Noncompetition, Nondisclosure and Nonsolicitation Agreement
This Noncompetition, Nondisclosure and
Nonsolicitation Agreement (this “Agreement”)
is made as of February 14, 2008, by and between Best Energy Services, Inc., a
Nevada corporation
(“Buyer”),
and Xxxx Xxxxx (“Seller”).
Recitals:
Whereas,
Seller owns all of the issued and outstanding capital stock of Best Well
Service, Inc., a Kansas corporation (the “Company”),
engaged in the business of operating workover rigs and the
rental of oil field services, including operating workover rigs and providing
ancillary equipment and services (the “Business”);
Whereas,
concurrently with the execution and delivery of this Agreement, Buyer is
purchasing from the Seller the Purchased Shares, pursuant to the terms and
conditions of that certain stock purchase agreement dated February 14, 2008 (the
"Stock
Purchase Agreement"). Section 2.4(a)(iv) of the Stock Purchase Agreement
requires that a noncompetition agreement be executed and delivered by Seller at
the Closing. Capitalized terms not expressly defined in this Agreement shall
have the meanings ascribed to them in the Stock Purchase Agreement;
Whereas,
Buyer believes, and Seller hereby acknowledges, that the Confidential
Information (as hereinafter defined) is extremely important to the value of the
Company and to the success of the Business and Buyer desires to protect the
value of the Company and the Business by obtaining Seller’s agreement to refrain
from engaging in certain competition with the Business for a reasonable period
of time in a specified geographical area;
Whereas,
Seller’s covenant not-to-compete and other covenants contained herein are an
important aspect of the Stock Purchase Agreement, and Buyer would not enter into
the Stock Purchase Agreement absent the covenants not-to-compete and other
covenants contained herein;
Whereas, Buyer would suffer
damages, including the loss of profits, if Seller, or any of his affiliates,
engages, directly or indirectly, in competition with Buyer or any of its
affiliates in the Business or otherwise violates the covenants contained herein;
and
Whereas, Buyer and Seller have reached
this agreement in good faith through arms-length negotiations, both with the
benefit of representation of counsel.
Now, Therefore, for and in
consideration of the covenants not-to-compete and other covenants contained
herein and the consideration to be paid therefore, and other good and valuable
consideration, the receipt and adequ-acy of which consideration are hereby
acknowledged, and of the other promises, covenants and conditions contained
herein, the parties hereto agree as follows:
1. Acknowledgments
By Seller. Seller acknowledges that Seller has occupied a
position of trust and confidence with the Company prior to the date hereof and
has had access to and has become familiar with all of the proprietary and
confidential financial, commercial,
technical,
engineering or other information of the Company, whether in written, oral,
visual, or electronic form (collectively the "Confidential
Information"), including the following: (a) all information that is a
trade secret under applicable trade secret or other law; (b) all information
concerning product specifications, data, know-how, formulae, compositions,
processes, designs, sketches, photographs, graphs, drawings, samples, inventions
and ideas, past, current and planned research and development, current and
planned manufacturing or distribution methods and processes, customer lists,
current and anticipated customer requirements, price lists, market studies,
business plans, computer hardware, computer software and database technologies,
systems, structures and architectures; (c) all material information concerning
the business and affairs of the Company (which includes historical and current
financial statements, financial projections and budgets, Tax Returns and
accountants’ materials, historical, current and projected sales, capital
spending budgets and plans, business plans, strategic plans, marketing and
advertising plans, publications, client and customer lists and files, contracts,
the names and backgrounds of key personnel and personnel training techniques and
materials, however documented), regardless of the form of the communication; and
(d) all notes, analyses, compilations, studies, summaries and other material
prepared by Seller to the extent containing or based, in whole or in part, upon
any information included in the foregoing.
Seller
acknowledges that (a) the Business is regional in scope; (b) the products and
services of the Business are marketed throughout Arizona, Colorado, Kansas,
Nevada, Oklahoma and Texas; (c) the Business competes with other businesses that
are or could be located in the contiguous states to Arizona, Colorado, Kansas,
Nevada, Oklahoma and Texas; (d) Buyer has required that Seller make the
covenants set forth in Section 2 and Section 3 as a
condition to Buyer's acquisition of the Business and the purchase of the
Purchased Shares; (e) the provisions of Section 2 and Section 3 are
reasonable and necessary to protect and preserve the Business and the value of
the Company and Buyer's interests in the Company from and after Closing; and (f)
Buyer would be irreparably damaged if Seller were to breach the covenants set
forth in Section
2 and Section
3.
