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EXHIBIT 10.3
NON-DISCLOSURE AND NON-COMPETITION AGREEMENT
This Non-Disclosure and Non-Competition Agreement (this "Agreement") is
made and entered into effective as of the close of business on the day preceding
the Effective Time, by and between Universal Compression Holdings, Inc., a
Delaware corporation with its principal place of business in Houston, Texas
(including all predecessors, successors and affiliates, including but not
limited to the GCS Entities, the "Company"), and ▇▇▇▇▇▇▇ ▇▇▇▇, an individual
resident of the State of Michigan ("Executive"). Capitalized terms used but not
herein defined shall have the meanings assigned to them in the Merger Agreement
(as referenced below).
WHEREAS, the parties have entered into that certain Agreement and Plan
of Merger dated August 4, 2000 (the "Merger Agreement"), which provides for,
among other things, (i) the merger of Gas Compression Services, Inc., a Michigan
corporation ("GCSI"), with and into Universal Compression, Inc., a Texas
corporation and wholly-owned subsidiary of the Company, and (ii) Executive to
receive substantial consideration for his ownership interest in GCSI in
connection with the Merger; and
WHEREAS, as a condition to the Merger, and to preserve the value of the
business being acquired by the Company, the Merger Agreement contemplates, among
other things, that Executive shall enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the promises and
mutual covenants contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, agree as follows:
Section 1. Definitions.
For purposes of this Agreement, the following terms shall have the
following meanings:
1.1 "Company Business" shall mean the business of designing,
manufacturing, servicing, operating, marketing, assembling, fabricating, renting
or leasing of air or gas compressors or devices using comparable technologies or
other business in which the Company or its subsidiaries may be engaged
immediately following the consummation of the Merger. To the extent that any
entity is primarily engaged in a business other than a Company Business, the
term "Company Business" shall mean the operations, division, segment or
subsidiary of such entity that is engaged in any Company Business.
1.2 "Confidential Information" shall mean any secret, confidential, or
proprietary data or information of the Company and GCSI, including information
received by the Company, GCSI or Executive from any customer or client or
potential customer or client of the Company or GCSI, or their parents,
subsidiaries or affiliates, not otherwise included in the definition of Trade
Secret. The term Confidential Information shall not include information that
Executive can show by competent proof has become generally known to the public
by the act of one who
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has the right to disclose such information without violating any right of the
Company or any customer or client to which such information pertains.
1.3 "Inventions" shall mean any and all developments, discoveries,
concepts, methods, processes, designs, inventions, ideas, or improvements,
whether or not patentable, conceived, made, implemented, or reduced to practice
by Executive, whether alone or acting with others, during Executive's employment
by the Company and GCSI, that are developed (i) on the Company's or GCSI's time,
or (ii) while utilizing, directly or indirectly, the Company's or GCSI's
equipment, supplies, facilities, or Trade Secret information.
1.4 "Territory" shall mean all states in which GCSI operates or has
customers as of the day before the consummation of the Merger as contemplated in
the Merger Agreement.
1.5 "Trade Secret" shall mean information, including, but not limited
to, technical or non-technical data, a formula, pattern, compilation, program,
device, method, technique, drawing, process, financial data, financial plan,
product plan, list of actual or potential customers or suppliers, or other
information similar to any of the foregoing, which derives economic value,
actual or potential, from not being generally known to, and not being readily
ascertainable by proper means by, other persons who can derive economic value
from its disclosure or use and which is subject to reasonable efforts by the
Company or GCSI, or their parents, subsidiaries or affiliates, to maintain its
secrecy or confidentiality.
Section 2. Background.
2.1 The Company owns, controls, and has exclusive access to
Confidential Information and Trade Secrets concerning its operations, methods,
and the sale and development of its products and services, including those of
GCSI. The Company seeks reasonable protections for its and GCSI's valuable
Confidential Information and Trade Secrets. The parties intend for this
Agreement to protect all Confidential Information and Trade Secrets owned by the
Company and GCSI, and from disclosure and misappropriation of any kind, whether
inadvertent or deliberate. Executive acknowledges that the Confidential
Information and Trade Secrets are an important and valuable asset of the Company
and GCSI, for which the Company is paying substantial consideration.
