Non-Compete and Non-Solicitation. (a) The Executive recognizes that in each of the highly competitive businesses in which the Company is engaged, personal contact is of primary importance in securing new customers and in retaining the accounts and goodwill of present customers and protecting the business of the Company. The Executive, therefore, agrees that during the Employment Period and, if the Date of Termination occurs by reason of the Executive terminating his employment for reasons other than Disability or Good Reason and other than during a Window Period, for a period of one year after the Date of Termination, he will not either within 20 miles of any geographic location of any Shale play with respect to which he has devoted substantial attention to the material business interests of the Company or any of its affiliated companies or with respect to any immediate geologic trends in any non-Shale plays, in either case, in which the Company or any of its affiliated companies have active leases or are actively pursuing leases through direct employee activity or hired brokers as of the Date of Termination, without regard, in either case, to whether the Executive has worked at such location (the "Relevant Geographic Area"), (i) accept employment or render service to any Person that is engaged in a business directly competitive with the business then engaged in by the Company or any of its affiliated companies in the Relevant Geographic Area, (ii) enter into or take part in or lend his name, counsel or assistance to any business, either as proprietor, principal, investor, partner, director, officer, executive, consultant, advisor, agent, independent contractor, or in any other capacity whatsoever, for any purpose that would be competitive with the business of the Company or any of its affiliated companies in the Relevant Geographic Area or (iii) regardless of whether it is in the Relevant Geographic Area, directly or indirectly, either as principal, agent, independent contractor, consultant, director, officer, employee, employer, advisor, stockholder, partner or in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit of any other person or entity either (A) hire, contract or solicit, or attempt any of the foregoing, with respect to hiring any employee of the Company or its affiliated companies, or (B) induce or otherwise counsel, advise or encourage any employee of the Company or its affiliated companies to leave the employment of the Company or its affiliated companies (all of the foregoing activities described in (i), (ii) and (iii) are collectively referred to as the "Prohibited Activity"). Notwithstanding anything contained in this Section 10 to the contrary, the Prohibited Activity shall not be applicable to the state or federal waters of the Gulf of Mexico or outside of the United States except as to the area covered by any U.S. or foreign state or federal oil and gas lease, license or permit in which the Company owns a working interest which was acquired by the Company prior to or during the Employment Period and further limited to the depths in which the Company owns such working or operating rights interest. For the avoidance of doubt, the provisions of this Section 10 will not apply following a termination of the Executive's employment by the Company with or without Cause, by the Executive due to Disability or Good Reason or by the Executive during a Window Period. (b) In addition to all other remedies at law or in equity which the Company may have for breach of a provision of this Section 10 by the Executive, it is agreed that in the event of any breach or attempted or threatened breach of any such provision, the Company shall be entitled, upon application to any court of proper jurisdiction, to a temporary restraining order or preliminary injunction (without the necessity of (i) proving irreparable harm, (ii) establishing that monetary damages are inadequate or (iii) posting any bond with respect thereto) against the Executive prohibiting such breach or attempted or threatened breach by proving only the existence of such breach or attempted or threatened breach. If the provisions of this Section 10 should ever be deemed to exceed the time, geographic or occupational limitations permitted by the applicable law, the Executive and the Company agree that such provisions shall be and are hereby reformed to the maximum time, geographic or occupational limitations permitted by the applicable law. (c) The covenants of the Executive set forth in this Section 10 are independent of and severable from every other provision of this Agreement; and the breach of any other provision of this Agreement by the Company or the breach by the Company of any other agreement between the Company and the Executive shall not affect the validity of the provisions of this Section 10 or constitute a defense of the Executive in any suit or action brought by the Company to enforce any of the provisions of this Section 10 or seek any relief for the breach thereof by the Executive. (d) The Executive acknowledges, agrees and stipulates that: (i) the terms and provisions of this Agreement are reasonable and constitute an otherwise enforceable agreement to which the terms and provisions of this Section 10 are ancillary or a part of as contemplated by TEX. BUS. & COM. CODE ▇▇▇. Sections 15.50-15.52; (ii) the consideration provided by the Company under this Agreement is not illusory; and (iii) the consideration given by the Company under this Agreement, including, without limitation, the provision by the Company of Confidential Information to the Executive as contemplated by Section 8, gives rise to the Company's interest in restraining and prohibiting the Executive from engaging in the Prohibited Activity within the Relevant Geographic Area as provided under this Section 10, and the Executive's covenant not to engage in the Prohibited Activity within the Relevant Geographic Area pursuant to this Section 10 is designed to enforce the Executive's consideration (or return promises), including, without limitation, the Executive's promise to not disclose Confidential Information under this Agreement.
Appears in 4 contracts
Sources: Employment Agreement (Carrizo Oil & Gas Inc), Employment Agreement (Carrizo Oil & Gas Inc), Employment Agreement (Carrizo Oil & Gas Inc)
Non-Compete and Non-Solicitation. (i) During the term of Executive's employment with the Company or any Affiliate of the Company and for one (1) year thereafter, regardless of the reason for the termination of Executive's employment, Executive shall not either directly or indirectly, and will not permit any Covered Entity which is Controlled by Executive to either directly or indirectly, compete with the Business in the Territory or otherwise participate in, assist, aid or advise in any way, any competitive business or enterprise that competes with the Business in the Territory.
(ii) During the term of Executive's employment with the Company or any Affiliate of the Company and one (1) year thereafter, Executive will not, either directly or indirectly and will not permit any Covered Entity which is Controlled by Executive to, either directly or indirectly, (a) The Executive recognizes that (1) attempt in each any manner to solicit the business of any franchisee of the highly competitive businesses in Company or Affiliates of the Company, or (2) solicit the business of any financial institution or other creditors with which the Company is engagedor its Affiliates has had a relationship, personal contact is of primary importance in securing new customers and in retaining the accounts and goodwill of present customers and protecting the business of the Company. The except that Executive may solicit such institutions or creditors if doing so would not violate his obligations under Section 4.8(i); or (b) hire, solicit, take away, or attempt to hire, solicit or take away (either on such Executive, therefore, agrees that during the Employment Period and, if the Date of Termination occurs by reason of the Executive terminating his employment for reasons other than Disability 's behalf or Good Reason and other than during a Window Period, for a period of one year after the Date of Termination, he will not either within 20 miles on behalf of any geographic location of other person or entity) any Shale play with respect to which he has devoted substantial attention to the material business interests person (1) who is then an employee of the Company or any Affiliate of its affiliated companies the Company or an employee or a franchisee of the Company; or (2) who has terminated his or her employment with respect to any immediate geologic trends in any non-Shale plays, in either case, in which the Company or any of its affiliated companies have active leases or are actively pursuing leases through direct employee activity or hired brokers as Affiliate of the Date Company within the previous ninety (90) days.
(iii) Executive acknowledges that the foregoing geographic restriction on competition is fair and reasonable, given the nature and geographic scope of Termination, without regard, in either case, to whether the Executive has worked at such location (Company's business operations and the "Relevant Geographic Area"), (i) accept employment or render service to any Person that is engaged in a business directly competitive nature of Executive's position with the business then engaged in Company. Executive also acknowledges that while employed by the Company or any of its affiliated companies in the Relevant Geographic AreaCompany, (ii) enter into or take part in or lend his name, counsel or assistance Executive will have access to any business, either as proprietor, principal, investor, partner, director, officer, executive, consultant, advisor, agent, independent contractor, or in any other capacity whatsoever, for any purpose information that would be competitive with the business of the Company valuable or any of its affiliated companies in the Relevant Geographic Area or (iii) regardless of whether it is in the Relevant Geographic Area, directly or indirectly, either as principal, agent, independent contractor, consultant, director, officer, employee, employer, advisor, stockholder, partner or in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit of any other person or entity either (A) hire, contract or solicit, or attempt any of the foregoing, with respect to hiring any employee of the Company or its affiliated companies, or (B) induce or otherwise counsel, advise or encourage any employee of the Company or its affiliated companies to leave the employment of the Company or its affiliated companies (all of the foregoing activities described in (i), (ii) and (iii) are collectively referred to as the "Prohibited Activity"). Notwithstanding anything contained in this Section 10 to the contrary, the Prohibited Activity shall not be applicable to the state or federal waters of the Gulf of Mexico or outside of the United States except as to the area covered by any U.S. or foreign state or federal oil and gas lease, license or permit in which the Company owns a working interest which was acquired by the Company prior to or during the Employment Period and further limited to the depths in which the Company owns such working or operating rights interest. For the avoidance of doubt, the provisions of this Section 10 will not apply following a termination of the Executive's employment by the Company with or without Cause, by the Executive due to Disability or Good Reason or by the Executive during a Window Period.
(b) In addition to all other remedies at law or in equity which the Company may have for breach of a provision of this Section 10 by the Executive, it is agreed that in the event of any breach or attempted or threatened breach of any such provision, the Company shall be entitled, upon application to any court of proper jurisdiction, to a temporary restraining order or preliminary injunction (without the necessity of (i) proving irreparable harm, (ii) establishing that monetary damages are inadequate or (iii) posting any bond with respect thereto) against the Executive prohibiting such breach or attempted or threatened breach by proving only the existence of such breach or attempted or threatened breach. If the provisions of this Section 10 should ever be deemed to exceed the time, geographic or occupational limitations permitted by the applicable law, the Executive and the Company agree that such provisions shall be and are hereby reformed to the maximum time, geographic or occupational limitations permitted by the applicable law.
(c) The covenants of the Executive set forth in this Section 10 are independent of and severable from every other provision of this Agreement; and the breach of any other provision of this Agreement by the Company or the breach by the Company of any other agreement between the Company and the Executive shall not affect the validity of the provisions of this Section 10 or constitute a defense of the Executive in any suit or action brought by the Company to enforce any of the provisions of this Section 10 or seek any relief for the breach thereof by the Executive.
(d) The Executive acknowledges, agrees and stipulates that: (i) the terms and provisions of this Agreement are reasonable and constitute an otherwise enforceable agreement to which the terms and provisions of this Section 10 are ancillary or a part of as contemplated by TEX. BUS. & COM. CODE ▇▇▇. Sections 15.50-15.52; (ii) the consideration provided by the Company under this Agreement is not illusory; and (iii) the consideration given by the Company under this Agreement, including, without limitation, the provision by the Company of Confidential Information to the Executive as contemplated by Section 8, gives rise useful to the Company's interest in restraining and prohibiting the Executive from engaging in the Prohibited Activity within the Relevant Geographic Area as provided under this Section 10competitors, and therefore acknowledges that the foregoing restrictions on Executive's future employment and business activities are fair and reasonable. Executive acknowledges and is prepared for the possibility that Executive's standard of living may be reduced during the one-year period following the termination of Executive's employment, and assumes and accepts any risk associated with that possibility.
(iv) Executive acknowledges the following provisions of Colorado law, set forth in Colorado Revised Statutes § 8-2-113(2): Any covenant not to engage in compete which restricts the Prohibited Activity within the Relevant Geographic Area pursuant right of any person to receive compensation for performance of skilled or unskilled labor for any employer shall be void, but this Section 10 is designed to enforce the Executive's consideration subsection (or return promises), including, without limitation, the Executive's promise to 2) shall not disclose Confidential Information under this Agreement.apply to: …
Appears in 3 contracts
Sources: Executive Employment Agreement (SquareTwo Financial Corp), Executive Employment Agreement (SquareTwo Financial Corp), Executive Employment Agreement (SquareTwo Financial Corp)
Non-Compete and Non-Solicitation. (i) During the term of Executive’s employment with the Company or any Affiliate of the Company and for one (1) year thereafter, regardless of the reason for the termination of Executive’s employment, Executive shall not either directly or indirectly, and will not permit any Covered Entity which is Controlled by Executive to either directly or indirectly, compete with the Business in the Territory or otherwise participate in, assist, aid or advise in any way, any competitive business or enterprise that competes with the Business in the Territory.
(ii) During the term of Executive’s employment with the Company or any Affiliate of the Company and one (1) year thereafter, Executive will not, either directly or indirectly and will not permit any Covered Entity which is Controlled by Executive to, either directly or indirectly, (a) The Executive recognizes that (1) attempt in each any manner to solicit the business of any franchisee of the highly competitive businesses in Company or Affiliates of the Company, or (2) solicit the business of any financial institution or other creditors with which the Company is engagedor its Affiliates has had a relationship, personal contact is of primary importance in securing new customers and in retaining the accounts and goodwill of present customers and protecting the business of the Company. The except that Executive may solicit such institutions or creditors if doing so would not violate his obligations under Section 4.8(i); or (b) hire, solicit, take away, or attempt to hire, solicit or take away (either on such Executive, therefore, agrees that during the Employment Period and, if the Date of Termination occurs by reason of the Executive terminating his employment for reasons other than Disability ’s behalf or Good Reason and other than during a Window Period, for a period of one year after the Date of Termination, he will not either within 20 miles on behalf of any geographic location of other person or entity) any Shale play with respect to which he has devoted substantial attention to the material business interests person (1) who is then an employee of the Company or any Affiliate of its affiliated companies the Company or an employee or a franchisee of the Company; or (2) who has terminated his or her employment with respect to any immediate geologic trends in any non-Shale plays, in either case, in which the Company or any of its affiliated companies have active leases or are actively pursuing leases through direct employee activity or hired brokers as Affiliate of the Date Company within the previous ninety (90) days.
(iii) Executive acknowledges that the foregoing geographic restriction on competition is fair and reasonable, given the nature and geographic scope of Termination, without regard, in either case, to whether the Executive has worked at such location (Company’s business operations and the "Relevant Geographic Area"), (i) accept employment or render service to any Person that is engaged in a business directly competitive nature of Executive’s position with the business then engaged in Company. Executive also acknowledges that while employed by the Company or any of its affiliated companies in the Relevant Geographic AreaCompany, (ii) enter into or take part in or lend his name, counsel or assistance Executive will have access to any business, either as proprietor, principal, investor, partner, director, officer, executive, consultant, advisor, agent, independent contractor, or in any other capacity whatsoever, for any purpose information that would be competitive with valuable or useful to the Company’s competitors, and therefore acknowledges that the foregoing restrictions on Executive’s future employment and business of the Company or any of its affiliated companies in the Relevant Geographic Area or (iii) regardless of whether it activities are fair and reasonable. Executive acknowledges and is in the Relevant Geographic Area, directly or indirectly, either as principal, agent, independent contractor, consultant, director, officer, employee, employer, advisor, stockholder, partner or in any other individual or representative capacity whatsoever, either for his own benefit or prepared for the benefit possibility that Executive’s standard of any other person or entity either (A) hire, contract or solicit, or attempt any of the foregoing, with respect to hiring any employee of the Company or its affiliated companies, or (B) induce or otherwise counsel, advise or encourage any employee of the Company or its affiliated companies to leave the employment of the Company or its affiliated companies (all of the foregoing activities described in (i), (ii) and (iii) are collectively referred to as the "Prohibited Activity"). Notwithstanding anything contained in this Section 10 to the contrary, the Prohibited Activity shall not living may be applicable to the state or federal waters of the Gulf of Mexico or outside of the United States except as to the area covered by any U.S. or foreign state or federal oil and gas lease, license or permit in which the Company owns a working interest which was acquired by the Company prior to or reduced during the Employment Period and further limited to one-year period following the depths in which the Company owns such working or operating rights interest. For the avoidance of doubt, the provisions of this Section 10 will not apply following a termination of the Executive's employment by the Company ’s employment, and assumes and accepts any risk associated with or without Cause, by the Executive due to Disability or Good Reason or by the Executive during a Window Periodthat possibility.
(biv) In addition to all other remedies at law or in equity which Executive acknowledges the Company may have for breach of a provision of this Section 10 by the Executive, it is agreed that in the event of any breach or attempted or threatened breach of any such provision, the Company shall be entitled, upon application to any court of proper jurisdiction, to a temporary restraining order or preliminary injunction (without the necessity of (i) proving irreparable harm, (ii) establishing that monetary damages are inadequate or (iii) posting any bond with respect thereto) against the Executive prohibiting such breach or attempted or threatened breach by proving only the existence of such breach or attempted or threatened breach. If the following provisions of this Section 10 should ever be deemed to exceed the time, geographic or occupational limitations permitted by the applicable Colorado law, the Executive and the Company agree that such provisions shall be and are hereby reformed to the maximum time, geographic or occupational limitations permitted by the applicable law.
(c) The covenants of the Executive set forth in this Section 10 are independent of and severable from every other provision of this Agreement; and the breach of any other provision of this Agreement by the Company or the breach by the Company of any other agreement between the Company and the Executive shall not affect the validity of the provisions of this Section 10 or constitute a defense of the Executive in any suit or action brought by the Company to enforce any of the provisions of this Section 10 or seek any relief for the breach thereof by the Executive.
(d) The Executive acknowledges, agrees and stipulates that: (i) the terms and provisions of this Agreement are reasonable and constitute an otherwise enforceable agreement to which the terms and provisions of this Section 10 are ancillary or a part of as contemplated by TEX. BUS. & COM. CODE ▇▇▇. Sections 15.50Colorado Revised Statutes § 8-15.52; (ii) the consideration provided by the Company under this Agreement is not illusory; and (iii) the consideration given by the Company under this Agreement, including, without limitation, the provision by the Company of Confidential Information to the Executive as contemplated by Section 8, gives rise to the Company's interest in restraining and prohibiting the Executive from engaging in the Prohibited Activity within the Relevant Geographic Area as provided under this Section 10, and the Executive's 2-113(2): Any covenant not to engage in compete which restricts the Prohibited Activity within the Relevant Geographic Area pursuant right of any person to receive compensation for performance of skilled or unskilled labor for any employer shall be void, but this Section 10 is designed to enforce the Executive's consideration subsection (or return promises), including, without limitation, the Executive's promise to 2) shall not disclose Confidential Information under this Agreement.apply to:
Appears in 3 contracts
Sources: Executive Employment Agreement (ReFinance America, LTD), Executive Employment Agreement (ReFinance America, LTD), Executive Employment Agreement (ReFinance America, LTD)
Non-Compete and Non-Solicitation. (ai) The Executive recognizes acknowledges and agrees with the Company that in each during the course of the highly competitive businesses in which Executive’s involvement and/or employment with the Company, such Executive has had and will continue to have the opportunity to develop relationships with existing employees, vendors, suppliers, customers and other business associates of the Company is engaged, personal contact is of primary importance in securing new customers and in retaining the accounts and which relationships constitute goodwill of present customers and protecting the business of the Company. The Executive, therefore, agrees that during and the Employment Period and, Company would be irreparably damaged if the Date of Termination occurs by reason of Executive were to take actions that would damage or misappropriate such goodwill. Accordingly, the Executive terminating his employment for reasons other than Disability or Good Reason and other than during a Window Period, for a period of one year after the Date of Termination, he will not either within 20 miles of any geographic location of any Shale play with respect to which he has devoted substantial attention to the material business interests of agrees as follows:
(A) The Executive acknowledges that the Company or and its subsidiaries currently conducts its business throughout the United States, including without limitation the areas listed on Exhibit A attached hereto (the “Territory”). For purposes hereof, the “Territory” shall also include any of its affiliated companies or with respect to any immediate geologic trends in any non-Shale plays, in either case, international market in which the Company or any of its affiliated companies have active leases subsidiaries conducts its business or are actively pursuing leases through direct employee activity or hired brokers as of the Date of Termination, without regardhas plans to conduct its business, in either caseevent, to whether at the Executive has worked at such location (time of the "Relevant Geographic Area")Executive’s date of termination. Accordingly, (i) accept during the period commencing on the date hereof and ending on the one-year anniversary of the Executive’s termination of employment or render service to any Person that is engaged in a business directly competitive with the business then engaged in by the Company or any of its affiliated companies in the Relevant Geographic Areasubsidiaries or affiliates, (ii) such period is referred to herein as the “Non-Compete Period”), the Executive shall not, directly or indirectly, enter into or take part in into, engage in, assist, give or lend his namefunds to or otherwise finance, counsel be employed by or assistance to any business, either as proprietor, principal, investor, partner, director, officer, executive, consultant, advisor, agent, independent contractorconsult with, or have a financial or other interest in, any business which engages in marketing, selling, renting or otherwise providing musical instruments, pro-audio equipment or related accessories to retail consumers (including, without limitation, students, schools and other education institutions) through any means of commerce (including without limitation physical storefronts, mail order or the Internet) within the Territory (the “Line of Business”), whether for or by himself or as a representative for any other capacity whatsoeverperson or entity.
(B) Notwithstanding the foregoing, for the aggregate passive ownership by the Executive of no more than two percent (on a fully-diluted basis) of the outstanding equity securities of any purpose that would be competitive entity, which securities are traded on a national or foreign securities exchange, quoted on the Nasdaq Stock Market or other automated quotation system, and which entity competes with the business of the Company (or any subsidiary or affiliate) within the Territory, shall not be deemed to be giving or lending funds to, otherwise financing or having a financial interest in a competitor. In the event that any entity in which the Executive has any financial or other interest directly or indirectly enters into the Line of its affiliated companies Business during the Non-Compete Period, the Executive shall use his reasonable best efforts to divest all of his interest (other than any amount permitted to be held pursuant to the first sentence of this Section 3(c)(i)(A)) in such entity within 30 days after learning that such entity has entered the Relevant Geographic Area or Line of Business.
(iiiC) regardless of whether it is in The Executive covenants and agrees that, during the Relevant Geographic AreaNon-Compete Period, the Executive will not, directly or indirectly, either as principal, agent, independent contractor, consultant, director, officer, employee, employer, advisor, stockholder, partner or in any other individual or representative capacity whatsoever, either for his own benefit himself or for the benefit of any other person or entity either (A) hireentity, contract or solicit, or attempt any of the foregoing, with respect to hiring solicit any employee of the Company or any subsidiary or affiliate to terminate his or her employment with the Company or such subsidiary or affiliate or employ any such individual during his or her employment with the Company or such subsidiary or affiliate and for a period of nine months after such individual terminates his or her employment with the Company or such subsidiary or affiliate.
(ii) The Executive understands that the foregoing restrictions may limit his ability to earn a livelihood in a business similar to the business of the Company, its affiliated companiessubsidiaries and affiliates, or (B) induce or otherwise counsel, advise or encourage any but he nevertheless believes that he has received and will receive sufficient consideration and other benefits as an employee of the Company or its affiliated companies and as otherwise provided hereunder to leave the employment of the Company or its affiliated companies clearly justify such restrictions which, in any event (all of the foregoing activities described in (igiven his education, skills and ability), (ii) and (iii) are collectively referred to as the "Prohibited Activity"). Notwithstanding anything contained in this Section 10 to the contrary, the Prohibited Activity shall not be applicable to the state or federal waters of the Gulf of Mexico or outside of the United States except as to the area covered by any U.S. or foreign state or federal oil and gas lease, license or permit in which the Company owns a working interest which was acquired by the Company prior to or during the Employment Period and further limited to the depths in which the Company owns such working or operating rights interest. For the avoidance of doubt, the provisions of this Section 10 will not apply following a termination of the Executive's employment by the Company with or without Cause, by the Executive due to Disability or Good Reason or by the Executive during a Window Period.
(b) In addition to all other remedies at law or in equity which the Company may have for breach of a provision of this Section 10 by the Executive, it is agreed that in the event of any breach or attempted or threatened breach of any such provision, the Company shall be entitled, upon application to any court of proper jurisdiction, to a temporary restraining order or preliminary injunction (without the necessity of (i) proving irreparable harm, (ii) establishing that monetary damages are inadequate or (iii) posting any bond with respect thereto) against the Executive prohibiting such breach or attempted or threatened breach by proving only the existence of such breach or attempted or threatened breach. If the provisions of this Section 10 should ever be deemed to exceed the time, geographic or occupational limitations permitted by the applicable law, the Executive and the Company agree that such provisions shall be and are hereby reformed to the maximum time, geographic or occupational limitations permitted by the applicable lawdoes not believe would prevent him from otherwise earning a living.
(c) The covenants of the Executive set forth in this Section 10 are independent of and severable from every other provision of this Agreement; and the breach of any other provision of this Agreement by the Company or the breach by the Company of any other agreement between the Company and the Executive shall not affect the validity of the provisions of this Section 10 or constitute a defense of the Executive in any suit or action brought by the Company to enforce any of the provisions of this Section 10 or seek any relief for the breach thereof by the Executive.
(d) The Executive acknowledges, agrees and stipulates that: (i) the terms and provisions of this Agreement are reasonable and constitute an otherwise enforceable agreement to which the terms and provisions of this Section 10 are ancillary or a part of as contemplated by TEX. BUS. & COM. CODE ▇▇▇. Sections 15.50-15.52; (ii) the consideration provided by the Company under this Agreement is not illusory; and (iii) the consideration given by the Company under this Agreement, including, without limitation, the provision by the Company of Confidential Information to the Executive as contemplated by Section 8, gives rise to the Company's interest in restraining and prohibiting the Executive from engaging in the Prohibited Activity within the Relevant Geographic Area as provided under this Section 10, and the Executive's covenant not to engage in the Prohibited Activity within the Relevant Geographic Area pursuant to this Section 10 is designed to enforce the Executive's consideration (or return promises), including, without limitation, the Executive's promise to not disclose Confidential Information under this Agreement.
Appears in 3 contracts
Sources: Executive Severance Benefits Agreement (Guitar Center Holdings, Inc.), Executive Severance Benefits Agreement (Music123, Inc.), Executive Severance Benefits Agreement (Music123, Inc.)
Non-Compete and Non-Solicitation. (a) The Executive recognizes acknowledges and agrees that in each of the highly competitive businesses in which the Company is engaged, personal contact is of primary importance in securing new customers and in retaining the accounts and goodwill of present customers and protecting (i) the business of the Company and its Subsidiaries is conducted in North America (collectively, the “Territory”), (ii) the Company. The Executive’s and its Subsidiaries’ reputation and goodwill are an integral part of its business success throughout the Territory, therefore, agrees that during the Employment Period and, if the Date of Termination occurs by reason (iii) Executive is familiar with certain of the Company’s and its Subsidiaries’ trade secrets and with other Confidential Information (as defined herein) concerning the Company and its affiliates, (iv) Executive’s services are of special, unique and extraordinary value to the Company and its Subsidiaries, and (v) if Executive terminating his employment for reasons other than Disability were to deprive the Company or Good Reason and other than during a Window Period, for a period any of one year after the Date of Termination, he will not either within 20 miles its Subsidiaries of any geographic location of such goodwill or in any Shale play manner utilizes such reputation and goodwill in competition with respect the Company or any of its Subsidiaries, the Company will be deprived of the benefits it has bargained for in this Agreement. Accordingly, in order to which he has devoted substantial attention protect such trade secrets, Confidential Information and goodwill as well as the value of the Company and its Subsidiaries, and as a condition to the Company’s willingness to enter into this Agreement, Executive agrees that, so long as Executive is employed by the Company or any of its Subsidiaries and continuing for the period beginning on the date of Executive’s Separation and ending upon the second anniversary of such Separation (the “Non-compete Period”), Executive shall not, anywhere in the Territory, directly or indirectly own any interest in, manage, control, participate in, consult with, render services for, be employed in an executive, managerial or administrative capacity by, or in any manner engage in any business that reasonably purports to compete with the material business interests lines of businesses of the Company or any of its affiliated companies Subsidiaries, as such businesses (i) currently exist or are currently in the active process of development and (ii) exist or are in the active process of development during Executive’s employment with respect to any immediate geologic trends in any non-Shale plays, in either case, in which the Company or any of its affiliated companies have active leases or are actively pursuing leases through direct employee activity or hired brokers as Subsidiaries; provided that, nothing herein shall prohibit Executive from being a passive owner of not more than 1% of the Date outstanding stock of Terminationany class of a corporation which is publicly traded, without regard, in either case, to whether the so long as Executive has worked at no participation in the business of such location corporation.
(b) During the "Relevant Geographic Area")Non-compete Period, Executive shall not directly or indirectly through another person or entity (i) accept employment induce or render service attempt to induce any Person that is engaged in a business directly competitive with the business then engaged in by the Company or any of its affiliated companies in the Relevant Geographic Area, (ii) enter into or take part in or lend his name, counsel or assistance to any business, either as proprietor, principal, investor, partner, director, officer, executive, consultant, advisor, agent, independent contractor, or in any other capacity whatsoever, for any purpose that would be competitive with the business employee of the Company or any of its affiliated companies in Subsidiaries to leave the Relevant Geographic Area employ of the Company or (iii) regardless any of whether it is in the Relevant Geographic Areaits Subsidiaries, directly or indirectly, either as principal, agent, independent contractor, consultant, director, officer, employee, employer, advisor, stockholder, partner or in any other individual way interfere with the relationship between the Company or representative capacity whatsoever, either for his own benefit or for the benefit of any other person or entity either (A) hire, contract or solicit, or attempt any of the foregoingits Subsidiaries and any employee thereof, with respect to hiring (ii) hire any person who was an employee of the Company or any of its affiliated companies, Subsidiaries within one year prior to the time such employee was hired by Executive (directly or indirectly through another person or entity) or (Biii) induce or otherwise counselattempt to induce any customer, advise referral source, supplier, licensee, licensor, franchisee or encourage any employee other business relation of the Company or any of its affiliated companies Subsidiaries to leave the employment of cease doing business with the Company or any of its affiliated companies (all of the foregoing activities described in (i)Subsidiaries, (ii) and (iii) are collectively referred to as the "Prohibited Activity"). Notwithstanding anything contained in this Section 10 to the contrary, the Prohibited Activity shall not be applicable to the state or federal waters of the Gulf of Mexico or outside of the United States except as to the area covered by any U.S. or foreign state or federal oil and gas lease, license or permit in which the Company owns a working interest which was acquired by the Company prior to or during the Employment Period and further limited to the depths in which the Company owns such working or operating rights interest. For the avoidance of doubt, the provisions of this Section 10 will not apply following a termination of the Executive's employment by the Company with or without Cause, by the Executive due to Disability or Good Reason or by the Executive during a Window Period.
(b) In addition to all other remedies at law or in equity which any way interfere with the Company may have for breach of a provision of this Section 10 by the Executive, it is agreed that in the event of any breach or attempted or threatened breach of relationship between any such provisioncustomer, the Company shall be entitledsupplier, upon application to any court of proper jurisdiction, to a temporary restraining order licensee or preliminary injunction (without the necessity of (i) proving irreparable harm, (ii) establishing that monetary damages are inadequate or (iii) posting any bond with respect thereto) against the Executive prohibiting such breach or attempted or threatened breach by proving only the existence of such breach or attempted or threatened breach. If the provisions of this Section 10 should ever be deemed to exceed the time, geographic or occupational limitations permitted by the applicable law, the Executive business relation and the Company agree that such provisions shall be and are hereby reformed to the maximum time, geographic or occupational limitations permitted by the applicable lawany of its Subsidiaries.
(c) The covenants of the Executive set forth in this Section 10 are independent of and severable from every other provision of this Agreement; and the breach of any other provision of this Agreement by the Company or the breach by the Company of any other agreement between the Company and the Executive shall not affect the validity of the provisions For purposes of this Section 10 or constitute a defense of the Executive in any suit or action brought by the Company to enforce any of the provisions of this Section 10 or seek any relief for the breach thereof by the Executive.
