Non-Compete and Non-Solicitation. The Executive acknowledges and agrees with the Company that during the course of the Executive’s employment with the Company, the Executive will have the opportunity to develop relationships with existing employees, customers and other business associates of Holdings, the Company and their Subsidiaries (collectively, “PQ”) which relationships constitute goodwill of PQ, and PQ would be irreparably damaged if the Executive were to take actions that would damage or misappropriate such goodwill. Accordingly, the Executive agrees as follows: (a) The Executive acknowledges that PQ currently conducts its business throughout the world (the “Territory”). Accordingly, during the Executive’s employment with the Company and during the 24-month period following the Termination Date (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 Person that offers one or more products or services or engages in a business, in each case, that is directly competitive with a product or service or the business of PQ, as conducted or in active planning (a “Competitor”), whether for or by himself or in any other capacity. To the extent that the covenant provided for in this Section 4.03(a) may later be deemed by a court to be too broad to be enforced with respect to its duration or with respect to any particular activity or geographic area, the court making such determination shall have the power to reduce the duration or scope of the provision, and to add or delete specific words or phrases to or from the provision. The provision as modified shall then be enforced. Notwithstanding the foregoing restriction, it shall not be a violation of this Section 4.03(a) for the Executive to work for a Competitor if: (i) the Executive works in a separate legal subsidiary or Affiliate that offers products or services or conducts a business, in each case, that is not directly competitive with PQ, (ii) the Executive informs Holdings in writing prior to accepting the position how such position complies with the terms of this subsection, and (iii) Holdings consents to Executive’s employment with such entity, which consent shall not be unreasonably withheld. (b) 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 Person, which securities are traded on a national or foreign securities exchange, quoted on the NASDAQ stock market or other automated quotation system, and which Person competes with PQ (or any part thereof) within the Territory, shall not be deemed to be a violation of Section 4.03(a). In the event that any Person in which the Executive has any financial or other interest directly or indirectly enters into a line of business during the Non-Compete Period that competes with PQ or engages in the business of PQ within the Territory, the Executive shall divest all of his interest (other than as permitted to be held pursuant to the first sentence of this Section 4.03(b)) in such Person within 15 days after such Person enters into such line of business that competes with PQ or engages in such business within the Territory; provided that, in the event that such equity interest is not publicly traded, the Executive will divest such interest as promptly as practicable and, pending such divestiture, will recuse himself from any and all activities that would be in competition, whether directly or indirectly, with PQ or that would otherwise be precluded under Section 4.03(a). For the avoidance of doubt, the immediately preceding sentence shall not be construed as an amendment, waiver or modification to any other term or provision of this Agreement, or to any restrictive covenant or other provision contained in any agreement between the Executive, Holdings, the Company or any Affiliate of any of them and in the event that the Executive does not promptly divest such interest and recuse himself from competitive activities with such non-public entity while attempting to divest his interest in such entity or engages in any activity that would otherwise be precluded under Section 4.03(a), the Executive’s termination shall be immediately deemed a termination of employment for Cause pursuant to the terms of this Agreement. (c) The Executive covenants and agrees that during the Executive’s employment with the Company and during the 24-month period following the Termination Date, except as expressly provided herein, the Executive will not, directly or indirectly, either for himself or for any other Person (i) solicit or attempt to induce any employee or consultant of PQ to terminate his employment; (ii) employ any employee or consultant of PQ during the period of his employment or consulting relationship with PQ; (iii) solicit any customer of PQ to purchase or distribute information, products or services of or on behalf of the Executive or such other Person that are competitive with the information, products or services provided by PQ or (iv) take any action that may cause injury to or interfere with the relationships between PQ or any of their employees and any lessor, lessee, vendor, supplier, customer, distributor, employee, consultant or other business associate of PQ or any of its Subsidiaries as such relationship relates to PQ’s conduct of its business. (d) 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 and any of its Affiliates, but he nevertheless believes that he has received and will receive sufficient consideration and other benefits as an employee of PQ and as otherwise provided hereunder or as described in the recitals hereto to clearly justify such restrictions which, in any event (given his education, skills and ability), the Executive does not believe would prevent him from otherwise earning a living.
Appears in 4 contracts
Sources: Severance Agreement (PQ Group Holdings Inc.), Severance Agreement (PQ Group Holdings Inc.), Severance Agreement (PQ Group Holdings Inc.)
Non-Compete and Non-Solicitation. The Executive acknowledges and agrees with the Company that during the course of the Executive’s employment with the Company, the Executive will have the opportunity to develop relationships with existing employees, customers and other business associates of Holdings, the Company and their its Subsidiaries (collectively, “PQ”) which relationships constitute goodwill of PQthe Company, and PQ 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:
(a) The Executive acknowledges that PQ the Company currently conducts its business throughout the world North America, South America, Europe and Asia (the “Territory”). Accordingly, during the Executive’s employment with the Company Term and during the 2418-month period following the Termination Date (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 Person that offers one or more products or services or business which engages within the Territory in a business, any business in each case, that is directly competitive with a product or service or which the business of PQ, as conducted or in active planning (a “Competitor”)Company engages, whether for or by himself or in as an independent contractor, agent, stockholder, partner or joint ventures for any other capacityPerson (any such activity, “Competition”). To the extent that the covenant provided for in this Section 4.03(a8(a) may later be deemed by a court to be too broad to be enforced with respect to its duration or with respect to any particular activity or geographic area, the court making such determination shall have the power to reduce the duration or scope of the provision, and to add or delete specific words or phrases to or from the provision. The provision as modified shall then be enforced. Notwithstanding the foregoing restrictionforegoing, it the primary business activity conducted by HR Directions and each of the Peak Companies as of the Effective Time shall not be a violation of this Section 4.03(a) for the Executive to work for a Competitor if: (i) the Executive works in a separate legal subsidiary or Affiliate that offers products or services or conducts a business, in each case, that is not directly competitive with PQ, (ii) the Executive informs Holdings in writing prior to accepting the position how such position complies with the terms of this subsection, and (iii) Holdings consents to Executive’s employment with such entity, which consent shall not be unreasonably withheldconstitute Competition hereunder.
(b) Notwithstanding the foregoing, the aggregate ownership by the Executive of no more than two (2) percent (on a fully-diluted basis) of the outstanding equity securities of any Person, which securities are traded on a national or foreign securities exchange, quoted on the NASDAQ stock market or other automated quotation system, and which Person competes with PQ the Company (or any part thereof) within the Territory, shall not be deemed to be a violation of Section 4.03(a8(a). In the event that any Person in which the Executive has any financial or other interest directly or indirectly enters into a line of business during the Non-Compete Period that competes with PQ the Company or engages in the business of PQ the Company within the Territory, the Executive shall divest all of his interest (other than as permitted to be held pursuant to the first sentence of this Section 4.03(b8(b)) in such Person within 15 days after such Person enters into such line of business that competes with PQ the Company or engages in such business within the Territory; provided that, in the event that such equity interest is not publicly traded, the Executive will divest such interest as promptly as practicable and, pending such divestiture, will recuse himself from any and all activities that would be in competition, whether directly or indirectly, with PQ or that would otherwise be precluded under Section 4.03(a). For the avoidance of doubt, the immediately preceding sentence shall not be construed as an amendment, waiver or modification to any other term or provision of this Agreement, or to any restrictive covenant or other provision contained in any agreement between the Executive, Holdings, the Company or any Affiliate of any of them and in the event that the Executive does not promptly divest such interest and recuse himself from competitive activities with such non-public entity while attempting to divest his interest in such entity or engages in any activity that would otherwise be precluded under Section 4.03(a), the Executive’s termination shall be immediately deemed a termination of employment for Cause pursuant to the terms of this Agreement.
