NON-DISCLOSURE
AND
NON-SOLICITATION AGREEMENT
THIS NON-DISCLOSURE AND NON-SOLICITATION AGREEMENT
(“Agreement”),
dated as of April 3, 2008 (the "Effective Date"), by and between
Richard Kaplan (the “Seller”) and National Investment
Managers Inc., a Florida corporation
(“NIM”).
RECITALS
A.
Pursuant
to that certain Stock Purchase Agreement, dated as of April 3,
2008, by and among NIM, California
Investment Annuity Sales, Inc. (the
“Company”), Richard
L. Kaplan and Hana E. Kaplan Inter Vivos Trust Agreement dated
1/29/97 as amended and restated 1/10/03 and Anthony Delfino
(the “Purchase Agreement”), the Company is being
acquired by NIM. Capitalized terms not otherwise defined
herein shall have the meanings ascribed to such terms in the
Purchase Agreement.
B.
Seller
has been a principal shareholder and officer, director and
employee of the Company for many years, and was previously a
shareholder of VEBA
Administrators, Inc. doing
business as Benefit Planning, Inc., a California corporation
("BPI"), which is currently owned by Company, 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 Agreement, and an
inducement to NIM to enter into the Purchase Agreement and
effect the purchase of the Company and its respective
businesses thereunder and the goodwill represented thereby,
that the parties hereto execute and deliver this
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-Solicitation .
Commencing on the date hereof and ending on the last day of the
Restricted Period (as defined below), Seller covenants and agrees
that Seller will not, without NIM’s prior written consent,
directly or indirectly, either on behalf of Seller 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 Company or
BPI):
(A)
solicit
or divert any existing business or any existing customer from
NIM, the Company, BPI or its Affiliates or assist any person,
firm, corporation or other entity in doing so or attempting to
do so; or
(B)
cause
or seek to cause any person, firm or corporation that is doing
business with NIM or its Affiliates to refrain from doing
business with NIM or its Affiliates or assist any person,
firm, corporation or other entity in doing so; or
(C)
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, 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 two (2)
years from the date of Seller’s termination of
employment or consulting period with the Company or BPI for
any reason.
2
Nondisclosure .
Seller understands and agrees that the business of the Company and
its Affiliates is based upon specialized work and Confidential
Information (as hereinafter defined). Seller agrees that following
the termination of Seller’s employment or consulting period
with BPI and for two (2) years thereafter, Seller shall keep secret
all such Confidential Information and that Seller will not,
directly or indirectly, use for Seller’s 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, Seller shall
turn over to NIM all books, notes, memoranda, manuals, notebooks,
records and other documents made, compiled by, delivered to, or in
the possession or control of Seller containing or concerning any
Confidential Information, including all copies thereof, in any form
or format, and shall delete all such Confidential Information from
any computer hard disks under Seller's control, 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 Company or BPI.
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 propriet
