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Exhibit
10.27
FORM OF NON-COMPETITION
AND NON-SOLICITATION AGREEMENT
This Non-Competition and
Non-Solicitation Agreement (“ Agreement
”), dated as of September 14 2007, is executed and
delivered by [
] (“[ Stockholder/Employee ]”), to Basin
Water, Inc., a Delaware corporation (“ Parent
”), and is made contemporaneously with the merger of BW
Acquisition Merger Sub, Inc., a Delaware corporation (“
Merger Sub ”) with and into Mobile Process
Technology, Co., an Arkansas corporation (the “
Company ”) with the Company as the surviving
corporation (“ Intermediate Surviving
Corporation ”) and the merger of the Intermediate
Surviving Corporation into Basin Water – MPT, Inc., a
Delaware corporation (“ Newco ”), with
Newco as the surviving corporation, pursuant to that certain
Agreement and Plan of Merger dated as of August 31, 2007 (the
“ Merger Agreement ”) by and among the
Company, Parent, Merger Sub, Newco, the Stockholders (as defined
therein) and the Stockholders’ Representative (as defined
therein). Capitalized terms used herein without definition shall
have the meanings ascribed to them in the Merger
Agreement.
RECITALS
A. The Parent and
[Stockholder/Employee] each acknowledge that execution and delivery
of this Agreement is a condition to the Parent’s obligation
to consummate the transactions contemplates by the Merger Agreement
and that the Parent is relying on this Agreement in consummating
such transactions.
B. The [Stockholder/Employee]
acknowledges that [he/she] will derive an economic benefit from the
consideration to be paid under retention bonus to be paid to
Employee pursuant to the terms of the Merger Agreement.
AGREEMENT
NOW THEREFORE, as a material
inducement to Parent to enter into and consummate the transactions
contemplated by the Merger Agreement, and for other good and
valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereby agree as
follows:
1. Term and
Consideration . The term of this Agreement shall commence on
the Closing Date and shall expire on the fifth (5 th ) anniversary of the [Closing
Date/date of termination of [Stockholder/Employee]’s
employment with the Company] 1 (the
“ Term ”). 2 In the event Stockholder is in breach of Sections 2 or 3 of
this Agreement, the Term shall be extended by the length of any
period during which [Stockholder/Employee] is in breach of the
terms of such Sections. No additional consideration shall be
paid to [Stockholder]/Employee] pursuant to this
Agreement.
2. Covenant Not To
Compete . During the Term, neither Stockholder nor any of its
subsidiaries or Affiliates, Stockholder shall, directly or
indirectly, (a) engage in any business
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1
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The term will be five years from the Closing Date if the
Stockholder will not remain employed by the Company; the term will
be five years from the date of termination if the Stockholder will
remain employed by the Company.
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2
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For Stockholders who will remain employees, we will add
the following: “irrespective of whether or not you remain
employed by the Company during the Term, you shall be bound by the
terms of this Agreement.”
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anywhere in North America that engages
in the business of water treatment solutions or services, including
applications for (i) arsenic or nitrate removal for utilities,
cities, municipalities, special districts, real estate developers
and other entities that supply water, and (ii) industrial
operations that may require mobile de-ionization services, metals
removal using ion exchange, and special use of ion exchange (the
“ Business ”) or (b) own an interest
in, manage, operate, join, control, lend money or render financial
or other assistance to or participate in or be connected with, as
an officer, employee, manager, member, consultant or otherwise, any
person that competes with Parent or the Company in the Business
(such person, a “ Competitor ”);
provided , however , that, for the purposes of this
Section 2, ownership of securities having no more than one
percent of the outstanding voting power of any Competitor which are
listed on any national securities exchange shall not be deemed to
be in violation of this Section 2 as long as the person owning
such securities has no other connection or relationship with such
Competitor.
3. No Solicitation of
Customers and Employees .
a. During the Term, neither
[Stockholder/Employee] nor any of its subsidiaries or Affiliates
shall, directly or indirectly, call on or solicit, divert or take
away from Parent or the Company (including without limitation by
divulging to any Competitor or potential Competitor) any person,
firm, corporation or other entity who is or which at the Closing
Date was a customer or supplier of Parent or the Company or whose
identity is
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