(d) The Executive acknowledges, agrees and stipulates that: (i) the terms and provisions of this Agreement are reasonable and constitute an otherwise enforceable agreement to which the terms and provisions of this Section 10 are ancillary or a part of as contemplated by TEX. BUS. & COM. CODE ▇▇▇. Sections 15.50-15.52; (ii) the consideration provided by the Company under this Agreement is not illusory; and (iii) the consideration given by the Company under this Agreement, including, without limitation7, the provision by the Company of Confidential Information to the Executive as contemplated by Section 8, gives rise to the term “Company's interest in restraining and prohibiting the Executive from engaging in the Prohibited Activity within the Relevant Geographic Area as provided under this Section 10, and the Executive's covenant not to engage in the Prohibited Activity within the Relevant Geographic Area pursuant to this Section 10 is designed to enforce the Executive's consideration (or return promises), including, without limitation, the Executive's promise to not disclose Confidential Information under this Agreement” shall also include Holdings.
Appears in 3 contracts
Sources: Employment Agreement (EVgo Inc), Employment Agreement (EVgo Inc), Employment Agreement (EVgo Inc)
Non-Compete and Non-Solicitation. (a) The Executive recognizes that in each of the highly competitive businesses in which the Company is engaged, personal contact is of primary importance in securing new customers and in retaining the accounts and goodwill of present customers and protecting the business of the Company. The Executive, therefore, agrees that during the Employment Period and, if the Date of Termination occurs (i) by reason of the Executive terminating his employment for reasons other than Disability or Good Reason and other than during or (ii) in connection with or following a Window PeriodChange in Control, for a period of one year after the Date of Termination, he will not either within 20 miles of any geographic location of any Shale play with respect to which he has devoted substantial attention to the material business interests of the Company or any of its affiliated companies or with respect to any immediate geologic trends in any non-Shale plays, in either case, in which the Company or any of its affiliated companies have active leases or are actively pursuing leases through direct employee activity or hired brokers as of the Date of Termination, without regard, in either case, to whether the Executive has worked at such location (the "“Relevant Geographic Area"”), (i) accept employment or render service material services to any Person entity that is engaged in a business directly competitive with the business then engaged in by the Company or any of its affiliated companies in the Relevant Geographic Area, (ii) enter into into, or take part in in, or lend his name, counsel or material assistance to to, any business, entity either as proprietor, principal, investoror owner of more than 5% of such entity, partner, director, or act as an officer, executive, employee, consultant, advisor, agent, independent contractorcontractor to or for such entity, or in any other capacity whatsoever, for any purpose either case with respect to an entity that would be directly competitive with the business of the Company or any of its affiliated companies in the Relevant Geographic Area Area; provided, however, that the prohibitions set forth in this subparagraphs (i) and (ii) shall not apply to actions by the Executive with respect to any entity where the Executive (x) serves as an independent member of the board of directors and where, in respect of his position on the board, the Executive may provide knowledge, counsel and advice that may be informed by his mental impressions, experience and wisdom obtained while employed at the Company, which knowledge, counsel and advice shall not be considered Confidential Information so long as the Executive does not disclose any written, electronic or tangible Confidential Information, (y) is an investor in such an entity, which investment has previously been disclosed to the Company and approved by the Board of Directors of the Company or a committee thereof, or (iii) regardless of whether it is in the Relevant Geographic Area, directly or indirectly, either as principal, agent, independent contractor, consultant, director, officer, employee, employer, advisor, significant stockholder, partner or in any other individual or representative capacity whatsoever, either for his the Executive’s own benefit or for the benefit of any other person or entity either (A) directly hire, contract or solicit, or attempt any of the foregoing, with respect to hiring any employee of the Company or its affiliated companies, or (B) induce or otherwise counsel, advise or encourage any employee of the Company or its affiliated companies to leave the employment of the Company or its affiliated companies companies; provided, however, that the prohibitions set forth in this subparagraph (iii) shall not apply to (x) solicitations made by the Executive or any entity with which the Executive is associated, that are made to the public or the industry generally and not targeted at employees of the Company or its affiliated companies, (y) solicitations in response to any such person who contacts the Executive, or the entity with which the Executive is associated, on his or her own initiative without any prior prohibited solicitations or (z) solicitations implemented or initiated by any entity with which the Executive is associated without the knowledge or participation of the Executive (all of the foregoing activities described in (i), (ii) and (iii) are collectively referred to as the "“Prohibited Activity"”). Notwithstanding anything contained in this Section 10 to the contrary, the Prohibited Activity shall not be applicable to the state or federal waters of the Gulf of Mexico or outside of the United States except as to the area covered by any U.S. or foreign state or federal oil and gas lease, license or permit in which the Company owns a working interest which was acquired by the Company prior to or during the Employment Period and further limited to the depths in which the Company owns such working or operating rights interest. For the avoidance of doubt, the provisions of this Section 10 will only apply in the event of (i) Executive’s voluntary termination of employment without Good Reason and not apply for reasons of Disability or (ii) Executive’s termination of employment in connection with or following a termination of the Executive's employment by the Company with or without Cause, by the Executive due to Disability or Good Reason or by the Executive during a Window PeriodChange in Control.
(b) In addition to all other remedies at law or in equity which the Company may have for breach of a provision of this Section 10 by the Executive, it is agreed that in the event of any breach or attempted or threatened breach of any such provision, the Company shall be entitled, upon application to any court of proper jurisdiction, to a temporary restraining order or preliminary injunction (without the necessity of (i) proving irreparable harm, (ii) establishing that monetary damages are inadequate or (iii) posting any bond with respect thereto) against the Executive prohibiting such breach or attempted or threatened breach by proving only the existence of such breach or attempted or threatened breach. If the provisions of this Section 10 should ever be deemed to exceed the time, geographic or occupational limitations permitted by the applicable law, the Executive and the Company agree that such provisions shall be and are hereby reformed to the maximum time, geographic or occupational limitations permitted by the applicable law.
(c) The covenants of the Executive set forth in this Section 10 are independent of and severable from every other provision of this Agreement; and the breach of any other provision of this Agreement by the Company or the breach by the Company of any other agreement between the Company and the Executive shall not affect the validity of the provisions of this Section 10 or constitute a defense of the Executive in any suit or action brought by the Company to enforce any of the provisions of this Section 10 or seek any relief for the breach thereof by the Executive.
(d) The Executive acknowledges, agrees and stipulates that: (i) the terms and provisions of this Agreement are reasonable and constitute an otherwise enforceable agreement to which the terms and provisions of this Section 10 are ancillary or a part of as contemplated by TEX. BUS. & COM. CODE ANN. ▇▇▇. Sections ctions 15.50-15.52; (ii) the consideration provided by the Company under this Agreement is not illusory; and (iii) the consideration given by the Company under this Agreement, including, without limitation, the provision by the Company of Confidential Information to the Executive as contemplated by Section 8, gives rise to the Company's ’s interest in restraining and prohibiting the Executive from engaging in the Prohibited Activity within the Relevant Geographic Area as provided under this Section 10, and the Executive's ’s covenant not to engage in the Prohibited Activity within the Relevant Geographic Area pursuant to this Section 10 is designed to enforce the Executive's ’s consideration (or return promises), including, without limitation, the Executive's ’s promise to not disclose Confidential Information under this Agreement.
Appears in 2 contracts
Sources: Employment Agreement (Carrizo Oil & Gas Inc), Employment Agreement (Carrizo Oil & Gas Inc)
Non-Compete and Non-Solicitation. (a) The Executive recognizes that in each of the highly competitive businesses in which the Company is engaged, personal contact is of primary importance in securing new customers and in retaining the accounts and goodwill of present customers and protecting the business of the Company. The Executive, therefore, agrees that during the Employment Period and, if the Date of Termination occurs by reason of the Executive terminating his employment for reasons other than Disability or Good Reason and other than during a Window Period, for a period of one year after the Date of Termination, he will not either within 20 miles of any geographic location of any Shale play with respect to which he has devoted substantial attention to the material business interests of the Company or any of its affiliated companies or with respect to any immediate geologic trends in any non-Shale plays, in either case, in which the Company or any of its affiliated companies have active leases or are actively pursuing leases through direct employee activity or hired brokers as of the Date of Termination, without regard, in either case, to whether the Executive has worked at such location (the "“Relevant Geographic Area"”), (i) accept employment or render service to any Person that is engaged in a business directly competitive with the business then engaged in by the Company or any of its affiliated companies in the Relevant Geographic Area, (ii) enter into or take part in or lend his name, counsel or assistance to any business, either as proprietor, principal, investor, partner, director, officer, executive, consultant, advisor, agent, independent contractor, or in any other capacity whatsoever, for any purpose that would be competitive with the business of the Company or any of its affiliated companies in the Relevant Geographic Area or (iii) regardless of whether it is in the Relevant Geographic Area, directly or indirectly, either as principal, agent, independent contractor, consultant, director, officer, employee, employer, advisor, stockholder, partner or in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit of any other person or entity either (A) hire, contract or solicit, or attempt any of the foregoing, with respect to hiring any employee of the Company or its affiliated companies, or (B) induce or otherwise counsel, advise or encourage any employee of the Company or its affiliated companies to leave the employment of the Company or its affiliated companies (all of the foregoing activities described in (i), (ii) and (iii) are collectively referred to as the "Prohibited Activity"). Notwithstanding anything contained in this Section 10 to the contrary, the Prohibited Activity shall not be applicable to the state or federal waters of the Gulf of Mexico or outside of the United States except as to the area covered by any U.S. or foreign state or federal oil and gas lease, license or permit in which the Company owns a working interest which was acquired by the Company prior to or during the Employment Period and further limited to the depths in which the Company owns such working or operating rights interest. For the avoidance of doubt, the provisions of this Section 10 will not apply following a termination of the Executive's employment by the Company with or without Cause, by the Executive due to Disability or Good Reason or by the Executive during a Window Period.
(b) In addition to all other remedies at law or in equity which the Company may have for breach of a provision of this Section 10 by the Executive, it is agreed that in the event of any breach or attempted or threatened breach of any such provision, the Company shall be entitled, upon application to any court of proper jurisdiction, to a temporary restraining order or preliminary injunction (without the necessity of (i) proving irreparable harm, (ii) establishing that monetary damages are inadequate or (iii) posting any bond with respect thereto) against the Executive prohibiting such breach or attempted or threatened breach by proving only the existence of such breach or attempted or threatened breach. If the provisions of this Section 10 should ever be deemed to exceed the time, geographic or occupational limitations permitted by the applicable law, the Executive and the Company agree that such provisions shall be and are hereby reformed to the maximum time, geographic or occupational limitations permitted by the applicable law.
(c) The covenants of the Executive set forth in this Section 10 are independent of and severable from every other provision of this Agreement; and the breach of any other provision of this Agreement by the Company or the breach by the Company of any other agreement between the Company and the Executive shall not affect the validity of the provisions of this Section 10 or constitute a defense of the Executive in any suit or action brought by the Company to enforce any of the provisions of this Section 10 or seek any relief for the breach thereof by the Executive.
(d) The Executive acknowledges, agrees and stipulates that: (i) the terms and provisions of this Agreement are reasonable and constitute an otherwise enforceable agreement to which the terms and provisions of this Section 10 are ancillary or a part of as contemplated by TEX. BUS. & COM. CODE ▇▇▇. Sections 15.50-15.52; (ii) the consideration provided by the Company under this Agreement is not illusory; and (iii) the consideration given by the Company under this Agreement, including, without limitation, the provision by the Company of Confidential Information to the Executive as contemplated by Section 8, gives rise to the Company's interest in restraining and prohibiting the Executive from engaging in the Prohibited Activity within the Relevant Geographic Area as provided under this Section 10, and the Executive's covenant not to engage in the Prohibited Activity within the Relevant Geographic Area pursuant to this Section 10 is designed to enforce the Executive's consideration (or return promises), including, without limitation, the Executive's promise to not disclose Confidential Information under this Agreement.or
Appears in 2 contracts
Sources: Employment Agreement (Carrizo Oil & Gas Inc), Employment Agreement (Carrizo Oil & Gas Inc)
Non-Compete and Non-Solicitation. (a) The Executive recognizes that in each of the highly competitive businesses in which As an inducement to the Company is engagedto enter into this Agreement, personal contact is of primary importance in securing new customers and in retaining the accounts and goodwill of present customers and protecting the business of the Company. The Executive, therefore, Executive agrees that (i) during the Employment Period and, if the Date of Termination occurs by reason of the Executive terminating his employment for reasons other than Disability or Good Reason and other than during a Window Period, for a Executive’s period of one year after the Date of Termination, he will not either within 20 miles of any geographic location of any Shale play employment with respect to which he has devoted substantial attention to the material business interests of the Company or any of its affiliated companies Affiliates, and (ii) during the twelve (12)-month period following the Termination Date (the “Non-compete Period”), the Executive shall not, directly or indirectly, own, manage, control, participate in, consult with, render services for, or in any manner engage in, any business competing directly or indirectly with the business as conducted by the Company or any of its Affiliates during the Executive’s period of employment with the Company or any of its Affiliates or at the time of the Termination Date or with respect to any immediate geologic trends in other business that is the logical extension of the Company’s and its Affiliates’ business during the Executive’s period of employment with the Company or any non-Shale playsof its Affiliates or at the time of the Executive’s Termination of Employment, in either case, within any metropolitan area in which the Company or any of its affiliated companies have active leases Affiliates engages or are actively pursuing leases through direct employee activity has definitive plans to engage in such business; provided, however, that the Executive shall not be precluded from purchasing or hired brokers holding publicly traded securities of any entity so long as the Executive shall hold less than 2% of the Date outstanding units of Terminationany such class of securities and has no active participation in the business of such entity. The Executive agrees that the following entities are examples of competitive businesses and are not exclusive: Crunch, without regard24 Hour, in either caseEquinox, NY Health and Racquet Club, LA Fitness, Sports & Health, Lifetime and Bally’s.
(b) As an inducement to whether the Company to enter into this Agreement the Executive has worked at such location (agrees that during the "Relevant Geographic Area")Non-compete Period, the Executive shall not directly or indirectly (i) accept employment induce or render service attempt to induce any Person that is engaged in a business directly competitive with the business then engaged in by the Company or any of its affiliated companies in the Relevant Geographic Area, (ii) enter into or take part in or lend his name, counsel or assistance to any business, either as proprietor, principal, investor, partner, director, officer, executive, consultant, advisor, agent, independent contractor, or in any other capacity whatsoever, for any purpose that would be competitive with the business employee of the Company or any of its affiliated companies in Affiliates to leave the Relevant Geographic Area employ of the Company or (iii) regardless any of whether it is in the Relevant Geographic Areaits Affiliates, directly or indirectly, either as principal, agent, independent contractor, consultant, director, officer, employee, employer, advisor, stockholder, partner or in any other individual way interfere with the relationship between the Company or representative capacity whatsoever, either for his own benefit or for the benefit of any other person or entity either (A) hire, contract or solicit, or attempt any of the foregoingits Affiliates and any employee thereof, with respect to hiring (ii) hire any person who was an employee of the Company or any of its affiliated companiesAffiliates at any time during the Executive’s employment period except for such employees who have been terminated for at least six months, or (Biii) induce or otherwise counselattempt to induce any customer, advise supplier, licensee, franchisor or encourage any employee other business relation of the Company or any of its affiliated companies Affiliates to leave cease doing business with such member, or in any way interfere with the employment of relationship between any such customer, supplier, licensee, franchisor or business relation, on the one hand, and the Company or any of its affiliated companies (all of Affiliates, on the foregoing activities described in (i), (ii) and (iii) are collectively referred to as the "Prohibited Activity"). Notwithstanding anything contained in this Section 10 to the contrary, the Prohibited Activity shall not be applicable to the state or federal waters of the Gulf of Mexico or outside of the United States except as to the area covered by any U.S. or foreign state or federal oil and gas lease, license or permit in which the Company owns a working interest which was acquired by the Company prior to or during the Employment Period and further limited to the depths in which the Company owns such working or operating rights interest. For the avoidance of doubt, the provisions of this Section 10 will not apply following a termination of the Executive's employment by the Company with or without Cause, by the Executive due to Disability or Good Reason or by the Executive during a Window Period.
(b) In addition to all other remedies at law or in equity which the Company may have for breach of a provision of this Section 10 by the Executive, it is agreed that in the event of any breach or attempted or threatened breach of any such provision, the Company shall be entitled, upon application to any court of proper jurisdiction, to a temporary restraining order or preliminary injunction (without the necessity of (i) proving irreparable harm, (ii) establishing that monetary damages are inadequate or (iii) posting any bond with respect thereto) against the Executive prohibiting such breach or attempted or threatened breach by proving only the existence of such breach or attempted or threatened breach. If the provisions of this Section 10 should ever be deemed to exceed the time, geographic or occupational limitations permitted by the applicable law, the Executive and the Company agree that such provisions shall be and are hereby reformed to the maximum time, geographic or occupational limitations permitted by the applicable lawhand.
(c) The covenants of the Executive set forth in this Section 10 are independent of and severable from every other provision of this Agreement; and the breach of any other provision of this Agreement by the Company or the breach by the Company of any other agreement between the Company and the Executive shall not affect the validity of the provisions of this Section 10 4 shall survive any expiration or constitute termination of this Agreement.
(d) If it is determined by a defense court of the Executive in any suit or action brought by the Company to enforce competent jurisdiction that any of the provisions of this Section 10 4 is excessive in duration or seek any relief for the breach thereof scope or otherwise is unenforceable, then such provision may be modified or supplemented by the Executive.
(d) The Executive acknowledges, agrees and stipulates that: (i) the terms and provisions of this Agreement are reasonable and constitute an otherwise court to render it enforceable agreement to which the terms and provisions of this Section 10 are ancillary or a part of as contemplated by TEX. BUS. & COM. CODE ▇▇▇. Sections 15.50-15.52; (ii) the consideration provided by the Company under this Agreement is not illusory; and (iii) the consideration given by the Company under this Agreement, including, without limitation, the provision by the Company of Confidential Information to the Executive as contemplated maximum extent permitted by Section 8, gives rise to the Company's interest in restraining and prohibiting the Executive from engaging in the Prohibited Activity within the Relevant Geographic Area as provided under this Section 10, and the Executive's covenant not to engage in the Prohibited Activity within the Relevant Geographic Area pursuant to this Section 10 is designed to enforce the Executive's consideration (or return promises), including, without limitation, the Executive's promise to not disclose Confidential Information under this Agreementlaw.
Appears in 2 contracts
Sources: Executive Severance Agreement (Town Sports International Holdings Inc), Executive Severance Agreement (Town Sports International Holdings Inc)
Non-Compete and Non-Solicitation. (a) The Executive recognizes that in each of the highly competitive businesses in which the Company is engaged, personal contact is of primary importance in securing new customers and in retaining the accounts and goodwill of present customers and protecting the business of the Company. The Executive, therefore, agrees that during the Employment Period and, if the Date of Termination occurs (i) by reason of the Executive terminating his employment for reasons other than Disability or Good Reason and other than during or (ii) in connection with or following a Window PeriodChange in Control, for a period of one year after the Date of Termination, he will not either within 20 miles of any geographic location of any Shale play with respect to which he has devoted substantial attention to the material business interests of the Company or any of its affiliated companies or with respect to any immediate geologic trends in any non-Shale plays, in either case, in which the Company or any of its affiliated companies have active leases or are actively pursuing leases through direct employee activity or hired brokers as of the Date of Termination, without regard, in either case, to whether the Executive has worked at such location (the "“Relevant Geographic Area"”), (i) accept employment or render service material services to any Person entity that is engaged in a business directly competitive with the business then engaged in by the Company or any of its affiliated companies in the Relevant Geographic Area, (ii) enter into into, or take part in in, or lend his name, counsel or material assistance to to, any business, entity either as proprietor, principal, investoror owner of more than 5% of such entity, partner, director, or act as an officer, executive, employee, consultant, advisor, agent, independent contractorcontractor to or for such entity, or in any other capacity whatsoever, for any purpose either case with respect to an entity that would be directly competitive with the business of the Company or any of its affiliated companies in the Relevant Geographic Area Area; provided, however, that the prohibitions set forth in this subparagraphs (i) and (ii) shall not apply to actions by the Executive with respect to any entity where the Executive (x) serves as an independent member of the board of directors and where, in respect of his position on the board, the Executive may provide knowledge, counsel and advice that may be informed by his mental impressions, experience and wisdom obtained while employed at the Company, which knowledge, counsel and advice shall not be considered Confidential Information so long as the Executive does not disclose any written, electronic or tangible Confidential Information, (y) is an investor in such an entity, which investment has previously been disclosed to the Company and approved by the Board of Directors of the Company or a committee thereof, or (iii) regardless of whether it is in the Relevant Geographic Area, directly or indirectly, either as principal, agent, independent contractor, consultant, director, officer, employee, employer, advisor, significant stockholder, partner or in any other individual or representative capacity whatsoever, either for his the Executive’s own benefit or for the benefit of any other person or entity either (A) directly hire, contract or solicit, or attempt any of the foregoing, with respect to hiring any employee of the Company or its affiliated companies, or (B) induce or otherwise counsel, advise or encourage any employee of the Company or its affiliated companies to leave the employment of the Company or its affiliated companies companies; provided, however, that the prohibitions set forth in this subparagraph (iii) shall not apply to (x) solicitations made by the Executive or any entity with which the Executive is associated, that are made to the public or the industry generally and not targeted at employees of the Company or its affiliated companies, (y) solicitations in response to any such person who contacts the Executive, or the entity with which the Executive is associated, on his or her own initiative without any prior prohibited solicitations or (z) solicitations implemented or initiated by any entity with which the Executive is associated without the knowledge or participation of the Executive (all of the foregoing activities described in (i), (ii) and (iii) are collectively referred to as the "“Prohibited Activity"”). Notwithstanding anything contained in this Section 10 to the contrary, the Prohibited Activity shall not be applicable to the state or federal waters of the Gulf of Mexico or outside of the United States except as to the area covered by any U.S. or foreign state or federal oil and gas lease, license or permit in which the Company owns a working interest which was acquired by the Company prior to or during the Employment Period and further limited to the depths in which the Company owns such working or operating rights interest. For the avoidance of doubt, the provisions of this Section 10 will only apply in the event of (i) Executive’s voluntary termination of employment without Good Reason and not apply for reasons of Disability or (ii) Executive’s termination of employment in connection with or following a termination of the Executive's employment by the Company with or without Cause, by the Executive due to Disability or Good Reason or by the Executive during a Window PeriodChange in Control.
(b) In addition to all other remedies at law or in equity which the Company may have for breach of a provision of this Section 10 by the Executive, it is agreed that in the event of any breach or attempted or threatened breach of any such provision, the Company shall be entitled, upon application to any court of proper jurisdiction, to a temporary restraining order or preliminary injunction (without the necessity of (i) proving irreparable harm, (ii) establishing that monetary damages are inadequate or (iii) posting any bond with respect thereto) against the Executive prohibiting such breach or attempted or threatened breach by proving only the existence of such breach or attempted or threatened breach. If the provisions of this Section 10 should ever be deemed to exceed the time, geographic or occupational limitations permitted by the applicable law, the Executive and the Company agree that such provisions shall be and are hereby reformed to the maximum time, geographic or occupational limitations permitted by the applicable law.
(c) The covenants of the Executive set forth in this Section 10 are independent of and severable from every other provision of this Agreement; and the breach of any other provision of this Agreement by the Company or the breach by the Company of any other agreement between the Company and the Executive shall not affect the validity of the provisions of this Section 10 or constitute a defense of the Executive in any suit or action brought by the Company to enforce any of the provisions of this Section 10 or seek any relief for the breach thereof by the Executive.
(d) The Executive acknowledges, agrees and stipulates that: (i) the terms and provisions of this Agreement are reasonable and constitute an otherwise enforceable agreement to which the terms and provisions of this Section 10 are ancillary or a part of as contemplated by TEX. BUS. & COM. CODE ▇▇▇. Sections 15.50-15.52; (ii) the consideration provided by the Company under this Agreement is not illusory; and (iii) the consideration given by the Company under this Agreement, including, without limitation, the provision by the Company of Confidential Information to the Executive as contemplated by Section 8, gives rise to the Company's ’s interest in restraining and prohibiting the Executive from engaging in the Prohibited Activity within the Relevant Geographic Area as provided under this Section 10, and the Executive's ’s covenant not to engage in the Prohibited Activity within the Relevant Geographic Area pursuant to this Section 10 is designed to enforce the Executive's ’s consideration (or return promises), including, without limitation, the Executive's ’s promise to not disclose Confidential Information under this Agreement.
Appears in 2 contracts
Sources: Employment Agreement (Carrizo Oil & Gas Inc), Employment Agreement (Carrizo Oil & Gas Inc)
Non-Compete and Non-Solicitation. (a) The Executive recognizes that in each of the highly competitive businesses in which the Company is engaged, personal contact is of primary importance in securing new customers and in retaining the accounts and goodwill of present customers and protecting the business of the Company. The Executive, therefore, agrees that during the Employment Period and, if the Date of Termination occurs by reason of the Executive terminating his employment for reasons other than Disability or Good Reason and other than during a Window Period, for a period of one year after the Date of Termination, he will not either within 20 miles of any geographic location of any Shale play with respect to which he has devoted substantial attention to the material business interests of the Company or any of its affiliated companies or with respect to any immediate geologic trends in any non-Shale plays, in either case, plays in which the Company or any of its affiliated companies have is active leases or are actively pursuing leases through direct employee activity or hired brokers as of the Date of Termination, without regard, in either case, to whether the Executive has worked at such location (the "Relevant Geographic Area"), (i) accept employment or render service to any Person person that is engaged in a business directly competitive with the business then engaged in by the Company or any of its affiliated companies in the Relevant Geographic Areacompanies, (ii) enter into or take part in or lend his name, counsel or assistance to any business, either as proprietor, principal, investor, partner, director, officer, executive, consultant, advisor, agent, independent contractor, or in any other capacity whatsoever, for any purpose that would be competitive with the business of the Company or any of its affiliated companies in the Relevant Geographic Area or (iii) regardless of whether it is in the Relevant Geographic Areageographic area, directly or indirectly, either as principal, agent, independent contractor, consultant, director, officer, employee, employer, advisor, stockholder, partner or in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit of any other person or entity either (A) hire, contract or solicit, or attempt any of the foregoing, with respect to hiring any employee of the Company or its affiliated companies, or (B) induce or otherwise counsel, advise or encourage any employee of the Company or its affiliated companies to leave the employment of the Company or its affiliated companies (all of the foregoing activities described in (i), (ii) and (iii) are collectively referred to as the "Prohibited Activity"). Notwithstanding anything contained in this Section 10 to the contrary, the Prohibited Activity shall not be applicable to the state or federal waters of the Gulf of Mexico or outside of the United States except as to the area covered by any U.S. or foreign state or federal oil and gas lease, license or permit lease in which the Company owns a working interest which was acquired by the Company prior to or during the Employment Period and further limited to the depths in which the Company owns such working or operating rights interest. For the avoidance of doubt, the provisions of this Section 10 will not apply following a termination of the Executive's employment by the Company with or without Cause, by the Executive due to Disability or Good Reason or by the Executive during a Window Period.
(b) In addition to all other remedies at law or in equity which the Company may have for breach of a provision of this Section 10 by the Executive, it is agreed that in the event of any breach or attempted or threatened breach of any such provision, the Company shall be entitled, upon application to any court of proper jurisdiction, to a temporary restraining order or preliminary injunction (without the necessity of (i) proving irreparable harm, (ii) establishing that monetary damages are inadequate or (iii) posting any bond with respect thereto) against the Executive prohibiting such breach or attempted or threatened breach by proving only the existence of such breach or attempted or threatened breach. If the provisions of this Section 10 should ever be deemed to exceed the time, geographic or occupational limitations permitted by the applicable law, the Executive and the Company agree that such provisions shall be and are hereby reformed to the maximum time, geographic or occupational limitations permitted by the applicable law.
(c) The covenants of the Executive set forth in this Section 10 are independent of and severable from every other provision of this Agreement; and the breach of any other provision of this Agreement by the Company or the breach by the Company of any other agreement between the Company and the Executive shall not affect the validity of the provisions of this Section 10 or constitute a defense of the Executive in any suit or action brought by the Company to enforce any of the provisions of this Section 10 or seek any relief for the breach thereof by the Executive.
(d) The Executive acknowledges, agrees and stipulates that: (i) the terms and provisions of this Agreement are reasonable and constitute an otherwise enforceable agreement to which the terms and provisions of this Section 10 are ancillary or a part of as contemplated by TEX. BUS. & COM. CODE ▇▇▇. Sections 15.50-15.52; (ii) the consideration provided by the Company under this Agreement is not illusory; and (iii) the consideration given by the Company under this Agreement, including, without limitation, the provision by the Company of Confidential Information to the Executive as contemplated by Section 8, gives rise to the Company's interest in restraining and prohibiting the Executive from engaging in the Prohibited Activity within the Relevant Geographic Area as provided under this Section 10, and the Executive's covenant not to engage in the Prohibited Activity within the Relevant Geographic Area pursuant to this Section 10 is designed to enforce the Executive's consideration (or return promises), including, without limitation, the Executive's promise to not disclose Confidential Information under this Agreement.
Appears in 1 contract
Non-Compete and Non-Solicitation. (a) The Executive Employee recognizes that in each of the highly competitive businesses in which the Company is engaged, personal contact is of primary importance in securing new customers and in retaining the accounts and goodwill of present customers and protecting the business of the Company. The ExecutiveEmployee, therefore, agrees that during the Employment Period and, if unless the Date of Termination occurs by reason within two years following a Change of the Executive terminating his employment for reasons other than Disability or Good Reason and other than during a Window PeriodControl, for a period of one year after the Date of Termination, he will not either within 20 miles of any geographic location of any Shale play with respect to which he has devoted substantial attention to the material business interests of the Company or any of its affiliated companies or with respect to any immediate geologic trends in any non-Shale plays, in either case, in which the Company or any of its affiliated companies have active leases or are actively pursuing leases through direct employee activity or hired brokers as of the Date of Termination, without regard, in either case, to whether the Executive Employee has worked at such location (the "“Relevant Geographic Area"”), (i) accept employment or render service to any Person that is engaged in a business directly competitive with the business then engaged in by the Company or any of its affiliated companies in the Relevant Geographic Area, (ii) enter into or take part in or lend his name, counsel or assistance to any business, either as proprietor, principal, investor, partner, director, officer, executive, consultant, advisor, agent, independent contractor, or in any other capacity whatsoever, for any purpose that would be competitive with the business of the Company or any of its affiliated companies in the Relevant Geographic Area or (iii) regardless of whether it is in the Relevant Geographic Area, directly or indirectly, either as principal, agent, independent contractor, consultant, director, officer, employee, employer, advisor, stockholder, partner or in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit of any other person or entity either (A) hire, contract or solicit, or attempt any of the foregoing, with respect to hiring any employee of the Company or its affiliated companies, or (B) induce or otherwise counsel, advise or encourage any employee of the Company or its affiliated companies to leave the employment of the Company or its affiliated companies (all of the foregoing activities described in (i), (ii) and (iii) are collectively referred to as the "“Prohibited Activity"”). Notwithstanding anything contained in this Section 10 9 to the contrary, the Prohibited Activity shall not be applicable to the state or federal waters of the Gulf of Mexico or outside of the United States except as to the area covered by any U.S. or foreign state or federal oil and gas lease, license or permit in which the Company owns a working interest which was acquired by the Company prior to or during the Employment Period and further limited to the depths in which the Company owns such working or operating rights interest. For the avoidance of doubt, the provisions of this Section 10 9 will not apply if the Employee’s Date of Termination occurs within two years following a termination Change of the Executive's employment by the Company with or without Cause, by the Executive due to Disability or Good Reason or by the Executive during a Window PeriodControl.
