Covenant Not to Compete. (i) The Company and its affiliates are currently engaged in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve (12) months after Executive’s cessation of employment with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business. (ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement. (iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Board.
Appears in 6 contracts
Sources: Executive Employment Agreement (Endo, Inc.), Executive Employment Agreement (Endo, Inc.), Executive Employment Agreement (Endo, Inc.)
Covenant Not to Compete. (i) The Company and its affiliates are currently engaged in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information Information, Company Intellectual Property and other trade secrets of the Company and its affiliates as well as the goodwill affiliates, and competitive business in specific consideration for a cash payment of the Company and its affiliates$1,000, Executive agrees, to the maximum extent permitted by applicable law, not to become involved with any entity that directly or indirectly engages in Prohibited Activities (as defined below) in any country in which the Company or any of its affiliates conducts such business, or plans to conduct such business during the Employment Term, during the period commencing with the Employment Term and for a period of ending twelve (12) months after Executive’s cessation of employment with the CompanyCompany for any reason. For the purposes of this Agreement, that Executive will notthe term “Prohibited Activities” means directly or indirectly owning any interest in, unless otherwise agreed managing, participating in (whether as an employee, director, officer, consultant, partner, member, manager, representative or agent), consulting with or rendering services to any entity (including, without limitation, Doctor On Demand, MDLive, Teladoc, Epic Systems, Cerner or Zoom) in (A) the telehealth industry or (B) digital healthcare, that, in the case of clause (B), performs or plans to perform any of the services or manufactures or sells or plans to manufacture or sell any of the products planned, provided or offered by the Chief Executive Officer Company or any of Endo (following approval its subsidiaries or any products or services designed to perform the same function or achieve the same results as the products or services planned, provided or offered by the Chair Company or any of its subsidiaries or performs or plans to perform any other services and/or engages or plans to engage in the development, production, manufacture, distribution or sale of any product similar to any planned or actual services performed or products developed, produced, manufactured, distributed or sold by the Company or any of its subsidiaries during the term of Executive’s employment with the Company and its affiliates, including, without limitation, any business activity that directly or indirectly provides the research, development, manufacture, marketing, selling or servicing of systems facilitating consumer communications with professional service providers in the digital healthcare field; provided that Prohibited Activities shall not mean Executive’s investment in securities of a publicly-traded company (or a non-publicly traded entity through a passive investment) equal to less than five percent (5%) of such company’s outstanding voting securities. Executive agrees that the covenants contained in this Section 12(b) are reasonable and desirable to protect the Confidential Information and Company Intellectual Property of the Committee)Company and its affiliates. Any reference to plans or planned activity in this paragraph shall be limited to plans or planned activities that are based upon material demonstrable actions. Following Executive’s cessation of employment, anywhere the prohibitions in this paragraph shall be limited to activities and planned activities (including locations) as of the world where, at the time date of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Board.
Appears in 5 contracts
Sources: Employment Agreement (American Well Corp), Employment Agreement (American Well Corp), Employment Agreement (American Well Corp)
Covenant Not to Compete. (i) The Company and its affiliates are currently engaged 5.1 In consideration of the compensation to be paid to Employee under this Agreement, Employee acknowledges that in the course of Employee’s employment, he has and will become familiar with Employer’s and the Employer Entities’ trade secrets, business plans and business strategies and with other confidential business information concerning Employer and the Employer Entities and that Employee’s services have been and shall be of branded special, unique and generic pharmaceuticalsextraordinary value to Employer and the Employer Entities. Employee also acknowledges that in the course of his employment he had and will have access to Employer’s and the Employer Entities’ relationships and goodwill with their customers, with a focus on product developmentdistributors, clinical developmentsuppliers and employees. In light of Employee’s value to, manufacturingand knowledge of, distribution Employer, the Employer Entities, and sales & marketing. To protect the Confidential Information Business (as defined below) and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliatesEmployee’s compensation pursuant to this Agreement, Executive agreesEmployee agrees that, during the Employment Term and for a period of twelve two (122) months after Executiveyears following a termination of Employee’s cessation of employment with for any reason (the Company“Non-Compete Period”), that Executive he will not, unless otherwise agreed to by the Chief Executive Officer in association with or as an officer, principal, manager, member, advisor, agent, partner, director, material stockholder, employee or consultant of Endo any corporation (following approval by the Chair of the Committee)or sub-unit, anywhere in the world wherecase of a diversified business) or other enterprise, at entity or association, work on the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets acquisition or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control development of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiaryany line of business, division property or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that project which is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business competitive with any business that Employer or any Employer Entity engages in during the Term, including but not limited to, the mining, processing, transportation, distribution, trading and sale of synfuel, coal and coal byproducts (collectively, the basis of “Business”). Such restriction shall cover Employee’s activities anywhere in the affiliation is solely due to common ownership by a private equity states in the United States in which Employer or similar investment fund; provided, that, any Employer Entity conducts operations during the Term or jurisdictions outside the United States in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (which Employer or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to Employer Entity conducts operations during the prior approval of the BoardTerm.
Appears in 5 contracts
Sources: Employment Agreement (Alpha Metallurgical Resources, Inc.), Employment Agreement (Alpha Metallurgical Resources, Inc.), Employment Agreement (Alpha Metallurgical Resources, Inc.)
Covenant Not to Compete. (i) The Employee acknowledges that during his employment with the Company he, at the expense of the Company, has been and its affiliates are currently engaged will be specially trained in the business of branded the Company, has established and generic pharmaceuticalswill continue to establish favorable relations with the customers, with a focus on product developmentclients and accounts of the Company or any subsidiary, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets parent or affiliate of the Company and its affiliates as well as the goodwill will have access to Inventions, trade secrets and competitive business Confidential Information of the Company or any subsidiary, parent or affiliate of the Company. Therefore, in consideration of such training and its affiliatesrelations, Executive agrees, during the Employment Term and for a period of twelve (12) months after Executive’s cessation of his employment with the Company, that Executive will notand to further protect the Inventions, unless otherwise agreed to by the Chief Executive Officer trade secrets and Confidential Information of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% subsidiary, parent or affiliate of the Company’s revenue , the Employee agrees that for a period commencing on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity hereof and (y) serve ending on the board of any Competing Business that competes with the business second anniversary of the Company and its affiliates as an immaterial part Date of its overall businessTermination, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide serviceshe will not, directly or indirectly, to such Competing Business and without the basis express written consent of the affiliation is solely due Company, except when and as requested to common ownership by a private equity do in and about the performing of his duties under this Agreement:
(a) own, manage, operate, control or similar investment fund; providedparticipate in the ownership, thatmanagement, operation or control of, or have any interest, financial or otherwise, in each caseor act as an officer, Executive director, partner, member, principal, employee, agent, representative, consultant or independent contractor of, or in any way assist any individual or entity in the conduct of, any business located in or doing business within a fifty (50) mile radius of any current or future business location of the Company or any subsidiary, parent or affiliate of the Company which is engaged or may become engaged in any business competitive to any business now or at any time during the period hereof engaged in by the Company or any subsidiary, parent or affiliate of the Company, including, but not limited to, any business that is engaged in retail, discount or general merchandising operations;
(b) divert or attempt to divert clients or customers (whether or not such persons have done business with the Company or any subsidiary, parent or affiliate of the Company once or more than once) or accounts of the Company or any subsidiary, parent or affiliate of the Company; or
(c) entice or induce or in any manner influence any person who is or shall remain bound be in the employ or service of the Company or any subsidiary, parent or affiliate of the Company to leave such employ or service for the purpose of engaging in a business which may be in competition with any business now or at any time during the period hereof engaged in by all other post-employment obligations the Company or any subsidiary, parent or affiliate of the Company. Notwithstanding the foregoing provisions, the Employee may own not more than five percent (5%) of the outstanding equity securities in any corporation or entity that is listed upon a national stock exchange or actively traded in the over‑the‑counter market. Notwithstanding the foregoing provisions, the Employee shall not, directly or indirectly, without the express written consent of the Company, except when and as requested to do in and about the performing of his duties under this Agreement including Executive’s obligations Agreement, engage in any actions under Sections 10, 11(asubsections (a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (Ab) or (Bc) of this Section 11(b)(iii) shall be subject above, at any time the Company is making payments to the prior approval of the BoardEmployee pursuant to this Agreement.
Appears in 5 contracts
Sources: Employment Agreement (Duckwall Alco Stores Inc), Employment Agreement (Duckwall Alco Stores Inc), Employment Agreement (Duckwall Alco Stores Inc)
Covenant Not to Compete. (i) The Executive acknowledges that he has established and will continue to establish favorable relations with the customers, clients and accounts of the Company and its affiliates are currently engaged in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other will have access to trade secrets of the Company and its affiliates as well as the goodwill and competitive business Company. Therefore, in consideration of the Company and its affiliatessuch relations to further protect trade secrets, Executive agreesdirectly or indirectly, during the Employment Term and for a period of twelve (12) months after Executive’s cessation of employment with the Company, the Executive agrees that at all times during his Employment with the Company through the date of termination of the Executive’s Employment, the Executive will not, unless otherwise agreed to by directly or indirectly, without the Chief Executive Officer of Endo (following approval by the Chair express written consent of the Committee)Board:
(i) own or have any interest in or act as an officer, anywhere in the world wheredirector, at the time of Executive’s termination of employmentpartner, the Company developsprincipal, manufacturesemployee, distributesagent, markets representative, consultant or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control independent contractor of, be employed by, associated with, or in any manner connected withway assist in, lend Executive’s name toany business which is engaged directly in any business directly competitive with the Company in those markets and/or products lines in which the Company competes within 50 miles of the address of the principal place of business of the parent Company or any or its wholly-owned operating subsidiaries at any time during the Term, or become associated with or render services to any person, firm, corporation or advice to, any third party or any business whose products or services compete in whole or in part with the products or services other entity so engaged (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing BusinessCompetitive Businesses”); provided, however, that the Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on without the board of any Competing Business that competes with the business express written consent of the Company not more than four and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
nine-tenths percent (ii4.9%) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, issued and outstanding securities of any company or enterprise whose securities are listed on a commercial agreement.
(iii) Notwithstanding national securities exchange or actively traded in the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, over the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) hereincounter market; provided, further, however that once the Term has terminated the Executive may work for, have an interest in, render services to or assist any business or Competitive Business without violating this Section 7.2;
(ii) solicit clients, customers or accounts of the Company for, on behalf of or otherwise related to any such Competitive Businesses;
(iii) solicit any person who is in the employ or service of the Company to leave such employ or service for employment with or service to the Executive, an affiliate of the Executive or any third Party. In the event that the Company shall merge with, be acquired by, or generally be absorbed into any other business or institution, the Executive’s provision continued performance on behalf of services such other business or institution shall not constitute a violation of Executive’s duties to (the Company under Article 7 or engagement in activities involving) any entity described in clauses (A) or (B) other provisions of this Section 11(b)(iii) Employment Agreement. Notwithstanding the foregoing, if any court determines that the covenant not to compete, or any part thereof, is unenforceable because of the duration of such provision or the geographic area or scope covered thereby, such court shall have the power to reduce the duration, area or scope of such provision to the extent necessary to make the provision enforceable and, in its reduced form, such provision shall then be enforceable and shall be subject enforced. The Company shall pay and be solely responsible for any attorney’s fees, expenses, costs and court or arbitration costs incurred by the Executive in any matter or dispute between the Executive and the Company which pertains to this Article 7 if the prior approval of Executive prevails in the Boardcontest in whole or in part.
Appears in 4 contracts
Sources: Employment Agreement (Acacia Diversified Holdings, Inc.), Employment Agreement (Acacia Diversified Holdings, Inc.), Employment Agreement (Acacia Diversified Holdings, Inc.)
Covenant Not to Compete. (i) The Company and its affiliates are currently engaged in During the business term of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term this Agreement and for a period of twelve two (122) months after Executive’s cessation of employment with years following the CompanyTermination Date, that Executive will notshall not directly or indirectly: (i) engage, unless otherwise agreed to by anywhere within the Chief Executive Officer of Endo (following approval by the Chair geographical areas in which Company is conducting business operations or providing services as of the Committee), anywhere in the world where, at the time date of Executive’s 's termination of employment, in the tissue engineering business (the use of implantable absorbable materials, with or without a bioactive component, to attempt to elicit a specific cellular response in order to regenerate tissue or to impede the growth of tissue or migration of cells) (the "Tissue Engineering Business") or any other business the revenues of which constituted at least 30% of Company's revenues during the six (6) month period prior to the Termination Date (together with the Tissue Engineering Business, the "Business"); (ii) be or become a stockholder, partner, owner, officer, director or employee or agent of, or a consultant to or give financial or other assistance to, any person or entity engaged in the Business; (iii) seek in competition with the business of Company developsto procure orders from or do business with any customer of Company; (iv) solicit or contact with a view to the engagement or employment by any person or entity of any person who is an employee of Company; (v) seek to contract with or engage (in such a way as to adversely affect or interfere with the business of Company) any person or entity who has been contracted with or engaged to manufacture, manufacturesassemble, distributes, markets supply or sells its deliver products, except goods, materials or services to Company; or (vi) engage in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in any effort or act to induce any of the managementcustomers, operationassociates, consultants, or control ofemployees of Company to take any action which might be disadvantageous to Company; provided, be employed byhowever, associated withthat nothing herein shall prohibit Executive and his affiliates from owning, or as passive investors, in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes aggregate not more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board outstanding publicly traded stock of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such businesscorporation so engaged.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Board.
Appears in 4 contracts
Sources: Employment Agreement (Integra Lifesciences Corp), Employment Agreement (Integra Lifesciences Corp), Employment Agreement (Integra Lifesciences Corp)
Covenant Not to Compete. (i) The Company and its affiliates are currently engaged in the business of branded and generic pharmaceuticalsExecutive hereby covenants that, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve eighteen months next following the Determination Date (12) months after Executive’s cessation of employment with or such shorter period for which the Company, that Executive will not, unless otherwise agreed Company continues to be owned or operated by the Chief Executive Officer of Endo (following approval by the Chair of the CommitteeParent or its affiliates), anywhere Executive shall not be engaged or interested in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunderany business which competes, directly or indirectly manageindirectly, operatewith the publication or membership businesses of the Company or any subsidiary of the Company (whether as a proprietor, controlpartner with another, shareholder, agent or participate consultant of, employee of or lender to, another) in the managementrecreational vehicle, operationcamping, outdoor living or control ofother markets then served by the Company or such subsidiary, be employed byexcept as a proprietor, associated withpartner, shareholder, employee or consultant in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on entity controlled by, controlling or under common control with the termination date Company, provided that constitutes more than 5% if the employment of Executive is terminated by the Company without Cause, the foregoing covenant shall not apply (without affecting the obligations hereinafter contained in this section 3.l in respect of disclosures or solicitations by Executive) unless the Executive shall have been paid severance pursuant to section 1.4 hereof. Executive agrees that he will not at any time disclose to any person or other entity who or which is, or reasonably may be expected to be, in competition with the Company or its affiliates, any confidential information or trade secrets of the Company’s revenue on , any subsidiary of the termination date (a “Competing Business”); Company or any of their respective affiliates, the contents of any customer lists of the Company, any subsidiary of the Company or any of their respective affiliates or the general needs of the customers or other contracting parties with the Company, any subsidiary of the Company or any of their respective affiliates, provided, however, that the foregoing shall not prevent Executive may in any event (x) own up from responding to the request of a governmental agency or pursuant to a 5% passive ownership interest in any public court order or private entity and (y) serve on as otherwise required by law. For a period of one year following the board Determination Date, Executive agrees not to offer employment to, not to discuss the nature of any Competing Business that competes with the business prospective employment opportunities with, and not to otherwise solicit any employee of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to or such business.
subsidiary (ii) For purposes of this Section 11(b), any third party or any business whose products compete includes person who was an employee of the Company or such subsidiary within 180 days of the Determination Date) on his own behalf, on behalf of any employer of the Executive, on behalf of any entity with which the Company Executive is acting as a consultant or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates Executive is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreementthen otherwise affiliated.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Board.
Appears in 4 contracts
Sources: Stock Agreement (Affinity Group Holding, Inc.), Stock Agreement (Affinity Group Inc), Stock Agreement (Affinity Group Holding, Inc.)
Covenant Not to Compete. The Executive acknowledges and recognizes the highly competitive nature of the Company's Business and the goodwill, continued patronage, and the names and addresses of the Company's Clients (ias hereinafter defined) The Company and its affiliates are currently engaged in the business of branded and generic pharmaceuticals, with constitute a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets substantial asset of the Company having been acquired through considerable time, money and its affiliates as well as the goodwill and competitive business effort. Accordingly, in consideration of the Company execution of this Agreement, and its affiliatesas except as may specifically otherwise approved by the Parent Board, the Executive agrees, agrees to the following:
(1) That during the Employment Term Restricted Period (as hereinafter defined) and for a period of twelve within the Restricted Area (12) months after Executive’s cessation of employment with as hereinafter defined), the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, individually or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part conjunction with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide servicesothers, directly or indirectly, to such Competing engage in any Business Activities (as hereinafter defined), whether as an officer, director, proprietor, employer, partner, independent contractor, investor (other than as a holder solely as an investment of less than four and the basis ninety-nine one hundreds percent (4.99%) of the affiliation is solely due to common ownership by outstanding capital stock of a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(apublicly traded company), 11(cconsultant, advisor, agent or otherwise.
(2) That during the Restricted Period and 11(dwithin the Restricted Area, the Executive will not, directly or indirectly, compete with the Company by soliciting, inducing or influencing any of the Company's Clients which have a business relationship with the Company at the time during the Restricted Period to discontinue or reduce the extent of such relationship with the Company.
(3) herein; providedThat during the Restricted Period and within the Restricted Area, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses the Executive will not (A) directly or indirectly recruit, solicit or otherwise influence any employee or agent of the Company to discontinue such employment or agency relationship with the Company, or (B) employ or seek to employ, or cause or permit any business which competes directly or indirectly with the Business Activities of this Section 11(b)(iiithe Company (the “Competitive Business”) shall be subject to employ or seek to employ for any Competitive Business any person who is then (or was at any time within two (2) years prior to the prior approval of date Executive or the BoardCompetitive Business employs or seeks to employ such person) employed by the Company.
Appears in 4 contracts
Sources: Executive Employment Agreement (cbdMD, Inc.), Executive Employment Agreement (Level Brands, Inc.), Executive Employment Agreement (Level Brands, Inc.)
Covenant Not to Compete. (i) The Company and its affiliates are currently engaged in During the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve (12) months after one year following the Termination Date of Executive’s cessation employment, Executive shall not, without the express written consent of employment with the Company, that Executive will notdirectly or indirectly: (I) engage, unless otherwise agreed to by anywhere within the Chief Executive Officer of Endo (following approval by geographical areas in which the Chair Company is conducting business operations or providing services as of the Committee), anywhere in the world where, at the time date of Executive’s termination of employment, in the Company developstissue engineering business (the use of implantable absorbable materials, manufactureswith or without a bioactive component, distributesto attempt to elicit a specific cellular response in order to regenerate tissue or to impede the growth of tissue or migration of cells) (the “Tissue Engineering Business”), markets neurosurgery business (the use of surgical instruments, implants, monitoring products or sells its disposable products to treat the brain or central nervous system) (“Neurosurgery Business”), instrument business (general surgical handheld instruments used for general purposes in surgical procedures) (“Instrument Business”), reconstruction business (bone fixation devices for foot and ankle reconstruction procedures) (“Reconstruction Business”) or in any other line of business the revenues of which constituted at least 50% of the Company’s revenues during the six (6) month period prior to the Termination Date (together with the Tissue Engineering Business, Neurosurgery Business, Instrument Business and Reconstruction Business, the “Business”); (II) be or become a stockholder, partner, owner, officer, director or employee or agent of, or a consultant to or give financial or other assistance to, any person or entity engaged in the Business; (III) seek in competition with the Business to procure orders from or do business with any customer of the Company; (IV) solicit, or contact with a view to the engagement or employment by any person or entity of, any person who is an employee of the Company; (V) seek to contract with or engage (in such a way as to adversely affect or interfere with the business of the Company) any person or entity who has been contracted with or engaged to manufacture, assemble, supply or deliver products, except goods, materials or services to the Company; or (VI) engage in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in any effort or act to induce any of the managementcustomers, operationassociates, consultants, or control of, employees of the Company to take any action which might be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material disadvantageous to the Company or any business unit on Company; provided, however, that nothing herein shall prohibit Executive and his affiliates from owning, as passive investors, in the termination date that constitutes aggregate not more than 5% of the Company’s revenue on the termination date (a “Competing Business”); outstanding publicly traded stock of any corporation so engaged and provided, further, however, that Executive may nothing set forth in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b)5(a) shall prohibit Executive from becoming an employee or agent of, or consultant to, any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates that is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing the Business and so long as Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in any activities involved with, or have in the Business in any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Boardcapacity for said entity.
Appears in 3 contracts
Sources: Severance Agreement (Integra Lifesciences Holdings Corp), Severance Agreement (Integra Lifesciences Holdings Corp), Severance Agreement (Integra Lifesciences Holdings Corp)
Covenant Not to Compete. (i) The Executive agrees that, through his position as Chief Executive Officer and President of the Company and its affiliates are currently engaged the various other positions with the Company that he has held from time to time, the Executive has established and will continue to establish valuable and recognized expertise in the paging business of branded and generic pharmaceuticals, with has had and will have access to the Company’s Confidential Information. The Executive hereby enters into a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect covenant restricting the Confidential Information and other trade secrets Executive from soliciting employees of the Company and its affiliates as well as the goodwill subsidiaries and competitive business of from competing against the Company upon the terms and its affiliates, Executive agrees, during conditions described below:
(a) During the Employment Term Executive’s employment and for a period of twelve two (122) months years after Executive’s cessation the Date of employment with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employmentTermination for any reason, the Company develops, manufactures, distributes, markets Executive shall not:
(i) induce or sells its products, except in the course attempt to induce any employees of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or those of any of its subsidiaries to terminate their employment, or refrain from renewing or extending such employment, with the Company or such subsidiary in order to become an director, officer, employee, consultant or independent contractor to or for any other individual or entity other than the Company or its subsidiaries;
(ii) at any time and in any state or other jurisdiction in the United States in which the Company is engaged in business unit on or has developed plans to engage in business: (1) engage or be a part of any Person (including as a director, consultant, employee, agent, or representative), or have any direct or indirect financial interest (whether as a partner, shareholder, or owner) in any Person that engages in the termination date that constitutes more than 5% business of owning and operating narrowband one-way paging and wireless messaging networks, voice mail services or data transmitting services (the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may or (2) participate as an employee or officer in any event (x) own up to a 5% passive ownership interest enterprise in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during Executive’s responsibility relates to the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.Business;
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis indirectly own an equity interest in any Competitor (other than ownership of 1% or less of the affiliation is solely due to common ownership by outstanding stock of any corporation listed on a private equity national stock exchange or similar investment fund; provided, that, included in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(athe NASDAQ System), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) . The term “Competitor” means any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval Person a portion of the Board.business of which (and during any period in which it intends to enter into business activities that would be) is materially competitive in any way with the Business of the Company; or
Appears in 3 contracts
Sources: Employment Agreement (USA Mobility, Inc), Employment Agreement (Metrocall Holdings Inc), Employment Agreement (USA Mobility, Inc)
Covenant Not to Compete. (i) The Executive acknowledges that he has established and will continue to establish favorable relations with the customers, clients and accounts of the Company and its affiliates are currently engaged in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other will have access to trade secrets of the Company Company. Therefore, in consideration of such relations and its affiliates as well as the goodwill and competitive business to further protect trade secrets, directly or indirectly, of the Company and its affiliatesCompany, the Executive agrees, agrees that during the Employment Term and for a period of twelve one (121) months after year from the date of termination of the Executive’s cessation of employment with , the Company, that Executive will not, unless otherwise agreed to by directly or indirectly, without the Chief Executive Officer of Endo (following approval by the Chair express written consent of the Committee)Board:
(i) own or have any interest in or act as an officer, anywhere in the world wheredirector, at the time of Executive’s termination of employmentpartner, the Company developsprincipal, manufacturesemployee, distributesagent, markets representative, consultant or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control independent contractor of, be employed by, associated with, or in any manner connected withway assist in, lend Executive’s name toany business which is engaged, directly or indirectly, in any business competitive with the Company in those automotive markets and/or automotive products lines in which the Company competes within the United States at any time during the Term, or become associated with or render services to any person, firm, corporation or advice to, any third party or any business whose products or services compete in whole or in part with the products or services other entity so engaged (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”"Competitive Businesses"); provided, however, ; that the Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on without the board of any Competing Business that competes with the business express written consent of the Company and its affiliates as not more than two (2) percent of the issued an immaterial part outstanding securities of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.any company or enterprise whose securities are listed on a national securities exchange or actively traded in the over the counter market;
(ii) For purposes solicit clients, customers or accounts of this Section 11(b)the Company for, on behalf of or otherwise related to any third party such Competitive Businesses or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.related thereto; or
(iii) solicit any person who is or shall be in the employ or service of the Company to leave such employ or service for employment with the Executive or an affiliate of the Executive. Notwithstanding the foregoing, it shall if any court determines that the covenant not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services tocompete, or have any responsibilities regardingpart thereof, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis unenforceable because of the affiliation is solely due duration of such provision or the geographic area or scope covered thereby, such court shall have the power to common ownership by a private equity reduce the duration, area or similar investment fund; provided, thatscope of such provision to the extent necessary to make the provision enforceable and, in each caseits reduced form, Executive such provision shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) then be enforceable and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Boardenforced.
Appears in 3 contracts
Sources: Employment Agreement (Autobytel Com Inc), Employment Agreement (Autobytel Com Inc), Employment Agreement (Autobytel Com Inc)
Covenant Not to Compete. (ia) The During the term of this Agreement, Employee will not compete with the Company or its affiliates, directly or indirectly, either for himself or as a member of a partnership or as a stockholder (except as a stockholder of less than one percent (1 %) of the issued and outstanding stock of a publicly-held company whose gross assets exceed one hundred million dollars), investor, owner, officer or director of a company or other entity, or as an employee, agent, associate or consultant of any person, partnership, corporation or other entity, in any business in competition with that carried on by the Company or any of its affiliates.
(b) Employee further agrees that, for a period of six (6) months from and after the date of termination of Employee's employment under this Agreement, regardless of the reason for such termination, he will neither represent the Company nor engage in or carry on, directly or indirectly, either for himself or as a member of a partnership or as a stockholder (other than as a stockholder of less than one percent (1 %) of the issued and outstanding stock of a publicly- held company whose gross assets exceed one hundred million dollars), investor, owner, officer or director of a company or other entity, or as an employee, agent, associate or consultant of any person, partnership, corporation or other entity, any business in any State of the United States or in any other part of the world which directly competes with any services or products produced, sold, conducted, developed, or in the process of development by the Company or its affiliates on the date of termination of Employee's employment. Notwithstanding the foregoing, nothing herein shall prevent Employee from working in the indoor air quality, heating, ventilation and air conditioning or plumbing maintenance services industry, provided that such activities are in areas not in direct competition with any services or products produced, sold, conducted, developed, or in the process of development by the Company or its affiliates on the date of termination of Employee's employment.
(c) Employee agrees that the limitations set forth herein on his rights to compete with the Company and its affiliates are currently engaged in reasonable and necessary for the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business protection of the Company and its affiliates. In this regard, Executive agrees, during Employee specifically agrees that the Employment Term and for a limitations as to period of twelve (12) months after Executive’s cessation of employment with time and geographic area, as well as all other restrictions on his activities specified herein, are reasonable and necessary for the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business protection of the Company and its affiliates as an immaterial part of its overall businessaffiliates. In particular, provided Employee acknowledges that Executive recuses Executive fully and completely from all matters relating to such businessthe parties anticipate that the Employee will be actively seeking markets for the Company's products throughout the United States during his employment with the Company.
(iid) For purposes Employee agrees that the remedy at law for any breach by him of this Section 11(b), any third party or any business whose products compete includes any entity with which 8 will be inadequate and that the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreementshall also be entitled to injunctive relief.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Board.
