NON-COMPETITION, NON-DISCLOSURE
AND
NON-SOLICITATION AGREEMENT
THIS NON-COMPETITION, NON-DISCLOSURE AND NON-SOLICITATION AGREEMENT
("Agreement"), dated as of January 1, 2006 (the "Effective Date"), by and
between Xxxxxx X. Xxxx ("Xxxx") and National Investment Managers Inc., a Florida
corporation ("NIM").
RECITALS
A. Pursuant to that certain Agreement and Plan of Merger, dated as of
January 1, 2006, by and among Valley Forge Enterprises, Ltd. (the "Company"),
VFE Merger Corp. ("MergerCo"), Xxxx X. Xxxxxxx, Xxxx and NIM (the "Merger
Agreement"), the Company is merging with and into MergerCo. Capitalized terms
not otherwise defined herein shall have the meanings ascribed to such terms in
the Merger Agreement.
X. Xxxx has been a principal shareholder and an officer, director and
employee of the Company and its subsidiaries for many years and has developed
and received special, unique and extraordinary knowledge, information and
goodwill in connection therewith.
C. It is a condition precedent to the consummation of the transactions
contemplated by the Merger Agreement, and an inducement to NIM to enter into the
Merger Agreement and effect the purchase of the Company and its wholly-owned
subsidiaries and their respective businesses thereunder and the goodwill
represented thereby, that the parties hereto execute and deliver this Agreement.
D. Capitalized terms used in this Agreement and not otherwise defined
shall have the meanings assigned to them in the Merger Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and for other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1 Non-Competition; Non-Solicitation. Commencing on the date hereof and ending on
the last day of the Restricted Period (as defined below), Xxxx covenants and
agrees that he will not, without NIM's prior written consent, directly or
indirectly, either on behalf of himself or on behalf of any business venture, as
an employee, consultant, partner, principal, stockholder, officer, director,
trustee, agent, or otherwise (other than on behalf of NIM or its Affiliates):
(A) be employed by, engage or participate in the ownership, management,
operation or control of, or act in any advisory, expert, consulting or other
capacity in the Territory (as defined below) for, any entity or individual that
competes with NIM or its Affiliates in the areas of pension administration,
insurance product sales, investment advisory services and other retirement
products in the geographical area within a radius of fifty (50) miles from
MergerCo's offices in Wayne, Pennsylvania (the "Territory");
(B) solicit or divert any business or any customer from NIM or its
Affiliates or assist any person, firm, corporation or other entity in doing so
or attempting to do so;
(C) cause or seek to cause any person, firm or corporation to refrain from
dealing or doing business with NIM or its Affiliates or assist any person, firm,
corporation or other entity in doing so; or
(D) hire, solicit or divert from NIM or its Affiliates any of their
respective employees, consultants or agents who have, at any time during the
immediately preceding one (1) year period from the date hereof or during the
Restricted Period, been engaged by NIM or its Affiliates, nor assist any person,
firm, corporation or other entity in doing so.
As used in this Agreement, the term "Affiliates" shall mean any entity
controlling, controlled by or under the common control of NIM. For the purpose
of this Agreement, "control" shall mean the direct or indirect ownership of
fifty (50%) percent or more of the outstanding shares or other voting rights of
an entity or possession, directly or indirectly, of the power to direct or cause
the direction of management and policies of an entity.
As used in this Agreement, "Restricted Period" means the period commencing
on the date hereof and ending on the later of (i) three (3) years from the date
hereof and (ii) one (1) year from the date of his termination of employment with
the Company, or any Affiliate of the Company, for any reason.
2 Nondisclosure. Xxxx understands and agrees that the business of the Company
and its Affiliates is based upon specialized work and Confidential Information
(as hereinafter defined). Xxxx agrees that, for a period of three (3) years
following the termination of Xxxx'x employment with MergerCo or any Affiliate of
MergerCo, he shall keep secret all such Confidential Information and that he
will not, directly or indirectly, use for his own benefit or for the benefit of
others nor Disclose (as hereinafter defined), without the prior written consent
of NIM, any Confidential Information. At any time upon NIM's request, Xxxx shall
turn over to MergerCo all books, notes, memoranda, manuals, notebooks, records
and other documents made, compiled by, delivered to, or in the possession or
control of Xxxx containing or concerning any Confidential Information, including
all copies thereof, in any form or format, including any computer hard disks,
wherever located, containing any such information, it being agreed that the same
and all information contained therein are at all times the exclusive property of
NIM and its Affiliates.
As used in this Agreement, the term "Confidential Information" means any
information or compilation of information not generally known to the public or
the industry, that is proprietary or confidential to NIM, its Affiliates and/or
those doing business with NIM and/or its Affiliates, including but not limited
to know-how, process, techniques, methods, plans, specifications, trade secrets,
patents, copyrights, supplier lists, customer lists, mailing lists, financial
information, business plans and/or policies, methods of operation, sales and
marketing plans and any other information acquired or developed by Xxxx in the
course of his past, present and future dealings with NIM and its Affiliates,
which is not available to the public.
