EXHIBIT B
NON-SOLICITATION AND NON-COMPETE AGREEMENT
THIS NON-SOLICITATION AND NON-COMPETE AGREEMENT (this "Agreement"), is
dated as of the 1st day of October, 1999, by and between INFRASTRUCTURE DEFENSE,
INC., a Delaware corporation (the "Company"), and HOMECOM COMMUNICATIONS, INC.,
a Delaware corporation, and its successors ("HomeCom"). Capitalized terms used
but not defined herein shall have the respective meanings ascribed to such terms
in the Asset Purchase Agreement dated of even date herewith by and between the
Company and HomeCom (the "Asset Purchase Agreement").
WHEREAS, pursuant to the terms of the Asset Purchase Agreement, HomeCom
will sell to the Company all of the business and assets of HomeCom's internet
security division (the "Division");
WHEREAS, the Company is willing to pay the Purchase Price set forth in
the Asset Purchase Agreement based in part on HomeCom's agreement not to compete
with the Company with respect to the business as presently being conducted by
the Division or the Company as of the date hereof or solicit the employees,
customers or clients of the Division or the Company including, but not limited
to, those employees entering into employment agreements as part of the
transaction contemplated by the Asset Purchase Agreement and those customers and
clients contained on the client list included as part of the Purchased Assets;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth in this Agreement, and for good and other valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company and
HomeCom agree as follows:
1. NON-COMPETE. Except as provided in the Value-Added Distribution
Agreement of even date herewith (the "VAR Agreement"), HomeCom agrees that
during the period beginning on the date of this Agreement and for a period of
three (3) years thereafter (the "Restricted Period"), HomeCom shall not engage
in the provision of electronic infrastructure protection or internet security
products or services (the "Business") or any other activity or business which is
competitive, directly or indirectly, with the business of the Company as
historically conducted or as conducted on the date hereof which, for the
purposes of this Agreement shall mean the provision of products, reports and
consulting and other services relating to electronic infrastructure or internet
security, the protection of electronic infrastructures from strategic and other
threats and vulnerabilities, threat analysis and reduction, asset protection,
provision of single and multi-industry cyberthreat intelligence, enterprise risk
assessment, security policy consulting, monitoring and management services,
certification services designed to establish a common global language to assess
intercompany cyberthreats and vulnerabilities across the world, risk management
consulting, intelligence gathering and the provision of infrastructure solutions
addressing cyberthreats and related risks.
2. NON-SOLICITATION OF CUSTOMERS AND CLIENTS. HomeCom further agrees
that it shall not, at any time during the Restricted Period, contact any
customer or client or former customer or client of the
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Division or the Company in connection with the Business, except in furtherance
of and in accordance with the Service and Referral Agreement and the VAR
Agreement dated of even date herewith.
3. NON-SOLICITATION OF EMPLOYEES. HomeCom shall not, at any time during
the Restricted Period, solicit or seek to persuade any employee of the Company
to discontinue employment with the Company or become employed in any business
competitive, directly or indirectly, with the Business, and HomeCom shall
specifically but without limitation refrain from soliciting any employee of the
Company to go to work in any capacity for HomeCom or any of its Affiliates.
4. AVAILABILITY OF EQUITABLE RELIEF. HomeCom agrees that any breach of
this Agreement by HomeCom will cause irreparable damage to the Company and that
in the event of such breach the Company shall have, in addition to any and all
other remedies, the right to an injunction, specific performance or other
equitable relief to prevent or remedy any violation of HomeCom's covenants in
this Section or any other Section of the Agreement.
5. SEVERABILITY. HomeCom and the Company agree and acknowledge that the
provisions of this Agreement shall be devisable and separate, so that, if any
provision or provisions of this Agreement are held to be unreasonable, unlawful,
or unenforceable, such holdings shall not impair or render invalid the remaining
provisions of this Agreement. If any provision hereof is held to be too broad or
unreasonable in duration, scope or character of restriction to be enforced, such
provisions shall be modified to the extent necessary so that any provision or
portion hereof shall be legally enforceable to the fullest extent permitted by
law, and the parties hereto expressly authorize any Court of competent
jurisdiction to enforce any such provision or portion hereof so that any and all
provisions or portions hereof shall be enforced by such Court to the fullest
extent permitted by law.
6. INDEMNIFICATION. HomeCom agrees to indemnify the Company and each of
its directors, officers and stockholders, and hold the same harmless from and
against any and all claims, costs, fees (including reasonable attorneys' fees),
losses, damages and liabilities (or actions in respect thereof) arising out of
or based on any violation or breach of any covenant or agreement contained in
this Agreement, and will reimburse the Company, and its directors, officers and
stockholders for all legal or any other expenses reasonably incurred by the
Company or any of its officers, directors or stockholders, as such expenses are
incurred, in connection with any such claim, loss, damage, liability or action.
7. MODIFICATIONS AND AMENDMENTS. The terms and provisions of this
Agreement may not be modified or amended except with the written consent of the
Company and HomeCom. None of the terms and provisions of this Agreement may be
waived except in writing by the person so waiving.
8. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of Delaware, without giving
effect to any choice of law or conflict of law provision or rule (whether of the
State of Delaware or any other jurisdiction) that would cause the application of
the laws of any other jurisdiction other than the State of Delaware.
9. NOTICE. All notices and other communications required or permitted
to be given in respect of this Agreement shall be sent by personal delivery,
nationally recognized overnight courier, facsimile or certified or registered
mail, to the following parties at the following addresses, or, in each case, at
such other address or addresses as any party shall hereafter specify by written
notice to the others:
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(i) If to the Company, to:
Infrastructure Defense, Inc.
0000 Xxxxxxxxx Xxxx
Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
With a copy to:
McGuire, Woods, Battle & Xxxxxx LLP
0000 Xxxxxx Xxxxxxxxx
Xxxxx 0000
XxXxxx, Xxxxxxxx 00000
Attention: Clive X. X. X'Xxxxx, Esquire
Facsimile: (000) 000-0000
(ii) If to HomeCom, to:
HomeCom Communications, Inc.
Xxxxxxxx 00, Xxxxx 000
3535 Piedmont Road
Atlanta, Georgia
Attention: Xxxxxx Xxx
Facsimile: (000) 000-0000
With a copy to:
Sims, Moss, Xxxxx & Xxxxx LLP
000 Xxxxxxxxx Xxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxx
Facsimile: (000) 000-0000
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section, be deemed given upon
delivery, (ii) if delivered by facsimile transmission to the facsimile number as
provided for in this Section, be deemed given upon receipt, (iii) if delivered
by mail in the manner described above to the address as provided in this
Section, be deemed given on the earlier of the fourth business day following
mailing or upon receipt and (iv) if delivered by overnight courier to the
address as provided for in this Section, be deemed given on the earlier of the
first business day following the date sent by such overnight courier or upon
receipt (in each case regardless of whether such notice, request or other
communication is received by any other person to whom a copy of such notice is
to be delivered pursuant to this Section). Any party from time to time may
change its address,
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facsimile number or other information for the purpose of notices to that party
by giving notice specifying such change to the other parties hereto.
10. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
11. HEADINGS. The headings of the paragraphs of this Agreement are
inserted for convenience only and shall not be deemed to constitute a part
hereof.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
duly executed by their authorized officers as of the day and year first above
written.
WITNESS: INFRASTRUCTURE DEFENSE, INC., a
Delaware corporation
By
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Name: Name: Xxxxxxx X. Xxxxxx
Title: Vice President and
Chief Financial Officer
HOMECOM COMMUNICATIONS, INC. a
Delaware corporation
By
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Name: Name:
Title:
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