Appears in 3 contracts
Sources: Employment Agreement (Group Maintenance America Corp), Employment Agreement (Group Maintenance America Corp), Employment Agreement (Group Maintenance America Corp)
Covenant Not to Compete. (ia) The Company and its affiliates are currently engaged in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve (12) months after Executive’s cessation of During Employee's employment with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at Affiliates (as defined in Exhibit B attached hereto) and thereafter during the time Restricted Period (as defined in Exhibit B attached hereto), regardless of the reason for the termination of Employee's employment, Employee will not engage in or carry on, directly or indirectly, either for himself or as a member of a partnership or as a shareholder, investor, owner, officer or director of a company or other entity, or as an employee, agent, associate or consultant of any person, partnership, corporation or other entity, any business in any State of the United States or in any other part of the world that directly competes with any services or products produced, sold, conducted, developed, or in the process of development by the Company or its Affiliates on the date of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreementEmployee's employment.
(iiib) Notwithstanding the foregoing, it Employee shall be permitted to engage in the following activities which could otherwise be covered by Section 12(a):
(i) the ownership of less than one percent of any class of securities of a publicly-held company whose gross assets exceed $100,000,000; and
(ii) working in the indoor air quality, heating, ventilation and air conditioning or plumbing maintenance services industry if such activities are not in direct competition with any products or services produced, sold, conducted, developed, or in the process of development by the Company or its Affiliates on the date of termination of Employee's employment.
(c) Employee acknowledges that the limitations set forth herein on his rights to compete with the Company and its Affiliates are reasonable and necessary for the protection of the Company and its Affiliates. In this regard, Employee specifically agrees that the limitations as to period of time and geographic area, as well as all other restrictions on his activities specified herein, are reasonable and necessary for the protection of the Company and its Affiliates. In particular, Employee acknowledges that the parties anticipate that Employee will be actively seeking markets for the products and services of the Company and its Affiliates throughout the United States during Employee's employment with the Company.
(d) In the event that there shall be any violation of the covenant not to compete set forth in this Section 12, then the time limitation thereof shall be extended for a period of time equal to the period of time during which such violation continues; and in the event the Company is required to seek relief from such violation in any court, board of arbitration or other tribunal, then the covenant shall be extended for a period of time equal to the pendency of such proceedings, including all appeals.
(e) Employee agrees that the remedy at law for any breach by Employee of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, 12 will be inadequate and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, the Company shall also be entitled to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Boardinjunctive relief.
Appears in 3 contracts
Sources: Employment Agreement (Group Maintenance America Corp), Employment Agreement (Group Maintenance America Corp), Employment Agreement (Group Maintenance America Corp)
Covenant Not to Compete. (i) The Company and its affiliates are currently engaged in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve eighteen (1218) months after Executive’s cessation of employment with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), not anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive he recuses Executive himself fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including including, without limitation, a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including including, but not limited to, Executive’s obligations under Sections 10, 11(a), 11(c(c) and 11(d(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Board.
Appears in 3 contracts
Sources: Executive Employment Agreement (Endo International PLC), Executive Employment Agreement (Endo International PLC), Executive Employment Agreement (Endo International PLC)
Covenant Not to Compete. (i) The Company and its affiliates are currently engaged in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliatesCompany, Executive agrees, during the Employment Term of the Agreement and for a period of twelve twenty-four (1224) months after Executive’s cessation of employment with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party party, or any business business, whose products or services compete in whole or in part (including as described below) with the material products or services (both on the market and in clinical development) material to of the Company as of the date of the cessation of Executive’s employment with the Company (disregarding any non-pain management products that were not products promoted by the Company or any business unit its subsidiaries during the twelve (12) month period ending on the termination date that constitutes more than 5% of the cessation of Executive’s employment with the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (xw) own up to a 5% passive ownership interest in any public or private entity entity, (x) be employed by, or otherwise have material association with, any business whose products compete with the material products of the Company so long as his employment or association is with a separately managed and operated division or affiliate of such business that does not compete with the Company, and (y) serve on the board of any Competing Business that competes business whose products compete with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive he recuses Executive himself fully and completely from all matters relating to such businessproducts.
(ii) For purposes of this Section 11(b), any third party party, or any business business, whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during at the Employment Term date of the cessation of Executive’s employment with the Company and any entity with which the Company or any is, as of its affiliates is at the time date of termination actively the cessation of Executive’s employment with the Company, to the knowledge of Executive (as reflected by the deliberations of the Company’s senior leadership team), negotiating, and eventually concludes within twelve (12) months of the Employment TermTerm of the Agreement, a commercial product licensing or acquisition agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Board.
Appears in 3 contracts
Sources: Executive Employment Agreement (Healthtronics, Inc.), Executive Employment Agreement (Healthtronics, Inc.), Executive Employment Agreement (Healthtronics, Inc.)
Covenant Not to Compete. (i) The Company and its affiliates are currently engaged in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve (12) months after Executive’s cessation of employment with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair Chairman of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive himself or herself fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c(c) and 11(d(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Board.
Appears in 3 contracts
Sources: Executive Employment Agreement (Endo International PLC), Executive Employment Agreement (Endo International PLC), Executive Employment Agreement (Endo International PLC)
Covenant Not to Compete. (i) The Employee acknowledges that during his employment with the Company he, at the expense of the Company, has been and its affiliates are currently engaged will continue to be specially trained in the business of branded the Company, has established and generic pharmaceuticalswill continue to establish favorable relations with the customers, with a focus on product developmentclients, clinical developmentaccounts, manufacturinglenders, distribution investors, analysts and sales & marketing. To protect regulators of the Confidential Information and other trade secrets Company or any subsidiary, parent or affiliate of the Company and its affiliates as well as has had and will continue to have access to the goodwill Intellectual Property, trade secrets and competitive business Confidential Information of the Company or any subsidiary, parent or affiliate of the Company. Therefore, in consideration of such training and its affiliatesrelations, Executive agreesand in consideration of his continued employment with the Company and the increase in compensation and additional benefits provided in this Agreement, and to further protect the Intellectual Property, trade secrets and Confidential Information of the Company or any subsidiary, parent or affiliate of the Company, the Employee agrees that during the Employment Term term of his employment by the Company and for a period of twelve (12) months two years from and after Executive’s cessation the voluntary or involuntary termination of such employment with the Companyfor any or no reason, that Executive he will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and without the basis express written consent of the affiliation is solely due Company, except when and as requested to common ownership by a private equity do in and about the performing of his duties under this Agreement:
(a) own, manage, operate, control or similar investment fund; providedparticipate in the ownership, thatmanagement, operation or control of, or have any interest, financial or otherwise, in each caseor act as an officer, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10director, 11(apartner, manager, member, principal, employee, agent, representative, consultant or independent contractor of, or in any way assist, any individual or entity in the conduct of any business in the United States that trades, markets, sells or distributes propane gas (at retail, wholesale or otherwise), 11(c) and 11(d) herein; providedgathers, furtherprocesses, that Executive’s provision stores, transports, trades, markets or distributes natural gas or liquefied by-products of services to natural gas or petroleum (at retail, wholesale or engagement in activities involving) any entity described in clauses (Aotherwise) or sells, services and installs parts, appliances or supplies related thereto;
(Bb) of this Section 11(b)(iii) shall be subject divert or attempt to divert clients or customers (whether or not such persons have done business with the prior approval Company or any subsidiary, parent or affiliate of the BoardCompany once or more than once) or accounts of the Company or any subsidiary, parent or affiliate of the Company; or
(c) entice or induce or in any manner influence any person who is or becomes in the employ or service of the Company or any subsidiary, parent or affiliate of the Company to leave such employ or service for the purpose of engaging in a business that may be in competition with any business now or at any time during the period hereof engaged in by the Company or any subsidiary, parent or affiliate of the Company. Notwithstanding the foregoing provisions, the Employee may (i) take action for, on behalf of, and at the direction of the Company pursuant to a written agreement with the Company or otherwise, and (ii) own up to 5% of the outstanding equity securities in any corporation or entity (including units in a master limited partnership) that is listed upon a national stock exchange or actively traded in the over-the-counter market.
Appears in 2 contracts
Sources: Employment Agreement (Inergy L P), Employment Agreement (Inergy L P)
Covenant Not to Compete. (i) The Company and its affiliates are currently engaged in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve (12) months after Executive’s cessation of employment with the Company, other than a cessation of employment occurring after a Change in Control (as defined in the Endo, Inc. 2024 Stock Incentive Plan), that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business; and provided, further, that the foregoing shall not preclude or limit Executive’s activities with respect to the practice of law. Executive and the Company acknowledge and agree that, solely with respect to the practice of law, the foregoing noncompetition obligations shall not apply and this Agreement shall be construed in all respects consistent with Rule 5.6 of the Pennsylvania Rules of Professional Conduct and Rule 5.6 of the Delaware Lawyers’ Rules of Professional Conduct.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Board.
Appears in 2 contracts
Sources: Executive Employment Agreement (Endo, Inc.), Executive Employment Agreement (Endo, Inc.)
Covenant Not to Compete. (i) The Company and its affiliates are currently engaged in In consideration of the business provision of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information during the term of this Agreement and the stock options, restricted stock and restricted stock unit awards and other trade secrets compensation provided herein, Executive agrees that during the period of his employment by the Company and, if Executive’s employment is terminated hereunder for any reason prior to expiration of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agreesEmployment Term, during the Employment Term and for a period of twelve (12) months after Executive’s cessation month period following the Date of employment with the Company, that Termination:
(i) Executive will shall not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly indirectly, for himself or others, own, manage, operate, control, control or participate in the ownership, management, operation, operation or control ofof any business, be employed bywhether in corporate, associated withproprietorship or partnership form or otherwise, that is engaged, directly or indirectly, in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete the United States in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Restricted Business”); provided, however, that the restrictions contained herein shall not restrict the acquisition by Executive may in any event (x) own up to a 5of less than 2% passive ownership interest in any public or private entity and (y) serve on of the board outstanding capital stock of any Competing publicly traded company engaged in a Restricted Business or Executive from being employed by an entity in which the majority of such entity’s revenues on a consolidated basis determined in accordance with generally accepted accounting principles are from activities and businesses that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.do not constitute a Restricted Business; and
(ii) For purposes Executive shall not, directly or indirectly (other than in the performance of Executive’s duties under this Section 11(b)Agreement) (A) solicit any individual, who, at the time of time of such solicitation is an executive of the Company or its affiliates, to leave such employment or hire, employ or otherwise engage any third party or any business whose products compete includes any entity with which such individual (other than employees of the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company who respond to general advertisements for employment in newspapers or any other periodicals of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve general circulation (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(bincluding trade journals)), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval cause, induce or encourage any material actual or prospective client, customer, supplier, landlord, lessor or licensor of the BoardCompany or its affiliates to terminate or modify any such actual or prospective contractual relationship that exists on the Date of Termination.
Appears in 2 contracts
Sources: Executive Employment Agreement (Independence Contract Drilling, Inc.), Executive Employment Agreement (Independence Contract Drilling, Inc.)
Covenant Not to Compete. (i) The Company and its affiliates are currently engaged in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliatesCompany, Executive agrees, during the Employment Term and for a period of twelve eighteen (1218) months after Executive’s cessation of employment with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party party, or any business business, whose products or services compete in whole or in part (including as described below) with the material products or services (both on the market and in development) material to of the Company or (disregarding any business unit on non-pain management products that were not products promoted by the termination date that constitutes more than 5% of Company during the Company’s revenue on the termination date (a “Competing Business”last two years); provided, however, that Executive may in any event (xw) own up to a 5% passive ownership interest in any public or private entity entity, (x) be employed by, or otherwise have material association with, any business whose products compete with the material products of the Company so long as his employment or association is with a separately managed and operated division or affiliate of such business that does not compete with the Company, and (y) serve on the board of any Competing Business that competes business whose products compete with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive he recuses Executive himself fully and completely from all matters relating to such businessproducts.
(ii) For purposes of this Section 11(b12(b), any third party party, or any business business, whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during at the end of the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively termination, to the knowledge of Executive (as reflected by the deliberations of the Company’s senior leadership team), negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial product licensing or acquisition agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Board.
Appears in 2 contracts
Sources: Executive Employment Agreement (Endo Health Solutions Inc.), Executive Employment Agreement (Endo Pharmaceuticals Holdings Inc)
Covenant Not to Compete. (i) The Company In consideration of the receipt of the Options granted pursuant to this Agreement and its affiliates are currently engaged of the Grantee’s privilege to participate in the business of branded and generic pharmaceuticalsPlan, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of Grantee hereby agrees that while the Grantee is providing services to the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term or any Subsidiary and for a period of twelve (12) months two years after Executivethe last date of the Grantee’s cessation service for any of employment the Company or any of its Subsidiaries, the Grantee shall not compete with the Companywind energy development, that Executive will not, unless otherwise agreed ownership and operation engaged in or expected to be engaged in by the Chief Executive Officer Company or any of Endo its Subsidiaries (following approval by the Chair “Business”), as such Business exists at any time during the term of the CommitteeAgreement, within the United States of America (including its territories and possessions), anywhere Canada or Mexico (the “Territories”), either directly or indirectly, whether
(i) by conducting or supporting a business or enterprise in the world whereBusiness, at the time of Executive’s termination of employmentwhether in a managerial, the Company developsoperational, manufactures, distributes, markets financial or sells its products, except in the course of Executive’s employment hereunder, other manner;
(ii) by directly or indirectly manageparticipating in another business or enterprise in the Business;
(iii) by employment, operateconsultancy, controlserving on a board of directors or similar governing body, or participate any other technical, commercial or other activity with another business or enterprise in the managementBusiness (other than teaching or serving in an advisory, operationregulatory, or control oflegislative entity or a trade association);
(iv) by inducing any utility, be employed byany governmental authority or any customer, associated withsupplier, licensee, licensor, co-developer, contractor or other business relation of or with the Company or any of its Subsidiaries to cease doing business with the Company or any such Subsidiary, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part way interfere with the products relationship between any such utility, governmental authority, customer, supplier, licensee, licensor, co-developer, contractor or services (both on the market other business relation and in development) material to the Company or any business unit on the termination date that constitutes more than 5% such Subsidiary;
(v) by soliciting or hiring employees of the Company’s revenue on Company or any such Subsidiary for another business; and
(vi) by challenging any of the termination date (a “Competing Business”)intellectual property rights or the know-how that is material for the Business of the Company but not protected by registered intellectual property rights or applications therefor; provided, however, that Executive may the covenant in any event this Section 7(a) shall not apply to (x) own up to activities engaged in as a 5% passive ownership interest in any public manager, officer, director, employee, contractor, consultant, or private entity and (y) serve on the board direct or indirect equity owner of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at Subsidiaries (to the time of termination actively negotiating, and eventually concludes within twelve (12) months extent that such activities are conducted for the benefit of the Employment TermCompany or any of its Subsidiaries) and may be waived at any time by the Company for specific activities, but any such waiver shall be restricted to the specific activity to which it expressly relates and only for the duration of the relevant contract; or (y) the passive holding of shares in companies listed on a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directlystock exchange, provided that in connection therewith, Executive such holding does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and exceed one (C1) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis percent of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) aggregate issued and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval outstanding shares of the Boardrelevant company.
Appears in 2 contracts
Sources: Option Agreement (First Wind Holdings Inc.), Option Agreement (First Wind Holdings Inc.)
Covenant Not to Compete. (i) The Company and its affiliates are currently engaged in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, Employee agrees that during the term of Employment Term and for a period of twelve one (121) months after Executive’s cessation of employment with year thereafter (the Company"Noncompetition Period"), that Executive will Employee shall not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, either alone or in conjunction with any manner connected withindividual, lend Executive’s name tofirm, corporation, association or render services or advice toother entity, any third party or any business whose products or services compete in whole or in part with the products or services whether as principal, agent, shareholder (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more except as a passive investor owning less than 5% of any class of voting securities of any entity if such securities are registered pursuant to the Company’s revenue on the termination date (a “Competing Business”Securities Exchange Act of 1934, as amended); provided, howeverofficer, that Executive may director or in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on other capacity whatsoever, without the board of any Competing Business that competes with the business prior written consent of the Company and its affiliates as an immaterial part Board, which consent may be withheld at the sole discretion of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.Board:
(iii) For purposes of this Section 11(b)engage or participate in, any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, assist or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner an interest in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing any business or enterprise which is directly or substantially in competition with the present or presently contemplated Business and the basis (as defined below) or prospects of the affiliation Employer or its affiliates within the territories in which such Business of Employer or its affiliates is solely due then carried on or engaged in starting or acquiring a business;
(ii) attempt to common ownership by direct any supplier or customer of the Employer or its affiliates away from business for products competitive with those products of the Employer or its affiliates;
(iii) solicit or attempt to solicit any employee of the Employer or its affiliates to leave his or her employment and accept employment elsewhere within three (3) months following their termination of such employee's employment with the Employer or its affiliates; or
(iv) take any action as a private equity result of which the relations between the Employer and its affiliates and their suppliers, customers or similar investment fund; providedothers are impaired or which is otherwise detrimental to the business of the Employer and its affiliates as then conducted. As used in this Agreement, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) the "Business" of Employer and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) its affiliates shall be subject deemed to include the prior approval manufacturing and marketing of the Boardcomputer systems.
Appears in 2 contracts
Sources: Employment Agreement (Dunn Computer Corp), Employment Agreement (Dunn Computer Corp)
Covenant Not to Compete. In consideration of the provision of the Confidential Information during the term of this Agreement and the stock options, restricted stock and restricted stock unit awards and other compensation provided herein, Executive agrees that during the period of his employment by the Company and, if Executive’s employment is terminated hereunder for any reason prior to expiration of the Employment Term, during the twenty-four (24) month period following the Date of Termination:
(i) The Company and its affiliates are currently engaged in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve (12) months after Executive’s cessation of employment with the Company, that Executive will shall not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly indirectly, for himself or others, own, manage, operate, control, control or participate in the ownership, management, operation, operation or control ofof any business, be employed bywhether in corporate, associated withproprietorship or partnership form or otherwise, that is engaged, directly or indirectly, in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete the United States in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Restricted Business”); provided, however, that the restrictions contained herein shall not restrict the acquisition by Executive may in any event (x) own up to a 5of less than 2% passive ownership interest in any public or private entity and (y) serve on of the board outstanding capital stock of any Competing publicly traded company engaged in a Restricted Business or Executive from being employed by an entity in which the majority of such entity’s revenues on a consolidated basis determined in accordance with generally accepted accounting principles are from activities and businesses that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.do not constitute a Restricted Business; and
(ii) For purposes Executive shall not, directly or indirectly (other than in the performance of Executive’s duties under this Section 11(b)Agreement) (A) solicit any individual, who, at the time of time of such solicitation is an executive of the Company or its affiliates, to leave such employment or hire, employ or otherwise engage any third party or any business whose products compete includes any entity with which such individual (other than employees of the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company who respond to general advertisements for employment in newspapers or any other periodicals of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve general circulation (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(bincluding trade journals)), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval cause, induce or encourage any material actual or prospective client, customer, supplier, landlord, lessor or licensor of the BoardCompany or its affiliates to terminate or modify any such actual or prospective contractual relationship that exists on the Date of Termination.
Appears in 2 contracts
Sources: Executive Employment Agreement (Independence Contract Drilling, Inc.), Executive Employment Agreement (Independence Contract Drilling, Inc.)
Covenant Not to Compete. (i) The Company and its affiliates are currently engaged in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve twenty-four (1224) months after Executive’s cessation of employment with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee)Board, anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Board.
Appears in 2 contracts
Sources: Executive Employment Agreement (Endo, Inc.), Executive Employment Agreement (Endo, Inc.)
Covenant Not to Compete. (i) The Company and its affiliates are currently engaged in 6.1 During the business term of branded and generic pharmaceuticalsthis Agreement, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve (12) months after Executive’s cessation of employment with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, Employee shall not directly or indirectly indirectly, own, manage, operate, control, be employed by, or participate in the ownership, management, operationoperation or control of a business that is a Direct Competitor of the Company within a Relevant Area. For the purposes of this Section 6, including all subsections of this Section 6, a "Direct Competitor" is a company engaged in providing integrated communications services and/or equipment to small and medium-sized business enterprises, and the "Relevant Area" shall be defined as any area located within, or control within fifty (50) miles of, be employed by, associated with, the legal boundaries or in limits of any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to city within which the Company or any business unit on parent, subsidiary or affiliate thereof is providing services, has commenced the acquisition of any authorizations, rights of way or facilities or has commenced the construction of facilities for the purpose of providing services, or the Company has publicly announced or privately disclosed in writing to Employee that it plans to provide Services.
6.2 If, after the termination date of this Agreement, Employee directly or indirectly, owns, manages, operates, controls, becomes employed by, or participates in the ownership, management, operation or control of a business that constitutes more than 5% of the Company’s revenue on the termination date (is a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business Direct Competitor of the Company within a Relevant Area, then the Company shall thereafter be relieved of its obligation, if any, to continue the payment of any Termination Fee to Employee; provided that this section 6.2 shall not apply if Employee terminates this Agreement for Good Reason, or following a Change of Control Event.
6.3 During the Term of this Agreement (or, if longer, during the term of Employee's employment with the Company or any of its affiliates) and for a period of twenty-four (24) months after termination of this Agreement (or, if longer, termination of Employee's employment with the Company or any of its affiliates), Employee shall not (i) directly or indirectly cause or attempt to cause any employee of the Company or any of its affiliates as an immaterial part to leave the employ of its overall businessthe Company or any affiliate, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes in any way interfere with the relationship between the Company and any employee or between an affiliate and any employee of this Section 11(b)the affiliate, (iii) directly or indirectly hire any third party or any business whose products compete includes any entity with which employee of the Company or its affiliates has had a product(sany affiliate to work for any organization of which Employee is an officer, director, employee, consultant, independent contractor or owner of an equity or other financial interest, or (iv) licensing agreement during the Employment Term and interfere or attempt to interfere with any entity with transaction in which the Company or any of its affiliates is at was involved during the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation Term of this Section 11(b), for Executive to provide services to (Agreement or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicleEmployee's employment, which ever is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Boardlonger.
Appears in 2 contracts
Sources: Securities Purchase Agreement (TPG Advisors Iii Inc), Employment Services Agreement (Convergent Communications Inc /Co)
Covenant Not to Compete. (i) The Company and its affiliates are currently engaged in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for For a period of twelve two (122) months years from and after Executive’s cessation the expiration or earlier termination of employment with the Companythis Agreement, that Executive You will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in for any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide servicesreason whatsoever, directly or indirectly, for Yourself or on behalf of or in conjunction with any other person, persons, company, partnership, corporation or business of whatever nature:
(a) engage, as an officer, director, stockholder, owner, partner, joint venturer, or in a managerial capacity, whether as an employee, independent contractor, consultant or advisor, or as a sales representative, in any business selling any products or services in direct competition with the current business or any related business of the Company, or any business to which it is reasonably foreseeable that the Company will enter, within 100 miles of where the Company anywhere conducts such Competing Business business (the "Territory");
(b) call upon any person who is, at that time, within the Territory, an employee of the Company in a managerial capacity for the purpose or with the intent of enticing such employee away from or out of the employ of the Company;
(c) call upon any person or entity which is, at that time, or which has been, within one (1) year prior to that time, a customer of the Company within the Territory for the purpose of soliciting or selling products or services in competition with the Company within the Territory; or
(d) call upon any prospective acquisition candidate, on Your own behalf or on behalf of any competitor, which candidate was either called upon by the Company or for which the Company made an acquisition analysis, for any purpose other than providing products or services of the Company. Notwithstanding the above, the foregoing covenant shall not be deemed to prohibit You from acquiring as an investment not more than one percent (1%) of the capital stock of a competing business whose stock is traded on a national securities exchange or over-the-counter. You expressly agree that the foregoing covenants impose a reasonable restraint on You in light of the activities and business of the Company on the date of the execution of this Agreement and the basis current plans of the affiliation Company; but it is solely due to common ownership by a private equity or similar investment fund; provided, that, also the intent of the Company and You that such covenants be construed and enforced in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) accordance with the changing activities and 11(d) herein; provided, further, that Executive’s provision business of services to (or engagement the Company throughout the term of the covenants. The covenants in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) 9 are severable and separate, and the unenforceability of any specific covenant shall be subject to not affect the prior approval provisions of the Boardany other covenant.
Appears in 2 contracts
Sources: Employment Agreement (Bristol Technology Systems Inc), Employment Agreement (Bristol Technology Systems Inc)
Covenant Not to Compete. During the Term and until the later of (ia) The Company and its affiliates are currently engaged 12 months after the Consultant's termination of consultancy with the Parent for any reason or (b) the end of the scheduled Term (the "Noncompetition Period"), the Consultant will not, directly or indirectly (whether as sole proprietor, partner or venturer, stockholder, director, officer, employee or consultant or in any other capacity as principal or agent or through any person, subsidiary or employee acting as nominee or agent):
(a) Conduct or engage in or have an interest in or be associated with any person, firm, association, partnership, corporation or other entity which conducts or engages in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect seismic data acquisition or data processing (the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve (12) months after Executive’s cessation of employment with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee"Business"), anywhere in which are the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% primary businesses of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.;
(iib) For purposes of this Section 11(b), Take any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide servicesaction, directly or indirectly, to such Competing Business finance, guarantee or provide any other material assistance to any person, firm, association, partnership, corporation or other entity which conducts or engages in the Business;
(c) Influence or attempt to influence any person, firm, association, partnership, corporation or other entity which is a contracting party with the Parent at any time during the Noncompetition Period to terminate any agreement with the Parent except to the extent the Consultant is acting on behalf, and at the basis direction, of the affiliation Parent in good faith;
(d) Hire or attempt to hire for employment any person who is solely due employed by the Parent or attempt to common ownership by influence any such person to terminate employment with the Parent, except to the extent the Consultant is acting on behalf, and at the direction, of the Parent in good faith; or
(e) Call on, solicit or take away as a private equity client or similar investment fund; providedcustomer or attempt to call on, thatsolicit or take away as a client or customer any person, in each casefirm, Executive shall remain bound by all association, partnership, corporation or other post-entity that is or was a client or customer of the Parent, including actively sought prospective customers, during the Term or the Consultant's prior employment obligations under with the Company. The restrictive provisions of this Agreement including Executive’s obligations under Sections 10shall not prohibit the Consultant from having an equity interest in the securities of any corporation engaged in the Business, 11(a), 11(c) which securities are listed on a recognized securities exchange or traded in the over-the-counter market to the extent that such interest does not exceed 3% of the value or voting power of such corporation and 11(d) herein; provided, further, that Executive’s provision does not constitute control of services to (or engagement in activities involving) any entity described in clauses (A) or (B) such corporation. For purposes of this Section 11(b)(iii) 7 and Sections 8 and 9 of this Agreement, the term "Parent" shall be subject to include the prior approval Parent and the Company, and each of their affiliates, and the Boardterm "Consultant" shall include the Consultant and FEI.
Appears in 2 contracts
Sources: Consulting and Non Compete Agreement (3-D Geophysical Inc), Consulting and Non Compete Agreement (Western Atlas Inc)
Covenant Not to Compete. (ia) The Employee acknowledges that his duties under this Agreement and the services he will provide to the Company are of a special, unique, unusual and its affiliates are currently extraordinary character, which gives this Agreement particular value to the Company, and that it would be difficult to employ any individual or individuals to replace Employee in the performance of such duties and services. Therefore, in consideration of this Agreement and of the Merger Agreement and his receipt of BESC capital stock as recited above, Employee agrees that during his employment by the Company, and for a period of one (1) year after termination of this Agreement for any reason, including expiration of the term of this Agreement, Employee shall not, directly or indirectly, as owner, partner, joint venturer, stockholder, employee, broker, agent, principal, trustee, corporate officer, director, or in any capacity whatsoever engage in, become financially interested in, be employed by, render any consultation or business advice with respect to, or have any connection with, any business engaged in the design or manufacture of products which, either separately or as part of a system, are used or useful for the treatment of cancer by radiation in any geographic area where, at the time of the termination of his employment, the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and or any of its affiliates as well as was being conducted or was proposed to be conducted; provided, however, that Employee may own any securities of any corporation which is engaged in such business and is publicly owned and traded but in an amount not to exceed at any one time two percent (2%) of any class of stock or securities of such corporation.
(b) Employee acknowledges that the goodwill Company intends to conduct business on a world-wide basis, that its sales and competitive marketing prospects are for continued expansion into world markets and that, therefore, the territorial and time limitations set forth in Section 3.2(a) are reasonable and properly required for the adequate protection of the business of the Company and its affiliates. In the event any such territorial or time limitation is deemed to be unreasonable by a court of competent jurisdiction, Executive agrees, during Employee agrees to the Employment Term and for a period of twelve (12) months after Executive’s cessation of employment with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair reduction of the Committee), anywhere in the world where, at the territorial or time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material limitation to the Company area or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to period which such businesscourt deems reasonable.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Board.