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"Confidential Information" does not include any information, datum or
fact: (a) currently available to the public as of the date hereof; (b) after it
becomes available to the public other than as a result of a breach hereof or
other wrongful conduct by Executive; (c) after it becomes available to Executive
on a nonconfidential basis from a source other than the Company or its
Affiliates or a person or entity breaching his or its confidentiality agreement
or other relationship of confidence with the Company or its Affiliates; or (d)
developed independently by Executive without any reference to or use whatsoever
of any Confidential Information of the Company or its Affiliates.
As used in this Agreement, the term "Disclose" means to reveal, deliver,
divulge, disclose, publish, copy, communicate, show, allow or permit access to,
or otherwise make known or available to any third party, any of the Confidential
Information.
3 Blue Pencil Doctrine. In the event that the restrictive covenants contained in
Section 1 and/or Section 2 of this Agreement shall be found by a court of
competent jurisdiction to be unreasonable by reason of such restrictive
covenants extending for too great a period of time or over too great a
geographic area or by reason of such restrictive covenants being too extensive
in any other respect, then such restrictive covenant shall be deemed modified to
the minimum extent necessary to make such restrictive covenant reasonable and
enforceable under the circumstances.
4 Injunctive Relief. If Xxxx shall breach or threaten to breach any of the
provisions of Section 1 and/or Section 2, in addition to and without limiting
any other remedies available to NIM at law or in equity, NIM shall be entitled
to seek immediate injunctive relief in any court to restrain any such breach or
threatened breach and to enforce the provisions of Section 1 and/or Section 2,
as the case may be. Xxxx acknowledges and agrees that there is no adequate
remedy at law for any such breach or threatened breach and, in the event that
any proceeding is brought seeking injunctive relief, Xxxx shall not use as a
defense thereto that there is an adequate remedy at law.
5 Reasonableness of Covenants. Xxxx acknowledges and agrees that the restrictive
covenants contained in this Agreement are a necessary inducement to Purchaser
purchasing Xxxx'x ownership interests in the Company and its subsidiaries, and
that the scope (geographic and otherwise) and period of duration of the
restrictive covenants contained in this Agreement are both fair and reasonable
and that the interests sought to be protected by NIM are legitimate business
interests entitled to be protected. Xxxx further acknowledges and agrees that
NIM would not have purchased Xxxx'x ownership interests in the Company and its
subsidiaries pursuant to the Purchase Agreement unless Xxxx entered into this
Agreement.
6 General Provisions.
(A) Entire Agreement. This Agreement, together with the Merger Agreement
and any other agreements contemplated thereby, contain the entire agreement of
the parties hereto with respect to the subject matter hereof, and supersede all
prior or contemporaneous agreements and understandings, oral or written, among
the parties hereto and thereto with respect to the subject matter hereof and
thereof.
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(B) Amendment; Waiver. No amendment or waiver of any provision of this
Agreement shall be effective unless the same shall be in writing and signed by
all of the parties and then such waiver shall only be effective in the specific
instance and for the specific purpose for which it was given.
(C) Notices. All notices and other communications under this Agreement
shall be in writing and shall be given in accordance with the notice provisions
of the Purchase Agreement.
(D) Assignment. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, personal
representative(s), successors and permitted assigns. This Agreement may be
assigned to, and thereupon shall inure to the benefit of, any organization which
succeeds to substantially all of the business or assets of NIM, whether by means
of merger, consolidation, acquisition of all or substantially all of the assets
of NIM or otherwise, including, without limitation, by operation of law.
(E) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed in that state, without regard to any of its principles of
conflicts of laws or other laws that would result in the application of the laws
of another jurisdiction. This Agreement shall be construed and interpreted
without regard to any presumption against the party causing this Agreement to be
drafted. Each of the parties hereby unconditionally and irrevocably waives the
right to a trial by jury in any action, suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby. Each of the
parties unconditionally and irrevocably consents to the exclusive jurisdiction
of the courts of the State of New York located in the County of New York and the
Federal district court for the Southern District of New York located in the
County of New York with respect to any suit, action or proceeding arising out of
or relating to this Agreement or the transactions contemplated hereby, and each
of the parties hereby unconditionally and irrevocably waives any objection to
venue in any such court.
(F) Recovery of Attorneys' Fees and Costs. If any action for breach of or
to enforce the provisions of this Agreement is commenced, the court in such
action shall award to the party in whose favor a judgment is entered, a
reasonable sum as attorneys' fees and costs. Such attorneys' fees and costs
shall be paid by the non-prevailing party in such action.
(G) Headings. The headings to the paragraphs of this Agreement are
intended for the convenience of the parties only and shall in no way be held to
explain, modify, amplify or aid in the interpretation of the provisions hereof.
(H) Severability. The provisions of this Agreement shall be deemed
severable and if any portion hereof shall be held invalid, illegal or
unenforceable for any reason by a court of competent jurisdiction, the remainder
shall not thereby be invalidated but shall remain in full force and effect.
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(I) Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original but all of which together shall constitute one
and the same agreement. In addition, the parties may execute multiple original
copies of this Agreement, each of which shall be considered an original, but all
of which shall be considered the same Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first set forth above.
NATIONAL INVESTMENT MANAGERS INC.
By: __________________________
Name:
Title:
______________________________
XXXXXX X. XXXX
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NON-COMPETITION, NON-DISCLOSURE AND
NON-SOLICITATION AGREEMENT]
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