__________________
This Agreement made and entered into this _____ day of November, 2000, by and
between XXXXX XXXXX (hereinafter referred to as "Owner AGREEMENT
-----------
") and XXXXXXX COMPUTER RESOURCES, INC., a Delaware corporation (hereinafter
referred to as "Purchaser").
W I T N E S S E T H :
WHEREAS, simultaneously with the execution of this Agreement, Purchaser entered
into a Stock Purchase Agreement ("Stock Purchase Agreement") with Owner and
XXXXXXX XXXXXXX (hereinafter referred to collectively as the "Shareholders") for
the acquisition by Purchaser of one hundred percent (100%) of the outstanding
capital shares in THE LINC CORPORATION, a Nevada corporation ("Company No. 2")
and for the acquisition by Purchaser of one hundred percent (100%) of the
outstanding capital shares in VAL TECH COMPUTER SYSTEMS, INC., an Alabama
corporation ("Company No. 1"); and
WHEREAS, immediately prior to the closing date (as defined in the Stock Purchase
Agreement), Owner owned three hundred thousand (300,000) shares of the
outstanding non-voting capital stock of Company No. 2; and
WHEREAS, Purchaser would not have entered into the Stock Purchase Agreement with
all of the Shareholders without the consent of Owner to enter into this covenant
not to compete agreement; and
WHEREAS, pursuant to Article VII of said Stock Purchase Agreement, Owner agreed
to enter into this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants herein
contained and in consideration of the execution and closing of the Stock
Purchase Agreement, the parties hereto agree as follows:
1. As an inducement for Purchaser to enter into the Stock Purchase Agreement
with the Shareholders, Owner covenants and agrees that for a period equal
to the later of five (5) years from the closing of the Stock Purchase
Agreement of even date or one (1) year after the termination of Owner's
employment with Purchaser pursuant to the terms of an Employment Agreement
of even date, Owner will not, or with any other person, corporation or
entity, directly or indi-rectly, by stock or other ownership, investment,
management, employment or otherwise, or in any relation-ship whatsoever:
(a) Solicit, divert or take away or attempt to solicit, divert or take
away, any of the business, clients, customers or patronage of
Purchaser or any affiliate or subsidiary thereof relating to the
Business of Purchaser, as defined below; or
(b) Attempt to seek or cause any clients or customers of Purchaser or any
such affiliate or subsidiary relating thereto to refrain from
continuing their patronage of the Business of Purchaser; or
(c) Engage in the Business of Purchaser in any state in which Purchaser or
its subsidiaries has an office during the term of this Agreement. A
list of the states in which Purchaser and its subsidiaries currently
transact business is attached hereto as Exhibit A; or
(d) Knowingly employ or engage, or attempt to employ or engage, in any
capacity, any person in the employ of the Purchaser or any affiliate
or subsidiary.
(e) Nothing in this Agreement shall prohibit Owner from owning or
purchasing less than five percent (5%) of the outstanding stock of any
publicly-traded company whose stock is traded on a nationally or
regionally recognized stock exchange or is quoted on NASDAQ or the OTC
bulletin board or from taking any action described in items 1(b)-(d)
above for the benefit of or on behalf of Purchaser or any of its
subsidiaries.
For purposes of this Section, the "Business of Purchaser" shall mean any
person, corporation, partnership or other legal entity engaged, directly or
indirectly, through subsidiaries or affiliates, in the following line of
business:
(i) Distributing of computer hardware, software, peripheral devices, and
related products and services to other entities or persons engaged in
any manner in the business of the distribution, sale, resale or
servicing, whether at the wholesale or retail level, or leasing or
renting, of computer hardware, software, peripheral devices or related
products;
(ii) Sale or servicing, whether at the wholesale or retail level, or
leasing or renting, of computer hardware, software, peripheral devices
or related products;
(iii) Sale, servicing or supporting of microcomputer products and
microcomputer support solutions and computer integration products,
peripheral devices and related products, and the sale of networking
services;
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(iv) The providing of e-consulting and integrated network development,
support and management services for installed voice and data systems;
and
iv) Any other business activity which can reasonably be determined to be
competitive with the principal business activity being engaged in by
Purchaser or any of its subsidiaries.
Owner has carefully read all the terms and conditions of this Paragraph 1
and has given careful consideration to the covenants and restrictions
imposed upon Owner herein, and agrees that the same are necessary for the
reasonable and proper protection of the business of Company No. 2 acquired
by Purchaser from Owner and have been separately bargained for and agrees
that Purchaser has been induced to enter into the Stock Purchase Agree-ment
and pay the consideration described in Paragraph 2 by the represen-tation
of Owner that he will abide by and be bound by each of the covenants and
restrictions herein; and Owner agrees that Purchaser is entitled to
injunctive relief in the event of any breach of any covenant or restriction
contained herein in addition to all other remedies provided by law or
equity. Owner hereby acknowledges that each and every one of said covenants
and restrictions is reasonable with respect to the subject matter, the
length of time and geographic area embraced therein, and agrees that
irrespec-tive of when or in what manner this agreement may be terminated,
said covenants and restrictions shall be operative during the full period
or periods hereinbefore mentioned and throughout the area hereinbefore
described.
The parties acknowledge that this Agreement, which Agreement is ancillary
to the main thrust of the Stock Purchase Agreement, is being entered into
to protect the legitimate business interests of Purchaser, including, but
not limited to, (i) trade secrets; (ii) valuable confidential business or
professional information that otherwise does not qualify as trade secrets;
(iii) substantial relationships with specific prospective or existing
customers or clients; (iv) client or customer good will associated with an
on-going business by way of trade name, trademark, or service xxxx, a
specific geographic location, or a specific marketing or trade area; and
(v) extraordinary or specialized training. In the event that any provision
or portion of Paragraph 1 shall for any reason be held invalid or
unenforceable, it is agreed that the same shall not affect the validity or
enforceability of any other provision of Paragraph 1 of this Agreement, but
the remaining pro-visions of Paragraph 1 of this Agreement shall continue
in force and effect; and that if such invalidity or unenforceability is due
to the reason-ableness of the line of business, time or geographical area
covered by certain covenants and restrictions contained in Paragraph 1,
said covenants and restrictions shall nevertheless be effective for such
line of business, period of time and for such area as may be deter-mined by
arbitration or by a Court of competent jurisdiction to be reasonable.
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2. The consideration for Owner's covenant not to compete shall be One
Dollar ($1.00) and other valuable consideration, including the
consideration paid by the Purchaser to Owner pursuant to the Stock
Purchase Agreement.
3. The terms and conditions of this Agreement shall be binding upon the
Owner and Purchaser, and their successors, heirs and assigns.
4. This Agreement shall be construed in accordance with and governed by
the laws of the State of Alabama.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
__________________________________
XXXXX XXXXX
XXXXXXX COMPUTER RESOURCES , INC.
By:________________________________
XXXXXXX X. XXXXXXX,
Chief Financial Officer
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EXHIBIT A
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STATES IN WHICH XXXXXXX
AND/OR ITS PARENT CORPORATION
AND/OR SUBSIDIARIES TRANSACT BUSINESS
1. Alabama
2. Arkansas
3. California
4. Florida
5. Georgia
6. Indiana
7. Illinois
8. Iowa
9. Kentucky
10. Michigan
11. Minnesota
12. Mississippi
13. North Carolina
14. Ohio
15. Oklahoma
16. Pennsylvania
17. South Carolina
18. Tennessee
19. Texas
20. Virginia
21. West Virginia
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