Appears in 2 contracts
Sources: Employment Agreement (Bestnet Communications Corp), Employment Agreement (Bestnet Communications Corp)
Covenant Not to Compete. (i) The Company and its affiliates are currently engaged in During the business term of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term this Agreement and for a period of twelve (12) months after one year following the Termination Date of Executive’s cessation 's employment, Executive shall not, without the express written consent of employment with the Company, that Executive will notdirectly or indirectly: (I) engage, unless otherwise agreed to by anywhere within the Chief Executive Officer of Endo (following approval by geographical areas in which the Chair Company is conducting business operations or providing services as of the Committee), anywhere in the world where, at the time date of Executive’s 's termination of employment, in the Company developstissue engineering business (the use of implantable absorbable materials, manufactureswith or without a bioactive component, distributesto attempt to elicit a specific cellular response in order to regenerate tissue or to impede the growth of tissue or migration of cells) (the "Tissue Engineering Business"), markets neurosurgery business (the use of surgical instruments, implants, monitoring products or sells its disposable products to treat the brain or central nervous system) ("Neurosurgery Business"), instrument business (general surgical handheld instruments used for general purposes in surgical procedures) ("Instrument Business"), reconstruction business (bone fixation devices for foot and ankle reconstruction procedures) ("Reconstruction Business") or in any other line of business the revenues of which constituted at least 50% of the Company's revenues during the six (6) month period prior to the Termination Date (together with the Tissue Engineering Business, Neurosurgery Business, Instrument Business and Reconstruction Business, the "Business"); (II) be or become a stockholder, partner, owner, officer, director or employee or agent of, or a consultant to or give financial or other assistance to, any person or entity engaged in the Business; (III) seek in competition with the Business to procure orders from or do business with any customer of the Company; (IV) solicit, or contact with a view to the engagement or employment by any person or entity of, any person who is an employee of the Company; (V) seek to contract with or engage (in such a way as to adversely affect or interfere with the business of the Company) any person or entity who has been contracted with or engaged to manufacture, assemble, supply or deliver products, except goods, materials or services to the Company; or (VI) engage in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in any effort or act to induce any of the managementcustomers, operationassociates, consultants, or control of, employees of the Company to take any action which might be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material disadvantageous to the Company or any business unit on Company; provided, however, that nothing herein shall prohibit Executive and his affiliates from owning, as passive investors, in the termination date that constitutes aggregate not more than 5% of the Company’s revenue on the termination date (a “Competing Business”); outstanding publicly traded stock of any corporation so engaged and provided, further, however, that Executive may nothing set forth in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b)16(a) shall prohibit Executive from becoming an employee or agent of, or consultant to, any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates that is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing the Business and so long as Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in any activities involved with, or have in the Business in any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Boardcapacity for said entity.
Appears in 2 contracts
Sources: Employment Agreement (Integra Lifesciences Holdings Corp), Employment Agreement (Integra Lifesciences Holdings Corp)
Covenant Not to Compete. (i) The Company Executive acknowledges and its affiliates are currently engaged in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve (12) months after Executive’s cessation of employment with the Company, agrees that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company is nationwide in scope. The Executive further acknowledges and agrees that during the course of his employment with the Company he will learn confidential information relating to the Company and its affiliates as business and business strategies and will develop business relationships on behalf of the Company at the Company’s expense. The Executive acknowledges and agrees that if he were to divert this information and the relationships to a competitor, the Company would suffer irreparable harm to its business and goodwill in an immaterial part amount that cannot be readily quantified. Accordingly, the Executive agrees that during the Term and for nine (9) months following the termination of his employment for any reason, the Executive shall not engage in competition with the Company and/or any of its overall businessAffiliates (as defined below), provided either directly or indirectly, in any manner or capacity, as adviser, principal, agent, Affiliate, promoter, partner, officer, director, employee, stockholder, owner, co-owner, consultant or member of any association or otherwise, in any phase of the business of developing, licensing, manufacturing, distributing or marketing of products or services that Executive recuses Executive fully and completely are in the same Field of Use (as defined below) or which are otherwise in competition with the actual or reasonably anticipated products or services of the Company at the time of his separation from all matters relating to such business.
(ii) the Company, except with the prior written consent of the Board. For purposes of this Section 11(b)Agreement, “Field of Use” means the development of companion animal therapeutic products. The Executive acknowledges and agrees that because of the nationwide scope of the Company’s business, this restriction shall be nationwide. For purposes of this Agreement, “Affiliate” means, with respect to any specific entity, any third party or any business whose products compete includes any other entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide servicesthat, directly or indirectly, to through one or more intermediaries, controls, is controlled by or is under common control with such Competing Business and specified entity. Ownership by the basis Executive in professionally managed funds over which the Executive does not have control or discretion in investment decisions or as a passive investment of less than two percent (2%) of the affiliation is solely due to common ownership by outstanding shares of capital stock of any corporation with one or more classes of its capital stock listed on a private equity national securities exchange or similar investment fund; provided, that, publicly traded on a national securities exchange or in each case, Executive the over-the-counter market shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) not constitute a breach of this Section 11(b)(iii) shall be subject to the prior approval of the Board2.2.
Appears in 2 contracts
Sources: Employment Agreement (Aratana Therapeutics, Inc.), Employment Agreement (Aratana Therapeutics, Inc.)
Covenant Not to Compete. (i) The Employee acknowledges that during her employment with the Company she, at the expense of the Company, has been and its affiliates are currently engaged will continue to be specially trained in the business of branded the Company, has established and generic pharmaceuticalswill continue to establish favorable relations with the customers, with a focus on product developmentclients and accounts of the Company or any subsidiary, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets parent or affiliate of the Company and its affiliates as well as has had and will continue to have access to the goodwill Intellectual Property, trade secrets and competitive business Confidential Information of the Company or any subsidiary, parent or affiliate of the Company. Therefore, in consideration of such training and its affiliatesrelations, Executive agreesand in consideration of her continued employment with the Company and the increase in compensation and additional benefits provided in this Agreement, the issuance of restricted units pursuant to a separate Restricted Unit Award Agreement dated the date hereof (the “Restricted Unit Agreement”) and to further protect the Intellectual Property, trade secrets and Confidential Information of the Company or any subsidiary, parent or affiliate of the Company, Employee agrees that during the Employment Term term of her employment by the Company and for a period of twelve one year from and after the voluntary or involuntary termination of such employment for any or no reason (12) months after Executive’s cessation including, without limitation, a termination of employment with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by Company due to the Chair fulfillment of the Committeethen-current term of this Agreement pursuant to Section 12(a), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as shall have the option to extend such period of time by an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating additional one year period by electing to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is continue to pay Employee’s annual salary at the time of termination actively negotiatingtermination, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide servicesshe will not, directly or indirectly, to such Competing Business and without the basis express written consent of the affiliation is solely due Company, except when and as requested to common ownership by a private equity do in and about the performing of her duties under this Agreement:
(a) own, manage, operate, control or similar investment fund; providedparticipate in the ownership, thatmanagement, operation or control of, or have any interest, financial or otherwise, in each caseor act as an officer, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10director, 11(apartner, manager, member, principal, employee, agent, representative, consultant or independent contractor of, or in any way assist, any individual or entity in the conduct of any business that trades, markets, sells or distributes propane gas (at retail, wholesale or otherwise), 11(c) and 11(d) herein; providedgathers, furtherprocesses, that Executive’s provision stores, transports, trades, markets or distributes natural gas or liquefied by-products of services to natural gas or petroleum (at retail, wholesale or engagement in activities involving) any entity described in clauses (Aotherwise) or sells, services and installs parts, appliances or supplies related thereto;
(Bb) of this Section 11(b)(iii) shall be subject divert or attempt to divert clients or customers (whether or not such persons have done business with the prior approval Company or any subsidiary, parent or affiliate of the BoardCompany once or more than once) or accounts of the Company or any subsidiary, parent or affiliate of the Company; or
(c) entice or induce or in any manner influence any person who is or becomes in the employ or service of the Company or any subsidiary, parent or affiliate of the Company to leave such employ or service for the purpose of engaging in a business that may be in competition with any business now or at any time during the period hereof engaged in by the Company or any subsidiary, parent or affiliate of the Company. Notwithstanding the foregoing provisions, Employee may (i) take action for, on behalf of, and at the direction of the Company pursuant to a written agreement with the Company or otherwise, and (ii) own up to 5% of the outstanding equity securities in any corporation or entity (including units in a master limited partnership) that is listed upon a national stock exchange or actively traded in the over-the-counter market.
Appears in 2 contracts
Sources: Employment Agreement (Inergy L P), Employment Agreement (Inergy L P)
Covenant Not to Compete. (i) The Company Executive acknowledges that he has obtained and its affiliates are currently engaged in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agreeswill continue to obtain, during the Employment Term and for a period of twelve (12) months after Executive’s cessation of his employment with the Company, knowledge of Confidential Information, customer relationships, know-how and goodwill that would, in the event Executive will notwere to become employed by or otherwise associated with a competitor, unless otherwise agreed cause irreparable harm to by the Chief Executive Officer of Endo (following approval by the Chair Company and its Affiliates. In consideration of the Committee), anywhere in the world where, at the time promises of Executive’s termination of employment, the Company developsherein, manufacturesand to protect these and other legitimate business interests, distributesExecutive agrees to the following independent and severable restrictions:
(a) During the Noncompete Period, markets Executive shall not directly or indirectly, as a director, officer, employee, shareholder, investor, partner, consultant or otherwise, provide any services in connection with the business of any person or entity who/which produces or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in developmenti) material to that compete with those produced, sold or offered for sale by the Company or any business unit on Affiliate as of the termination date that constitutes Termination Date; or (ii) which, during the twenty-four (24) months prior to the Termination Date, the Company or an Affiliate has taken internal or external steps to sell or produce or has materially considered, at an executive level, selling or producing (both (i) and (ii) hereafter referred to as “Restricted Products/Services”). The geographic scope (the “Territory”) of this covenant shall include the United States and any other country in which the Company or an Affiliates has direct operations, operates through a joint venture in which it has more than a nominal investment interest or has sold or engaged in marketing of Restricted Products/Services. Nothing in this Agreement shall prohibit Executive’s ownership of securities of corporation that is listed on a national securities exchange or traded in the national over-the-counter market in an amount that does not exceed five percent (5% %) of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board outstanding shares of any Competing Business that competes with such corporation.
(b) During the Noncompete Period, the Executive shall not solicit any customer of the Company to whom/which is sold restricted Products/Services during the two (2) years preceding the Terminate Date anywhere in the territory for the purpose of selling Restricted Products/Services to such customer.
(c) Recognizing the specialized nature of the business of the Company and its affiliates as an immaterial part of its overall businessAffiliate, provided Executive acknowledges and agrees that Executive recuses Executive fully the duration, geographic scope and completely from all matters relating to such business.
(ii) For purposes activity restrictions of this Section 11(b), any third party or any business whose products covenants not to compete includes any entity with which the Company or its affiliates has had are reasonable and will not prevent him from earning a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreementliving.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Board.
Appears in 2 contracts
Sources: Employment Agreement (Quad/Graphics, Inc.), Employment Agreement (Quad/Graphics, Inc.)
Covenant Not to Compete. (i) The In consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and its affiliates are currently engaged Executive, including, without limitation, those involving Confidential Information, and in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To order to protect the Company’s Confidential Information and other trade secrets to reduce the likelihood of irreparable damage which would occur in the Company and its affiliates as well as the goodwill and competitive business event such information is provided to or used by a competitor of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve (12) months after Executive’s cessation of employment with the Company, Executive agrees that Executive he will not, unless otherwise agreed to by during his employment and for an additional period of twenty-four (24) months immediately following the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, his employment for any reason other than termination without Cause or for Good Reason (the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder“Noncompetition Term”), directly or indirectly manageindirectly, operateeither through any form of ownership or as an individual, controldirector, or participate in officer, principal, agent, employee, the managementCompany, operationadviser, or control ofconsultant, be employed byshareholder, associated withpartner, member, or in any manner connected withindividual or representative capacity whatsoever, lend Executivewithout the prior written consent of the Company (which consent may be withheld in the Company’s name tosole discretion), (i) compete for or render solicit business for or on behalf of any person or business entity operating a premium finance company providing similar services to those provided by the Company with a place of business in any state in the United States; (ii) own, operate, participate in, undertake any employment with or advice to, have any third party or interest in any entity with a place of business whose products or services compete in whole or any state in part with the products or services (both on the market and in development) material United States related to the Company or operation of a premium finance company providing similar services to those provided by the Company, except that Executive may own publicly traded stock for investment purposes only in any business unit on the termination date that constitutes more company in which Executive owns less than 5% of the voting equity, (iii) compete for or solicit business related to the operation of a premium finance company providing similar services to those provided by the Company from any customer of the Company (or its successors by merger); or (iv) use in any competition, solicitation, or marketing effort any Confidential Information, any proprietary list, or any information concerning customers of the Company’s revenue on . The restrictions of this Section 8 (e) shall not apply to Executive if his employment by the Company is terminated by the Company without cause or for Good Reason. Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities and the duration of the provisions of this Section 8 are reasonable and are no broader than are necessary to protect the legitimate business interests of the Company. This noncompetition provision shall survive the termination date (of Executive’s employment and can only be revoked or modified by a “Competing Business”)writing signed by the parties that specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 8 are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 8, the Company and Executive agree that in the event a court should decline to enforce any term of terms of any of the provisions of this Section 8, this Section 8 shall be deemed to be modified or reformed to restrict Executive’s competition with the Company or its affiliates to the maximum extent, as to time, geography and business scope, which the court shall find enforceable; provided, however, that Executive may in any no event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on shall the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes provisions of this Section 11(b)8 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, any third party or any business whose products compete includes any entity with which he shall immediately notify the Company in writing of any employment, work or its affiliates has had a product(s) licensing agreement during the Employment Term and business he undertakes with or on behalf of any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund person (including a hedge fundhimself) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Boardentity.
Appears in 2 contracts
Sources: Management Employment Agreement (Firstcity Financial Corp), Management Employment Agreement (Firstcity Financial Corp)
Covenant Not to Compete. (i) The Company and its affiliates are currently engaged in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve (12) months after Executive’s cessation of employment with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair Chairman of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive he recuses Executive himself fully and completely from all matters relating to such business; and provided, further, that the foregoing shall not preclude or limit Executive’s activities with respect to the practice of law. Executive and the Company acknowledge and agree that, solely with respect to the practice of law, the foregoing noncompetition obligations shall not apply and this Agreement shall be construed in all respects consistent with Rule 5.6 of the Pennsylvania Rules of Professional Conduct and Rule 5.6 of the Delaware Lawyers’ Rules of Professional Conduct.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including including, without limitation, a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including including, but not limited to, Executive’s obligations under Sections 10, 11(a), 11(c(c) and 11(d(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Board.
Appears in 2 contracts
Sources: Executive Employment Agreement, Executive Employment Agreement (Endo International PLC)
Covenant Not to Compete. (i) The Company and its affiliates are currently engaged in the business of branded and generic pharmaceuticalsExecutive hereby covenants that, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve eighteen months next following the Determination Date (12) months after Executive’s cessation of employment with or such shorter period for which the Company, that Executive will not, unless otherwise agreed Company continues to be owned or operated by the Chief Executive Officer of Endo (following approval by the Chair of the CommitteeParent or its affiliates), anywhere Executive shall not be engaged or interested in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunderany business which competes, directly or indirectly manageindirectly, operatewith the publication or membership businesses of the Company or any subsidiary of the Company (whether as a proprietor, controlpartner with another, shareholder, agent or participate consultant of, employee of or lender to, another) in the managementrecreational vehicle, operationcamping, outdoor living or control ofother markets then served by the Company or such subsidiary, be employed byexcept as a proprietor, associated withpartner, shareholder, employee or consultant in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on entity controlled by, controlling or under common control with the termination date Company, provided that constitutes more than 5% if the employment of Executive is terminated by the Company without Cause, the foregoing covenant shall not apply (without affecting the obligations hereinafter contained in this section 3.1 in respect of disclosures or solicitations by Executive) unless the Executive shall have been paid severance pursuant to section 1.4 hereof. Executive agrees that he will not at any time disclose to any person or other entity who or which is, or reasonably may be expected to be, in competition with the Company or its affiliates, any confidential information or trade secrets of the Company’s revenue on , any subsidiary of the termination date (a “Competing Business”); Company or any of their respective affiliates, the contents of any customer lists of the Company, any subsidiary of the Company or any of their respective affiliates or the general needs of the customers or other contracting parties with the Company, any subsidiary of the Company or any of their respective affiliates, provided, however, that the foregoing shall not prevent Executive may in any event (x) own up from responding to the request of a governmental agency or pursuant to a 5% passive ownership interest in any public court order or private entity and (y) serve on as otherwise required by law. For a period of one year following the board Determination Date, Executive agrees not to offer employment to, not to discuss the nature of any Competing Business that competes with the business prospective employment opportunities with, and not to otherwise solicit any employee of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to or such business.
subsidiary (ii) For purposes of this Section 11(b), any third party or any business whose products compete includes person who was an employee of the Company or such subsidiary within 180 days of the Determination Date) on his own behalf, on behalf of any employer of the Executive, on behalf of any entity with which the Company Executive is acting as a consultant or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates Executive is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreementthen otherwise affiliated.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Board.
Appears in 2 contracts
Sources: Phantom Stock Agreement (Affinity Group Holding, Inc.), Phantom Stock Agreement (Affinity Group Inc)
Covenant Not to Compete. (ia) The Company Subject to the performance by the Purchaser of its obligations under this Agreement and its affiliates are currently engaged in the business of branded and generic pharmaceuticalsother agreements contemplated hereby, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve (12) months two years from and after Executive’s cessation of employment with the CompanyClosing Date, that Executive will Seller shall not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, as a partner, joint venturer, employer, employee, contractor, consultant, shareholder, director, officer, trustee, principal or agent engage in, control, advise with respect to, manage, act as a consultant to, receive any economic benefit from or exert any influence upon any business or businesses engaged in the business as conducted by the Company immediately prior to the Closing (the “Restricted Business”), in the United States, the United Kingdom and the European Community; provided that the Seller may, without violating this covenant, become employed or otherwise engaged by a given entity which engages in one or more businesses in addition to the Restricted Business, if such other businesses are separate and distinct from the Restricted Business and such Seller (i) is not involved in any way whatsoever in the Restricted Business either directly or indirectly through supervision of, administration of, or consultation to those involved in the Restricted Business, or otherwise and (ii) prior to accepting such employment or engagement, notifies such entity in writing that he is subject to this covenant not to compete, supplies a copy of such covenant to such Competing Business entity and delivers a copy of such notice to the basis Purchaser; and provided further that the Seller may, without violating this covenant own as a passive investment not in excess of five percent of the affiliation is solely due securities of a corporation which engages in the Restricted Business if such securities are regularly and publicly traded on a national securities exchange or in the over-the-counter market.
(b) Subject to common ownership the performance by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment the Purchaser of its obligations under this Agreement and the other agreements contemplated hereby, for a period of three years from and after the Closing Date, Seller shall not engage or participate in any effort or act to solicit the Company’s or Purchaser’s clients, associates or employees to cease doing business, or to cease their employment or association, with the Company or the Purchaser or interfere in any manner with the contractual or employment relationship between the Company or the Purchaser and any such client, associate or employee of the Company or Purchaser.
(c) The Seller acknowledges that the foregoing territorial and time limitations are reasonable and properly required for the adequate protection of the Purchaser and that in the event that any such territorial or time limitation is deemed to be unreasonable and is then reduced by a court of competent jurisdiction, then, as reduced, the territorial or time limitation shall be enforced.
(d) The Sellers acknowledge that the remedy at law for any breach or threatened breach by them of the agreements contained in this Section 6.1 will be inadequate and agree that the Purchaser, in the event of such breach or threatened breach, in addition to all other remedies available for such breach or threatened breach (including Executive’s obligations under Sections 10, 11(aa recovery of damages), 11(c) will be entitled to obtain preliminary or permanent injunctive relief without being required to prove actual damages or post bond and, to the extent permitted by applicable statutes and 11(d) herein; providedrules of procedure, further, that Executive’s provision of services to a temporary restraining order (or engagement in activities involvingsimilar procedural device) upon the commencement of such action. This
Section 6.1 constitutes an independent and severable covenant and if any entity described in clauses (A) or (B) all of the provisions of this Section 11(b)(iii) shall 6.1 are held to be subject unenforceable for any reason whatsoever, it will not in any way invalidate or affect the remainder of this Agreement which will remain in full force and effect. The Seller and Purchaser intend for the covenants of this Section 6.1 to be enforceable to the prior approval of maximum extent permitted by law, and if any reviewing court deems any such covenants to be unenforceable or invalid, the BoardSeller and the Purchaser authorize such court to reform the unenforceable or invalid provisions and to impose such restrictions as reformed and the remaining provisions as it deems reasonable.
Appears in 2 contracts
Sources: Stock Purchase Agreement (GPS Industries, Inc.), Stock Purchase Agreement (GPS Industries, Inc.)
Covenant Not to Compete. The Executive hereby agrees that he will not, either during the Term or at all times until the earlier of twenty-four (24) months from the time his employment ceases or a Change in Control (the earlier of which being, the “Restricted Period”), engage in the (i) ownership or operation of post office facilities; (ii) investment in or lending to post office facilities; (iii) management of post office facilities; or (iv) provision of any planning, development or executive services for post office facilities. The Company and its affiliates are currently Executive will be deemed to be engaged in such competitive business activities if he participates in such a business enterprise as an employee, officer, director, consultant, agent, partner, proprietor, or other participant; provided that the ownership of no more than two percent (2%) of the stock of a publicly traded Company engaged in a competitive business shall not be deemed to be engaging in competitive business activities. During the Restricted Period, the Executive will be prohibited, to the fullest extent allowed by applicable law, from directly or indirectly, individually or on behalf of branded and generic pharmaceuticalsany person or entity, encouraging, inducing, attempting to induce, recruiting, attempting to recruit, soliciting or attempting to solicit or participating in the recruitment for employment, contractor or consulting opportunities anyone who is employed at that time by the Company or any subsidiary or affiliate. During his employment with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and thereafter, the Executive will not make any communication, authorize anyone else to make any communication on the Executive’s behalf or make any direct or indirect written or oral statements to the press, television, radio or other media or other external persons or entities that disparage or make any untruthful remarks or statements, whether oral or written, about the Company, its affiliates as well as the goodwill and competitive business of operations or its products, services, affiliates, officers, directors, employees, or agents. While employed by the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve (12) months after Executive’s cessation of employment with Restricted Period, the Company, that Executive will notcommunicate the contents of this Section 10 to any person, unless otherwise agreed firm, association, partnership, Company or other entity that the Executive intends to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such businessrepresent.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Board.
Appears in 2 contracts
Sources: Employment Agreement (Postal Realty Trust, Inc.), Employment Agreement (Postal Realty Trust, Inc.)
Covenant Not to Compete. (i) The Company and its affiliates are currently engaged in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliatesCompany, Executive agrees, during the Employment Term and for a period of twelve twenty-four (1224) months after Executive’s cessation of employment with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly for the Executive or any third party, manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party party, or any business business, whose services or products or services compete in whole or in part (including as described below) with the material services or products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity entity, and (y) serve on the board of be employed by, or otherwise have material association with, any Competing Business that competes business whose services or products compete with the business material services or products of the Company so long as his employment or association is solely with a separately managed and its affiliates as an immaterial part operated division or affiliate of its overall business, provided such business that Executive recuses Executive fully and completely from all matters relating to such businessdoes not compete with the Company.
(ii) For purposes of this Section 11(b), any third party party, or any business business, whose products compete includes any entity engaged in any business or activity which is directly in competition with any services or products sold by, or any business or activity engaged in by, the Company or any of its affiliates, or any entity with which the Company or its affiliates has had a product(s) licensing agreement during at the end of the Employment Term and any entity with which the Company or any of its affiliates is is, at the time of termination actively termination, negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial product licensing or acquisition agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Board.
Appears in 2 contracts
Sources: Employment Agreement (CHS Inc), Employment Agreement (CHS Inc)
Covenant Not to Compete. For purposes of Sections 9 and 10, "Affiliated Company" shall be limited to an Affiliated Company as defined in Section 1(i) with which Employee has had substantial involvement during the term of his employment with Company. Employee acknowledges that the services he has rendered and is to render are of a special and unusual character with a unique value to Company, the loss of which cannot adequately be compensated by damages in an action at law. In view of the unique value to Company of the services of Employee for which Company has contracted hereunder, the substantial goodwill of the Company that Employee has obtained and will continue to obtain and because of the confidential information to be obtained by or disclosed to Employee, and as a material inducement to Company to enter into this Agreement and to pay to the Employee the compensation and benefits stated in Section 5 and other promises contained herein, Employee covenants and agrees as follows:
(a) During Employee's term of employment with the Company and for eighteen (18) months thereafter, without regard to the reason for separation, Employee will not, without the prior written consent of Company, directly or indirectly, whether as a principal, agent, officer, director, employee, consultant or otherwise; alone or in association with any other person, firm, corporation or other business organization, carry on, or be engaged, employed by, concerned or take part in, or render services to, or own, share in the earnings of or invest in the stock, bonds or other securities of any person, firm, partnership, corporation or other business organization (other than the ownership of less than 5% of the securities of any public company) engaged anywhere in the Geographic Area of Non-Competition set forth in Section 1(g), in a business which is in competition with (i) The any of the businesses carried on by Company; (ii) any of the businesses carried on by an Affiliated Company; or (iii) any business which Company or any Affiliated Company anticipates entering or anticipated entering as of the date of Employee's separation as the result of an active research and development program (each of the foregoing being herein sometimes referred to as a "Similar Business"). Employee shall not, directly or indirectly, solicit or divert business from the Company, or attempt to convert to other methods of using the same or similar products or services provided by Company. Employee acknowledges and agrees that conduct of any said activities by any person other than Company could accordingly constitute competition with Company and its affiliates are currently engaged in the business is expressly prohibited by this Section 13.
(b) As a separate and independent covenant, Employee agrees that during Employee's term of branded and generic pharmaceuticals, employment with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve eighteen (1218) months after Executive’s cessation thereafter, without regard to the reason for separation, he will not in any manner, directly or indirectly (except in the course of his employment with Company), for the purpose of conducting or engaging in any Similar Business, call upon, solicit, advise or otherwise do, or attempt to do, business with any clients, customers or accounts of Company or any Affiliated Company.
(c) As a separate and independent covenant, during the term of Employee's employment with the Company, that Executive will notEmployee shall promptly disclose to Company each business opportunity of a type which, unless otherwise agreed based upon its prospects and relationship to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of Company, Company might reasonably consider pursuing. If Employee's employment is terminated for any reason, Company shall have the Company and exclusive right to participate in or undertake any such opportunity on its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating own behalf without any involvement by or remuneration to such businessEmployee.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Board.
Appears in 2 contracts
Sources: Employment Agreement (NanoDynamics, Inc.), Employment Agreement (NanoDynamics, Inc.)
Covenant Not to Compete. (i) The Executive acknowledges that he has established and will continue to establish favorable relations with the customers, clients and accounts of the Company and its affiliates are currently engaged in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other will have access to trade secrets of the Company Company. Therefore, in consideration of such relations and its affiliates as well as the goodwill and competitive business entering into of this Agreement by the Company, (and, in respect of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve (12) months after Executive’s cessation agreement to be bound by this Section 8.2 for the one (1) year period as provided in Section 6.3.2, the Executive’s rights to receive the amounts, if any, pursuant to Section 6.1 (if applicable) and to have the Unvested Options continue to vest pursuant to Section 6.3), and to further protect trade secrets, directly or indirectly, of the Company, the Executive agrees that at all times during his employment with the CompanyCompany through the one (1) year anniversary of the date of termination of the Executive’s employment, that the Executive will not, unless otherwise agreed to by directly or indirectly, without the Chief Executive Officer of Endo (following approval by the Chair express written consent of the Committee)Board:
(i) own or have any interest in or act as an officer, anywhere in the world wheredirector, at the time of Executive’s termination of employmentpartner, the Company developsprincipal, manufacturesemployee, distributesagent, markets representative, consultant or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control independent contractor of, be employed by, associated with, or in any manner connected withway assist in, lend Executive’s name toany business which is engaged, directly or indirectly, in any business competitive with the Company in those automotive markets and/or automotive products lines in which the Company competes within the United States at any time during the Term, or become associated with or render services to any person, firm, corporation or advice to, any third party or any business whose products or services compete in whole or in part with the products or services other entity so engaged (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing BusinessCompetitive Businesses”); provided, however, that the Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on without the board of any Competing Business that competes with the business express written consent of the Company not more than two percent (2%) of the issued and its affiliates as an immaterial part outstanding securities of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.any company or enterprise whose securities are listed on a national securities exchange or actively traded in the over the counter market;
(ii) For purposes solicit clients, customers or accounts of this Section 11(b)the Company for, on behalf of or otherwise related to any third party such Competitive Businesses or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.related thereto; or
(iii) solicit any person who is or shall be in the employ or service of the Company to leave such employ or service for employment with the Executive or an affiliate of the Executive. Notwithstanding the foregoing, it shall if any court determines that the covenant not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services tocompete, or any part thereof, is unenforceable because of the duration of such provision or the geographic area or scope covered thereby, such court shall have the power to reduce the duration, area or scope of such provision to the extent necessary to make the provision enforceable and, in its reduced form, such provision shall then be enforceable and shall be enforced. The Company shall pay and be solely responsible for any responsibilities regardingattorney’s fees, expenses, costs and court or arbitration costs incurred by the Competing Business; (B) Executive in any entity that is, matter or is a general partner in, or manages or participates dispute between the Executive and the Company which pertains to this Article 8 if the Executive prevails in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged the contest in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, whole or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Boardpart.
