Common use of Covenant Not to Compete Etc Clause in Contracts

Covenant Not to Compete Etc. (a) At all times during your employment with a Company Entity and for the longer of one year or the balance of the Term thereafter, you will not, and you will cause your affiliates not to, directly or indirectly, in the United States of America, in any of its territories and possessions, or anywhere else in the world, engage or participate in, or render services to (whether as owner, operator, member, shareholder, trustee, manager, consultant, strategic partner, employee or otherwise), except on behalf of a Company Entity, any zinc or aluminum die-casting business or any other business of a type conducted by the Company, Dynacast or any of its or their subsidiaries (collectively, “Company Entities”) as of the date of this Agreement or at any time during the Term (a “Competing Business”). If, at any time, the provisions of this Section 6(a) shall be determined to be invalid or unenforceable, by reason of being vague or unreasonable as to area, duration or scope of activity, this Section 6(a) shall be considered divisible and shall become and be immediately amended to only such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and you agree that this Section 6(a) as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included herein. (b) At all times during your employment with a Company Entity and for three years thereafter, you will not, and you will cause your affiliates not to, directly or indirectly, (i) solicit for employment or recruit, (ii) employ or hire, either as an employee or a consultant, any employee, consultant or independent contractor of the Company or any of its Affiliates who was an employee, consultant or independent contractor of the Company or any of its Affiliates at any time within the 12 months preceding such action, or (iii) solicit any customer or other person with a business relationship with the Company or any of its Affiliates to terminate, curtail or otherwise limit such business relationship; provided, however, that a general advertisement not specifically targeted at service providers of the Company or any of its Affiliates shall not constitute a violation of clause (i) of this Section 6(b). (c) At all times during your employment with a Company Entity and thereafter, you shall, and you shall cause your affiliates to, keep confidential and not disclose to any Person or use for the benefit of any other Person any information, technology, know-how, trade secrets, product formulas, industrial designs, franchises, inventions or other industrial and intellectual property in your possession or control regarding the Company, any Affiliate of the Company, or any of their respective businesses (unless and to the extent compelled to disclose by judicial or administrative process, in which case you shall cooperate with the Company and its Affiliates in obtaining a protective order at the Company’s expense against disclosure by a court of competent jurisdiction). Your obligations under this Section 6(c) shall not apply to information that is known to the public in substantially similar form, other than as a result of a breach of this Agreement. (d) At all times after your termination of employment and during your employment with a Company Entity, you shall not, directly or indirectly, make or publish any disparaging statements (whether written or oral) regarding the Company, any of its Affiliates, or the directors, officers, agents, principal stockholders or customers of any of them; provided, however, that such a statement believed by you in good faith to be required by you during your employment in the good faith performance of your duties hereunder shall not constitute a breach of this provision. (e) You shall not, at any time, have or claim any right, title or interest in any trade name, patent, trademark, copyright, trade secret, intellectual property, methodologies, technologies or other similar rights relating to the business of the Company or any of its Affiliates (collectively, “Intellectual Property”) belonging to the Company or any of its Affiliates and shall not have or claim any right, title or interest in or to any material or matter of any kind prepared for or used in connection with the business or promotion of the Company or any of its Affiliates, whether produced, prepared or published in whole or in part by you or by the Company or any of its Affiliates. All Intellectual Property that is conceived, devised, made, developed or perfected by you, alone or with others, during your employment that is related to the business of the Company or any of its Affiliates or is devised, made, developed or perfected utilizing equipment or facilities of the Company or any of its Affiliates shall be promptly disclosed to the Board, are works for hire and shall be the sole, absolute and exclusive property of the Company. If and to the extent that any of such Intellectual Property should be determined for any reason not to be a work for hire, you hereby assign to the Company all of your right, title and interest in and to such Intellectual Property. At the reasonable request and expense of the Company but without charge to the Company, whether during or at any time after your employment with the Company, you shall cooperate fully with the Company and its Affiliates in the securing of any trade name, patent, trademark, copyright