EXECUTION COPY
Non-Competition Agreement
Between Energy Services Acquisition Corp., S.T. Pipeline, Inc.
and Xxxxxxxx Xxx Xxxxxx
WHEREAS, Energy Services Acquisition Corp. (the "Company") and Xx. Xxxxxx
acknowledge that an essential element to the Company's decision to acquire S.T.
Pipeline, Inc. ("STP") is predicated upon her willingness to agree to enter into
this non-competition agreement (the "Agreement") and to restrict her activities
in accordance with the terms and conditions of this Agreement.
NOW THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which each party acknowledges, the
parties agree as follows:
1. Non-Compete/Confidentiality.
(a) For a period of two (2) years from the Closing Date of the acquisition
of STP by the Company, Xx. Xxxxxx, will not, directly or indirectly, compete in
any manner with the Company or STP, including, but not limited to: (i)
soliciting any client of the Company or STP to transact business; (ii)
transacting business with a competitor of the Company or STP; (iii) interfering
or damaging a relationship between the Company or STP and any of their
customers; (iv) soliciting an employee of the Company or STP; or (v) selling
products similar to the products sold by the Company or STP in their market
area. Moreover, Xx. Xxxxxx shall treat as confidential information, all
information pertaining to the Company or STP. The parties acknowledge that this
Agreement shall not preclude Xx. Xxxxxx from entering into an agreement with
another company that does not compete, directly or indirectly with the Company
or STP.
(b) The parties hereto acknowledge that the potential restrictions on
Employee's future activities as set forth at Section 1(a) is reasonable in both
duration and geographic scope and in all other respects. In the event that the
provisions of Section 1(a) should ever be deemed to exceed the duration or
geographic limitations or scope permitted by applicable law, then such
provisions shall be reformed to the maximum time or geographic limitations or
scope, as the case may be, permitted by applicable law, and the parties agree
that the restrictions and prohibitions contained herein shall be effective to
the fullest extent allowed under applicable law in such jurisdiction.
(c) The parties acknowledge that it would be impossible to determine the
amount of damages that would result from any breach of any of the provisions of
Section 1(a) and that the remedy at law for any breach, or threatened breach, of
any of such provisions would likely be inadequate and accordingly, each party
agrees that in addition to any other rights or remedies which it may have at law
or in equity, the non-breaching party would be entitled to seek such equitable
and injunctive relief as may be available from any court of competent
jurisdiction to restrain a party from violating any of the provisions of this
Agreement. In connection with any action or proceeding for such equitable or
injunctive relief, each party hereby waives any claim or defense that a remedy
at law alone is adequate and agrees, to the maximum extent permitted by law, to
have each such provision of Section 1(a) specifically enforced against a
violating party, without the necessity of posting bond or other security against
the violating party, and consents to the entry of equitable or injunctive relief
against the violating party enjoining or restraining any breach or threatened
breach of Section 1(a).
2. Reformation. Each party hereto acknowledges that the potential
restrictions on Xx. Xxxxxx'x future activities as set forth at Section 1 is
reasonable in both duration and geographic scope and in all other respects. In
the event that the provisions of Section 1 should ever be deemed to exceed the
duration or geographic limitations or scope permitted by applicable law, then
such provisions shall be reformed to the maximum time or geographic limitations
or scope, as the case may be, permitted by applicable law, and the parties agree
that the restrictions and prohibitions contained herein shall be effective to
the fullest extent allowed under applicable law in such jurisdiction.
3. Specific Performance. Each party acknowledges that it would be
impossible to determine the amount of damages that would result from any breach
of any of the provisions of Section 1 and that the remedy at law for any breach,
or threatened breach, of any of such provisions would likely be inadequate and
accordingly, each party agrees that in addition to any other rights or remedies
which it may have at law or in equity, the non-breaching party would be entitled
to seek such equitable and injunctive relief as may be available from any court
of competent jurisdiction to restrain a party from violating any of the
provisions of this Agreement. In connection with any action or proceeding for
such equitable or injunctive relief, each party hereby waives any claim or
defense that a remedy at law alone is adequate and agrees, to the maximum extent
permitted by law, to have each such provision of Section 1 specifically enforced
against a violating party, without the necessity of posting bond or other
security against the violating party, and consents to the entry of equitable or
injunctive relief against the violating party enjoining or restraining any
breach or threatened breach of Section 1.