(c) The Executive covenants and agrees that during the Executive’s employment with the Company Term and during the 2418-month period following the Termination Date, except as expressly provided herein, the Executive will not, directly or indirectly, either for himself or for any other Person (i) solicit or attempt to induce any employee or consultant of PQ the Company or any of its Subsidiaries to terminate his employmentor her employment or consulting relationship with the Company or any of its Subsidiaries; (ii) employ any employee or consultant of PQ the Company or any of its Subsidiaries during the period of his or her employment or consulting relationship with PQthe Company or any of its Subsidiaries; (iii) solicit any customer of PQ the Company or any of its Subsidiaries to purchase or distribute information, products or services of or on behalf of the Executive or such other Person that are competitive with the information, products or services provided by PQ the Company or any of its Subsidiaries or (iv) take any action that may cause injury to or interfere with the relationships between PQ the Company or any of its Subsidiaries or any of their employees and any lessor, lessee, vendor, supplier, customer, distributor, employee, consultant or other business associate of PQ the Company or any of its Subsidiaries as such relationship relates to PQthe Company’s or any of its Subsidiaries’ conduct of its their business. Notwithstanding the preceding sentence, the provisions of this Section 8(c) shall not apply to the solicitation or employment of the members of the Peak Group (but shall apply with respect to the solicitation or employment of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇); provided, however, that nothing herein shall be construed as an amendment, waiver or modification to any other term or provision of this Agreement, or to any restrictive covenant or other provision contained in any agreement between any member of the Peak Group or ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and Holdings, the Company or any Subsidiary of either of them.
(d) 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 and any of its AffiliatesSubsidiaries, but he nevertheless believes that he has received and will receive sufficient consideration and other benefits as an employee of PQ the Company and as otherwise provided hereunder or as described in the recitals hereto to clearly justify such restrictions which, in any event (given his education, skills and ability), the Executive does not believe would prevent him from otherwise earning a living.
Appears in 2 contracts
Sources: Employment Agreement, Employment Agreement (PQ Systems INC)
Non-Compete and Non-Solicitation. (a) The Executive acknowledges and agrees with the Company that during the course of the Executive’s 's involvement and/or employment with the Company, the 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 Holdings, the Company and their Subsidiaries (collectively, “PQ”) which relationships constitute goodwill of PQthe Company, and PQ 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:
(ai) The Executive acknowledges that PQ the Company currently conducts its business throughout the world United States, including without limitation the areas listed on Exhibit A attached hereto (the “"Territory”"). Accordingly, during the Executive’s employment 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, and such termination or resignation was not within two years following a Sale of the Company and during Company, the 24-month one year anniversary of the date of termination (such period following is referred to herein as the Termination Date (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 Person that offers one or more products or services or business which engages in a businessselling, in each caseat the retail level, that is directly competitive with a product musical instruments, pro-audio equipment or service or related accessories within the business Territory (the "Line of PQ, as conducted or in active planning (a “Competitor”Business"), whether for or by himself or in as a representative for any other capacity. To the extent that the covenant provided for in this Section 4.03(a) may later be deemed by a court to be too broad to be enforced with respect to its duration or with respect to any particular activity or geographic area, the court making such determination shall have the power to reduce the duration or scope of the provision, and to add or delete specific words or phrases to or from the provision. The provision as modified shall then be enforced. Notwithstanding the foregoing restriction, it shall not be a violation of this Section 4.03(a) for the Executive to work for a Competitor if: (i) the Executive works in a separate legal subsidiary or Affiliate that offers products or services or conducts a business, in each case, that is not directly competitive with PQ, (ii) the Executive informs Holdings in writing prior to accepting the position how such position complies with the terms of this subsection, and (iii) Holdings consents to Executive’s employment with such entity, which consent shall not be unreasonably withheldPerson.
(bii) 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 Personentity, which securities are traded on a national or foreign securities exchange, quoted on the NASDAQ stock market Nasdaq Stock Market or other automated quotation system, and which Person entity competes with PQ 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 violation of Section 4.03(a)financial interest in a competitor. In the event that any Person entity in which the Executive has any financial or other interest directly or indirectly enters into a line the Line of business Business during the Non-Compete Period that competes with PQ or engages in the business of PQ within the TerritoryPeriod, the Executive shall use his reasonable best efforts to divest all of his interest (other than as any amount permitted to be held pursuant to the first sentence of this Section 4.03(b8 (a)(ii)) in such Person entity within 15 30 days after such Person enters into such line of business that competes with PQ or engages in such business within the Territory; provided that, in the event learning that such equity interest is not publicly traded, entity has entered the Executive will divest such interest as promptly as practicable and, pending such divestiture, will recuse himself from any and all activities that would be in competition, whether directly or indirectly, with PQ or that would otherwise be precluded under Section 4.03(a). For the avoidance Line of doubt, the immediately preceding sentence shall not be construed as an amendment, waiver or modification to any other term or provision of this Agreement, or to any restrictive covenant or other provision contained in any agreement between the Executive, Holdings, the Company or any Affiliate of any of them and in the event that the Executive does not promptly divest such interest and recuse himself from competitive activities with such non-public entity while attempting to divest his interest in such entity or engages in any activity that would otherwise be precluded under Section 4.03(a), the Executive’s termination shall be immediately deemed a termination of employment for Cause pursuant to the terms of this AgreementBusiness.
(ciii) The Executive covenants and agrees that during the Executive’s employment with the Company and during the 24Non-month period following the Termination Date, except as expressly provided hereinCompete Period, the Executive will not, directly or indirectly, either for himself or for any other Person (i) person or entity, solicit or attempt to induce any employee of the Company (other than such Executive's personal assistant or consultant of PQ secretary) or any Subsidiary to terminate his employment; (ii) or her employment with the Company or any Subsidiary or employ any employee such individual during his or consultant of PQ during her employment with the Company or any Subsidiary and for a period of six months after such individual terminates his or her employment or consulting relationship with PQ; (iii) solicit any customer of PQ to purchase or distribute information, products or services of or on behalf of the Executive or such other Person that are competitive with the information, products or services provided by PQ or (iv) take any action that may cause injury to or interfere with the relationships between PQ Company or any of their employees and any lessor, lessee, vendor, supplier, customer, distributor, employee, consultant or other business associate of PQ or any of its Subsidiaries as such relationship relates to PQ’s conduct of its businessSubsidiary.
(db) 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 and any of its AffiliatesCompany, but he nevertheless believes that he has received and will receive sufficient consideration and other benefits as an employee of PQ the Company and as otherwise provided hereunder or as described in the recitals hereto to clearly justify such restrictions which, in any event (given his education, skills and ability), the Executive does not believe would prevent him from otherwise earning a living.
(c) The provisions of this Section 8 shall terminate in the event the Company fails to make any payments required by Sections 4(a) or 4(b) and such failure remains uncured for a period equal to at least 30 days after written notice of such event from Executive.
