EXHIBIT 10.5
NON-COMPETITION, NON-DISCLOSURE
AND
NON-SOLICITATION AGREEMENT
THIS NON-COMPETITION, NON-DISCLOSURE AND NON-SOLICITATION AGREEMENT
("Agreement"), dated this 2nd day of August 2005 (the "Effective Date"), by and
between Xxxxxxx X. Xxxxx ("Xxxxx") and National Investment Managers Inc., a
Florida corporation (the "Purchaser").
RECITALS
A. Pursuant to those certain Stock Purchase Agreements, each dated August
2, 2005, by and among (i) Xxxxxxx X. Xxxxx & Associates, Inc. ("SHRA and,
collectively, with Haddon Strategic Alliances, Inc., the "Companies"), Xxxxx,
Xxxxxxxxx Xxxxxx and the Purchaser, and (ii) Haddon Strategic Alliances, Inc.
Xxxx Xxxxxxx and the Purchaser (collectively, the "Purchase Agreements"), the
Purchaser is acquiring 100% of the Companies' issued and outstanding common
stock, including Xxxxx'x controlling interest therein. Capitalized terms not
otherwise defined herein shall have the meanings ascribed to such terms in the
Purchase Agreements.
X. Xxxxx has been a principal shareholder and an officer, director and
employee of the Companies 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 Purchase Agreements, and an inducement to the Purchaser to
enter into the Purchase Agreements and effect the purchase of the Companies 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 Purchase Agreements.
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), Xxxxx
covenants and agrees that he will not, without the Purchaser'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 the Purchaser 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 for, any entity or individual that competes with
the Purchaser or its Affiliates in the areas of pension administration,
insurance product sales, investment advisory services and other retirement
products, in the following territory: in Pennsylvania - the counties of Bucks,
Xxxxxxx, Delaware, Xxxxxxxxxx and Philadelphia; and in New Jersey - the counties
of Burlington, Camden, Cumberland, Gloucester, Xxxxxx and Salem;
(B) solicit or divert any business or any customer from the Purchaser 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 the Purchaser or its Affiliates or assist any
person, firm, corporation or other entity in doing so; or
(D) hire, solicit or divert from the Purchaser 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 the
Restricted Period, been engaged by the Purchaser 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 the Purchaser. 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 as follows: If the Purchaser or SHRA does not
offer Xxxxx an extension ("Extension") of his employment agreement, of even date
herewith, with SHRA beyond the expiration date of the original one-year term
("Expiration Date"), then the Restricted Period shall be one (1) year from the
date hereof. If the Purchaser or SHRA offers Xxxxx an Extension, then the
Restricted Period shall extend until the later of (i) two (2) years from the
date hereof and (ii) one (1) year from the date of his termination of employment
with the SHRA, or any Affiliate of SHRA, for any reason.
2 Nondisclosure. Xxxxx understands and agrees that the business of the Purchaser
and its Affiliates is based upon specialized work and Confidential Information
(as hereinafter defined). Xxxxx agrees that during the Restricted Period, 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 the
Purchaser, any Confidential Information. At any time upon the Purchaser's
request, Xxxxx shall turn over to the Purchaser all books, notes, memoranda,
manuals, notebooks, records and other documents made, compiled by, delivered to,
or in the possession or control of Xxxxx 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 the Purchaser and its Affiliates.
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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 the Purchaser, its
Affiliates and/or those doing business with the Purchaser 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 Xxxxx in the course of his past, present and future
dealings with the Purchaser and its Affiliates, which is not readily available
to the public.
"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 Xxxxx 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 the Purchaser at law or in equity, the Purchaser
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. Xxxxx 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, Xxxxx shall
not use as a defense thereto that there is an adequate remedy at law.
5 Reasonableness of Covenants. Xxxxx acknowledges and agrees that the
restrictive covenants contained in this Agreement are a necessary inducement to
Purchaser purchasing Xxxxx'x ownership interests in the Companies, 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
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interests sought to be protected by the Purchaser are legitimate business
interests entitled to be protected. Xxxxx further acknowledges and agrees that
the Purchaser would not have purchased Xxxxx'x ownership interests in the
Companies pursuant to the Purchase Agreement unless Xxxxx entered into this
Agreement.
6 General Provisions.
(A) Entire Agreement. This Agreement, together with the Purchase
Agreements 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.
(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 Agreements.
(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 the Purchaser,
whether by means of merger, consolidation, acquisition of all or substantially
all of the assets of the Purchaser 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.
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(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.
(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.
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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:
-------------------------------
XXXXXXX X. XXXXX
[SIGNATURE PAGE -
NON-COMPETITION, NON-DISCLOSURE AND
NON-SOLICITATION AGREEMENT - SHR]
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