Appears in 2 contracts
Sources: Employment Agreement (Autobytel Inc), Employment Agreement (Autobytel Inc)
Covenant Not to Compete. (i) The Executive acknowledges that he has established and will continue to establish favorable relations with the customers, clients and accounts of the Company and its affiliates are currently engaged in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the will have access to Confidential Information and other trade secrets of the Company Company. Therefore, in consideration of such relations and its affiliates as well as the goodwill to further protect Confidential Information and competitive business trade secrets, directly or indirectly, of the Company, the Executive agrees that, at all times during his employment by the Company and its affiliates, Executive agrees, during (including prior to the Employment Term Effective Date) and for a period of twelve (12) months after from the date of termination of the Executive’s cessation of employment with , the Company, that Executive has not and will not, unless otherwise agreed to by directly or indirectly, without the Chief Executive Officer of Endo (following approval by the Chair express written consent of the Committee)Company:
(i) within (A) the country, anywhere region of the country, state, and/or surrounding states in which Executive’s office with the world where, Company was located at the time of Executive’s termination termination, or (B) fifty miles of employment, the location of Executive’s office with the Company developsat the time of Executive’s termination, manufacturesbe engaged or employed by a Competing CRO, distributeswhether as owner, markets manager, officer, director, employee, consultant or sells otherwise to perform duties and responsibilities that are the same or substantially related to the duties and responsibilities that Executive performed for the Company at any time during the twenty-four months prior to Executive’s termination. “Competing CRO” means any entity (and its products, except respective affiliates and successors) that competes with the Company in the course provision of Customer Services. “Customer Services” means any product or service provided by the Company to a third party for remuneration, including, but not limited to on a contract or outsourced basis, assisting pharmaceutical or biotechnology companies in developing and taking drug compounds, biologics, and drug delivery devices through appropriate regulatory approval processes, and/or recruiting, staffing and placement of personnel in the areas of clinical research, medical writing, biostatistics and programming, in each case (A) during the period of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material Company prior to the Company or any business unit on date of this Agreement, through the termination date that constitutes more than 5% end of the Company’s revenue on the termination date Agreement Term or (a “Competing Business”); provided, however, B) about which Executive has knowledge and that which Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business had knowledge that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating will provide or has contracted to such business.
(ii) For purposes of this Section 11(b), any provide to third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement parties during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of following the Employment Agreement Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Board.;
Appears in 2 contracts
Sources: Employment Agreement (PRA Health Sciences, Inc.), Employment Agreement (PRA Health Sciences, Inc.)
Covenant Not to Compete. (i) The Company Executive acknowledges and its affiliates are currently engaged in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve (12) months after Executive’s cessation of employment with the Company, agrees that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company is nationwide in scope. The Executive further acknowledges and agrees that during the course of her employment with the Company she will learn confidential information relating to the Company and its affiliates as business and business strategies and will develop business relationships on behalf of the Company at the Company’s expense. The Executive acknowledges and agrees that if she were to divert this information and the relationships to a competitor, the Company would suffer irreparable harm to its business and goodwill in an immaterial part amount that cannot be readily quantified. Accordingly, the Executive agrees that during the Term and for six (6) months following the termination of her employment for any reason, the Executive shall not engage in competition with the Company and/or any of its overall businessAffiliates (as defined below), provided either directly or indirectly, in any manner or capacity, as adviser, principal, agent, Affiliate, promoter, partner, officer, director, employee, stockholder, owner, co-owner, consultant or member of any association or otherwise, in any phase of the business of developing, licensing, manufacturing, distributing or marketing of products or services that Executive recuses Executive fully and completely are in the same Field of Use (as defined below) or which are otherwise in competition with the actual or reasonably anticipated products or services of the Company at the time of her separation from all matters relating to such business.
(ii) the Company, except with the prior written consent of the Board. For purposes of this Section 11(b)Agreement, “Field of Use” means the development of companion animal therapeutic products. The Executive acknowledges and agrees that because of the nationwide scope of the Company’s business, this restriction shall be nationwide. For purposes of this Agreement, “Affiliate” means, with respect to any specific entity, any third party or any business whose products compete includes any other entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide servicesthat, directly or indirectly, to through one or more intermediaries, controls, is controlled by or is under common control with such Competing Business and specified entity. Ownership by the basis Executive in professionally managed funds over which the Executive does not have control or discretion in investment decisions or as a passive investment of less than two percent (2%) of the affiliation is solely due to common ownership by outstanding shares of capital stock of any corporation with one or more classes of its capital stock listed on a private equity national securities exchange or similar investment fund; provided, that, publicly traded on a national securities exchange or in each case, Executive the over-the-counter market shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) not constitute a breach of this Section 11(b)(iii) shall be subject to the prior approval of the Board2.2.
Appears in 2 contracts
Sources: Employment Agreement (Aratana Therapeutics, Inc.), Employment Agreement (Aratana Therapeutics, Inc.)
Covenant Not to Compete. a. Executive acknowledges that the businesses of the Company and its subsidiaries is highly competitive and international in scope, that their licenses are sourced and their products are marketed throughout the world, that the Company and its subsidiaries compete in nearly all of their business activities with other organizations which are or could be located in nearly any part of the world and that the nature of Executive’s services, position and expertise are such that he is capable of competing with the Company from nearly any location in the world. Executive further acknowledges that all services of Executive are exclusive to the Company, and that Executive’s performances and services hereunder are of a special, unique, unusual, extraordinary and intellectual character which gives them peculiar value, the loss of which cannot reasonably or adequately be compensated in an action at law for damages and that a breach by Executive of the terms of this Article VI will cause the Company irreparable injury.
b. In recognition of the foregoing Executive covenants and agrees that during his employment with the Company and for a period of two (2) years thereafter (the “Restricted Period”) he will not, directly or indirectly, as a principal, officer, director, shareholder, partner, member, employee, consultant, independent contractor, agent or executive or in any other capacity whatsoever, without the prior written consent of the Company, do any of the following:
(i) The Company and its affiliates are currently Engage in the business of acquiring, licensing or distributing music, home video, video games or computer software;
(ii) Acquire any ownership of any kind in, or become associated with or provide services to any other person, corporation, partnership, limited liability company, business trust, association or other business entity (each an “Entity”) engaged in the business of branded acquiring, licensing or distributing music, home video, video games or computer software;
(iii) Intentionally and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve (12) months after Executive’s cessation of employment with the Company, that Executive will not, unless otherwise agreed knowingly solicit or attempt to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, solicit or participate in the managementsolicitation of or otherwise advise or encourage any then employee, operationagent, consultant or representative of, or control ofvendor or supplier to, be employed bythe Company to terminate his, associated withher or its relationship therewith; or
(iv) Solicit or attempt to solicit or encourage any person, who is then, or in any manner connected withwas within the then most recent 12-month period, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company knowledge of Executive, an employee, agent, consultant or any business unit on the termination date that constitutes more than 5% representative of the Company’s revenue on the termination date (a “Competing Business”); provided, howeverto become an employee, that agent, representative or consultant of or to Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company other individual or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreemententity.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Board.
Appears in 2 contracts
Sources: Executive Severance Agreement (Navarre Corp /Mn/), Executive Severance Agreement (Navarre Corp /Mn/)
Covenant Not to Compete. During the Term and until the later of (ia) The Company and its affiliates are currently engaged 12 months after the Consultant's termination of consultancy with the Parent for any reason or (b) the end of the scheduled Term (the "Noncompetition Period"), the Consultant will not, directly or indirectly (whether as sole proprietor, partner or venturer, stockholder, director, officer, employee or consultant or in any other capacity as principal or agent or through any person, subsidiary or employee acting as nominee or agent):
(a) Conduct or engage in or have an interest in or be associated with any person, firm, association, partnership, corporation or other entity which conducts or engages in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect seismic data acquisition or data processing (the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve (12) months after Executive’s cessation of employment with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee"Business"), anywhere in which are the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% primary businesses of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.;
(iib) For purposes of this Section 11(b), Take any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide servicesaction, directly or indirectly, to such Competing Business finance, guarantee or provide any other material assistance to any person, firm, association, partnership, corporation or other entity which conducts or engages in the Business;
(c) Influence or attempt to influence any person, firm, association, partnership, corporation or other entity which is a contracting party with the Parent at any time during the Noncompetition Period to terminate any agreement with the Parent except to the extent the Consultant is acting on behalf, and at the basis direction, of the affiliation Parent in good faith;
(d) Hire or attempt to hire for employment any person who is solely due employed by the Parent or attempt to common ownership by influence any such person to terminate employment with the Parent, except to the extent the Consultant is acting on behalf, and at the direction, of the Parent in good faith; or
(e) Call on, solicit or take away as a private equity client or similar investment fund; providedcustomer or attempt to call on, thatsolicit or take away as a client or customer any person, in each casefirm, Executive shall remain bound by all association, partnership, corporation or other post-entity that is or was a client or customer of the Parent, including actively sought prospective customers, during the Term or the Consultant's prior employment obligations under with the Company. The restrictive provisions of this Agreement including Executive’s obligations under Sections 10shall not prohibit the Consultant from having an equity interest in the securities of any corporation engaged in the Business, 11(a), 11(c) which securities are listed on a recognized securities exchange or traded in the over-the-counter market to the extent that such interest does not exceed 1% of the value or voting power of such corporation and 11(d) herein; provided, further, that Executive’s provision does not constitute control of services to (or engagement in activities involving) any entity described in clauses (A) or (B) such corporation. For purposes of this Section 11(b)(iii) 7 and Sections 8 and 9 of this Agreement, the term "Parent" shall be subject to include the prior approval Parent and the Company, and each of the Boardtheir affiliates.
Appears in 2 contracts
Sources: Consulting and Non Compete Agreement (3-D Geophysical Inc), Consulting and Non Compete Agreement (Western Atlas Inc)
Covenant Not to Compete. (i) The Company and its affiliates are currently engaged in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliatesCompany, Executive agrees, during the Employment Term and for a period of twelve (12) months after Executive’s 's cessation of employment with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s 's employment hereunder, directly or indirectly for the Executive or any third party, manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s 's name to, or render services or advice to, any third party party, or any business business, whose services or products or services compete in whole or in part (including as described below) with the material services or products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity entity, and (y) serve on the board of be employed by, or otherwise have material association with, any Competing Business that competes business whose services or products compete with the business material services or products of the Company so long as his employment or association is solely with a separately managed and its affiliates as an immaterial part operated division or affiliate of its overall business, provided such business that Executive recuses Executive fully and completely from all matters relating to such businessdoes not compete with the Company.
(ii) For purposes of this Section 11(b), any third party party, or any business business, whose products compete includes any entity engaged in any business or activity which is directly in competition with any services or products sold by, or any business or activity engaged in by, the Company or any of its affiliates, or any entity with which the Company or its affiliates has had a product(s) licensing agreement during at the end of the Employment Term and any entity with which the Company or any of its affiliates is is, at the time of termination actively termination, negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial product licensing or acquisition agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Board.
Appears in 1 contract
Covenant Not to Compete. (i) The Company and its affiliates are currently engaged in During the business Term of branded and generic pharmaceuticalsthis Agreement, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve two (122) months years after Executive’s cessation termination of employment (with the Companyor without cause), that Executive Employee will not, unless otherwise agreed to by the Chief Executive Officer directly or indirectly, either as an individual or as a proprietor, stockholder, partner, officer, director, employee, agent, consultant or independent contractor of Endo any individual, partnership, corporation or other entity (following approval by the Chair excluding an ownership interest of the Committee), anywhere one percent (1%) or less in the world wherestock of a publicly traded company):
(i) become employed by, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, controlparticipate in, or participate be connected in any manner with the ownership, management, operation, or control ofof any bank, be employed by, associated withsavings and loan or other similar financial institution if Employee's responsibilities will include providing banking or other financial services in Carroll County or Howard Coun▇▇ ▇▇ ▇ny other co▇▇▇▇ ▇r city in which the Employer maintains an office as of the date of the termination of the Employee's employment or if Employee regularly conducts business in or from an office or branch in Carroll County or Howard Coun▇▇ ▇▇ ▇ny other co▇▇▇▇ ▇r city in which Employer has an office or branch as of the date of the termination of the Employee's employment; or
(ii) participate in any way in hiring or otherwise engaging, or assist any other person or entity in hiring or otherwise engaging, on a temporary, part-time or permanent basis, any individual who was employed by Employer during the one (1) year period immediately prior to the termination of the Employee's employment; or
(iii) assist, advise, or serve in any manner connected withcapacity, lend Executive’s name to, representative or render services or advice tootherwise, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public action against the Employer or private entity and (y) serve on transaction involving the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.Employer; or
(iiiv) For purposes of this Section 11(b)sell, offer to sell, provide banking or other financial services, assist any third party other person in selling or any business whose products compete includes any entity with which the Company providing banking or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services toother financial services, or have any responsibilities regardingsolicit or otherwise compete for, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, either directly or indirectly, any orders, contracts, or accounts for services of a kind or nature like or substantially similar to such Competing Business and the basis services performed or products sold by the Employer (the preceding hereinafter referred to as "Services"), to or from any person or entity from whom Employee or the Employer provided banking or other financial services, sold, offered to sell or solicited orders, contracts or accounts for services, during the one (1) year period immediately prior to the termination of the affiliation is solely due Employee's employment; or
(v) divulge, disclose, or communicate to common ownership by a private equity others in any manner, whatsoever, any confidential information of the Employer, including, but not limited to, the names and addresses of customers of the Employer, as they may have existed from time to time or similar investment fund; providedof any of the Employer's prospective customers, thatwork performed or services rendered for any customer, any method and/or procedures relating to projects or other work developed for the Employer, earnings or other information concerning the Employer. The restrictions contained in each casethis subparagraph (v) apply to all information regarding the Employer, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10regardless of the source who provided or compiled such information. Notwithstanding anything to the contrary, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) the terms of this Section 11(b)(iiisubparagraph (v) shall not be subject limited to the prior approval of two (2) year restriction set forth above and all information referred to herein shall not be disclosed unless and until it becomes known to the Boardgeneral public from sources other than Employee.
Appears in 1 contract
Covenant Not to Compete. (i) The Company and its affiliates are currently engaged in During the business period of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term Employee’s employment and for a period of twelve two (122) months years after Executivethe end of that employment, Employee will not do any of the following, either directly or indirectly, for Employee’s cessation own benefit or for the benefit of employment with any person or entity other than the Company, that Executive will notand regardless of whether he acts as an employee, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee)contractor, anywhere in the world whereshareholder, at the time of Executive’s termination of employmentofficer, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, controldirector, or participate in the management, operation, or control ofprincipal:
a. Engage in, be employed by, associated withperform services for, participate in the ownership, management, control, or in any manner operation of, or otherwise be connected with, lend Executive’s name to, either directly or render services or advice toindirectly, any third party business or enterprise, whether commercial or non-profit, that is or that is preparing to be in competition with any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to aspect of the Company or any its business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date or anticipated business (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public located within the geographic areas or private entity and (y) serve on the board of any Competing Business that competes with the business of locations where the Company and its affiliates as an immaterial part of its overall carries on or does business, provided that Executive recuses Executive fully and completely from all matters relating to such business.;
(ii) For purposes of this Section 11(b), any third party b. Contact or any transact business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate on behalf of a Competing Business where such subsidiarywith any of the Company’s customers, division or affiliate is not engaged in a Competing Business and Executive does not provide services todistributors, or have any responsibilities regarding, suppliers with whom Employee had contact while employed by the Competing BusinessCompany or about whom Employee obtained Confidential Information while employed by the Company; (B) any entity that isor
c. Induce, or is a general partner attempt to induce, any employee or consultant of the Company to leave such employment or relationship to be employed by, perform services for, engage or participate in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved otherwise be connected with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, either directly or indirectly, any enterprise with which Employee is in any way associated, whether or not it is a Competing Business.
d. For purposes of the above, Employee will not be considered to such be connected with any Competing Business and the basis solely on account of Employee’s: (i) ownership of less than five percent (5%) of the affiliation outstanding capital stock or other equity interests in any Competing Business; or (ii) engagement by, performance of services for, participation in, or other connection with any business that is solely due not a Competing Business but that is carried on by an entity that is affiliated with a Competing Business as a separate division or other independent organization. Employee understands that the scope of the Company’s business is worldwide and agrees that the duration and geographic scope of the prohibitions in this paragraph 8(d) are reasonable and necessary to common ownership by protect the value and legitimate interests of the Company’s business. Employee agrees that the restrictions in this Section 8 will not prevent Employee from pursuing his livelihood.
e. This Agreement does not limit the Company’s rights under any laws, including laws related to trade secrets, unfair competition, copyrights, patents, or trademarks. Employee recognizes that damages alone would not adequately compensate the Company if Employee breaks any of the promises made in this Section 8. Consequently, Employee acknowledges that the Company will be entitled to injunctive relief in the event of a private equity or similar investment fund; providedbreach, thatwithout the obligation to post a bond, in each caseaddition to the recovery of any applicable damages and self-help remedies.
f. Employee may request that the Company grant exceptions to the restrictions set forth in this Section 8 to pursue specific business or employment opportunities. To be effective, Executive any exceptions must be granted in writing by the CEO, shall remain bound by all be strictly limited to their express terms, and shall not limit or waive the Company’s right to fully enforce other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) terms of this Section 11(b)(iii) shall be subject to the prior approval of the Board8.
Appears in 1 contract
Sources: Transition Agreement and Release (Esterline Technologies Corp)
Covenant Not to Compete. (i) The Company Parties acknowledge that Seller is transferring the Purchased Assets together with the goodwill associated therewith. In order to protect such goodwill of the Purchased Assets acquired from Seller in connection with the sale of the Business, each of Seller and its affiliates are currently engaged the Seller Shareholder agree to comply with, and agrees to cause their Affiliates to comply with, the restrictive covenants set forth in this Section 8.1. Except as provided in the business last paragraph of branded and generic pharmaceuticalsthis Section 8.1, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect neither Seller nor the Confidential Information and other trade secrets of Seller Shareholder will for four years from the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve (12) months after Executive’s cessation of employment with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunderClosing Date, directly or indirectly indirectly, as an owner, partner, shareholder, joint venturer, corporate officer, director, employee, manager, consultant, principal, trustee or licensor, or in any other capacity whatsoever of or for any Person, firm, partnership, company, corporation or other entity (other than Buyer or any of its Affiliates):
(a) acquire, own any interest in, manage, operate, control, participate in, consult with or participate in the management, operation, or control of, be employed by, associated withrender services for, or in any manner connected withengage in or represent any bar, lend Executive’s name torestaurant and in-home interactive gaming business that is competitive with the bar, restaurant and in-home interactive gaming business or any product of the bar, restaurant and in-home interactive gaming business as the bar, restaurant and in-home interactive gaming business is conducted or proposed to be conducted from and after the date hereof in any way in the Territory; or
(b) solicit, divert or take away, or render services attempt to solicit, divert or advice totake away, the bar, restaurant and in-home interactive gaming business, account or patronage of any third party of the clients, customers or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material suppliers of Buyer relating to the Company bar, restaurant and in-home interactive gaming business; or
(c) lend or allow its name or reputation to be used by or otherwise allow its skill, knowledge or experience to be used by any bar, restaurant and in-home interactive gaming business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company bar, restaurant and its affiliates as an immaterial part of its overall in-home interactive gaming business, provided that Executive recuses Executive fully and completely from all matters relating to such business.; or
(iid) For purposes of this Section 11(b)induce, or attempt to induce, any third party customer, salesperson, distributor, supplier, vendor, manufacturer, representative, agent, jobber, licensee or other Person transacting bar, restaurant and in-home interactive gaming business with Buyer or any Affiliate thereof to reduce or cease doing bar, restaurant and in-home interactive gaming business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company Buyer or any of its affiliates is at Affiliate thereof, or in any way to interfere with the time of termination actively negotiatingrelationship between any such customer, salesperson, distributor, supplier, vendor, manufacturer, representative, agent, jobber, licensee or other Person, on the one hand, and eventually concludes within twelve (12) months of Buyer or any Affiliate thereof, on the Employment Term, a commercial agreement.
(iii) other hand. Notwithstanding the foregoing, it Seller and Seller Shareholder are (i) permitted to own, individually, as a passive investor up to a 10% interest in any publicly-traded entity and (ii) license a back-office software engine related to payment processing from online gambling. The restrictions in this Section 8.1 will be effective in the United States and Canada (collectively, the "Locations"). Seller and the Seller Shareholder acknowledge that the Business is national, rather than local, in scope, in the United States and Canada. This Section 8.1 shall not be a violation of this Section 11(b), for Executive apply if Buyer shall have failed to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, deliver the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund Purchase Price (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms delivery of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis portion of the affiliation is solely due NTN Shares to common ownership by a private equity or similar investment fund; provided, that, be delivered as set forth in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(cclause (iii) and 11(din Exhibit F) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject pursuant to the prior approval terms set forth in Article I and have failed to cure such failure within five business days after receiving written notice of the Boardsuch breach by Seller.
Appears in 1 contract
Covenant Not to Compete. (i) The Company and its affiliates are currently engaged in the business of branded Executive acknowledge and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve (12) months after Executive’s cessation of employment with the Company, agree that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere have a significant role in the world where, at the time development of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates and subsidiaries, that Executive will establish and develop confidential relations and contacts with the customers and suppliers of the Company and its affiliates and subsidiaries throughout the world and that Executive will have access to Confidential Information (as an immaterial part defined below), all of its overall which constitute valuable goodwill of the Company. Accordingly, Executive hereby covenants and agrees that during his employment with the Company and throughout the Non-Compete Period (as defined below), Executive shall not, either directly or indirectly, without the prior written consent of the Chief Executive Officer of the Company:
(i) Engage in or carry on any business or in any way become associated with any business, provided organization, partnership, person, firm, corporation, association or other entity that is engaged in or is carrying on any business that is in competition with the Business of the Company (as defined below) [,including without limitation CFO Web, Reuters, Atriax, Currerex or Bloomberg] (such entity, a “Conflicting Organization”); provided, that a division or affiliate of a Conflicting Organization with respect to which Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For is associated or otherwise performing services shall not be treated as a Conflicting Organization for purposes of this Agreement solely to the extent that such division or affiliate is not engaged in any business or other activity that is in competition with the Business of the Company. As used in this Section 11(b)5, the term “Business of the Company” shall mean the design, development, marketing, sale or distribution of an automated pricing, trading or other dealing foreign exchange platform or solution that connects banks and/or other financial institutions to their branches and/or customers and any other product including, but not limited to, any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which software, offered by the Company or any of its affiliates is or subsidiaries at the time of termination actively negotiating, and eventually concludes of Executive’s employment or to be offered by the Company within twelve six (126) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation such termination and of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate is aware on the date of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Boardtermination.
Appears in 1 contract
Covenant Not to Compete. (i) The Sellers acknowledge that in order to assure the Purchaser that the Purchaser will retain the value of the Company and its affiliates are currently engaged as a “going concern,” the Sellers, on the terms set forth in this Section 5.8, agrees not to utilize their special knowledge of the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets Business of the Company and its affiliates as well as relationships with customers, prospective customers, suppliers and others or otherwise to compete with the goodwill and competitive business Business subject to the terms hereafter set forth. Accordingly, subject to the Closing of the Company transactions contemplated by this Agreement, each Seller covenants and its affiliatesagrees as follows:
(a) During the five (5) year period that begins on the Closing Date, Executive agrees, during the Employment Term and for a period of twelve (12) months after Executive’s cessation of employment with the Company, that Executive will such Seller shall not, unless otherwise agreed to by whether for its own account or for the Chief Executive Officer account of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, any other party other than the Company develops, manufactures, distributes, markets or sells Purchaser or its products, except in the course of Executive’s employment hereunderAffiliates, directly or indirectly engage or have any financial interest in, own, manage, operate, controlfinance, control or participate in the ownership, management, operation, financing or control of, be employed by, associated with, with or in any manner connected with, lend Executive’s their name to or any similar name to, lend their credit to or render services or advice to, any third party organization or activity which in any business whose products manner competes with (A) the Company with respect to the Business or services compete in whole (B) the Purchaser or in part its Affiliates with respect to the products or services (both on Purchaser’s Business. For purposes of this Section 5.8, the market and in development) material term "compete" shall mean with respect to the Company or the Purchaser and its Affiliates: (i) with respect to or in connection with conducting any Business or the Purchaser’s Business, calling on, soliciting, taking away, or accepting as a client or customer or attempting to call on, solicit, take away or accept as a client or customer, any individual, person, partnership, company, association or other entity or enterprise that is or was a client or customer of or actively solicited by the Company or, to such Seller’s Knowledge, the Purchaser or its Affiliates on or within two (2) years of the Closing Date; (ii) with respect to any business unit reason other than in connection with the Business or the Purchaser’s Business, calling on, soliciting, taking away, or accepting as a client or customer or attempting to call on, solicit, take away or accept as a client or customer, any individual, person, partnership, company, association or other entity or enterprise that is or was a client or customer of the Company or, to such Seller’s Knowledge, the Purchaser or its Affiliates on or within two (2) years of the Closing Date without the prior written consent of the CEO of the Purchaser in each instance, which consent will not be unreasonably delayed or withheld; (iii) soliciting, taking away or attempting to solicit or take away, employ or otherwise engage as an employee, independent contractor or otherwise, any person who is or was an employee of the Company or the Purchaser or its Affiliates on or within two (2) years of the Closing Date, on behalf of any individual, person, partnership, company, association or other entity or enterprise conducting Business or the Purchaser’s Business; (iv) inducing or attempting to induce any employee of the Company or the Purchaser and its Affiliates to terminate employment with the Company or the Purchaser and its Affiliates, as the case may be; (v) entering into or attempting to enter into any business similar to or competing in any way with the Business or the Purchaser’s Business. For purposes of this Section 5.8(a), the words "directly or indirectly" as they modify the word "compete" shall mean (i) acting as an agent, representative, consultant, officer, director, manager, independent contractor or employee of any individual, person, partnership, company, association, limited liability company, limited liability partnership or other entity or enterprise which competes with the Company, the Business or the Purchaser’s Business, (ii) participating in any such competing entity or enterprise as an owner, member, partner, limited partner, joint venturer, creditor or stockholder (except as a stockholder holding less than a two percent (2 %) interest in a Company whose shares are traded on a regional or national securities exchange or have been registered under Section 12(g) of the Exchange Act); and (iii) communicating to any such competing entity or enterprise the names or addresses or any other information concerning any past, present or identified prospective client or customer.
