AGREEMENT
This Agreement made and entered into this ____ day of
____________, 1998, by and between NICHOLAS V. DUNCAN
(hereinafter referred to as "Owner") and POMEROY COMPUTER
RESOURCES, INC., a Delaware corporation (hereinafter referred to
as "Pomeroy").
W I T N E S S E T H :
WHEREAS, simultaneously with the execution of this Agreement,
Pomeroy entered into a Stock Purchase Agreement ("Stock Purchase
Agreement") with J. Walter Duncan, Jr., as Trustee of the J.
Walter Duncan, Jr. Revocable Trust, James B. Kite, Jr., O. Dean
Higganbotham, Dale Higganbothan and Owner (hereinafter referred
to collectively as the _Shareholders_) for the acquisition by
Pomeroy of one hundred percent (100%) of the outstanding capital
shares in Global Combined Technologies, Inc., an Oklahoma
corporation (_Company_); and
WHEREAS, immediately prior to the Closing Date (as defined in the
Stock Purchase Agreement) Owner owned 14,099 shares of the
outstanding capital stock of Company; and
WHEREAS, Pomeroy 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 Pomeroy to enter into the Stock
Purchase Agreement with the Shareholders, Owner covenants
and agrees that for a period of four (4) years from the
Closing Date as defined in the Stock Purchase Agreement,
Owner neither by himself nor 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 Pomeroy or any subsidiary
thereof relating to the Business of Pomeroy, as defined
below; or
(b) Attempt to seek or cause any clients or customers of
Pomeroy or any of its subsidiaries to refrain from
continuing their patronage of the Business of Pomeroy;
or
(c) Engage in the Business of Pomeroy in any state in which
Pomeroy or any of its subsidiaries has an office during
the term of this Agreement. A list of the states in
which Pomeroy and any of 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
Pomeroy and any of its subsidiaries.
(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 Pomeroy or any of its subsidiaries. In
addition, nothing in this Agreement shall prohibit
Owner from engaging in the business of developing and
selling software and third party software to run
special business applications; selling and servicing
application servers that run the software it sells and
selling, designing, developing, integrating and
supporting services related to such applications.
For purposes of this Section, the _Business of Pomeroy_
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 personal computer hardware, software,
peripheral devices or related products;
(ii) Sale or servicing, whether at the wholesale or
retail level, or leasing or renting, of personal
computer hardware, software, peripheral devices or
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related products; and
(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.
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 acquired by
Pomeroy by virtue of the acquisition of all of the capital
shares in the Company and have been separately bargained for
and agrees that Pomeroy has been induced to enter into the
Stock 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 Pomeroy will
suffer irreparable injury in the event of a breach by Owner,
and Owner agrees that Pomeroy 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 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 a legitimate
business interest of Pomeroy 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, or service mark, 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
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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 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 determined by
arbitration or by a Court of competent jurisdiction to be
reasonable.
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 Pomeroy to Owner
pursuant to the Stock Purchase Agreement.
3. The terms and conditions of this Agreement shall be binding
upon the Owner and Pomeroy, and their respective successors,
heirs and assigns.
4. This Agreement shall be construed in accordance with and
governed by the laws of the Commonwealth of Kentucky, which
is the state in which the corporate headquarters of Pomeroy
are located.
IN WITNESS WHEREOF, the parties hereto have executed this Agree-
ment on the day and year first above written.
OWNER:
__________________________________
NICHOLAS V. DUNCAN
POMEROY
:
POMEROY COMPUTER RESOURCES ,
INC.
By:________________________________
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EXHIBIT A
STATES IN WHICH POMEROY
AND/OR ITS PARENT CORPORATION
AND/OR SUBSIDIARIES TRANSACT BUSINESS
1. Alabama
2. Florida
3. Georgia
4. Indiana
5. Illinois
6. Iowa
7. Kentucky
8. North Carolina
9. Ohio
10. Oklahoma
11. South Carolina
12. Tennessee
13. Texas
14. West Virginia