(ba) In addition to all other remedies at law or in equity which the Company may have for breach of a provision of this Section 10 9 by the ExecutiveEmployee, it is agreed that in the event of any breach or attempted or threatened breach of any such provision, the Company shall be entitled, upon application to any court of proper jurisdiction, to a temporary restraining order or preliminary injunction (without the necessity of (i) proving irreparable harm, (ii) establishing that monetary damages are inadequate or (iii) posting any bond with respect thereto) against the Executive Employee prohibiting such breach or attempted or threatened breach by proving only the existence of such breach or attempted or threatened breach. If the provisions of this Section 10 9 should ever be deemed to exceed the time, geographic or occupational limitations permitted by the applicable law, the Executive Employee and the Company agree that such provisions shall be and are hereby reformed to the maximum time, geographic or occupational limitations permitted by the applicable law.
(cb) The covenants of the Executive Employee set forth in this Section 10 9 are independent of and severable from every other provision of this Agreement; and the breach of any other provision of this Agreement by the Company or the breach by the Company of any other agreement between the Company and the Executive Employee shall not affect the validity of the provisions of this Section 10 9 or constitute a defense of the Executive Employee in any suit or action brought by the Company to enforce any of the provisions of this Section 10 9 or seek any relief for the breach thereof by the ExecutiveEmployee.
(dc) The Executive Employee acknowledges, agrees and stipulates that: (i) the terms and provisions of this Agreement are reasonable and constitute an otherwise enforceable agreement to which the terms and provisions of this Section 10 9 are ancillary or a part of as contemplated by TEX. BUS. & COM. CODE ▇▇▇. Sections 15.50-15.52; (ii) the consideration provided by the Company under this Agreement is not illusory; and (iii) the consideration given by the Company under this Agreement, including, without limitation, the provision by the Company of Confidential Information to the Executive Employee as contemplated by Section 87, gives rise to the Company's ’s interest in restraining and prohibiting the Executive Employee from engaging in the Prohibited Activity within the Relevant Geographic Area as provided under this Section 109, and the Executive's Employee’s covenant not to engage in the Prohibited Activity within the Relevant Geographic Area pursuant to this Section 10 9 is designed to enforce the Executive's Employee’s consideration (or return promises), including, without limitation, the Executive's Employee’s promise to not disclose Confidential Information under this Agreement.
Appears in 1 contract
Non-Compete and Non-Solicitation. (a) The Executive recognizes that in each A. During my term of the highly competitive businesses in which the Company is engaged, personal contact is of primary importance in securing new customers and in retaining the accounts and goodwill of present customers and protecting the business of the Company. The Executive, therefore, agrees that during the Employment Period and, if the Date of Termination occurs by reason of the Executive terminating his employment for reasons other than Disability or Good Reason and other than during a Window Period, for a period of one year after the Date of Termination, he will not either within 20 miles of any geographic location of any Shale play with respect to which he has devoted substantial attention to the material business interests of the Company or any of its affiliated companies or with respect to any immediate geologic trends in any non-Shale plays, in either case, in which the Company or any of its affiliated companies have active leases or are actively pursuing leases through direct employee activity or hired brokers as of the Date of Termination, without regard, in either case, to whether the Executive has worked at such location (the "Relevant Geographic Area"), (i) accept employment or render service to any Person that is engaged in a business directly competitive with the business then engaged in by the Company I will not engage or participate or assist any of its affiliated companies in the Relevant Geographic Area, (ii) enter into or take part in or lend his name, counsel or assistance to any business, either as proprietor, principal, investor, partner, director, officer, executive, consultant, advisor, agent, independent contractor, or in any other capacity whatsoever, for any purpose that would be competitive with the business of the Company or any of its affiliated companies in the Relevant Geographic Area or (iii) regardless of whether it is in the Relevant Geographic Areaperson, directly or indirectly, either as principal, agent, independent contractor, consultant, director, officer, employee, employer, advisor, stockholder, partner or in any other individual or representative capacity whatsoeverin any business or enterprise that competes with the business, present or prospective, of the Company without the express written consent of the Company. I may, however, retain personal investments held by me as of the date hereof provided that by those investments I am not involved in the management or operation of that business. It is agreed that, should I own or control less than five percent (5%) of the issued publicly traded stock of, or equity in, a business, such ownership shall not constitute a violation of this provision.
B. I agree further that for the period of my employment by the Company and for 12 months after the date of termination of my employment with the Company I will neither (a) solicit the business of any client or customer of the Company (other than on behalf of the Company), (b) either for directly or through others, solicit or attempt to solicit any employee, independent contractor or consultant of the Company to terminate his own benefit or her relationship with the Company in order to become an employee, consultant or independent contractor to or for the benefit of any other person or entity either entity, nor (Ac) hiredirectly or indirectly induce any client, contract customer, supplier, vendor, consultant or solicit, or attempt any of the foregoing, with respect to hiring any employee independent contractor of the Company to terminate or negatively alter his, her or its affiliated companiesrelationship with the Company.
C. I acknowledge that through my employment with the Company I will acquire access to information suited to immediate application by a business in competition with the Company. I specifically acknowledge that, or (B) induce or otherwise counsel, advise or encourage any employee because of the nature and type of business that the Company or its affiliated companies to leave engages in, the employment geographic scope of the Company or its affiliated companies (all of the foregoing activities described in (i), (ii) and (iii) are collectively referred to as the "Prohibited Activity"). Notwithstanding anything contained covenants in this Section 10 to the contraryArticle IV shall include all counties, the Prohibited Activity shall not be applicable to the state or federal waters of the Gulf of Mexico or outside of cities and states in the United States except as to the area covered by and any U.S. other city, country, territory or foreign state or federal oil and gas lease, license or permit region in which the Company owns a working interest which was acquired by conducts business. I agree and acknowledge that the Company prior to or during the Employment Period foregoing restrictions, geographic scope and further limited to the depths time limitations set forth in which the Company owns such working or operating rights interest. For the avoidance of doubtthis Article IV are reasonable, and that the provisions in this Article IV are reasonably necessary for the protection of the Company. If any restriction set forth in this Article IV is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceable.
D. I further acknowledge the following provisions of Colorado law, set forth in Colorado Revised Statutes Section 10 will 8-2-113(2): “Any covenant not to compete which restricts the right of any person to receive compensation for performance of skilled or unskilled labor for any employer shall be void, but this subsection (2) shall not apply following to:
(a) Any contract for the purchase and sale of a termination business or the assets of the Executive's employment by the Company with or without Cause, by the Executive due to Disability or Good Reason or by the Executive during a Window Period.business;
(b) In addition to all other remedies at law or in equity which Any contract for the Company may have for breach protection of a provision of this Section 10 by the Executive, it is agreed that in the event of any breach or attempted or threatened breach of any such provision, the Company shall be entitled, upon application to any court of proper jurisdiction, to a temporary restraining order or preliminary injunction (without the necessity of (i) proving irreparable harm, (ii) establishing that monetary damages are inadequate or (iii) posting any bond with respect thereto) against the Executive prohibiting such breach or attempted or threatened breach by proving only the existence of such breach or attempted or threatened breach. If the provisions of this Section 10 should ever be deemed to exceed the time, geographic or occupational limitations permitted by the applicable law, the Executive and the Company agree that such provisions shall be and are hereby reformed to the maximum time, geographic or occupational limitations permitted by the applicable law.trade secrets;
(c) The covenants Any contract provision providing for the recovery of the Executive set forth in this Section 10 are independent expense of educating and severable from every other provision training an employee who has served an employer for a period of this Agreement; and the breach of any other provision of this Agreement by the Company or the breach by the Company of any other agreement between the Company and the Executive shall not affect the validity of the provisions of this Section 10 or constitute a defense of the Executive in any suit or action brought by the Company to enforce any of the provisions of this Section 10 or seek any relief for the breach thereof by the Executive.less than two years;
(d) The Executive acknowledgesand management personnel and officers and employees who constitute professional staff to executive and management personnel.” I acknowledge that this agreement is a contract for the protection of trade secrets under Section 8-2-113(2)(b), agrees and stipulates that: (i) is intended to protect the terms confidential information and provisions trade secrets of this Agreement are reasonable and constitute an otherwise enforceable agreement to which the terms and provisions of this Section 10 are ancillary or a part of as contemplated by TEX. BUS. & COM. CODE ▇▇▇. Sections 15.50-15.52; (ii) the consideration provided by the Company under this Agreement is not illusoryCompany; and (iii) that I am an executive and management employee or professional staff to executive or management personnel, within the consideration given by the Company under this Agreement, including, without limitation, the provision by the Company meaning of Confidential Information to the Executive as contemplated by Section 8, gives rise to -2-113(2)(d).
E. I acknowledge and am prepared for the Company's interest possibility that my standard of living may be reduced during the noncompetition period provided in restraining and prohibiting this Article IV following the Executive from engaging in the Prohibited Activity within the Relevant Geographic Area as provided under this Section 10termination of my employment, and the Executive's covenant not to engage in the Prohibited Activity within the Relevant Geographic Area pursuant to this Section 10 is designed to enforce the Executive's consideration (or return promises), including, without limitation, the Executive's promise to not disclose Confidential Information under this Agreementfully accept any risk associated with that possibility.
Appears in 1 contract
Non-Compete and Non-Solicitation. Employee acknowledges and agrees that: (a1) The Executive recognizes that in each order to perform his obligations and job duties for the Company, Employee will gain Training and access to Confidential Information regarding the Company and/or its Affiliates or customers; (2) use of such Confidential Information in competition with the Company and/or its Affiliates or customers would be detrimental to the business interests of the highly competitive businesses Company and/or its Affiliates or customers; and (3) Employee would not have been allowed to gain access to Confidential Information, or to provide the obligations and job duties contemplated under this Agreement without his promises and agreements contained in the following paragraph. Employee acknowledges and agrees further that the Company is a diverse energy company and that, based on the nature and size of the Company and the scope of its operations, the areas in which the Company is engagedcompetes are not limited. Employee also acknowledges and agrees that the services he will be performing for the Company, personal contact is of primary importance in securing new customers and in retaining the accounts Confidential Information and goodwill of present customers and protecting Training he will be provided, relate to the business world-wide operations of the Company and its Affiliates, and will not be limited to any specific geographic location within which the Company, or any of its Affiliates, conducts business. The ExecutiveEmployee agrees that, therefore, agrees that during the Employment Period and, if the Date of Termination occurs by reason of the Executive terminating his employment for reasons other than Disability or Good Reason with the Company, and other than during a Window Period, for a period of one (1) year after the Date of Terminationthereafter, he will not either within 20 miles of any geographic location of any Shale play with respect to which he has devoted substantial attention to the material business interests of the Company or any of its affiliated companies or with respect to any immediate geologic trends in any non-Shale plays, in either case, in which the Company or any of its affiliated companies have active leases or are actively pursuing leases through direct employee activity or hired brokers as of the Date of Termination, without regard, in either case, to whether the Executive has worked at such location (the "Relevant Geographic Area"), (i) accept employment or render service to any Person that is engaged in a business directly competitive with the business then engaged in by the Company or any of its affiliated companies in the Relevant Geographic Area, (ii) enter into or take part in or lend his name, counsel or assistance to any business, either as proprietor, principal, investor, partner, director, officer, executive, consultant, advisor, agent, independent contractor, or in any other capacity whatsoever, for any purpose that would be competitive with the business of the Company or any of its affiliated companies in the Relevant Geographic Area or (iii) regardless of whether it is in the Relevant Geographic AreaEmployee shall not, directly or indirectly, either as principalan employee, agentemployer, independent contractor, consultant, directoragent, principal, partner, stockholder, officer, employeedirector, employer, advisor, stockholder, partner or in any other individual or representative capacity whatsoevercapacity, either for his own benefit or for the benefit of any other person or entity either entity: (Ai) hireengage or participate in a business which competes in a material manner with the Company or any of its Affiliates in any geographic location in which the Company conducts business; (ii) contact, contract or solicit, solicit or attempt to solicit the business or patronage of any of the foregoingCompany’s (or Affiliate’s) customers, or prospective customers, or any person, firm, corporation, company, partnership, association or entity which was contacted or whose business was solicited, serviced or maintained by the Company (or its Affiliates) during the term of Employee’s employment with respect to hiring the Company; or (iii) solicit, recruit, induce, encourage or in any way cause any employee of the Company (or its affiliated companies, or (Ban Affiliate) induce or otherwise counsel, advise or encourage any employee of to terminate his/her employment with the Company (or its affiliated companies to leave such Affiliate). Notwithstanding the employment of foregoing, the Company or its affiliated companies (all of the foregoing activities described restriction provided in (i), (ii) and (iii) are collectively referred to as the "Prohibited Activity"). Notwithstanding anything contained in this Section 10 to the contrary, the Prohibited Activity above shall not be applicable to the state or federal waters of the Gulf of Mexico or outside of the United States except as to the area covered by any U.S. or foreign state or federal oil and gas lease, license or permit in which the Company owns a working interest which was acquired by the Company prior to or during the Employment Period and further limited to the depths in which the Company owns such working or operating rights interest. For the avoidance of doubt, the provisions of this Section 10 will not apply following a the termination of the Executive's employment by the Company with or without Cause, by the Executive due to Disability or Good Reason or by the Executive during a Window Period.
(b) In addition to all other remedies at law or in equity which the Company may have for breach of a provision of this Section 10 by the Executive, it is agreed that in the event of any breach or attempted or threatened breach of any such provision, the Company shall be entitled, upon application to any court of proper jurisdiction, to a temporary restraining order or preliminary injunction (without the necessity of (i) proving irreparable harm, (ii) establishing that monetary damages are inadequate or (iii) posting any bond with respect thereto) against the Executive prohibiting such breach or attempted or threatened breach by proving only the existence of such breach or attempted or threatened breach. If the provisions of this Section 10 should ever be deemed to exceed the time, geographic or occupational limitations permitted by the applicable law, the Executive and the Company agree that such provisions shall be and are hereby reformed to the maximum time, geographic or occupational limitations permitted by the applicable law.
(c) The covenants of the Executive set forth in this Section 10 are independent of and severable from every other provision of this Agreement; and the breach of any other provision of this Agreement by only if Employee receives the Company payments and benefits provided for in Section 5 or the breach by the Company of any other agreement between the Company and the Executive shall not affect the validity of the provisions of this Section 10 or constitute a defense of the Executive in any suit or action brought by the Company to enforce any of the provisions of this Section 10 or seek any relief for the breach thereof by the Executive6 above.
(d) The Executive acknowledges, agrees and stipulates that: (i) the terms and provisions of this Agreement are reasonable and constitute an otherwise enforceable agreement to which the terms and provisions of this Section 10 are ancillary or a part of as contemplated by TEX. BUS. & COM. CODE ▇▇▇. Sections 15.50-15.52; (ii) the consideration provided by the Company under this Agreement is not illusory; and (iii) the consideration given by the Company under this Agreement, including, without limitation, the provision by the Company of Confidential Information to the Executive as contemplated by Section 8, gives rise to the Company's interest in restraining and prohibiting the Executive from engaging in the Prohibited Activity within the Relevant Geographic Area as provided under this Section 10, and the Executive's covenant not to engage in the Prohibited Activity within the Relevant Geographic Area pursuant to this Section 10 is designed to enforce the Executive's consideration (or return promises), including, without limitation, the Executive's promise to not disclose Confidential Information under this Agreement.
Appears in 1 contract
Non-Compete and Non-Solicitation. (a) The Executive recognizes acknowledges and agrees with the Company that in each during the course of the highly competitive businesses in which Executive’s involvement and/or employment with the Company, such Executive has had and will continue to have the opportunity to develop relationships with existing employees, vendors, suppliers, customers and other business associates of the Company is engaged, personal contact is of primary importance in securing new customers and in retaining the accounts and which relationships constitute goodwill of present customers and protecting the business of the Company. The Executive, therefore, agrees that during and the Employment Period and, Company would be irreparably damaged if the Date of Termination occurs by reason of Executive were to take actions that would damage or misappropriate such goodwill. Accordingly, the Executive terminating his employment for reasons other than Disability or Good Reason and other than during a Window Period, for a period of one year after the Date of Termination, he will not either within 20 miles of any geographic location of any Shale play with respect to which he has devoted substantial attention to the material business interests of agrees as follows:
(i) The Executive acknowledges that the Company or and its Subsidiaries currently conduct their business throughout the United States, including without limitation the areas listed on Exhibit A attached hereto (the “Territory”). For purposes hereof, the “Territory” shall also include any of its affiliated companies or with respect to any immediate geologic trends in any non-Shale plays, in either case, international market in which the Company or any of its affiliated companies Subsidiaries conducts its business or has plans that have active leases or are actively pursuing leases through direct employee activity or hired brokers as of been considered by the Date of Termination, without regardBoard to conduct its business, in either caseevent, at the time of the Executive’s date of termination. Accordingly, during the period commencing on the Effective Date and ending on the 18 month anniversary of the Executive’s termination of employment for any reason (such period is referred to herein as the “Non-Compete Period”), the Executive shall not, directly or indirectly, enter into, engage in, assist, give or lend funds to or otherwise finance, be employed by or consult with, or have a financial or other interest in, any business which engages in marketing, selling, renting or otherwise providing musical instruments, pro-audio equipment or related accessories to retail consumers (including, without limitation, students, schools and other educational institutions) through any means of commerce (including without limitation physical storefronts, mail order or the Internet) within the Territory (the “Line of Business”), whether for or by himself or as a representative for any other person or entity.
(ii) Notwithstanding the foregoing, the aggregate passive ownership by the Executive of no more than two percent (on a fully-diluted basis) of the outstanding equity securities of any entity, which securities are traded on a national or foreign securities exchange, quoted on the Nasdaq Stock Market or other automated quotation system, and which entity competes with the Company (or any part thereof) within the Territory, shall not be deemed to be giving or lending funds to, otherwise financing or having a financial interest in a competitor. In the event that any entity in which the Executive has worked at any financial or other interest directly or indirectly enters into the Line of Business during the Non-Compete Period, the Executive shall use his reasonable best efforts to divest all of his interest (other than any amount permitted to be held pursuant to the first sentence of this Section 8(a)(ii)) in such location (entity within 30 days after learning that such entity has entered the "Relevant Geographic Area"), (i) accept employment or render service to any Person that is engaged in a business directly competitive with the business then engaged in by the Company or any Line of its affiliated companies in the Relevant Geographic Area, (ii) enter into or take part in or lend his name, counsel or assistance to any business, either as proprietor, principal, investor, partner, director, officer, executive, consultant, advisor, agent, independent contractor, or in any other capacity whatsoever, for any purpose that would be competitive with the business of the Company or any of its affiliated companies in the Relevant Geographic Area or Business.
(iii) regardless of whether it is in The Executive covenants and agrees that during the Relevant Geographic AreaNon-Compete Period, the Executive will not, directly or indirectly, either as principal, agent, independent contractor, consultant, director, officer, employee, employer, advisor, stockholder, partner or in any other individual or representative capacity whatsoever, either for his own benefit himself or for the benefit of any other person or entity either (A) hireentity, contract or solicit, or attempt any of the foregoing, with respect to hiring solicit any employee of the Company (other than such Executive’s personal assistant or its affiliated companies, secretary) or (B) induce any Subsidiary to terminate his or otherwise counsel, advise or encourage any employee of her employment with the Company or its affiliated companies to leave the any Subsidiary or employ any such individual during his or her employment of with the Company or its affiliated companies (all any Subsidiary and for a period of the foregoing activities described in (i), (ii) and (iii) are collectively referred to as the "Prohibited Activity"). Notwithstanding anything contained in this Section 10 to the contrary, the Prohibited Activity shall not be applicable to the state six months after such individual terminates his or federal waters of the Gulf of Mexico or outside of the United States except as to the area covered by any U.S. or foreign state or federal oil and gas lease, license or permit in which her employment with the Company owns a working interest which was acquired by the Company prior to or during the Employment Period and further limited to the depths in which the Company owns such working or operating rights interest. For the avoidance of doubt, the provisions of this Section 10 will not apply following a termination of the Executive's employment by the Company with or without Cause, by the Executive due to Disability or Good Reason or by the Executive during a Window Periodany Subsidiary.
(b) In addition The Executive understands that the foregoing restrictions may limit his ability to all earn a livelihood in a business similar to the business of the Company, but he nevertheless believes that he has received and will receive sufficient consideration and other remedies at law or in equity which benefits as an employee of the Company may have for breach of a provision of this Section 10 by the Executiveand as otherwise provided hereunder to clearly justify such restrictions which, it is agreed that in the any event of any breach or attempted or threatened breach of any such provision(given his education, the Company shall be entitled, upon application to any court of proper jurisdiction, to a temporary restraining order or preliminary injunction (without the necessity of (i) proving irreparable harm, (ii) establishing that monetary damages are inadequate or (iii) posting any bond with respect thereto) against the Executive prohibiting such breach or attempted or threatened breach by proving only the existence of such breach or attempted or threatened breach. If the provisions of this Section 10 should ever be deemed to exceed the time, geographic or occupational limitations permitted by the applicable lawskills and ability), the Executive and the Company agree that such provisions shall be and are hereby reformed to the maximum time, geographic or occupational limitations permitted by the applicable lawdoes not believe would prevent him from otherwise earning a living.
(c) The covenants of the Executive set forth in this Section 10 are independent of and severable from every other provision of this Agreement; and the breach of any other provision of this Agreement by the Company or the breach by the Company of any other agreement between the Company and the Executive shall not affect the validity of the provisions of this Section 10 or constitute a defense of 8 shall terminate in the Executive in any suit or action brought by event the Company fails to enforce make any payments required by Section 4(a) and such failure remains uncured for a period equal to at least 30 days after written notice of the provisions of this Section 10 or seek any relief for the breach thereof by the such event from Executive.
(d) The Executive acknowledges, agrees and stipulates that: (i) the terms and provisions of this Agreement are reasonable and constitute an otherwise enforceable agreement to which the terms and provisions of this Section 10 are ancillary or a part of as contemplated by TEX. BUS. & COM. CODE ▇▇▇. Sections 15.50-15.52; (ii) the consideration provided by the Company under this Agreement is not illusory; and (iii) the consideration given by the Company under this Agreement, including, without limitation, the provision by the Company of Confidential Information to the Executive as contemplated by Section 8, gives rise to the Company's interest in restraining and prohibiting the Executive from engaging in the Prohibited Activity within the Relevant Geographic Area as provided under this Section 10, and the Executive's covenant not to engage in the Prohibited Activity within the Relevant Geographic Area pursuant to this Section 10 is designed to enforce the Executive's consideration (or return promises), including, without limitation, the Executive's promise to not disclose Confidential Information under this Agreement.
Appears in 1 contract
Non-Compete and Non-Solicitation. (a) The Executive Employee recognizes that in each of the highly competitive businesses in which the Company is engaged, personal contact is of primary importance in securing new customers and in retaining the accounts and goodwill of present customers and protecting the business of the Company. The ExecutiveEmployee, therefore, agrees that during the Employment Period and, if the Date of Termination occurs by reason of the Executive terminating his employment for reasons other than Disability or Good Reason and other than during a Window Period, for a period of one year after the Date of Termination, he will not either within 20 miles of any geographic location of any Shale play with respect to which he has devoted substantial attention to the material business interests of the Company or any of its affiliated companies or with respect to any immediate geologic trends in any non-Shale plays, in either case, in which the Company or any of its affiliated companies have active leases or are actively pursuing leases through direct employee activity or hired brokers as of the Date of Termination, without regard, in either case, to whether the Executive Employee has worked at such location (the "“Relevant Geographic Area"”), (i) accept employment or render service to any Person that is engaged in a business directly competitive with the business then engaged in by the Company or any of its affiliated companies in the Relevant Geographic Area, (ii) enter into or take part in or lend his name, counsel or assistance to any business, either as proprietor, principal, investor, partner, director, officer, executive, consultant, advisor, agent, independent contractor, or in any other capacity whatsoever, for any purpose that would be competitive with the business of the Company or any of its affiliated companies in the Relevant Geographic Area or (iii) regardless of whether it is in the Relevant Geographic Area, directly or indirectly, either as principal, agent, independent contractor, consultant, director, officer, employee, employer, advisor, stockholder, partner or in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit of any other person or entity either (A) hire, contract or solicit, or attempt any of the foregoing, with respect to hiring any employee of the Company or its affiliated companies, or (B) induce or otherwise counsel, advise or encourage any employee of the Company or its affiliated companies to leave the employment of the Company or its affiliated companies (all of the foregoing activities described in (i), (ii) and (iii) are collectively referred to as the "“Prohibited Activity"”). Notwithstanding anything contained in this Section 10 9 to the contrary, the Prohibited Activity shall not be applicable to the state or federal waters of the Gulf of Mexico or outside of the United States except as to the area covered by any U.S. or foreign state or federal oil and gas lease, license or permit in which the Company owns a working interest which was acquired by the Company prior to or during the Employment Period and further limited to the depths in which the Company owns such working or operating rights interest. For the avoidance of doubt, the provisions of this Section 10 will not apply following a termination of the Executive's employment by the Company with or without Cause, by the Executive due to Disability or Good Reason or by the Executive during a Window Period.
(ba) In addition to all other remedies at law or in equity which the Company may have for breach of a provision of this Section 10 9 by the ExecutiveEmployee, it is agreed that in the event of any breach or attempted or threatened breach of any such provision, the Company shall be entitled, upon application to any court of proper jurisdiction, to a temporary restraining order or preliminary injunction (without the necessity of (i) proving irreparable harm, (ii) establishing that monetary damages are inadequate or (iii) posting any bond with respect thereto) against the Executive Employee prohibiting such breach or attempted or threatened breach by proving only the existence of such breach or attempted or threatened breach. If the provisions of this Section 10 9 should ever be deemed to exceed the time, geographic or occupational limitations permitted by the applicable law, the Executive Employee and the Company agree that such provisions shall be and are hereby reformed to the maximum time, geographic or occupational limitations permitted by the applicable law.
(cb) The covenants of the Executive Employee set forth in this Section 10 9 are independent of and severable from every other provision of this Agreement; and the breach of any other provision of this Agreement by the Company or the breach by the Company of any other agreement between the Company and the Executive Employee shall not affect the validity of the provisions of this Section 10 9 or constitute a defense of the Executive Employee in any suit or action brought by the Company to enforce any of the provisions of this Section 10 9 or seek any relief for the breach thereof by the ExecutiveEmployee.
(dc) The Executive Employee acknowledges, agrees and stipulates that: (i) the terms and provisions of this Agreement are reasonable and constitute an otherwise enforceable agreement to which the terms and provisions of this Section 10 9 are ancillary or a part of as contemplated by TEX. BUS. & COM. CODE ▇▇▇. Sections 15.50-15.52; (ii) the consideration provided by the Company under this Agreement is not illusory; and (iii) the consideration given by the Company under this Agreement, including, without limitation, the provision by the Company of Confidential Information to the Executive Employee as contemplated by Section 87, gives rise to the Company's ’s interest in restraining and prohibiting the Executive Employee from engaging in the Prohibited Activity within the Relevant Geographic Area as provided under this Section 109, and the Executive's Employee’s covenant not to engage in the Prohibited Activity within the Relevant Geographic Area pursuant to this Section 10 9 is designed to enforce the Executive's Employee’s consideration (or return promises), including, without limitation, the Executive's Employee’s promise to not disclose Confidential Information under this Agreement.
Appears in 1 contract
Non-Compete and Non-Solicitation. (a) The Executive recognizes that in each of the highly competitive businesses in which the Company is engaged, personal contact is of primary importance in securing new customers and in retaining the accounts and goodwill of present customers and protecting the business of the Company. The Executive, therefore, agrees that during the Employment Period and, if the Date of Termination occurs by reason of the Executive terminating his employment for reasons other than Disability or Good Reason and other than during a Window Period, for a period of one year after the Date of Termination, he will not either within 20 miles of any geographic location of any Shale play with respect to which he has devoted substantial attention to the material business interests of the Company or any of its affiliated companies or with respect to any immediate geologic trends in any non-Shale plays, in either case, in which the Company or any of its affiliated companies have is active leases or are actively pursuing leases through direct employee activity or hired brokers as of the Date of Termination, without regard, in either case, to whether the Executive has worked at such location (the "Relevant Geographic Area"), (i) accept employment or render service to any Person person that is engaged in a business directly competitive with the business then engaged in by the Company or any of its affiliated companies in the Relevant Geographic Areacompanies, (ii) enter into or take part in or lend his name, counsel or assistance to any business, either as proprietor, principal, investor, partner, director, officer, executive, consultant, advisor, agent, independent contractor, or in any other capacity whatsoever, for any purpose that would be competitive with the business of the Company or any of its affiliated companies in the Relevant Geographic Area or (iii) regardless of whether it is in the Relevant Geographic Areageographic area, directly or indirectly, either as principal, agent, independent contractor, consultant, director, officer, employee, employer, advisor, stockholder, partner or in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit of any other person or entity either (A) hire, contract or solicit, or attempt any of the foregoing, with respect to hiring any employee of the Company or its affiliated companies, or (B) induce or otherwise counsel, advise or encourage any employee of the Company or its affiliated companies to leave the employment of the Company or its affiliated companies (all of the foregoing activities described in (i), (ii) and (iii) are collectively referred to as the "Prohibited Activity"). Notwithstanding anything contained in this Section 10 to the contrary, the Prohibited Activity shall not be applicable to the state or federal waters of the Gulf of Mexico or outside of the United States except as to the area covered by any U.S. or foreign state or federal oil and gas lease, license or permit in which the Company owns a working interest which was acquired by the Company prior to or during the Employment Period and further limited to the depths in which the Company owns such working or operating rights interest. For the avoidance of doubt, the provisions of this Section 10 will not apply following a termination of the Executive's employment by the Company with or without Cause, by the Executive due to Disability or Good Reason or by the Executive during a Window Period.
