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Exhibit 10.22
COVENANT NOT TO COMPETE
This Covenant Not To Compete (the "Agreement"), dated as of May 12, 1998,
by and between Caminus Energy Limited, an English corporation (the "Company"),
and each of Dr. ▇▇▇▇▇ ▇▇▇▇▇ and Dr. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (each a "Covenantor" and
collectively the "Covenantors"), is to evidence the following agreements and
understandings. Capitalized terms used herein have the respective meanings in
the Stock Purchase Agreement (as hereinafter defined) unless otherwise specified
herein.
W I T N E S S E T H:
WHEREAS, pursuant to that certain Stock Purchase Agreement, dated as of the
date hereof (the "Stock Purchase Agreement"), among ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇, Dr.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, and GFI Caminus LLC, a Delaware limited liability company
("GFI Caminus") and the transactions related thereto and contemplated thereby
(collectively the "Purchase"), (a) the Sellers sold, assigned, transferred and
delivered with full title guaranteed all of the issued equity interest of the
Company to GFI Caminus, and (b) GFI Caminus has purchased and accepted all of
the issued equity interest of the Company;
WHEREAS, in connection with the Purchase, the Sellers are in effect,
selling and transferring all of their right, title and interest in the assets,
properties and business, including intellectual property, goodwill and going
concern of the Company to GFI Caminus for substantial consideration and if any
of the Covenantors were able to compete with Company in any manner or engage in
any other activities that are hereinafter proscribed, then GFI Caminus would be
deprived of a substantial portion of the value sought to be obtained through the
Purchase;
WHEREAS, the Company is in the business of developing and marketing
consulting advisory services and supporting models used to analyze or influence
client and industry decisions regarding energy pricing, investments, regulatory
policy and financial and strategic planning for clients in the natural gas,
crude oil, refined products, electric power and utility industries
(collectively, the "Company Business");
WHEREAS, each of the Covenantors is and continues to serve as an executive
officer and director of the Company pursuant to the Service Agreement, dated the
date hereof, between the Company and each of the Covenantors and has substantial
knowledge of, and access and exposure to the Company Business, including but not
limited to intellectual property, confidential and proprietary information of
the Company;
NOW, THEREFORE, in consideration of the mutual promises, covenants,
agreements, representations and warranties hereinafter set forth and for other
good and valuable consideration, the receipt, adequacy and sufficiency of which
is hereby acknowledged, all subject to the completion of the closing of the
Purchase, the parties hereto agree as follows:
1. Agreement Not to Compete.
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A. Until the expiry of the Term the Covenantor will not directly or
indirectly: (i) carry on or be interested in a Competing Business save that he
may hold for investment up to five percent (5%) of any class of securities
quoted or dealt on a recognized stock exchange; or (ii) act as a consultant,
employee or officer in any executive, sales, marketing, research or technical
support capacity in a Competing Business.
B. Until the expiry of the Term the Covenantor will not directly or
indirectly solicit, canvass or approach or endeavor to solicit, canvass or
approach in respect of the Company Business and in competition with the Company
or, as the case may be, in competition with the relevant subsidiary or associate
any person for the purpose of offering to that person any services comprised in
the Company Business: (i) who, to the knowledge of the Covenantor, has been
provided with services by the Company or any subsidiary or associate of the
Company at any time prior to the Date of Termination; (ii) who, to the knowledge
of the Covenantor, has been negotiating with the Company or any subsidiary or
associate of the Company for the supply of services at any time prior to the
Date of Termination; and (iii) supply in competition with the Company or, as the
case may be, in competition with the relevant subsidiary or associate any
services comprised in the Company Business to any person who, to the knowledge
of the Covenantor, has been provided with services by the Company or any
subsidiary or associate of the Company at any time prior to the Date of
Termination.
C. Until the expiry of the Term, the Covenantor will not directly or
indirectly: (i) solicit or entice away or endeavor to solicit or entice away
from the Company or any subsidiary or associate of the Company in competition
with the Company or, as the case may be, in competition with the relevant
subsidiary or associate any person employed within the prior six (6) months in
an executive, managerial, technical or sales capacity by the Company or any
subsidiary or associate of the Company at the Date of Termination with a view to
inducing that person to leave such employment and to act for another person in
the Company Business; or (ii) hire, solicit or in any other manner seek to
engage or employ any person who within the prior six (6) months had been any
employee in an executive, managerial, technical or sales capacity of the Company
or any subsidiary or associate of the Company.
D. Each of the restrictions in Section A, B and C above are separate and
severable and in the event of any such restriction being determined as being
unenforceable in whole or in part for any reason such enforceability shall not
affect the enforceability of the remaining restrictions or, in the case of part
of a restriction being unenforceable, the remainder of the restriction.
E. For purposes hereof, Date of Termination shall mean the date on which
the employment of each of the Covenantors by the Company terminates as set forth
in the respective Service Agreements.
F. For purposes hereof, Term shall mean:
(i) in the event Covenantor fulfills his three (3) year term of Service
Agreement with the Company and thereafter is terminated by either party for any
reason,
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one (1) year from the Date of Termination;
(ii) in the event Covenantor's employment with the Company is terminated
by the Company without Cause (as set forth in Clause 9.2 of the Service
Agreement), or terminated by the Covenantor by virtue of constructive dismissal,
one (1) year from the Date of Termination in each case within the first three
(3) years of the Service Agreement;
(iii) in the event Covenantor voluntarily terminates his Service
Agreement (other than by constructive dismissal) with the Company within the
first three (3) years of the Service Agreement, then two (2) years from the
Date of Termination; and
(iv) in the event Covenantor's employment with the Company is terminated
with Cause by the Company within the first three (3) years of the Service
Agreement, then two (2) years from the Date of Termination.
