NONCOMPETITION AGREEMENT
THIS AGREEMENT is made as of the _____ day of _____________, 19 , by
and between ________________________ (the "Departing Member"), and Nuvest,
L.L.C., an Oklahoma limited liability company("Nuvest"), NSS Numanco, Inc., a
Pennsylvania corporation, and Numanco, L.L.C., an Oklahoma limited liability
company (collectively, the "Company").
In consideration of the mutual covenants and agreements herein
contained, the parties hereby agree as follows:
WITNESSETH:
1. Recitals.
The Departing Member has been a Member of Nuvest and is
experienced in the business, management and operations of the Company.
Pursuant to that certain Member Agreement by and among the
Departing Member, the Company and others, the Departing Member sold all of its
interest in Nuvest for a Purchase Price (as defined in the Member Agreement)
that included compensation for the Departing Member's proportionate share of the
good will of the Company.
Recognizing the Departing Member's unique position in the
Company and the detriment to the Company were the Departing Member to directly
or indirectly compete with the Company, and in consideration for the mutual
covenants contained in the Member Agreement, the Departing Member has agreed to
refrain from directly or indirectly competing with the Company under the terms
and conditions contained herein.
Definitions. The following terms, when used in this
Agreement, shall have the meanings ascribed to them:
"Affiliate" shall mean (i) any Person that directly or
indirectly controls or is controlled by or is under common control with the
specified Person, (ii) any Person that is an executive officer of, general
partner in or trustee of, or serves in a similar capacity with respect to, the
specified Person or of which the specified Person is an executive officer,
general partner or trustee, or with respect to which the specified Person serves
in a similar capacity, and (iii) any Person that, directly or indirectly, is the
beneficial owner of 10% or more of any class of equity securities of the
specified Person or of which the specified Person is directly or indirectly the
owner of 10% or more of any class of equity securities.
"Person" shall mean any individual, partnership, corporation,
joint venture, trust, business trust, cooperative or association, and the heirs,
executors, administrators, legal representatives, successors and assigns of such
Person where the context so admits.
3. Term. The term of this Agreement (the "Noncompetition Period") shall
commence on the date hereof and shall continue for a period of three (3) years.
4. Covenant Not to Compete. The Departing Member covenants that during
the Noncompetition Period he shall not, either directly or indirectly, within
the State of Oklahoma, the State of Pennsylvania, or within any state or foreign
country in which the Company or any of its Affiliates maintains an office or
conducts business, enter into, engage in, be employed by or consult with any
business in competition with the business of the Company or any of its
Affiliates.
5. Nonsolicitation of Customers. The Departing Member covenants that
during the Noncompetition Period he shall not, either directly or indirectly,
within the State of Oklahoma, the State of Pennsylvania, or within any state or
foreign country in which the Company or any of its Affiliates maintains an
office or conducts business, solicit customers of the Company or any of its
Affiliates, or in any way discourage such customers from doing business with the
Company or any of its Affiliates.
6. Nonsolicitation of Employees. The Departing Member covenants that
during the Noncompetition Period he shall refrain from soliciting and shall not,
either directly or indirectly, solicit any employee of the Company or any of its
Affiliates to leave the service of his or her employer.
7. Scope of Obligations. The Departing Member's conduct shall be
prohibited by Sections 4, 5 and 6 hereof regardless of how it is carried out,
whether as an officer, director, stockholder, agent, employee or salesman for
any Person; provided, however, the foregoing restrictions shall not apply to the
ownership by the Departing Member of not more than two percent (2%) of the
outstanding securities of any company whose stock is traded on a national
securities exchange or is quoted on NASDAQ.
8. Equitable Relief. The Departing Member acknowledges that the
obligations to be observed by him are of a special and unique character, which
gives them a peculiar value, and the failure by him to observe such obligations
cannot be reasonably or adequately compensated in damages in an action at law;
and that a breach by him of any of the provisions contained in this Agreement
will cause the Company and its Affiliates irreparable injury and damage. The
Departing Member further acknowledges that he possesses unique skills,
knowledge, and ability and that competition by him in violation of this
Agreement or any other breach of the provisions of this Agreement would be
extremely detrimental to The Company and its Affiliates. The Departing Member
therefore agrees that the Company shall be entitled, in addition to any other
remedies it may have under this Agreement or otherwise, to injunctive and other
equitable relief to prevent or curtail any breach of this Agreement by him.
9. Severability. In case any one or more of the provisions of this
Agreement shall be invalid, illegal, or unenforceable in any respect, such
provision(s) shall be adjusted rather than voided, if possible, in order to
achieve the intent of the parties to this Agreement to the extent possible, and
in any event the validity, legality, and enforceability of the remaining
provisions contained herein shall not in any way be affected or impaired
thereby.
10. Integration. This Agreement contains the entire agreement between
the parties regarding the subject matter hereof and supersedes all prior
agreements and undertakings, whether oral or written. No promises, covenants, or
representations of any character or nature other than those expressly stated
herein have been made to induce either party to enter into this Agreement.
11. Waiver. The waiver by either party of a breach of any provision of
this Agreement by the other shall not operate or be construed as a waiver of any
subsequent breach of the same provision or of any other provision of this
Agreement.
12. Notice. All notices, requests, demands and other communications
which are required or may be given under this Agreement shall be in writing and
shall be deemed to have been duly given when received if personally delivered;
when transmitted, if transmitted by telecopy or similar electronic transmission
method; the day after it is sent, if sent by recognized expedited delivery
service; and five days after it is sent, if mailed, first class mail, postage
prepaid. In each case notice shall be sent to:
If to the Company:
If to the
Departing Member:
or to such other address as such party shall have specified by notice in writing
to the other parties.
13. Captions. The captions to the paragraphs of this Agreement are for
convenience only and shall not be considered or referred to in resolving
questions of interpretation.
14. Governing Law. The validity, construction, interpretation, and
enforcement of, and the remedies under, this Agreement shall be governed in
accordance with the laws of the State of Pennsylvania, except that any choice of
law provision of Pennsylvania law shall not apply if the law of a state or
jurisdiction other than Pennsylvania would apply thereby.
15. Binding Effect. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective heirs, personal
representatives, successors or permitted assigns.
16. Amendments. This Agreement may be amended, terminated, or
superseded only by an agreement in writing between the parties hereto.
17. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which shall
constitute but one and the same Agreement.
18. Pronouns and Plurals. Whenever the context may require, any pronoun
used in this Agreement shall include the corresponding masculine, feminine or
neuter forms, and the singular form of nouns, pronouns and verbs shall include
the plural and vice versa.
19. Attorneys Fees. If any action is commenced to enforce any provision
of this Agreement, the prevailing party shall be entitled to attorneys fees and
costs of the action.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed the date and year first above written and to be effective as
hereinabove provided.
"Company"
Nuvest, L.L.C.
By:
Title:
NSS Numanco, Inc.
By:
Title:
Numanco, L.L.C.
By:
Title:
"Departing Member"