Appears in 2 contracts
Sources: Employment Agreement (Guitar Center Inc), Employment Agreement (Guitar Center Inc)
Non-Compete and Non-Solicitation. The Executive acknowledges and agrees with the Company that during the course of the Executive’s employment with the Company, the Executive will have the opportunity to develop relationships with existing employees, customers and other business associates of HoldingsEcovyst, the Company and and/or their Subsidiaries (collectively, “PQthe Ecovyst Entities”) which relationships exist throughout the world and constitute goodwill of PQone or more of the Ecovyst Entities, and PQ the Ecovyst Entities would be irreparably damaged if the Executive were to take actions that would damage or misappropriate such goodwill. Accordingly, the Executive agrees as follows:
(a) The Executive acknowledges that PQ the Ecovyst Entities currently conducts its business conduct their businesses throughout the world (the “Territory”). Accordingly, during the Executive’s employment with the Company and during the 24-month period following the Termination Date (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 Person that offers one or more products or services or engages in a business, in each case, that is directly competitive with a product or service or the business of PQthe Ecovyst Entities, as conducted or in active planning (a “Competitor”), whether for or by himself or in any other capacity. To the extent that the covenant provided for in this Section 4.03(a) may later be deemed by a court to be too broad to be enforced with respect to its duration or with respect to any particular activity or geographic area, the court making such determination shall have the power to reduce the duration or scope of the provision, and to add or delete specific words or phrases to or from the provision. The provision as modified shall then be enforced. Notwithstanding the foregoing restriction, it shall not be a violation of this Section 4.03(a) for the Executive to work for a Competitor if: (i) the Executive works in a separate legal subsidiary or Affiliate that offers products or services or conducts a business, in each case, that is not directly competitive with PQthe Ecovyst Entities, (ii) the Executive informs Holdings Ecovyst in writing prior to accepting the position how such position complies with the terms of this subsection, and (iii) Holdings Ecovyst consents to Executive’s employment with such entity, which consent shall not be unreasonably withheld.
(b) 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 Person, which securities are traded on a national or foreign securities exchange, quoted on the NASDAQ stock market or other automated quotation system, and which Person competes with PQ the Ecovyst Entities (or any part thereof) within the Territory, shall not be deemed to be a violation of Section 4.03(a). In the event that any Person in which the Executive has any financial or other interest directly or indirectly enters into a line of business during the Non-Compete Period that competes with PQ the Ecovyst Entities or engages in the business of PQ the Ecovyst Entities within the Territory, the Executive shall divest all of his interest (other than as permitted to be held pursuant to the first sentence of this Section 4.03(b)) in such Person within 15 days after such Person enters into such line of business that competes with PQ the Ecovyst Entities or engages in such business within the Territory; provided that, in the event that such equity interest is not publicly traded, the Executive will divest such interest as promptly as practicable and, pending such divestiture, will recuse himself from any and all activities that would be in competition, whether directly or indirectly, with PQ the Ecovyst Entities or that would otherwise be precluded under Section 4.03(a). For the avoidance of doubt, the immediately preceding sentence shall not be construed as an amendment, waiver or modification to any other term or provision of this Agreement, or to any restrictive covenant or other provision contained in any agreement between the Executive, HoldingsEcovyst, the Company or any Affiliate of any of them and in the event that the Executive does not promptly divest such interest and recuse himself from competitive activities with such non-public entity while attempting to divest his interest in such entity or engages in any activity that would otherwise be precluded under Section 4.03(a), the Executive’s termination shall be immediately deemed a termination of employment for Cause pursuant to the terms of this Agreement.
(c) The Executive covenants and agrees that during the Executive’s employment with the Company and during the 24-month period following the Termination Date, except as expressly provided herein, the Executive will not, directly or indirectly, either for himself or for any other Person (i) solicit or attempt to induce any employee or consultant of PQ the Ecovyst Entities to terminate his employmentemployment or relationship; (ii) employ any employee or consultant of PQ the Ecovyst Entities during the period of his employment or consulting relationship with PQthe Ecovyst Entities; (iii) solicit any customer of PQ the Ecovyst Entities to purchase or distribute information, products or services of or on behalf of the Executive or such other Person that are competitive with the information, products or services provided by PQ the Ecovyst Entities or (iv) take any action that may cause injury to or interfere with the relationships between PQ the Ecovyst Entities or any of their employees and any lessor, lessee, vendor, supplier, customer, distributor, employee, consultant or other business associate of PQ or any of its Subsidiaries the Ecovyst Entities as such relationship relates to PQ’s the Ecovyst Entities’ conduct of its businesstheir businesses.
(d) The Executive understands that the foregoing restrictions may limit his ability to earn a livelihood in a business similar to the business businesses of the Company and any of its AffiliatesEcovyst Entities, but he nevertheless believes that he has received and will receive sufficient consideration and other benefits as an employee of PQ the Company and as otherwise provided hereunder or as described in the recitals hereto to clearly justify such restrictions which, in any event (given his education, skills and ability), the Executive does not believe would prevent him from otherwise earning a living.
Appears in 1 contract
Sources: Severance Agreement (Ecovyst Inc.)
Non-Compete and Non-Solicitation. (a) The Executive acknowledges and agrees with the Company that during the course of the Executive’s 's involvement and/or employment with with, or ownership of options and/or Common Stock in, the Company, the 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 Holdings, the Company and their Subsidiaries (collectively, “PQ”) which relationships constitute goodwill of PQthe Company, and PQ 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:
(ai) The Executive acknowledges that PQ the Company currently conducts its business throughout the world United States, including without limitation the areas listed on Exhibit B attached hereto (the “"Territory”"). Accordingly, during the Executive’s employment 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, December 31, 1999 (such period is referred to herein as the Company and during the 24-month period following the Termination Date (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 Person that offers one or more products or services or business which engages in a businessselling at retail musical instruments, in each case, that is directly competitive with a product pro-audio equipment or service or related accessories within the business Territory (the "Line of PQ, as conducted or in active planning (a “Competitor”Business"), whether for or by himself or in as a representative for any other capacity. To the extent that the covenant provided for in this Section 4.03(a) may later be deemed by a court to be too broad to be enforced with respect to its duration or with respect to any particular activity or geographic area, the court making such determination shall have the power to reduce the duration or scope of the provision, and to add or delete specific words or phrases to or from the provision. The provision as modified shall then be enforced. Notwithstanding the foregoing restriction, it shall not be a violation of this Section 4.03(a) for the Executive to work for a Competitor if: (i) the Executive works in a separate legal subsidiary or Affiliate that offers products or services or conducts a business, in each case, that is not directly competitive with PQ, (ii) the Executive informs Holdings in writing prior to accepting the position how such position complies with the terms of this subsection, and (iii) Holdings consents to Executive’s employment with such entity, which consent shall not be unreasonably withheldPerson.