(b) During the five (5) year period that begins on the termination date that constitutes more than 5% Closing Date, such Seller shall not interfere with any of the Company’s, the Purchaser’s revenue or the Purchaser’s Affiliates’ relationships with any party, including any party who, during the one year period ending on the termination date Closing Date, was an employee, contractor, supplier or customer of any of the Company, the Purchaser, or the Purchaser’s Affiliates’. Such Seller shall not make public statements which may negatively impact any of the Company, the Purchaser or Purchaser’s Affiliates, or any of its directors, officers, employees or agents with respect to the customers, suppliers, products, personnel or business of Purchaser, Purchaser’s Affiliates, and any of the Company, and Purchaser and its Affiliates shall not make public statements which negatively impact such Seller, except to the extent such statements by such Seller, the Purchaser or Purchaser’s Affiliates are (i) required by the federal securities laws or any other laws applicable to the Purchaser or its Affiliates, (ii) made in a manner consistent with an individual’s fiduciary duties, or (iii) in connection with any arbitration, mediation, administrative action, or litigation (including, without limitation pleadings, depositions, discovery requests and testimony) relating to this Agreement or any other Agreement between the parties. For purposes of this Section 5.8(b), “Competing Business”)interfere” shall mean intentional or grossly negligent acts or conduct that is reasonably likely to hamper, hinder or disturb the relationships between the Company, the Purchaser or Purchaser’s Affiliates and any applicable party; provided, however, that Executive may in the term “interfere” shall not include any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board act of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall businesssolicitation under Section 5.8(a)(i), provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes or (v) hereof that was permissible in accordance with the terms of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s5.8(a) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreementthat such act was committed.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Board.
Appears in 1 contract
Covenant Not to Compete. (i) The Company and its affiliates are currently engaged in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliatesCompany, Executive agrees, during the Employment Term and for a period of twelve eighteen (1218) months after Executive’s cessation of employment with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete (including as described below) in whole or in part with the products or services (both on the market and in development) material to of the Company or (disregarding any business unit on non-pain management products that were not products promoted by the termination date that constitutes more than 5% of Company during the Company’s revenue on the termination date (a “Competing Business”last three years); provided, however, that Executive may in any event (xw) own up to a 5% passive ownership interest in any public or private entity entity, (x) be employed by, or otherwise have a material association with, any business whose products compete with the material products of the Company so long as his employment or association is with a separately managed and operated division or affiliate of such business that does not compete with the Company, and (y) serve on the board of any Competing Business that competes business whose products compete with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive he recuses Executive himself fully and completely from all matters relating to such businessproducts.
(ii) For purposes of this Section 11(b12(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Board.
Appears in 1 contract
Sources: Executive Employment Agreement (Endo Pharmaceuticals Holdings Inc)
Covenant Not to Compete. (i) The Company and its affiliates are currently engaged in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. i. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve eighteen (1218) months after Executive’s cessation of employment with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party party, or any business business, whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue revenues on the termination date (a “Competing Business”)date; provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive he recuses Executive himself fully and completely from all matters relating to such business.
(ii) . For purposes of this Section 11(b), any third party party, or any business business, whose products compete includes any entity with which the Company or any of its affiliates has had a product(s) licensing agreement during at the Employment Term date of the cessation of Executive’s employment with the Company and any entity with which the Company or any of its affiliates is at is, as of the time date of termination actively the cessation of Executive’s employment with the Company, to the knowledge of Executive (as reflected by the deliberations of the Company’s senior leadership team), negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial product licensing or acquisition agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Board.
Appears in 1 contract
Sources: Executive Employment Agreement (Endo International PLC)
Covenant Not to Compete. Executive acknowledges that the Company's business is by its nature a worldwide business (the "Business Area"), and that the Company's business, research and products do not require that it maintain a physical location close to its customers. Executive further acknowledges that the skills, processes and information developed at the Company could be utilized directly and to the Company's detriment (or the detriment of any of the Company's affiliates or ventures) with any other business in the Business Area involved in the utilities business (a "Competitive Product"). Executive also acknowledges that the nature of his position at the Company will bring him into close contact with much of the Company's Confidential Information. Accordingly, for separate and additional consideration of $100,000 payable to Executive by the Company in a lump-sum cash payment at the end of the next full pay period following the execution and delivery to the Company by Executive of this Agreement, Executive agrees to be bound by the following restrictive covenants:
(i) The Company and its affiliates are currently engaged in During the business of branded and generic pharmaceuticalsTerm, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve (12) 12 months after the termination of the Term for any reason other than the death or disability of Executive’s cessation of employment with the Company, that Executive will shall not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere acting alone or in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunderconjunction with others, directly or indirectly manageindirectly, operateinvest or engage, controldirectly or indirectly, in any business in the Business Area involved in researching, developing, or participate in the management, operation, marketing a Competitive Product or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, accept employment with or render services to such a business as a director, officer, agent, employee, independent contractor or advice toconsultant, or take any third party or any business whose products or services compete in whole or in part action inconsistent with the products or services (both on the market and in development) material fiduciary relationship of an employee to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”)his employer; provided, however, that the beneficial ownership by Executive may in any event (x) own of up to a 5% passive ownership interest in any public or private entity and (y) serve on of the board voting stock of any Competing Business that competes with corporation subject to the business periodic reporting requirements of the Company Securities and its affiliates as an immaterial part Securities Exchange Act of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business1934 shall not violate this Section 6.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement Executive further agrees that during the Employment Term, and for a period of 24 months after the termination of the Term and for any entity with which reason other than the death or disability of Executive, he shall not at any time, directly or indirectly, (1) induce, entice or solicit (or attempt to induce, entice or solicit) any employee of the Company or any of its affiliates is or ventures to leave the employment of the Company or any of its affiliates or ventures or (2) solicit or attempt to solicit the business of any customer or acquisition prospect of the Company or any of its affiliates or ventures with whom Executive had any actual contact while employed at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreementCompany.
(iii) Executive acknowledges that these restrictive covenants under Section 6, for which he received consideration from the Company as provided in this Section 6, are ancillary to otherwise enforceable provisions of this Agreement and that these restrictive covenants contain limitations as to time, geographical area, and scope of activity to be restrained that are reasonable and do not impose a greater restraint than is necessary to protect the good will or other business interests of the Company, such as the Company's need to protect its confidential and proprietary information. Executive acknowledges that in the event of a breach by Executive of these restrictive covenants, the covenants may be enforced by temporary restraining order, preliminary or temporary injunction, and permanent injunction. In that connection, Executive acknowledges that in the event of a breach, the Company will suffer irreparable injury for which there is no adequate legal remedy, in part because damages caused by the breach may be difficult to prove with any reasonable degree of certainty. Notwithstanding the foregoing, it shall not be a violation above provisions of this Section 11(b6 to the contrary, in the event Executive's employment is terminated during the Term for Cause (as defined herein), for Executive to provide services to the 12- and 24-month periods referenced in paragraphs (or engage in activities involving): (Ac)(i) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (Cii) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis above shall commence as of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval date of the BoardExecutive's termination of employment with the Company.
Appears in 1 contract
Sources: Employment Agreement (Reliant Energy Resources Corp)
Covenant Not to Compete. (i) The Company and its affiliates are currently engaged in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve twenty-four (1224) months after Executive’s cessation of employment with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), not anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive he recuses Executive himself fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding For the foregoing, avoidance of doubt it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Board.
Appears in 1 contract
Sources: Executive Employment Agreement (Endo International PLC)
Covenant Not to Compete. (i) The Company and its affiliates are currently engaged in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliatesCompany, Executive agrees, during the Employment Term and for a period of twelve (12) months after Executive’s cessation of employment with the CompanyTerm, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly for the Executive or any third party, manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party party, or any business business, whose services or products or services compete in whole or in part (including as described below) with the material services or products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity entity, and (y) serve on the board of be employed by, or otherwise have material association with, any Competing Business that competes business whose services or products compete with the business material services or products of the Company so long as his employment or association is solely with a separately managed and its affiliates as an immaterial part operated division or affiliate of its overall businesssuch business that does not compete with the Company. If Executive’s employment with the Company shall be terminated (x) by the Company other than for Cause, provided that Disability or death, or (y) by Executive recuses with Good Reason this Covenant not to Compete shall be extended for a period of twenty-four (24) months after Executive’s cessation of employment with the Company in consideration of the payments and other benefits to be received by Executive fully and completely from all matters relating pursuant to such businessSection 8(d) of this Agreement.
(ii) For purposes of this Section 11(b), any third party party, or any business business, whose products compete includes any entity engaged in any business or activity which is directly in competition with any services or products sold by, or any business or activity engaged in by, the Company or any of its affiliates, or any entity with which the Company or its affiliates has had a product(s) licensing agreement during at the end of the Employment Term and any entity with which the Company or any of its affiliates is is, at the time of termination actively termination, negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial product licensing or acquisition agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Board.
Appears in 1 contract
Covenant Not to Compete. (i) The Company and its affiliates are currently engaged in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve twenty-four (1224) months after Executive’s cessation of employment with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), not anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive he recuses Executive himself fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b12(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b12(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including including, without limitation, a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including including, but not limited to, Executive’s obligations under Sections 1011, 11(a12(a), 11(c(c) and 11(d(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii12(b)(iii) shall be subject to the prior approval of the Board.
Appears in 1 contract
Sources: Executive Employment Agreement (Endo International PLC)
Covenant Not to Compete. (i) The Company and its affiliates are currently engaged in During the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve the twenty-four (1224) months after Executive’s cessation of employment with following the CompanyTermination Date (the "Non-Competition Period"), that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair none of the Committee), anywhere in the world where, at the time of Executive’s termination of employmentDistributor, the Company developsDistributor's Affiliates, manufactures, distributes, markets Principals or sells its products, except in the course holders of Executive’s employment hereunder, directly any direct or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive indirect ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide servicesDistributor will engage, directly or indirectly, in the Territory, in the manufacture, assembly, development, sale, distribution or service of products which are competitive to such Competing Business the Products which had been sold hereunder. In case of doubt or disagreement, the Company shall have the power to reasonably determine if a product is competitive to the Products which had been sold hereunder. During the Term and for the basis twenty-four (24) months following the Termination Date, none of the affiliation Distributor, the Distributor's Affiliates, Principals or holders of any direct or indirect ownership interest in the Distributor at any time on or after the date hereof shall directly or indirectly:
(i) cause, induce or attempt to cause or induce any customer, supplier, licensee, licensor, franchisee, employee, consultant or other business relation of the Company, Lumenis or any of their Affiliates to cease doing business with the Company, Lumenis Ltd., an Israeli corporation ("Lumenis"), or their respective Affiliates, to deal with any competitor of the Company, Lumenis or their respective Affiliates that is solely due engaged in the laser or light technology business or in any way interfere with any third party's relationship with the Company, Lumenis or their respective Affiliates; (ii) hire, retain or attempt to hire or retain any employee or independent contractor of the Company, Lumenis or their respective Affiliates; or (iii) disparage the Company, Lumenis or any of their respective Affiliates or any of their shareholders, directors, officers, employees or agents. "Affiliate" of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, "control" (including, with correlative meanings, the terms, "controlling," "controlled by" and "under common control with"), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by a private equity agreement or similar investment fund; providedotherwise. Notwithstanding the foregoing, that, in each case, Executive this Section 6.C shall remain bound by all other post-employment obligations under not apply if this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to is terminated by the prior approval Distributor as a result of the BoardCompany's default.
Appears in 1 contract
Sources: Distribution Agreement (Lumenis LTD)
Covenant Not to Compete. (i) The Company and its affiliates are currently engaged in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. i. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve (12) months after Executive’s cessation of employment with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party party, or any business, whose business whose products or services compete in whole or in part competes with the products or services (both on the market and in development) material to business of the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”)and its affiliates; provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive he recuses Executive himself fully and completely from all matters relating to such business; and provided further that the foregoing shall not preclude or limit Executive’s activities with respect to the practice of law. Executive and the Company acknowledge and agree that, solely with respect to the practice of law, the foregoing noncompetition obligations shall not apply and this Agreement shall be construed in all respects consistent with Rule 5.06 of the Pennsylvania Rules of Professional Conduct and Rule 5.6 of the Delaware Lawyers' Rules of Professional Conduct.
(ii) . For purposes of this Section 11(b), any third party party, or any business, whose business whose products compete competes includes any entity with which the Company or any of its affiliates has had a product(s) licensing agreement during at the Employment Term date of the cessation of Executive’s employment with the Company and any entity with which the Company or any of its affiliates is at is, as of the time date of termination actively the cessation of Executive’s employment with the Company, to the knowledge of Executive (as reflected by the deliberations of the Company’s senior leadership team), negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial product licensing or acquisition agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Board.
Appears in 1 contract
Sources: Executive Employment Agreement (Endo International PLC)
Covenant Not to Compete. (i) The Company and its affiliates are currently engaged Employee acknowledges that because of Employee’s position of trust with the Company, in the business course of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve (12) months after ExecutiveEmployee’s cessation of employment with the Company, Employee will be given access to or will become familiar with their trade secrets and with other Confidential Information, and that Executive Employee’s services have been and shall be of special, unique and extraordinary value to the Company. Therefore, Employee agrees that during Employee’s employment by the Company, Employee will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, either directly or indirectly indirectly, without prior written authorization from the Company, own, manage, operate, control, be employed by, perform services for, consult with, solicit business for, participate in, or participate in be connected with the ownership, management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or of any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes which is competitive with the business of the Company on Employee’s date of termination (which includes the business of providing technology solutions related to employee engagement, talent management, payroll and its affiliates as an immaterial part benefits administration, workforce management, and related services). Employee further agrees that for a period of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
18 months after Employee is no longer employed by the Company (ii) For purposes of this Section 11(bthe “Restriction Period”), throughout the United States and any third party or any business whose products compete includes any entity with other jurisdiction in which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that isconducting business, or is considering at the Board level to conduct business, as of the Termination Date, Employee shall not, in any capacity, whether individually or jointly, as a general partner inpartner, or manages or participates in managingemployee, a private or public fund (including a hedge fund) or other investment vehicleconsultant, which is engaged in venture capital investmentsofficer, leveraged buy-outsdirector, investments in public or private companies, other forms of private or alternative equity transactions, shareholder or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide servicesother capacity, directly or indirectly, own, manage, advise, counsel, assist or engage in the ownership, management or control of, or be employed or engaged by or otherwise affiliated or associated as a consultant, independent contractor or otherwise, with any other business that provides payroll processing services, payroll tax filing services, time and attendance solutions, human resource and benefit services, applicant tracking systems, or in any similar business that competes with the Company, and Employee will not assist any third parties to such Competing Business and compete with the basis Company in any way. Notwithstanding the foregoing, Employee may own, directly or indirectly, solely as an investment, securities of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) which are traded on any national securities exchange so long as Employee does not, directly or (B) indirectly, own 2% or more of this Section 11(b)(iii) shall be subject to the prior approval any class of the Boardsecurities of such entity.
Appears in 1 contract
Covenant Not to Compete. (i) The Company and its affiliates are currently engaged in Executive agrees that during the business of branded and generic pharmaceuticals, Executive’s employment with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and or any of its subsidiaries or affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve two (122) months after years commencing upon the expiration or termination of the Executive’s cessation employment for any reason whatsoever (the “Non-Compete Period”), the Executive shall not, directly or indirectly, without the prior written consent of the Company: (a) solicit, entice, persuade or induce any employee, consultant, agent or independent contractor of the Company or of any of its subsidiaries or affiliates to terminate his, her or its employment with the CompanyCompany or such subsidiary or affiliate, that Executive will notto become employed by any person, unless otherwise agreed to by firm or corporation other than the Chief Executive Officer of Endo (following approval by the Chair Company or such subsidiary or affiliate or approach any such employee, consultant, agent or independent contractor for any of the Committee)foregoing purposes, anywhere or authorize or assist in the world wheretaking of any such actions by any third party (the terms “employee,” “consultant,” “agent” and “independent contractor” shall include any persons with such status at any time during the six (6) months preceding any solicitation in question); or
(b) directly or indirectly engage, participate, or make any financial investment in, or become employed by or render consulting, advisory or other services to or for any person, firm, corporation or other business enterprise, wherever located, which is engaged or preparing to engage, directly or indirectly, in competition with the Business and/or any business of the Company or any of its subsidiaries or affiliates as conducted or any business proposed to be conducted at the time of Executive’s the expiration or termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market Company and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”)its subsidiaries and affiliates; provided, however, that nothing in this Section shall be construed to preclude the Executive may from making any investments in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board securities of any Competing Business that competes business enterprise whether or not engaged in competition with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is subsidiaries or affiliates, to the extent that such securities are actively traded on a national securities exchange or in the over-the-counter market in the United States or on any foreign securities exchange and represent, at the time of termination actively negotiatingacquisition, and eventually concludes within twelve (12) months not more than 3% of the Employment Term, a commercial agreementaggregate voting power of such business enterprise.
(iiic) Notwithstanding In the foregoing, it shall not be a violation of this Section 11(b), for event that: (i) the Executive to provide services to (engages in or notifies the Company that the Executive will engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, activity which the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buyCompany deems to violate the non-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Board.competition provisions of
Appears in 1 contract
Covenant Not to Compete. (i) a. The Company and its affiliates are currently engaged Employee shall not, anywhere in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agreesUnited States, during the Employment Term and for a period of six months (6) months thereafter (the “Restricted Period”), do any of the following directly or indirectly without the prior written consent of the Company in its sole discretion:
b. engage or participate in the business of providing, on a contract basis, pharmaceutical research development and research management, the design and management of clinical trials for pharmaceutical, biotechnology and medical device business, the design and writing of clinical development reports and programs and/or the management of the global regulatory submission process for pharmaceutical, biotechnology and medical device products (the “Business”).
c. become interested (as owner, proprietor, promoter, stockholder, lender, partner, co-venturer, director, officer, employee, agent, consultant or otherwise) in any person, firm, corporation, association or other entity engaged in any business that is competitive with the Business or of the business of any subsidiary or affiliate of the Company as conducted during the Term, or become interested in (as owner, stockholder, lender, partner, co-venturer, director, officer, employee, agent, consultant or otherwise) any portion of the business of any person, firm, corporation, association or other entity where such portion of such business is competitive with the Business of the Company or the business of any subsidiary or affiliate of the Company as conducted during the Term (notwithstanding the foregoing, the Employee may hold not more than one percent (1%) of the outstanding securities of any class of any publicly-traded securities of a company that is engaged in business activity competitive with the Business or the business of any of the Company’s subsidiaries or affiliates as conducted during the Term);
d. solicit or call on for a purpose competitive with the Business, either directly or indirectly, any (A) customer with whom the Company shall have dealt at any time during the two (2) year period immediately preceding the termination of the Employee’s employment hereunder, or (B) supplier or distributor with whom the Company shall have dealt at any time during the two (2) year period immediately preceding the termination of the Employee’s employment hereunder;
e. influence or attempt to influence any supplier, distributor, customer or potential customer of the Company to terminate or modify any written or oral agreement or course of dealing with the Company;
f. during the Term and for a period of one (1) year thereafter, influence or attempt to influence any employee to terminate or modify any written or oral employment relationship or agreement with the Company;
g. influence or attempt to influence any person either (A) to terminate or modify the employment, consulting, agency, distributorship or other arrangement with the Company, or (B) to employ or retain, or arrange to have any other person or entity employ or retain, any person who has been employed or retained by the Company as an employee, consultant, agent or distributor of the Company at any time during the twelve (12) months after Executive’s cessation of employment with month period immediately preceding the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair termination of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of ExecutiveEmployee’s employment hereunder.
h. The Employee hereby acknowledges that the limitations as to time, directly character or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both nature and geographic scope placed on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the CompanyEmployee’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes of subsequent employment by this Section 11(b), any third party 6 are reasonable and fair and will not prevent or any business whose products compete includes any entity with which materially impair the Company or its affiliates has had Employee’s ability to earn a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreementlivelihood.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Board.
Appears in 1 contract
Covenant Not to Compete. (i) The Company and its affiliates are currently engaged in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agreesagrees that, during the Employment Term term of his employment under this Agreement and for a period of twelve one (121) months after year following the Termination Date, regardless of the reasons for the Executive’s cessation 's termination of employment with the Companyemployment, that Executive will not, unless otherwise agreed to by the Chief Executive Officer directly or indirectly, expressly or tacitly, for himself or on behalf of Endo (following approval by the Chair of the Committee), any entity anywhere in the world whereRestricted Territory, (i) act as an officer, manager, advisor, executive, controlling shareholder, or consultant to any business in which his duties at or for such business include oversight of or actual involvement in providing services which are competitive with the time of Executive’s termination of employment, services or products being provided or which are being produced or developed by the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, controlAffiliates, or participate are under investigation by the Company or any of its Affiliates on the Termination 11 Date, (ii) recruit investors on behalf of an entity which engages in activities which are competitive with the management, operationservices or products being provided or which are being produced or developed by the Company or its Affiliates, or control of, be employed by, associated withare under investigation by the Company or any of its Affiliates on the Termination Date, or (iii) become employed by such an entity in any manner connected withcapacity which would require Executive to carry out, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part part, the duties Executive has performed for the Company which are competitive with the services or products being provided or services (both on the market and in development) material to which are being produced or developed by the Company or any business unit of its Affiliates, or are under active investigation by the Company or any of its Affiliates on the termination date Termination Date. This covenant shall apply to any services or products under investigation by the Company or any of its Affiliates on the Termination Date only to the extent that constitutes more than 5% the Executive initiated, promoted, participated in, or otherwise had knowledge of such investigation. Executive acknowledges that because of the nationwide nature of the Company’s revenue on 's (including its Affiliates) business, this restriction will prevent the termination date (a “Competing Business”); provided, however, that Executive may from acting in any event (x) own up to a 5% passive ownership interest of the foregoing capacities for any competing entity wherever located within the Restricted Territory and that this scope is reasonable in any public or private entity and (y) serve on the board light of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such businessAffiliates.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Board.
Appears in 1 contract
Sources: Employment Agreement (American Business Products Inc)
Covenant Not to Compete. (i) The Executive acknowledges that he has established and will continue to establish favorable relations with the customers, clients and accounts of the Company and its affiliates are currently engaged in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other will have access to trade secrets of the Company and its affiliates as well as the goodwill and competitive business Company. Therefore, in consideration of the Company and its affiliatessuch relations to further protect trade secrets, Executive agreesdirectly or indirectly, during the Employment Term and for a period of twelve (12) months after Executive’s cessation of employment with the Company, the Executive agrees that at all times during his Employment with the Company through the date of termination of the Executive’s Employment, the Executive will not, unless otherwise agreed to by directly or indirectly, without the Chief Executive Officer of Endo (following approval by the Chair express written consent of the Committee)Board:
(i) own or have any interest in or act as an officer, anywhere in the world wheredirector, at the time of Executive’s termination of employmentpartner, the Company developsprincipal, manufacturesemployee, distributesagent, markets representative, consultant or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control independent contractor of, be employed by, associated with, or in any manner connected withway assist in, lend Executive’s name toany business which is engaged directly in any business directly competitive with the Company in those markets and/or products lines in which the Company competes within 50 miles of the address of the principal place of business of the parent Company or any or its wholly-owned operating subsidiaries at any time during the Term, or become associated with or render services to any person, firm, corporation or advice to, any third party or any business whose products or services compete in whole or in part with the products or services other entity so engaged (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing BusinessCompetitive Businesses”); provided, however, that the Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on without the board of any Competing Business that competes with the business express written consent of the Company not more than four and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
nine-tenths percent (ii4.9%) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, issued and outstanding securities of any company or enterprise whose securities are listed on a commercial agreement.
(iii) Notwithstanding national securities exchange or actively traded in the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, over the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) hereincounter market; provided, further, however that once the Term has terminated the Executive may work for, have an interest in, render services to or assist any business or Competitive Business without violating this Section 7.2;
(ii) solicit clients, customers or accounts of the Company for, on behalf of or otherwise related to any such Competitive Businesses;
(iii) solicit any person who is in the employ or service of the Company to leave such employ or service for employment with or service to the Executive, an affiliate of the Executive or any third Party. In the event that the Company shall merge with, be acquired by, or generally be absorbed into any other business or institution, the Executive’s provision continued performance on behalf of services such other business or institution shall not constitute a violation of Executive’s duties to (the Company under Article 7 or engagement in activities involving) any entity described in clauses (A) or (B) other provisions of this Section 11(b)(iii) Modified Agreement. Notwithstanding the foregoing, if any court determines that the covenant not to compete, or any part thereof, is unenforceable because of the duration of such provision or the geographic area or scope covered thereby, such court shall have the power to reduce the duration, area or scope of such provision to the extent necessary to make the provision enforceable and, in its reduced form, such provision shall then be enforceable and shall be subject enforced. The Company shall pay and be solely responsible for any attorney’s fees, expenses, costs and court or arbitration costs incurred by the Executive in any matter or dispute between the Executive and the Company which pertains to this Article 7 if the prior approval of Executive prevails in the Boardcontest in whole or in part.
Appears in 1 contract
Sources: Employment Agreement (Acacia Diversified Holdings, Inc.)
Covenant Not to Compete. (i) The Executive acknowledges that he has established and will continue to establish favorable relations with the customers, clients and accounts of the Company and its affiliates are currently engaged in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other will have access to trade secrets of the Company and its affiliates as well as the goodwill and competitive business Company. Therefore, in consideration of such relations to further protect trade secrets, directly or indirectly, of the Company and its affiliatesCompany, the Executive agrees, agrees that at all times during the Employment Term and for a period of twelve (12) months after Executive’s cessation of his employment with the CompanyCompany through the one (1) year anniversary of the date of termination of the Executive’s employment, that the Executive will not, unless otherwise agreed to by directly or indirectly, without the Chief Executive Officer of Endo (following approval by the Chair express written consent of the Committee)Board:
(i) own or have any interest in or act as an officer, anywhere in the world wheredirector, at the time of Executive’s termination of employmentpartner, the Company developsprincipal, manufacturesemployee, distributesagent, markets representative, consultant or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control independent contractor of, be employed by, associated with, or in any manner connected withway assist in, lend Executive’s name toany business which is engaged directly in any business competitive with the Company in those markets and/or products lines in which the Company competes in each of the counties of California and in the rest of the world at any time during the Term, or become associated with or render services to any person, firm, corporation or advice to, any third party or any business whose products or services compete in whole or in part with the products or services other entity so engaged (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing BusinessCompetitive Businesses”); provided, however, that the Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on without the board of any Competing Business that competes with the business express written consent of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
not more than two percent (ii2%) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, issued and outstanding securities of any company or enterprise whose securities are listed on a commercial agreement.
(iii) Notwithstanding national securities exchange or actively traded in the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, over the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) hereincounter market; provided, further, however that Executive’s provision of once the Term has terminated the Executive may work for, have an interest in, render services to (or engagement in activities involvingassist any Competitive Business that has one or more competitive product lines so long as such product line(s) any entity described in clauses (A) are not the principal part of such business and the Executive does not directly work or (B) of consult on such competitive product line(s); it being understood however that others working on such competitor’s product lines may report to the Executive without violating this Section 11(b)(iii8.2 so long as the reporting is at least one level below a direct report to the Executive;
(ii) solicit clients, customers or accounts of the Company for, on behalf of or otherwise related to any such Competitive Businesses or any products related thereto;
(iii) solicit any person who is or shall be subject in the employ or service of the Company to leave such employ or service for employment with or service to the prior approval Executive, an affiliate of the BoardExecutive or any third party; or
(iv) solicit any person who was within six months of such solicitation in the employ or service of the Company to become employed by or provide services to the Executive, an affiliate of the Executive or any third party. Notwithstanding the foregoing, if any court determines that the covenant not to compete, or any part thereof, is unenforceable because of the duration of such provision or the geographic area or scope covered thereby, such court shall have the power to reduce the duration, area or scope of such provision to the extent necessary to make the provision enforceable and, in its reduced form, such provision shall then be enforceable and shall be enforced. The Company shall pay and be solely responsible for any attorney’s fees, expenses, costs and court or arbitration costs incurred by the Executive in any matter or dispute between the Executive and the Company which pertains to this Article 8 if the Executive prevails in the contest in whole or in part.
Appears in 1 contract
Sources: Employment Agreement (Autobytel Inc)
Covenant Not to Compete. (i) The Executive acknowledges that he has established and will continue to establish favorable relations with the customers, clients and accounts of the Company and its affiliates are currently engaged in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other will have access to trade secrets of the Company and its affiliates as well as the goodwill and competitive business Company. Therefore, in consideration of such relations to further protect trade secrets, directly or indirectly, of the Company and its affiliatesCompany, the Executive agrees, agrees that at all times during the Employment Term and for a period of twelve (12) months after Executive’s cessation of his employment with the CompanyCompany through the one (1) year anniversary of the date of termination of the Executive’s employment, that the Executive will not, unless otherwise agreed to by directly or indirectly, without the Chief Executive Officer of Endo (following approval by the Chair express written consent of the Committee)Board:
(i) own or have any interest in or act as an officer, anywhere in the world wheredirector, at the time of Executive’s termination of employmentpartner, the Company developsprincipal, manufacturesemployee, distributesagent, markets representative, consultant or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control independent contractor of, be employed by, associated with, or in any manner connected withway assist in, lend Executive’s name toany business which is engaged directly in any business competitive with the Company in those markets and/or products lines in which the Company competes within 50 miles of the address of the principal place of business of the parent Company or any or its wholly-owned operating subsidiaries at any time during the Term, or become associated with or render services to any person, firm, corporation or advice to, any third party or any business whose products or services compete in whole or in part with the products or services other entity so engaged (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing BusinessCompetitive Businesses”); provided, however, that the Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on without the board of any Competing Business that competes with the business express written consent of the Company not more than four and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
nine-tenths percent (ii4.9%) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, issued and outstanding securities of any company or enterprise whose securities are listed on a commercial agreement.
