This NonDisclosure Agreement NDA involves
Title: NONCOMPETITION AND NONDISCLOSURE AGREEMENT
Governing Law: Delaware Date: 9/2/2014
Industry: Misc. Fabricated Products Sector: Basic Materials
NONCOMPETITION AND NONDISCLOSURE AGREEMENT
THIS NONCOMPETITION AND NONDISCLOSURE AGREEMENT (this “Agreement”) is entered into and effective as of July 18, 2014 between NN, Inc., a Delaware corporation (“Company”), and John C. Kennedy, an individual (“Kennedy”).
WHEREAS, Company and Autocam Corporation, a Michigan Corporation (“Autocam”), have entered into that certain Agreement and Plan of Merger dated as of the date hereof (the “Merger Agreement”), under which PMC Global Acquisition Corporation, a Michigan corporation and a wholly owned subsidiary of the Company, will merge with and into Autocam, and Autocam will continue as a wholly owned subsidiary of the Company (the “Merger”);
WHEREAS, Kennedy owns a majority of shares of Autocam before the Merger, received consideration from the Company in connection with the Merger, and is a stockholder of the Company;
WHEREAS, Autocam engages in the precision metal components business for the transportation industry (the “Autocam Business”);
WHEREAS, the Company engages in the precision metal components business for the automotive industry, aerospace industry, industrial machinery, precision shafts, small tool components, and other industrial and consumer products using precision metal components and assemblies (the “Company Business”) throughout the world;
WHEREAS, Kennedy has had access to knowledge of Autocam’s trade secrets and other confidential and proprietary information and will have access to knowledge of the Company’s trade secrets and other confidential and proprietary information and that it is of vital importance to the success of the Company for Kennedy (i) not to compete against the Company and its business and activities for a specified period of time after the Merger and (ii) not to disclose Company’s trade secrets and other proprietary information; and
WHEREAS, capitalized terms not defined herein shall have the meaning ascribed to them in the Merger Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows
1. Noncompetition Covenants . Kennedy covenants and agrees:
(a) For a period of three (3) years commencing on the Closing Date (the “Restricted Period”), Kennedy shall not, nor shall Kennedy permit any of his Affiliates, directly or indirectly, (i) engage in or assist others in engaging in the Autocam Business; (ii) have an interest in any Person that engages directly or indirectly in the Autocam Business in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee, or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed before or after the date of this Agreement) between the Company and customers or suppliers of the Company. Notwithstanding the foregoing, Kennedy may own, directly, or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if Kennedy is not a controlling Person of, or a member of a group which controls, such Person and does not, directly or indirectly, own five percent (5%) or more of any class of securities of such Person.
(b) During the Restricted Period, Kennedy shall not permit any of its Affiliates to, directly or indirectly, hire or solicit any employee of the Company or encourage any such employee to leave such employment or hire any such employee who has left such employment, except pursuant to a general solicitation which is not directed specifically to any such employees; provided, that nothing in this Section 1 shall prevent Kennedy or any of his Affiliates from hiring (i) any employee whose employment has been terminated by the Company before the Merger, (ii) any employee whose employment has been terminated by the Company after the Merger one-hundred eighty (180) days from the date of termination of employment; or (iii) Jesse Miramontes (a current employee of the Company) and any Kennedy family member (including, without limitation, Nancy Kennedy (wife) or John C. Kennedy, IV (son) who are currently employed by the Company).
(c) During the Restricted Period, Kennedy shall not permit any of his Affiliates to, directly or indirectly, solicit or entice, or attempt to solicit or entice, any clients or customers of the Company or potential clients or customers of the Company for purposes of diverting their business or services from the Company.
(d) During the Restricted Period, Kennedy shall provide written notice as soon as reasonably possible (it being agreed that ninety (90) days prior written notice is acceptable) before (i) Kennedy or any of his Affiliates begin to engage in the Company Business excluding the medical device business or (ii) Kennedy or any of his Affiliates enter into a transaction to acquire the stock or substantially all of the assets of any Person that engages in the Company Business excluding the medical device business.
(e) Kennedy acknowledges that the restrictions contained in this Section are reasonable and necessary to protect the legitimate interests of the Company. In the event that any covenant contained in this Section should ever be adjudicated to exceed the time, geographic, product, or service, or other limitations permitted by applicable law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable law. The covenants contained in this Section and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
(f) If Kennedy violates any of the provisions of this Section 1, the computation of the time period provided in this Section 1 shall be tolled from the first date of the breach until (i) the date judicial relief is obtained by the Company, (ii) the Company states in writing that it will seek no judicial relief for said violation, or (iii) Kennedy provides satisfactory evidence to the Company that such breach has been terminated.
2. Non-Disclosure Covenants .
(a) Kennedy covenants and represents that Kennedy has no interest in or claim to any information, whether or not in writing, of a private, secret, or confidential nature concerning the Company or Autocam (collectively, the “Proprietary Information”). Except as may otherwise be required by law, Kennedy agrees not to, without the Company’s prior written consent, (i) disclose or transfer any Proprietary Information to any Person other than the Company or (ii) use any Proprietary Information for any unauthorized purpose, either during the term of this Agreement or the Restricted Period, unless and until such Proprietary Information has become available to the public generally without fault by Kennedy.
(b) Kennedy agrees that the portions of all files, letters, memoranda, reports, records, data, disks, electronic storage media, sketches, drawings, notebooks, program listings, or other written, photographic, or tangible material containing Proprietary Information (collectively, “Records”), whet