(bii) 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 Personentity, which securities are traded on a national or foreign securities exchange, quoted on the NASDAQ stock market Nasdaq Stock Market or other automated quotation system, and which Person entity competes with PQ 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 violation of Section 4.03(a)financial interest in a competitor. In the event that any Person entity in which the Executive has any financial or other interest directly or indirectly enters into a line the Line of business Business during the Non-Compete Period that competes with PQ or engages in the business of PQ within the TerritoryPeriod, the Executive shall divest all of his interest (other than as any amount permitted to be held pursuant to the first sentence of this Section 4.03(b7 (a)(ii)) in such Person entity within 15 thirty (30) days after such Person enters into such line of business that competes with PQ or engages in such business within the Territory; provided that, in the event learning that such equity interest is not publicly traded, entity has entered the Executive will divest such interest as promptly as practicable and, pending such divestiture, will recuse himself from any and all activities that would be in competition, whether directly or indirectly, with PQ or that would otherwise be precluded under Section 4.03(a). For the avoidance Line of doubt, the immediately preceding sentence shall not be construed as an amendment, waiver or modification to any other term or provision of this Agreement, or to any restrictive covenant or other provision contained in any agreement between the Executive, Holdings, the Company or any Affiliate of any of them and in the event that the Executive does not promptly divest such interest and recuse himself from competitive activities with such non-public entity while attempting to divest his interest in such entity or engages in any activity that would otherwise be precluded under Section 4.03(a), the Executive’s termination shall be immediately deemed a termination of employment for Cause pursuant to the terms of this AgreementBusiness.
(ciii) The Executive covenants and agrees that during the Executive’s employment with the Company and during the 24Non-month period following the Termination Date, except as expressly provided hereinCompete Period, the Executive will not, directly or indirectly, either for himself or for any other Person (i) person or entity, solicit or attempt to induce any employee of the Company (other than such Executive's personal assistant or consultant of PQ secretary) or any Subsidiary to terminate his employment; (ii) or her employment with the Company or any Subsidiary or employ any employee such individual during his or consultant of PQ during her employment with the Company or any Subsidiary and for a period of six months after such individual terminates his or her employment or consulting relationship with PQ; (iii) solicit any customer of PQ to purchase or distribute information, products or services of or on behalf of the Executive or such other Person that are competitive with the information, products or services provided by PQ or (iv) take any action that may cause injury to or interfere with the relationships between PQ Company or any of their employees and any lessor, lessee, vendor, supplier, customer, distributor, employee, consultant or other business associate of PQ or any of its Subsidiaries as such relationship relates to PQ’s conduct of its businessSubsidiary.
(db) 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 and any of its AffiliatesCompany, but he nevertheless believes that he has received and will receive sufficient consideration and other benefits as an employee or holder of PQ Common Stock of the Company and as otherwise provided hereunder or as described in the recitals hereto to clearly justify such restrictions which, in any event (given his education, skills and ability), the Executive does not believe would prevent him from otherwise earning a living.
(c) The provisions of this Section 7 shall terminate in the event the Company fails to 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 such event from Executive.
Appears in 1 contract
Non-Compete and Non-Solicitation. (a) The Executive acknowledges and agrees with the Company that during the course of the Executive’s involvement and/or employment with 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 Holdings, the Company and their Subsidiaries (collectively, “PQ”) its Affiliates which relationships constitute goodwill of PQthe Company, and PQ the Company would be irreparably damaged if the Executive were to take actions that would damage or misappropriate such goodwillgoodwill 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:
(ai) The Executive acknowledges that PQ the Company and its Affiliates currently conducts its conduct business throughout the world United States, including without limitation the areas listed on Exhibit A attached hereto (the “Territory”). Accordingly, during the Executive’s employment with period commencing on the Company date hereof and during ending on the 24-month later of (x) the termination of the Employment Period or (y) for so long as severance payments are being made to the Executive pursuant to Section 4(c) (such period following the Termination Date (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 Person that offers one or more products or services or business which engages in a businessselling, in each caseat the retail level, that is directly competitive with a product (including, without limitation, through retail stores, by phone, by mail, by catalog or service by Internet or other means of electronic commerce) musical instruments, pro-audio equipment or related accessories within the business Territory (the “Line of PQ, as conducted or in active planning (a “CompetitorBusiness”), whether for or by himself or in as a representative for any other capacity. To the extent that the covenant provided for in this Section 4.03(a) may later be deemed by a court to be too broad to be enforced with respect to its duration or with respect to any particular activity or geographic area, the court making such determination shall have the power to reduce the duration or scope of the provision, and to add or delete specific words or phrases to or from the provision. The provision as modified shall then be enforced. Notwithstanding the foregoing restriction, it shall not be a violation of this Section 4.03(a) for the Executive to work for a Competitor if: (i) the Executive works in a separate legal subsidiary or Affiliate that offers products or services or conducts a business, in each case, that is not directly competitive with PQ, (ii) the Executive informs Holdings in writing prior to accepting the position how such position complies with the terms of this subsection, and (iii) Holdings consents to Executive’s employment with such entity, which consent shall not be unreasonably withheldPerson.
(bii) Notwithstanding the foregoing, the aggregate ownership by the Executive of no more than two percent (2%) (on a fully-diluted basis) of the outstanding equity securities of any Personentity, which securities are traded on a national or foreign securities exchange, quoted on the NASDAQ stock market Nasdaq Stock Market or other automated quotation system, and which Person entity competes with PQ 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 violation of Section 4.03(a)financial interest in a competitor. In the event that any Person entity in which the Executive has any financial or other interest directly or indirectly enters into a line the Line of business Business during the Non-Compete Period that competes with PQ or engages in the business of PQ within the TerritoryPeriod, the Executive shall divest all of his interest (other than as any amount permitted to be held pursuant to the first sentence of this Section 4.03(b7(a)(ii)) in such Person entity within 15 thirty (30) days after such Person enters into such line of business that competes with PQ or engages in such business within the Territory; provided that, in the event learning that such equity interest is not publicly traded, entity has entered the Executive will divest such interest as promptly as practicable and, pending such divestiture, will recuse himself from any and all activities that would be in competition, whether directly or indirectly, with PQ or that would otherwise be precluded under Section 4.03(a). For the avoidance Line of doubt, the immediately preceding sentence shall not be construed as an amendment, waiver or modification to any other term or provision of this Agreement, or to any restrictive covenant or other provision contained in any agreement between the Executive, Holdings, the Company or any Affiliate of any of them and in the event that the Executive does not promptly divest such interest and recuse himself from competitive activities with such non-public entity while attempting to divest his interest in such entity or engages in any activity that would otherwise be precluded under Section 4.03(a), the Executive’s termination shall be immediately deemed a termination of employment for Cause pursuant to the terms of this AgreementBusiness.
(ciii) The Executive covenants and agrees that during the Executive’s employment with period commencing on the Company date hereof and during ending on the 24-month period following later of (x) the Termination Date, except first anniversary of the termination of the Employment Period or (y) for so long as expressly provided hereinseverance payments are being made to the Executive pursuant to Section 4(c), the Executive will not, directly or indirectly, either for himself or for any other Person Person, (i1) solicit or attempt to induce any employee of the Company (other than such Executive’s personal assistant or consultant of PQ secretary) or any Affiliate to terminate his employment; or her employment with the Company or any Affiliate, (ii2) employ any employee such individual during his or consultant of PQ during her employment with the Company or any Affiliate and for a period of six months after such individual terminates his or her employment with the Company or consulting relationship with PQ; any Affiliate or (iii3) solicit any customer of PQ to purchase vendor or distribute information, products or services of or on behalf business affiliate of the Executive or such other Person that are competitive Company to cease to do business with the information, products Company or services provided by PQ or (iv) take any action that may cause injury to or interfere change its practices with respect to the relationships between PQ Company or any of their employees and any lessor, lessee, vendor, supplier, customer, distributor, employee, consultant or other business associate of PQ or any of its Subsidiaries as such relationship relates to PQ’s conduct of its businessAffiliate.