(b) In addition to all other remedies at law or in equity which the Company may have for breach of a provision of this Section 10 by the Executive, it is agreed that in the event of any breach or attempted or threatened breach of any such provision, the Company shall be entitled, upon application to any court of proper jurisdiction, to a temporary restraining order or preliminary injunction (without the necessity of (i) proving irreparable harm, (ii) establishing that monetary damages are inadequate or (iii) posting any bond with respect thereto) against the Executive prohibiting such breach or attempted or threatened breach by proving only the existence of such breach or attempted or threatened breach. If the provisions of this Section 10 should ever be deemed to exceed the time, geographic or occupational limitations permitted by the applicable law, the Executive and the Company agree that such provisions shall be and are hereby reformed to the maximum time, geographic or occupational limitations permitted by the applicable law."
(c7. Section 12(g) The covenants of the Executive set forth in this Section 10 are independent of and severable from every other provision of this Agreement; and the breach of any other provision of this Agreement by the Company or the breach by the Company of any other agreement between the Company and the Executive shall not affect the validity of the provisions of this Section 10 or constitute a defense of the Executive in any suit or action brought by the Company to enforce any of the provisions of this Section 10 or seek any relief for the breach thereof by the Executive.
(d) The Executive acknowledges, agrees and stipulates that: (i) the terms and provisions of this Agreement are reasonable and constitute an otherwise enforceable agreement to which the terms and provisions of this Section 10 are ancillary or a part of as contemplated by TEX. BUS. & COM. CODE ▇▇▇. Sections 15.50-15.52; (ii) the consideration provided by the Company under this Employment Agreement is not illusory; and (iii) the consideration given by the Company under this Agreement, including, without limitation, the provision by the Company of Confidential Information hereby amended to the Executive read hereafter as contemplated by Section 8, gives rise to the Company's interest in restraining and prohibiting the Executive from engaging in the Prohibited Activity within the Relevant Geographic Area as provided under this Section 10, and the Executive's covenant not to engage in the Prohibited Activity within the Relevant Geographic Area pursuant to this Section 10 is designed to enforce the Executive's consideration (or return promises), including, without limitation, the Executive's promise to not disclose Confidential Information under this Agreement.follows:
Appears in 1 contract
Non-Compete and Non-Solicitation. The Executive hereby agrees with the Company that for a period of 12 months following the Termination Date:
(a) The Executive recognizes that in each shall not, without the prior written consent of the highly competitive businesses in which the Company is engaged, personal contact is of primary importance in securing new customers and in retaining the accounts and goodwill of present customers and protecting the business Chief Executive Officer of the Company. The Executive, thereforedirectly or indirectly, agrees engage in, be employed by, act as a consultant or advisor to, be a director, officer, owner or partner of, or acquire an interest in, any business engaged in manufacturing implant, rapid thermal processing, photostabilization or dry strip semiconductor processing systems (a "competitive business"), nor directly or indirectly have any interest in, own, manage, operate, control, be connected with as a stockholder, lender, joint venturer, officer, employee, partner or consultant, or otherwise engage, invest or participate in any competitive business; provided, however, that during the Employment Period and, if the Date of Termination occurs by reason of nothing contained in this Section 5.4 shall prevent the Executive terminating his employment from investing or trading in publicly traded stocks, bonds, commodities or securities or in real estate or other forms of investment for reasons other than Disability Executive's own account and benefit (directly or Good Reason and other than during a Window Period, for a period of one year after the Date of Termination, he will indirectly);
(b) The Executive shall not either within 20 miles of actively solicit any geographic location of any Shale play with respect to which he has devoted substantial attention to the material business interests employee of the Company or any of its affiliated companies subsidiaries or with respect affiliates to any immediate geologic trends in any non-Shale plays, in either case, in which leave the Company or any of its affiliated companies have active leases or are actively pursuing leases through direct employee activity or hired brokers as of the Date of Termination, without regard, in either case, to whether employment thereof; and the Executive has worked at such location (shall not enter onto Company property without prior written consent from the "Relevant Geographic Area"), (i) accept employment or render service to any Person that is engaged in a business directly competitive with the business then engaged in by the Company or any of its affiliated companies in the Relevant Geographic Area, (ii) enter into or take part in or lend his name, counsel or assistance to any business, either as proprietor, principal, investor, partner, director, officer, executive, consultant, advisor, agent, independent contractor, or in any other capacity whatsoever, for any purpose that would be competitive with the business Chief Executive Officer of the Company or any other executive officer of its affiliated companies in the Relevant Geographic Area or Company; and
(iiic) regardless of whether it is in the Relevant Geographic Area, directly or indirectly, either as principal, agent, independent contractor, consultant, director, officer, employee, employer, advisor, stockholder, partner or in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit of any other person or entity either (A) hire, contract or solicit, The Executive shall not induce or attempt to induce any of the foregoingcustomer, supplier, licensor, licensee or other individual, corporation or business organization having a business relationship with respect to hiring any employee of the Company or its affiliated companies, subsidiaries or (B) induce or otherwise counsel, advise or encourage any employee of affiliates to cease doing business with the Company or its affiliated companies to leave subsidiaries or affiliates or in any way interfere with the employment of relationship between any such customer, supplier, licensor, licensee or other individual, corporation or business organization and the Company or its affiliated companies (all subsidiaries or affiliates. Solicitation of customers for the purposes of this obligation refers to existing and/or contemplated products as of the foregoing activities described in time of this Agreement.
(i), (iid) and (iii) are collectively referred to as the "Prohibited Activity"). Notwithstanding anything contained The applicable time periods set forth in this Section 10 to the contrary, the Prohibited Activity 5.4 shall not be applicable to the state or federal waters of the Gulf of Mexico or outside of the United States except as to the area covered by any U.S. or foreign state or federal oil and gas lease, license or permit in which the Company owns a working interest which was acquired extended by the Company prior to or during the Employment Period and further limited to the depths in which the Company owns such working or operating rights interest. For the avoidance time of doubt, the provisions of this Section 10 will not apply following a termination of the Executive's employment by the Company with or without Cause, any (1) breach by the Executive due to Disability or Good Reason or by the Executive during a Window Period.
(b) In addition to all other remedies at law or in equity which the Company may have for breach of a provision any terms of this Section 10 by the ExecutiveAgreement, it is agreed that in the event of any breach or attempted or threatened breach of any such provision, the Company shall be entitled, upon application to any court of proper jurisdiction, to a temporary restraining order or preliminary injunction (without the necessity of (i) proving irreparable harm, (ii) establishing that monetary damages are inadequate or (iii2) posting any bond with respect thereto) against the Executive prohibiting such breach or attempted or threatened breach by proving only the existence of such breach or attempted or threatened breach. If the provisions of this Section 10 should ever be deemed to exceed the time, geographic or occupational limitations permitted by the applicable law, litigation involving the Executive and the Company agree that such provisions shall be and are hereby reformed to the maximum time, geographic or occupational limitations permitted by the applicable law.
(c) The covenants in respect of the Executive set forth in this Section 10 are independent of and severable from every other provision of this Agreement; and the breach of any other provision of this Agreement by the Company or the breach by the Company of any other agreement between the Company and the Executive shall not affect the validity of the provisions of this Section 10 or constitute a defense of the Executive in any suit or action brought by the Company to enforce any of the provisions of this Section 10 or seek any relief for the breach thereof Agreement (whether by the Executive.
(d) The Executive acknowledges, agrees and stipulates that: (i) seeking relief from the terms and provisions of this Agreement are reasonable and constitute an otherwise enforceable agreement to which the terms and provisions of this Section 10 are ancillary hereof or a part of as contemplated by TEX. BUS. & COM. CODE ▇▇▇. Sections 15.50-15.52; (ii) the consideration provided by the Company under this Agreement is not illusory; and (iii) the consideration given by the Company under this Agreement, including, without limitation, the provision by the Company of Confidential Information to the Executive as contemplated by Section 8, gives rise to the Company's interest in restraining and prohibiting the Executive from engaging in the Prohibited Activity within the Relevant Geographic Area as provided under this Section 10, and the Executive's covenant not to engage in the Prohibited Activity within the Relevant Geographic Area pursuant to this Section 10 is designed seeking to enforce the Executive's consideration (terms hereof or return promisesotherwise), including, without limitation, the Executive's promise to not disclose Confidential Information under this Agreement.
Appears in 1 contract
Sources: Executive Separation Agreement (Axcelis Technologies Inc)
Non-Compete and Non-Solicitation. (a) The Executive recognizes In order that in each Acquiror may have and enjoy the full benefit of the highly competitive businesses in which the Company is engaged, personal contact is of primary importance in securing new customers Business and in retaining consideration of, among other things, the accounts consideration provided by Acquiror pursuant to this Agreement and goodwill of present customers and protecting the business entry into the Ancillary Agreements, during the period from the date hereof through the seventh anniversary of the Company. The Executive, therefore, agrees that during the Employment Period and, if the Date of Termination occurs by reason of the Executive terminating his employment for reasons other than Disability or Good Reason and other than during a Window Period, for a period of one year after the Date of Termination, he will not either within 20 miles of any geographic location of any Shale play with respect to which he has devoted substantial attention to the material business interests of the Company or any of its affiliated companies or with respect to any immediate geologic trends in any non-Shale plays, in either case, in which the Company or any of its affiliated companies have active leases or are actively pursuing leases through direct employee activity or hired brokers as of the Date of Termination, without regard, in either case, to whether the Executive has worked at such location date hereof (the "Relevant Geographic Area"“Non-Compete Period”), no Seller Party will:
(i) accept employment directly or indirectly, engage or invest in, own, manage, operate, finance, control or participate in the ownership, management, operation, financing, or control of, be employed by, associated with, or in any manner connected with, lend any credit to, or render service services or advice to or consult with, any Person Person, business, firm, corporation, partnership, association, joint venture or other entity or individual that is engaged engages in a or conducts any business directly competitive with the business then engaged in by the Company Companies or BSI as of the Closing Date, including the Business, anywhere within 150 miles from any of its affiliated companies the operating facilities of the Companies or the BSI Properties; provided, however, the Seller Parties may collectively own less than 1% of the outstanding shares of any class of securities of any enterprise that conducts such business (but without otherwise participating in the Relevant Geographic Areaactivities of such enterprise) if such securities are listed on any national or regional securities exchange or have been registered under Section 12(g) of the Securities Exchange Act of 1934, as amended;
(ii) enter into or take part except as set forth in or lend his name, counsel or assistance to any business, either as proprietor, principal, investor, partner, director, officer, executive, consultant, advisor, agent, independent contractor, or in any other capacity whatsoever, for any purpose that would be competitive with the business of the Company or any of its affiliated companies in the Relevant Geographic Area or (iii) regardless of whether it is in the Relevant Geographic AreaSchedule 5.5, directly or indirectly, either for himself, herself, itself or any other Person or entity, hire any of the officers or directors or other persons employed by the Companies, or Acquiror or its affiliates (with respect to the Business) and their respective successors or assigns, or solicit or induce such persons to leave the employ of the Companies or Acquiror or its affiliates (with respect to the Business);
(iii) directly or indirectly, approach or seek business from any Customer (as principaldefined below), agentrefer business from any Customer to any enterprise or business or be paid commissions based on business sales received from any Customer by any enterprise or business. For purposes of this Section 5.5, independent contractorthe term “Customer” means any Person, consultantfirm, directorcorporation, officerpartnership, employeeassociation or other entity to which the Companies, employerAcquiror or their affiliates or any of their successors or assigns, advisorprovided goods or services during the 36-month period prior to the time at which any determination shall be made that any such Person, stockholderfirm, partner corporation, partnership, association or other entity is a Customer. For the purposes of this Agreement, the term “affiliate” shall mean any entity controlling, controlled by or under common control with the named party;
(iv) disparage the Companies, Acquiror or any of their affiliates in any other individual way which could adversely affect the goodwill, reputation or representative capacity whatsoeverbusiness relationships of the foregoing with the public generally, or with any of their customers, suppliers or employees; or
(v) directly or indirectly, either for his own benefit himself, herself, itself or for the benefit of any other person Person or entity either (A) hireentity, contract or solicitacquire, or attempt any negotiate and/or enter into a lease, royalty arrangement or similar agreement related to the development or exploitation of aggregate reserves or otherwise, relating to, the foregoing, with respect to hiring any employee of the Company or its affiliated companiesTrust Property, or (B) induce render services or otherwise counsel, advise or encourage any employee of the Company or its affiliated companies to leave the employment of the Company or its affiliated companies (all of the foregoing activities described in (i), (ii) and (iii) are collectively referred to as the "Prohibited Activity"). Notwithstanding anything contained in this Section 10 to the contrary, the Prohibited Activity shall not be applicable to the state or federal waters of the Gulf of Mexico or outside of the United States except as to the area covered by any U.S. or foreign state or federal oil and gas lease, license or permit in which the Company owns a working interest which was acquired by the Company prior advice to or during the Employment Period and further limited to the depths consult with any other Person in which the Company owns such working or operating rights interest. For the avoidance of doubt, the provisions of this Section 10 will not apply following a termination of the Executive's employment by the Company with or without Cause, by the Executive due to Disability or Good Reason or by the Executive during a Window Periodconnection therewith.
(b) In addition to all other remedies at law or in equity which Each of the Company may have for breach of a provision Seller Parties acknowledges that the restrictions imposed by this Agreement are fully understood by such Person, are fair and reasonable, and will not preclude such Person from becoming gainfully employed following the execution of this Agreement. Each Seller Party further acknowledges and agrees that the payments to be made to it pursuant to this Agreement are sufficient consideration for its obligations under Section 10 by the Executive, it is agreed that in the event of any breach or attempted or threatened breach of any such provision, the Company shall be entitled, upon application to any court of proper jurisdiction, to a temporary restraining order or preliminary injunction (without the necessity of (i) proving irreparable harm, (ii) establishing that monetary damages are inadequate or (iii) posting any bond with respect thereto) against the Executive prohibiting such breach or attempted or threatened breach by proving only the existence of such breach or attempted or threatened breach. If the provisions of this Section 10 should ever be deemed to exceed the time, geographic or occupational limitations permitted by the applicable law, the Executive and the Company agree that such provisions shall be and are hereby reformed to the maximum time, geographic or occupational limitations permitted by the applicable law5.5(a).
(c) The covenants of the Executive set forth in this Section 10 are independent of and severable from every other provision of this Agreement; and the breach of any other provision of this Agreement by the Company or the breach by the Company of any other agreement between the Company and the Executive shall not affect the validity of the provisions of this Section 10 or constitute a defense of the Executive in any suit or action brought by the Company to enforce If any of the provisions of this Section 10 5.5 shall otherwise contravene or seek be invalid under the Laws of any relief state or other jurisdiction where it is applicable but for such contravention or invalidity, such contravention or invalidity shall not invalidate all of the provisions of this Section 5.5, but rather this Section 5.5 shall be reformed and construed, insofar as the Laws of that state or jurisdiction are concerned, as not containing the provision or provisions, but only to the extent that they are contravening or are invalid under the Laws of that state or jurisdiction, and the rights and obligations created hereby shall be reformed and construed and enforced accordingly. In the event of a breach thereof or violation by any Seller Party of this Section 5.5, Acquiror shall have the Executiveright to pursue all legal remedies provided for herein and, notwithstanding recovery of any such remedy, the Non-Compete Period as to such Seller Party shall be tolled until such breach or violation has been cured.
(d) The Executive acknowledges, agrees Each Seller Party acknowledges that Acquiror will have no adequate remedy at law and stipulates that: (i) may suffer irreparable damage if any of the terms and provisions Seller Parties breach or fail to perform any of this Agreement are reasonable and constitute an otherwise enforceable agreement to which the terms and provisions of this Section 10 are ancillary or a part of as contemplated by TEX. BUS. & COM. CODE ▇▇▇. Sections 15.50-15.52; (ii) the consideration provided by the Company under this Agreement is not illusory; and (iii) the consideration given by the Company under their obligations in this Agreement, including, without limitation, Section 5.5, Section 5.6, Section 5.8 and Section 5.13(b). Accordingly, each of the provision Seller Parties agrees that Acquiror shall have the right, in addition to any other rights which it may have, to specific performance and equitable injunctive relief if any of the Seller Parties shall fail or threaten to fail to perform any of their obligations hereunder. In connection therewith, each of the Seller Parties waive the claim or defense that adequate remedy at law exists.
(e) For the avoidance of doubt, the parties hereto agree that, other than as set forth in Section 5.5(a)(v), this Section 5.5 does not restrict or prohibit the Seller Parties from owning, leasing or using real property for purposes other than in connection with a Business or related activities engaged in by the Company of Confidential Information Companies prior to the Executive as contemplated by Section 8, gives rise to the Company's interest in restraining and prohibiting the Executive from engaging in the Prohibited Activity within the Relevant Geographic Area as provided under Closing Date. The parties hereto also agree that this Section 10, and the Executive's covenant 5.5 does not restrict Perry ▇▇▇▇ ▇▇▇▇▇▇▇’▇ ability to engage in or invest in, own, manage, operate, finance or control the Prohibited Activity within factoring business that he owns as of the Relevant Geographic Area pursuant to this Section 10 is designed to enforce the Executive's consideration (or return promises), including, without limitation, the Executive's promise to not disclose Confidential Information under date of this Agreement.
Appears in 1 contract
Non-Compete and Non-Solicitation. (a) The Executive recognizes acknowledges and agrees with the Company that in each during the course of the highly competitive businesses Executive's involvement and/or employment with, the Company, or Parent, as the case may be, such Executive has had and will continue to have the opportunity to develop relationships with existing employees, vendors, suppliers, customers and other business associates of the Company and its Affiliates which relationships constitute goodwill of the Company, and the Company would be irreparably damaged if the Executive were to take actions that would damage or misappropriate such goodwill and that such harm is inconsistent with the duty owed by Executive as a senior officer and/or director of Parent and/or the Company to preserve the value of such goodwill for the benefit of the stockholders. Accordingly, the Executive agrees as follows:
(i) The Executive acknowledges that the Company and its Affiliates currently conduct business throughout the United States, including without limitation the areas listed on Exhibit A attached hereto (the "Territory"). Accordingly, during the period commencing on the date hereof and ending on the later of (x) the first anniversary of the termination of the Employment Period or (y) if the Executive was terminated without Cause, or resigns with Reasonable Justification, the Scheduled Termination Date (such period is referred to herein as the "Non-Compete Period"), the Executive shall not, directly or indirectly, enter into, engage in, assist, give or lend funds to or otherwise finance, be employed by or consult with, or have a financial or other interest in, any business which engages in selling, at the retail level, (including, without limitation, through retail stores, by phone, by mail, by catalog or by Internet or other means of electronic commerce) musical instruments, pro-audio equipment or related accessories within the Territory (the "Line of Business"), whether for or by himself or as a representative for any other Person.
(ii) Notwithstanding the foregoing, the aggregate ownership by the Executive of no more than two percent (on a fully-diluted basis) of the outstanding equity securities of any entity, which securities are traded on a national or foreign securities exchange, quoted on the Nasdaq Stock Market or other automated quotation system, and which entity competes with the Company (or any part thereof) within the Territory, shall not (by itself) be deemed to be giving or lending funds to, otherwise financing or having a financial interest in a competitor. In the event that any entity in which the Company is engagedExecutive has any financial or other interest directly or indirectly enters into the Line of Business during the Non-Compete Period, personal contact is the Executive shall divest all of primary importance his interest (other than any amount permitted to be held pursuant to the first sentence of this Section 7(a)(ii)) in securing new customers such entity within thirty (30) days after learning that such entity has entered the Line of Business.
(iii) The Executive covenants and in retaining the accounts and goodwill of present customers and protecting the business of the Company. The Executive, therefore, agrees that during the Employment Period andNon-Compete Period, if the Date of Termination occurs by reason Executive will not, directly or indirectly, either for himself or for any other person or entity, (1) solicit any employee of the Executive terminating his employment for reasons Company (other than Disability such Executive's personal assistant or Good Reason secretary) or any Affiliate to terminate his or her employment with the Company or any Affiliate, (2) employ any such individual during his or her employment with the Company or any Affiliate and other than during a Window Period, for a period of one year six months after the Date of Termination, he will not either within 20 miles of any geographic location of any Shale play such individual terminates his or her employment with respect to which he has devoted substantial attention to the material business interests of the Company or any Affiliate or (3) solicit any vendor or business affiliate of the Company to cease to do business with the Company or to change its affiliated companies or practices with respect to any immediate geologic trends in any non-Shale plays, in either case, in which the Company or any of its affiliated companies have active leases or are actively pursuing leases through direct employee activity or hired brokers as of Affiliate.
(b) The Executive understands that the Date of Termination, without regard, in either case, foregoing restrictions may limit his ability to whether the Executive has worked at such location (the "Relevant Geographic Area"), (i) accept employment or render service to any Person that is engaged earn a livelihood in a business directly competitive with the business then engaged in by the Company or any of its affiliated companies in the Relevant Geographic Area, (ii) enter into or take part in or lend his name, counsel or assistance similar to any business, either as proprietor, principal, investor, partner, director, officer, executive, consultant, advisor, agent, independent contractor, or in any other capacity whatsoever, for any purpose that would be competitive with the business of the Company or any of its affiliated companies in the Relevant Geographic Area or (iii) regardless of whether it is in the Relevant Geographic AreaAffiliates, directly or indirectly, either but he nevertheless believes that he has received and will receive sufficient consideration and other benefits as principal, agent, independent contractor, consultant, director, officer, employee, employer, advisor, stockholder, partner or in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit of any other person or entity either (A) hire, contract or solicit, or attempt any of the foregoing, with respect to hiring any an employee of the Company or its affiliated companiesholder of common stock of Parent and as otherwise provided hereunder to clearly justify such restrictions which, or in any event (B) induce or given his education, skills and ability), the Executive does not believe would prevent him from otherwise counselearning a living. Executive also acknowledges that, advise or encourage any employee in connection with the closing of the Company or its affiliated companies to leave transactions contemplated by the employment of the Company or its affiliated companies (Merger Agreement, Parent acquired all of the foregoing activities described in (i), (ii) and (iii) are collectively referred to as the "Prohibited Activity"). Notwithstanding anything contained in this Section 10 to the contrary, the Prohibited Activity shall not be applicable to the state or federal waters of the Gulf of Mexico or outside of the United States except as to the area covered by any U.S. or foreign state or federal oil and gas lease, license or permit in which the Company owns a working interest which was acquired by the Company prior to or during the Employment Period and further limited to the depths in which the Company owns such working or operating rights interest. For the avoidance of doubt, the provisions of this Section 10 will not apply following a termination of the Executive's employment by the Company with or without Cause, by the Executive due to Disability or Good Reason or by the Executive during a Window Period.
(b) In addition to all other remedies at law or in equity which the Company may have for breach of a provision of this Section 10 by the Executive, it is agreed that interests in the event of Company, including any breach previously held directly or attempted or threatened breach of any such provision, the Company shall be entitled, upon application to any court of proper jurisdiction, to a temporary restraining order or preliminary injunction (without the necessity of (i) proving irreparable harm, (ii) establishing that monetary damages are inadequate or (iii) posting any bond with respect thereto) against the Executive prohibiting such breach or attempted or threatened breach indirectly by proving only the existence of such breach or attempted or threatened breach. If the provisions of this Section 10 should ever be deemed to exceed the time, geographic or occupational limitations permitted by the applicable law, the Executive and the Company agree that such provisions shall be and are hereby reformed to the maximum time, geographic or occupational limitations permitted by the applicable lawExecutive.
(c) The covenants contained in Section 7(a) and 7(b) are for the sole benefit of the Executive set forth Company and may be reduced (but not increased) in this Section 10 are independent of and severable from every other provision of this Agreement; and the breach scope, or curtailed as to Territory, time period, or both, without resulting in a modification of any other provision of this Agreement by Agreement, as the Company or the breach by the Company of any other agreement between the Company and the Executive shall not affect the validity of the provisions of this Section 10 or constitute a defense of the Executive may determine in any suit or action brought by the Company to enforce any of the provisions of this Section 10 or seek any relief for the breach thereof by the Executiveits sole discretion.
(d) The Executive acknowledges, agrees and stipulates that: (i) the terms and provisions of this Agreement are reasonable and constitute an otherwise enforceable agreement to which the terms and provisions of this Section 10 are ancillary or a part of as contemplated by TEX. BUS. & COM. CODE ▇▇▇. Sections 15.50-15.52; (ii) 7 shall terminate in the consideration provided by event the Company under this Agreement is not illusory; and (iii) the consideration given by the Company under this Agreement, including, without limitation, the provision by the Company of Confidential Information fails to the Executive as contemplated make any payments required by Section 8, gives rise 4(c) and such failure remains uncured for a period equal to the Company's interest in restraining and prohibiting the Executive at least thirty (30) days after written notice of such event from engaging in the Prohibited Activity within the Relevant Geographic Area as provided under this Section 10, and the Executive's covenant not to engage in the Prohibited Activity within the Relevant Geographic Area pursuant to this Section 10 is designed to enforce the Executive's consideration (or return promises), including, without limitation, the Executive's promise to not disclose Confidential Information under this Agreement.
Appears in 1 contract
Non-Compete and Non-Solicitation. (a) The Executive recognizes that in each of the highly competitive businesses in which the Company is engaged, personal contact is of primary importance in securing new customers and in retaining the accounts and goodwill of present customers and protecting the business of the Company. The Executive, therefore, agrees that during the Employment Period and, if the Date of Termination occurs by reason of the Executive terminating his employment for reasons other than Disability or Good Reason and other than during a Window Period, for a period of one year after the Date of Termination, he will not either within 20 miles of any geographic location of any Shale play with respect to which he has devoted substantial attention to the material business interests of the Company or any of its affiliated companies or with respect to any immediate geologic trends in any non-Shale plays, in either case, in which the Company or any of its affiliated companies have is active leases or are actively pursuing leases through direct employee activity or hired brokers as of the Date of Termination, without regard, in either case, to whether the Executive has worked at such location (the "Relevant Geographic Area"), (i) accept employment or render service to any Person person that is engaged in a business directly competitive with the business then engaged in by the Company or any of its affiliated companies in the Relevant Geographic Areacompanies, (ii) enter into or take part in or lend his name, counsel or assistance to any business, either as proprietor, principal, investor, partner, director, officer, executive, consultant, advisor, agent, independent contractor, or in any other capacity whatsoever, for any purpose that would be competitive with the business of the Company or any of its affiliated companies in the Relevant Geographic Area or (iii) regardless of whether it is in the Relevant Geographic Areageographic area, directly or indirectly, either as principal, agent, independent contractor, consultant, director, officer, employee, employer, advisor, stockholder, partner or in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit of any other person or entity either (A) hire, contract or solicit, or attempt any of the foregoing, with respect to hiring any employee of the Company or its affiliated companies, or (B) induce or otherwise counsel, advise or encourage any employee of the Company or its affiliated companies to leave the employment of the Company or its affiliated companies (all of the foregoing activities described in (i), (ii) and (iii) are collectively referred to as the "Prohibited Activity"). Notwithstanding anything contained in this Section 10 to the contrary, the Prohibited Activity shall not be applicable to the state or federal waters of the Gulf of Mexico or outside of the United States except as to the area covered by any U.S. or foreign state or federal oil and gas lease, license or permit in which the Company owns a working interest which was acquired by the Company prior to or during the Employment Period and further limited to the depths in which the Company owns such working or operating rights interest. For the avoidance of doubt, the provisions of this Section 10 will not apply following a termination of the Executive's employment by the Company with or without Cause, by the Executive due to Disability or Good Reason or by the Executive during a Window Period.
(b) In addition to all other remedies at law or in equity which the Company may have for breach of a provision of this Section 10 by the Executive, it is agreed that in the event of any breach or attempted or threatened breach of any such provision, the Company shall be entitled, upon application to any court of proper jurisdiction, to a temporary restraining order or preliminary injunction (without the necessity of (i) proving irreparable harm, (ii) establishing that monetary damages are inadequate or (iii) posting any bond with respect thereto) against the Executive prohibiting such breach or attempted or threatened breach by proving only the existence of such breach or attempted or threatened breach. If the provisions of this Section 10 should ever be deemed to exceed the time, geographic or occupational limitations permitted by the applicable law, the Executive and the Company agree that such provisions shall be and are hereby reformed to the maximum time, geographic or occupational limitations permitted by the applicable law.. "
(c8. Section 12(g) The covenants of the Executive set forth in this Section 10 are independent of and severable from every other provision of this Agreement; and the breach of any other provision of this Agreement by the Company or the breach by the Company of any other agreement between the Company and the Executive shall not affect the validity of the provisions of this Section 10 or constitute a defense of the Executive in any suit or action brought by the Company to enforce any of the provisions of this Section 10 or seek any relief for the breach thereof by the Executive.
(d) The Executive acknowledges, agrees and stipulates that: (i) the terms and provisions of this Agreement are reasonable and constitute an otherwise enforceable agreement to which the terms and provisions of this Section 10 are ancillary or a part of as contemplated by TEX. BUS. & COM. CODE ▇▇▇. Sections 15.50-15.52; (ii) the consideration provided by the Company under this Employment Agreement is not illusory; and (iii) the consideration given by the Company under this Agreement, including, without limitation, the provision by the Company of Confidential Information hereby amended to the Executive read hereafter as contemplated by Section 8, gives rise to the Company's interest in restraining and prohibiting the Executive from engaging in the Prohibited Activity within the Relevant Geographic Area as provided under this Section 10, and the Executive's covenant not to engage in the Prohibited Activity within the Relevant Geographic Area pursuant to this Section 10 is designed to enforce the Executive's consideration (or return promises), including, without limitation, the Executive's promise to not disclose Confidential Information under this Agreement.follows:
Appears in 1 contract
Non-Compete and Non-Solicitation. (ai) The Executive recognizes that in each In recognition of the highly competitive businesses in consideration set forth herein, the sufficiency of which the Company is engagedhereby acknowledged, personal contact is of primary importance in securing new customers Employee hereby covenants and in retaining the accounts and goodwill of present customers and protecting the business of the Company. The Executive, therefore, agrees that during the Employment Period andTerm and for a period equal to (a) one year after Employee’s termination of employment for Discharge For Cause, or (b) the Without Cause Severance Pay Period, if the Date of Termination occurs Employee is terminated by reason of Discharge Without Cause, or (c) the Executive terminating his employment for reasons other than Disability or Good Reason and other than during a Window Severance Pay Period, for a period if Employee is terminated by reason of one year after Termination For Good Reason (in either case, the Date of Termination“Non-Compete Term”), he will Employee shall not either within 20 miles directly or indirectly, individually or by or through any Covered Entity, whether for consideration or otherwise: (A) form or assist others in forming, be employed by, perform services for, become a consultant or independent contractor for, invest in (whether through equity or debt securities), assist (financially or otherwise), or lend Employee’s name, counsel or assistance to any entity that engages in a Competing Business anywhere in the Territory (any such entity, a “Competing Entity”), or (B) own, directly or indirectly, any interest in or become an employee, officer, director, member or partner of, or participant in or consultant or independent contractor to a Competing Entity.
