Exhibit 10.3
NON-SOLICITATION AGREEMENT
This Non-Solicitation Agreement (this "AGREEMENT") is executed as of April
20, 2006 and effective as of the Effective Time (as such term is defined in the
Merger Agreement) and is by and between Petrohawk Energy Corporation, a Delaware
corporation ("PARENT"), and ________________, an individual residing in the
State of Texas ("EXECUTIVE", and together with Parent, the "PARTIES" and each
individually, a "PARTY").
RECITALS
A. Pursuant to an Agreement and Plan of Merger (the "MERGER AGREEMENT") of
even date herewith, by and among Parent, Hawk Nest Corporation, a Delaware
corporation and a wholly-owned subsidiary of Parent ("PURCHASER"), and KCS
Energy, Inc., a Delaware corporation ("COMPANY"), Parent shall acquire all of
the outstanding shares of capital stock of Company through a merger of Purchaser
with the Company and a merger of the Company with Parent (the "MERGER").
B. The Parties have executed and delivered this Agreement in connection
with the execution of the Merger Agreement.
C. Parent would not have entered into the Merger Agreement if Executive did
not enter into this Agreement, and Executive is receiving substantial benefits
under the Merger Agreement.
D. Undefined capitalized terms herein are defined in the Merger Agreement.
STATEMENT OF AGREEMENT
NOW, THEREFORE, the Parties, intending to be legally bound and for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, hereby agree as follows:
Section 1. Acknowledgment by Executive. Executive acknowledges that he is a
stockholder of Company and/or has Company Options and has been employed by
Company and, in such capacity, has occupied a position of trust and confidence
with Company prior to the date hereof and has become familiar with confidential
information concerning the businesses and affairs of Company and Parent
("CONFIDENTIAL INFORMATION").
Section 2. Agreements. In consideration of the substantial benefits that
Executive is receiving under the Merger Agreement, Executive hereby agrees with
Parent as follows:
(a) Non-Solicitation. In an effort to assure that Parent and Company will
realize the benefits of the transactions and in consideration of the substantial
benefits that Executive is receiving under the Merger Agreement, Executive
hereby agrees with Parent as follows:
From the Effective Time until the second anniversary thereof, Executive
shall not, directly or indirectly (i) employ or solicit for employment or
other similar relationship with Executive or any of Executive's Affiliates
or any other Person, any Person known to
Executive to be an employee of Parent, Company, or any of their Affiliates,
or any Person known to Executive to have been an employee of Parent,
Company, or any of their Affiliates, within the six month period
immediately preceding such solicitation of employment (it is agreed and
acknowledged that Executive has knowledge of all Persons who were employees
of the Company at the Effective Time and subsequently became employees of
Parent); (ii) encourage, induce, or attempt to induce any employee of
Parent, Company, or any of their Affiliates to terminate such employee's
employment or independent contractor's active contractual relationship with
such Person; or (iii) in any manner whatsoever, encourage, incite or induce
any customer of Company, Parent or any of their Affiliates to terminate, in
whole or part, its business relationship with Company, Parent or any of
their Affiliates. Notwithstanding the foregoing, Executive shall not be
prohibited from employing or soliciting for employment or other similar
relationship those employees of Parent, Company, or any of their
Affiliates, who are terminated by Parent without "cause" or who terminate
their employment with Parent for "Good Reason" as such terms are defined in
the Company's Severance Policy or such employee's employment agreement or
change of control agreement, as applicable,
For purposes of this Agreement, "AFFILIATE" means a Person that, directly or
indirectly, through one or more intermediaries, controls or is controlled by, or
is under common control with, such specified Person. For this definition,
"control" (and its derivatives) means the possession, directly or indirectly, or
as trustee or executor, of the power to direct or cause the direction of the
management and policies of a Person, whether through ownership of voting equity
interests, as trustee or executor, by contract or credit arrangements or
otherwise.
(b) Use of Confidential Information. From the Effective Time until the
second anniversary thereof, Executive will not use for Executive's personal
benefit, or disclose, communicate, divulge to, or use for the direct or indirect
benefit of any Person other than Parent, Company, or any of their Affiliates any
of the Confidential Information. This Section 2(b) will be in addition to (and
not a limitation of) any legally applicable protections of Parent's or Company's
interest in confidential information, trade secrets, and the like.
Section 3. Submission to Jurisdiction; Notification. Executive agrees to
the jurisdiction of an appropriate Governmental Authority in the State of Texas
for the enforcement of Section 2. Parent may, without notifying Executive,
notify any Person of Executive's rights and obligations under Section 2.