or intellectual property protection or other similar rights in the United States and in foreign countries, including without limitation, the execution and delivery of assignments, patent applications and other documents or papers. (f) You acknowledge and agree that the restrictions contained in Sections 6(a), (b), (c), (d) and (e) are a reasonable and necessary protection of the immediate interests of the Company, and any violation of these restrictions would cause substantial injury to the Company and that the Company would not have entered into this Agreement without receiving the protective covenants contained in Sections 6(a), (b), (c), (d) and (e). In the event of a breach or a threatened breach by you or any of your affiliates of these restrictions, the Company will be entitled to an injunction restraining you or such Affiliate, as applicable, from such breach or threatened breach (without the necessity of proving the inadequacy as a remedy of money damages or the posting of a bond); provided, however, that the right to injunctive relief will not be construed as prohibiting the Company from pursuing any other available remedies, whether at law or in equity, for such breach or threatened breach. (g) You represent that none of your obligations or restrictions regarding post-service activities imposed by a prior employer or other Person unrelated to the Company or its Affiliates will restrict your performance of the services contemplated by this Agreement. You represent that you will honor all obligations concerning confidentiality and nonsolicitation that you have to any such Person, and that you will not intentionally take to the Company any confidential information or trade secrets of any such Person, nor intentionally use or disclose any confidential information or trade secrets of any such Person while in service to the Company. (h) Notwithstanding anything to the contrary contained in Section 6(a), you shall be released from your obligations under Section 6(a) if (i) your employment is terminated by the Company without Cause or by you for Good Reason (and other than by reason of your death or Disability or a Company Reason) and (ii) prior to engaging in any activity restricted by Section 6(a), you provide the company with 15 days’ written notice of your intention to engage in such activity and your written consent to the termination of any rights you have to the unpaid (or not yet provided) portions of Severance Amount, Pro Rata Bonus and Release Benefits. Upon receipt of such notice, the Company shall terminate any rights you have to the unpaid (or not yet provided) portions of the Severance Amount, Pro Rata Bonus and Release Benefits under Section 4(c).

Covenant Not to Compete Etc. (a) At all times during your employment with a Company Entity and for the longer of one year or the balance of the Term thereafter, you will not, and you will cause your affiliates not to, directly or indirectly, in the United States of America, in Asia, Singapore, any territories or possessions of any of its territories and possessionsthe foregoing, or anywhere else in the world, engage or participate in, or render services to (whether as owner, operator, member, shareholder, trustee, manager, consultant, strategic partner, employee or otherwise), except on behalf of a Company Entity, any zinc or aluminum die-casting business or any other business of a type conducted by the Company, Dynacast or any of its or their subsidiaries (collectively, “Company Entities”) as of the date of this Agreement or at any time during the Term (a “Competing Business”). If, at any time, the provisions of this Section 6(a) shall be determined to be invalid or unenforceable, by reason of being vague or unreasonable as to area, duration or scope of activity, this Section 6(a) shall be considered divisible and shall become and be immediately amended to only such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and you agree that this Section 6(a) as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included herein. (b) At all times during your employment with a Company Entity and for three years thereafter, you will not, and you will cause your affiliates not to, directly or indirectly, (i) solicit for employment or recruit, (ii) employ or hire, either as an employee or a consultant, any employee, consultant or independent contractor of the Company or any of its Affiliates who was an employee, consultant or independent contractor of the Company or any of its Affiliates at any time within the 12 months preceding such action, or (iii) solicit any customer or other person with a business relationship with the Company or any of its Affiliates to terminate, curtail or otherwise limit such business relationship; provided, however, that a general advertisement not specifically targeted at service providers of the Company or any of its Affiliates shall not constitute a violation of clause (i) of this Section 6(b). (c) At all times during your employment with a Company Entity and thereafter, you shall, and you shall cause your affiliates to, keep confidential and not disclose to any Person or use for the benefit of any other Person any information, technology, know-how, trade secrets, product formulas, industrial designs, franchises, inventions or other industrial and intellectual property in your possession or control regarding the Company, any Affiliate of the