(ii) Also in recognition of the consideration set forth in Section 3.9(i), Employee hereby covenants and agrees that during the Non-Compete Term, Employee shall not either directly or indirectly, individually or by or through any geographic location of Covered Entity, whether for consideration or otherwise: (A) solicit or accept business from any Shale play with respect to which he has devoted substantial attention to the material business interests customer, supplier or contractor of the Company or any of its affiliated companies Subsidiaries or with respect to any immediate geologic trends in any non-Shale playsAffiliates, in either each case, in which for the Company purpose of providing goods or any of its affiliated companies have active leases or are actively pursuing leases through direct employee activity or hired brokers as of the Date of Termination, without regard, in either case, to whether the Executive has worked at such location (the "Relevant Geographic Area"), (i) accept employment or render service to any Person that is engaged services in a Competing Business or solicit or induce any customer, supplier or contractor to terminate, reduce or alter in a manner adverse to the Business, any existing business directly competitive arrangement or agreement with the business then engaged in by the Company or any of its affiliated companies in the Relevant Geographic Area, (ii) enter into or take part in or lend his name, counsel or assistance to any business, either as proprietor, principal, investor, partner, director, officer, executive, consultant, advisor, agent, independent contractorCompany, or in any other capacity whatsoever(B) solicit, for any purpose that would be competitive with the business of the Company or any of its affiliated companies in the Relevant Geographic Area or (iii) regardless of whether it is in the Relevant Geographic Area, directly or indirectly, either as principal, agent, independent contractor, consultant, director, officer, employee, employer, advisor, stockholder, partner or in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit of any other person or entity either (A) hire, contract or solicit, attempt to solicit or attempt to hire any of the foregoing, with respect to hiring any person who was an employee or third party consultant or independent contractor of the Company or its affiliated companies, Subsidiaries or (B) induce Affiliates during the 12 months prior to such solicitation or otherwise counsel, advise or encourage any employee of the Company or its affiliated companies to leave the employment of the Company or its affiliated companies (all of the foregoing activities described in (i), (ii) and hire.
(iii) are collectively referred to as Employee agrees that the "Prohibited Activity"). Notwithstanding anything contained in this Section 10 to the contrary, the Prohibited Activity shall not be applicable to the state or federal waters payment of the Gulf of Mexico or outside of the United States except as to the area covered by any U.S. or foreign state or federal oil and gas lease, license or permit in which the Company owns a working interest which was acquired by the Company prior to or during the Employment Period and further limited to the depths in which the Company owns such working or operating rights interest. For the avoidance of doubt, the provisions of this Section 10 will not apply following a termination of the Executive's employment by the Company with or without Cause, by the Executive due to Disability Without Cause Severance Pay or Good Reason or by the Executive during a Window Period.
(b) In addition to all other remedies at law or Severance Pay is conditioned on Employee’s compliance with Sections 3.7, 3.8 and 3.9 and that Employee with forfeit such payments if Employee is in equity which the Company may have for breach of a provision of this Section 10 by the Executive, it is agreed that in the event of any breach or attempted or threatened breach of any such provision, the Company shall be entitled, upon application to any court of proper jurisdiction, to a temporary restraining order or preliminary injunction (without the necessity of (i) proving irreparable harm, (ii) establishing that monetary damages are inadequate or (iii) posting any bond with respect thereto) against the Executive prohibiting such breach or attempted or threatened breach by proving only the existence of such breach or attempted or threatened breach. If the provisions of this Section 10 should ever be deemed to exceed the time, geographic or occupational limitations permitted by the applicable law, the Executive and the Company agree that such provisions shall be and are hereby reformed to the maximum time, geographic or occupational limitations permitted by the applicable lawthese sections.
(c) The covenants of the Executive set forth in this Section 10 are independent of and severable from every other provision of this Agreement; and the breach of any other provision of this Agreement by the Company or the breach by the Company of any other agreement between the Company and the Executive shall not affect the validity of the provisions of this Section 10 or constitute a defense of the Executive in any suit or action brought by the Company to enforce any of the provisions of this Section 10 or seek any relief for the breach thereof by the Executive.
(d) The Executive acknowledges, agrees and stipulates that: (i) the terms and provisions of this Agreement are reasonable and constitute an otherwise enforceable agreement to which the terms and provisions of this Section 10 are ancillary or a part of as contemplated by TEX. BUS. & COM. CODE ▇▇▇. Sections 15.50-15.52; (ii) the consideration provided by the Company under this Agreement is not illusory; and (iii) the consideration given by the Company under this Agreement, including, without limitation, the provision by the Company of Confidential Information to the Executive as contemplated by Section 8, gives rise to the Company's interest in restraining and prohibiting the Executive from engaging in the Prohibited Activity within the Relevant Geographic Area as provided under this Section 10, and the Executive's covenant not to engage in the Prohibited Activity within the Relevant Geographic Area pursuant to this Section 10 is designed to enforce the Executive's consideration (or return promises), including, without limitation, the Executive's promise to not disclose Confidential Information under this Agreement.
Appears in 1 contract
Non-Compete and Non-Solicitation. (a) The Executive recognizes So that in each Buyer may enjoy the full benefits of the highly aircraft bearing inspection and repair business, Seller agrees with the Buyer that for a period of three (3) years after the Closing, neither the Seller nor any of its Affiliates shall engage, directly or indirectly, in lines of businesses competitive businesses in which the Company is engaged, personal contact is of primary importance in securing new customers and in retaining the accounts and goodwill of present customers and protecting to the business of the Company. The Executive's subsidiary, thereforeBearing Inspection Holdings Inc. or its Subsidiaries (collectively, agrees that during "Bearing") anywhere in the Employment Period andworld, if provided, however, should the Date of Termination occurs by reason of the Executive terminating his employment for reasons other than Disability or Good Reason and other than during a Window Period, for a period of one year after the Date of Termination, he will not either within 20 miles of any geographic location of any Shale play with respect to which he has devoted substantial attention to the material business interests of the Company Seller or any of its affiliated companies Affiliates purchase a business, a division or with respect to any immediate geologic trends in any non-Shale plays, in either case, in subsidiary which the Company or any of its affiliated companies have active leases or are actively pursuing leases through direct employee activity or hired brokers as of the Date of Termination, without regard, in either case, to whether the Executive has worked at such location (the "Relevant Geographic Area"), (i) accept employment or render service to any Person that is engaged engages in a line of business directly competitive with the business then engaged in by the Company or any of its affiliated companies in the Relevant Geographic Area, (ii) enter into or take part in or lend his name, counsel or assistance to any business, either as proprietor, principal, investor, partner, director, officer, executive, consultant, advisor, agent, independent contractor, or in any other capacity whatsoever, for any purpose that would be which is competitive with the business of Bearing as it exists on the Closing Date, the Seller or its Affiliate, as applicable, shall have a period of twelve (12) months following the date of such purchase to dispose of such competing business. Seller agrees that the foregoing covenant is intended to prohibit Seller from engaging in such activities, as the case may be, as owner, creditor (except as a trade creditor in the ordinary course of business), partner, stockholder or lender (except as a holder of equity or debt securities in the Company or any a corporation which has a class of its affiliated companies in securities that are publicly traded on a stock exchange or the Relevant Geographic Area or recognized over-the-counter market, and then only to the extent of owning not more than five percent (iii5%) regardless of whether it is in the Relevant Geographic Area, directly or indirectly, either as principal, agent, independent contractor, consultant, director, officer, employee, employer, advisor, stockholder, partner or in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit of any other person or entity either (A) hire, contract or solicit, or attempt any of the foregoing, with respect to hiring any employee issued and outstanding debt or equity securities of the Company or its affiliated companies, or (B) induce or otherwise counsel, advise or encourage any employee of the Company or its affiliated companies to leave the employment of the Company or its affiliated companies (all of the foregoing activities described in (isuch corporation), (ii) and (iii) are collectively referred to as the "Prohibited Activity"). Notwithstanding anything contained in this Section 10 to the contrarycontractor or agent for any person, the Prohibited Activity shall not be applicable to the state firm or federal waters of the Gulf of Mexico or outside of the United States except as to the area covered by any U.S. or foreign state or federal oil and gas lease, license or permit in which the Company owns a working interest which was acquired by the Company prior to or during the Employment Period and further limited to the depths in which the Company owns such working or operating rights interest. For the avoidance of doubt, the provisions of this Section 10 will not apply following a termination of the Executive's employment by the Company with or without Cause, by the Executive due to Disability or Good Reason or by the Executive during a Window Periodcorporation.
(b) In addition consideration of the Unit Consideration and the Seller Note and in order that the Buyer may enjoy the full benefits of the business, Seller covenants and agrees that, for three (3) years after the Closing Date, neither Seller nor any of its Affiliates shall solicit, employ, retain as a consultant, interfere with or attempt to all other remedies at law or in equity which entice away from the Company may have for breach or any Company Subsidiary or any successor to any of a provision the foregoing any individual who is, has agreed to be or within one year of this Section 10 such solicitation, employment, retention, interference or enticement has been, employed or retained by the Executive, it is agreed that in the event of any breach or attempted or threatened breach of any such provisionCompany, the Company shall be entitled, upon application Subsidiary or any successor to any court of proper jurisdiction, to a temporary restraining order or preliminary injunction (without the necessity of (i) proving irreparable harm, (ii) establishing that monetary damages are inadequate or (iii) posting any bond with respect thereto) against the Executive prohibiting such breach or attempted or threatened breach by proving only the existence of such breach or attempted or threatened breach. If the provisions of this Section 10 should ever be deemed to exceed the time, geographic or occupational limitations permitted by the applicable law, the Executive and the Company agree that such provisions shall be and are hereby reformed to the maximum time, geographic or occupational limitations permitted by the applicable lawforegoing.
(c) The covenants Seller acknowledges and agrees that the remedy at law for any breach, or threatened breach, of the Executive set forth in this Section 10 are independent of and severable from every other provision of this Agreement; and the breach of any other provision of this Agreement by the Company or the breach by the Company of any other agreement between the Company and the Executive shall not affect the validity of the provisions of this Section 10 or constitute a defense of the Executive in any suit or action brought by the Company to enforce any of the provisions of this Section 10 5.08 will be inadequate and, accordingly, Seller covenants and agrees that the Buyer shall, in addition to any other rights and remedies which the Buyer may have, be entitled to equitable relief, including injunctive relief, and to the remedy of specific performance with respect to any breach or seek threatened breach of such covenant, as may be available from any court of competent jurisdiction. Such right to obtain equitable relief for may be exercised, at the option of the Buyer, concurrently with, prior to, after, or in lieu of, the exercise of any other rights or remedies that the Buyer may have as a result of any such breach thereof by the Executiveor threatened breach.
(d) The Executive acknowledges, agrees and stipulates that: (i) In the terms and provisions of this Agreement are reasonable and constitute an otherwise enforceable agreement to which event that the terms and provisions of this Section 10 are ancillary 5.08 shall be determined by a court of competent jurisdiction to be unenforceable under applicable law as to that jurisdiction (the parties agreeing that such decision shall not be binding, res judicata or a part of as contemplated by TEX. BUS. & COM. CODE ▇▇▇. Sections 15.50-15.52; (iicollateral estoppel in any other jurisdiction) for any reason whatsoever, then any such provision or provisions shall not be deemed void, but the consideration provided parties hereto agree that said limits may be modified by the Company under court and that said covenant contained in this Agreement Section 5.08 shall be amended in accordance with said modifications, it being specifically agreed by Seller and the Buyer that it is not illusory; their continuing desire that this covenant be enforced to the full extent of its terms and (iii) conditions or if a court finds the consideration given by scope of the Company under this Agreement, including, without limitationcovenant unenforceable, the provision by court should redefine the Company of Confidential Information covenant so as to the Executive as contemplated by Section 8, gives rise to the Company's interest in restraining and prohibiting the Executive from engaging in the Prohibited Activity within the Relevant Geographic Area as provided under this Section 10, and the Executive's covenant not to engage in the Prohibited Activity within the Relevant Geographic Area pursuant to this Section 10 is designed to enforce the Executive's consideration (or return promises), including, without limitation, the Executive's promise to not disclose Confidential Information under this Agreementcomply with applicable law.
Appears in 1 contract
Sources: Securities Purchase Agreement (Us Industries Inc /De)
Non-Compete and Non-Solicitation. (a) The Executive recognizes that in each of the highly competitive businesses in which the Company is engaged, personal contact is of primary importance in securing new customers and in retaining the accounts and goodwill of present customers and protecting the business of the Company. The Executive, therefore, agrees that during the Employment Period and, if the Date of Termination occurs by reason of the Executive terminating his employment for reasons other than Disability or Good Reason and other than during a Window Period, for a period of one year after the Date of Termination, he will not either within 20 miles of any geographic location of any Shale play with respect to which he has devoted substantial attention to the material business interests of the Company or any of its affiliated companies or with respect to any immediate geologic trends in any non-Shale plays, in either case, in which the Company or any of its affiliated companies have is active leases or are actively pursuing leases through direct employee activity or hired brokers as of the Date of Termination, without regard, in either case, to whether the Executive has worked at such location (the "Relevant Geographic Area"), (i) accept employment or render service to any Person person that is engaged in a business directly competitive with the business then engaged in by the Company or any of its affiliated companies in the Relevant Geographic Areacompanies, (ii) enter into or take part in or lend his name, counsel or assistance to any business, either as proprietor, principal, investor, partner, director, officer, executive, consultant, advisor, agent, independent contractor, or in any other capacity whatsoever, for any purpose that would be competitive with the business of the Company or any of its affiliated companies in the Relevant Geographic Area or (iii) regardless of whether it is in the Relevant Geographic Areageographic area, directly or indirectly, either as principal, agent, independent contractor, consultant, director, officer, employee, employer, advisor, stockholder, partner or in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit of any other person or entity either (A) hire, contract or solicit, or attempt any of the foregoing, with respect to hiring any employee of the Company or its affiliated companies, or (B) induce or otherwise counsel, advise or encourage any employee of the Company or its affiliated companies to leave the employment of the Company or its affiliated companies (all of the foregoing activities described in (i), (ii) and (iii) are collectively referred to as the "Prohibited Activity"). Notwithstanding anything contained in this Section 10 to the contrary, the Prohibited Activity shall not be applicable to the state or federal waters of the Gulf of Mexico or outside of the United States except as to the area covered by any U.S. or foreign state or federal oil and gas lease, license or permit in which the Company owns a working interest which was acquired by the Company prior to or during the Employment Period and further limited to the depths in which the Company owns such working or operating rights interest. For the avoidance of doubt, the provisions of this Section 10 will not apply following a termination of the Executive's employment by the Company with or without Cause, by the Executive due to Disability or Good Reason or by the Executive during a Window Period.
(b) In addition to all other remedies at law or in equity which the Company may have for breach of a provision of this Section 10 by the Executive, it is agreed that in the event of any breach or attempted or threatened breach of any such provision, the Company shall be entitled, upon application to any court of proper jurisdiction, to a temporary restraining order or preliminary injunction (without the necessity of (i) proving irreparable harm, (ii) establishing that monetary damages are inadequate or (iii) posting any bond with respect thereto) against the Executive prohibiting such breach or attempted or threatened breach by proving only the existence of such breach or attempted or threatened breach. If the provisions of this Section 10 should ever be deemed to exceed the time, geographic or occupational limitations permitted by the applicable law, the Executive and the Company agree that such provisions shall be and are hereby reformed to the maximum time, geographic or occupational limitations permitted by the applicable law.. "
(c7. Section 12(g) The covenants of the Executive set forth in this Section 10 are independent of and severable from every other provision of this Agreement; and the breach of any other provision of this Agreement by the Company or the breach by the Company of any other agreement between the Company and the Executive shall not affect the validity of the provisions of this Section 10 or constitute a defense of the Executive in any suit or action brought by the Company to enforce any of the provisions of this Section 10 or seek any relief for the breach thereof by the Executive.
(d) The Executive acknowledges, agrees and stipulates that: (i) the terms and provisions of this Agreement are reasonable and constitute an otherwise enforceable agreement to which the terms and provisions of this Section 10 are ancillary or a part of as contemplated by TEX. BUS. & COM. CODE ▇▇▇. Sections 15.50-15.52; (ii) the consideration provided by the Company under this Employment Agreement is not illusory; and (iii) the consideration given by the Company under this Agreement, including, without limitation, the provision by the Company of Confidential Information hereby amended to the Executive read hereafter as contemplated by Section 8, gives rise to the Company's interest in restraining and prohibiting the Executive from engaging in the Prohibited Activity within the Relevant Geographic Area as provided under this Section 10, and the Executive's covenant not to engage in the Prohibited Activity within the Relevant Geographic Area pursuant to this Section 10 is designed to enforce the Executive's consideration (or return promises), including, without limitation, the Executive's promise to not disclose Confidential Information under this Agreement.follows:
Appears in 1 contract
Non-Compete and Non-Solicitation. (a) The Executive recognizes that in each A. During my term of the highly competitive businesses in which the Company is engaged, personal contact is of primary importance in securing new customers and in retaining the accounts and goodwill of present customers and protecting the business of the Company. The Executive, therefore, agrees that during the Employment Period and, if the Date of Termination occurs by reason of the Executive terminating his employment for reasons other than Disability or Good Reason and other than during a Window Period, for a period of one year after the Date of Termination, he will not either within 20 miles of any geographic location of any Shale play with respect to which he has devoted substantial attention to the material business interests of the Company or any of its affiliated companies or with respect to any immediate geologic trends in any non-Shale plays, in either case, in which the Company or any of its affiliated companies have active leases or are actively pursuing leases through direct employee activity or hired brokers as of the Date of Termination, without regard, in either case, to whether the Executive has worked at such location (the "Relevant Geographic Area"), (i) accept employment or render service to any Person that is engaged in a business directly competitive with the business then engaged in by the Company and for one (1) year period thereafter, I will not engage or participate or assist any of its affiliated companies in the Relevant Geographic Area, (ii) enter into or take part in or lend his name, counsel or assistance to any business, either as proprietor, principal, investor, partner, director, officer, executive, consultant, advisor, agent, independent contractor, or in any other capacity whatsoever, for any purpose that would be competitive with the business of the Company or any of its affiliated companies in the Relevant Geographic Area or (iii) regardless of whether it is in the Relevant Geographic Areaperson, directly or indirectly, either as principal, agent, independent contractor, consultant, director, officer, employee, employer, advisor, stockholder, partner or in any other individual or representative capacity whatsoeverin any business or enterprise that competes with the business, present or prospective, of the Company without the express written consent of the Company. I may, however, retain personal investments held by me as of the date hereof provided that by those investments I am not involved in the management or operation of that business. It is agreed that, should I own or control less than five percent (5%) of the issued publicly traded stock of, or equity in, a business, such ownership shall not constitute a violation of this provision.
B. I agree further that for the period of my employment by the Company and for 12 months after the date of termination of my employment with the Company I will neither (a) solicit the business of any client or customer of the Company (other than on behalf of the Company), (b) either for directly or through others, solicit or attempt to solicit any employee, independent contractor or consultant of the Company to terminate his own benefit or her relationship with the Company in order to become an employee, consultant or independent contractor to or for the benefit of any other person or entity either entity, nor (Ac) hiredirectly or indirectly induce any client, contract customer, supplier, vendor, consultant or solicit, or attempt any of the foregoing, with respect to hiring any employee independent contractor of the Company to terminate or negatively alter his, her or its affiliated companiesrelationship with the Company.
C. I acknowledge that through my employment with the Company I will acquire access to information suited to immediate application by a business in competition with the Company. I specifically acknowledge that, or (B) induce or otherwise counsel, advise or encourage any employee because of the nature and type of business that the Company or its affiliated companies to leave engages in, the employment geographic scope of the Company or its affiliated companies (all of the foregoing activities described in (i), (ii) and (iii) are collectively referred to as the "Prohibited Activity"). Notwithstanding anything contained covenants in this Section 10 to the contraryArticle IV shall include all counties, the Prohibited Activity shall not be applicable to the state or federal waters of the Gulf of Mexico or outside of cities and states in the United States except as to the area covered by and any U.S. other city, country, territory or foreign state or federal oil and gas lease, license or permit region in which the Company owns a working interest which was acquired by conducts business. I agree and acknowledge that the Company prior to or during the Employment Period foregoing restrictions, geographic scope and further limited to the depths time limitations set forth in which the Company owns such working or operating rights interest. For the avoidance of doubtthis Article IV are reasonable, and that the provisions in this Article IV are reasonably necessary for the protection of the Company. If any restriction set forth in this Article IV is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceable.
D. I further acknowledge the following provisions of Colorado law, set forth in Colorado Revised Statutes Section 10 will 8-2-113(2): “Any covenant not to compete which restricts the right of any person to receive 226874 v3/CO 4v2203!.DOC compensation for performance of skilled or unskilled labor for any employer shall be void, but this subsection (2) shall not apply following to:
(a) Any contract for the purchase and sale of a termination business or the assets of the Executive's employment by the Company with or without Cause, by the Executive due to Disability or Good Reason or by the Executive during a Window Period.business;
(b) In addition to all other remedies at law or in equity which Any contract for the Company may have for breach protection of a provision of this Section 10 by the Executive, it is agreed that in the event of any breach or attempted or threatened breach of any such provision, the Company shall be entitled, upon application to any court of proper jurisdiction, to a temporary restraining order or preliminary injunction (without the necessity of (i) proving irreparable harm, (ii) establishing that monetary damages are inadequate or (iii) posting any bond with respect thereto) against the Executive prohibiting such breach or attempted or threatened breach by proving only the existence of such breach or attempted or threatened breach. If the provisions of this Section 10 should ever be deemed to exceed the time, geographic or occupational limitations permitted by the applicable law, the Executive and the Company agree that such provisions shall be and are hereby reformed to the maximum time, geographic or occupational limitations permitted by the applicable law.trade secrets;
(c) The covenants Any contract provision providing for the recovery of the Executive set forth in this Section 10 are independent expense of educating and severable from every other provision training an employee who has served an employer for a period of this Agreement; and the breach of any other provision of this Agreement by the Company or the breach by the Company of any other agreement between the Company and the Executive shall not affect the validity of the provisions of this Section 10 or constitute a defense of the Executive in any suit or action brought by the Company to enforce any of the provisions of this Section 10 or seek any relief for the breach thereof by the Executive.less than two years;
(d) The Executive acknowledgesand management personnel and officers and employees who constitute professional staff to executive and management personnel.” I acknowledge that this agreement is a contract for the protection of trade secrets under Section 8-2-113(2)(b), agrees and stipulates that: (i) is intended to protect the terms confidential information and provisions trade secrets of this Agreement are reasonable and constitute an otherwise enforceable agreement to which the terms and provisions of this Section 10 are ancillary or a part of as contemplated by TEX. BUS. & COM. CODE ▇▇▇. Sections 15.50-15.52; (ii) the consideration provided by the Company under this Agreement is not illusoryCompany; and (iii) that I am an executive and management employee or professional staff to executive or management personnel, within the consideration given by the Company under this Agreement, including, without limitation, the provision by the Company meaning of Confidential Information to the Executive as contemplated by Section 8, gives rise to -2-113(2)(d).
E. I acknowledge and am prepared for the Company's interest possibility that my standard of living may be reduced during the noncompetition period provided in restraining and prohibiting this Article IV following the Executive from engaging in the Prohibited Activity within the Relevant Geographic Area as provided under this Section 10termination of my employment, and the Executive's covenant not to engage in the Prohibited Activity within the Relevant Geographic Area pursuant to this Section 10 is designed to enforce the Executive's consideration (or return promises), including, without limitation, the Executive's promise to not disclose Confidential Information under this Agreementfully accept any risk associated with that possibility.
Appears in 1 contract
Non-Compete and Non-Solicitation. (a) The Executive recognizes that in each of the highly competitive businesses in which the Company is engaged, personal contact is of primary importance in securing new customers and in retaining the accounts and goodwill of present customers and protecting the business of the Company. The Executive, therefore, agrees that during the Employment Period and, if the Date of Termination occurs by reason of the Executive terminating his employment for reasons other than Disability or Good Reason and other than during a Window Period, for a period of one year after the Date of Termination, he will not either within 20 miles of any geographic location of any Shale play with respect to which he has devoted substantial attention to the material business interests of the Company or any of its affiliated companies or with respect to any immediate geologic trends in any non-Shale plays, in either case, in which the Company or any of its affiliated companies have is active leases or are actively pursuing leases through direct employee activity or hired brokers as of the Date of Termination, without regard, in either case, to whether the Executive has worked at such location (the "Relevant Geographic Area"), (i) accept employment or render service to any Person person that is engaged in a business directly competitive with the business then engaged in by the Company or any of its affiliated companies in the Relevant Geographic Areacompanies, (ii) enter into or take part in or lend his name, counsel or assistance to any business, either as proprietor, principal, investor, partner, director, officer, executive, consultant, advisor, agent, independent contractor, or in any other capacity whatsoever, for any purpose that would be competitive with the business of the Company or any of its affiliated companies in the Relevant Geographic Area or (iii) regardless of whether it is in the Relevant Geographic Areageographic area, directly or indirectly, either as principal, agent, independent contractor, consultant, director, officer, employee, employer, advisor, stockholder, partner or in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit of any other person or entity either (A) hire, contract or solicit, or attempt any of the foregoing, with respect to hiring any employee of the Company or its affiliated companies, or (B) induce or otherwise counsel, advise or encourage any employee of the Company or its affiliated companies to leave the employment of the Company or its affiliated companies (all of the foregoing activities described in (i), (ii) and (iii) are collectively referred to as the "Prohibited Activity"). Notwithstanding anything contained in this Section 10 to the contrary, the Prohibited Activity shall not be applicable to the state or federal waters of the Gulf of Mexico or outside of the United States except as to the area covered by any U.S. or foreign state or federal oil and gas lease, license or permit lease in which the Company owns a working interest which was acquired by the Company prior to or during the Employment Period and further limited to the depths in which the Company owns such working or operating rights interest. For the avoidance of doubt, the provisions of this Section 10 will not apply following a termination of the Executive's employment by the Company with or without Cause, by the Executive due to Disability or Good Reason or by the Executive during a Window Period.
(b) In addition to all other remedies at law or in equity which the Company may have for breach of a provision of this Section 10 by the Executive, it is agreed that in the event of any breach or attempted or threatened breach of any such provision, the Company shall be entitled, upon application to any court of proper jurisdiction, to a temporary restraining order or preliminary injunction (without the necessity of (i) proving irreparable harm, (ii) establishing that monetary damages are inadequate or (iii) posting any bond with respect thereto) against the Executive prohibiting such breach or attempted or threatened breach by proving only the existence of such breach or attempted or threatened breach. If the provisions of this Section 10 should ever be deemed to exceed the time, geographic or occupational limitations permitted by the applicable law, the Executive and the Company agree that such provisions shall be and are hereby reformed to the maximum time, geographic or occupational limitations permitted by the applicable law.
(c) The covenants of the Executive set forth in this Section 10 are independent of and severable from every other provision of this Agreement; and the breach of any other provision of this Agreement by the Company or the breach by the Company of any other agreement between the Company and the Executive shall not affect the validity of the provisions of this Section 10 or constitute a defense of the Executive in any suit or action brought by the Company to enforce any of the provisions of this Section 10 or seek any relief for the breach thereof by the Executive.
(d) The Executive acknowledges, agrees and stipulates that: (i) the terms and provisions of this Agreement are reasonable and constitute an otherwise enforceable agreement to which the terms and provisions of this Section 10 are ancillary or a part of as contemplated by TEX. BUS. & COM. CODE ▇▇▇. Sections 15.50-15.52; (ii) the consideration provided by the Company under this Agreement is not illusory; and (iii) the consideration given by the Company under this Agreement, including, without limitation, the provision by the Company of Confidential Information to the Executive as contemplated by Section 8, gives rise to the Company's interest in restraining and prohibiting the Executive from engaging in the Prohibited Activity within the Relevant Geographic Area as provided under this Section 10, and the Executive's covenant not to engage in the Prohibited Activity within the Relevant Geographic Area pursuant to this Section 10 is designed to enforce the Executive's consideration (or return promises), including, without limitation, the Executive's promise to not disclose Confidential Information under this Agreement.
Appears in 1 contract
Non-Compete and Non-Solicitation. (a) The Executive Employee recognizes that in each of the highly competitive businesses in which the Company is engaged, personal contact is of primary importance in securing new customers and in retaining the accounts and goodwill of present customers and protecting the business of the Company. The ExecutiveEmployee, therefore, agrees that during the Employment Period and, if unless the Date of Termination occurs [(i)] by reason of the Executive Employee terminating his employment for reasons other than Disability or Good Reason and other than during [or (ii) in connection with or] [in the two years] following a Window PeriodChange in Control, for a period of one year after the Date of Termination, he will not either within 20 miles of any geographic location of any Shale play with respect to which he has devoted substantial attention to the material business interests of the Company or any of its affiliated companies or with respect to any immediate geologic trends in any non-Shale plays, in either case, in which the Company or any of its affiliated companies have active leases or are actively pursuing leases through direct employee activity or hired brokers as of the Date of Termination, without regard, in either case, to whether the Executive Employee has worked at such location (the "“Relevant Geographic Area"”), (i) accept employment or render service material services to any Person entity that is engaged in a business directly competitive with the business then engaged in by the Company or any of its affiliated companies in the Relevant Geographic Area, (ii) enter into into, or take part in in, or lend his name, counsel or material assistance to to, any business, entity either as proprietor, principal, investoror owner of more than 5% of such entity, partner, director, or act as an officer, executive, employee, consultant, advisor, agent, independent contractorcontractor to or for such entity, or in any other capacity whatsoever, for any purpose either case with respect to an entity that would be directly competitive with the business of the Company or any of its affiliated companies in the Relevant Geographic Area Area; provided, however, that the prohibitions set forth in this subparagraphs (i) and (ii) shall not apply to actions by the Employee with respect to any entity where the Employee
(x) serves as an independent member of the board of directors and where, in respect of his position on the board, the Employee may provide knowledge, counsel and advice that may be informed by his mental impressions, experience and wisdom obtained while employed at the Company, which knowledge, counsel and advice shall not be considered Confidential Information so long as the Employee does not disclose any written, electronic or tangible Confidential Information, (y) is an investor in such an entity, which investment has previously been disclosed to the Company and approved by the Board of Directors of the Company or a committee thereof, or (iii) regardless of whether it is in the Relevant Geographic Area, directly or indirectly, either as principal, agent, independent contractor, consultant, director, officer, employee, employer, advisor, significant stockholder, partner or in any other individual or representative capacity whatsoever, either for his the Employee’s own benefit or for the benefit of any other person or entity either (A) directly hire, contract or solicit, or attempt any of the foregoing, with respect to hiring any employee of the Company or its affiliated companies, or (B) induce or otherwise counsel, advise or encourage any employee of the Company or its affiliated companies to leave the employment of the Company or its affiliated companies companies; provided, however, that the prohibitions set forth in this subparagraph (iii) shall not apply to (x) solicitations made by the Employee or any entity with which the Employee is associated, that are made to the public or the industry generally and not targeted at employees of the Company or its affiliated companies, (y) solicitations in response to any such person who contacts the Employee, or the entity with which the Employee is associated, on his or her own initiative without any prior prohibited solicitations or (z) solicitations implemented or initiated by any entity with which the Employee is associated without the knowledge or participation of the Employee (all of the foregoing activities described in (i), (ii) and (iii) are collectively referred to as the "“Prohibited Activity"”). Notwithstanding anything contained in this Section 10 9 to the contrary, the Prohibited Activity shall not be applicable to the state or federal waters of the Gulf of Mexico or outside of the United States except as to the area covered by any U.S. or foreign state or federal oil and gas lease, license or permit in which the Company owns a working interest which was acquired by the Company prior to or during the Employment Period and further limited to the depths in which the Company owns such working or operating rights interest. For the avoidance of doubt, the provisions of this Section 10 9 will only apply in the event of [(i)] Employee’s voluntary termination of employment without Good Reason and not apply for reasons of Disability[ or (ii) Employee’s termination of employment in connection with or following a Change in Control] [unless such termination occurs during the two years following a Change in Control, in which case the provisions of the Executive's employment by the Company with or without Cause, by the Executive due to Disability or Good Reason or by the Executive during a Window Periodthis Section 9 shall no longer be applicable].