2.2 Executive acknowledges that during the course of his employment
with GCSI and the Company, he did, and may continue to, receive and have access
to Confidential Information and Trade Secrets of GCSI and the Company, including
but not limited to confidential and secret business and marketing plans,
technical data, strategies, and studies, detailed customer and/or client lists
and information relating to the operations and business requirements of those
customers and/or clients. Executive agrees that the Company has a legitimate
interest in protecting its valuable Confidential Information and Trade Secrets.
Executive also acknowledges that due to the executive nature of his position
with GCSI and the Company, Executive did, and may continue to, perform his
duties and responsibilities throughout the Territory. Executive agrees that the
Company's and GCSI's customer and client contacts and relations are established
and maintained at great expense to the Company and that Executive did, and may
continue to, have, by virtue of his employment, unique and extensive exposure to
and
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personal contact with the Company's and GCSI's customers and clients and that he
did, and may continue to be able to, establish a unique relationship with those
customers and clients.
Section 3. Protection of Trade Secrets and Confidential Information.
3.1 Trade Secrets. In consideration of the premises and for the
promises under this Agreement, Executive agrees and covenants that, upon
consummation of the Merger, Executive will hold in a fiduciary capacity for the
benefit of the Company, and will not directly or indirectly use or disclose
(whether on Executive's own behalf or on behalf of any other person,
corporation, partnership, venture, or any other entity or form of business),
except as authorized by the Company in connection with the performance of
Executive's duties, any Trade Secret that Executive may have or acquire (whether
or not developed or compiled by Executive and whether or not Executive has been
authorized to have access to such Trade Secret) during employment with GCSI or
the Company, for so long as such information remains a Trade Secret. At all
times immediately following the consummation of the Merger, Executive will take
all reasonable steps necessary to ensure that no Trade Secrets are disclosed,
whether inadvertently or deliberately, misappropriated, stolen, misused or their
value to the Company diminished in any way.
3.2 Confidential Information. In consideration of the premises and for
the promises under this Agreement, Executive agrees and covenants that, upon
consummation of the Merger, Executive will hold in a fiduciary capacity for the
benefit of the Company and will not directly or indirectly use or disclose
(whether on Executive's own behalf or on behalf of any other person,
corporation, partnership, venture, or any other entity or form of business),
except as authorized by the Company in connection with the performance of
Executive's duties, any Confidential Information that Executive may have or
acquire (whether or not developed or compiled by Executive and whether or not
Executive has been authorized to have access to such Confidential Information)
during his employment with GCSI and the Company. At all times immediately
following the consummation of the Merger, Executive will take all reasonable
steps necessary to ensure that no Confidential Information is disclosed, whether
inadvertently or deliberately, misappropriated, stolen, misused or its value to
the Company diminished in any way.
3.3 No Waiver. Executive acknowledges and agrees that nothing contained
in this Agreement shall be deemed a waiver, modification, or limitation of any
rights the Company may have under applicable federal, state, or local laws
pertaining to the protection of trade secrets or confidential information.
Section 4. Protection Against Unfair Competition.
4.1 Non-Competition. In consideration of the premises and for the
promises under this Agreement, and in order to protect the Company from unfair
competition, Executive covenants and agrees to the following:
a. During Executive's employment with the Company, Executive
will not compete with the Company in any manner or in any capacity
(whether on Executive's own behalf or as an owner, partner,
stockholder, investor, officer, director, agent,
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independent contractor, associate, executive, consultant or licensor),
including by engaging in the Company Business.
b. For a period of 2 years after the termination of
Executive's employment for any reason, Executive will not directly or
indirectly (i) carry on, be engaged in, or take part in any activities
or services identical or substantially similar to any of Executive's
duties and responsibilities with the Company or GCSI, anywhere in the
Territory, or (ii) engage in the Company Business (whether on
Executive's own behalf or on behalf of any other person, corporation,
partnership, venture, or any other entity or form of business).
c. The covenants in this Section 4 shall not apply to
Executive's ownership of common stock of the Company or the acquisition
by Executive, solely as an investment, of securities of any issuer that
is registered under Section 12(b) or 12(g) of the Securities Exchange
Act of 1934, as amended, and that are listed or admitted for trading on
any United States national securities exchange or that are quoted on
the National Association of Securities Dealers Automated Quotations
System, or any similar system or automated dissemination of quotations
of securities prices in common use, so long as Executive does not
participate in the management of, serve on the board of, control,
acquire a controlling interest in or become a member of a group which
exercises direct or indirect control of more than five percent (5%) of
any class of capital stock of such corporation.
