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EXHIBIT 99.7
NON-COMPETITION AGREEMENT
THIS NON-COMPETITION AGREEMENT (this "Agreement") is made and entered
into as of this 19th day of July, 2000, between XXXXXXXXXX.XXX, INC. a Georgia
corporation ("Purchaser") and XXXXXXX XXXXX GROUP INC. a Delaware corporation
("Seller").
WITNESSETH:
WHEREAS, Seller owns a majority of the fully diluted capital stock of
Career Mosaic Inc. ("Career Mosaic");
WHEREAS, Purchaser owns one hundred percent of Resume Acquisition
Corporation ("Merger Sub");
WHEREAS, pursuant to that certain Agreement and Plan of Merger dated
April 15, 2000 (as the same may be amended, the "Merger Agreement"), among
Omnicom Group Inc., Seller, Career Mosaic, Purchaser, Merger Sub and ITC Holding
Company, Inc., Purchaser is acquiring Career Mosaic via the merger of Career
Mosaic with and into Merger Sub;
WHEREAS, Seller, through certain of its subsidiaries and operating
divisions, has been and is engaged in the business of creating and operating
online multi-company commercial job posting boards via the Internet (the
"Business Activities");
WHEREAS, prior to the date hereof, Seller, through certain of its
subsidiaries and operating divisions, has been actively involved in the Business
Activities, and Seller and such subsidiaries therefore have acquired intimate
knowledge of, and experience related to, the Business Activities, which if
exploited by Seller and such subsidiaries or operating subsidiaries in
contravention of this Agreement, would seriously, adversely and irreparably
affect the ability of Purchaser to derive the benefit or value for which it
bargained in the acquisition of Career Mosaic and its business under the Merger
Agreement; and
WHEREAS, the Merger Agreement requires Seller to enter into this
Agreement with Purchaser as a condition precedent to the consummation of the
transactions contemplated in the Merger Agreement, this Agreement is a material
inducement to Purchaser to consummate the transactions contemplated in the
Merger Agreement, and Purchaser would be unwilling to consummate such
transactions if Seller did not enter into this Agreement.
NOW THEREFORE, in consideration of the foregoing, the premises, the
mutual covenants and restrictions contained herein and in the Merger Agreement
and other good and valuable consideration the receipt and sufficiency of which
are hereby acknowledged, Purchaser and Seller hereby agree as follows:
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1. CAPITALIZED TERMS. Except as otherwise specified in this
Agreement, all capitalized terms used but otherwise not defined herein shall
have the meanings ascribed to such terms in the Merger Agreement.
2. CONSIDERATION. In consideration of Seller entering into and
abiding by the terms of this Agreement, Purchaser agrees to consummate the
Merger and acquire Career Mosaic as set forth in the Merger Agreement.
3. COVENANT NOT TO COMPETE.
(a) As a material inducement to Purchaser to consummate
the Merger and the other transactions contemplated in the Merger Agreement,
Seller agrees that for a period of one (1) year after the Effective Time (the
"Term"), Seller will not, directly or indirectly, engage in the Business
Activities or own, manage, operate, control or participate in as a 10% or
greater shareholder, partner, member or joint venturer, any company which
engages in the Business Activities; provided however, that this Section 3(a)
shall not (i) prohibit Seller from providing advisory or consulting services to
clients in developing their online job boards for their own job opportunities or
(ii) in any way restrict any of the activities of Xxxxxxxxxxx.xxx Inc. For
purposes of this Section 3, the term "Seller" shall be deemed to include each
subsidiary of Seller, whether now formed or formed in the future.
(b) Seller agrees that (i) the Term and the scope of the
covenants set forth in (a) above are reasonable and are necessary to protect the
legitimate business interests of Purchaser and (ii) because the Business
Activities primarily are conducted on the Internet, which has global reach,
there is no reasonable geographic are as to which the restrictive covenants set
forth in Section 3(a) above could be limited and which would still adequately
protect the legitimate business interests of Purchaser and its current
shareholders; thus, in place of a geographical limitation, the Business
Activities have been limited to business conducted on the Internet and the
provisions of Section 3(a) do not prohibit, prevent or attempt to dissuade
Seller from competing with the Purchaser with respect to any
non-Internet-related business similar to the Business Activities.
4. COVENANT NOT TO SOLICIT EMPLOYEES. In addition, consistent
with the foregoing, Seller further agrees that for a period of one (1) year
after the Effective Time, neither it nor any of its subsidiaries will solicit or
recruit for employment any then-current employee of Purchaser who formerly
worked for Seller or a subsidiary thereof and was hired by Purchaser in
connection with the transaction contemplated by the Merger Agreement.
5. COVENANT NOT TO SOLICIT CUSTOMERS. Subject to the exceptions
listed in Section 3(a), in further consideration of Purchaser's acquisition of
Career Mosaic, Seller further agrees that for a period of one (1) year after the
Effective Time, neither it nor any of its subsidiaries will by itself or in
conjunction with any Person, solicit or call on as a client or customer or
attempt to solicit or call on as a client or customer, for the purpose of Seller
or any of its subsidiaries engaging in the Business Activities, any Person that
has been a customer of Career Mosaic or the business conducted by Career Mosaic
during the year prior to the Effective Time, or who is a
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successor to such a Person. Seller acknowledges and agrees that Seller has had
material contact with such Persons.