(ba) In addition to all other remedies at law or in equity which the Company may have for breach of a provision of this Section 10 9 by the ExecutiveEmployee, it is agreed that in the event of any breach or attempted or threatened breach of any such provision, the Company shall be entitled, upon application to any court of proper jurisdiction, to a temporary restraining order or preliminary injunction (without the necessity of (i) proving irreparable harm, (ii) establishing that monetary damages are inadequate or (iii) posting any bond with respect thereto) against the Executive Employee prohibiting such breach or attempted or threatened breach by proving only the existence of such breach or attempted or threatened breach. If the provisions of this Section 10 9 should ever be deemed to exceed the time, geographic or occupational limitations permitted by the applicable law, the Executive Employee and the Company agree that such provisions shall be and are hereby reformed to the maximum time, geographic or occupational limitations permitted by the applicable law.
(cb) The covenants of the Executive Employee set forth in this Section 10 9 are independent of and severable from every other provision of this Agreement; and the breach of any other provision of this Agreement by the Company or the breach by the Company of any other agreement between the Company and the Executive Employee shall not affect the validity of the provisions of this Section 10 9 or constitute a defense of the Executive Employee in any suit or action brought by the Company to enforce any of the provisions of this Section 10 9 or seek any relief for the breach thereof by the ExecutiveEmployee.
(dc) The Executive Employee acknowledges, agrees and stipulates that: (i) the terms and provisions of this Agreement are reasonable and constitute an otherwise enforceable agreement to which the terms and provisions of this Section 10 9 are ancillary or a part of as contemplated by TEX. BUS. & COM. CODE ▇▇▇. Sections 15.50-15.52; (ii) the consideration provided by the Company under this Agreement is not illusory; and (iii) the consideration given by the Company under this Agreement, including, without limitation, the provision by the Company of Confidential Information to the Executive Employee as contemplated by Section 87, gives rise to the Company's ’s interest in restraining and prohibiting the Executive Employee from engaging in the Prohibited Activity within the Relevant Geographic Area as provided under this Section 109, and the Executive's Employee’s covenant not to engage in the Prohibited Activity within the Relevant Geographic Area pursuant to this Section 10 9 is designed to enforce the Executive's Employee’s consideration (or return promises), including, without limitation, the Executive's Employee’s promise to not disclose Confidential Information under this Agreement.
Appears in 1 contract
Non-Compete and Non-Solicitation. Employee acknowledges and agrees that: (a1) The Executive recognizes that in each order to perform his obligations and job duties for the Company, Employee will gain Training and access to Confidential Information regarding the Company and/or its Affiliates or customers; (2) use of such Confidential Information in competition with the Company and/or its Affiliates or customers would be detrimental to the business interests of the highly competitive businesses Company and/or its Affiliates or customers; and (3) Employee would not have been allowed to gain access to Confidential Information, or to provide the obligations and job duties contemplated under this Agreement without his promises and agreements contained in the following paragraph. Employee acknowledges and agrees further that the Company is a diverse energy company and that, based on the nature and size of the Company and the scope of its operations, the areas in which the Company is engagedcompetes are not limited. Employee also acknowledges and agrees that the services he will be performing for the Company, personal contact is of primary importance in securing new customers and in retaining the accounts Confidential Information and goodwill of present customers and protecting Training he will be provided, relate to the business world-wide operations of the Company and its Affiliates, and will not be limited to any specific geographic location within which the Company, or any of its Affiliates, conducts business. The Executive“Employee agrees that, therefore, agrees that during the Employment Period and, if the Date of Termination occurs by reason of the Executive terminating his employment for reasons other than Disability or Good Reason with the Company, and other than during a Window Period, for a period of one (1) year after the Date of Terminationthereafter, he will not either within 20 miles of any geographic location of any Shale play with respect to which he has devoted substantial attention to the material business interests of the Company or any of its affiliated companies or with respect to any immediate geologic trends in any non-Shale plays, in either case, in which the Company or any of its affiliated companies have active leases or are actively pursuing leases through direct employee activity or hired brokers as of the Date of Termination, without regard, in either case, to whether the Executive has worked at such location (the "Relevant Geographic Area"), (i) accept employment or render service to any Person that is engaged in a business directly competitive with the business then engaged in by the Company or any of its affiliated companies in the Relevant Geographic Area, (ii) enter into or take part in or lend his name, counsel or assistance to any business, either as proprietor, principal, investor, partner, director, officer, executive, consultant, advisor, agent, independent contractor, or in any other capacity whatsoever, for any purpose that would be competitive with the business of the Company or any of its affiliated companies in the Relevant Geographic Area or (iii) regardless of whether it is in the Relevant Geographic AreaEmployee shall not, directly or indirectly, either as principalan employee, agentemployer, independent contractor, consultant, directoragent, principal, partner, stockholder, officer, employeedirector, employer, advisor, stockholder, partner or in any other individual or representative capacity whatsoevercapacity, either for his own benefit or for the benefit of any other person or entity either entity: (Ai) hireengage or participate in a business which competes in a material manner with the Company or any of its Affiliates in any geographic location in which the Company conducts business; (ii) contact, contract or solicit, solicit or attempt to solicit the business or patronage of any of the foregoingCompany’s (or Affiliate’s) customers, or prospective customers, or any person, firm, corporation, company, partnership, association or entity which was contacted or whose business was solicited, serviced or maintained by the Company (or its Affiliates) during the term of Employee’s employment with respect to hiring the Company; or (iii) solicit, recruit, induce, encourage or in any way cause any employee of the Company (or its affiliated companies, or (Ban Affiliate) induce or otherwise counsel, advise or encourage any employee of to terminate his/her employment with the Company (or its affiliated companies to leave such Affiliate). Notwithstanding the employment of foregoing, the Company or its affiliated companies (all of the foregoing activities described restriction provided in (i), (ii) and (iii) are collectively referred to as the "Prohibited Activity"). Notwithstanding anything contained in this Section 10 to the contrary, the Prohibited Activity above shall not be applicable to the state or federal waters of the Gulf of Mexico or outside of the United States except as to the area covered by any U.S. or foreign state or federal oil and gas lease, license or permit in which the Company owns a working interest which was acquired by the Company prior to or during the Employment Period and further limited to the depths in which the Company owns such working or operating rights interest. For the avoidance of doubt, the provisions of this Section 10 will not apply following a the termination of the Executive's employment by the Company with or without Cause, by the Executive due to Disability or Good Reason or by the Executive during a Window Period.
(b) In addition to all other remedies at law or in equity which the Company may have for breach of a provision of this Section 10 by the Executive, it is agreed that in the event of any breach or attempted or threatened breach of any such provision, the Company shall be entitled, upon application to any court of proper jurisdiction, to a temporary restraining order or preliminary injunction (without the necessity of (i) proving irreparable harm, (ii) establishing that monetary damages are inadequate or (iii) posting any bond with respect thereto) against the Executive prohibiting such breach or attempted or threatened breach by proving only the existence of such breach or attempted or threatened breach. If the provisions of this Section 10 should ever be deemed to exceed the time, geographic or occupational limitations permitted by the applicable law, the Executive and the Company agree that such provisions shall be and are hereby reformed to the maximum time, geographic or occupational limitations permitted by the applicable law.
(c) The covenants of the Executive set forth in this Section 10 are independent of and severable from every other provision of this Agreement; and the breach of any other provision of this Agreement by only if Employee receives the Company payments and benefits provided for in Section 10.1 or the breach by the Company of any other agreement between the Company and the Executive shall not affect the validity of the provisions of this Section 10 or constitute a defense of the Executive in any suit or action brought by the Company to enforce any of the provisions of this Section 10 or seek any relief for the breach thereof by the Executive10.2 above.
(d) The Executive acknowledges, agrees and stipulates that: (i) the terms and provisions of this Agreement are reasonable and constitute an otherwise enforceable agreement to which the terms and provisions of this Section 10 are ancillary or a part of as contemplated by TEX. BUS. & COM. CODE ▇▇▇. Sections 15.50-15.52; (ii) the consideration provided by the Company under this Agreement is not illusory; and (iii) the consideration given by the Company under this Agreement, including, without limitation, the provision by the Company of Confidential Information to the Executive as contemplated by Section 8, gives rise to the Company's interest in restraining and prohibiting the Executive from engaging in the Prohibited Activity within the Relevant Geographic Area as provided under this Section 10, and the Executive's covenant not to engage in the Prohibited Activity within the Relevant Geographic Area pursuant to this Section 10 is designed to enforce the Executive's consideration (or return promises), including, without limitation, the Executive's promise to not disclose Confidential Information under this Agreement.
Appears in 1 contract
Sources: Employment Agreement (Txu Corp /Tx/)
Non-Compete and Non-Solicitation. (a) The Executive recognizes that in each of the highly competitive businesses in which the Company is engaged, personal contact is of primary importance in securing new customers and in retaining the accounts and goodwill of present customers and protecting the business of the Company. The Executive, therefore, agrees that during the Employment Period and, if the Date of Termination occurs by reason of the Executive terminating his employment for reasons other than Disability or Good Reason and other than during a Window Period, for a period of one year after the Date of Termination, he will not either within 20 miles of any geographic location of any Shale play with respect to which he has devoted substantial attention to the material business interests of the Company or any of its affiliated companies or with respect to any immediate geologic trends in any non-Shale plays, in either case, in which the Company or any of its affiliated companies have is active leases or are actively pursuing leases through direct employee activity or hired brokers as of the Date of Termination, without regard, in either case, to whether the Executive has worked at such location (the "Relevant Geographic Area"), (i) accept employment or render service to any Person person that is engaged in a business directly competitive with the business then engaged in by the Company or any of its affiliated companies in the Relevant Geographic Areacompanies, (ii) enter into or take part in or lend his name, counsel or assistance to any business, either as proprietor, principal, investor, partner, director, officer, executive, consultant, advisor, agent, independent contractor, or in any other capacity whatsoever, for any purpose that would be competitive with the business of the Company or any of its affiliated companies in the Relevant Geographic Area or (iii) regardless of whether it is in the Relevant Geographic Areageographic area, directly or indirectly, either as principal, agent, independent contractor, consultant, director, officer, employee, employer, advisor, stockholder, partner or in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit of any other person or entity either (A) hire, contract or solicit, or attempt any of the foregoing, with respect to hiring any employee of the Company or its affiliated companies, or (B) induce or otherwise counsel, advise or encourage any employee of the Company or its affiliated companies to leave the employment of the Company or its affiliated companies (all of the foregoing activities described in (i), (ii) and (iii) are collectively referred to as the "Prohibited Activity"). Notwithstanding anything contained in this Section 10 to the contrary, the Prohibited Activity shall not be applicable to the state or federal waters of the Gulf of Mexico or outside of the United States except as to the area covered by any U.S. or foreign state or federal oil and gas lease, license or permit in which the Company owns a working interest which was acquired by the Company prior to or during the Employment Period and further limited to the depths in which the Company owns such working or operating rights interest. For the avoidance of doubt, the provisions of this Section 10 will not apply following a termination of the Executive's employment by the Company with or without Cause, by the Executive due to Disability or Good Reason or by the Executive during a Window Period.
(b) In addition to all other remedies at law or in equity which the Company may have for breach of a provision of this Section 10 by the Executive, it is agreed that in the event of any breach or attempted or threatened breach of any such provision, the Company shall be entitled, upon application to any court of proper jurisdiction, to a temporary restraining order or preliminary injunction (without the necessity of (i) proving irreparable harm, (ii) establishing that monetary damages are inadequate or (iii) posting any bond with respect thereto) against the Executive prohibiting such breach or attempted or threatened breach by proving only the existence of such breach or attempted or threatened breach. If the provisions of this Section 10 should ever be deemed to exceed the time, geographic or occupational limitations permitted by the applicable law, the Executive and the Company agree that such provisions shall be and are hereby reformed to the maximum time, geographic or occupational limitations permitted by the applicable law.. "
(c7. Section 13(g) The covenants of the Executive set forth in this Section 10 are independent of and severable from every other provision of this Agreement; and the breach of any other provision of this Agreement by the Company or the breach by the Company of any other agreement between the Company and the Executive shall not affect the validity of the provisions of this Section 10 or constitute a defense of the Executive in any suit or action brought by the Company to enforce any of the provisions of this Section 10 or seek any relief for the breach thereof by the Executive.
(d) The Executive acknowledges, agrees and stipulates that: (i) the terms and provisions of this Agreement are reasonable and constitute an otherwise enforceable agreement to which the terms and provisions of this Section 10 are ancillary or a part of as contemplated by TEX. BUS. & COM. CODE ▇▇▇. Sections 15.50-15.52; (ii) the consideration provided by the Company under this Employment Agreement is not illusory; and (iii) the consideration given by the Company under this Agreement, including, without limitation, the provision by the Company of Confidential Information hereby amended to the Executive read hereafter as contemplated by Section 8, gives rise to the Company's interest in restraining and prohibiting the Executive from engaging in the Prohibited Activity within the Relevant Geographic Area as provided under this Section 10, and the Executive's covenant not to engage in the Prohibited Activity within the Relevant Geographic Area pursuant to this Section 10 is designed to enforce the Executive's consideration (or return promises), including, without limitation, the Executive's promise to not disclose Confidential Information under this Agreement.follows:
Appears in 1 contract
Non-Compete and Non-Solicitation. Employee acknowledges and agrees -------------------------------- that: (a1) The Executive recognizes that in each order to perform his obligations and job duties for the Company, Employee will gain Training and access to Confidential Information regarding the Company and/or its Affiliates or customers; (2) use of such Confidential Information in competition with the Company and/or its Affiliates or customers would be detrimental to the business interests of the highly competitive businesses Company and/or its Affiliates or customers; and (3) Employee would not have been allowed to gain access to Confidential Information, or to provide the obligations and job duties contemplated under this Agreement without his promises and agreements contained in the following paragraph. Employee acknowledges and agrees further that the Company is a diverse, global energy company and that, based on the nature and size of the Company and the scope of its operations, the areas in which the Company is engagedcompetes are not limited. Employee also acknowledges and agrees that the services he will be performing for the Company, personal contact is of primary importance in securing new customers and in retaining the accounts Confidential Information and goodwill of present customers and protecting Training he will be provided, relate to the business world-wide operations of the Company and its Affiliates, and will not be limited to any specific geographic location within which the Company, or any of its Affiliates, conducts business. The ExecutiveEmployee agrees that, therefore, agrees that during the Employment Period and, if the Date of Termination occurs by reason of the Executive terminating his employment for reasons other than Disability or Good Reason with the Company, and other than during a Window Period, for a period of one (1) year after the Date of Terminationthereafter, he will not either within 20 miles of any geographic location of any Shale play with respect to which he has devoted substantial attention to the material business interests of the Company or any of its affiliated companies or with respect to any immediate geologic trends in any non-Shale plays, in either case, in which the Company or any of its affiliated companies have active leases or are actively pursuing leases through direct employee activity or hired brokers as of the Date of Termination, without regard, in either case, to whether the Executive has worked at such location (the "Relevant Geographic Area"), (i) accept employment or render service to any Person that is engaged in a business directly competitive with the business then engaged in by the Company or any of its affiliated companies in the Relevant Geographic Area, (ii) enter into or take part in or lend his name, counsel or assistance to any business, either as proprietor, principal, investor, partner, director, officer, executive, consultant, advisor, agent, independent contractor, or in any other capacity whatsoever, for any purpose that would be competitive with the business of the Company or any of its affiliated companies in the Relevant Geographic Area or (iii) regardless of whether it is in the Relevant Geographic AreaEmployee shall not, directly or indirectly, either as principalan employee, agentemployer, independent contractor, consultant, directoragent, principal, partner, stockholder, officer, employeedirector, employer, advisor, stockholder, partner or in any other individual or representative capacity whatsoevercapacity, either for his own benefit or for the benefit of any other person or entity either entity: (Ai) hireengage or participate in a business which competes in a material manner with the Company or any of its Affiliates in any geographic location in which the Company conducts business; (ii) contact, contract or solicit, solicit or attempt to solicit the business or patronage of any of the foregoingCompany's (or Affiliate's) customers, or prospective customers, or any person, firm, corporation, company, partnership, association or entity which was contacted or whose business was solicited, serviced or maintained by the Company (or its Affiliates) during the term of Employee's employment with respect to hiring the Company; or (iii) solicit, recruit, induce, encourage or in any way cause any employee of the Company (or its affiliated companies, or (Ban Affiliate) induce or otherwise counsel, advise or encourage any employee of to terminate his/her employment with the Company (or its affiliated companies to leave such Affiliate). Notwithstanding the employment of foregoing, the Company or its affiliated companies (all of the foregoing activities described restriction provided in (i), (ii) and (iii) are collectively referred to as the "Prohibited Activity"). Notwithstanding anything contained in this Section 10 to the contrary, the Prohibited Activity above shall not be applicable to the state or federal waters of the Gulf of Mexico or outside of the United States except as to the area covered by any U.S. or foreign state or federal oil and gas lease, license or permit in which the Company owns a working interest which was acquired by the Company prior to or during the Employment Period and further limited to the depths in which the Company owns such working or operating rights interest. For the avoidance of doubt, the provisions of this Section 10 will not apply following a the termination of the Executive's employment by the Company with or without Cause, by the Executive due to Disability or Good Reason or by the Executive during a Window Period.
(b) In addition to all other remedies at law or in equity which the Company may have for breach of a provision of this Section 10 by the Executive, it is agreed that in the event of any breach or attempted or threatened breach of any such provision, the Company shall be entitled, upon application to any court of proper jurisdiction, to a temporary restraining order or preliminary injunction (without the necessity of (i) proving irreparable harm, (ii) establishing that monetary damages are inadequate or (iii) posting any bond with respect thereto) against the Executive prohibiting such breach or attempted or threatened breach by proving only the existence of such breach or attempted or threatened breach. If the provisions of this Section 10 should ever be deemed to exceed the time, geographic or occupational limitations permitted by the applicable law, the Executive and the Company agree that such provisions shall be and are hereby reformed to the maximum time, geographic or occupational limitations permitted by the applicable law.
(c) The covenants of the Executive set forth in this Section 10 are independent of and severable from every other provision of this Agreement; and the breach of any other provision of this Agreement by only if Employee receives the Company payments and benefits provided for in Section 5 or the breach by the Company of any other agreement between the Company and the Executive shall not affect the validity of the provisions of this Section 10 or constitute a defense of the Executive in any suit or action brought by the Company to enforce any of the provisions of this Section 10 or seek any relief for the breach thereof by the Executive6 above.
(d) The Executive acknowledges, agrees and stipulates that: (i) the terms and provisions of this Agreement are reasonable and constitute an otherwise enforceable agreement to which the terms and provisions of this Section 10 are ancillary or a part of as contemplated by TEX. BUS. & COM. CODE ▇▇▇. Sections 15.50-15.52; (ii) the consideration provided by the Company under this Agreement is not illusory; and (iii) the consideration given by the Company under this Agreement, including, without limitation, the provision by the Company of Confidential Information to the Executive as contemplated by Section 8, gives rise to the Company's interest in restraining and prohibiting the Executive from engaging in the Prohibited Activity within the Relevant Geographic Area as provided under this Section 10, and the Executive's covenant not to engage in the Prohibited Activity within the Relevant Geographic Area pursuant to this Section 10 is designed to enforce the Executive's consideration (or return promises), including, without limitation, the Executive's promise to not disclose Confidential Information under this Agreement.
Appears in 1 contract
Sources: Employment Agreement (Txu Corp /Tx/)
Non-Compete and Non-Solicitation. Employee acknowledges and agrees -------------------------------- that:
(a1) The Executive recognizes that in each order to perform his obligations and job duties for the Company, Employee will gain Training and access to Confidential Information regarding the Company and/or its Affiliates or customers; (2) use of such Confidential Information in competition with the Company and/or its Affiliates or customers would be detrimental to the business interests of the highly competitive businesses Company and/or its Affiliates or customers; and (3) Employee would not have been allowed to gain access to Confidential Information, or to provide the obligations and job duties contemplated under this Agreement without his promises and agreements contained in the following paragraph. Employee acknowledges and agrees further that the Company is a diverse energy company and that, based on the nature and size of the Company and the scope of its operations, the areas in which the Company is engagedcompetes are not limited. Employee also acknowledges and agrees that the services he will be performing for the Company, personal contact is of primary importance in securing new customers and in retaining the accounts Confidential Information and goodwill of present customers and protecting Training he will be provided, relate to the business world-wide operations of the Company and its Affiliates, and will not be limited to any specific geographic location within which the Company, or any of its Affiliates, conducts business. The ExecutiveEmployee agrees that, therefore, agrees that during the Employment Period and, if the Date of Termination occurs by reason of the Executive terminating his employment for reasons other than Disability or Good Reason with the Company, and other than during a Window Period, for a period of one (1) year after the Date of Terminationthereafter, he will not either within 20 miles of any geographic location of any Shale play with respect to which he has devoted substantial attention to the material business interests of the Company or any of its affiliated companies or with respect to any immediate geologic trends in any non-Shale plays, in either case, in which the Company or any of its affiliated companies have active leases or are actively pursuing leases through direct employee activity or hired brokers as of the Date of Termination, without regard, in either case, to whether the Executive has worked at such location (the "Relevant Geographic Area"), (i) accept employment or render service to any Person that is engaged in a business directly competitive with the business then engaged in by the Company or any of its affiliated companies in the Relevant Geographic Area, (ii) enter into or take part in or lend his name, counsel or assistance to any business, either as proprietor, principal, investor, partner, director, officer, executive, consultant, advisor, agent, independent contractor, or in any other capacity whatsoever, for any purpose that would be competitive with the business of the Company or any of its affiliated companies in the Relevant Geographic Area or (iii) regardless of whether it is in the Relevant Geographic AreaEmployee shall not, directly or indirectly, either as principalan employee, agentemployer, independent contractor, consultant, directoragent, principal, partner, stockholder, officer, employeedirector, employer, advisor, stockholder, partner or in any other individual or representative capacity whatsoevercapacity, either for his own benefit or for the benefit of any other person or entity either entity: (Ai) hireengage or participate in a business which competes in a material manner with the Company or any of its Affiliates in any geographic location in which the Company conducts business; (ii) contact, contract or solicit, solicit or attempt to solicit the business or patronage of any of the foregoingCompany's (or Affiliate's) customers, or prospective customers, or any person, firm, corporation, company, partnership, association or entity which was contacted or whose business was solicited, serviced or maintained by the Company (or its Affiliates) during the term of Employee's employment with respect to hiring the Company; or (iii) solicit, recruit, induce, encourage or in any way cause any employee of the Company (or its affiliated companies, or (Ban Affiliate) induce or otherwise counsel, advise or encourage any employee of to terminate his/her employment with the Company (or its affiliated companies to leave such Affiliate). Notwithstanding the employment of foregoing, the Company or its affiliated companies (all of the foregoing activities described restriction provided in (i), (ii) and (iii) are collectively referred to as the "Prohibited Activity"). Notwithstanding anything contained in this Section 10 to the contrary, the Prohibited Activity above shall not be applicable to the state or federal waters of the Gulf of Mexico or outside of the United States except as to the area covered by any U.S. or foreign state or federal oil and gas lease, license or permit in which the Company owns a working interest which was acquired by the Company prior to or during the Employment Period and further limited to the depths in which the Company owns such working or operating rights interest. For the avoidance of doubt, the provisions of this Section 10 will not apply following a the termination of the Executive's employment by the Company with or without Cause, by the Executive due to Disability or Good Reason or by the Executive during a Window Period.
(b) In addition to all other remedies at law or in equity which the Company may have for breach of a provision of this Section 10 by the Executive, it is agreed that in the event of any breach or attempted or threatened breach of any such provision, the Company shall be entitled, upon application to any court of proper jurisdiction, to a temporary restraining order or preliminary injunction (without the necessity of (i) proving irreparable harm, (ii) establishing that monetary damages are inadequate or (iii) posting any bond with respect thereto) against the Executive prohibiting such breach or attempted or threatened breach by proving only the existence of such breach or attempted or threatened breach. If the provisions of this Section 10 should ever be deemed to exceed the time, geographic or occupational limitations permitted by the applicable law, the Executive and the Company agree that such provisions shall be and are hereby reformed to the maximum time, geographic or occupational limitations permitted by the applicable law.
(c) The covenants of the Executive set forth in this Section 10 are independent of and severable from every other provision of this Agreement; and the breach of any other provision of this Agreement by only if Employee receives the Company payments and benefits provided for in Section 5 or the breach by the Company of any other agreement between the Company and the Executive shall not affect the validity of the provisions of this Section 10 or constitute a defense of the Executive in any suit or action brought by the Company to enforce any of the provisions of this Section 10 or seek any relief for the breach thereof by the Executive6 above.
(d) The Executive acknowledges, agrees and stipulates that: (i) the terms and provisions of this Agreement are reasonable and constitute an otherwise enforceable agreement to which the terms and provisions of this Section 10 are ancillary or a part of as contemplated by TEX. BUS. & COM. CODE ▇▇▇. Sections 15.50-15.52; (ii) the consideration provided by the Company under this Agreement is not illusory; and (iii) the consideration given by the Company under this Agreement, including, without limitation, the provision by the Company of Confidential Information to the Executive as contemplated by Section 8, gives rise to the Company's interest in restraining and prohibiting the Executive from engaging in the Prohibited Activity within the Relevant Geographic Area as provided under this Section 10, and the Executive's covenant not to engage in the Prohibited Activity within the Relevant Geographic Area pursuant to this Section 10 is designed to enforce the Executive's consideration (or return promises), including, without limitation, the Executive's promise to not disclose Confidential Information under this Agreement.
Appears in 1 contract
Sources: Employment Agreement (Txu Corp /Tx/)
Non-Compete and Non-Solicitation. Employee acknowledges and agrees -------------------------------- that:
(a1) The Executive recognizes in order to perform his obligations and job duties for Employer, Employee will gain Training and access to Confidential Information regarding Employer and/or its Affiliates or customers; (2) use of such Confidential Information in competition with Employer and/or its Affiliates or customers would be detrimental to the business interests of Employer and/or its Affiliates or customers; and (3) Employee would not have been allowed to gain access to Confidential Information, or to provide the obligations and job duties contemplated under this Agreement without his promises and agreements contained in the following paragraph. Employee acknowledges and agrees further that in each the Company is a diverse, global energy company and that, based on the nature and size of the highly competitive businesses Company and the scope of its operations, the areas in which the Company is engagedcompetes are not limited. Employee also acknowledges and agrees that the services he will be performing for the Company, personal contact is of primary importance in securing new customers and in retaining the accounts Confidential Information and goodwill of present customers and protecting Training he will be provided, relate to the business world-wide operations of the Company and its Affiliates, and will not be limited to any specific geographic location within which the Company, or any of its Affiliates, conducts business. The ExecutiveEmployee agrees that, therefore, agrees that during the Employment Period and, if the Date of Termination occurs by reason of the Executive terminating his employment for reasons other than Disability or Good Reason with Employer, and other than during a Window Period, for a period of one (1) year after the Date of Terminationthereafter, he will not either within 20 miles of any geographic location of any Shale play with respect to which he has devoted substantial attention to the material business interests of the Company or any of its affiliated companies or with respect to any immediate geologic trends in any non-Shale plays, in either case, in which the Company or any of its affiliated companies have active leases or are actively pursuing leases through direct employee activity or hired brokers as of the Date of Termination, without regard, in either case, to whether the Executive has worked at such location (the "Relevant Geographic Area"), (i) accept employment or render service to any Person that is engaged in a business directly competitive with the business then engaged in by the Company or any of its affiliated companies in the Relevant Geographic Area, (ii) enter into or take part in or lend his name, counsel or assistance to any business, either as proprietor, principal, investor, partner, director, officer, executive, consultant, advisor, agent, independent contractor, or in any other capacity whatsoever, for any purpose that would be competitive with the business of the Company or any of its affiliated companies in the Relevant Geographic Area or (iii) regardless of whether it is in the Relevant Geographic AreaEmployee shall not, directly or indirectly, either as principalan employee, agentemployer, independent contractor, consultant, directoragent, principal, partner, stockholder, officer, employeedirector, employer, advisor, stockholder, partner or in any other individual or representative capacity whatsoevercapacity, either for his own benefit or for the benefit of any other person or entity either entity: (Ai) hire, contract engage or solicit, participate in a business which competes in a material manner with Employer or attempt any of the foregoing, with respect to hiring any employee of the Company or its affiliated companies, or (B) induce or otherwise counsel, advise or encourage any employee of the Company or its affiliated companies to leave the employment of the Company or its affiliated companies (all of the foregoing activities described in (i), Affiliates; (ii) and contact, solicit or attempt to solicit the business or patronage of any of Employer's (iiior Affiliate's) are collectively referred to as the "Prohibited Activity"). Notwithstanding anything contained in this Section 10 to the contrarycustomers, the Prohibited Activity shall not be applicable to the state or federal waters of the Gulf of Mexico prospective customers, or outside of the United States except as to the area covered by any U.S. person, firm, corporation, company, partnership, association or foreign state or federal oil and gas lease, license or permit in which the Company owns a working interest entity which was acquired contacted or whose business was solicited, serviced or maintained by the Company prior to Employer (or its Affiliates) during the Employment Period and further limited to the depths in which the Company owns such working or operating rights interest. For the avoidance term of doubt, the provisions of this Section 10 will not apply following a termination of the ExecutiveEmployee's employment by the Company with or without Cause, by the Executive due to Disability or Good Reason or by the Executive during a Window Period.
