EX-10.2



 





Exhibit 10.2




NONCOMPETITION AND NONDISCLOSURE AGREEMENT




     This Noncompetition, Nondisclosure and Nonsolicitation Agreement (this “Agreement”) is made
and entered into as of this 18th day of December, 2007, by and among ENERGY WEST,
INCORPORATED, a Montana corporation (“Buyer”), and DAN F. WHETSTONE a/k/a DANIEL F. WHETSTONE, an
individual residing in Cut Bank, Montana (“DFW”).



Background




     DFW owns five thousand nine hundred thirty-nine (5,939) shares (the “Whetstone
Shares”) of the common stock of Cut Bank Gas Company, Inc. (the “Company”), which constitute
approximately 65.762% of the issued and outstanding shares of capital stock of the Company. DFW is
and has been an employee of the Company for 37 years and has served as its President since 1979.
Currently, his services are being provided pursuant to an Employment Agreement, dated December 20,
2006, for term ending December 31, 2013, a copy of which has been provided to Buyer. Concurrently
with the execution and delivery of this Agreement, Buyer is purchasing the Whetstone Shares from
DFW pursuant to the terms and conditions of a Stock Purchase Agreement, dated as of the date
hereof, by and between Buyer, DFW and certain other shareholders of the Company who are selling
his/her shares of the Company to Buyer (the “Purchase Agreement”). Pursuant to the Purchase
Agreement, Buyer is purchasing a majority interest in the Company as well as the goodwill of the
Company. As a condition to Buyer entering into the Purchase Agreement, Buyer requires that this
Agreement be executed and delivered by DFW. Since DFW will receive substantial benefit from the
transactions contemplated in the Purchase Agreement, and because Buyer is willing to pay DFW
additional consideration pursuant to this Agreement in consideration of his performance of the
terms and conditions of this Agreement, DFW has agreed to enter into this Agreement and make the
noncompetition, nondisclosure, nonsolicitation and other covenants set forth in this Agreement.



Agreement




     In consideration of the mutual promises made herein, and for the consideration to be paid by
Buyer to Sellers pursuant to the Purchase Agreement, the parties hereto agree as follows:



     1. Acknowledgements by DFW. DFW acknowledges that he has occupied a position of trust
and confidence with the Company prior to the date hereof and has had access to and has become
familiar with the following information of the Company, any and all of which is confidential to the
Company (collectively, the “Confidential Information”): (a) any and all trade secrets concerning
the business and affairs of the Company, data, know-how, formulae, compositions, processes, current
and/or planned distribution methods and processes, customer lists, current and anticipated customer
requirements, price lists, market studies, business plans, computer software and programs, database
technologies, systems, structures, concepts, methods and information of the Company and any other
information, however documented, of the Company that is a trade secret within the meaning of the
trade secret laws of Montana or under other applicable law; (b) any and all information concerning
the business and affairs of the Company (which includes historical financial statements, financial
projections and budgets, historical and projected sales, capital spending budgets and plans, the
names and backgrounds of key personnel, contractors, agents, suppliers and potential suppliers, personnel training



 









 







techniques and materials, and purchasing methods and techniques however documented); and (c) any
and all notes, analysis, compilations, studies, summaries and other material prepared by or for the
Company containing or based, in whole or in part, upon any information included in the foregoing.
DFW further acknowledges that (i) the business of the Company is Territorial in scope; (ii) the
products and services related to such business are marketed throughout the Territory; (iii) the
Company competes with other businesses that are or could be located in any part of the Territory;
(iv) Buyer has required that DFW make the covenants set forth in this Agreement as a condition to
Buyer’s purchase of the Whetstone Shares; (v) the provisions of this Agreement are reasonable and
necessary to protect and preserve Buyer’s interests in and right to the Company from and after the
date of this Agreement; and (vi) Buyer would be irreparably damaged if any DFW were to breach the
covenants set forth in this Agreement.



     2. Nondisclosure of Confidential Information. DFW hereby agrees not to disclose to
any unauthorized Persons or use for DFW’s own account or for the benefit of any third party any
Confidential Information, whether or not such information is embodied in writing or other physical
form or is retained in the memory of DFW, unless and to the extent that (i) the Confidential
Information is or becomes generally known to and available for use by the public other than as a
result of DFW’s fault, or (ii) DFW is required to disclose same by order of any court with
jurisdiction to make such order. DFW agrees to deliver to Buyer at the closing of the Purchase
Agreement, or at any other time Buyer may request, all documents, memoranda, notes, plans, records,
reports and other documentation, models, components, devices or computer software, whether embodied
in a disk or in other form (and all copies of all of the foregoing), that contain Confidential
Information and any other Confidential Information that DFW may then possess or have under his
control.