(db) 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 and any of or its Affiliates, but he nevertheless believes that he has received and will receive sufficient consideration and other benefits as an employee of PQ the Company or holder of common stock of Parent and as otherwise provided hereunder or as described in the recitals hereto to clearly justify such restrictions which, in any event (given his education, skills and ability), the Executive does not believe would prevent him from otherwise earning a living.
(c) The covenants contained in Section 7(a) and 7(b) are for the sole benefit of the Company and may be reduced (but not increased) in scope, or curtailed as to Territory, time period, or both, without resulting in a modification of any other provision of this Agreement, as the Company may determine in its sole discretion.
(d) The provisions of this Section 7 shall terminate in the event the Company fails to make any payments required by Section 4(c) and such failure remains uncured for a period equal to at least thirty (30) days after written notice of such event from Executive.
Appears in 1 contract
Non-Compete and Non-Solicitation. (a) The Executive acknowledges and agrees with the Company that during the course of the Executive’s 's involvement and/or employment with with, or ownership of options and/or Common Stock in, the Company, the 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 Holdings, the Company and their Subsidiaries (collectively, “PQ”) which relationships constitute goodwill of PQthe Company, and PQ 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:
(ai) The Executive acknowledges that PQ the Company currently conducts its business throughout the world United States, including without limitation the areas listed on Exhibit B attached hereto (the “"Territory”"). Accordingly, during the Executive’s employment 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, the Company and during third anniversary of the 24-month date of this Agreement (such period following is referred to herein as the Termination Date (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 Person that offers one or more products or services or business which engages in a businessselling at retail musical instruments, in each case, that is directly competitive with a product pro-audio equipment or service or related accessories within the business Territory (the "Line of PQ, as conducted or in active planning (a “Competitor”Business"), whether for or by himself or in as a representative for any other capacity. To the extent that the covenant provided for in this Section 4.03(a) may later be deemed by a court to be too broad to be enforced with respect to its duration or with respect to any particular activity or geographic area, the court making such determination shall have the power to reduce the duration or scope of the provision, and to add or delete specific words or phrases to or from the provision. The provision as modified shall then be enforced. Notwithstanding the foregoing restriction, it shall not be a violation of this Section 4.03(a) for the Executive to work for a Competitor if: (i) the Executive works in a separate legal subsidiary or Affiliate that offers products or services or conducts a business, in each case, that is not directly competitive with PQ, (ii) the Executive informs Holdings in writing prior to accepting the position how such position complies with the terms of this subsection, and (iii) Holdings consents to Executive’s employment with such entity, which consent shall not be unreasonably withheldPerson.
(bii) 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 Personentity, which securities are traded on a national or foreign securities exchange, quoted on the NASDAQ stock market Nasdaq Stock Market or other automated quotation system, and which Person entity competes with PQ 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 violation of Section 4.03(a)financial interest in a competitor. In the event that any Person entity in which the Executive has any financial or other interest directly or indirectly enters into a line the Line of business Business during the Non-Compete Period that competes with PQ or engages in the business of PQ within the TerritoryPeriod, the Executive shall divest all of his interest (other than as any amount permitted to be held pursuant to the first sentence of this Section 4.03(b7 (a)(ii)) in such Person entity within 15 thirty (30) days after such Person enters into such line of business that competes with PQ or engages in such business within the Territory; provided that, in the event learning that such equity interest is not publicly traded, entity has entered the Executive will divest such interest as promptly as practicable and, pending such divestiture, will recuse himself from any and all activities that would be in competition, whether directly or indirectly, with PQ or that would otherwise be precluded under Section 4.03(a). For the avoidance Line of doubt, the immediately preceding sentence shall not be construed as an amendment, waiver or modification to any other term or provision of this Agreement, or to any restrictive covenant or other provision contained in any agreement between the Executive, Holdings, the Company or any Affiliate of any of them and in the event that the Executive does not promptly divest such interest and recuse himself from competitive activities with such non-public entity while attempting to divest his interest in such entity or engages in any activity that would otherwise be precluded under Section 4.03(a), the Executive’s termination shall be immediately deemed a termination of employment for Cause pursuant to the terms of this AgreementBusiness.
(ciii) The Executive covenants and agrees that during the Executive’s employment with the Company and during the 24Non-month period following the Termination Date, except as expressly provided hereinCompete Period, the Executive will not, directly or indirectly, either for himself or for any other Person (i) person or entity, solicit or attempt to induce any employee of the Company (other than such Executive's personal assistant or consultant of PQ secretary) or any Subsidiary to terminate his employment; (ii) or her employment with the Company or any Subsidiary or employ any employee such individual during his or consultant of PQ during her employment with the Company or any Subsidiary and for a period of six months after such individual terminates his or her employment or consulting relationship with PQ; (iii) solicit any customer of PQ to purchase or distribute information, products or services of or on behalf of the Executive or such other Person that are competitive with the information, products or services provided by PQ or (iv) take any action that may cause injury to or interfere with the relationships between PQ Company or any of their employees and any lessor, lessee, vendor, supplier, customer, distributor, employee, consultant or other business associate of PQ or any of its Subsidiaries as such relationship relates to PQ’s conduct of its businessSubsidiary.
(db) 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 and any of its AffiliatesCompany, but he nevertheless believes that he has received and will receive sufficient consideration and other benefits as an employee or holder of PQ Common Stock of the Company and as otherwise provided hereunder or as described in the recitals hereto to clearly justify such restrictions which, in any event (given his education, skills and ability), the Executive does not believe would prevent him from otherwise earning a living.
(c) The provisions of this Section 7 shall terminate in the event the Company fails to 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 such event from Executive.
Appears in 1 contract
Non-Compete and Non-Solicitation. The Executive acknowledges and agrees with the Company that during the course of the Executive’s employment with the Company, the Executive will have the opportunity to develop relationships with existing employees, customers and other business associates of Holdings, the Company and their its Subsidiaries (collectively, “PQ”) which relationships constitute goodwill of PQthe Company, and PQ 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:
(a) The Executive acknowledges that PQ the Company currently conducts its business throughout the world North America, South America, Europe and Asia (the “Territory”). Accordingly, during the Executive’s employment with the Company Term and during the 2418-month period following the Termination Date (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 Person that offers one or more products or services or business which engages within the Territory in a business, any business in each case, that is directly competitive with a product or service or which the business of PQ, as conducted or in active planning (a “Competitor”)Company engages, whether for or by himself or in as an independent contractor, agent, stockholder, partner or joint ventures for any other capacityPerson (any such activity, “Competition”). To the extent that the covenant provided for in this Section 4.03(a8(a) may later be deemed by a court to be too broad to be enforced with respect to its duration or with respect to any particular activity or geographic area, the court making such determination shall have the power to reduce the duration or scope of the provision, and to add or delete specific words or phrases to or from the provision. The provision as modified shall then be enforced. Notwithstanding the foregoing restrictionforegoing, it the primary business activity conducted by Finure and each of the Peak Companies as of the Effective Time shall not be a violation of this Section 4.03(a) for the Executive to work for a Competitor if: (i) the Executive works in a separate legal subsidiary or Affiliate that offers products or services or conducts a business, in each case, that is not directly competitive with PQ, (ii) the Executive informs Holdings in writing prior to accepting the position how such position complies with the terms of this subsection, and (iii) Holdings consents to Executive’s employment with such entity, which consent shall not be unreasonably withheldconstitute Competition hereunder.