(b) In addition to all other remedies at law or in equity which the Company may have for breach of a provision of this Section 10 by the Executive, it is agreed that in the event of any breach or attempted or threatened breach of any such provision, the Company shall be entitled, upon application to any court of proper jurisdiction, to a temporary restraining order or preliminary injunction (without the necessity of (i) proving irreparable harm, (ii) establishing that monetary damages are inadequate Employer; or (iii) posting solicit, recruit, induce, encourage or in any bond way cause any employee of Employer (or an Affiliate) to terminate his/her employment with respect thereto) against Employer (or such Affiliate). Notwithstanding the Executive prohibiting such breach or attempted or threatened breach by proving only the existence of such breach or attempted or threatened breach. If the provisions of this Section 10 should ever be deemed to exceed the time, geographic or occupational limitations permitted by the applicable lawforegoing, the Executive and restriction provided in (i) above shall apply following the Company agree that such provisions shall be and are hereby reformed to the maximum time, geographic or occupational limitations permitted by the applicable law.
(c) The covenants of the Executive set forth in this Section 10 are independent of and severable from every other provision of this Agreement; and the breach of any other provision termination of this Agreement by only if Employee receives the Company payments and benefits provided for in Section 5 or the breach by the Company of any other agreement between the Company and the Executive shall not affect the validity of the provisions of this Section 10 or constitute a defense of the Executive in any suit or action brought by the Company to enforce any of the provisions of this Section 10 or seek any relief for the breach thereof by the Executive6 above.
(d) The Executive acknowledges, agrees and stipulates that: (i) the terms and provisions of this Agreement are reasonable and constitute an otherwise enforceable agreement to which the terms and provisions of this Section 10 are ancillary or a part of as contemplated by TEX. BUS. & COM. CODE ▇▇▇. Sections 15.50-15.52; (ii) the consideration provided by the Company under this Agreement is not illusory; and (iii) the consideration given by the Company under this Agreement, including, without limitation, the provision by the Company of Confidential Information to the Executive as contemplated by Section 8, gives rise to the Company's interest in restraining and prohibiting the Executive from engaging in the Prohibited Activity within the Relevant Geographic Area as provided under this Section 10, and the Executive's covenant not to engage in the Prohibited Activity within the Relevant Geographic Area pursuant to this Section 10 is designed to enforce the Executive's consideration (or return promises), including, without limitation, the Executive's promise to not disclose Confidential Information under this Agreement.
Appears in 1 contract
Sources: Employment Agreement (Txu Corp /Tx/)
Non-Compete and Non-Solicitation. (a) The Executive recognizes acknowledges and agrees with the Company that in each during the course of the highly competitive businesses Executive's involvement and/or employment with, or ownership of options and/or common stock in, the Company, or Parent, as the case may be, such Executive has had and will continue to have the opportunity to develop relationships with existing employees, vendors, suppliers, customers and other business associates of the Company and its Affiliates which relationships constitute goodwill of the Company, and the Company would be irreparably damaged if the Executive were to take actions that would damage or misappropriate such goodwill. Accordingly, the Executive agrees as follows:
(i) The Executive acknowledges that the Company and its Affiliates currently conduct business throughout the United States, including without limitation the areas listed on Exhibit A attached hereto (the "TERRITORY"). Accordingly, during the period commencing on the date hereof and ending on the later of (x) the termination of the Employment Period or (y) if the Executive was terminated without Cause or resigns with Reasonable Justification, on or before the third anniversary of the Commencement Date (such period is referred to herein as the "NON-COMPETE PERIOD"), the Executive shall not, directly or indirectly, enter into, engage in, assist, give or lend funds to or otherwise finance, be employed by or consult with, or have a financial or other interest in, any business which engages in selling at retail (including, without limitation, through retail stores, by phone, by mail, by catalog or by Internet or other means of electronic commerce) musical instruments, pro-audio equipment or related accessories within the Territory (the "LINE OF BUSINESS"), whether for or by himself or as a representative for any other Person.
(ii) Notwithstanding the foregoing, the aggregate ownership by the Executive of no more than two percent (on a fully-diluted basis) of the outstanding equity securities of any entity, which securities are traded on a national or foreign securities exchange, quoted on the Nasdaq Stock Market or other automated quotation system, and which entity competes with the Company (or any part thereof) within the Territory, shall not (by itself) be deemed to be giving or lending funds to, otherwise financing or having a financial interest in a competitor. In the event that any entity in which the Company is engagedExecutive has any financial or other interest directly or indirectly enters into the Line of Business during the Non-Compete Period, personal contact is the Executive shall divest all of primary importance his interest (other than any amount permitted to be held pursuant to the first sentence of this Section 7(a)(ii)) in securing new customers such entity within thirty (30) days after learning that such entity has entered the Line of Business.
(iii) The Executive covenants and in retaining the accounts and goodwill of present customers and protecting the business of the Company. The Executive, therefore, agrees that during the Employment Period andNon-Compete Period, if the Date of Termination occurs by reason of the Executive terminating his employment for reasons other than Disability or Good Reason and other than during a Window Period, for a period of one year after the Date of Termination, he will not either within 20 miles of any geographic location of any Shale play with respect to which he has devoted substantial attention to the material business interests of the Company or any of its affiliated companies or with respect to any immediate geologic trends in any non-Shale plays, in either case, in which the Company or any of its affiliated companies have active leases or are actively pursuing leases through direct employee activity or hired brokers as of the Date of Termination, without regard, in either case, to whether the Executive has worked at such location (the "Relevant Geographic Area"), (i) accept employment or render service to any Person that is engaged in a business directly competitive with the business then engaged in by the Company or any of its affiliated companies in the Relevant Geographic Area, (ii) enter into or take part in or lend his name, counsel or assistance to any business, either as proprietor, principal, investor, partner, director, officer, executive, consultant, advisor, agent, independent contractor, or in any other capacity whatsoever, for any purpose that would be competitive with the business of the Company or any of its affiliated companies in the Relevant Geographic Area or (iii) regardless of whether it is in the Relevant Geographic Areanot, directly or indirectly, either as principal, agent, independent contractor, consultant, director, officer, employee, employer, advisor, stockholder, partner or in any other individual or representative capacity whatsoever, either for his own benefit himself or for the benefit of any other person or entity either (A) hireentity, contract or solicit, or attempt any of the foregoing, with respect to hiring solicit any employee of the Company (other than such Executive's personal assistant or its affiliated companiessecretary) or any Subsidiary to terminate his or her employment with the Company or any Subsidiary or employ any such individual during his or her employment with the Company or any Subsidiary and for a period of six months after such individual terminates his or her employment with the Company or any Subsidiary.
(b) The Executive understands that the foregoing restrictions may limit his ability to earn a livelihood in a business similar to the business of the Company, or (B) induce or otherwise counsel, advise or encourage any but he nevertheless believes that he has received and will receive sufficient consideration and other benefits as an employee of the Company or its affiliated companies holder of common stock of Parent and as otherwise provided hereunder to leave clearly justify such restrictions which, in any event (given his education, skills and ability), the employment Executive does not believe would prevent him from otherwise earning a living. Executive also acknowledges that, in connection with the closing of the Company or its affiliated companies (transactions contemplated by the Merger Agreement, Parent acquired all of the foregoing activities described in (i), (ii) and (iii) are collectively referred to as the "Prohibited Activity"). Notwithstanding anything contained in this Section 10 to the contrary, the Prohibited Activity shall not be applicable to the state or federal waters of the Gulf of Mexico or outside of the United States except as to the area covered by any U.S. or foreign state or federal oil and gas lease, license or permit in which the Company owns a working interest which was acquired by the Company prior to or during the Employment Period and further limited to the depths in which the Company owns such working or operating rights interest. For the avoidance of doubt, the provisions of this Section 10 will not apply following a termination of the Executive's employment by the Company with or without Cause, by the Executive due to Disability or Good Reason or by the Executive during a Window Period.
(b) In addition to all other remedies at law or in equity which the Company may have for breach of a provision of this Section 10 by the Executive, it is agreed that interests in the event of Company, including any breach previously held directly or attempted or threatened breach of any such provision, the Company shall be entitled, upon application to any court of proper jurisdiction, to a temporary restraining order or preliminary injunction (without the necessity of (i) proving irreparable harm, (ii) establishing that monetary damages are inadequate or (iii) posting any bond with respect thereto) against the Executive prohibiting such breach or attempted or threatened breach indirectly by proving only the existence of such breach or attempted or threatened breach. If the provisions of this Section 10 should ever be deemed to exceed the time, geographic or occupational limitations permitted by the applicable law, the Executive and the Company agree that such provisions shall be and are hereby reformed to the maximum time, geographic or occupational limitations permitted by the applicable lawExecutive.
(c) The covenants of the Executive set forth in this Section 10 are independent of and severable from every other provision of this Agreement; and the breach of any other provision of this Agreement by the Company or the breach by the Company of any other agreement between the Company and the Executive shall not affect the validity of the provisions of this Section 10 or constitute a defense of 7 shall terminate in the Executive in any suit or action brought by event the Company fails to enforce make any payments required by Section 4(b) and such failure remains uncured for a period equal to at least thirty (30) days after written notice of the provisions of this Section 10 or seek any relief for the breach thereof by the such event from Executive.
(d) The Executive acknowledges, agrees and stipulates that: (i) the terms and provisions of this Agreement are reasonable and constitute an otherwise enforceable agreement to which the terms and provisions of this Section 10 are ancillary or a part of as contemplated by TEX. BUS. & COM. CODE ▇▇▇. Sections 15.50-15.52; (ii) the consideration provided by the Company under this Agreement is not illusory; and (iii) the consideration given by the Company under this Agreement, including, without limitation, the provision by the Company of Confidential Information to the Executive as contemplated by Section 8, gives rise to the Company's interest in restraining and prohibiting the Executive from engaging in the Prohibited Activity within the Relevant Geographic Area as provided under this Section 10, and the Executive's covenant not to engage in the Prohibited Activity within the Relevant Geographic Area pursuant to this Section 10 is designed to enforce the Executive's consideration (or return promises), including, without limitation, the Executive's promise to not disclose Confidential Information under this Agreement.
Appears in 1 contract
Non-Compete and Non-Solicitation. (a) The Executive Employee recognizes that in each of the highly competitive businesses in which the Company is engaged, personal contact is of primary importance in securing new customers and in retaining the accounts and goodwill of present customers and protecting the business of the Company. The ExecutiveEmployee, therefore, agrees that during the Employment Period and, if the Date of Termination occurs by reason of the Executive Employee terminating his employment for reasons other than Disability or Good Reason and other than during a Window Period, for a period of one year after the Date of Termination, he will not either within 20 miles of any geographic location of any Shale play with respect to which he has devoted substantial attention to the material business interests of the Company or any of its affiliated companies or with respect to any immediate geologic trends in any non-Shale plays, in either case, in which the Company or any of its affiliated companies have active leases or are actively pursuing leases through direct employee activity or hired brokers as of the Date of Termination, without regard, in either case, to whether the Executive Employee has worked at such location (the "“Relevant Geographic Area"”), (i) accept employment or render service to any Person that is engaged in a business directly competitive with the business then engaged in by the Company or any of its affiliated companies in the Relevant Geographic Area, (ii) enter into or take part in or lend his name, counsel or assistance to any business, either as proprietor, principal, investor, partner, director, officer, executive, consultant, advisor, agent, independent contractor, or in any other capacity whatsoever, for any purpose that would be competitive with the business of the Company or any of its affiliated companies in the Relevant Geographic Area or (iii) regardless of whether it is in the Relevant Geographic Area, directly or indirectly, either as principal, agent, independent contractor, consultant, director, officer, employee, employer, advisor, stockholder, partner or in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit of any other person or entity either (A) hire, contract or solicit, or attempt any of the foregoing, with respect to hiring any employee of the Company or its affiliated companies, or (B) induce or otherwise counsel, advise or encourage any employee of the Company or its affiliated companies to leave the employment of the Company or its affiliated companies (all of the foregoing activities described in (i), (ii) and (iii) are collectively referred to as the "“Prohibited Activity"”). Notwithstanding anything contained in this Section 10 9 to the contrary, the Prohibited Activity shall not be applicable to the state or federal waters of the Gulf of Mexico or outside of the United States except as to the area covered by any U.S. or foreign state or federal oil and gas lease, license or permit in which the Company owns a working interest which was acquired by the Company prior to or during the Employment Period and further limited to the depths in which the Company owns such working or operating rights interest. For the avoidance of doubt, the provisions of this Section 10 9 will not apply following a termination of the Executive's Employee’s employment by the Company with or without Cause, by the Executive Employee due to Disability or Good Reason or by the Executive Employee during a Window Period.
(ba) In addition to all other remedies at law or in equity which the Company may have for breach of a provision of this Section 10 9 by the ExecutiveEmployee, it is agreed that in the event of any breach or attempted or threatened breach of any such provision, the Company shall be entitled, upon application to any court of proper jurisdiction, to a temporary restraining order or preliminary injunction (without the necessity of (i) proving irreparable harm, (ii) establishing that monetary damages are inadequate or (iii) posting any bond with respect thereto) against the Executive Employee prohibiting such breach or attempted or threatened breach by proving only the existence of such breach or attempted or threatened breach. If the provisions of this Section 10 9 should ever be deemed to exceed the time, geographic or occupational limitations permitted by the applicable law, the Executive Employee and the Company agree that such provisions shall be and are hereby reformed to the maximum time, geographic or occupational limitations permitted by the applicable law.
(cb) The covenants of the Executive Employee set forth in this Section 10 9 are independent of and severable from every other provision of this Agreement; and the breach of any other provision of this Agreement by the Company or the breach by the Company of any other agreement between the Company and the Executive Employee shall not affect the validity of the provisions of this Section 10 9 or constitute a defense of the Executive Employee in any suit or action brought by the Company to enforce any of the provisions of this Section 10 9 or seek any relief for the breach thereof by the ExecutiveEmployee.
(dc) The Executive Employee acknowledges, agrees and stipulates that: (i) the terms and provisions of this Agreement are reasonable and constitute an otherwise enforceable agreement to which the terms and provisions of this Section 10 9 are ancillary or a part of as contemplated by TEX. BUS. & COM. CODE ▇▇▇. Sections 15.50-15.52; (ii) the consideration provided by the Company under this Agreement is not illusory; and (iii) the consideration given by the Company under this Agreement, including, without limitation, the provision by the Company of Confidential Information to the Executive Employee as contemplated by Section 87, gives rise to the Company's ’s interest in restraining and prohibiting the Executive Employee from engaging in the Prohibited Activity within the Relevant Geographic Area as provided under this Section 109, and the Executive's Employee’s covenant not to engage in the Prohibited Activity within the Relevant Geographic Area pursuant to this Section 10 9 is designed to enforce the Executive's Employee’s consideration (or return promises), including, without limitation, the Executive's Employee’s promise to not disclose Confidential Information under this Agreement.
Appears in 1 contract
Non-Compete and Non-Solicitation. (i) During the term of Executive’s employment with the Company or any Affiliate of the Company and for one (1) year thereafter, regardless of the reason for the termination of Executive’s employment, Executive shall not either directly or indirectly, and will not permit any Covered Entity which is Controlled by Executive to either directly or indirectly, compete with the Business in the Territory or otherwise participate in, assist, aid or advise in any way, any competitive business or enterprise that competes with the Business in the Territory.
(ii) During the term of Executive’s employment with the Company or any Affiliate of the Company and one (1) year thereafter, Executive will not, either directly or indirectly and will not permit any Covered Entity which is Controlled by Executive to, either directly or indirectly, (a) The Executive recognizes that (1) attempt in each any manner to solicit the business of any franchisee of the highly competitive businesses in Company or Affiliates of the Company, or (2) solicit the business of any financial institution or other creditors with which the Company is engagedor its Affiliates has had a relationship, personal contact is of primary importance in securing new customers and in retaining the accounts and goodwill of present customers and protecting the business of the Company. The except that Executive may solicit such institutions or creditors if doing so would not violate his obligations under Section 4.8(i); or (b) hire, solicit, take away, or attempt to hire, solicit or take away (either on such Executive, therefore, agrees that during the Employment Period and, if the Date of Termination occurs by reason of the Executive terminating his employment for reasons other than Disability ’s behalf or Good Reason and other than during a Window Period, for a period of one year after the Date of Termination, he will not either within 20 miles on behalf of any geographic location of other person or entity) any Shale play with respect to which he has devoted substantial attention to the material business interests person (1) who is then an employee of the Company or any Affiliate of its affiliated companies the Company or an employee or a franchisee of the Company; or (2) who has terminated his or her employment with respect to any immediate geologic trends in any non-Shale plays, in either case, in which the Company or any of its affiliated companies have active leases or are actively pursuing leases through direct employee activity or hired brokers as Affiliate of the Date Company within the previous ninety (90) days.
(iii) Executive acknowledges that the foregoing geographic restriction on competition is fair and reasonable, given the nature and geographic scope of Termination, without regard, in either case, to whether the Executive has worked at such location (Company's business operations and the "Relevant Geographic Area"), (i) accept employment or render service to any Person that is engaged in a business directly competitive nature of Executive's position with the business then engaged in Company. Executive also acknowledges that while employed by the Company or any of its affiliated companies in the Relevant Geographic AreaCompany, (ii) enter into or take part in or lend his name, counsel or assistance Executive will have access to any business, either as proprietor, principal, investor, partner, director, officer, executive, consultant, advisor, agent, independent contractor, or in any other capacity whatsoever, for any purpose information that would be competitive with the business of the Company valuable or any of its affiliated companies in the Relevant Geographic Area or (iii) regardless of whether it is in the Relevant Geographic Area, directly or indirectly, either as principal, agent, independent contractor, consultant, director, officer, employee, employer, advisor, stockholder, partner or in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit of any other person or entity either (A) hire, contract or solicit, or attempt any of the foregoing, with respect to hiring any employee of the Company or its affiliated companies, or (B) induce or otherwise counsel, advise or encourage any employee of the Company or its affiliated companies to leave the employment of the Company or its affiliated companies (all of the foregoing activities described in (i), (ii) and (iii) are collectively referred to as the "Prohibited Activity"). Notwithstanding anything contained in this Section 10 to the contrary, the Prohibited Activity shall not be applicable to the state or federal waters of the Gulf of Mexico or outside of the United States except as to the area covered by any U.S. or foreign state or federal oil and gas lease, license or permit in which the Company owns a working interest which was acquired by the Company prior to or during the Employment Period and further limited to the depths in which the Company owns such working or operating rights interest. For the avoidance of doubt, the provisions of this Section 10 will not apply following a termination of the Executive's employment by the Company with or without Cause, by the Executive due to Disability or Good Reason or by the Executive during a Window Period.
(b) In addition to all other remedies at law or in equity which the Company may have for breach of a provision of this Section 10 by the Executive, it is agreed that in the event of any breach or attempted or threatened breach of any such provision, the Company shall be entitled, upon application to any court of proper jurisdiction, to a temporary restraining order or preliminary injunction (without the necessity of (i) proving irreparable harm, (ii) establishing that monetary damages are inadequate or (iii) posting any bond with respect thereto) against the Executive prohibiting such breach or attempted or threatened breach by proving only the existence of such breach or attempted or threatened breach. If the provisions of this Section 10 should ever be deemed to exceed the time, geographic or occupational limitations permitted by the applicable law, the Executive and the Company agree that such provisions shall be and are hereby reformed to the maximum time, geographic or occupational limitations permitted by the applicable law.
(c) The covenants of the Executive set forth in this Section 10 are independent of and severable from every other provision of this Agreement; and the breach of any other provision of this Agreement by the Company or the breach by the Company of any other agreement between the Company and the Executive shall not affect the validity of the provisions of this Section 10 or constitute a defense of the Executive in any suit or action brought by the Company to enforce any of the provisions of this Section 10 or seek any relief for the breach thereof by the Executive.
(d) The Executive acknowledges, agrees and stipulates that: (i) the terms and provisions of this Agreement are reasonable and constitute an otherwise enforceable agreement to which the terms and provisions of this Section 10 are ancillary or a part of as contemplated by TEX. BUS. & COM. CODE ▇▇▇. Sections 15.50-15.52; (ii) the consideration provided by the Company under this Agreement is not illusory; and (iii) the consideration given by the Company under this Agreement, including, without limitation, the provision by the Company of Confidential Information to the Executive as contemplated by Section 8, gives rise useful to the Company's interest in restraining and prohibiting the Executive from engaging in the Prohibited Activity within the Relevant Geographic Area as provided under this Section 10competitors, and therefore acknowledges that the foregoing restrictions on Executive's future employment and business activities are fair and reasonable. Executive acknowledges and is prepared for the possibility that Executive's standard of living may be reduced during the one-year period following the termination of Executive’s employment, and assumes and accepts any risk associated with that possibility.
(iv) Executive acknowledges the following provisions of Colorado law, set forth in Colorado Revised Statutes § 8-2-113(2): Any covenant not to engage in compete which restricts the Prohibited Activity within the Relevant Geographic Area pursuant right of any person to receive compensation for performance of skilled or unskilled labor for any employer shall be void, but this Section 10 is designed to enforce the Executive's consideration subsection (or return promises), including, without limitation, the Executive's promise to 2) shall not disclose Confidential Information under this Agreement.apply to: …
Appears in 1 contract
Sources: Executive Employment Agreement (SquareTwo Financial Corp)
Non-Compete and Non-Solicitation. (a) The Executive recognizes that in each of the highly competitive businesses in which the Company is engaged, personal contact is of primary importance in securing new customers and in retaining the accounts and goodwill of present customers and protecting the business of the Company. The Executive, therefore, agrees that during the Employment Period and, if the Date of Termination occurs by reason of the Executive terminating his employment for reasons other than Disability or Good Reason and other than during a Window Period, for a period of one year two years after the Date of Termination, he will not either within 20 miles of any geographic location of any Shale play with respect to which he has devoted substantial attention to the material business interests of the Company or any of its affiliated companies or not, with respect to any immediate geologic trends in any non-Shale plays, in either case, in which the Company or any of its affiliated companies have is active leases or are actively pursuing leases through direct employee activity or hired brokers as of the Date of Termination, without regard, in either case, regard to whether the Executive has worked at such location (the "Relevant Geographic Area"), (i) accept employment or render service to any Person person that is engaged in a business directly competitive with the business then engaged in by the Company or any of its affiliated companies in the Relevant Geographic Areacompanies, (ii) enter into or take part in or lend his name, counsel or assistance to any business, either as proprietor, principal, investor, partner, director, officer, executive, consultant, advisor, agent, independent contractor, or in any other capacity whatsoever, for any purpose that would be competitive with the business of the Company or any of its affiliated companies in the Relevant Geographic Area or (iii) regardless of whether it is in the Relevant Geographic Area, directly or indirectly, either as principal, agent, independent contractor, consultant, director, officer, employee, employer, advisor, stockholder, partner or in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit of any other person or entity either (A) hire, contract or solicit, or attempt any of the foregoing, with respect to hiring any employee of the Company or its affiliated companies, or (B) induce or otherwise counsel, advise or encourage any employee of the Company or its affiliated companies to leave the employment of the Company or its affiliated companies (all of the foregoing activities described in (i), (ii) and (iii) are collectively referred to as the "Prohibited Activity"). Notwithstanding anything contained in this Section 10 to the contrary, the Prohibited Activity shall not be applicable to the state or federal waters of the Gulf of Mexico or outside of the United States except as to the area covered by any U.S. or foreign state or federal oil and gas lease, license or permit in which the Company owns a working interest which was acquired by the Company prior to or during the Employment Period and further limited to the depths in which the Company owns such working or operating rights interest. For the avoidance of doubt, the provisions of this Section 10 will not apply following a termination of the Executive's employment by the Company with or without Cause, by the Executive due to Disability or Good Reason or by the Executive during a Window Period.
(b) In addition to all other remedies at law or in equity which the Company may have for breach of a provision of this Section 10 by the Executive, it is agreed that in the event of any breach or attempted or threatened breach of any such provision, the Company shall be entitled, upon application to any court of proper jurisdiction, to a temporary restraining order or preliminary injunction (without the necessity of (i) proving irreparable harm, (ii) establishing that monetary damages are inadequate or (iii) posting any bond with respect thereto) against the Executive prohibiting such breach or attempted or threatened breach by proving only the existence of such breach or attempted or threatened breach. If the provisions of this Section 10 should ever be deemed to exceed the time, geographic or occupational limitations permitted by the applicable law, the Executive and the Company agree that such provisions shall be and are hereby reformed to the maximum time, geographic or occupational limitations permitted by the applicable law. The Executive specifically recognizes and affirms that the aforementioned covenants are material and important terms of this Agreement and the Executive further agrees that in the event he engages in Prohibited Activity or in the event that all or any part or application of this Section 10 be held or found invalid or unenforceable for any reason whatsoever by a court of competent jurisdiction in an action between the Executive and the Company, the Company shall be entitled to rescind any stock option exercise during the period commencing six months preceding the date of the Executive's termination of employment and ending three months following such termination or, if the Executive has exercised all of his stock options, receive from the Executive all common stock acquired thorough the exercise of such options and held by the Executive. If the Executive has sold, transferred, or otherwise disposed of common stock obtained pursuant to the exercise of options granted by the Company, the Company shall be entitled to receive from the Executive the difference between the option price paid by the Executive and the fair market value of the common stock on the date of sale, transfer, or other disposition.
(c) The covenants of the Executive set forth in this Section 10 are independent of and severable from every other provision of this Agreement; and the breach of any other provision of this Agreement by the Company or the breach by the Company of any other agreement between the Company and the Executive shall not affect the validity of the provisions of this Section 10 or constitute a defense of the Executive in any suit or action brought by the Company to enforce any of the provisions of this Section 10 or seek any relief for the breach thereof by the Executive.
(d) The Executive acknowledges, agrees and stipulates that: (i) the terms and provisions of this Agreement are reasonable and constitute an otherwise enforceable agreement to which the terms and provisions of this Section 10 are ancillary or a part of as contemplated by TEX. BUS. & COM. CODE ▇▇▇ANN. Sections 15.50-15.52; (ii) the consideration provided by the Company Com▇▇▇y under this Agreement is not illusory; and (iii) the consideration given by the Company under this Agreement, including, without limitation, the provision by the Company of Confidential Information to the Executive as contemplated by Section 8, gives rise to the Company's interest in restraining and prohibiting the Executive from engaging in the Prohibited Activity within the Relevant Geographic Area as provided under this Section 10, and the Executive's covenant not to engage in the Prohibited Activity within the Relevant Geographic Area pursuant to this Section 10 is designed to enforce the Executive's consideration (or return promises), including, without limitation, the Executive's promise to not disclose Confidential Information under this Agreement.
Appears in 1 contract
Non-Compete and Non-Solicitation. (a) The Executive recognizes acknowledges and agrees with the Company that in each during the course of the highly competitive businesses Executive's involvement and/or employment with, or ownership of options and/or Common Stock in, the Company, such Executive has had and will continue to have the opportunity to develop relationships with existing employees, vendors, suppliers, customers and other business associates of the Company which relationships constitute goodwill of the Company, and the Company would be irreparably damaged if the Executive were to take actions that would damage or misappropriate such goodwill. Accordingly, the Executive agrees as follows:
(i) The Executive acknowledges that the Company currently conducts its business throughout the United States, including without limitation the areas listed on Exhibit B attached hereto (the "TERRITORY"). Accordingly, during the period commencing on the date hereof and ending on the later of (x) the termination of the Employment Period or (y) if the Executive was terminated without Cause or resigns with Reasonable Justification, on or before the third anniversary of the Commencement Date (such period is referred to herein as the "NON-COMPETE PERIOD"), the Executive shall not, directly or indirectly, enter into, engage in, assist, give or lend funds to or otherwise finance, be employed by or consult with, or have a financial or other interest in, any business which engages in selling at retail musical instruments, pro-audio equipment or related accessories within the Territory (the "LINE OF BUSINESS"), whether for or by himself or as a representative for any other Person.
(ii) Notwithstanding the foregoing, the aggregate ownership by the Executive of no more than two percent (on a fully-diluted basis) of the outstanding equity securities of any entity, which securities are traded on a national or foreign securities exchange, quoted on the Nasdaq Stock Market or other automated quotation system, and which entity competes with the Company (or any part thereof) within the Territory, shall not (by itself) be deemed to be giving or lending funds to, otherwise financing or having a financial interest in a competitor. In the event that any entity in which the Company is engagedExecutive has any financial or other interest directly or indirectly enters into the Line of Business during the Non-Compete Period, personal contact is the Executive shall divest all of primary importance his interest (other than any amount permitted to be held pursuant to the first sentence of this Section 7(a)(ii)) in securing new customers such entity within thirty (30) days after learning that such entity has entered the Line of Business.
(iii) The Executive covenants and in retaining the accounts and goodwill of present customers and protecting the business of the Company. The Executive, therefore, agrees that during the Employment Period andNon-Compete Period, if the Date of Termination occurs by reason of the Executive terminating his employment for reasons other than Disability or Good Reason and other than during a Window Period, for a period of one year after the Date of Termination, he will not either within 20 miles of any geographic location of any Shale play with respect to which he has devoted substantial attention to the material business interests of the Company or any of its affiliated companies or with respect to any immediate geologic trends in any non-Shale plays, in either case, in which the Company or any of its affiliated companies have active leases or are actively pursuing leases through direct employee activity or hired brokers as of the Date of Termination, without regard, in either case, to whether the Executive has worked at such location (the "Relevant Geographic Area"), (i) accept employment or render service to any Person that is engaged in a business directly competitive with the business then engaged in by the Company or any of its affiliated companies in the Relevant Geographic Area, (ii) enter into or take part in or lend his name, counsel or assistance to any business, either as proprietor, principal, investor, partner, director, officer, executive, consultant, advisor, agent, independent contractor, or in any other capacity whatsoever, for any purpose that would be competitive with the business of the Company or any of its affiliated companies in the Relevant Geographic Area or (iii) regardless of whether it is in the Relevant Geographic Areanot, directly or indirectly, either as principal, agent, independent contractor, consultant, director, officer, employee, employer, advisor, stockholder, partner or in any other individual or representative capacity whatsoever, either for his own benefit himself or for the benefit of any other person or entity either (A) hireentity, contract or solicit, or attempt any of the foregoing, with respect to hiring solicit any employee of the Company (other than such Executive's personal assistant or its affiliated companies, secretary) or (B) induce any Subsidiary to terminate his or otherwise counsel, advise or encourage any employee of her employment with the Company or its affiliated companies to leave the any Subsidiary or employ any such individual during his or her employment of with the Company or its affiliated companies (all any Subsidiary and for a period of the foregoing activities described in (i), (ii) and (iii) are collectively referred to as the "Prohibited Activity"). Notwithstanding anything contained in this Section 10 to the contrary, the Prohibited Activity shall not be applicable to the state six months after such individual terminates his or federal waters of the Gulf of Mexico or outside of the United States except as to the area covered by any U.S. or foreign state or federal oil and gas lease, license or permit in which her employment with the Company owns a working interest which was acquired by the Company prior to or during the Employment Period and further limited to the depths in which the Company owns such working or operating rights interest. For the avoidance of doubt, the provisions of this Section 10 will not apply following a termination of the Executive's employment by the Company with or without Cause, by the Executive due to Disability or Good Reason or by the Executive during a Window Periodany Subsidiary.
