NON-SOLICITATION, NONDISCLOSURE AND CONFIDENTIALITY AGREEMENT
Exhibit
10.8
NON-SOLICITATION,
NONDISCLOSURE AND
CONFIDENTIALITY
AGREEMENT
THIS
AGREEMENT is made on May 9, 2008 between GSC Acquisition Company, a Delaware
corporation (the “Company”) and Xxxxx X. Xxxxxx
(“PJD”).
WHEREAS,
the Company, GSCAC Holdings I LLC, a Delaware limited liability company, GSCAC
Holdings II LLC, a Delaware limited liability company, GSCAC Merger Sub LLC, a
Delaware limited liability company (“MergerSub”) and Complete
Energy Holdings, LLC, a Delaware limited liability company (“CEH”) entered into an
Agreement and Plan of Merger, dated as of May 9, 2008, (the “Merger Agreement”) upon the
consummation of which Merger Sub will be merged with and into CEH, with CEH as
the surviving entity and a subsidiary of the Company;
WHEREAS,
in connection with and by virtue of the transactions contemplated by the Merger
Agreement, PJD will transfer all his rights, title and interests in CEH in
exchange for a portion of the “CEH Group Merger Consideration” (as
defined in and determined pursuant to Exhibit F to the Merger
Agreement);
WHEREAS,
the Company and PJD desire to memorialize his agreement, in exchange for a
portion of the CEH Group Merger Consideration, not to solicit employees of the
Company or its affiliates or disclose any confidential information of the
Company or any of its affiliates as provided herein;
NOW,
THEREFORE, in consideration of the premises and mutual covenants herein, the CEH
Group Merger Consideration and for other good and valuable consideration, the
parties agree as follows:
1. Non-Solicitation. During
the two-year period beginning on the Closing Date (as defined in the Merger
Agreement) (the “Restricted
Period”), PJD will not induce any employee of the Company or its
affiliates to terminate his or her employment with the Company or its
affiliates, or solicit for hire or employment or assist in the hiring or
employment of any such employee by any Person (as defined in the Merger
Agreement) not affiliated with the Company unless such employee shall have
ceased to be employed by the Company or any of its affiliates for a period of at
least 12 months; provided,
however, that this Section 1 shall not apply to any solicitation (or
hiring or employment as a result of any solicitation) that consists of
advertising in a newspaper or periodical of general circulation or through the
Internet.
2. Nondisclosure and Nonuse of
Confidential Information. During the Restricted Period, PJD
agrees not to disclose to others, use for his own benefit or purposes or the
benefit or purposes of any other Person other than the Company and any of its
affiliates, any trade secrets, information, data, or other confidential
information
relating to customers, development programs, costs, marketing, trading,
investment, sales activities, promotion, business planning, credit and financial
data, manufacturing processes, financing methods, plans, or the business and
affairs of the Company generally, or of any affiliate of the Company; provided that the foregoing
shall not apply to (a) confidential information which is or becomes a part of
the public domain or is available to the public by publication or otherwise
without disclosure by PJD; (b) confidential information which, either prior or
subsequent to the Company’s disclosure to PJD, was disclosed to PJD, without an
obligation of confidentiality, by a third party who did not acquire such
information, directly or indirectly from PJD or the Company, or from any third
party who is under an obligation of confidentiality; or (c) any disclosure of
confidential information by PJD which is required by law, including deposition
or trial testimony by PJD pursuant to subpoena. If PJD is requested
or required (by oral questions, interrogatories, requests for information or
documents, subpoena, civil investigative demand, or similar process) to disclose
any confidential information, PJD will promptly notify the Company of such
request or requirements so that the Company may seek an appropriate protective
order or waive compliance with the provisions of this Agreement. PJD
confirms that he has returned to the Company all memoranda, books, papers,
plans, information, letters and other data, and all copies thereof or therefrom,
in any way relating to the business of the Company and its affiliates, other
than personal notes, notebooks and diaries. PJD further agrees that
he will not retain or use for his account at any time any trade names, trademark
or other proprietary business designation used or owned in connection with the
business of the Company or its affiliates.
3. Specific
Performance. PJD acknowledges and agrees that the Company’s
remedies at law for a breach or threatened breach of any of the provisions of
Section 1 or Section 2 would be inadequate and, in recognition of this fact, PJD
agrees that, in the event of such a breach or threatened breach, in addition to
any remedies at law, the Company, without posting any bond, shall be entitled to
obtain equitable relief in the form of specific performance, temporary
restraining order, temporary or permanent injunction or any other equitable
remedy which may then be available.
4. Assignment. This
Agreement shall not be assignable by PJD.
5. Successors; Binding
Agreement. This Agreement shall inure to the benefit of and be
binding upon personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees.
6. Counterparts;
Effectiveness. This Agreement may be signed in counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument. This Agreement
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shall
become effective when each party hereto shall have received a counterpart hereof
signed by the other party hereto.
7. Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas.
8. Severability. Should
a court determine that any provision in this Agreement is illegal or
unenforceable, such determination shall solely affect such provision and shall
not impair the remaining provisions of this Agreement.
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IN WITNESS
WHEREOF, the parties hereto have duly executed this Agreement as of the day and
year first above written.
| GSC ACQUISITION COMPANY | XXXXX X. XXXXXX | ||||
| By: |
/s/
Xxxxxxx Xxxxxxx
|
/s/
Xxxxx X. Xxxxxx
|
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|
Name:
Xxxxxxx Xxxxxxx
|
Name: Xxxxx
X. Xxxxxx
|
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|
Title: President
|
Address:
Managing Director
|
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