     3. Noncompetition and Nonsolicitation. As an inducement for Buyer to enter into the
Purchase Agreement, and as additional consideration for the consideration to be paid to the Company
under the Purchase Agreement and to be paid to DFW under this Agreement, DFW agrees that for a
period of three (3) years after the Closing hereof:




     (a) DFW will not, directly or indirectly, engage in, invest in, own, manage, operate,
finance, control, assist, advise or participate in as an employee, shareholder, independent
contractor or otherwise, any business, firm, partnership, individual, corporation or any
other entity located in, represented in, or conducting business in the Territory if said
business is in any respects competitive with the business of the Company or the business of
the Buyer; provided, however, that DFW may purchase or otherwise acquire up
to (but not more than) one percent (1%) of any class of securities of any entity (but
without otherwise participating in the activities of such entity) if such securities are
listed on any national or regional securities exchange or have been registered under Section
12(g) of the Securities Exchange Act of 1934. As used herein, “directly or indirectly”
means either personally or through any person, firm, or other entity with which DFW may be
associated or connected, as principal, representative, independent contractor, lender,
investor or in any other individual or representative capacity whatsoever. As used herein,
“Territory” means the following counties within the State of Montana: Glacier, Flathead,
Pondera & Toole. DFW agrees that this covenant is reasonable with respect to its duration,
geographical area and scope;



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     (b) From and after the Effective Date hereof, DFW will not, directly or indirectly, (i)
induce or attempt to induce any employee of the Company to leave the employ of the Company;
(ii) in any way interfere with the relationship between Buyer and any employees of the
Company; (iii) employ or otherwise engage as an employee, independent contractor or
otherwise any employee of the Company; or (iv) induce or attempt to induce any customer,
supplier, licensee or other Person to cease doing business with the Company or in any way
interfere with the relationship between any such customer, supplier, licensee or other
business entity and the Company;




     (c) DFW will not directly or indirectly, solicit the business of any person or entity
who is a customer of the Company with respect to products or activities which compete in
whole or in part with the business of the Company; and




     (d) DFW will not disparage Buyer, the Company or any shareholder, director, officer,
employee or agent of Buyer or the Company.



     In the event of a breach by DFW of any covenant set forth in this Section 3, the term of such
covenant will be extended by the period of the duration of such breach.



     4. Remedies. 



     (a) Injunctive Relief and Damages. If DFW commits or threatens to commit a breach of
any of the provisions of this Agreement, Buyer shall have the right to have the provisions of this
Agreement specifically enforced by an court having jurisdiction, it being acknowledged by DFW and
agreed by the parties that any such breach or threatened breach will cause injury to Buyer for
which money damages alone will not provide an adequate remedy. The rights and remedies enumerated
above shall be in addition to, and not in lieu of, any other rights and remedies available to Buyer
or to the Company at law or in equity.



     (b) Reformation of Agreement. If any of the covenants contained in this Agreement
shall be found by a court of competent jurisdiction to be invalid or unenforceable for any reason,
such court shall exercise its discretion to reform such covenant to the end that Employee shall be
subject to nondisclosure, noninterference and noncompetition covenants that are reasonable under
the circumstances and are enforceable by Buyer.



     (c) Expenses of Enforcement of Covenants. If any action, suit, or other proceeding at
law or in equity is brought to enforce any of the covenants contained in this Agreement or to
obtain money damages for the breach thereof, the party prevailing in any such action, suit or other
proceeding shall be entitled upon demand or reimbursement from the other party for all expenses
(including, without limitation, reasonable attorneys’ fees and disbursements) incurred in
connection therewith.



     (d) The parties acknowledge and agree that the restrictive covenants set forth in this
Agreement fall within the “Goodwill Exception” codified in Montana Code Ann. §28-2-704 to the
general policy provisions of Montana Code Ann. §28-2-703.



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     5. Compensation. As consideration for the covenants in this Agreement, Buyer will pay
DFW an aggregate amount of Three Hundred Seventy Thousand and 00/100 Dollars ($370,000.00), all of
which shall be paid to DFW in immediately available funds at the date and time of the Closing of
the Purchase Agreement.