2. Confidential
Information. Seller acknowledges and agrees that the protection of the
Confidential Information is necessary to protect and preserve the Business and
the value of the Company. Therefore, Seller hereby agrees not to disclose to any
Persons or use for his own account or for the benefit of any third party any
Confidential Information, whether or not such information is embodied in writing
or other physical or electronic form or is retained in the memory of Seller,
without Buyer's prior written consent, unless and to the extent that the
Confidential Information is or becomes generally known to and available for use
by the public other than as a result of Seller's fault or the fault of any other
Person bound by a duty of confidentiality to Buyer or the Company. Seller agrees
to deliver to Buyer at the time of execution of this Agreement, and at any other
time Buyer may request, all documents, memoranda, notes, plans, records, reports
and other documentation, models, components, devices or computer software or
data, whether embodied in a disk or in other form (and all copies of all of the
foregoing), that contain Confidential Information and any other Confidential
Information that Seller may then possess or have under his control.
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3. Noncompetition
and Nonsolicitation. As an inducement for Buyer to enter into
the Stock Purchase Agreement and as additional consideration for the
consideration to be paid to the Company under the Stock Purchase Agreement,
Seller agrees that:
(a) For a
period of two years after the Closing:
(i) Seller
will not, directly or indirectly, engage or invest in, own, manage, operate,
finance, control or participate in the ownership, management, operation,
financing or control of, be employed or retained by, associated with or in any
manner connected with, or render services or advice or other aid to, or
guarantee any obligation of, any Person engaged in or planning to become engaged
in the industry or any other business whose products or activities compete in
whole or in part with the Business or the Company prior to the Closing or the
business thereafter conducted by Buyer, anywhere in Arizona, Colorado, Kansas,
Nevada, Oklahoma and Texas or any state that is
contiguous thereto; provided,
however,
that Seller may purchase or otherwise acquire up to (but not more than) one
percent of any class of securities of any enterprise (but without otherwise
participating in the activities of such enterprise) if such securities are
listed on any national or regional securities exchange or have been registered
under Section 12(g) of the Securities Exchange Act of 1934. Seller agrees that
this covenant is reasonable with respect to its duration, geographical area and
scope.
(ii) Seller
agrees not to, directly or indirectly, (A) induce or attempt to induce any
employee of the Company who becomes an employee of Buyer in connection with the
purchase of the Company to leave the employ of Buyer; (B) in any way interfere
with the relationship between Buyer and any such employee of Buyer; (C) employ
or otherwise engage as an employee, independent contractor or otherwise any such
employee of Buyer; or (D) induce or attempt to induce any customer, supplier,
licensee or other Person to cease doing business with Buyer or in any way
interfere with the relationship between any such customer, supplier, licensee or
other business entity and the Buyer.
(iii) Seller
agrees that he will not, directly or indirectly, solicit the business of any
Person who, to the knowledge of Seller is a customer of the Buyer, whether or
not such Seller had personal contact with such Person, with respect to products
or activities which compete in whole or in part with the Business or the
business thereafter conducted by Buyer by and through the Company.
(b) In the
event of a breach by Seller of any covenant set forth in Subsection 3(a)
of this Agreement, the term of such covenant will be extended by the period of
the duration of such breach;
(c) Seller
will not, at any time during or after the two year period, disparage Buyer, the
Company, the Business formerly conducted by the Company, the business conducted
by Buyer by and through the Company or any shareholder, director, officer,
employee or agent of Buyer; and
(d) Seller
will, for a period of two years after the Closing, within ten days after
accepting any employment, consulting engagement, engagement as an independent
contractor,
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partnership
or other association engaged in any business similar to the Business, advise
Buyer of the identity of the new employer, client, partner or other Person with
whom Seller has become associated. Buyer may serve notice upon each such Person
that such Seller is bound by this Agreement and furnish each such Person with a
copy of this Agreement or relevant portions thereof.