2. Consideration. Covenantor agrees and acknowledges that the value to be
derived by him from the transactions contemplated by the Stock Purchase
Agreement and the consideration payable to him pursuant to the Service Agreement
constitute substantial value and shall serve as exclusive consideration for his
agreements set forth in this Agreement, and that no additional consideration is
payable or necessary in connection therewith.
3. Miscellaneous.
A. Entire Agreement; Amendments; Waiver. This Agreement and any document
referred to herein sets forth the entire understanding of the parties relating
to the subject matter hereof and supersedes all agreements, representations,
warranties, statements, promises and understandings, with respect to the subject
matter hereof. No amendment of any provision of this Agreement shall be valid
unless the same shall be in writing and signed by the Company and Covenantor. No
waiver by any party of any default, misrepresentation, or breach of warranty or
covenant hereunder, whether intentional or not, shall be deemed to extend to any
prior or subsequent default, misrepresentation, or breach of warranty or
covenant hereunder or affect in any way any rights arising by virtue of any
prior os subsequent such occurrence.
B. Notices. All notices under this Agreement will be in writing and will be
delivered by personal service or telegram, telecopy or certified mail (if such
service is not available, then by first class mail), postage prepaid, to such
address as may be designated from time to time by the relevant party, and which
will initially be as set forth below. Any notice sent by certified mail will be
deemed to have been given seven (7) days after the date on which it is mailed.
All other notices will be deemed given when received. No objection may be made
to the manner of delivery of any notice actually received in writing by an
authorized agent of a party. Notices will be addressed as follows or to such
other address as the party to whom the same is directed will have specified in
conformity with the foregoing:
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If to Company:
Caminus Energy Limited
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Attention: Chief Executive Officer
Telephone: ▇▇▇-▇▇-▇▇▇▇-▇▇▇-▇▇▇
Facsimile: 011-44-1223-301-637
With a copy to:
GFI Caminus LLC
c/o GFI Energy Ventures LLC
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Covenantor:
Dr. ▇▇▇▇▇ ▇▇▇▇▇
c/o Caminus Energy Limited
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇-▇▇▇▇-▇▇▇-▇▇▇
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If to Covenantor:
▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
c/o Caminus Energy Limited
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇-▇▇▇▇-▇▇▇-▇▇▇
C. Equitable Relief. Covenantor acknowledges that the covenants contained
in Section 1 hereof are reasonable and necessary to protect the legitimate
interests of the Company, that any breach or threatened breach of such covenants
will result in irreparable injury to the Company and that the remedy at law for
such breach or threatened breach would be inadequate. Accordingly, in the event
of the breach by Covenantor of any of the provisions of this Agreement, the
Company, in addition and as a supplement to such other rights and remedies as
may exist in their favor, may apply to any court of law or equity having
jurisdiction to enforce this Agreement, and/or may apply for injunctive relief
against any act that would violate any of the provisions of this Agreement.
D. Third-Party Benefits. None of the provisions of this Agreement will be
for the benefit of, or enforceable by, any third-party beneficiary, except that
GFI Caminus is intended as a third-party beneficiary of all rights of the
Company hereunder.
E. Successors and Assigns. This Agreement will be binding upon and inure to
the benefit of the parties, their respective successors and permitted assigns.
None of the parties hereto may assign any of their rights or obligations under
this Agreement without the prior written consent of all other parties hereto,
except that this Agreement may be assigned by the Company to any corporation or
other business entity that succeeds to all or substantially all of the business
of the Company through merger, consolidation, corporate reorganization or by
acquisition of all or substantially all of the assets or capital stock of the
Company.
F. Governing Law. This Agreement shall be governed by, and construed in
accordance with English law. All disputes shall be referred to the High Court of
Justice in England and Wales, to the extent permitted.
G. Headings and Gender. The section headings contained in this Agreement
are inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement. All words shall be construed to be of such
gender and number as the circumstances require.
H. Severability. The validity, legality or enforceability of the remainder
of this Agreement will not be affected even if one or more of the provisions of
this Agreement are held to be invalid, illegal or unenforceable in any respect.
Further, if the period of time, the extent of the geographic area, or the scope
of the prescribed activities
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covered by this Agreement should be deemed unenforceable, then this Agreement
shall be construed to cover the maximum period of time, geographic area and
scope of prescribed activities (not to exceed the maximum time, geographic area
or scope set forth herein) as may be valid under applicable law. The parties
specifically intend that any court determining the extent of the enforceability
of this Agreement shall, if it determines that the Agreement is not fully
enforceable in accordance with its terms, modify the period of time, geographic
area or scope of prescribed activities provided for herein to the minimum extent
necessary such that the provisions hereof as so modified are enforceable.
I. Attorneys' Fees. Any action or proceeding is brought to enforce or
interpret any provision of this Agreement, the prevailing party shall be
entitled to recover as an element of its costs, and not its damages, reasonable
attorneys' fees and costs incurred in connection with such action or proceeding.
J. Counterparts. This Agreement may be executed simultaneously 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.
K. Remedies Not Exclusive. No remedy conferred by any of the specific
provisions of this Agreement is intended to be exclusive of any other remedy,
and each and every remedy will be cumulative and will be in addition to every
other remedy given hereunder or now or hereafter existing at law or in equity or
by statute or otherwise. The election of any one or more remedies will not
constitute a waiver of the right to pursue other available remedies.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the first date set forth above.
CAMINUS ENERGY LIMITED COVENANTORS
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Dr. ▇▇▇▇▇ ▇▇▇▇▇
Its: Director
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/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Dr. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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