(iii) Notwithstanding national securities exchange or actively traded in the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, over the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) hereincounter market; provided, further, however that once the Term has terminated the Executive may work for, have an interest in, render services to or assist any business or Competitive Business without violating this Section 8.2;
(ii) solicit clients, customers or accounts of the Company for, on behalf of or otherwise related to any such Competitive Businesses;
(iii) solicit any person who is or shall be in the employ or service of the Company to leave such employ or service for employment with or service to the Executive, an affiliate of the Executive or any third party. In the event that the Company shall merge with, be acquired by, or generally be absorbed into any other business or institution, the Executive’s provision continued performance on behalf of services such other business or institution shall not constitute a violation of Executive’s duties to (the Company under Article 8 or engagement in activities involving) any entity described in clauses (A) or (B) other provisions of this Section 11(b)(iii) Agreement. Notwithstanding the foregoing, if any court determines that the covenant not to compete, or any part thereof, is unenforceable because of the duration of such provision or the geographic area or scope covered thereby, such court shall have the power to reduce the duration, area or scope of such provision to the extent necessary to make the provision enforceable and, in its reduced form, such provision shall then be enforceable and shall be subject enforced. The Company shall pay and be solely responsible for any attorney’s fees, expenses, costs and court or arbitration costs incurred by the Executive in any matter or dispute between the Executive and the Company which pertains to this Article 8 if the prior approval of Executive prevails in the Boardcontest in whole or in part.
Appears in 1 contract
Sources: Employment Agreement (Acacia Diversified Holdings, Inc.)
Covenant Not to Compete. NO RAID.
(i1) The ▇▇▇▇ acknowledges that the Investors and the Company and its affiliates are currently engaged in would be irreparably damaged if the knowledge of ▇▇▇▇ concerning the business of branded and generic pharmaceuticalsaffairs, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets or confidential information of the Company and its affiliates as well as the goodwill and competitive business of or the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve (12) months after Executive’s cessation of employment with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets Subsidiaries were disclosed or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both utilized on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board behalf of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with Person which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates contemplates entering into, competition in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide servicesrespect, directly or indirectly, with the Company or the Company Subsidiaries. In furtherance of this Section 7.3 and to such Competing Business and secure the basis interests of the affiliation is solely due to common ownership by a private equity or similar investment fund; providedInvestors hereunder, ▇▇▇▇ hereby covenants and agrees that, in each casefrom and after the Closing and until the third anniversary of the date that Dina's ownership of the Company, Executive directly or indirectly, falls below 10%, without the prior written consent of the Investors, ▇▇▇▇ shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10not, 11(a)directly or indirectly, 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) participate in the ownership, management, operation or control of, or be connected with or employed by, or act as a consultant for, or have any financial interest in or aid or knowingly assist any other Person in the conduct of, any business or entity which (1) engages in any aspect of the Business, (2) is contemplating engaging in such Business or (3) provides any services that compete with those services provided by the Company or the Company Subsidiaries, in the case of (1), (2) and (3), anywhere within the Territory or (B) hire any officer or other employee of the Company or any Company Subsidiary or solicit or direct anyone else to solicit any officer or other employee of the Company or any Company Subsidiary (1) to terminate his or her employment or other relationship with the Company or any Company Subsidiary; or (2) to seek or accept employment or other affiliation with any other entity (other than any solicitation directed at the public in general in publications available to the public in general).
(2) From and after the Closing Date, except as set forth in Section 7.3(b) of the DISCLOSURE SCHEDULE, neither ▇▇▇▇ nor any Investor will use for its benefit or disclose to any person, any proprietary information of the Company or the Company Subsidiaries or proprietary information with respect to customers, suppliers, employees or financial affairs of the Company or the Company Subsidiaries, or any other confidential matter with respect to any aspect of the Business.
(3) ▇▇▇▇ acknowledges and agrees that if it were to breach any provision of this Section 11(b)(iii) 7.3, any remedy at law would be inadequate and that the Investors, in addition to seeking monetary damages in connection with any such breach, shall be subject entitled to specific performance, and injunctive and other equitable relief, without the necessity of posting any bond or other security, to prevent or restrain a breach of this Section 7.3 or to enforce the provisions hereof.
(4) The Company hereby covenants and agrees that from and after the Closing and until the date that Dina's ownership of the Company, directly or indirectly, falls below 10%, without the prior written consent of ▇▇▇▇, neither the Company nor any Investor shall, directly or indirectly, hire any officer or other employee of ▇▇▇▇ or any of its subsidiaries or solicit or direct anyone else to solicit any officer or employee of ▇▇▇▇ or any subsidiary of ▇▇▇▇ (i) to terminate his employment or other relationship with ▇▇▇▇ or any subsidiary of ▇▇▇▇ or (ii) to seek or accept employment or other affiliation with any other entity (other than any solicitation directed at the public in general in publications available to the prior approval public in general).
(5) ▇▇▇▇, the Company and the Investors intend that the provisions of this Section 7.3 be enforced to the Boardfullest extent permissible under the laws applied in each jurisdiction in which enforcement is sought. If any provision of this Section 7.3, or any part hereof, shall be held by a court of competent jurisdiction to be invalid or unenforceable, this Section 7.3 shall be amended to revise the scope of such provision to make it enforceable, if possible, or to delete such provision or such part.
Appears in 1 contract
Covenant Not to Compete. (i) The Company and its affiliates are currently engaged in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve (12) months after Executive’s cessation of employment with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), not anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive he recuses Executive himself fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiatingnegotiating and of which Executive has knowledge, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including including, without limitation, a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including including, but not limited to, Executive’s obligations under Sections 10, 11(a), 11(c(c) and 11(d(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Board.
Appears in 1 contract
Sources: Executive Employment Agreement (Endo International PLC)
Covenant Not to Compete. (i) The Company and its affiliates are currently engaged in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve twenty-four (1224) months after Executive’s cessation of employment with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), not anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive he recuses Executive himself fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including including, without limitation, a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including including, but not limited to, Executive’s obligations under Sections 10, 11(a), 11(c(c) and 11(d(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Board.
Appears in 1 contract
Sources: Executive Employment Agreement (Endo International PLC)
Covenant Not to Compete. (i) The Company Employee acknowledges and its affiliates agrees that the Proprietary Products are currently engaged in the business of branded exclusive and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets valuable property of the Company and may not be used by the Employee for any purpose of any kind, directly or indirectly, except during the term of this Agreement for the sole and exclusive benefit of the Company in his capacity as an employee of the Company and that the success of the Company depends on the Employee's observance of his covenants in this Section 8.
8.1. In consideration of the rights and benefits hereunder including the Covenant Payments, the Employee agrees that so long as he is an employee or consultant of the Company and for a period of one (1) year thereafter, if the employment of the Employee is terminated by the Company for Cause (as limited to the conduct described in Section 1.7.3(i) through (iv)) or by the Employee without Good Reason, he shall not directly or indirectly:
8.1.1. Engage or participate in any business or line of business that competes with the Business (or any line of business) conducted by the Company or under consideration by the Company; or perform any research or development or distribution or marketing services for any Proprietary Product or any product which is related to the Business that could be, directly or indirectly, developed, marketed or otherwise exploited by the Company.
8.1.2. Engage in business with, or provide advice or services to, any person or entity which directly or indirectly competes with the Business (or any line of business) of the Company.
8.2. In consideration of the rights and benefits hereunder including the Covenant Payments, the Employee agrees that so long as he is an employee or consultant of the Company and for a period of one (1) year thereafter he shall not directly or indirectly:
8.2.1. Solicit, hire or retain any employee or consultant of the Company or persuade or entice any such employee or consultant to terminate or lessen the extent of his, her or its affiliates as well relationship with the Company.
8.2.2. Engage in any activity to interfere with, disrupt or damage the Business of the Company or its relationships with any of its clients, customers, distributors, suppliers, investors or other financial co-venturer or other business relationship.
8.3. In the event the employment of the Employee is terminated by the Company without Cause or by the Employee for Good Reason, the Restrictive Period shall be for so long as the goodwill Company continues to be obligated to pay the Employee in accordance with the terms of Section 3 of this Agreement, but in no event less than one (1) year after termination of employment.
8.4. Following termination of the Employee's employment by the Company for any reason, the Employee shall continue to observe and competitive business be bound by his covenants under Sections 8.1 and 8.2 for the period provided in such Sections.
8.5. For purposes of this Section 8, the term "Company" shall include the Company and its affiliates, Executive agreesincluding any entity that directly or indirectly controls the business and affairs of the Company.
8.6. Notwithstanding anything to the contrary in this Agreement, during in the Employment Term event the Employee violates the provisions of this Section 8, then, in addition to all other rights and for a period of twelve (12) months after Executive’s cessation of employment with remedies available to the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets shall have no further obligation to pay Employee any money or sells its products, except in the course of Executive’s employment hereunder, directly to provide Employee with any rights or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material benefits to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up which Employee would have been entitled pursuant to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes of this Agreement had Employee not breached this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement8.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Board.
Appears in 1 contract
Sources: Employment Agreement (Vantas Inc)
Covenant Not to Compete. (i) The Employee acknowledges that during her employment with the Company and its affiliates are currently engaged she, at the expense of the Company, will be specially trained in the business of branded the Company, will establish favorable relations with the customers, clients and generic pharmaceuticalsaccounts of the Company or any subsidiary, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets parent or affiliate of the Company and its affiliates as well as the goodwill will have access to Intellectual Property, trade secrets and competitive business Confidential Information of the Company or any subsidiary, parent or affiliate of the Company. Therefore, in consideration of such training and its affiliatesrelations, Executive agrees, during the Employment Term and for a period in consideration of twelve (12) months after Executive’s cessation of her employment with the Company, that Executive will notand to further protect the Intellectual Property, unless otherwise agreed to by the Chief Executive Officer trade secrets and Confidential Information of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% subsidiary, parent or affiliate of the Company’s revenue , Employee agrees that for a period commencing on the date set forth in Section 1 of this Agreement and ending on the later of (i) one year from and after the date of the voluntary or involuntary termination of such employment for any or no reason (including, without limitation, a termination due to the fulfillment of the then-current term of this Agreement pursuant to Section 12(a) of this Agreement), and (ii) the third anniversary of the date (a “Competing Business”); of set forth in Section 1, provided, however, that Executive may in any either event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as shall have the option to extend such period of time by an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating additional one year period by electing to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is continue to pay Employee’s salary at the time of termination actively negotiating(including, and eventually concludes within twelve (12) months without limitation, a termination due to the fulfillment of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation then-current term of this Agreement pursuant to Section 11(b12(a) of this Agreement), for Executive to provide services to (or engage payable bi-monthly in activities involving): (A) a subsidiaryarrears, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide servicesshe will not, directly or indirectly, to such Competing Business and without the basis express written consent of the affiliation is solely due Company, except when and as requested to common ownership by a private equity do in and about the performing of her duties under this Agreement:
(a) own, manage, operate, control or similar investment fund; providedparticipate in the ownership, thatmanagement, operation or control of, or have any interest, financial or otherwise, in each caseor act as an officer, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10director, 11(apartner, member, principal, employee, agent, representative, consultant or independent contractor of, or in any way assist, any individual or entity in the conduct of any business that (1) trades, markets, sells or distributes propane gas (at retail, wholesale or otherwise), 11(cgathers, processes, stores, transports, trades, markets or distributes natural gas or liquefied by-products of natural gas or petroleum (at retail, wholesale or otherwise) or sells, services and 11(dinstalls parts, appliances or supplies related thereto, and (2) herein; provided, further, that Executive’s provision is located in or doing business within a fifty (50) mile radius of services to (or engagement in activities involvingi) any entity described current business location of the Company or any subsidiary, parent or affiliate of the Company or (ii) any future business location of the Company or any subsidiary, parent or affiliate of the Company if the Company or its subsidiary, parent or affiliate had commenced business operations at such future business location before Employee had engaged in clauses competing business operations within fifty (A50) miles of such future business location;
(b) divert or attempt to divert clients or customers (whether or not such persons have done business with the Company or any subsidiary, parent or affiliate of the Company once or more than once) or accounts of the Company or any subsidiary, parent or affiliate of the Company; or
(Bc) entice or induce or in any manner influence any person who is or shall be in the employ or service of the Company or any subsidiary, parent or affiliate of the Company to leave such employ or service for the purpose of engaging in a business that may be in competition with any business now or at any time during the period hereof engaged in by the Company or any subsidiary, parent or affiliate of the Company. Notwithstanding the foregoing provisions, Employee may (i) take action for, on behalf of, and at the direction of the Company pursuant to a written agreement with the Company or otherwise, and (ii) own up to five percent (5%) of this Section 11(b)(iiithe outstanding equity securities in any corporation or entity (including, but not limited to, units in a master limited partnership) shall be subject to that is listed upon a national stock exchange or actively traded in the prior approval of the Boardover-the-counter market.
Appears in 1 contract
Sources: Employment Agreement (Inergy L P)
Covenant Not to Compete. (i) The Employee acknowledges that during his employment with the Company and its affiliates are currently engaged he, at the expense of the Company, will be specially trained in the business of branded the Company, will establish favorable relations with the customers, clients and generic pharmaceuticalsaccounts of the Company or any subsidiary, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets parent or affiliate of the Company and its affiliates as well as the goodwill will have access to Intellectual Property, trade secrets and competitive business Confidential Information of the Company or any subsidiary, parent or affiliate of the Company. Therefore, in consideration of such training and its affiliatesrelations, Executive agrees, during the Employment Term and for a period in consideration of twelve (12) months after Executive’s cessation of his employment with the Company, that Executive will notand to further protect the Intellectual Property, unless otherwise agreed to by the Chief Executive Officer trade secrets and Confidential Information of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% subsidiary, parent or affiliate of the Company’s revenue , the Employee agrees that for a period commencing on the date hereof and ending on the later of (i) September 3, 2005, or (ii) the date of termination date (a “Competing Business”)of the Employee’s employment with the Company; provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as shall have the option to extend such period of time by an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating additional one year period by electing to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which continue to pay the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is Employee’s salary at the time of termination actively negotiating(including, and eventually concludes within twelve (12) months without limitation, a termination due to the fulfillment of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation term of this Agreement pursuant to Section 11(b12(a) hereof), for Executive to provide services to (or engage payable monthly in activities involving): (A) a subsidiaryarrears, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide serviceshe will not, directly or indirectly, to such Competing Business and without the basis express written consent of the affiliation is solely due Company, except when and as requested to common ownership by a private equity do in and about the performing of his duties under this Agreement:
(a) own, manage, operate, control or similar investment fund; providedparticipate in the ownership, thatmanagement, operation or control of, or have any interest, financial or otherwise, in each caseor act as an officer, Executive director, partner, member, principal, employee, agent, representative, consultant or independent contractor of, or in any way assist, any individual or entity in the conduct of any business that is engaged or may become engaged in any business competitive to any business now or at any time during the period hereof engaged in by the Company or any subsidiary, parent or affiliate of the Company (if the Company is then engaged in such business), including, but not limited to, any business that trades, markets or distributes propane gas (at retail, wholesale or otherwise), gathers, processes, stores, transports, trades, markets or distributes natural gas or liquefied by-products of natural gas or petroleum (at retail, wholesale or otherwise) or sells, services and installs parts, appliances or supplies related thereto;
(b) divert or attempt to divert clients or customers (whether or not such persons have done business with the Company or any subsidiary, parent or affiliate of the Company once or more than once) or accounts of the Company or any subsidiary, parent or affiliate of the Company; or
(c) entice or induce or in any manner influence any person who is or shall remain bound be in the employ or service of the Company or any subsidiary, parent or affiliate of the Company to leave such employ or service for the purpose of engaging in a business that may be in competition with any business now or at any time during the period hereof engaged in by all other postthe Company or any subsidiary, parent or affiliate of the Company. Notwithstanding the foregoing provisions, the Employee may own not more than five percent (5%) of the outstanding equity securities in any corporation or entity (including, but not limited to, units in a master limited partnership) that is listed upon a national stock exchange or actively traded in the over-employment obligations the-counter market. Notwithstanding the foregoing provisions, the Employee shall not, directly or indirectly, without the express written consent of the Company, except when and as requested to do in and about the performing of his duties under this Agreement including Executive’s obligations Agreement, engage in any actions under Sections 10, 11(asubsections (a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (Ab) or (Bc) of this Section 11(b)(iii) shall be subject above, at any time the Company is making payments to the prior approval of the BoardEmployee pursuant to this Agreement.
Appears in 1 contract
Sources: Employment Agreement (Inergy L P)
Covenant Not to Compete. (i) The Company and its affiliates are currently engaged in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. i. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve eighteen (1218) months after Executive’s cessation of employment with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party party, or any business business, whose products or and services compete in whole or in part with the products or and services (both on offered by the market Company and its affiliates in development) material to any country in which the Company or any its affiliates conduct or conducted business unit during the twelve-month period ending on the termination date that constitutes more than 5% of the cessation of Executive’s employment with the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (xw) own up to a 5% passive ownership interest in any public or private entity entity, (x) be employed by, or otherwise have material association with, any business whose products and services compete with the products and services of the Company and its affiliates so long as her employment or association is with a separately managed and operated division or affiliate of such business that does not compete with the Company and its affiliates, and (y) serve on the board of any Competing Business that competes business whose products and services compete with the business products and services of the Company and its affiliates as an immaterial part of its overall business, provided that Executive she recuses Executive herself fully and completely from all matters relating to such business.
(ii) . For purposes of this Section 11(b), any third party party, or any business, whose business whose products compete competes includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during at the Employment Term date of the cessation of Executive’s employment with the Company and any entity with which the Company or any is, as of its affiliates is at the time date of termination actively the cessation of Executive’s employment with the Company, to the knowledge of Executive (as reflected by the deliberations of the Company’s senior leadership team), negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial product licensing or acquisition agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Board.
Appears in 1 contract
Sources: Executive Employment Agreement (Endo International PLC)
Covenant Not to Compete. (i) The Employee hereby covenants and agrees with the Company and its affiliates are currently engaged in that during the business period which is 16 months after the termination of branded and generic pharmaceuticalshis employment, for any reason, with a focus on product developmentor without cause, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve (12) months after Executive’s cessation of employment with the Company, that Executive Employee will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment as expressly permitted hereunder, directly or indirectly manageindirectly:
(a) Operate, operatedevelop or own any interest other than the ownership of less than five percent of the equity securities of a publicly traded company, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete which has significant activities (viewed in whole or in part with the products or services (both on the market and in development) material relation to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and or its affiliates as an immaterial part of its overall businessaffiliates), provided that Executive recuses Executive fully and completely from all matters or has announced intentions to focus significant resources, relating to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with in which the Company or its affiliates has had is currently engaged and the business of building, owning, and managing a product(sbusiness consulting firm, or other similar entities (a "Business");
(b) licensing agreement during the Employment Term and any entity Compete with which the Company or any of its affiliates is at in the time operation or development of termination actively negotiatingany Business within North America (Canada, Mexico, and eventually concludes within twelve the United States of America);
(12c) months Be employed by any business which owns,manages, or operates a Business;
(d) Interfere with, solicit, disrupt or attempt to disrupt any past, present or prospective relationship, contractual or otherwise, between the Company or its affiliates, and any customer, client, supplier or employee of the Employment Term, a commercial agreement.Company or its affiliates; or
(iiie) Notwithstanding Solicit any employee of the foregoingCompany or its affiliates to leave his employment with the Company or its subsidiaries or affiliates, it as the case may be, or hire any such employee to work for a Business. The Employee shall not be a violation entitled to circumvent the provisions of this Section 11(b)Agreement by entering into a relationship with a Business as a consultant, for Executive to provide services to (or engage in activities involving): (A) a subsidiarydirector, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services toadviser, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicleotherwise, which is engaged in venture capital investmentshas the effect of competing with the Company, leveraged buy-outs, investments in public its affiliates or private companies, subsidiaries. This covenant on the part of the Employee shall be construed as an agreement independent of any other forms provision of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business this Agreement and the basis existence of any claim or cause of action by the affiliation is solely due to common ownership by a private equity or similar investment fund; providedEmployee against the Company, that, in each case, Executive shall remain bound by all other post-employment obligations under whether predicated on this Agreement including Executive’s obligations under Sections 10or otherwise, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services shall not constitute a defense to (or engagement in activities involving) any entity described in clauses (A) or (B) the enforcement by the Company of this Section 11(b)(iii) shall be subject to the prior approval of the Boardcovenant.
Appears in 1 contract
Sources: Non Competition Agreement (Commerce Development Corp LTD)
Covenant Not to Compete. (i) The Company and its affiliates are currently engaged in Dehaemers acknowledges that, during his employment with the business of branded and generic pharmaceuticalsCompany, with a focus on product developmenthe, clinical development, manufacturing, distribution and sales & marketing. To protect at the Confidential Information and other trade secrets expense of the Company and its affiliates as well as the goodwill Constituent Companies, will establish favorable relations with the customers to, and competitive business regulators of, the Company and the Constituent Companies and will receive and have access to the intellectual property and confidential information of the Company and its affiliatesthe Constituent Companies. Therefore, Executive agreesin consideration of these relationships, his employment with the Company, and to further protect the intellectual property and confidential information of the Company and the Constituent Companies, Dehaemers agrees that, during the Employment Term term of his employment by the Company and for a period of twelve (12) months one year from and after Executive’s cessation the voluntary or involuntary termination of employment with the Companyfor any or no reason, that Executive he will not, unless otherwise agreed to by directly or indirectly, without the Chief Executive Officer of Endo (following approval by the Chair express written consent of the Committee)Board of Managers of Holdings except when and as requested to do in and about the performance of his duties under this Agreement:
(a) own, anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, control or participate in the ownership, management, operation, operation or control of, be employed byor have any interest, associated withfinancial or otherwise, in or act as an officer, director, partner, principal, member, manager, shareholder, employee, agent, representative, consultant or independent contractor of, or in any manner connected withway assist any person or entity in the conduct of, lend Executive’s name toany business located in or doing business in the area where a Constituent Company is engaged or becomes engaged in any business competitive to any business engaged in by a Constituent Company during the term of his employment by the Company, or render services or advice including, but not limited to, any third party business that is engaged in the interstate transportation via pipeline of natural gas, petroleum or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”)petroleum byproducts; provided, however, that Executive notwithstanding the foregoing, Dehaemers may in any event (x) own up to a 5% passive ownership interest of the outstanding equity securities in any public corporation or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, is listed upon a national stock exchange or is a general partner in, or manages or participates actively traded in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buythe over-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other postthe-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) hereincounter market; provided, further, that Executive’s provision notwithstanding the foregoing, Dehaemers may own, directly or indirectly, an ownership interest in the general partner of services to Plains All American Pipeline, L.P. or their affiliates or successors; provided, further, that notwithstanding the foregoing, Dehaemers may place or invest money with one or more private equity firms (or engagement related investment funds or vehicles) that compete (or own or invest in companies that compete) with a Constituent Company so long as Dehaemers does not control or otherwise direct the activities involving) any entity described in clauses of the private equity firm (Aor related investment funds or vehicles) or control or otherwise direct the investment in the competing portfolio company; or
(Bb) entice, induce or in any manner influence any person who has an employee or independent contractor relationship with the Company or any Constituent Company and with whom Dehaemers had contact, directly or indirectly, during the term of this Section 11(b)(iii) shall be subject his employment to change or end such relationship for the prior approval purpose of engaging in a business in competition with any business engaged in by the BoardCompany or any Constituent Company during the term of his employment by the Company or hire any such person.
Appears in 1 contract
Sources: Employment Agreement (Tallgrass Energy Partners, LP)
Covenant Not to Compete. (i) The Executive acknowledges that he has established and will continue to establish favorable relations with the customers, clients and accounts of the Company and its affiliates are currently engaged in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the will have access to Confidential Information and other trade secrets of the Company Company. Therefore, in consideration of such relations and its affiliates as well as the goodwill to further protect Confidential Information and competitive business trade secrets, directly or indirectly, of the Company, the Executive agrees that, at all times during his employment by the Company and its affiliates, Executive agrees, during (including prior to the Employment Term Effective Date) and for a period of twelve (12) months after from the date of termination of the Executive’s cessation of employment with , the Company, that Executive has not and will not, unless otherwise agreed to by directly or indirectly, without the Chief Executive Officer of Endo (following approval by the Chair express written consent of the Committee)Company:
(i) within (A) the country, anywhere region of the country, state, and/or surrounding states in which the world whereExecutive’s office with the Company was located at the time of the Executive’s termination, or (B) fifty (50) miles of the location of the Executive’s office with the Company at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control oftermination, be engaged as or employed by, associated with, by or in any manner connected with, lend Executive’s name to, or render provide services or advice toto a Competing CRO (as defined below), any third party whether as owner, manager, officer, director, employee, consultant or any business whose otherwise (1) provide products or services compete in whole that are the same or in part with substantially similar to the products or and services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of provided by the Company and its affiliates or (2) perform duties and responsibilities that are the same or substantially related to the duties and responsibilities that the Executive performed for the Company at any time during the twenty-four (24) months prior to the Executive’s termination. “Competing CRO” means any entity (and its respective affiliates and successors) that competes with the Company and its affiliates in the provision of Customer Services (as an immaterial part defined below). “Customer Services” means any product or service provided by the Company and/or its affiliates to a third party for remuneration, including, but not limited to on a contract or outsourced basis, assisting pharmaceutical or biotechnology companies in developing and taking drug compounds, biologics, and drug delivery devices through appropriate regulatory approval processes, and/or recruiting, staffing and placement of its overall businesspersonnel in the areas of clinical research, provided that Executive recuses Executive fully medical writing, biostatistics and completely from all matters relating programming, in each case (A) during the period of the Executive’s employment with the Company prior to such business.
(ii) For purposes the date of this Section 11(b)Agreement, any third party through the end of the Agreement Term or any business whose products compete includes any entity with (B) about which the Executive has knowledge and that which the Executive had knowledge that the Company or and/or its affiliates will provide or has had a product(s) licensing agreement contracted to provide to third parties during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of following the Employment Agreement Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Board.;
Appears in 1 contract
Covenant Not to Compete. (i) The Company Executive acknowledges that she has obtained and its affiliates are currently engaged in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agreeswill continue to obtain, during the Employment Term and for a period of twelve (12) months after Executive’s cessation of her employment with the Company, knowledge of Confidential Information, customer relationships, know-how and goodwill that would, in the event Executive will notwere to become employed by or otherwise associated with a competitor, unless otherwise agreed cause irreparable harm to by the Chief Executive Officer of Endo (following approval by the Chair Company and its Affiliates. In consideration of the Committee), anywhere in the world where, at the time promises of Executive’s termination of employment, the Company developsherein, manufacturesand to protect these and other legitimate business interests, distributesExecutive agrees to the following independent and severable restrictions:
(a) During the Noncompete Period, markets Executive shall not directly or indirectly, as a director, officer, employee, shareholder, investor, partner, consultant or otherwise, provide any services in connection with the business of any person or entity who/which produces or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in developmenti) material to that compete with those produced, sold or offered for sale by the Company or any business unit on Affiliate as of the termination date that constitutes Termination Date; or (ii) which, during the twenty-four (24) months prior to the Termination Date, the Company or an Affiliate has taken internal or external steps to sell or produce or has materially considered, at an executive level, selling or producing (both (i) and (ii) hereafter referred to as “Restricted Products/Services”). The geographic scope (the “Territory”) of this covenant shall include the United States and any other country in which the Company or an Affiliates has direct operations, operates through a joint venture in which it has more than a nominal investment interest or has sold or engaged in marketing of Restricted Products/Services. Nothing in this Agreement shall prohibit Executive’s ownership of securities of corporation that is listed on a national securities exchange or traded in the national over-the counter market in an amount that does not exceed five percent (5% %) of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board outstanding shares of any Competing Business that competes with such corporation.