4. Remedies. If
Seller breaches the covenants set forth in Section 2 and Section 3, Buyer will
be entitled to the following remedies:
(a) Damages
from Seller; and
(b) In
addition to its right to damages and any other rights it may have, to temporary,
preliminary and permanent injunctive or other equitable relief to restrain any
breach or threatened breach or otherwise to specifically enforce the provisions
of Section 2
and Section 3,
without posting any bond or other undertaking, it being agreed that money
damages alone would be inadequate to compensate Buyer and would be an inadequate
remedy for such breach.
Any
exercise by Buyer and/or its affiliates of their rights pursuant to this Section 4 shall be
cumulative and in addition to any other remedies at law or equity to which they
may otherwise be entitled.
5. Waiver. Neither
the failure nor any delay by any party in exercising any right, power or
privilege under this Agreement will operate as a waiver of such right, power or
privilege, and no single or partial exercise of any such right, power or
privilege will preclude any other or further exercise of such right, power or
privilege or the exercise of any other right, power or privilege. To the maximum
extent permitted by applicable law: (a) no claim or right arising out of this
Agreement can be discharged, in whole or in part, by a waiver or renunciation of
the claim or right except in writing; (b) no waiver that may be given by a party
will be applicable except in the specific instance for which it is given; and
(c) no notice to or demand on one party will be deemed to be a waiver of any
obligation of such party, or of the right of the party giving such notice or
demand to require the other party, to take further action without notice or
demand as provided in this Agreement.
6. Governing
Law. This Agreement (including any claim or controversy
arising out of or relating to this Agreement) shall be governed by the law of
the State of Texas, without regard to conflict of law principles that would
result in the application of any law other than the law of the State of
Texas.
7. Dispute
Resolution. Except as provided below, in the event of any
dispute, claim or disagreement arising out of or relating to this Agreement or
any Contemplated Transaction, including the negotiation, execution,
interpretation, performance or non-performance of this Agreement, the parties
shall first submit the dispute, claim or disagreement to non-binding mediation
administered by the American Arbitration Association (the “AAA”) in
accordance with its Commercial Mediation Procedures. The place of
mediation shall be Dallas, Texas. If the dispute, claim or
disagreement is not resolved within 30 days after the initial mediation meeting
among the parties and the mediator, or if the mediation is otherwise
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terminated,
then either party may submit the dispute, claim or disagreement to binding
arbitration administered by the AAA in accordance with the provisions of its
Commercial Arbitration Rules (the “Rules”)
and, except as provided below, such arbitration shall be the sole means of
dispute resolution. The place of arbitration shall be Dallas,
Texas. The arbitration shall be conducted by a panel of three
arbitrators selected in accordance with the Rules, unless the parties otherwise
agree to one arbitrator. Any mediator or arbitrator selected under
this Section 7
shall be a practicing attorney experienced in commercial agreements and
acquisitions and shall not have been employed or engaged by or affiliated with
either of the parties or their respective affiliates. Each party
shall initially bear its own costs and expenses in connection with any mediation
or arbitration hereunder, including, without limitation, its attorneys’ fees,
and an equal share of the mediator’s or arbitrator’s and administrative fees of
mediation or arbitration. The decision of the arbitrators shall be in
writing. Judgment upon an arbitration award may be entered in any
court of competent jurisdiction and shall be final, binding and
non-appealable. Notwithstanding anything in this Section 7 to the
contrary, each party shall be entitled to seek injunctive or other equitable
relief without first submitting the matter to mediation or arbitration in
accordance with the provisions of this Section 7, even if a
similar or related matter has already been referred to meditation or arbitration
in accordance with the terms of this Section
7. Venue for any action permitted to be brought in court under
this Section 7
shall be the appropriate state and federal courts located in Dallas County,
Texas.
8. Severability. Whenever
possible, each provision and term of this Agreement will be interpreted in a
manner to be effective and valid, but if any provision or term of this Agreement
is held to be prohibited or invalid, then such provision or term will be
ineffective only to the extent of such prohibition or invalidity, without
invalidating or affecting in any manner whatsoever the remainder of such
provision or term or the remaining provisions or terms of this Agreement. If any
of the covenants set forth in Section 3 are held to
be unreasonable, arbitrary or against public policy, such covenants will be
considered divisible with respect to scope, time and geographic area, and in
such lesser scope, time and geographic area, will be effective, binding and
enforceable against Seller to the greatest extent permissible. Further, this
Agreement shall be deemed amended by modifying such provision to the extent
necessary to make it legal and enforceable while preserving its
intent.