(b) In addition The Executive understands that the foregoing restrictions may limit his ability to all earn a livelihood in a business similar to the business of the Company, but he nevertheless believes that he has received and will receive sufficient consideration and other remedies at law benefits as an employee or in equity which holder of Common Stock of the Company may have for breach of a provision of this Section 10 by the Executiveand as otherwise provided hereunder to clearly justify such restrictions which, it is agreed that in the any event of any breach or attempted or threatened breach of any such provision(given his education, the Company shall be entitled, upon application to any court of proper jurisdiction, to a temporary restraining order or preliminary injunction (without the necessity of (i) proving irreparable harm, (ii) establishing that monetary damages are inadequate or (iii) posting any bond with respect thereto) against the Executive prohibiting such breach or attempted or threatened breach by proving only the existence of such breach or attempted or threatened breach. If the provisions of this Section 10 should ever be deemed to exceed the time, geographic or occupational limitations permitted by the applicable lawskills and ability), the Executive and the Company agree that such provisions shall be and are hereby reformed to the maximum time, geographic or occupational limitations permitted by the applicable lawdoes not believe would prevent him from otherwise earning a living.
(c) The covenants of the Executive set forth in this Section 10 are independent of and severable from every other provision of this Agreement; and the breach of any other provision of this Agreement by the Company or the breach by the Company of any other agreement between the Company and the Executive shall not affect the validity of the provisions of this Section 10 or constitute a defense of 7 shall terminate in the Executive in any suit or action brought by event the Company fails to enforce make any payments required by Section 4(b) and such failure remains uncured for a period equal to at least thirty (30) days after written notice of the provisions of this Section 10 or seek any relief for the breach thereof by the such event from Executive.
(d) The Executive acknowledges, agrees and stipulates that: (i) the terms and provisions of this Agreement are reasonable and constitute an otherwise enforceable agreement to which the terms and provisions of this Section 10 are ancillary or a part of as contemplated by TEX. BUS. & COM. CODE ▇▇▇. Sections 15.50-15.52; (ii) the consideration provided by the Company under this Agreement is not illusory; and (iii) the consideration given by the Company under this Agreement, including, without limitation, the provision by the Company of Confidential Information to the Executive as contemplated by Section 8, gives rise to the Company's interest in restraining and prohibiting the Executive from engaging in the Prohibited Activity within the Relevant Geographic Area as provided under this Section 10, and the Executive's covenant not to engage in the Prohibited Activity within the Relevant Geographic Area pursuant to this Section 10 is designed to enforce the Executive's consideration (or return promises), including, without limitation, the Executive's promise to not disclose Confidential Information under this Agreement.
Appears in 1 contract
Non-Compete and Non-Solicitation. (a) The Executive recognizes acknowledges that in each during the course of the highly competitive businesses in which his employment with the Company is engagedand its Subsidiaries he shall become familiar with the Company’s trade secrets and with other Confidential Information concerning the Company and its Subsidiaries and that Executive’s services shall be of special, personal contact is of primary importance unique and extraordinary value to the Company and its Subsidiaries. Therefore, in securing new customers and in retaining the accounts and goodwill of present customers and protecting the business consideration of the Company. The Executive, therefore, ’s agreement to employ Executive and the compensation to be paid to Executive hereunder Executive agrees that during for eighteen (18) months after the date of termination of the Employment Period and(the “Noncompete Period”), if Executive shall not, directly or indirectly own any interest in, manage, control, participate in, consult with, render services for, be employed in an executive, managerial or administrative capacity by, or in any manner engage in any business competing with the Date of Termination occurs by reason of the Executive terminating his employment for reasons other than Disability or Good Reason and other than during a Window Period, for a period of one year after the Date of Termination, he will not either within 20 miles of any geographic location of any Shale play with respect to which he has devoted substantial attention to the material business interests businesses of the Company or any of its affiliated companies Subsidiaries, as such businesses exist or with respect to are in process during the Employment Period or on the date of the termination or expiration of the Employment Period, within any immediate geologic trends in any non-Shale plays, in either case, geographical area in which the Company or any its Subsidiaries engage or plan to engage in such business. Nothing herein shall prohibit Executive from being a passive owner of its affiliated companies have active leases or are actively pursuing leases through direct employee activity or hired brokers as not more than 4.9% of the Date outstanding stock of Terminationany class of a corporation which is publicly traded, without regard, in either case, to whether the so long as Executive has worked at no active participation in the business of such location corporation.
(b) For a period of twelve (12) months following the "Relevant Geographic Area")date of termination of the Employment Period, Executive shall not directly or indirectly through another person or entity (i) accept employment induce or render service attempt to induce any Person that is engaged in a business directly competitive with the business then engaged in by the Company or any of its affiliated companies in the Relevant Geographic Area, (ii) enter into or take part in or lend his name, counsel or assistance to any business, either as proprietor, principal, investor, partner, director, officer, executive, consultant, advisor, agent, independent contractor, or in any other capacity whatsoever, for any purpose that would be competitive with the business employee of the Company or any of its affiliated companies in Subsidiaries to leave the Relevant Geographic Area employ of the Company or (iii) regardless of whether it is in the Relevant Geographic Areasuch Subsidiary, directly or indirectly, either as principal, agent, independent contractor, consultant, director, officer, employee, employer, advisor, stockholder, partner or in any other individual way interfere with the relationship between the Company or representative capacity whatsoever, either for his own benefit or for the benefit of any other person or entity either (A) hire, contract or solicit, or attempt any of the foregoingits Subsidiaries and any employee thereof, with respect to hiring (ii) hire any person who was an employee of the Company or any of its affiliated companies, Subsidiaries at any time during the Employment Period or (Biii) induce or otherwise counselattempt to induce any customer, advise referral source, supplier, licensee, licensor, franchisee or encourage any employee other business relation of the Company or any of its affiliated companies Subsidiaries to leave the employment of cease doing business with the Company or its affiliated companies (all of the foregoing activities described in (i)such Subsidiary, (ii) and (iii) are collectively referred to as the "Prohibited Activity"). Notwithstanding anything contained in this Section 10 to the contrary, the Prohibited Activity shall not be applicable to the state or federal waters of the Gulf of Mexico or outside of the United States except as to the area covered by any U.S. or foreign state or federal oil and gas lease, license or permit in which the Company owns a working interest which was acquired by the Company prior to or during the Employment Period and further limited to the depths in which the Company owns such working or operating rights interest. For the avoidance of doubt, the provisions of this Section 10 will not apply following a termination of the Executive's employment by the Company with or without Cause, by the Executive due to Disability or Good Reason or by the Executive during a Window Period.
(b) In addition to all other remedies at law or in equity which any way interfere with the Company may have for breach of a provision of this Section 10 by the Executive, it is agreed that in the event of any breach or attempted or threatened breach of relationship between any such provisioncustomer, the Company shall be entitledsupplier, upon application to any court of proper jurisdiction, to a temporary restraining order licensee or preliminary injunction (without the necessity of (i) proving irreparable harm, (ii) establishing that monetary damages are inadequate or (iii) posting any bond with respect thereto) against the Executive prohibiting such breach or attempted or threatened breach by proving only the existence of such breach or attempted or threatened breach. If the provisions of this Section 10 should ever be deemed to exceed the time, geographic or occupational limitations permitted by the applicable law, the Executive business relation and the Company agree that such provisions shall be and are hereby reformed to the maximum time, geographic or occupational limitations permitted by the applicable law.
(c) The covenants of the Executive set forth in this Section 10 are independent of and severable from every other provision of this Agreement; and the breach of any other provision of this Agreement by the Company or the breach by the Company of any other agreement between the Company and the Executive shall not affect the validity of the provisions of this Section 10 or constitute a defense of the Executive in any suit or action brought by the Company to enforce any of the provisions of this Section 10 or seek any relief for the breach thereof by the Executive.
its Subsidiaries (d) The Executive acknowledges, agrees and stipulates that: (i) the terms and provisions of this Agreement are reasonable and constitute an otherwise enforceable agreement to which the terms and provisions of this Section 10 are ancillary or a part of as contemplated by TEX. BUS. & COM. CODE ▇▇▇. Sections 15.50-15.52; (ii) the consideration provided by the Company under this Agreement is not illusory; and (iii) the consideration given by the Company under this Agreement, including, without limitation, the provision by making any negative or disparaging statements or communications regarding the Company of Confidential Information to the Executive as contemplated by Section 8, gives rise to the Company's interest in restraining and prohibiting the Executive from engaging in the Prohibited Activity within the Relevant Geographic Area as provided under this Section 10, and the Executive's covenant not to engage in the Prohibited Activity within the Relevant Geographic Area pursuant to this Section 10 is designed to enforce the Executive's consideration (or return promisesits Subsidiaries), including, without limitation, the Executive's promise to not disclose Confidential Information under this Agreement.
Appears in 1 contract
Non-Compete and Non-Solicitation. (a) The Executive recognizes that in each A. During my term of the highly competitive businesses in which the Company is engaged, personal contact is of primary importance in securing new customers and in retaining the accounts and goodwill of present customers and protecting the business of the Company. The Executive, therefore, agrees that during the Employment Period and, if the Date of Termination occurs by reason of the Executive terminating his employment for reasons other than Disability or Good Reason and other than during a Window Period, for a period of one year after the Date of Termination, he will not either within 20 miles of any geographic location of any Shale play with respect to which he has devoted substantial attention to the material business interests of the Company or any of its affiliated companies or with respect to any immediate geologic trends in any non-Shale plays, in either case, in which the Company or any of its affiliated companies have active leases or are actively pursuing leases through direct employee activity or hired brokers as of the Date of Termination, without regard, in either case, to whether the Executive has worked at such location (the "Relevant Geographic Area"), (i) accept employment or render service to any Person that is engaged in a business directly competitive with the business then engaged in by the Company and for one (1) year period thereafter, I will not engage or participate or assist any of its affiliated companies in the Relevant Geographic Area, (ii) enter into or take part in or lend his name, counsel or assistance to any business, either as proprietor, principal, investor, partner, director, officer, executive, consultant, advisor, agent, independent contractor, or in any other capacity whatsoever, for any purpose that would be competitive with the business of the Company or any of its affiliated companies in the Relevant Geographic Area or (iii) regardless of whether it is in the Relevant Geographic Areaperson, directly or indirectly, either as principal, agent, independent contractor, consultant, director, officer, employee, employer, advisor, stockholder, partner or in any other individual or representative capacity whatsoeverin any business or enterprise that competes with the business, present or prospective, of the Company without the express written consent of the Company. I may, however, retain personal investments held by me as of the date hereof provided that by those investments I am not involved in the management or operation of that business. It is agreed that, should I own or control less than five percent (5%) of the issued publicly traded stock of, or equity in, a business, such ownership shall not constitute a violation of this provision.
B. I agree further that for the period of my employment by the Company and for 12 months after the date of termination of my employment with the Company I will neither (a) solicit the business of any client or customer of the Company (other than on behalf of the Company), (b) either for directly or through others, solicit or attempt to solicit any employee, independent contractor or consultant of the Company to terminate his own benefit or her relationship with the Company in order to become an employee, consultant or independent contractor to or for the benefit of any other person or entity either entity, nor (Ac) hiredirectly or indirectly induce any client, contract customer, supplier, vendor, consultant or solicit, or attempt any of the foregoing, with respect to hiring any employee independent contractor of the Company to terminate or negatively alter his, her or its affiliated companiesrelationship with the Company.
C. I acknowledge that through my employment with the Company I will acquire access to information suited to immediate application by a business in competition with the Company. I specifically acknowledge that, or (B) induce or otherwise counsel, advise or encourage any employee because of the nature and type of business that the Company or its affiliated companies to leave engages in, the employment geographic scope of the Company or its affiliated companies (all of the foregoing activities described in (i), (ii) and (iii) are collectively referred to as the "Prohibited Activity"). Notwithstanding anything contained covenants in this Section 10 to the contraryArticle IV shall include all counties, the Prohibited Activity shall not be applicable to the state or federal waters of the Gulf of Mexico or outside of cities and states in the United States except as to the area covered by and any U.S. other city, country, territory or foreign state or federal oil and gas lease, license or permit region in which the Company owns a working interest which was acquired by conducts business. I agree and acknowledge that the Company prior to or during the Employment Period foregoing restrictions, geographic scope and further limited to the depths time limitations set forth in which the Company owns such working or operating rights interest. For the avoidance of doubtthis Article IV are reasonable, and that the provisions in this Article IV are reasonably necessary for the protection of the Company. If any restriction set forth in this Article IV is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceable.
D. I further acknowledge the following provisions of Colorado law, set forth in Colorado Revised Statutes Section 10 will 8-2-113(2): “Any covenant not to compete which restricts the right of any person to receive compensation for performance of skilled or unskilled labor for any employer shall be void, but this subsection (2) shall not apply following to:
(a) Any contract for the purchase and sale of a termination business or the assets of the Executive's employment by the Company with or without Cause, by the Executive due to Disability or Good Reason or by the Executive during a Window Period.business;
(b) In addition to all other remedies at law or in equity which Any contract for the Company may have for breach protection of a provision of this Section 10 by the Executive, it is agreed that in the event of any breach or attempted or threatened breach of any such provision, the Company shall be entitled, upon application to any court of proper jurisdiction, to a temporary restraining order or preliminary injunction (without the necessity of (i) proving irreparable harm, (ii) establishing that monetary damages are inadequate or (iii) posting any bond with respect thereto) against the Executive prohibiting such breach or attempted or threatened breach by proving only the existence of such breach or attempted or threatened breach. If the provisions of this Section 10 should ever be deemed to exceed the time, geographic or occupational limitations permitted by the applicable law, the Executive and the Company agree that such provisions shall be and are hereby reformed to the maximum time, geographic or occupational limitations permitted by the applicable law.trade secrets;
(c) The covenants Any contract provision providing for the recovery of the Executive set forth in this Section 10 are independent expense of educating and severable from every other provision training an employee who has served an employer for a period of this Agreement; and the breach of any other provision of this Agreement by the Company or the breach by the Company of any other agreement between the Company and the Executive shall not affect the validity of the provisions of this Section 10 or constitute a defense of the Executive in any suit or action brought by the Company to enforce any of the provisions of this Section 10 or seek any relief for the breach thereof by the Executive.less than two years;
(d) The Executive acknowledgesand management personnel and officers and employees who constitute professional staff to executive and management personnel.” I acknowledge that this agreement is a contract for the protection of trade secrets under Section 8-2-113(2)(b), agrees and stipulates that: (i) is intended to protect the terms confidential information and provisions trade secrets of this Agreement are reasonable and constitute an otherwise enforceable agreement to which the terms and provisions of this Section 10 are ancillary or a part of as contemplated by TEX. BUS. & COM. CODE ▇▇▇. Sections 15.50-15.52; (ii) the consideration provided by the Company under this Agreement is not illusoryCompany; and (iii) that I am an executive and management employee or professional staff to executive or management personnel, within the consideration given by the Company under this Agreement, including, without limitation, the provision by the Company meaning of Confidential Information to the Executive as contemplated by Section 8, gives rise to -2-113(2)(d).
E. I acknowledge and am prepared for the Company's interest possibility that my standard of living may be reduced during the noncompetition period provided in restraining and prohibiting this Article IV following the Executive from engaging in the Prohibited Activity within the Relevant Geographic Area as provided under this Section 10termination of my employment, and the Executive's covenant not to engage in the Prohibited Activity within the Relevant Geographic Area pursuant to this Section 10 is designed to enforce the Executive's consideration (or return promises), including, without limitation, the Executive's promise to not disclose Confidential Information under this Agreementfully accept any risk associated with that possibility.
Appears in 1 contract
Non-Compete and Non-Solicitation. (a) The Executive recognizes that in each of the highly competitive businesses in which the Company is engaged, personal contact is of primary importance in securing new customers and in retaining the accounts and goodwill of present customers and protecting the business of the Company. The Executive, therefore, agrees that during the Employment Period and, if the Date of Termination occurs (i) by reason of the Executive terminating his employment for reasons other than Disability or Good Reason and other than during or (ii) in connection with or following a Window PeriodChange in Control, for a period of one year after the Date of Termination, he will not either within 20 miles of any geographic location of any Shale play with respect to which he has devoted substantial attention to the material business interests of the Company or any of its affiliated companies or with respect to any immediate geologic trends in any non-Shale plays, in either case, in which the Company or any of its affiliated companies have active leases or are actively pursuing leases through direct employee activity or hired brokers as of the Date of Termination, without regard, in either case, to whether the Executive has worked at such location (the "“Relevant Geographic Area"”), (i) accept employment or render service material services to any Person entity that is engaged in a business directly competitive with the business then engaged in by the Company or any of its affiliated companies in the Relevant Geographic Area, (ii) enter into into, or take part in in, or lend his name, counsel or material assistance to to, any business, entity either as proprietor, principal, investoror owner of more than 5% of such entity, partner, director, or act as an officer, executive, employee, consultant, advisor, agent, independent contractorcontractor to or for such entity, or in any other capacity whatsoever, for any purpose either case with respect to an entity that would be directly competitive with the business of the Company or any of its affiliated companies in the Relevant Geographic Area Area; provided, however, that the prohibitions set forth in this subparagraphs (i) and (ii) shall not apply to actions by the Executive with respect to any entity where the Executive (x) serves as an independent member of the board of directors and where, in respect of his position on the board, the Executive may provide knowledge, counsel and advice that may be informed by his mental impressions, experience and wisdom obtained while employed at the Company, which knowledge, counsel and advice shall not be considered Confidential Information so long as the Executive does not disclose any written, electronic or tangible Confidential Information, (y) is an investor in such an entity, which investment has previously been disclosed to the Company and approved by the Board of Directors of the Company or a committee thereof, or (iii) regardless of whether it is in the Relevant Geographic Area, directly or indirectly, either as principal, agent, independent contractor, consultant, director, officer, employee, employer, advisor, significant stockholder, partner or in any other individual or representative capacity whatsoever, either for his the Executive’s own benefit or for the benefit of any other person or entity either (A) directly hire, contract or solicit, or attempt any of the foregoing, with respect to hiring any employee of the Company or its affiliated companies, or (B) induce or otherwise counsel, advise or encourage any employee of the Company or its affiliated companies to leave the employment of the Company or its affiliated companies companies; provided, however, that the prohibitions set forth in this subparagraph (iii) shall not apply to (x) solicitations made by the Executive or any entity with which the Executive is associated, that are made to the public or the industry generally and not targeted at employees of the Company or its affiliated companies, (y) solicitations in response to any such person who contacts the Executive, or the entity with which the Executive is associated, on his or her own initiative without any prior prohibited solicitations or (z) solicitations implemented or initiated by any entity with which the Executive is associated without the knowledge or participation of the Executive (all of the foregoing activities described in (i), (ii) and (iii) are collectively referred to as the "“Prohibited Activity"”). Notwithstanding anything contained in this Section 10 to the contrary, the Prohibited Activity shall not be applicable to the state or federal waters of the Gulf of Mexico or outside of the United States except as to the area covered by any U.S. or foreign state or federal oil and gas lease, license or permit in which the Company owns a working interest which was acquired by the Company prior to or during the Employment Period and further limited to the depths in which the Company owns such working or operating rights interest. For the avoidance of doubt, the provisions of this Section 10 will only apply in the event of (i) Executive’s voluntary termination of employment without Good Reason and not apply for reasons of Disability or (ii) Executive’s termination of employment in connection with or following a termination Change in Control. Notwithstanding the foregoing, the Executive may provide professional legal services either as in-house or outside counsel to an entity that competes with the Company, provided that (i) such services do not violate the Executive’s ethical and legal duties to maintain confidential communications and client confidences of the Executive's employment by the Company with or without Cause, by and (ii) the Executive due does not provide legal services to Disability any person or Good Reason or by entity on a matter that is substantially related to his provision of legal services to the Executive during a Window PeriodCompany.
(b) In addition to all other remedies at law or in equity which the Company may have for breach of a provision of this Section 10 by the Executive, it is agreed that in the event of any breach or attempted or threatened breach of any such provision, the Company shall be entitled, upon application to any court of proper jurisdiction, to a temporary restraining order or preliminary injunction (without the necessity of (i) proving irreparable harm, (ii) establishing that monetary damages are inadequate or (iii) posting any bond with respect thereto) against the Executive prohibiting such breach or attempted or threatened breach by proving only the existence of such breach or attempted or threatened breach. If the provisions of this Section 10 should ever be deemed to exceed the time, geographic or occupational limitations permitted by the applicable law, the Executive and the Company agree that such provisions shall be and are hereby reformed to the maximum time, geographic or occupational limitations permitted by the applicable law.
(c) The covenants of the Executive set forth in this Section 10 are independent of and severable from every other provision of this Agreement; and the breach of any other provision of this Agreement by the Company or the breach by the Company of any other agreement between the Company and the Executive shall not affect the validity of the provisions of this Section 10 or constitute a defense of the Executive in any suit or action brought by the Company to enforce any of the provisions of this Section 10 or seek any relief for the breach thereof by the Executive.
(d) The Executive acknowledges, agrees and stipulates that: (i) the terms and provisions of this Agreement are reasonable and constitute an otherwise enforceable agreement to which the terms and provisions of this Section 10 are ancillary or a part of as contemplated by TEX. BUS. & COM. CODE ▇▇▇. Sections 15.50-15.52; (ii) the consideration provided by the Company under this Agreement is not illusory; and (iii) the consideration given by the Company under this Agreement, including, without limitation, the provision by the Company of Confidential Information to the Executive as contemplated by Section 8, gives rise to the Company's ’s interest in restraining and prohibiting the Executive from engaging in the Prohibited Activity within the Relevant Geographic Area as provided under this Section 10, and the Executive's ’s covenant not to engage in the Prohibited Activity within the Relevant Geographic Area pursuant to this Section 10 is designed to enforce the Executive's ’s consideration (or return promises), including, without limitation, the Executive's ’s promise to not disclose Confidential Information under this Agreement.
Appears in 1 contract
Non-Compete and Non-Solicitation. (a) The Executive recognizes that in each of the highly competitive businesses in which the Company is engaged, personal contact is of primary importance in securing new customers and in retaining the accounts and goodwill of present customers and protecting the business of the Company. The Executive, therefore, agrees that during the Employment Period and, if the Date of Termination occurs by reason of the Executive terminating his employment for reasons other than Disability or Good Reason and other than during a Window Period, for a period of one year after the Date of Termination, he will not either within 20 miles of any geographic location of any Shale play with respect to which he has devoted substantial attention to the material business interests of the Company or any of its affiliated companies or with respect to any immediate geologic trends in any non-Shale plays, in either case, in which the Company or any of its affiliated companies have active leases or are actively pursuing leases through direct employee activity or hired brokers as of the Date of Termination, without regard, in either case, to whether the Executive has worked at such location (the "“Relevant Geographic Area"”), (i) accept employment or render service to any Person that is engaged in a business directly competitive with the business then engaged in by the Company or any of its affiliated companies in the Relevant Geographic Area, (ii) enter into or take part in or lend his name, counsel or assistance to any business, either as proprietor, principal, investor, partner, director, officer, executive, consultant, advisor, agent, independent contractor, or in any other capacity whatsoever, for any purpose that would be competitive with the business of the Company or any of its affiliated companies in the Relevant Geographic Area or (iii) regardless of whether it is in the Relevant Geographic Area, directly or indirectly, either as principal, agent, independent contractor, consultant, director, officer, employee, employer, advisor, stockholder, partner or in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit of any other person or entity either (A) hire, contract or solicit, or attempt any of the foregoing, with respect to hiring any employee of the Company or its affiliated companies, or (B) induce or otherwise counsel, advise or encourage any employee of the Company or its affiliated companies to leave the employment of the Company or its affiliated companies (all of the foregoing activities described in (i), (ii) and (iii) are collectively referred to as the "“Prohibited Activity"”). Notwithstanding anything contained in this Section 10 to the contrary, the Prohibited Activity shall not be applicable to the state or federal waters of the Gulf of Mexico or outside of the United States except as to the area covered by any U.S. or foreign state or federal oil and gas lease, license or permit in which the Company owns a working interest which was acquired by the Company prior to or during the Employment Period and further limited to the depths in which the Company owns such working or operating rights interest. For the avoidance of doubt, the provisions of this Section 10 will not apply following a termination of the Executive's ’s employment by the Company with or without Cause, by the Executive due to Disability or Good Reason or by the Executive during a Window Period.
(b) In addition to all other remedies at law or in equity which the Company may have for breach of a provision of this Section 10 by the Executive, it is agreed that in the event of any breach or attempted or threatened breach of any such provision, the Company shall be entitled, upon application to any court of proper jurisdiction, to a temporary restraining order or preliminary injunction (without the necessity of (i) proving irreparable harm, (ii) establishing that monetary damages are inadequate or (iii) posting any bond with respect thereto) against the Executive prohibiting such breach or attempted or threatened breach by proving only the existence of such breach or attempted or threatened breach. If the provisions of this Section 10 should ever be deemed to exceed the time, geographic or occupational limitations permitted by the applicable law, the Executive and the Company agree that such provisions shall be and are hereby reformed to the maximum time, geographic or occupational limitations permitted by the applicable law.
(c) The covenants of the Executive set forth in this Section 10 are independent of and severable from every other provision of this Agreement; and the breach of any other provision of this Agreement by the Company or the breach by the Company of any other agreement between the Company and the Executive shall not affect the validity of the provisions of this Section 10 or constitute a defense of the Executive in any suit or action brought by the Company to enforce any of the provisions of this Section 10 or seek any relief for the breach thereof by the Executive.
(d) The Executive acknowledges, agrees and stipulates that: (i) the terms and provisions of this Agreement are reasonable and constitute an otherwise enforceable agreement to which the terms and provisions of this Section 10 are ancillary or a part of as contemplated by TEX. BUS. & COM. CODE ▇▇▇. Sections 15.50-15.52; (ii) the consideration provided by the Company under this Agreement is not illusory; and (iii) the consideration given by the Company under this Agreement, including, without limitation, the provision by the Company of Confidential Information to the Executive as contemplated by Section 8, gives rise to the Company's ’s interest in restraining and prohibiting the Executive from engaging in the Prohibited Activity within the Relevant Geographic Area as provided under this Section 10, and the Executive's ’s covenant not to engage in the Prohibited Activity within the Relevant Geographic Area pursuant to this Section 10 is designed to enforce the Executive's ’s consideration (or return promises), including, without limitation, the Executive's ’s promise to not disclose Confidential Information under this Agreement.
Appears in 1 contract
Non-Compete and Non-Solicitation. (a) The Executive recognizes that in each of the highly competitive businesses in which the Company is engaged, personal contact is of primary importance in securing new customers and in retaining the accounts and goodwill of present customers and protecting the business of the Company. The Executive, therefore, agrees that during the Employment Period and, if unless the Date of Termination occurs by reason within two years following a Change of the Executive terminating his employment for reasons other than Disability or Good Reason and other than during a Window PeriodControl, for a period of one year after the Date of Termination, he will not either within 20 miles of any geographic location of any Shale play with respect to which he has devoted substantial attention to the material business interests of the Company or any of its affiliated companies or with respect to any immediate geologic trends in any non-Shale plays, in either case, in which the Company or any of its affiliated companies have active leases or are actively pursuing leases through direct employee activity or hired brokers as of the Date of Termination, without regard, in either case, to whether the Executive has worked at such location (the "“Relevant Geographic Area"”), (i) accept employment or render service to any Person that is engaged in a business directly competitive with the business then engaged in by the Company or any of its affiliated companies in the Relevant Geographic Area, (ii) enter into or take part in or lend his name, counsel or assistance to any business, either as proprietor, principal, investor, partner, director, officer, executive, consultant, advisor, agent, independent contractor, or in any other capacity whatsoever, for any purpose that would be competitive with the business of the Company or any of its affiliated companies in the Relevant Geographic Area or (iii) regardless of whether it is in the Relevant Geographic Area, directly or indirectly, either as principal, agent, independent contractor, consultant, director, officer, employee, employer, advisor, stockholder, partner or in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit of any other person or entity either (A) hire, contract or solicit, or attempt any of the foregoing, with respect to hiring any employee of the Company or its affiliated companies, or (B) induce or otherwise counsel, advise or encourage any employee of the Company or its affiliated companies to leave the employment of the Company or its affiliated companies (all of the foregoing activities described in (i), (ii) and (iii) are collectively referred to as the "“Prohibited Activity"”). Notwithstanding anything contained in this Section 10 9 to the contrary, the Prohibited Activity shall not be applicable to the state or federal waters of the Gulf of Mexico or outside of the United States except as to the area covered by any U.S. or foreign state or federal oil and gas lease, license or permit in which the Company owns a working interest which was acquired by the Company prior to or during the Employment Period and further limited to the depths in which the Company owns such working or operating rights interest. For the avoidance of doubt, the provisions of this Section 10 9 will not apply if the Executive’s Date of Termination occurs within two years following a termination Change of the Executive's employment by the Company with or without Cause, by the Executive due to Disability or Good Reason or by the Executive during a Window PeriodControl.
(b) In addition to all other remedies at law or in equity which the Company may have for breach of a provision of this Section 10 9 by the Executive, it is agreed that in the event of any breach or attempted or threatened breach of any such provision, the Company shall be entitled, upon application to any court of proper jurisdiction, to a temporary restraining order or preliminary injunction (without the necessity of (i) proving irreparable harm, (ii) establishing that monetary damages are inadequate or (iii) posting any bond with respect thereto) against the Executive prohibiting such breach or attempted or threatened breach by proving only the existence of such breach or attempted or threatened breach. If the provisions of this Section 10 9 should ever be deemed to exceed the time, geographic or occupational limitations permitted by the applicable law, the Executive and the Company agree that such provisions shall be and are hereby reformed to the maximum time, geographic or occupational limitations permitted by the applicable law.
(c) The covenants of the Executive set forth in this Section 10 9 are independent of and severable from every other provision of this Agreement; and the breach of any other provision of this Agreement by the Company or the breach by the Company of any other agreement between the Company and the Executive shall not affect the validity of the provisions of this Section 10 9 or constitute a defense of the Executive in any suit or action brought by the Company to enforce any of the provisions of this Section 10 9 or seek any relief for the breach thereof by the Executive.
(d) The Executive acknowledges, agrees and stipulates that: (i) the terms and provisions of this Agreement are reasonable and constitute an otherwise enforceable agreement to which the terms and provisions of this Section 10 9 are ancillary or a part of as contemplated by TEX. BUS. & COM. CODE ▇▇▇. Sections 15.50-15.52; (ii) the consideration provided by the Company under this Agreement is not illusory; and (iii) the consideration given by the Company under this Agreement, including, without limitation, the provision by the Company of Confidential Information to the Executive as contemplated by Section 87, gives rise to the Company's ’s interest in restraining and prohibiting the Executive from engaging in the Prohibited Activity within the Relevant Geographic Area as provided under this Section 109, and the Executive's ’s covenant not to engage in the Prohibited Activity within the Relevant Geographic Area pursuant to this Section 10 9 is designed to enforce the Executive's ’s consideration (or return promises), including, without limitation, the Executive's ’s promise to not disclose Confidential Information under this Agreement.
Appears in 1 contract
Sources: Executive Employment Agreement (Carrizo Oil & Gas Inc)