(b) During the Noncompete Period, the Executive shall not solicit any customer of the Company to whom/which is sold restricted Products/Services during the two (2) years preceding the Terminate Date anywhere in the territory for the purpose of selling Restricted Products/Services to such customer.
(c) Recognizing the specialized nature of the business of the Company and its affiliates as an immaterial part of its overall businessAffiliate, provided Executive acknowledges and agrees that Executive recuses Executive fully the duration, geographic scope and completely from all matters relating to such business.
(ii) For purposes activity restrictions of this Section 11(b), any third party or any business whose products covenants not to compete includes any entity with which the Company or its affiliates has had are reasonable and will not prevent him from earning a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreementliving.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Board.
Appears in 1 contract
Covenant Not to Compete. (i) The Company and its affiliates are currently engaged in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. i. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve eighteen (1218) months after Executive’s cessation of employment with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party party, or any business, whose business whose products or services compete in whole or in part competes with the products or services medical devices business of the Company and its affiliates during the twelve (both 12) month period ending on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the cessation of Executive’s employment with the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (xw) own up to a 5% passive ownership interest in any public or private entity entity, (x) be employed by, or otherwise have material association with, any business that competes with the medical devices business of the Company and its affiliates so long as his employment or association is with a separately managed and operated division or affiliate of such business that does not compete with the Company and its affiliates, and (y) serve on the board of any Competing Business business that competes with the medical devices business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive he recuses Executive himself fully and completely from all matters relating to such business.
(ii) . For purposes of this Section 11(b), any third party party, or any business business, whose products compete that competes includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during relating to the Employment Term medical devices business of the Company at the date of the cessation of Executive’s employment with the Company and any entity with which the Company or any is, as of its affiliates is at the time date of termination actively the cessation of Executive’s employment with the Company, to the knowledge of Executive (as reflected by the deliberations of the Company’s senior leadership team), negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (product licensing or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject acquisition agreement relating to the prior approval of the Boardmedical devices business.
Appears in 1 contract
Sources: Executive Employment Agreement (Endo International PLC)
Covenant Not to Compete. (i) The Company and its affiliates are currently engaged in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve eighteen (1218) months after Executive’s cessation of employment with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair Chairman of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive himself or herself fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c(c) and 11(d(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Board.
Appears in 1 contract
Sources: Executive Employment Agreement (Endo International PLC)
Covenant Not to Compete. In consideration of the provision of the Confidential Information during the term of this Agreement and the stock options, restricted stock and restricted stock unit awards and other compensation provided herein, Executive agrees that during the period of his employment by the Company and, if Executive’s employment is terminated hereunder for any reason prior to expiration of the Employment Term, during the twelve () month period following the Date of Termination:
(i) The Company and its affiliates are currently engaged in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve (12) months after Executive’s cessation of employment with the Company, that Executive will shall not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly indirectly, for himself or others, own, manage, operate, control, control or participate in the ownership, management, operation, operation or control ofof any business, be employed bywhether in corporate, associated withproprietorship or partnership form or otherwise, that is engaged, directly or indirectly, in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete the United States in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Restricted Business”); provided, however, that the restrictions contained herein shall not restrict the acquisition by Executive may in any event (x) own up to a 5of less than 2% passive ownership interest in any public or private entity and (y) serve on of the board outstanding capital stock of any Competing publicly traded company engaged in a Restricted Business or Executive from being employed by an entity in which the majority of such entity’s revenues on a consolidated basis determined in accordance with generally accepted accounting principles are from activities and businesses that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.do not constitute a Restricted Business; and
(ii) For purposes Executive shall not, directly or indirectly (other than in the performance of Executive’s duties under this Section 11(b)Agreement) (A) solicit any individual, who, at the time of time of such solicitation is an executive of the Company or its affiliates, to leave such employment or hire, employ or otherwise engage any third party or any business whose products compete includes any entity with which such individual (other than employees of the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company who respond to general advertisements for employment in newspapers or any other periodicals of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve general circulation (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(bincluding trade journals)), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval cause, induce or encourage any material actual or prospective client, customer, supplier, landlord, lessor or licensor of the BoardCompany or its affiliates to terminate or modify any such actual or prospective contractual relationship that exists on the Date of Termination.
Appears in 1 contract
Sources: Executive Employment Agreement (Independence Contract Drilling, Inc.)
Covenant Not to Compete. (i) The Company and its affiliates are currently engaged in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve twenty-four (1224) months after Executive’s cessation of employment with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee)Board, anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the 18 Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive himself fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b12(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b12(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 1011, 11(a12(a), 11(c(c) and 11(d(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii12(b)(iii) shall be subject to the prior approval of the Board.
Appears in 1 contract
Sources: Executive Employment Agreement (Endo International PLC)
Covenant Not to Compete. (i) The Company Although ▇▇▇▇▇ may pursue other professional and its affiliates are currently personal matters during the Consultancy Period, including employment or consulting relationships with other entities, such activities may not conflict with ▇▇▇▇▇’▇ obligations herein. Except with the prior written consent of Company, which consent shall not be unreasonably withheld, ▇▇▇▇▇ shall not, during the Consultancy Period on his own account or as an employee, consultant, partner, associate, agent, officer, manager, director or shareholder of any other person, firm, entity, partnership or corporation:
a. own, manage, operate, lease, franchise, finance, control, advise, conduct, engage or plan to engage in, be connected with, have any interest in, or assist any person or entity engaged in any business competitive to the business of branded Company, or pursue or usurp any business opportunity that ▇▇▇▇▇ has become aware of while an employee or consultant of Company, and generic pharmaceuticalswhich Company would have an interest in and ability to engage in,
b. solicit, contact, or initiate communications with customers or prospective customers of Company or any affiliate or subsidiary of Company as of the Retirement Date whose identities became known to ▇▇▇▇▇ while an employee or consultant of Company, in connection with the marketing, distribution, promotion, leasing, selling, merchandising, or servicing of a focus on product developmentor service which competes with the business, clinical developmentproducts, manufacturingor services of Company or any other related or affiliated entities of Company;
c. request, distribution advise, or entice any supplier, vendor or affiliate of Company, whose identities became known to ▇▇▇▇▇ while an employee or consultant of Company, to cease doing business or change the manner in which they do business with Company or any related or affiliated entities of Company, or to provide services or products to ▇▇▇▇▇ or a third party that will limit or restrict the ability of such suppliers, vendors or affiliates to provide such services or products to Company or any related or affiliated entities of Company, or d. employ, retain the services of, or offer to employ or retain the services of (whether as an employee, independent contractor, consultant or otherwise) any individual who provided services to Company or any affiliate or subsidiary of Company, as of the date ▇▇▇▇▇ ceases to be a consultant of Company, or request, advise, or entice any such individual to leave the employment of or association with Company or any related or affiliated entities of Company. ▇▇▇▇▇ acknowledges that the time period and sales & marketing. To the described scope of this Paragraph 5 are reasonable and necessary to protect the Confidential Information and other trade secrets legitimate business interests of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term .The parties agree that a breach of this Paragraph 5 by ▇▇▇▇▇ would cause significant and for a period of twelve (12) months after Executive’s cessation of employment with the irreparable injury to Company, and damages would be an inadequate remedy. Accordingly, ▇▇▇▇▇ agrees that Executive Company will notbe entitled, unless without waiving any additional rights or remedies otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, available at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, law or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectlyequity, to such Competing Business injunctive and the basis of the affiliation is solely due other equitable relief if ▇▇▇▇▇ breaches or intends or threatens to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under breach this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the BoardAgreement.
Appears in 1 contract
Covenant Not to Compete. (a) For the period beginning on the Closing Date (as defined in the Acquisition Agreement) and ending December 31, 2000 unless earlier terminated pursuant to the provisions hereof or in the Acquisition Agreements (the "Non-Compete Period"), the Executive hereby covenants and agrees with the Company that, unless acting as an officer, employee or consultant to the Company, or an affiliate of the Company, or with the Company's prior written consent, such Executive will not anywhere (i) The Company and its affiliates are currently engaged in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve (12) months after Executive’s cessation of employment with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereundercompete, directly or indirectly manageindirectly, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates in the business or activities in which the Company is at engaged during his employment with the time Company (the "Company's Business") in any state in which the Company is then doing business; (ii) directly or indirectly, on his own behalf or in behalf of termination actively negotiatingor as an employee or agent of any other person or entity, and eventually concludes within twelve contact or approach any person or business, wherever located, for the purpose of competing with the Company in the Company's Business; (12iii) months participate as a director, officer, consultant, or partner of, or have any other direct or indirect financial interest in, any enterprise which engages in the Company's Business; provided, however, that the Executive may own up to two (2%) percent of the Employment Termcapital stock of any corporation except that Executive may oun up to two (2%) of complete required to file reports pursuant to the Securities Exchange Act of 1934 that is in competition with the Company's Business; or (iv) participate as an employee, a commercial agreementagent, representative or consultant in, or render any services to, any enterprise in which he has responsibilities for activities which compete, directly or indirectly, with the Company's Business.
(iiib) For a period of one year after the Non Compete Period Executive will not (i), directly or indirectly, hire, solicit or encourage to leave the employment of Complete or any of its affiliates, any employee of Complete or any of its affiliates who work in or perform services for the Company's Business, including any person who has left the employment of Complete or any of its affiliates during the six months preceding the end of the Non Compete Period, or (ii) solicit business from or provide billing and collection services to any entity that was a customer of the Company during the Non Compete Period.
(c) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regardingif during the Employment Term, the Competing Business; (B) any entity that isExecutive is terminated by the Company other than for Cause, or is a general partner in, or manages or participates terminated by the Executive for Good Reason the covenants set forth in managing, a private or public fund (including a hedge fundthis Sections 5(a) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (Cb) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and 7 and the basis covenants set forth in Sections 7.03 and 7.05 of the affiliation is solely due to common ownership by a private equity or similar investment fundAcquisition Agreements shall from and after the date of such termination be of no further force and effect; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, furtherhowever, that Executive’s provision the Company shall still have rights against the Executive for any violation of services such covenants prior to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Boardsuch date.
Appears in 1 contract
Covenant Not to Compete. (i) The Company and its affiliates are currently engaged in Compliance with the business provisions of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets this Section 13 is an express condition of the Company Executive’s right to receive payments, vesting, and its affiliates benefits hereunder. The Executive acknowledges and recognizes the confidential information and records provided by the Company, the benefits provided hereunder, and the professional training and experience he will receive from and the contacts he will be provided by the Company, as well as the goodwill and highly competitive business nature of the Company Company’s business, and its affiliatesin consideration of all of the above, Executive agrees, agrees that during the Employment Term period beginning on the effective date of the Executive’s termination of employment with the Company (the “Date of Termination”) and for a period of ending twelve (12) months after Executivethereafter (the “Covered Time”), the Executive will not directly or indirectly, individually or as an employee, partner, officer, director, or stockholder (other than as the holder of less than 2% of the outstanding stock of a publicly-traded corporation) (a) solicit from or perform for any client of the Company any services which are directly competitive with any of the services which the Company performs or solicits or (b) sell, license or lease any products or services to any client of the Company which are directly competitive with any products or services which the Company sells, licenses, or leases. Notwithstanding the foregoing, Executive may accept employment as a full time employee with a client or (y) a company which provides products or services that are directly competitive only with the Company’s cessation Carretek LLC subsidiary, upon termination of employment with the Company. The Company will furnish to Executive, that Executive will notpromptly after termination, unless otherwise agreed to by a list of clients as if the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time date of Executive’s termination for purposes of employmentestablishing the definition of “client of the Company” under this Section 13.1
(ii) The Executive agrees that during the term of this Agreement (including any extensions thereof) and for the twenty-four (24) months thereafter, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, he shall not (i) directly or indirectly managesolicit or attempt to solicit any of the employees, operateagents, controlconsultants, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to representatives of the Company or any business unit on the termination date that constitutes more than 5% affiliates of the Company’s revenue on Company to leave any of such entities; or (ii) directly or indirectly solicit or attempt to solicit any of the termination date employees, agents, consultants or representatives of the Company or affiliates of the Company to become employees, agents, representatives or consultants of any other person or entity.
(a “Competing Business”); provided, however, iii) The Executive understands that Executive may in any event (xthe provisions of Sections 13(a)(i) own up to a 5% passive ownership interest in any public or private entity and (yii) serve on the board of any Competing Business that competes with may limit his ability to earn a livelihood in a business similar to the business of the Company but nevertheless agrees and its affiliates as an immaterial part of its overall businesshereby acknowledges that the restrictions and limitations thereof are reasonable in scope, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiatingarea, and eventually concludes within twelve (12) months duration, are reasonably necessary to protect the goodwill and business interests of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactionsCompany, and that might make an investment which Executive could not make directly, the consideration provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including is sufficient to justify the restrictions contained in such provisions. Accordingly, in consideration thereof and in light of the Executive’s obligations under Sections 10education, 11(a)skills and abilities, 11(c) the Executive agrees that he will not assert that, and 11(d) herein; providedit should not be considered that, furthersuch provisions are either unreasonable in scope, that Executive’s provision of services to (area, or engagement in activities involving) any entity described in clauses (A) duration, or (B) of this Section 11(b)(iii) shall will prevent him from earning a living, or otherwise are void, voidable, or unenforceable or should be subject to the prior approval of the Boardvoided or held unenforceable.
Appears in 1 contract
Sources: Senior Executive Employment Agreement (Carreker Corp)
Covenant Not to Compete. (i) The Executive acknowledges that she has established and will continue to establish favorable relations with the customers, clients and accounts of the Company and its affiliates are currently engaged in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the will have access to Confidential Information and other trade secrets of the Company Company. Therefore, in consideration of such relations and its affiliates as well as the goodwill to further protect Confidential Information and competitive business trade secrets, directly or indirectly, of the Company, the Executive agrees that, at all times during her employment by the Company and its affiliates, Executive agrees, during (including prior to the Employment Term Effective Date) and for a period of twelve (12) months after from the date of termination of the Executive’s cessation of employment with , the Company, that Executive has not and will not, unless otherwise agreed to by directly or indirectly, without the Chief Executive Officer of Endo (following approval by the Chair express written consent of the Committee)Company:
(i) within (A) the country, anywhere region of the country, state, and/or surrounding states in which the world whereExecutive’s office with the Company was located at the time of the Executive’s termination, or (B) fifty miles of the location of the Executive’s office with the Company at the time of Executive’s termination of employmenttermination, be engaged or employed by a Competing CRO, whether as owner, manager, officer, director, employee, consultant or otherwise to perform duties and responsibilities that are the same or substantially related to the duties and responsibilities that the Executive performed for the Company develops, manufactures, distributes, markets or sells its products, except in at any time during the course of twenty-four (24) months prior to the Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a termination. “Competing Business”); provided, however, that Executive may in CRO” means any event entity (xand its respective affiliates and successors) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business Company in the provision of Customer Services. “Customer Services” means any product or service provided by the Company to a third party for remuneration, including, but not limited to on a contract or outsourced basis, assisting pharmaceutical or biotechnology companies in developing and taking drug compounds, biologics, and drug delivery devices through appropriate regulatory approval processes, and/or recruiting, staffing and placement of personnel in the areas of clinical research, medical writing, biostatistics and programming, in each case (A) during the period of the Executive’s employment with the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating prior to such business.
(ii) For purposes the date of this Section 11(b)Agreement, any third party through the end of the Agreement Term or any business whose products compete includes any entity with (B) about which the Executive has knowledge and that which the Executive had knowledge that the Company will provide or its affiliates has had a product(s) licensing agreement contracted to provide to third parties during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of following the Employment Agreement Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Board.;
Appears in 1 contract
Covenant Not to Compete. (i) The parties acknowledge that the Company is placing Executive in a position of great trust, responsibility and its affiliates are currently engaged authority by virtue of this Agreement, and as a result, that Executive will be exposed to the Company’s most sensitive commercial and proprietary information. The parties also recognize and acknowledge that by virtue of his position, Executive will come to be identified closely with the Company in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of industries in which the Company operates. Executive further acknowledges that the Company’s interests in protecting its confidential information and its affiliates as well as the goodwill relationships are both significant and competitive business of the Company and its affiliatesdifficult to quantify economically. Therefore, Executive agrees, agrees that during the Employment Term of this Agreement and for a period of twelve (12) months after Executive’s cessation from the termination of employment with this Agreement, Executive shall not, without the prior written consent of the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, either directly or indirectly indirectly, for himself or on behalf of or in conjunction with any other Person (i) own, manage, operate, control, be employed by, participate in, render services to, or participate be associated in any manner with the ownership, management, operation, operation or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with similar to the products or services (both on the market and in development) material to type of business conducted by the Company or any business unit on the termination date that constitutes more than 5% of its Affiliates (which are described in Recitals, Section A above) within any of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may geographic territories in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiatingAffiliates conducts business, and eventually concludes within twelve provided, however, that nothing contained herein shall preclude Executive from purchasing or owning less than two percent (122%) months of the Employment Termstock or other securities of any company with securities traded on a nationally recognized securities exchange; (ii) solicit business of the same or similar type being carried on by the Company or any of its Affiliates from any Person or entity known by Executive to be a customer of the Company or any of its Affiliates, a commercial agreement.
whether or not Executive had personal contact with such Person or entity during and by reason of Executive’s employment with the Company, or (iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (solicit any employee or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis contractor of the affiliation is solely due Company to common ownership by terminate that relationship or endeavor or attempt in any way to interfere with or induce a private equity breach of any contractual relationship that the Company or similar investment fund; providedany of its Affiliates may have with any employee, thatcustomer, in each casecontractor, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10supplier, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (representative or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Boarddistributor.
Appears in 1 contract
Sources: Executive Employment Agreement (Star Scientific Inc)
Covenant Not to Compete. (i) The Company and its affiliates are currently engaged in Except as contemplated by the business of branded and generic pharmaceuticalsTransaction Agreements, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve five (125) months years from and after Executive’s cessation of employment with the Company, that Executive will not, unless otherwise agreed Closing Date (but as to by clause (iv) at any time after the Chief Executive Officer of Endo (following approval by the Chair of the CommitteeClosing Date), anywhere in any state in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party United States or any business whose products or services compete province in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); providedCanada, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it Sellers shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide servicesnot, directly or indirectly, whether as an individual on Sellers' account, or as a member, shareholder, partner, joint venturer, director, officer, employee, consultant, creditor and/or agent, of any person, firm or organization or otherwise, directly or indirectly:
(i) engage in, carry on or have any interest in a business that performs (i) Relining and Repining Services; (ii) development, marketing and licensing of Relining and Repiping Services and processes for Relining and Repiping Services and (iii) leasing or sale of products and services for use in Relining and Repiping;
(ii) enter into, engage in, or be employed by or consult with any Person that competes with Purchasers, Sellers, or any of their Affiliates on matters in any way similar or related to the Business as carried on by Sellers, the Principals, or any of their Affiliates on the date of this Agreement;
(iii) employ, assist in employing, or otherwise associate in business with any present, former, or future Employee of Purchasers or Sellers, or any of their Affiliates; or
(iv) induce any person who is a present or future employee, officer, agent, affiliate, customer, or supplier of Purchasers, Sellers or any of their Affiliates, to terminate their relationship with or refuse to do business with Purchasers or any of their Affiliates, as the case may be, on as favorable terms as previously done with Purchasers, Sellers, Principals, or any of their Affiliates, as the case may be. The parties acknowledge and agree that the restrictions contained in this SECTION 7.1 do not restrict, and will not be construed to restrict, Sellers' current involvement and/or business relationship with XPert, but only to the extent such Competing Business and involvement or business relationship relates to the basis business conducted by XPert as of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Boarddate hereof.
Appears in 1 contract
Sources: Asset Purchase Agreement (Cohesant Technologies Inc)
Covenant Not to Compete. (i) The Company and its affiliates are currently engaged in Dehaemers acknowledges that, during his employment with the business of branded and generic pharmaceuticalsCompany, with a focus on product developmenthe, clinical development, manufacturing, distribution and sales & marketing. To protect at the Confidential Information and other trade secrets expense of the Company and its affiliates as well as the goodwill Constituent Companies, will establish favorable relations with the customers to, and competitive business regulators of, the Company and the Constituent Companies and will receive and have access to the intellectual property and confidential information of the Company and its affiliatesthe Constituent Companies. Therefore, Executive agreesin consideration of these relationships, his employment with the Company, and to further protect the intellectual property and confidential information of the Company and the Constituent Companies, Dehaemers agrees that, during the Employment Term term of his employment by the Company and for a period of twelve (12) months one year from and after Executive’s cessation the voluntary or involuntary termination of employment with the Companyfor any or no reason, that Executive he will not, unless otherwise agreed to by directly or indirectly, without the Chief Executive Officer of Endo (following approval by the Chair express written consent of the Committee)Board of Managers of GP Holdings except when and as requested to do in and about the performance of his duties under this Agreement:
(a) own, anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, control or participate in the ownership, management, operation, operation or control of, be employed byor have any interest, associated withfinancial or otherwise, in or act as an officer, director, partner, principal, member, manager, shareholder, employee, agent, representative, consultant or independent contractor of, or in any manner connected withway assist any person or entity in the conduct of, lend Executive’s name toany business located in or doing business in the area where a Constituent Company is engaged or becomes engaged in any business competitive to any business engaged in by a Constituent Company during the term of his employment by the Company, or render services or advice including, but not limited to, any third party business that is engaged in the interstate transportation via pipeline of natural gas, petroleum or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”)petroleum byproducts; provided, however, that Executive notwithstanding the foregoing, Dehaemers may in any event (x) own up to a 5% passive ownership interest of the outstanding equity securities in any public corporation or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, is listed upon a national stock exchange or is a general partner in, or manages or participates actively traded in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buythe over-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other postthe-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) hereincounter market; provided, further, that Executive’s provision notwithstanding the foregoing, Dehaemers may own, directly or indirectly, an ownership interest in the general partner of services to Plains All American Pipeline, L.P. or their affiliates or successors; provided, further, that notwithstanding the foregoing, Dehaemers may place or invest money with one or more private equity firms (or engagement related investment funds or vehicles) that compete (or own or invest in companies that compete) with a Constituent Company so long as Dehaemers does not control or otherwise direct the activities involving) any entity described in clauses of the private equity firm (Aor related investment funds or vehicles) or control or otherwise direct the investment in the competing portfolio company; or
(Bb) entice, induce or in any manner influence any person who has an employee or independent contractor relationship with the Company or any Constituent Company and with whom Dehaemers had contact, directly or indirectly, during the term of this Section 11(b)(iii) shall be subject his employment to change or end such relationship for the prior approval purpose of engaging in a business in competition with any business engaged in by the BoardCompany or any Constituent Company during the term of his employment by the Company or hire any such person.
Appears in 1 contract
Sources: Employment Agreement (Tallgrass Energy Partners, LP)
Covenant Not to Compete. (i) The Company and its affiliates are currently engaged in From the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve (12) months after Executive’s cessation of employment with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course commencement of Executive’s employment hereunderwith the Company until June 6, directly or indirectly manage2007 (the “Restricted Period”), operate, control, or participate Executive shall not: (A) engage in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or (1) any business whose products or services compete in whole or in part with that includes the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board transportation by bulk motor freight of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b), any third party goods or any business whose products compete includes any entity with which transported by the Company or its affiliates has had a product(sas of the Effective Date and the Termination Date, (2) licensing agreement during the Employment Term and bulk trucking business, (3) freight brokerage related to either of the foregoing, (4) the bulk tank cleaning business, or (5) any entity with other business in which the Company or any of its affiliates is at are engaged as of the time Effective Date or the Termination Date (collectively, the “Company Business”) within the United States; (B) compete or participate as agent, employee, consultant, advisor, representative or otherwise in any enterprise which has any material operations engaged in the Company Business within the United States; or (C) compete or participate as a stockholder, partner, member or joint venturer, or have any direct or indirect financial interest, in any enterprise which has any material operations engaged in the Company Business within the United States, except that Executive shall be allowed to invest his assets in the securities of termination actively negotiatingpublic companies engaged in the Company Business if such holdings are passive investments which do not involve Executive’s holding with respect to any such entity the position of officer, director, employee, consultant or general partner, or owning directly or indirectly two percent (2%) or more of the stock, whether voting or not, of any such entity, and eventually concludes which do not involve Executive becoming a secured or unsecured creditor of any such entity;
(ii) During the Restricted Period, Executive agrees to refrain from interfering with the employment relationship between the Company, its subsidiaries and its affiliates and their respective employees, unions, members of the Company’s Affiliate Program or other independent owner/operators by directly or indirectly soliciting or making any other contact with any of such individuals to participate in independent business ventures. Executive agrees to refrain from directly or indirectly soliciting business from or making any other contact with any client of the Company or any of its subsidiaries or affiliates, or prospective client that has been solicited by the Company or any of its subsidiaries or affiliates within twelve (12) three months of the Employment Term, a commercial agreement.Termination Date in each case with respect to matters the constitute Company Business; and
(iii) Notwithstanding In the foregoing, it shall not be a violation event of any breach of the restrictive covenants set forth in this Section 11(b6(a), for Executive the Company shall have the right, in its sole discretion, and in addition to provide services its right of enforcement under Section 6 hereof and any other right of enforcement or recovery available to (the Company at law or engage in activities involving): equity or under this Agreement, to (A) a subsidiarysuspend or cancel Executive’s right to exercise Executive’s outstanding stock options, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) suspend or cancel Executive’s pending right to receive an issuance of shares in settlement of any entity that isexercise of Executive’s stock options, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and and/or (C) an affiliate either (1) cancel all shares issued upon exercise of a Competing Business if Executive’s stock options (with repayment to Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due full purchase price paid for such shares) or (2) require Executive to common ownership pay to the Company in cash an amount equal to the gain realized by a private equity or similar investment fundExecutive upon exercise of any Executive’s stock options; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, furtherhowever, that Executive’s provision of services the foregoing shall not apply to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject stock options exercised by Executive more than six months prior to the prior approval of the BoardTermination Date. The Company shall provide at least twenty days advance notice and opportunity to cure before exercising this right.
Appears in 1 contract
Covenant Not to Compete. (a) For the period beginning on the Closing Date (as defined in the Acquisition Agreements) and ending December 31, 2000 unless earlier terminated pursuant to the provisions hereof or in the Acquisition Agreements (the "Non-Compete Period"), the Executive hereby covenants and agrees with the Company that, unless acting as an officer, employee or consultant to the Company, or an affiliate of the Company, or with the Company's prior written consent, such Executive will not anywhere (i) The Company and its affiliates are currently engaged in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve (12) months after Executive’s cessation of employment with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereundercompete, directly or indirectly manageindirectly, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates in the business or activities in which the Company is at engaged during his employment with the time Company (the "Company's Business") in any state which the Company is then doing business; (ii) directly or indirectly, on his own behalf or in behalf of termination actively negotiatingor as an employee or agent of any other person or entity, and eventually concludes within twelve contact or approach any person or business, wherever located, for the purpose of competing with the Company in the Company's Business; (12iii) months participate as a director, officer, consultant, or partner of, or have any other direct or indirect financial interest in, any enterprise which engages in the Company's Business; provided, however, that the Executive may own up to two (2%) percent of the Employment Termcapital stock of any corporation (except that Excutive may own more than 2% of complete) required to file reports pursuant to the Securities Exchange Act of 1934 that is in competition with the Company's Business; or (iv) participate as an employee, a commercial agreementagent, representative or consultant in, or render any services to, any enterprise in which he has responsibilities for activities which compete, directly or indirectly, with the Company's Business.
(iiib) For a period of one year after the Non Compete Period Executive will not (i), directly or indirectly, hire, solicit or encourage to leave the employment of Complete or any of its affiliates, any employee of Complete or any of its affiliates who work in or perform services for the Company's Business, including any person who has left the employment of Complete or any of its affiliates during the six months preceding the end of the Non Compete Period, or (ii) solicit business from or provide billing and collection services to any entity that was a customer of the Company during the Non Compete Period.
(c) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b)if during the Employment Term, the Executive is terminated by the Company other than for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services toCause, or have any responsibilities regarding, if this Agreement is terminated by the Competing Business; Executive for Good Reason the covenants set forth in this Sections 5 (Ba) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (Cb) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and 7 and the basis covenants set forth in Sections 7.03 and 7.05 each of of the affiliation is solely due to common ownership by a private equity or similar investment fundAcquisition Agreement shall from and after the date of such termination be of no further force and effect; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, furtherhowever, that Executive’s provision the Company shall still have rights against the Executive for any violation of services such covenants prior to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Boardsuch date.