(b) Notwithstanding the foregoing, the aggregate ownership by the Executive of no more than two (2) percent (on a fully-diluted basis) of the outstanding equity securities of any Person, which securities are traded on a national or foreign securities exchange, quoted on the NASDAQ stock market or other automated quotation system, and which Person competes with PQ the Company (or any part thereof) within the Territory, shall not be deemed to be a violation of Section 4.03(a8(a). In the event that any Person in which the Executive has any financial or other interest directly or indirectly enters into a line of business during the Non-Compete Period that competes with PQ the Company or engages in the business of PQ the Company within the Territory, the Executive shall divest all of his interest (other than as permitted to be held pursuant to the first sentence of this Section 4.03(b8(b)) in such Person within 15 days after such Person enters into such line of business that competes with PQ the Company or engages in such business within the Territory; provided that, in the event that such equity interest is not publicly traded, the Executive will divest such interest as promptly as practicable and, pending such divestiture, will recuse himself from any and all activities that would be in competition, whether directly or indirectly, with PQ or that would otherwise be precluded under Section 4.03(a). For the avoidance of doubt, the immediately preceding sentence shall not be construed as an amendment, waiver or modification to any other term or provision of this Agreement, or to any restrictive covenant or other provision contained in any agreement between the Executive, Holdings, the Company or any Affiliate of any of them and in the event that the Executive does not promptly divest such interest and recuse himself from competitive activities with such non-public entity while attempting to divest his interest in such entity or engages in any activity that would otherwise be precluded under Section 4.03(a), the Executive’s termination shall be immediately deemed a termination of employment for Cause pursuant to the terms of this Agreement.
(c) The Executive covenants and agrees that during the Executive’s employment with the Company Term and during the 2418-month period following the Termination Date, except as expressly provided herein, the Executive will not, directly or indirectly, either for himself or for any other Person (i) solicit or attempt to induce any employee or consultant of PQ the Company or any of its Subsidiaries to terminate his employmentor her employment or consulting relationship with the Company or any of its Subsidiaries; (ii) employ any employee or consultant of PQ the Company or any of its Subsidiaries during the period of his or her employment or consulting relationship with PQthe Company or any of its Subsidiaries; (iii) solicit any customer of PQ the Company or any of its Subsidiaries to purchase or distribute information, products or services of or on behalf of the Executive or such other Person that are competitive with the information, products or services provided by PQ the Company or any of its Subsidiaries or (iv) take any action that may cause injury to or interfere with the relationships between PQ the Company or any of its Subsidiaries or any of their employees and any lessor, lessee, vendor, supplier, customer, distributor, employee, consultant or other business associate of PQ the Company or any of its Subsidiaries as such relationship relates to PQthe Company’s or any of its Subsidiaries’ conduct of its their business. Notwithstanding the preceding sentence, the provisions of this Section 8(c) shall not apply to the solicitation or employment of the members of the Peak Group (but shall apply with respect to the solicitation or employment of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇); provided, however, that nothing herein shall be construed as an amendment, waiver or modification to any other term or provision of this Agreement, or to any restrictive covenant or other provision contained in any agreement between any member of the Peak Group or ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and Holdings, the Company or any Subsidiary of either of them.
(d) 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 and any of its AffiliatesSubsidiaries, but he nevertheless believes that he has received and will receive sufficient consideration and other benefits as an employee of PQ the Company and as otherwise provided hereunder or as described in the recitals hereto to clearly justify such restrictions which, in any event (given his education, skills and ability), the Executive does not believe would prevent him from otherwise earning a living.
Appears in 1 contract
Non-Compete and Non-Solicitation. (A) The Executive acknowledges and agrees with the Company that during the course of the Executive’s involvement and/or employment with the Company, the 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 Holdings, the Company and their Subsidiaries (collectively, “PQ”) which relationships constitute goodwill of PQthe Company, and PQ 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:
(aI) The Executive acknowledges that PQ the Company currently conducts its business throughout the world United States, including without limitation the areas listed on Exhibit A attached hereto (the “Territory”). Accordingly, during the Executive’s employment 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 the Company and during the 24-month Reasonable Justification, for so long as severance payments are being made pursuant to Section 4(b) (such period following the Termination Date (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 Person that offers one or more products or services or business which engages in a businessselling, in each caseat the retail level, that is directly competitive with a product musical instruments, pro-audio equipment or service or related accessories within the business Territory (the “Line of PQ, as conducted or in active planning (a “CompetitorBusiness”), whether for or by himself or in as a representative for any other capacity. To the extent that the covenant provided for in this Section 4.03(a) may later be deemed by a court to be too broad to be enforced with respect to its duration or with respect to any particular activity or geographic area, the court making such determination shall have the power to reduce the duration or scope of the provision, and to add or delete specific words or phrases to or from the provision. The provision as modified shall then be enforced. Notwithstanding the foregoing restriction, it shall not be a violation of this Section 4.03(a) for the Executive to work for a Competitor if: (i) the Executive works in a separate legal subsidiary or Affiliate that offers products or services or conducts a business, in each case, that is not directly competitive with PQ, (ii) the Executive informs Holdings in writing prior to accepting the position how such position complies with the terms of this subsection, and (iii) Holdings consents to Executive’s employment with such entity, which consent shall not be unreasonably withheldPerson.
(bII) 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 Personentity, which securities are traded on a national or foreign securities exchange, quoted on the NASDAQ stock market Nasdaq Stock Market or other automated quotation system, and which Person entity competes with PQ 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 violation of Section 4.03(a)financial interest in a competitor. In the event that any Person entity in which the Executive has any financial or other interest directly or indirectly enters into a line the Line of business Business during the Non-Compete Period that competes with PQ or engages in the business of PQ within the TerritoryPeriod, the Executive shall use his reasonable best efforts to divest all of his interest (other than as any amount permitted to be held pursuant to the first sentence of this Section 4.03(b7(a)(ii)) in such Person entity within 15 30 days after such Person enters into such line of business that competes with PQ or engages in such business within the Territory; provided that, in the event learning that such equity interest is not publicly traded, entity has entered the Executive will divest such interest as promptly as practicable and, pending such divestiture, will recuse himself from any and all activities that would be in competition, whether directly or indirectly, with PQ or that would otherwise be precluded under Section 4.03(a). For the avoidance Line of doubt, the immediately preceding sentence shall not be construed as an amendment, waiver or modification to any other term or provision of this Agreement, or to any restrictive covenant or other provision contained in any agreement between the Executive, Holdings, the Company or any Affiliate of any of them and in the event that the Executive does not promptly divest such interest and recuse himself from competitive activities with such non-public entity while attempting to divest his interest in such entity or engages in any activity that would otherwise be precluded under Section 4.03(a), the Executive’s termination shall be immediately deemed a termination of employment for Cause pursuant to the terms of this AgreementBusiness.