4. Miscellaneous.
(a) Amendment; Waiver. This Agreement shall not be amended, altered or
modified in any manner whatsoever, except by a written instrument executed by
the parties hereto. No waiver of any breach or default hereunder shall be
considered valid unless in writing and signed by the party giving such waiver,
and no such waiver shall be deemed a waiver of any subsequent breach of the same
or similar nature.
(b) Counterparts. This Agreement may be executed in two or more
counterparts (including by facsimile), each of which shall be deemed to be an
original, but all of which shall constitute one and the same instrument.
(c) Governing Law. This Agreement shall be deemed to be made in and in all
respects shall be interpreted, construed and governed by and in accordance with
the laws of the State of Illinois, without regard to conflict of law principles.
(d) Jurisdiction. Any legal action or proceeding with respect to this
Agreement may be brought in the courts of the State of West Virginia and, by
execution and notice as provided in this Agreement, each party hereby accepts
for itself and in respect of its property, generally and unconditionally, the
jurisdiction of the aforesaid courts. Each party irrevocably consents to the
service of process out of any of the aforementioned courts in any such action or
2
proceeding by the delivery of notice as provided in this Agreement, such service
to become effective upon such delivery.
(e) Notices. All notices, requests, instructions and other communications
to be given hereunder by any party to the other shall be in writing and shall be
deemed given if personally delivered, telecopied (with confirmation) or mailed
by registered or certified mail, postage prepaid (return receipt requested), to
such party at its address set forth below or such other address as such party
may specify to the other party by notice provided in accordance with this
Section 5(e).
If to Employer:
Energy Services Acquisition Corp.
0000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxx Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile:
with a copy (which shall not constitute notice) to:
Xxxx Xxxxxx, Esq.
Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C.
0000 Xxxxxxxxx Xxxxxx, XX, Xxxxx 000
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Xx. Xxxxxx:
Xxxxxxxx Xxx Xxxxxx
000 Xxxxxxx Xxxx
Xxxxxxxxx, Xxxx Xxxxxxxx 00000
Telephone:
Facsimile:
(f) Parties In Interest. This Agreement shall be binding upon and inure
solely to the benefit of each party hereto and their respective successors,
assigns, estate, heirs, executors, administrators, subsidiaries, affiliated
entities, officers, directors, employees, agents, representatives and other
legal representatives, as the case may be. Nothing in this Agreement, express or
implied, is intended to confer upon any other person, other than parties hereto
and their respective successors, assigns, estate, heirs, executors,
administrators and other legal representatives, as the case may be, any rights
remedies, obligations or liabilities under or by reason of this Agreement.
(g) Assignment. This Agreement shall not be assigned by law or otherwise
without the prior written consent of the other party hereto.
3
(h) Compliance. A party's failure to insist upon strict compliance with any
provision of this Agreement or the failure to assert any right that such party
may have hereunder shall not be deemed to be waiver of such provision or right
or any other provision or right of this Agreement.
(i) Captions. The section and paragraph captions herein are for convenience
of reference only, do not constitute part of this Agreement and shall not be
deemed to limit or otherwise affect any of the provisions hereof.
(j) Severability. Any term or provision of this Agreement which is invalid
or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity and unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement in any other jurisdiction. If any provision of this Agreement is so
broad as to be unenforceable, the provision shall be interpreted to be only so
broad as is enforceable.
4
IN WITNESS WHEREOF, the parties have executed this Agreement on this
date.
Energy Services Acquisition Corp.
By:
---------------------------------
Name:
Title:
S.T. Pipeline, Inc.
By:
---------------------------------
Name:
Title:
---------------------------------
Xxxxxxxx Xxx Xxxxxx
