AGREEMENT
---------
This Agreement made and entered into this 6TH day of May, 1999, by and between
SYSTEMS ATLANTA COMMERCIAL SYSTEMS, INC., a Georgia corporation (hereinafter
referred to as "Seller") and POMEROY SELECT INTEGRATION SOLUTIONS, 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, including installation, training, set-up and consultation,
to large and medium size commercial, governmental and other professional
customers throughout the Atlanta, Georgia Metropolitan area; 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 Sellers Business of integrated desktop management and
network services; and
WHEREAS, the 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 7.1 and 12.2(d)(vi) 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 five (5)
years from the closing of the Asset Purchase Agreement of even date, Seller
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 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 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.
(f) Nothing in this Agreement shall prohibit Seller from owning or
purchasing any stock of Systems Atlanta, Inc., an affiliate of
Company, engaged in providing integrated systems, including hardware,
software and peripheral devices and related products and services for
entities, persons or governmental entities engaged in air traffic
control.
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) The providing of integrated desktop management and network services
including life cycle services, internet working services, and end user
support services.
(ii) 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;
(iii)Sale or servicing, whether at the wholesale or retail level, or
leasing or renting, of computer hardware, software, peripheral devices
or related products;
(iv) Sale, servicing, or supporting of microcomputer products,
microcomputer support solutions and computer integration products,
peripheral devices and related products and the sale of networking
services; and
(v) 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.
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 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 Agree-ment and pay the
consideration described in
- 2 -
Paragraph 2 by the represen-tation of Seller that it will abide by and be
bound by each of the covenants and restrictions herein; 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 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 Asset 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 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 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.
2. The consideration for Seller's covenant not to compete shall be One Dollar
($1.00) and other valuable consideration, including the consideration paid
by the Purchaser to Seller pursuant to an Asset Purchase Agreement to which
Seller and Purchaser are parties 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.
4. This Agreement shall be construed in accordance with and governed by the
laws of the State of Georgia.
IN WITNESS WHEREOF, the parties hereto have executed this Agree-ment on the day
and year first above written.
SELLER:
------
SYSTEMS ATLANTA COMMERCIAL
SYSTEMS, INC.
- 3 -
By: __________________________________
B. Scott Dobson, Vice-President
PURCHASER:
---------
POMEROY SELECT INTEGRATION
SOLUTIONS, INC.
By: ___________________________________
Stephen E. Pomeroy, President
- 4 -
EXHIBIT A
----------
STATES IN WHICH POMEROY
AND/OR ITS PARENT CORPORATION
AND/OR SUBSIDIARIES TRANSACT BUSINESS
1. Alabama
2. Arkansas
3. Florida
4. Georgia
5. Indiana
6. Illinois
7. Iowa
8. Kentucky
9. Mississippi
10. North Carolina
11. Ohio
12. Oklahoma
13. South Carolina
14. Tennessee
15. Texas
16. Virginia
17. West Virginia