(cIII) The Executive covenants and agrees that during the Executive’s employment with the Company and during the 24Non-month period following the Termination Date, except as expressly provided hereinCompete Period, the Executive will not, directly or indirectly, either for himself or for any other Person (i) person or entity, solicit or attempt to induce any employee of the Company (other than such Executive’s personal assistant or consultant of PQ secretary) or any Subsidiary to terminate his employment; (ii) or her employment with the Company or any Subsidiary or employ any employee such individual during his or consultant of PQ during her employment with the Company or any Subsidiary and for a period of six months after such individual terminates his or her employment or consulting relationship with PQ; (iii) solicit any customer of PQ to purchase or distribute information, products or services of or on behalf of the Executive or such other Person that are competitive with the information, products or services provided by PQ or (iv) take any action that may cause injury to or interfere with the relationships between PQ Company or any of their employees and any lessor, lessee, vendor, supplier, customer, distributor, employee, consultant or other business associate of PQ or any of its Subsidiaries as such relationship relates to PQ’s conduct of its businessSubsidiary.
(dB) 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 and any of its AffiliatesCompany, but he nevertheless believes that he has received and will receive sufficient consideration and other benefits as an employee of PQ the Company and as otherwise provided hereunder or as described in the recitals hereto to clearly justify such restrictions which, in any event (given his education, skills and ability), the Executive does not believe would prevent him from otherwise earning a living.
(C) The covenants contained in Section 7(a) and 7(b) are for the sole benefit of the Company and may be reduced (but not increased) in scope, or curtailed as to Territory, time period, or both, without resulting in a modification of any other provision of this Agreement, as the Company may determine in its sole discretion.
(D) The provisions of this Section 7 shall terminate in the event the Company fails to make any payments required by Section 4(b) and such failure remains uncured for a period equal to at least 30 days after written notice of such event from Executive.
Appears in 1 contract
Non-Compete and Non-Solicitation. (a) The Executive acknowledges and agrees with the Company that during the course of the Executive’s 's involvement and/or employment with with, or ownership of options and/or Common Stock in, the Company, the 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 Holdings, the Company and their Subsidiaries (collectively, “PQ”) which relationships constitute goodwill of PQthe Company, and PQ 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:
(ai) The Executive acknowledges that PQ the Company currently conducts its business throughout the world United States, including without limitation the areas listed on Exhibit B attached hereto (the “Territory”"TERRITORY"). Accordingly, during the Executive’s employment 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 December 31, 1999 (such period is referred to herein as the Company and during the 24"NON-month period following the Termination Date (the “Non-Compete Period”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 Person that offers one or more products or services or business which engages in a businessselling at retail musical instruments, in each case, that is directly competitive with a product pro-audio equipment or service or related accessories within the business of PQ, as conducted or in active planning Territory (a “Competitor”the "LINE OF BUSINESS"), whether for or by himself or in as a representative for any other capacity. To the extent that the covenant provided for in this Section 4.03(a) may later be deemed by a court to be too broad to be enforced with respect to its duration or with respect to any particular activity or geographic area, the court making such determination shall have the power to reduce the duration or scope of the provision, and to add or delete specific words or phrases to or from the provision. The provision as modified shall then be enforced. Notwithstanding the foregoing restriction, it shall not be a violation of this Section 4.03(a) for the Executive to work for a Competitor if: (i) the Executive works in a separate legal subsidiary or Affiliate that offers products or services or conducts a business, in each case, that is not directly competitive with PQ, (ii) the Executive informs Holdings in writing prior to accepting the position how such position complies with the terms of this subsection, and (iii) Holdings consents to Executive’s employment with such entity, which consent shall not be unreasonably withheldPerson.
(bii) 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 Personentity, which securities are traded on a national or foreign securities exchange, quoted on the NASDAQ stock market Nasdaq Stock Market or other automated quotation system, and which Person entity competes with PQ 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 violation of Section 4.03(a)financial interest in a competitor. In the event that any Person entity in which the Executive has any financial or other interest directly or indirectly enters into a line the Line of business Business during the Non-Compete Period that competes with PQ or engages in the business of PQ within the TerritoryPeriod, the Executive shall divest all of his interest (other than as any amount permitted to be held pursuant to the first sentence of this Section 4.03(b7(a)(ii)) in such Person entity within 15 thirty (30) days after such Person enters into such line of business that competes with PQ or engages in such business within the Territory; provided that, in the event learning that such equity interest is not publicly traded, entity has entered the Executive will divest such interest as promptly as practicable and, pending such divestiture, will recuse himself from any and all activities that would be in competition, whether directly or indirectly, with PQ or that would otherwise be precluded under Section 4.03(a). For the avoidance Line of doubt, the immediately preceding sentence shall not be construed as an amendment, waiver or modification to any other term or provision of this Agreement, or to any restrictive covenant or other provision contained in any agreement between the Executive, Holdings, the Company or any Affiliate of any of them and in the event that the Executive does not promptly divest such interest and recuse himself from competitive activities with such non-public entity while attempting to divest his interest in such entity or engages in any activity that would otherwise be precluded under Section 4.03(a), the Executive’s termination shall be immediately deemed a termination of employment for Cause pursuant to the terms of this AgreementBusiness.
(ciii) The Executive covenants and agrees that during the Executive’s employment with the Company and during the 24Non-month period following the Termination Date, except as expressly provided hereinCompete Period, the Executive will not, directly or indirectly, either for himself or for any other Person (i) person or entity, solicit or attempt to induce any employee of the Company (other than such Executive's personal assistant or consultant of PQ secretary) or any Subsidiary to terminate his employment; (ii) or her employment with the Company or any Subsidiary or employ any employee such individual during his or consultant of PQ during her employment with the Company or any Subsidiary and for a period of six months after such individual terminates his or her employment or consulting relationship with PQ; (iii) solicit any customer of PQ to purchase or distribute information, products or services of or on behalf of the Executive or such other Person that are competitive with the information, products or services provided by PQ or (iv) take any action that may cause injury to or interfere with the relationships between PQ Company or any of their employees and any lessor, lessee, vendor, supplier, customer, distributor, employee, consultant or other business associate of PQ or any of its Subsidiaries as such relationship relates to PQ’s conduct of its businessSubsidiary.
(db) 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 and any of its AffiliatesCompany, but he nevertheless believes that he has received and will receive sufficient consideration and other benefits as an employee or holder of PQ Common Stock of the Company and as otherwise provided hereunder or as described in the recitals hereto to clearly justify such restrictions which, in any event (given his education, skills and ability), the Executive does not believe would prevent him from otherwise earning a living.
(c) The provisions of this Section 7 shall terminate in the event the Company fails to 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 such event from Executive.
Appears in 1 contract
Non-Compete and Non-Solicitation. The Executive acknowledges and agrees with the Company that during the course of the Executive’s employment with the Company, the Executive will have the opportunity to develop relationships with existing employees, customers and other business associates of Holdings, the Company and their Subsidiaries (collectively, “PQ”) which relationships constitute goodwill of PQ, and PQ would be irreparably damaged if the Executive were to take actions that would damage or misappropriate such goodwill. Accordingly, the Executive agrees as follows:
(a) The Executive acknowledges that PQ currently conducts its business throughout the world (the “Territory”). Accordingly, during the Executive’s employment with the Company and during the 24-month period following the Termination Date (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 Person that offers one or more products or services or engages in a business, in each case, that is directly competitive with a product or service or the business of PQ, as conducted or in active planning (a “Competitor”), whether for or by himself or in any other capacity. To the extent that the covenant provided for in this Section 4.03(a) may later be deemed by a court to be too broad to be enforced with respect to its duration or with respect to any particular activity or geographic area, the court making such determination shall have the power to reduce the duration or scope of the provision, and to add or delete specific words or phrases to or from the provision. The provision as modified shall then be enforced. Notwithstanding the foregoing restriction, it shall not be a violation of this Section 4.03(a) for the Executive to work for a Competitor if: (i) the Executive works in a separate legal subsidiary or Affiliate that offers products or services or conducts a business, in each case, that is not directly competitive with PQ, (ii) the Executive informs Holdings in writing prior to accepting the position how such position complies with the terms of this subsection, and (iii) Holdings consents to Executive’s employment with such entity, which consent shall not be unreasonably withheld.