Appears in 1 contract
Covenant Not to Compete. (i) The Executive acknowledges that he has established and will continue to establish favorable relations with the customers, clients and accounts of the Company and its affiliates are currently engaged in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other will have access to trade secrets of the Company and its affiliates as well as the goodwill and competitive business Company. Therefore, in consideration of such relations to further protect trade secrets, directly or indirectly, of the Company and its affiliatesCompany, the Executive agrees, agrees that at all times during the Employment Term and for a period of twelve (12) months after Executive’s cessation of his employment with the CompanyCompany through the one (1) year anniversary of the date of termination of the Executive’s employment, that the Executive will not, unless otherwise agreed to by directly or indirectly, without the Chief Executive Officer of Endo (following approval by the Chair express written consent of the Committee)Board:
(i) own or have any interest in or act as an officer, anywhere in the world wheredirector, at the time of Executive’s termination of employmentpartner, the Company developsprincipal, manufacturesemployee, distributesagent, markets representative, consultant or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control independent contractor of, be employed by, associated with, or in any manner connected withway assist in, lend Executive’s name toany business which is engaged directly in any business competitive with the Company in those markets and/or products lines in which the Company competes within 150 miles of the address of the principal place of business of the parent Company or any or its wholly-owned operating subsidiaries at any time during the Term, or become associated with or render services to any person, firm, corporation or advice to, any third party or any business whose products or services compete in whole or in part with the products or services other entity so engaged (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing BusinessCompetitive Businesses”); provided, however, that the Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on without the board of any Competing Business that competes with the business express written consent of the Company not more than four and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
nine-tenths percent (ii4.9%) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, issued and outstanding securities of any company or enterprise whose securities are listed on a commercial agreement.
(iii) Notwithstanding national securities exchange or actively traded in the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, over the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) hereincounter market; provided, further, however that once the Term has terminated the Executive may work for, have an interest in, render services to or assist any business or Competitive Business without violating this Section 8.2;
(ii) solicit clients, customers or accounts of the Company for, on behalf of or otherwise related to any such Competitive Businesses;
(iii) solicit any person who is or shall be in the employ or service of the Company to leave such employ or service for employment with or service to the Executive, an affiliate of the Executive or any third party. In the event that the Company shall merge with, be acquired by, or generally be absorbed into any other business or institution, the Executive’s provision continued performance on behalf of services such other business or institution shall not constitute a violation of Executive’s duties to (the Company under Article 8 or engagement in activities involving) any entity described in clauses (A) or (B) other provisions of this Section 11(b)(iii) Agreement. Notwithstanding the foregoing, if any court determines that the covenant not to compete, or any part thereof, is unenforceable because of the duration of such provision or the geographic area or scope covered thereby, such court shall have the power to reduce the duration, area or scope of such provision to the extent necessary to make the provision enforceable and, in its reduced form, such provision shall then be enforceable and shall be subject enforced. The Company shall pay and be solely responsible for any attorney’s fees, expenses, costs and court or arbitration costs incurred by the Executive in any matter or dispute between the Executive and the Company which pertains to this Article 8 if the prior approval of Executive prevails in the Boardcontest in whole or in part.
Appears in 1 contract
Sources: Employment Agreement (Acacia Diversified Holdings, Inc.)
Covenant Not to Compete. (i) The Company and its affiliates are currently engaged in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve (12) months after Executive’s 's cessation of employment with the Company, other than a cessation of employment occurring after a Change in Control (as defined in Executive’s 2020 Performance Award Agreement under the Amended and Restated 2015 Stock Incentive Plan), that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair Chairman of the Committee), anywhere in the world where, at the time of Executive’s 's termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s 's employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s 's name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s 's revenue on the termination date (a “"Competing Business”"); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive himself fully and completely from all matters relating to such business; and provided, further, that the foregoing shall not preclude or limit Executive's activities with respect to the practice of law. Executive and the Company acknowledge and agree that, solely with respect to the practice of law, the foregoing noncompetition obligations shall not apply and this Agreement shall be construed in all respects consistent with Rule 5.6 of the Pennsylvania Rules of Professional Conduct and Rule 5.6 of the Delaware Lawyers' Rules of Professional Conduct.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement Agreement, including Executive’s 's obligations under Sections 10, 11(a), 11(c(c) and 11(d(d) herein; provided, further, that Executive’s 's provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Board.
Appears in 1 contract
Sources: Executive Employment Agreement (Endo International PLC)
Covenant Not to Compete. (i) The Executive agrees that, through his position as Chief Executive Officer and President of the Company and its affiliates are currently engaged the various other positions with the Company that he has held from time to time, the Executive has established and will continue to establish valuable and recognized expertise in narrow band wireless communications and in the business development and marketing of branded software and generic pharmaceuticalsrelated equipment for mission-critical communications, with and has had and will have access to the Company’s Confidential Information. The Executive hereby enters into a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect covenant restricting the Confidential Information and other trade secrets Executive from soliciting employees of the Company and its affiliates as well as the goodwill subsidiaries and competitive business of from competing against the Company upon the terms and its affiliates, Executive agrees, during conditions described below:
(a) During the Employment Term Executive’s employment and for a period of twelve two (122) months years after Executive’s cessation the Date of employment Termination (as defined in Section 7(d) below) for any reason, the Executive shall not:
(i) induce or attempt to induce any person who, as of the Date of the Termination, is an employee of the Company or of any of its subsidiaries to terminate his or her employment, or refrain from renewing or extending such employment, with the CompanyCompany or such subsidiary in order to become an director, that Executive will notofficer, unless otherwise agreed employee, consultant or independent contractor to by or for any other individual or entity other than the Chief Executive Officer of Endo Company or its subsidiaries;
(following approval by ii) in any state or other jurisdiction in the Chair United States in which, as of the Committee), anywhere in the world where, at the time Date of Executive’s termination of employmentTermination, the Company developsis engaged in Business (as defined herein) or has developed plans to engage in Business: (1) engage or be a part of any Person (including as a director, manufacturesconsultant, distributesemployee, markets agent, or sells its productsrepresentative), except or have any direct or indirect financial interest (whether as a partner, shareholder, or owner (other than ownership of 1% or less of the outstanding stock of any corporation listed on a national stock exchange)) in any Person that engages in the course business of owning and operating narrowband paging and wireless messaging networks, voice mail services, data transmitting services and/or mission critical communications software (the “Business”); or (2) participate as an employee or officer in any enterprise in which the Executive’s responsibility relates to the Business;
(iii) directly or indirectly own an equity interest in any Competitor (other than ownership of 1% or less of the outstanding stock of any corporation listed on a national stock exchange). The term “Competitor” means any Person a portion of the business of which (and during any period in which it intends to enter into business activities that would be) is materially competitive in any way with the Business of the Company; or (iv) solicit or cause or encourage any person to solicit any Business in competition with the Company or a subsidiary from any Person who as of the Date of Termination is, or at any time during the 1-year period prior to the Date of Termination was, a client of the Company or of a subsidiary during the Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Board.
Appears in 1 contract
Sources: Executive Employment Agreement (Spok Holdings, Inc)
Covenant Not to Compete. (i) The Company and its affiliates are currently engaged in During the business term of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term this Agreement and for a period of twelve (12) months after one year following the Termination Date of Executive’s cessation employment, Executive shall not, without the express written consent of employment with the Company, that Executive will notdirectly or indirectly: (I) engage, unless otherwise agreed to by anywhere within the Chief Executive Officer of Endo (following approval by geographical areas in which the Chair Company is conducting business operations or providing services as of the Committee), anywhere in the world where, at the time date of Executive’s termination of employment, in the Company developstissue engineering business (the use of implantable absorbable materials, manufactureswith or without a bioactive component, distributesto attempt to elicit a specific cellular response in order to regenerate tissue or to impede the growth of tissue or migration of cells) (the “Tissue Engineering Business”), markets neurosurgery business (the use of surgical instruments, implants, monitoring products or sells its disposable products to treat the brain or central nervous system) (“Neurosurgery Business”), instrument business (general surgical handheld instruments used for general purposes in surgical procedures) (“Instrument Business”), reconstruction business (bone fixation devices for foot and ankle reconstruction procedures) (“Reconstruction Business”) or in any other line of business the revenues of which constituted at least 50% of the Company’s revenues during the six (6) month period prior to the Termination Date (together with the Tissue Engineering Business, Neurosurgery Business, Instrument Business and Reconstruction Business, the “Business”); (II) be or become a stockholder, partner, owner, officer, director or employee or agent of, or a consultant to or give financial or other assistance to, any person or entity engaged in the Business; (III) seek in competition with the Business to procure orders from or do business with any customer of the Company; (IV) solicit, or contact with a view to the engagement or employment by any person or entity of, any person who is an employee of the Company; (V) seek to contract with or engage (in such a way as to adversely affect or interfere with the business of the Company) any person or entity who has been contracted with or engaged to manufacture, assemble, supply or deliver products, except goods, materials or services to the Company; or (VI) engage in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in any effort or act to induce any of the managementcustomers, operationassociates, consultants, or control of, employees of the Company to take any action which might be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material disadvantageous to the Company or any business unit on Company; provided, however, that nothing herein shall prohibit Executive and his affiliates from owning, as passive investors, in the termination date that constitutes aggregate not more than 5% of the Company’s revenue on the termination date (a “Competing Business”); outstanding publicly traded stock of any corporation so engaged and provided, further, however, that Executive may nothing set forth in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b)16(a) shall prohibit Executive from becoming an employee or agent of, or consultant to, any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates that is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing the Business and so long as Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in any activities involved with, or have in the Business in any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Boardcapacity for said entity.
Appears in 1 contract
Sources: Employment Agreement (Integra Lifesciences Holdings Corp)
Covenant Not to Compete. (i) The Executive agrees that, through his position as Chief Executive Officer and President of the Company and its affiliates are currently engaged the various other positions with the Company that he has held from time to time, the Executive has established and will continue to establish valuable and recognized expertise in narrow band wireless communications and in the business development and marketing of branded software and generic pharmaceuticalsrelated equipment for mission-critical communications, with and has had and will have access to the Company’s Confidential Information. The Executive hereby enters into a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect covenant restricting the Confidential Information and other trade secrets Executive from soliciting employees of the Company and its affiliates as well as the goodwill subsidiaries and competitive business of from competing against the Company upon the terms and its affiliates, Executive agrees, during conditions described below:
(a) During the Employment Term Executive’s employment and for a period of twelve two (122) months years after Executive’s cessation the Date of employment Termination (as defined in Section 7(d) below) for any reason, the Executive shall not:
(i) induce or attempt to induce any person who, as of the Date of the Termination, is an employee of the Company or of any of its subsidiaries to terminate his or her employment, or refrain from renewing or extending such employment, with the CompanyCompany or such subsidiary in order to become an director, that Executive will notofficer, unless otherwise agreed employee, consultant or independent contractor to by or for any other individual or entity other than the Chief Executive Officer of Endo Company or its subsidiaries;
(following approval by ii) in any state or other jurisdiction in the Chair United States in which, as of the Committee), anywhere in the world where, at the time Date of Executive’s termination of employmentTermination, the Company developsis engaged in Business (as defined herein) or has developed plans to engage in Business: (1) engage or be a part of any Person (including as a director, manufacturesconsultant, distributesemployee, markets agent, or sells its productsrepresentative), except or have any direct or indirect financial interest (whether as a partner, shareholder, or owner (other than ownership of 1% or less of the outstanding stock of any corporation listed on a national stock exchange)) in any Person that engages in the course business of Executive’s employment hereunderowning and operating narrowband paging and wireless messaging networks, directly or indirectly managevoice mail services, operate, control, or participate in data transmitting services and/or mission critical communications software (the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may or (2) participate as an employee or officer in any event (x) own up to a 5% passive ownership interest enterprise in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during Executive’s responsibility relates to the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.Business;
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis indirectly own an equity interest in any Competitor (other than ownership of 1% or less of the affiliation is solely due to common ownership by outstanding stock of any corporation listed on a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(anational stock exchange), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) . The term “Competitor” means any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval Person a portion of the Board.business of which (and during any period in which it intends to enter into business activities that would be) is materially competitive in any way with the Business of the Company; or
Appears in 1 contract
Sources: Executive Employment Agreement (Spok Holdings, Inc)
Covenant Not to Compete. (i) The Company and its affiliates are currently engaged in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve (12) months after Executive’s cessation of employment with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair Chairman of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive himself fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c(c) and 11(d(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Board.
Appears in 1 contract
Sources: Executive Employment Agreement (Endo International PLC)
Covenant Not to Compete. The Executive agrees that during her employment by the Company (which shall be deemed to include the period during which the Executive is receiving any severance payments, as set forth in Section 2 hereof) and for the twenty-four months immediately following the Employment Term (including any extensions thereof, as provided herein), the Executive shall not either directly or indirectly, (i) The Company whether by establishing a new business or by joining an existing one, and its affiliates are currently engaged in the business of branded and generic pharmaceuticalswhether as a principal, with a focus on product developmentemployee, clinical developmentstockholder, manufacturingofficer, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliatesdirector, Executive agreesbroker, during the Employment Term and for a period of twelve (12) months after Executive’s cessation of employment with the Companyagent, that Executive will notconsultant, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee)corporate officer, anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, licensor or in any manner connected withother capacity, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at in the time of termination actively negotiating, and eventually concludes within twelve (12) months seafood segment of the Employment Term, restaurant business or become associated with a commercial agreement.
(iii) Notwithstanding business enterprise which competes with any business operation of the foregoing, it shall not be a violation Company or its affiliates in the seafood segment of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services tothe restaurant business, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis business operation of the affiliation is solely due Company or its affiliates in the seafood segment of the restaurant business planned and known by the Executive prior to common ownership by a private equity or similar investment fundthe Executive's termination of employment, in the State of Florida and any other geographical areas in which the Company then has market presence; provided, thathowever, that if the Company terminates Executive's employment without cause (as defined in each caseSection 5 hereof), Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall not be subject to the prior approval provisions of this Section 8; (ii) divert business from the Company or its affiliates or solicit, accept or procure business from, divert the business of, or attempt to convert to other methods of using the same or similar services or products as are provided by the Company or its affiliates , any customer of the BoardCompany or its affiliates; (iii) interfere, in any manner, with the Company's or its affiliates’ customer and vendor/supplier relationships; or (iv) solicit for employment, employ or otherwise engage the services of, any employee or agent of the Company or its affiliates, or any person who was an employee or agent of the Company or its affiliates within the six months immediately preceding the cessation of Executive's employment with the Company. A restaurant shall be deemed to be in the seafood segment of the restaurant business if it holds itself out as primarily a purveyor of seafood by means of the use of the term “seafood", "fish" or other term traditionally associated with a food source which comes from the ocean waters (or any variation on any of the foregoing) in its name or in its advertising.
Appears in 1 contract
Sources: Employment Agreement (Shells Seafood Restaurants Inc)
Covenant Not to Compete. (i) The Company Executive acknowledges that he has established, and its affiliates are currently engaged in will continue to establish, favorable relations with the business customers, clients and accounts of branded the Company, and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information will have access to trade secrets and other proprietary information of the Company. Therefore, in consideration of such relations and access and the entering into of this Agreement by the Company, and to further protect such trade secrets of and proprietary information, the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, agrees that at all times during the Employment Term and for a period of twelve (12) months after Executive’s cessation of his employment with the CompanyCompany through the six month anniversary of the date of termination or expiration of the Executive’s employment, that the Executive will not, unless otherwise agreed to by directly or indirectly, without the Chief Executive Officer of Endo (following approval by the Chair express written consent of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets Board:
(A) own or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, controlhave any interest in, or participate in the managementact as an officer, operationdirector, partner, principal, employee, agent, representative, consultant or control independent contractor of, be employed by, associated with, or in any manner connected withway assist in, lend Executive’s name toany business which is engaged, directly or indirectly, in any business competitive with the Company in those markets and/or product lines and within those jurisdictions in which the Company competes at any time during the Term, or become associated with or render services to any person, firm, corporation or advice to, any third party or any business whose products or services compete in whole or in part with the products or services other entity so engaged (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing BusinessCompetitive Businesses”); provided, however, that the Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on without the board of any Competing Business that competes with the business express written consent of the Company not more than two percent (2%) of the issued and its affiliates as an immaterial part outstanding securities of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.any company or enterprise whose securities are listed on a national securities exchange or actively traded in the over the counter market;
(iiB) For purposes solicit clients, customers or accounts of this Section 11(b)the Company for, on behalf of, or otherwise related to, any third party such Competitive Businesses or any business whose products compete includes related thereto; or
(C) solicit any entity with which person who is, or shall be, in the employ or service of the Company to leave such employ or its affiliates has had a product(s) licensing agreement during service for employment with the Employment Term and any entity with which the Company Executive or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months an affiliate of the Employment Term, a commercial agreement.
(iii) Executive. Notwithstanding the foregoing, it if any court of competent jurisdiction determines that the covenant not to compete, or any part thereof, is unenforceable because of the duration of such provision or the geographic area or scope covered thereby, such court shall not have the power to reduce the duration, area or scope of such provision to the extent necessary to make the provision enforceable and, in its reduced form, such provision shall then be a violation of enforceable and shall be enforced. The Company shall pay and be solely responsible for any attorney’s fees, expenses, costs and court or arbitration costs incurred by the Executive in any matter or dispute between the Executive and the Company which pertains to this Section 11(b), for 2.2 if the Executive to provide services to (or engage prevails in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged the contest in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, whole or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Boardpart.
Appears in 1 contract
Sources: Employment Agreement (International Food & Wine Consultants, Inc.)
Covenant Not to Compete. (i) The Employee acknowledges that during his employment with the Company and its affiliates are currently engaged he, at the expense of the Company, will be specially trained in the business of branded the Company, will establish favorable relations with the customers, clients and generic pharmaceuticalsaccounts of the Company or any subsidiary, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets parent or affiliate of the Company and its affiliates as well as the goodwill will have access to Intellectual Property, trade secrets and competitive business Confidential Information of the Company or any subsidiary, parent or affiliate of the Company. Therefore, in consideration of such training and its affiliatesrelations, Executive agreesand in consideration of his employment with the Company, and to further protect the Intellectual Property, trade secrets and Confidential Information of the Company or any subsidiary, parent or affiliate of the Company, Employee agrees that (i) in the case of (a) and (b) below, during the Employment Term term of his employment by the Company and continuing for a period ending on the later of (x) the date on which Employee no longer owns, directly or indirectly, an interest in Inergy Holdings, LLC, a Delaware limited liability company, or (y) the date on which Employee no longer owns, directly or indirectly, an interest in any general partner of Inergy, L.P., and (ii) in the case of (c) below, during the term of his employment by the Company and for a period of twelve one (121) months year from and after Executive’s cessation the voluntary or involuntary termination of such employment with the Companyfor any or no reason, that Executive he will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and without the basis express written consent of the affiliation is solely due Company, except when and as requested to common ownership by a private equity do in and about the performing of his duties under this Agreement:
(a) own, manage, operate, control or similar investment fund; providedparticipate in the ownership, thatmanagement, operation or control of, or have any interest, financial or otherwise, in each caseor act as an officer, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10director, 11(apartner, member, principal, employee, agent, representative, consultant or independent contractor of, or in any way assist, any individual or entity in the conduct of any business that (1) trades, markets, sells or distributes propane gas (at retail, wholesale or otherwise), 11(c) and 11(d) herein; providedgathers, furtherprocesses, that Executive’s provision stores, transports, trades, markets or distributes natural gas or liquefied by-products of services to natural gas or petroleum or other natural resources (at retail, wholesale or engagement in activities involving) any entity described in clauses (Aotherwise) or sells, services and installs parts, appliances or supplies related thereto, and (B2) is located in or doing business within the United States or Canada;
(b) divert or attempt to divert clients or customers (whether or not such persons have done business with the Company or any subsidiary, parent or affiliate of the Company once or more than once) or accounts of the Company or any subsidiary, parent or affiliate of the Company; or
(c) entice or induce or in any manner influence any person who is or shall be in the employ or service of the Company or any subsidiary, parent or affiliate of the Company to leave such employ or service for the purpose of engaging in a business that may be in competition with any business now or at any time during the period hereof engaged in by the Company or any subsidiary, parent or affiliate of the Company. Notwithstanding the foregoing provisions, Employee may (i) take action for, on behalf of, and at the direction of the Company pursuant to a written agreement with the Company or otherwise, and (ii) own up to five percent (5%) of this Section 11(b)(iiithe outstanding equity securities in any corporation or entity (including, but not limited to, units in a master limited partnership) shall be subject to that is listed upon a national stock exchange or actively traded in the prior approval of the Boardover-the-counter market.
Appears in 1 contract
Sources: Employment Agreement (Inergy L P)
Covenant Not to Compete. (a) During the time from execution of this Agreement until one year following the Date of Separation (the "Non-Compete Period"), Executive will not, in association with or as an officer, principal, manager, member, advisor, agent, partner, material stockholder, or consultant of any corporation (or sub-unit, in the case of a diversified business) or other enterprise, entity or association, work on the acquisition or development of, or engage in any line of business, property or project which is, directly or indirectly, competitive with any business that the Company or any of its affiliates engaged in or was planning to engage in during the term of Executive's employment with the Company or any affiliate of the Company, including but not limited to, the mining, processing, transportation, distribution, trading and sale of synfuel, coal and coal byproducts (the "Business"). Such restriction shall cover Executive's activities anywhere in the contiguous United States.
(b) During the Non-Compete Period, Executive will not solicit or induce any person who is or was employed by the Company or any of its affiliates at any time during such term or period (i) The Company and its affiliates are currently engaged in to interfere with the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets activities or businesses of the Company and or any of its affiliates as well as or (ii) to discontinue his employment with the goodwill Company or any of its affiliates.
(c) During the Non-Compete Period, Executive will not, directly or indirectly, influence or attempt to influence any customers, distributors or suppliers of the Company or any of its affiliates to divert their business to any competitor of the Company or any of its affiliates or in any way interfere with the relationship between any such customer, distributor or supplier and competitive business the Company and/or any of its affiliates (including, without limitation, making any negative statements or communications about the Company and its affiliates). During the Non-Compete Period, Executive agrees, during the Employment Term and for a period of twelve (12) months after Executive’s cessation of employment with the Company, that Executive will not, unless otherwise agreed directly or indirectly, acquire or attempt to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere acquire any business in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material contiguous United States to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates, prior to the Date of Separation, has made an acquisition proposal relating to the possible acquisition of such business by the Company or any of its affiliates, or has planned, discussed or contemplated making such an acquisition proposal (such business, an "Acquisition Target"), or take any action to induce or attempt to induce any Acquisition Target to consummate any acquisition, investment or other similar transaction with any person other than the Company or any of its affiliates.
(d) Executive understands that the provisions of paragraphs 4(a), 4(b) and 4(c) hereof may limit his ability to earn a livelihood in a business in which he is involved, but as a member of the management group of the Company and its affiliates he nevertheless agrees and hereby acknowledges that: (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests of the Company and any of its affiliates; (ii) such provisions contain reasonable limitations as to time, scope of activity, and geographical area to be restrained; and (iii) the consideration provided hereunder, including without limitation, any amounts or benefits provided in this Agreement is sufficient to compensate Executive for the restrictions contained in paragraphs 4(a), 4(b) and 4(c) hereof. In consideration of the foregoing and in light of Executive's education, skills and abilities, Executive agrees that he will not assert that, and it should not be considered that, any provisions of paragraphs 4(a), 4(b) and 4(c) otherwise are void, voidable or unenforceable or should be voided or held unenforceable.
(e) If, at the time of termination actively negotiatingenforcement of paragraphs 3 or 4 of this Agreement, a court shall hold that the duration, scope, or area restrictions stated herein are unreasonable under circumstances then existing, the parties agree that the maximum period, scope or geographical area reasonable under such circumstances shall be substituted for the stated period, scope or area and eventually concludes within twelve (12) months that the court shall be allowed and directed to revise the restrictions contained herein to cover the maximum period, scope and area permitted by law. Executive acknowledges that, as the Vice President, Treasurer and Chief Financial Officer of Alpha, he is a member of the Employment TermCompany's and its affiliates' management group with access to the Company's and its affiliates' confidential business information and his services are unique to the Company and its affiliates. Executive therefore agrees that the remedy at law for any breach by him of any of the covenants and agreements set forth in paragraphs 3 and 4 will be inadequate and that in the event of any such breach, the Company and its affiliates may, in addition to the other remedies which may be available to them at law, apply to any court of competent jurisdiction to obtain specific performance and/or injunctive relief prohibiting Executive (together with all those persons associated with him) from the breach of such covenants and agreements and to enforce, or prevent any violations of, the provisions of this Agreement. In addition, in the event of a commercial agreementbreach or violation by Executive of this paragraph 4, the Non-Compete Period set forth in this paragraph shall be tolled until such breach or violation has been cured.
(iiif) Notwithstanding Each of the foregoing, it covenants of paragraphs 3 and 4 are given by Executive as part of the consideration for the benefits to be received by Executive under this Agreement and as an inducement to the Company to grant such benefits and accept the obligations hereunder.
(g) Provisions of paragraph 4 shall not be a violation of binding on Executive if the Company fails to perform any material obligation under this Section 11(b)Agreement, for Executive to provide services to (or engage in activities involving): (A) a subsidiaryincluding, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regardingwithout limitation, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis failure of the affiliation is solely Company to make timely payments of monies due to common ownership by a private equity or similar investment fundExecutive under this Agreement; provided, that, that (i) Executive has notified the Company in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval writing within 30 days of the Boarddate of the failure of the Company to perform such material obligation and (ii) such failure remains uncorrected and/or uncontested by the Company for 15 days following the date of such notice.
Appears in 1 contract
Sources: Severance Agreement (Alpha Natural Resources, Inc.)
Covenant Not to Compete. (i) The Executive acknowledges that he has established and will continue to establish favorable relations with the customers, clients and accounts of the Company and its affiliates are currently engaged in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other will have access to trade secrets of the Company and its affiliates as well as that the goodwill Company would be irreparably damaged if the Executive were to provide similar services to any person or entity competing with the Company or engaged in a similar business in the markets served or to be served by the Company. Therefore, in consideration of such relations and competitive business to further protect trade secrets, directly or indirectly, of the Company and its affiliatesCompany, the Executive agrees, agrees that during the Employment Term term of his employment by the Company and for a period of twelve (12) eighteen months after from the date of termination of the Executive’s cessation , except that such eighteen month period shall not apply in the event of termination of employment with (i) by the CompanyCompany other than for Cause, that (ii) by the Executive for Good Reason or (iii) by the Company or the Executive for any reason within one year following a Change of Control, the Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and without the basis express written consent of the affiliation is solely due Company:
(i) act as a manager of a business substantially similar to, a supervisor of officers or employees rendering services for, or as an advisor with respect to common ownership by a private equity or similar investment fund; providedthe conduct of, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including whether on the Executive’s obligations under Sections 10own behalf or as an employee, 11(a)director, 11(cor independent contractor of, any business that consists of radio broadcasting services (the “Business”) and 11(dserves the listening areas (as defined by the Arbitron Metro Survey Area) herein; providedset forth on Exhibit A, furtherwithin which area the Executive acknowledges the Company currently conducts its business or has definite or immediate plans to conduct its business, that Executive’s provision (the “Competitive Businesses”);
(ii) solicit, or attempt to solicit, clients, customers or accounts of services to (or engagement in activities involving) any entity described in clauses the Company, (A) which during the 12-month period prior to the date of termination of the Executive has obtained or contracted to obtain services from the Company and with which the Executive had contact during the term of the Executive’s employment by the Company or (B) whose name and/or address both would constitute Confidential Information and became known to Executive as a customer or client or potential customer or client of this Section 11(b)(iiithe Company in any manner during the term of the Executive’s employment by the Company, for, on behalf of or otherwise related to any such Competitive Businesses or any products related thereto; or
(iii) solicit or in any manner influence or encourage any person who is an employee of the Company at the time the Executive’s employment terminates or who was such an employee with the Company at any time during the 12-month period immediately preceding the date of such termination and with whom the Executive had contact during the term of the Executive’s employment by the Company to leave such employ or service with the Company for any employment opportunity with any Competitive Businesses. Notwithstanding the foregoing, if any court determines that the covenant not to compete, or any part thereof, is unenforceable because of the duration of such provision or the geographic area or scope covered thereby, all of which the Executive acknowledges are reasonable under the circumstances, such court shall have the power to reduce the duration, area or scope of such provisions and, in its reduced form, such provision shall then be enforceable and shall be subject to the prior approval of the Boardenforced.
Appears in 1 contract