4.2 Non-Solicitation of Customers. In consideration of the premises and
for the promises under this Agreement, and in order to protect the Company from
unfair competition, Executive covenants and agrees to the following:
a. During Executive's employment with the Company, Executive
will not solicit, divert, or take away, or attempt to solicit, divert,
or take away, any customer and/or client or actively sought prospective
client and/or customer of the Company or GCSI, for the benefit of any
person or entity other than Company.
b. For a period of 2 years after the termination of
Executive's employment with the Company for any reason, Executive will
not, without prior written consent of the Company, directly or
indirectly solicit, divert, or take away, or attempt to solicit,
divert, or take away, any customer and/or client of the Company or GCSI
with whom Executive had material business contact at any time during
the twelve months prior to such termination.
4.3 Non-Solicitation of Employees. In consideration of the premises and
for the promises under this Agreement, and in order to protect the Company from
unfair competition, Executive covenants and agrees to the following:
a. During Executive's employment with the Company, Executive
will not hire (except on behalf of the Company) or solicit or encourage
to leave the employment or other service of the Company, including
GCSI, any employee or independent
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contractor of the Company, including GCSI (except in connection with
the business and affairs of the Company).
b. For a period of 2 years after the termination of
Executive's employment with the Company for any reason, Executive will
not, for any reason (whether on Executive's own behalf or on behalf of
any other person, corporation, partnership, venture, or any other
entity or form of business), directly or indirectly solicit or
encourage to leave employment or other service of the Company,
including GCSI, any employee or independent contractor of the Company,
including GCSI, with whom Executive had material business contact at
any time during the twelve months prior to such termination.
Section 5. Protection of Inventions.
In consideration of the premises and for the promises under this
Agreement, Executive agrees to the following:
5.1 Disclosure of Inventions. Executive agrees and covenants that
during his employment with the Company and following the termination of such
employment, Executive shall promptly report and disclose to the Company in
writing all Inventions.
5.2 Ownership of Inventions. Executive acknowledges and agrees that all
Inventions are the sole and exclusive property of the Company. Executive agrees
to assign, and hereby automatically assigns, without further consideration, to
the Company any and all rights, title, and interest in and to all Inventions;
provided, however, that this Agreement shall not apply to any Inventions for
which no equipment, supplies, facilities, or trade secret information of the
Company or GCSI was used and which was developed entirely on Executive's own
time, unless the Inventions (i) relate directly to the Company's business or its
actual or demonstrably anticipated research or development, or (ii) result from
any work performed by Executive for the Company or GCSI.
5.3 Patents and Trademarks. The Company, its successors and assigns,
shall have the right to obtain and hold in its or their own name copyright
registrations, trademark registrations, patents and any other protection
available to the Inventions.
5.4 Cooperation. Executive agrees to perform, upon the reasonable
request of the Company, during or after employment, such further acts as may be
necessary or desirable to transfer, perfect, and defend the Company's ownership
of the Inventions, including but not limited to: (i) executing, acknowledging,
and delivering any requested affidavits and documents of assignment and
conveyance; (ii) assisting in the preparation, prosecution, procurement,
maintenance and enforcement of all copyrights and/or patents with respect to the
Inventions in any countries; (iii) providing testimony in connection with any
proceeding affecting the right, title, or interest of the Company in any
Inventions; and (iv) performing any other acts deemed necessary or desirable to
carry out the purposes of this Agreement. The Company shall reimburse all
reasonable out-of-pocket expenses incurred by Executive at the Company's request
in connection with the foregoing.
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Section 6. Acknowledgements.
6.1 Reasonable Restrictions. Executive acknowledges and confirms that
the restrictions and covenants contained in this Agreement are reasonably
necessary to protect the good will and legitimate business interests of the
Company, including its investment in GCSI, are not overbroad, overlong, or
unfair (including in duration and scope), and are not the result of
overreaching, duress or coercion of any kind. Executive further acknowledges and
confirms that Executive's full, uninhibited, and faithful observance of each of
the covenants contained in this Agreement will not cause any undue hardship,
financial or otherwise, and that enforcement of each of the covenants contained
herein will not impair Executive's ability to obtain employment commensurate
with Executive's abilities and on terms fully acceptable to Executive or
otherwise to obtain income required for the comfortable support of Executive and
Executive's family and the satisfaction of the needs of Executive's creditors.