     6. Successors and Assigns. This Agreement shall be binding upon Buyer and DFW and
shall inure to the benefit of Buyer and its affiliates, successors and assigns.



     7. Waiver. The rights and remedies of the parties to this Agreement are cumulative
and not alternative. Neither the failure nor any delay by any party in exercising any right, power
or privilege under this Agreement will operate as a waiver of such right, power or privilege, and
no single or partial exercise of any such right, power or privilege will preclude any other or
further exercise of such right, power or privilege or the exercise of any other right, power or
privilege. To the maximum extent permitted by applicable law, (a) no claim or right arising out of
this Agreement can be discharged, in whole or in part, by a waiver or renunciation of the claim or
right except in writing; (b) no waiver that may be given by a party will be applicable except in
the specific instance for which it is given; and (c) no notice to or demand on one party will be
deemed to be a waiver of any obligation of such party, or of the right of the party giving such
notice or demand to require the other party, to take further action without notice or demand as
provided in this Agreement.



     8.  Notices. All notices, consents, waivers and other communications required or
permitted by this Agreement shall be in writing and shall be given in accordance with the
provisions set forth in Section 12 of the Purchase Agreement.



     9. Severability. Whenever possible, each provision and term of this Agreement will be
interpreted in a manner to be effective and valid, but if any provision or term of this Agreement
is held to be prohibited or invalid, then such provision or term will be ineffective only to the
extent of such prohibition or invalidity, without invalidating or affecting in any manner
whatsoever the remainder of such provision or term or the remaining provisions or terms of this
Agreement. If any of the covenants set forth in this Agreement are held to be unreasonable,
arbitrary or against public policy, such covenants will be considered divisible with respect to
scope, time and geographic area, and in such lesser scope, time and geographic area, will be
effective, binding and enforceable against DFW to the greatest extent permissible.



     10.  Counterparts. This Agreement may be executed in one or more counterparts, each
of which will be deemed to be an original copy of this Agreement and all of which, when taken
together, will be deemed to constitute one and the same agreement.



     11. Section Headings; Construction. The headings of sections in this Agreement are
provided for convenience only and will not affect its construction or interpretation. All
references to “Section” refer to the corresponding section of this Agreement unless otherwise
specified. All words used in this Agreement will be construed to be of such gender or number as the
circumstances require. Unless otherwise expressly provided, the word “Including” does not limit the
preceding words or terms.



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     12.  Entire Agreement. This Agreement and the Purchase Agreement constitute the
entire agreement between the parties with respect to the subject matter of this Agreement and
supersede all prior written and oral agreements and understandings between the parties with respect
to the subject matter of this Agreement. This Agreement may not be amended except by a written
agreement executed by the party to be charged with the amendment.



     13. Termination. This Agreement constitutes the binding and irrevocable agreement of
the parties hereto to consummate the transactions contemplated hereby subject to the terms and
conditions contained herein, the consideration for which is the covenants set forth herein, and
expenditures and obligations incurred and to be incurred by Buyer, on the one hand, and by DFW, on
the other hand, in respect of this Agreement, and this Agreement may be terminated or abandoned
only as follows:



(1) By the unanimous written consent of DFW and Buyer; or



(2) If any condition to the Closing under Section 7 of the Purchase
Agreement has not been satisfied (or waived by Purchaser) by 5:00 p.m. on the one
(1) year anniversary of the Effective Date of the Purchase Agreement or at such
other time and date as may be mutually agreed upon by the parties in writing, by
either party giving written notice given to the other, provided, however, that if
the Purchase Agreement is terminated at any time by any party pursuant to the terms
thereof, then this Agreement shall also be terminated without further written notice
by the terminating party.



 




[Signatures on following page]




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     IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of the date
first above written.



	 	 	 	 	 	 	 
	 	 	BUYER:


	 	 	ENERGY WEST, INCORPORATED

A Montana Corporation


	 	 	By:	 	/s/ David C. Cerotzke
	 	 	 	 	 
	 

	 	 	 	Print Name:
	 	David C. Cerotzke
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:
	 	Vice-Chairman
	 

	 	 	 	 	 	 


	 	 	 	 	DANIEL F. WHETSTONE


	 	 	 	 	/s/ Daniel F. Whetstone
	 	 	 	 	 
	 	 	 	 	Daniel F. Whetstone







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