NON-COMPETITION AGREEMENT
Exhibit 10.2
This Non-Competition Agreement (the “Agreement”) is entered into as of this 10th day of June,
2005, between FACTS Management Co., a Nebraska corporation (the “Corporation”) and Xxxxxxx X. Xxxxx
(“Employee”).
WITNESSETH:
WHEREAS, Employee is employed by the Corporation and has and will continue to gain extensive
and valuable information, experience and knowledge in connection with the Corporation’s business
and will continue to have extensive contacts with customers and clients of the Corporation in the
development of goodwill, which would make it possible for the Employee to divert such goodwill for
his own account and he could attract new customers based upon his experience, knowledge and
reputation gained in the Corporation’s business and in the industry in which the Corporation
operates; and
WHEREAS, pursuant to that certain Stock Purchase Agreement dated as of May 31, 2005 (the
“Stock Purchase Agreement”) among Nelnet, Inc., Employee and others, as of June 10, 2005, Nelnet,
Inc. will be purchasing from the Employee (and other shareholders) certain shares of the issued and
outstanding capital stock of the Corporation so that Nelnet, Inc. will be the owner of 80% of all
of the issued and outstanding common stock of the Corporation; and
WHEREAS, as a condition of and as an inducement to Nelnet, Inc. becoming owner of the stock of
the Corporation being sold by Employee, Employee (as one of the shareholders of the Corporation)
has agreed to enter into this Agreement; and
WHEREAS, in consideration of entering into the Stock Purchase Agreement, payment by Nelnet,
Inc. in the amount set forth in Schedule 2.1.1 of the Stock Purchase Agreement, as well as the
Employee’s continued employment with the Corporation, the parties have agreed to enter into this
Agreement.
NOW, THEREFORE, in consideration of the foregoing preambles, and as an inducement for Nelnet,
Inc. to enter into the Stock Purchase Agreement, for payment by Nelnet, Inc. of the amount set
forth in Schedule 2.1.1 of the Stock Purchase Agreement, and for the Corporation to continue the
employment of the Employee, the parties agree as follows:
1. Confidential Trade Secrets. Employee understands and agrees that all pricing
information, sales materials, customer lists, software programs, customer agreements, marketing
plans, methods of operation of the Corporation’s business, and all other materials and information
furnished to or made available to Employee or to which Employee has access, specifically including
the names of all persons (hereinafter referred to as customers) who have purchased or are
purchasing services or goods from the Corporation, and the information relating to the contracts or
transactions with such customers are confidential trade secrets of the Employer. Employee shall
not, during or after the term of this Agreement, disclose or use any such information in any manner
or for any reason or purpose whatsoever, other than for the purpose of promoting the Corporation’s
business.
2. Non-Compete During Employment. During the term of this Agreement, Employee agrees
not to engage, either directly or indirectly, in owning, managing, operating, advising,
controlling, being employed by, or participating in any manner in the ownership,
management-partnership, joint venture or the like which in any way sells or markets, either
directly or indirectly, or intends to sell or market K through 12, college or university tuition
billing services or other merchandise or services sold or offered for sale by the Corporation or
its affiliates, without the express written consent and permission of the Corporation.
3. Non-Compete
Upon Termination of Employment. For a period of two (2) years from the
date of the cancellation or termination of Employee’s employment with the Corporation (for any
reason and by either party), Employee shall not directly or indirectly solicit or sell to any
person with whom Employee had personal contact while selling or attempting to sell, servicing or
promoting K through 12, college or university tuition billing services or other merchandise or
services on behalf of the Corporation without the express written consent and permission of the
Corporation; provided, however, that nothing herein shall be construed to prevent Executive from
providing consulting services or conducting seminars for schools or dioceses relating to school
operations, marketing, business and financial matters for such institutions, so long as such
activities do not directly or indirectly compete with products or services offered by the
Corporation.
4. Remedies. The parties understand and agree that a breach hereof will cause
irreparable injury to the Corporation, that monetary damage would not provide an adequate remedy
for such breach, and therefore, the Corporation may elect to have this Agreement specifically
enforced by any court having equity jurisdiction. In the event Employee fails to observe the
requirements of this Agreement, the Corporation shall be entitled to enforce such provisions
through any remedies provided by law, including but not limited to injunctive relief and, in
addition, the Corporation may, in its sole discretion, retain as liquidated damages any salaries,
bonuses or other compensation then due and owing, or which may become due and owing in the future,
by the Corporation to the Employee, and pursue such other remedies for relief which may be
available pursuant to law or this Agreement.
5. Governing Law. This Agreement shall be governed by, construed and enforced in
accordance with the laws of the State of Nebraska.
6. Severability. Should any provision of this Agreement be held unenforceable or
invalid under the laws of the State of Nebraska, the parties agree that such provision shall be
deemed modified for purposes of performance.
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7. Assignment. This Agreement and the rights and obligations of the parties hereto are
personal in nature and may not be assigned or delegated by either party without the prior written
consent of the other party.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above
written.
| FACTS MANAGEMENT COMPANY, INC., a Nebraska corporation |
||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Title: President | ||||
| /s/ Xxxxxxx X. Xxxxx | ||||
| Xxxxxxx X. Xxxxx, Employee | ||||
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