Executive acknowledges and confirms that the violation of these covenants and
the disclosure of any Confidential Information or Trade Secrets would cause the
Company serious, irreparable injury or loss. Executive acknowledges and confirms
that his special abilities and knowledge of the Company Business are such that
it would cause the Company serious, irreparable injury or loss if he were to use
such abilities and knowledge to the benefit of a competitor or were to otherwise
violate these covenants. Executive further acknowledges that the restrictions
contained in this Agreement are intended to be, and shall be, for the benefit of
and shall be enforceable by, the Company's successors and assigns.
6.2 Legal and Equitable Remedies. Executive agrees that for any breach
or threatened breach of any of the provisions of this Agreement, the Company
shall be entitled to immediate injunctive relief and that a restraining order
and/or an injunction may issue against Executive to prevent or restrain any such
breach or threatened breach, in addition to any other rights or remedies at law
the Company may have.
6.3 No Prior Commitments. Executive represents and warrants that he (i)
will not use or disclose any trade secrets or other protected information of any
other person or entity during Executive's employment with the Company and (ii)
does not have any agreements, relationships, or commitments to any other person
or entity that conflict in any way with Executive's obligations to the Company
under this Agreement.
6.4 Company Property. All the Company's property, equipment, funds,
books, records, files, memoranda, reports, lists, drawings, plans, sketches,
documents, Confidential Information, Trade Secrets, Work Product, and other
material (together with all copies thereof), including that of the GCS Entities,
which Executive shall have used, prepared or come in contact with, or possession
of, during the course of, or as a result of, his employment with GCSI or the
Company shall, as between the parties hereto, remain the sole property of the
Company. Upon the termination of this Agreement or upon the prior demand of the
Company, Executive shall immediately return all such property or materials and
thereafter shall not remove or cause to be removed such materials from the
premises of the Company.
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Section 7. Miscellaneous.
7.1 Assignment. This Agreement is assignable in whole or in part to any
parent, subsidiaries, or affiliates of the Company or to any successor to the
Company, whether by merger, consolidation, sale of stock, sale of assets or
otherwise.
7.2 Applicable Law. This Agreement has been entered into in and shall
be governed by and construed under the laws of the State of Michigan (except to
the extent that its choice of law rules would apply the laws of another State).
7.3 Consent to Jurisdiction. Executive consents, and waives any
objection, to personal jurisdiction and venue in the federal and state courts in
the State of Michigan in any action by the Company to enforce this Agreement or
an arbitration decision related to this Agreement.
7.4 Dispute between the Parties. IN THE EVENT A DISPUTE OR CLAIM ARISES
BETWEEN EXECUTIVE AND THE COMPANY ARISING OUT OF, RELATED TO, OR IN CONNECTION
WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHER LEGAL CAUSE OF ACTION,
OR EQUITABLE REMEDY, EXECUTIVE AND THE COMPANY BOTH EXPRESSLY AGREE TO WAIVE
THEIR RIGHT TO A TRIAL BY JURY, WHETHER IN FEDERAL OR STATE COURT, AND TO WAIVE
THE RIGHT TO RECOVER ANY PUNITIVE DAMAGES, EXEMPLARY DAMAGES OR STATUTORY
PENALTIES IMPOSED BY LAW. THIS PROVISION SPECIFICALLY ACKNOWLEDGES THAT THE
PARTIES INTEND FOR ANY AND ALL DISPUTES, CAUSES OF ACTIONS, CLAIMS, LAWSUITS, OR
OTHER EQUITABLE REMEDIES TO BE RESOLVED BY A COURT OF COMPETENT JURISDICTION
BEFORE A JUDGE, AND THE PARTIES EXPRESSLY WAIVE THEIR RIGHTS TO PUNITIVE DAMAGES
OR STATUTORY PENALTIES OF ANY KIND IMPOSED BY LAW. THE PARTIES CONFIRM THEIR
AGREEMENT TO THIS SECTION 7.4 BY INITIALING BELOW:
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The Company Executive
7.5 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same instrument.