Section 4. Miscellaneous.
(a) Entire Agreement. Other than the Merger Agreement and the
Confidentiality Agreement, this Agreement constitutes the entire agreement and
understanding of the Parties in respect of its subject matters and supersedes
all prior understandings, agreements, or representations by or among the
Parties, written or oral, to the extent they relate to the subject matter
hereof.
(b) Successors. All of the terms, agreements, covenants, representations,
warranties, and conditions of this Agreement are binding upon, and inure to the
benefit of and are enforceable by, the Parties and their respective successors.
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(c) Assignment. The obligations of Executive are personal and may not be
assigned or delegated by him or transferred in any manner whatsoever.
(d) Notices. All notices or communications hereunder will be in writing
(including facsimile or other writing) addressed as follows:
If to Parent:
Petrohawk Energy Corporation
0000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
Attn: Xxxxx X. Xxxxxx
Copy to (which will not constitute notice):
Xxxxxx Xxxxxxx Law Firm L.L.C.
000 X. Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxxx 00000
Facsimile: (000)-000-0000
Attn: Xxxxx X. Xxxxxxx
If to Executive:
______________________________
______________________________
______________________________
Facsimile: ___________________
Any such notice or communication shall be deemed given (i) when made, if made by
hand delivery, and upon confirmation of receipt, if made by facsimile, (ii) one
business day after being deposited with a next-day courier, postage prepaid, or
(iii) three business days after being sent certified or registered mail, return
receipt requested, postage prepaid, in each case addressed as above (or to such
other address as such party may designate in writing from time to time).
(e) Specific Performance; Remedies. Executive acknowledges and agrees that
Parent, Company and their Affiliates would be damaged irreparably if any
provision of this Agreement is not performed in accordance with its specific
terms or is otherwise breached. Accordingly, Executive agrees that the Parent,
Company and their Affiliates will be entitled to pursue an injunction or
injunctions to prevent breaches of the provisions of this Agreement and to
enforce specifically this Agreement and its terms and provisions in any action
instituted in any court of the United States or any state thereof having
jurisdiction over the Parties and the matter, in addition to any other remedy to
which they may be entitled at law or in equity; provided, however, that the
foregoing remedies will in no way limit any other remedies that Parent, Company
and their Affiliates may have.
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(f) Time. Time is of the essence in the performance of this Agreement.
(g) Counterparts. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original but all of which together
will constitute one and the same instrument.
(h) Headings. The section and subsection headings contained in this
Agreement are inserted for convenience only and will not affect in any way the
meaning or interpretation of this Agreement.
(i) Governing Law. This Agreement and the performance of the Parties'
obligations hereunder will be governed by and construed in accordance with the
laws of the State of Texas, without giving effect to any choice of law
principles.
(j) Submission to Jurisdiction. Each Party submits to the non-exclusive
jurisdiction of any state or federal court sitting in Xxxxxx County, Texas, in
any action arising out of or relating to this Agreement and agrees that all
claims in respect of the action may be heard and determined in any such court.
Each Party agrees that a final judgment in any action so brought will be
conclusive and may be enforced by action on the judgment or in any other manner
provided at law or in equity. Each Party waives any defense of inconvenient
forum to the maintenance of any action so brought and waives any bond, surety,
or other security that might be required of any other Party with respect
thereto.
(k) Amendments and Waivers. No amendment, modification, replacement,
termination, or cancellation of any provision of this Agreement will be valid,
unless the same will be in writing and signed by the Parties.
(l) Attorneys' Fees; Expenses. If any action at law or in equity, including
any action for declaratory or injunctive relief, is brought to enforce or
interpret the provisions of this Agreement, the substantially prevailing party
shall be entitled to recover reasonable attorneys' fees from the non-prevailing
party, which fees may be set by the court in the trial of such action or may be
enforced in a separate action brought for that purpose, and which fees shall be
in addition to any other relief which may be awarded. Except as otherwise
expressly provided in this Agreement, each Party will bear its own costs and
expenses incurred in connection with the preparation, execution and performance
of this Agreement; provided that Company shall bear the costs and expenses
incurred by Executive in connection with negotiating this Agreement.
(m) Termination of Merger Agreement. If the Merger Agreement terminates,
this Agreement shall automatically terminate and be of no force or effect.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have executed and delivered this
Non-Solicitation Agreement as of the date first above written.
PETROHAWK ENERGY CORPORATION
By:
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Name: Xxxxx X. Xxxxxx
Title: Chairman, President and Chief
Executive Officer
EXECUTIVE
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Name: , individually
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