6. REASONABLENESS AND OPPORTUNITY TO CONSULT WITH COUNSEL. The
covenants contained in Sections 2, 3, 4 and 5 are considered by the parties
hereto to be fair, reasonable and necessary for the protection of the legitimate
business interests of Purchaser and the conduct of the Business Activities.
Purchaser and Seller have been represented by counsel throughout the negotiation
of this Agreement and have had the opportunity to consult with counsel about
every provision of this Agreement.
7. EQUITABLE RELIEF. The parties mutually agree that if a
violation of any covenant contained in Section 2, 3, 4 or 5 occurs, such
violation will cause irreparable injury to Purchaser and the remedy at law for
any such violation will be inadequate. Seller agrees, therefore, that upon any
breach or anticipated breach by Seller of any of such Sections, Purchaser shall
be entitled to appropriate equitable relief, including, but not limited to, a
temporary restraining order and a preliminary injunction. Such equitable relief
shall be in addition to any damages to which Purchaser may be entitled. The
provisions of Sections 2, 3, 4 and 5 of this Agreement shall survive the
execution and delivery of this Agreement pursuant to the terms of each such
Section. Nothing in this provision or this Agreement shall limit any rights or
remedies otherwise available to Purchaser under federal, state or local law.
8. SEVERABILITY. In the event that any term or provision in this
Agreement is held to be invalid, void, illegal or unenforceable in any respect,
this Agreement shall not fail, but shall be deemed amended, to the extent
necessary, to delete the void or unenforceable term or provision, and the
remainder of this Agreement shall be enforced in accordance with its terms and
shall not in any way be affected or impaired thereby. In the event that any term
or provision of this Agreement is held to be overbroad or otherwise
unreasonable, the same shall not fail, but shall be deemed amended only to the
extent necessary to render it reasonable, and the parties agree to be bound by
the same as thus amended.
9. ENTIRE AGREEMENT. This Agreement (including the recitals set
forth at the beginning), together with the Merger Agreement and the ancillary
agreements thereto, set forth the entire Agreement and understanding of the
parties with respect to the subject matter hereof in respect of the transactions
contemplated by this Agreement, and supersedes all prior agreements,
arrangements and understandings relating to the specific subject matter of this
Agreement.
10. GOVERNING LAW. The interpretation and construction of this
Agreement shall be governed by the laws of the State of Georgia, without regard
to the conflicts of laws principles thereof.
11. AMENDMENT. This Agreement may be amended or modified only by a
written amendment signed by both parties.
12. NOTICES. Any notice or other communication to be given
hereunder shall be in writing and shall be deemed sufficient when (i) mailed by
United States certified mail, return receipt requested, (ii) sent by overnight
carrier, (iii) sent by facsimile (with confirmation of
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receipt), or (iv) delivered in person, at the address set forth below, or such
other address as a party may provide to the other in accordance with the
procedure for notices set forth in this Section:
If to Purchaser: 000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
Attn: Chief Executive Officer
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxxx & Bird LLP
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attn: J. Xxxxxxx Xxxxxx, Esq.
Facsimile: (000) 000-0000
If to Seller: 000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Chief Executive Officer
Facsimile: __________________
with a copy (which shall not constitute notice) to:
Xxxxx, Day, Xxxxxx & Xxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Bark, Esq.
Facsimile: (000) 000-0000
13. NO THIRD-PARTY BENEFICIARIES. This Agreement is for the sole
benefit of the parties hereto and nothing herein expressed or implied shall give
or be construed to give to any Person, other than the parties hereto, any legal
or equitable rights hereunder.
14. HEADINGS. Headings and captions contained in this Agreement
are inserted as a matter of convenience and for reference only and in no way
define, limit, extend or prescribe the scope of this Agreement or the intent of
any provision.
15. VIOLATION. The failure of any party to seek redress for
violation of or to insist upon the strict performance of any covenant or
condition of this Agreement shall not prevent a subsequent act, which originally
would have constituted a violation, from having the effect of an original
violation. The rights and remedies provided by this Agreement are cumulative and
the use of any one right or remedy by any party shall not preclude or waive its
right to use any or all other remedies. Such rights and remedies are given in
addition to any other rights or remedies the parties may have by law, statute,
ordinance or otherwise.
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16. WAIVER. No waiver shall be effective against a party unless
such waiver is in writing and signed by the waiving party. Failure to insist
upon strict compliance with any of the terms or conditions of this Agreement at
any one time shall not be deemed a waiver of such term or condition at any other
time; nor shall any waiver or relinquishment of any right or power granted
herein at any time be deemed a waiver or relinquishment of the same or any other
right or power at any other time.
17. EXECUTION IN COUNTERPARTS. This Agreement may be executed in
two or more counterparts, each of which shall be an original, and all such
counterparts together shall constitute one and the same agreement.
18. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
the successors and assigns of each party. No party may assign this Agreement
without the prior written consent of the other party and any attempt to do so
shall be void. Nothing herein will be deemed to restrict the activities of any
stockholder of Seller.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
SELLER:
XXXXXXX XXXXX GROUP INC.
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
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Title:
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PURCHASER:
XXXXXXXXXX.XXX, INC.
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
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Title: Chief Financial Officer
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