7.6 Headings and Captions. The headings and captions used in this
Agreement are for convenience of reference only, and shall in no way define,
limit, expand or otherwise affect the meaning or construction of any provision
of this Agreement.
7.7 Reformation. If any of the covenants in this Agreement are
determined by any court of law or equity, with jurisdiction over this matter, to
be unreasonable or unenforceable, in whole or in part, as written, the parties
hereby consent to and affirmatively request that said court reform the covenant
or promise so as to be reasonable and enforceable and to accomplish, as closely
as possible, the intent of the parties with respect to such provision and that
said court enforce the covenant or promise as reformed.
7.8 Modification. Except as provided in Section 7.7, no provision of
this Agreement may be amended, changed, altered, modified or waived except in
writing signed by Executive
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and an officer of the Company, which writing shall specifically reference this
Agreement and the provision which the parties intend to waive or modify.
7.9 Severability. Should any provision of this Agreement be declared or
determined by any court of competent jurisdiction to be unenforceable or invalid
for any reason, the validity of the remaining parts, terms or provisions of this
Agreement shall not be affected thereby and the invalid or unenforceable part,
term or provision shall be deemed not to be a part of this Agreement. This
Section 7.9 shall not apply to any Section which is reformed pursuant to Section
7.7.
7.10 Attorneys' Fees and Costs. Executive shall be liable to the
Company for its reasonable costs and attorneys' fees incurred in any action to
enforce this Agreement to the extent that the Company is the prevailing party.
7.11 Waiver. The waiver by any party to this Agreement of a breach of
any of the provisions of this Agreement shall not operate or be construed as a
waiver of any subsequent or simultaneous breach of the same or different
provisions.
7.12 No Third-Party Beneficiaries. Except as provided in Section 7.1,
nothing herein, expressed or implied, is intended or will be construed to confer
upon or give to any person, firm, corporation or legal entity, other than the
parties and any parent, subsidiary, affiliate, or successor of the Company, any
rights, remedies or other benefits under or by reason of this Agreement.
7.13 Entire Agreement. This Agreement constitutes a single integrated
contract expressing the entire agreement of the parties. There are no other
agreements, written or oral, express or implied, between the parties, concerning
the subject matter hereof.
7.14 Jointly Drafted. The parties and their respective counsel have
participated jointly in the negotiation and drafting of this Agreement. In the
event that an ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the parties, and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any of the provisions of this Agreement.
7.15 Understanding. Executive herewith covenants and agrees that
Executive has read and fully understands the contents and the effect of this
Agreement. Executive warrants and agrees that Executive has had a reasonable
opportunity and is hereby advised in writing to seek the advice of an attorney
as to such content and effect. Executive accepts each and all of the terms,
provisions, and conditions of this Agreement, and does so voluntarily and with
full knowledge and understanding of the contents, nature, and effect of this
Agreement.
7.16 Survival. Any provision of this Agreement which is expressly or by
implication intended to survive the termination of this Agreement, including
Sections 3, 4, and 5, shall survive and remain in effect after the termination
of this Agreement.
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7.17 Notices. All notices, communications and deliveries hereunder
shall be made in writing signed by or on behalf of the party making the same and
shall be delivered personally or by telecopy transmission or sent by registered
or certified mail (return receipt requested) or by any national overnight
courier service (with postage and other fees prepaid) as follows:
If to the Company:
Universal Compression Holdings, Inc.
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Attention: ▇▇. ▇▇▇▇▇▇▇ ▇. Banner
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Executive:
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Telephone No.:
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Telecopy No.:
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or to such other representative or at such other address of a party as such
party hereto may furnish to the other parties in writing. Any such notice,
communication or delivery shall be deemed given or made (a) on the date of
delivery if delivered in person (by courier service or otherwise), (b) upon
transmission by facsimile if receipt is confirmed by telephone, provided
transmission is made during regular business hours, or if not, the next business
day, or (c) on the fifth business day after it is mailed by registered or
certified mail.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
THE COMPANY:
UNIVERSAL COMPRESSION HOLDINGS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Print Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Executive Vice President
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EXECUTIVE:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇
Social Security No.: ***-**-****
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