9. Section
Headings; Construction. The headings of sections in this
Agreement are provided for convenience only and will not affect its construction
or interpretation. All references to "Section" or "Sections" refer to the
corresponding Section or Sections of this Agreement unless otherwise specified.
All words used in this Agreement will be construed to be of such gender or
number as the circumstances require. Unless otherwise expressly provided, the
word "including" does not limit the preceding words or terms. This Agreement has
been jointly drafted by Buyer and Seller and each party has had an opportunity
to review this Agreement with counsel and no rule of construction strictly
construing this Agreement against the drafter shall be applied by a court of
competent jurisdiction. The language in all parts of this Agreement shall in all
cases be construed as a whole according to its fair meaning and not strictly for
or against any party.
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10. Assignments. No
party may assign any of its rights or delegate any of its obligations under this
Agreement without the prior written consent of the other parties, except that
Buyer may assign any of its rights under this Agreement to any Subsidiary or
Related Person of Buyer.
11. Notices. All
notices, requests, demands and other communications given or made pursuant to
this Agreement shall be in writing and shall be deemed effectively
given: (i) upon personal delivery to the party to be notified, (ii)
when sent by confirmed electronic mail or facsimile if sent during normal
business hours of the recipient, and if not so confirmed, then on the next
business day, (iii) five days after having been sent by registered or certified
mail, return receipt requested, postage prepaid, or (iv) one day after deposit
with a nationally recognized overnight courier, specifying next day delivery,
with written verification of receipt, in each case to the following addresses,
facsimile numbers or e-mail addresses and marked to the attention of the person
(by name or title) designated below (or to such other address, facsimile number,
e-mail address or person as a party may designate by notice to the other
parties):
Buyer: Best
Energy Services, Inc.
0000 Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx
Xxxxxxxx, President
Facsimile
No.: (000)
000-0000
Email: xxxxxxxxx@xxxxxxxxxxxxxxxxxxx.xxx
with a
copy to (which shall not constitute notice):
Xxxxxxx
Xxxxxx L.L.P.
000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxxx
X. Xxxx, Esq.
Facsimile
No.: (000)
000-0000
Email: xxxxx@xx.xxx
Seller: Xxxx
Xxxxx
0000
Xxxx X
Xxxxxxx,
Xxxxxx 00000
Email: xxxxxxxxxxxx@xxxxx.xxx
with a
copy to (which shall not constitute notice):
Xxxxxxx, Xxxxxxxxxxxxx & Xxxxxxx,
P.A.
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxx 00000
Attention: Xxxxx Xxxxxxxxxxxxx,
Esq.
Facsimile No.: (000)
000-0000
Email: xxxxxxxxxxxxxx@xxxx.xxx
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12. Entire
Agreement. This Agreement and the Stock Purchase Agreement
constitute the entire agreement between the parties with respect to the subject
matter of this Agreement and supersede all prior written and oral agreements and
understandings between the parties with respect to the subject matter of this
Agreement. This Agreement may not be amended, supplemented, or otherwise
modified except by a written agreement executed by the party to be charged with
the amendment.
13. Execution
of Agreement. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
shall be one and the same document. The exchange of copies of this Agreement and
of signature pages by facsimile transmission, PDF or other electronic file shall
constitute effective execution and delivery of this Agreement as to the parties
and may be used in lieu of the original Agreement for all purposes. Signatures
of the parties transmitted by facsimile, PDF or other electronic file shall be
deemed to be their original signatures for all purposes.
[Signature
Page to Follow]
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In
Witness Whereof, the parties have executed and delivered this Agreement as of
the date first above written.
| Buyer: | Seller: |
| Best Energy Services, Inc. | |
| /s/ Xxxxx Xxxxxxxx | /s/ Xxxx Xxxxx |
| Xxxxx Xxxxxxxx, Chief Executive Officer | Xxxx Xxxxx, individually |
