, or area of
the term or provision, to delete specific words or phrases, or to replace any
invalid or unenforceable term or provision with a term or provision that is
valid and enforceable and that comes closest to expressing the intention of the
invalid or unenforceable term or provision, and this Noncompetition Agreement
shall be enforceable as so modified after the expiration of the time within
which the judgment may be appealed.
2. Confidentiality. Executive agrees to keep secret and confidential,
and not to use or disclose directly or indirectly to any third parties, any of
Technisource's or IntelliMark's proprietary trade secret information or other
confidential business information concerning the Business. In addition to any
common law or statutory restrictions upon Executive's use, disclosure or
exploitation of confidential, proprietary or secret information of Technisource
or IntelliMark, Executive agrees that he will not, directly or indirectly, use
for himself or use for, or disclose to, any party other than Technisource or
IntelliMark, any secret, proprietary or confidential information or data
regarding the Business, including, but not limited to, business or trade
secrets, price lists, methods, know-how,
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customer identities, customer lists, marketing plans, and financial information.
3. Third Party Beneficiaries. Executive acknowledges and agrees that
any Person or entity directly or indirectly controlling, controlled by or under
direct or indirect common control with IntelliMark is a third party beneficiary
of this Noncompetition Agreement and shall have any and all rights as set forth
in Section 5 of this Noncompetition Agreement.
4. Non-Waiver of Rights. Technisource's or IntelliMark's failure to
enforce at any time any of the provisions of this Noncompetition Agreement or to
require at any time performance by Executive of any of the provisions or to
affect either the validity of this Noncompetition Agreement, or any party
hereof, or the right of Technisource or IntelliMark thereafter to enforce each
and every provision in accordance with the terms of this Noncompetition
Agreement.
5. IntelliMark's and Technisource's Right to Injunctive Relief. In the
event of a breach or threatened breach of any of the duties and obligations of
Executive under this Noncompetition Agreement, Technisource or IntelliMark shall
be entitled, in addition to any other legal or equitable remedies they may have
in connection therewith (including any right to damages that Technisource or
IntelliMark may suffer), to a temporary, preliminary and/or permanent injunction
restraining such breach or threatened breach. Executive specifically agrees
that, in the event there is a question as to the enforceability of Section 1
hereof, Executive will not engage in any conduct inconsistent with or contrary
to that Section until after the question has been resolved by a final judgment
of a court of competent jurisdiction. Neither IntelliMark or Technisource shall
commence an action against Executive for breach hereof unless Executive has
substantially failed to remedy such breach within fifteen (15) days following
Executive's receipt of written notice from IntelliMark or Technisource demanding
that he remedy such breach.
6. Invalidity of Provisions. In the event that any provision of this
Noncompetition Agreement is adjudicated to be invalid or unenforceable under
applicable law, the validity or enforceability of the remaining provisions shall
be unaffected. To the extent that any provision of this Noncompetition Agreement
is adjudicated to be invalid or unenforceable because it is overbroad, that
provision shall not be void but rather shall be limited only to the extent
required by applicable law and enforced as so limited.
7. Assignment. This Noncompetition Agreement shall be freely assignable
by Technisource or IntelliMark to, and shall inure to the benefit of, any other
corporate entity that shall succeed to all or a portion of the Business
presently being conducted by Technisource or IntelliMark.
8. Choice of Forum and Governing Law. This Noncompetition Agreement
shall be governed by and construed in accordance with the laws of the State of
Delaware.
9. Representations of Executive. Executive represents that the
execution and delivery of this Noncompetition Agreement does not violate any
other contractual obligation of Executive. Executive further agrees to defend,
indemnify and hold harmless Technisource and IntelliMark
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against all adverse consequences suffered or incurred as a result of any
violation of its or his respective representations contained in this Section 9.
10. Right to Recover Costs. In the event of breach of the
Noncompetition Agreement by any party, the prevailing party shall be entitled to
recover all reasonable attorneys' fees and costs incurred in connection with
enforcing its rights hereunder.
11. Amendments. No modification, amendment or waiver of any of the
provisions of this Noncompetition Agreement shall be effective unless in writing
specifically referring hereto and signed by the parties hereto.
12. Tolling. Executive acknowledges and agrees that the running of the
time period in Section 1 shall be tolled with respect to Executive during any
period in which Executive violates that Section.
13. Rule of Construction. The rule of construction to the effect that
ambiguities are to be resolved against the drafting party shall not be employed
in interpreting this Noncompetition Agreement.
14. Headings. Section headings are provided in this Noncompetition
Agreement for convenience only and shall not be deemed to substantively alter
the content of such sections.
15. Counterparts. This Noncompetition Agreement may be executed
simultaneously in multiple counterparts (including execution by facsimile), each
of which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument.
PLEASE NOTE: BY SIGNING THIS AGREEMENT, STOCKHOLDER IS HEREBY
CERTIFYING THAT IT, HE OR SHE: (A) RECEIVED A COPY OF THIS AGREEMENT
FOR REVIEW AND STUDY BEFORE EXECUTING IT; (B) READ THIS AGREEMENT
CAREFULLY BEFORE SIGNING IT; (C) HAD SUFFICIENT OPPORTUNITY BEFORE
SIGNING THE AGREEMENT TO ASK ANY QUESTIONS IT, HE OR SHE HAD ABOUT THE
AGREEMENT AND RECEIVED SATISFACTORY ANSWERS TO ALL SUCH QUESTIONS; (D)
HAS RECEIVED THE ADVICE OF COUNSEL WITH RESPECT TO THIS AGREEMENT; AND
(E) UNDERSTANDS ITS OR HIS OR HER RIGHTS AND OBLIGATIONS UNDER THIS
AGREEMENT.
16. No Obligation to Proceed with the Proposed Transaction. Nothing
herein shall obligate IntelliMark or Technisource to proceed with the Closing.
If by the Outside Date IntelliMark and Technisource have not closed the merger,
this Noncompetition Agreement shall terminate ab initio, and IntelliMark,
Technisource and Executive shall have no rights or obligations hereunder;
provided, however, that this Noncompetition Agreement may be extended by the
mutual agreement of IntelliMark, Technisource and the Executive.
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17. This Noncompetition Agreement sets forth the entire agreement
between the parties hereto, and fully supersedes and terminates any and all
prior agreements or understandings between the parties hereto pertaining to the
subject matter hereof
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IN WITNESS WHEREOF, the parties have executed this Noncompetition
Agreement to be effective as of the date first above written.
IM ACQUISITION, INC.
By: /s/ Xxxxx X. Xxxxxx
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Print Name: Xxxxx X. Xxxxxx
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Title: Secretary
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IM MERGER CORP.
By: /s/ Xxxxx X. Xxxxxx
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Print Name: Xxxxx X. Xxxxxx
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Title: Secretary
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TECHNISOURCE, INC.
By: /s/ C. Xxxxxxx Xxxxx
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Print Name: C. Xxxxxxx Xxxxx
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Title: Chief Executive Officer
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EXECUTIVE
/s/ Xxxxxx X. Xxxx
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Xxxxxx Xxxx
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