AGREEMENT
This Agreement made and entered into this ______ day of
___________, 1997, by and between MARVIN ROSEN (hereinafter
referred to as "Owner") and POMEROY 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 an Asset Purchase Agreement ("Asset
Purchase Agreement") with Magic Box, Inc., a Florida corporation
(hereinafter referred to as ("Seller"'), for the acquisition of
substantially all of Seller's assets relating to its business of
providing micro-computer products and computer integration and
networking services to customers in southern Florida (the
"Business"); and
WHEREAS, Owner owns twenty-five percent (25%) percent of the
outstanding stock of Seller; and
WHEREAS, Purchaser would not have entered into the Asset Purchase
Agreement with Seller without the consent of Owner to enter into
this covenant not to compete agreement; and
WHEREAS, pursuant to Sections 8 and 13.2(d)(vii) of said Asset
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 Asset Purchase Agreement, the parties hereto
agree as follows:
1. As an inducement for Purchaser to enter into the Asset
Purchase Agreement with Seller (25% of the stock of which is
owned by Owner), Owner covenants and agrees that for a period
equal to three (3) years from the closing of the Asset Purchase
Agreement of even date herewith, Owner will not, or with any
other person, corporation or entity, directly or indirectly, by
stock or other ownership, investment, management, employment or
otherwise, or in any relationship 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;
(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;
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(c) Engage in the Business of Purchaser with that carried
on by Purchaser or any subsidiary or affiliate thereof in the
State of Florida;
(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 (except that Owner may
employ one of other Shareholders of Seller subject to such
Shareholder's compliance with his/her non-competition agreement
with Purchaser).
(e) Nothing in this Agreement shall prohibit Owner from
owning stock in a computer based training services business known
as Ace Education, Inc. In addition, nothing contained herein
shall preclude Owner from entering into a venture involving the
manufacture and marketing of computer chips or any other line of
business which is not substantially similar to the Business of
Purchaser. Finally, the representation by Owner as a lawyer or
his law firm of an entity engaged in a competitive line of
business shall not be a violation of this Agreement.
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 computer system integration and networking
services or any other computer related business performed by
Purchaser in Florida which if performed by Owner would
substantially affect the Business of Purchaser in Florida.
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 Seller's Business acquired by Purchaser and
have been separately bargained for and agrees that Purchaser has
been induced to enter into the Asset Purchase Agreement and pay
the consideration described in Paragraph 2 by the representation
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 line of business, the length of time and geographic area
embraced therein, and agrees that irrespective 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 is being entered
into to protect a legitimate business interest of Purchaser
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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
ongoing business by way of trade name, trademark, service mark,
or trade dress, 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 this
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 provisions of Paragraph 1 of
this Agreement shall continue in force and effect; and that if
such invalidity or unenforceability is due to the reasonableness
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
determined by arbitration or by a Court of competent jurisdiction
to be reasonable.
Notwithstanding anything to the contrary herein, the terms
of this non-competition agreement shall be null, void and of no
force and effect against Owner if there is an uncured event of
default under the promissory note executed by Purchaser in favor
of Seller
2. The consideration for Owner's covenant not to compete shall
be One Dollar ($1.00) and other valuable consideration, including
consideration paid by the Purchaser to Seller pursuant to an
Asset Purchase Agreement to which Owner is a party of even date
herewith.
3. The terms and conditions of this Agreement shall be binding
upon the Owner and Purchaser, and their successors, heirs and
assigns.
IN WITNESS WHEREOF, the parties hereto have executed this Agree-
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OWNER
_____ __________________________________
MARVIN ROSEN
By:________________________________
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