EXHIBIT 99.1
CONFIDENTIALITY AND NONSOLICITATION AGREEMENT
THIS CONFIDENTIALITY AND NONSOLICITATION AGREEMENT (this "Agreement") is
executed and delivered effective as of _______________, 2005 (the "Effective
Date"), by and among MICROFIELD GROUP, INC., an Oregon corporation
("Corporation"), and [ ].
RECITALS
A. Corporation's primary business consists of the provision of electrical
and data services and engaging in electric and related energy transactions (the
"Business").
B. Simultaneously with the execution and delivery of this Agreement, the
Corporation's subsidiary, ECI Acquisition Co., is merging with EnergyConnect
Inc., a Nevada corporation ("ECI"), pursuant to that certain Merger Agreement
between Corporation and ECI of even date herewith ("Merger Agreement").
C. [ ] is a founder, employee, and stockholder of ECI and has access to
and is familiar with confidential information and the business methods of ECI.
D. Immediately following the merger, [ ] will become an employee of
Corporation and/or one or more of its subsidiaries and will have access to and
will become acquainted with certain proprietary and confidential information of
Corporation, and will continue to have access to and become acquainted with such
confidential and proprietary information during [ ]'s time of employment. [ ]
will also become acquainted with suppliers, customers, and employees of
Corporation and affiliates of Corporation.
E. Corporation will sustain great loss and damage if, during the term of
this Agreement, for whatever reason, [ ] should violate the provisions of this
Agreement. [ ] acknowledges that such a violation would cause irreparable harm
to Corporation and that Corporation would be entitled, without limitation, to
injunctive relief to remedy such violation.
F. The execution and delivery of this Agreement by [ ] is a condition to
Corporation's obligations to consummate the Merger Agreement and Corporation is
unwilling to consummate the Merger Agreement unless [ ] executes and delivers
this Agreement.
AGREEMENT
NOW THEREFORE, in consideration of the mutual promises, terms, and
conditions set forth herein and other good and valuable consideration, received
to the full satisfaction of each of them, the parties hereby agree as follows:
1. Agreement Not to Solicit Corporation's Customers. [ ] agrees that,
during his employment with Corporation and for a period of two (2) years
following voluntary termination of his employment with Corporation, he shall not
directly or indirectly:
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(a) solicit or encourage any current customer of Corporation, any
affiliate of Corporation, or ECI to seek competing Business services from
any person, firm, or business other than Corporation or any affiliate of
Corporation;
(b) disclose the identity of the customers of Corporation, any
affiliate of Corporation, or ECI to any business competitor of
Corporation, any affiliate of Corporation, or ECI.
For the purposes of this Agreement, "affiliate" shall mean any person or
entity that controls, is controlled by, or is under the common control of,
Corporation. For the purposes of this Agreement, "customers" shall mean those
commercial building and business operators for which the Corporation provides
energy management services, but shall not include electric grid operators or
major utilities which function in a capacity similar to a grid operator.
2. Agreement Not to Solicit Employees. [ ] agrees that at all times during
his employment with Corporation or any affiliate of Corporation and for a period
of two (2) years following his voluntary termination of employment with
Corporation or any affiliate of Corporation, he will not, directly or
indirectly, either for himself or for any other person or entity, call upon any
employee, agent, or independent contractor of Corporation, any affiliate of
Corporation, or ECI for the purpose or with the intent of enticing such person
or entity away from or out of the employ of, or engagement with, Corporation,
any affiliate of Corporation, or ECI.
3. Confidentiality. [ ] understands and acknowledges that Corporation's
business records and information, including those previously belonging to ECI,
are valuable and unique assets of its business, and are confidential in nature.
Such confidential information includes, but is not limited to, lists of
customers, pricing, business and marketing information, and other information
which constitutes valuable, special, and unique assets of Corporation,
affiliates of Corporation, and ECI. Other than in the ordinary scope of his
employment with Corporation, [ ] shall not, either during the term of employment
or at any time thereafter, disclose to any person or entity, any of
Corporation's, Corporation's affiliates', or ECI's confidential information,
directly or indirectly, or use any such information in any way. Such
confidential information shall include written information, information stored
on electronic media, and information retained in [ ]'s memory. [ ] further
agrees that neither during the term of employment or thereafter shall any
tangible form of such confidential information be removed from the offices of
Corporation, any affiliate of Corporation, or ECI, and that any and all such
information in tangible form which may be in the possession of [ ] upon any
termination of his employment will be immediately returned to Corporation, any
affiliate of Corporation, or ECI. The restrictions set forth in this Section 3
shall not apply to any information which (a) was in the public domain at the
time of disclosure to [ ], or after disclosure to [ ] becomes part of the public
knowledge or literature by acts other than those of [ ]; or (b) is information
pertaining to the Corporation, but not to ECI, which was in the possession of or
known to [ ] prior to receiving it from the Corporation; or (c) is disclosed to
[ ] on an unrestricted basis by a source other than the Corporation, provided
that [ ] is not aware that such disclosure by such source breaches a duty of
confidentiality to the Corporation by which the source is bound; or
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(d) is approved for release or use by written authorization of the Corporation.
