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potential opportunity losses. We are not persuaded that the
parties considered the potential opportunity losses, that
potential opportunity losses in this instance provide an
acceptable measure of value for a covenant not to compete, and
that Mr. Heebink’s determinations and calculations of those
opportunity losses are correct.33 We are not convinced that HII
or a hypothetical “buyer” would pay the present value of
potential opportunity losses for a covenant not to compete. As
Mr. Engstrom testified in rebuttal: “if the projected losses
were $2 million, then there’d be no reason why Hess would be
willing to pay $2 million, because then they’d be in the same
position they would have been in if the covenant had never been
entered into in the first place.” Further, we are not convinced
that HII would pay Mr. Kucklick a salary of only $135,000 per
year during the 3-year term of the employment agreement, yet pay
Mr. Kucklick $2 million for the 8-year covenant not to compete.
Again, as Mr. Engstrom testified: “if he was willing to work
full time for the company and not work for anyone else for
$135,000 per year, there’s no reason to believe you’d have to pay
him substantially more than that to not work.”
We are not persuaded by Mr. Heebink’s attempts to quantify
the value of the 8-year covenant. We cannot agree that the 8-
33For example, Mr. Heebink’s analysis assumes that HII would
realize losses immediately upon Mr. Kucklick’s leaving and
competing against HII.
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