NON-SOLICITATION, NONDISCLOSURE AND CONFIDENTIALITY AGREEMENTNonSolicitation Agreement |
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Exhibit
10.8
NON-SOLICITATION,
NONDISCLOSURE AND
CONFIDENTIALITY
AGREEMENT
THIS
AGREEMENT is made on May 9, 2008 between GSC Acquisition Company, a Delaware
corporation (the “Company”) and Peter J. Dailey
(“PJD”).
WHEREAS,
the Company, GSCAC Holdings I LLC, a Delaware limited liability company, GSCAC
Holdings II LLC, a Delaware limited liability company, GSCAC Merger Sub LLC, a
Delaware limited liability company (“MergerSub”) and Complete
Energy Holdings, LLC, a Delaware limited liability company (“CEH”) entered into an
Agreement and Plan of Merger, dated as of May 9, 2008, (the “Merger Agreement”) upon the
consummation of which Merger Sub will be merged with and into CEH, with CEH as
the surviving entity and a subsidiary of the Company;
WHEREAS,
in connection with and by virtue of the transactions contemplated by the Merger
Agreement, PJD will transfer all his rights, title and interests in CEH in
exchange for a portion of the “CEH Group Merger Consideration” (as
defined in and determined pursuant to Exhibit F to the Merger
Agreement);
WHEREAS,
the Company and PJD desire to memorialize his agreement, in exchange for a
portion of the CEH Group Merger Consideration, not to solicit employees of the
Company or its affiliates or disclose any confidential information of the
Company or any of its affiliates as provided herein;
NOW,
THEREFORE, in consideration of the premises and mutual covenants herein, the CEH
Group Merger Consideration and for other good and valuable consideration, the
parties agree as follows:
1. Non-Solicitation. During
the two-year period beginning on the Closing Date (as defined in the Merger
Agreement) (the “Restricted
Period”), PJD will not induce any employee of the Company or its
affiliates to terminate his or her employment with the Company or its
affiliates, or solicit for hire or employment or assist in the hiring or
employment of any such employee by any Person (as defined in the Merger
Agreement) not affiliated with the Company unless such employee shall have
ceased to be employed by the Company or any of its affiliates for a period of at
least 12 months; provided,
however, that this Section 1 shall not apply to any solicitation (or
hiring or employment as a result of any solicitation) that consists of
advertising in a newspaper or periodical of general circulation or through the
Internet.
2. Nondisclosure and Nonuse of
Confidential Information. During the Restricted Period, PJD
agrees not to disclose to others, use for his own benefit or purposes or the
benefit or purposes of any other Person other than the Company and any of its
affiliates, any trade secrets, information, data, or other confidential
information
relating to customers, development programs, costs, marketing, trading,
investment, sales activities, promotion, business planning, credit and financial
data, manufacturing processes, financing methods, plans, or the business and
affairs of the Company generally, or of any affiliate of the Company; provided that the foregoing
shall not apply to (a) confidential information which is or becomes a part of
the public domain or is available to the public by publication or otherwise
without disclosure by PJD; (b) confidential information which, either prior or
subsequent to the Company’s disclosure to PJD, was disclosed to PJD, without an
obligation of confidentiality, by a third party who did not acquire such
information, directly or indirectly from PJD or the Company, or from any third
party who is under an obligation of confidentiality; or (c) any disclosure of
confidential information by PJD which is required by law, including deposition
or trial testimony by PJD pursuant to subpoena. If PJD is requested
or required (by oral questions, interrogatories, requests for information or
documents, subpoena, civil investigative demand, or similar process) to disclose
any confidential information, PJD will promptly notify the Company of such
request or requirements so that the Company may seek an appropriate protective