In addition, provided that [ ] shall have given to the Corporation prompt
written notice of the request therefor, this Section 3 shall not preclude
disclosure of confidential information which is mandated by the lawful
requirement of a court or governmental agency.
4. Materiality. [ ] agrees that this Agreement is a material and
substantial part of the Merger Agreement.
5. Injunctive Relief. Because Corporation will be deemed to sustain loss
and damage as a result of any breach of the covenants in this Agreement by [ ]
and because of the immediate and irreparable damage that will be deemed to be
caused to Corporation, affiliates of Corporation, and ECI by such a breach for
which neither would have an adequate remedy, since monetary damages alone may
not be an adequate remedy, [ ] agrees that, in the event of a breach by [ ] of
the covenants in this Agreement, such covenants may be enforced by one or more
of Corporation, affiliates of Corporation, and ECI by, without limitation,
injunctions and restraining orders.
6. Reasonableness of Covenants. It is agreed by the parties that the
covenants in this Agreement impose a reasonable restraint on [ ] in light of the
activities and Business on the date of this Agreement of Corporation.
7. Severability of Covenants. The covenants in this Agreement are
severable and separate, and the unenforceability of any specific covenant shall
not affect the enforceability of any other covenant. Moreover, in the event any
court of competent jurisdiction shall determine that the scope, time, or
territorial restrictions set forth are unreasonable, then it is the intention of
the parties that such restrictions be enforced to the fullest extent which the
court deems reasonable, and this Agreement shall thereby be reformed.
8. No Outside Representations. This Agreement is the final, complete, and
exclusive statement and expression of the agreement among the parties hereto and
their affiliates with relation to the subject matter of this Agreement, it being
understood that there are no oral representations, understandings, or agreements
covering the same subject matter of this Agreement. This Agreement supersedes,
and cannot be varied, contradicted, or supplemented by evidence of any prior or
contemporaneous discussions, correspondence, or oral or written agreements of
any kind, except as set out in the Merger Agreement and the agreements executed
in association therewith and in any future written amendments thereto by the
parties hereto.
9. Binding Effect; Third Party Beneficiary. This Agreement, upon
execution, shall be binding upon the parties, enforceable in accordance with its
terms, and shall inure to the benefit of the parties hereto. This Agreement may
be assigned only upon written consent of the parties hereto.
10. No Waiver; Remedies Cumulative. No waiver by the parties hereto of any
default or breach of any term, condition, or covenant of this Agreement shall be
deemed to be a waiver of any subsequent default or breach of the same or any
other term, condition, or covenant contained herein. No right, remedy, or
election given by any term of the Agreement shall be deemed
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exclusive but each shall be cumulative with all other rights, remedies, and
elections available at law or in equity.
11. Knowledge; Advice of Counsel. [ ] hereby represents and warrants that
he has read and understands each of the provisions of this Agreement and that he
has sought and obtained the advice of legal counsel before agreeing to be bound
by the terms hereof. [ ] represents and warrants to Corporation that this
Agreement is a valid and binding obligation of [ ], enforceable against him in
accordance with its terms. [ ] acknowledges and agrees that Corporation would
not have agreed to the Merger Agreement but for the execution, delivery, and
performance by [ ] of this Agreement.
12. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the state of Oregon without giving effect
to any choice or conflict of law provision or rule (whether of the state of
Oregon or any other jurisdiction) that would cause the application of the laws
of any jurisdiction other than the state of Oregon. Jurisdiction and venue for
any legal proceeding shall be in a court of competent jurisdiction in Portland,
Oregon.
13. Attorney Fees. The parties agree that, in the case of any dispute
arising over the terms of this Agreement, the prevailing party shall be entitled
to receive as a component of its recovery all of its reasonable costs and
expenses of litigation (including, without limitation, attorney fees and
expenses, and court costs).
IN WITNESS WHEREOF, the parties have executed this Confidentiality and
Nonsolicitation Agreement as of the day and year first above written.
CORPORATION:
MICROFIELD GROUP, INC.,
an Oregon corporation
By:________________________________
Name:______________________________
Its:_______________________________
[ ]:
___________________________________
[ ]
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