AGREEMENT
This Agreement made and entered into this _______ day of
______________, 1997, by and between MICROCARE COMPUTER SERVICES,
INC., an Indiana corporation (hereinafter referred to as
"Seller"), and POMEROY COMPUTER RESOURCES, INC., a Delaware
corporation (hereinafter referred to as "Purchaser").
W I T N E S S E T H :
WHEREAS, Seller is a full service provider of a variety of
computer service and support solutions to large and medium size
commercial, governmental and other professional customers
throughout the Indianapolis, Indiana metropolitan area as well the
entire state of Indiana (the "Business"); and
WHEREAS, simultaneously with the execution of this Agreement,
Seller and Purchaser have entered into an Asset Purchase Agreement
("Asset Purchase Agreement") whereby Seller has sold to Purchaser
substantially all of the assets of Seller relating to the
Business; and
WHEREAS, Purchaser would not have entered into the Asset Purchase
Agreement with Seller without the consent of Seller 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, Seller 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. In consideration of the payments to be made by Purchaser to
Seller for its assets, Seller covenants and agrees that for a
period equal to four (4) years from the closing of the Asset
Purchase Agreement of even date herewith, Seller 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;
(c) Engage in the Business of Purchaser in any state, county
and/or metropolitan area in which Purchaser or its subsidiaries do
business 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;
(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.
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(e) Nothing in this Agreement shall prohibit Seller 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.
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 or servicing of microcomputer products and
computer integration products, peripheral devices and related
products and the sale of microcomputer products and computer
integration and networking services.
Seller has carefully read all the terms and conditions of
this Paragraph 1 and has given careful consideration to the
covenants and restrictions imposed upon Seller 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
Seller that it will abide by and be bound by each of the covenants
and restrictions herein; and Seller agrees that Purchaser will
suffer irreparable injury in the event of a breach by Seller, and
Seller 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. Seller 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, which Agreement
is ancillary to the main thrust of the Asset Purchase Agreement,
is being entered into to protect a legitimate business interest 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
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 Para
graph 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
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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.
2. The consideration for Seller'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 Seller is a party of even date
herewith.
3. The terms and conditions of this Agreement shall be binding
upon the Seller and Purchaser, and their successors, heirs and
assigns.
IN WITNESS WHEREOF, the parties hereto have executed this Agree
ment on the day and year first above written.
SELLER:
MICROCARE COMPUTER SERVICES, INC.
BY:__________________________________
PURCHASER:
POMEROY COMPUTER RESOURCES, INC.
BY:__________________________________
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EXHIBIT A
STATES IN WHICH PURCHASER
AND/OR ITS SUBSIDIARIES TRANSACT BUSINESS
1. Alabama
2. Florida
3. Indiana
4. Iowa
5. Kentucky
6. North Carolina
7. Ohio
8. South Carolina
9. Tennessee
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