Company, or any of their respective businesses (unless and to the extent compelled to disclose by judicial or administrative process, in which case you shall cooperate with the Company and its Affiliates in obtaining a protective order at the Company’s expense against disclosure by a court of competent jurisdiction). Your obligations under this Section 6(c) shall not apply to information that is known to the public in substantially similar form, other than as a result of a breach of this Agreement. (d) At all times after your termination of employment and during your employment with a Company Entity, you shall not, directly or indirectly, make or publish any disparaging statements (whether written or oral) regarding the Company, any of its Affiliates, or the directors, officers, agents, principal stockholders or customers of any of them; provided, however, that such a statement believed by you in good faith to be required by you during your employment in the good faith performance of your duties hereunder shall not constitute a breach of this provision. (e) You shall not, at any time, have or claim any right, title or interest in any trade name, patent, trademark, copyright, trade secret, intellectual property, methodologies, technologies or other similar rights relating to the business of the Company or any of its Affiliates (collectively, “Intellectual Property”) belonging to the Company or any of its Affiliates and shall not have or claim any right, title or interest in or to any material or matter of any kind prepared for or used in connection with the business or promotion of the Company or any of its Affiliates, whether produced, prepared or published in whole or in part by you or by the Company or any of its Affiliates. All Intellectual Property that is conceived, devised, made, developed or perfected by you, alone or with others, during your employment that is related to the business of the Company or any of its Affiliates or is devised, made, developed or perfected utilizing equipment or facilities of the Company or any of its Affiliates shall be promptly disclosed to the Board, are works for hire and shall be the sole, absolute and exclusive property of the Company. If and to the extent that any of such Intellectual Property should be determined for any reason not to be a work for hire, you hereby assign to the Company all of your right, title and interest in and to such Intellectual Property. At the reasonable request and expense of the Company but without charge to the Company, whether during or at any time after your employment with the Company, you shall cooperate fully with the Company and its Affiliates in the securing of any trade name, patent, trademark, copyright or intellectual property protection or other similar rights in the United States and in foreign countries, including without limitation, the execution and delivery of assignments, patent applications and other documents or papers. (f) You acknowledge and agree that the restrictions contained in Sections 6(a), (b), (c), (d) and (e) are a reasonable and necessary protection of the immediate interests of the Company, and any violation of these restrictions would cause substantial injury to the Company and that the Company would not have entered into this Agreement without receiving the protective covenants contained in Sections 6(a), (b), (c), (d) and (e). In the event of a breach or a threatened breach by you or any of your affiliates of these restrictions, the Company will be entitled to an injunction restraining you or such Affiliate, as applicable, from such breach or threatened breach (without the necessity of proving the inadequacy as a remedy of money damages or the posting of a bond); provided, however, that the right to injunctive relief will not be construed as prohibiting the Company from pursuing any other available remedies, whether at law or in equity, for such breach or threatened breach. (g) You represent that none of your obligations or restrictions regarding post-service activities imposed by a prior employer or other Person unrelated to the Company or its Affiliates will restrict your performance of the services contemplated by this Agreement. You represent that you will honor all obligations concerning confidentiality and nonsolicitation that you have to any such Person, and that you will not intentionally take to the Company any confidential information or trade secrets of any such Person, nor intentionally use or disclose any confidential information or trade secrets of any such Person while in service to the Company. (h) Notwithstanding anything to the contrary contained in Section 6(a), you shall be released from your obligations under Section 6(a) if (i) your employment is terminated by the Company without Cause or by you for Good Reason (and other than by reason of your death or Disability or a Company Reason) and (ii) prior to engaging in any activity restricted by Section 6(a), you provide the company with 15 days’ written notice of your intention to engage in such activity and your written consent to the termination of any rights you have to the unpaid (or not yet provided) portions of Severance Amount, Pro Rata Bonus and Release Benefits. Upon receipt of such notice, the Company shall terminate any rights you have to the unpaid (or not yet provided) portions of the Severance Amount, Pro Rata Bonus and Release Benefits under Section 4(c).