(b) 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 Person, which securities are traded on a national or foreign securities exchange, quoted on the NASDAQ stock market or other automated quotation system, and which Person competes with PQ (or any part thereof) within the Territory, shall not be deemed to be a violation of Section 4.03(a). In the event that any Person in which the Executive has any financial or other interest directly or indirectly enters into a line of business during the Non-Compete Period that competes with PQ or engages in the business of PQ within the Territory, the Executive shall divest all of his interest (other than as permitted to be held pursuant to the first sentence of this Section 4.03(b)) in such Person within 15 days after such Person enters into such line of business that competes with PQ or engages in such business within the Territory; provided that, in the event that such equity interest is not publicly traded, the Executive will divest such interest as promptly as practicable and, pending such divestiture, will recuse himself from any and all activities that would be in competition, whether directly or indirectly, with PQ or that would otherwise be precluded under Section 4.03(a). For the avoidance of doubt, the immediately preceding sentence shall not be construed as an amendment, waiver or modification to any other term or provision of this Agreement, or to any restrictive covenant or other provision contained in any agreement between the Executive, Holdings, the Company or any Affiliate of any of them and in the event that the Executive does not promptly divest such interest and recuse himself from competitive activities with such non-public entity while attempting to divest his interest in such entity or engages in any activity that would otherwise be precluded under Section 4.03(a), the Executive’s termination shall be immediately deemed a termination of employment for Cause pursuant to the terms of this Agreement.
(c) The Executive covenants and agrees that during the Executive’s employment with the Company and during the 24-month 24‑month period following the Termination Date, except as expressly provided herein, the Executive will not, directly or indirectly, either for himself or for any other Person (i) solicit or attempt to induce any employee or consultant of PQ to terminate his employment; (ii) employ any employee or consultant of PQ during the period of his employment or consulting relationship with PQ; (iii) solicit any customer of PQ to purchase or distribute information, products or services of or on behalf of the Executive or such other Person that are competitive with the information, products or services provided by PQ or or
(iv) take any action that may cause injury to or interfere with the relationships between PQ or any of their employees and any lessor, lessee, vendor, supplier, customer, distributor, employee, consultant or other business associate of PQ or any of its Subsidiaries as such relationship relates to PQ’s conduct of its business.
(d) 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 and any of its Affiliates, but he nevertheless believes that he has received and will receive sufficient consideration and other benefits as an employee of PQ and as otherwise provided hereunder or as described in the recitals hereto to clearly justify such restrictions which, in any event (given his education, skills and ability), the Executive does not believe would prevent him from otherwise earning a living.
Appears in 1 contract
Non-Compete and Non-Solicitation. (a) The Executive acknowledges and agrees with the Company that during the course of the Executive’s involvement and/or employment with the Company, the 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 Holdings, the Company and their Subsidiaries (collectively, “PQ”) which relationships constitute goodwill of PQthe Company, and PQ 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:
(ai) The Executive acknowledges that PQ the Company currently conducts its business throughout the world United States, including without limitation the areas listed on Exhibit A attached hereto (the “Territory”). Accordingly, during the Executive’s employment 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, and such termination or resignation was not within two years following a Sale of the Company and during Company, the 24-month one year anniversary of the date of termination (such period following the Termination Date (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 Person that offers one or more products or services or business which engages in a businessselling, in each caseat the retail level, that is directly competitive with a product musical instruments, pro-audio equipment or service or related accessories within the business Territory (the “Line of PQ, as conducted or in active planning (a “CompetitorBusiness”), whether for or by himself or in as a representative for any other capacity. To the extent that the covenant provided for in this Section 4.03(a) may later be deemed by a court to be too broad to be enforced with respect to its duration or with respect to any particular activity or geographic area, the court making such determination shall have the power to reduce the duration or scope of the provision, and to add or delete specific words or phrases to or from the provision. The provision as modified shall then be enforced. Notwithstanding the foregoing restriction, it shall not be a violation of this Section 4.03(a) for the Executive to work for a Competitor if: (i) the Executive works in a separate legal subsidiary or Affiliate that offers products or services or conducts a business, in each case, that is not directly competitive with PQ, (ii) the Executive informs Holdings in writing prior to accepting the position how such position complies with the terms of this subsection, and (iii) Holdings consents to Executive’s employment with such entity, which consent shall not be unreasonably withheldPerson.
(bii) 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 Personentity, which securities are traded on a national or foreign securities exchange, quoted on the NASDAQ stock market Nasdaq Stock Market or other automated quotation system, and which Person entity competes with PQ 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 violation of Section 4.03(a)financial interest in a competitor. In the event that any Person entity in which the Executive has any financial or other interest directly or indirectly enters into a line the Line of business Business during the Non-Compete Period that competes with PQ or engages in the business of PQ within the TerritoryPeriod, the Executive shall use his reasonable best efforts to divest all of his interest (other than as any amount permitted to be held pursuant to the first sentence of this Section 4.03(b8(a)(ii)) in such Person entity within 15 30 days after such Person enters into such line of business that competes with PQ or engages in such business within the Territory; provided that, in the event learning that such equity interest is not publicly traded, entity has entered the Executive will divest such interest as promptly as practicable and, pending such divestiture, will recuse himself from any and all activities that would be in competition, whether directly or indirectly, with PQ or that would otherwise be precluded under Section 4.03(a). For the avoidance Line of doubt, the immediately preceding sentence shall not be construed as an amendment, waiver or modification to any other term or provision of this Agreement, or to any restrictive covenant or other provision contained in any agreement between the Executive, Holdings, the Company or any Affiliate of any of them and in the event that the Executive does not promptly divest such interest and recuse himself from competitive activities with such non-public entity while attempting to divest his interest in such entity or engages in any activity that would otherwise be precluded under Section 4.03(a), the Executive’s termination shall be immediately deemed a termination of employment for Cause pursuant to the terms of this AgreementBusiness.
(ciii) The Executive covenants and agrees that during the Executive’s employment with the Company and during the 24Non-month period following the Termination Date, except as expressly provided hereinCompete Period, the Executive will not, directly or indirectly, either for himself or for any other Person (i) person or entity, solicit or attempt to induce any employee of the Company (other than such Executive’s personal assistant or consultant of PQ secretary) or any Subsidiary to terminate his employment; (ii) or her employment with the Company or any Subsidiary or employ any employee such individual during his or consultant of PQ during her employment with the Company or any Subsidiary and for a period of six months after such individual terminates his or her employment or consulting relationship with PQ; (iii) solicit any customer of PQ to purchase or distribute information, products or services of or on behalf of the Executive or such other Person that are competitive with the information, products or services provided by PQ or (iv) take any action that may cause injury to or interfere with the relationships between PQ Company or any of their employees and any lessor, lessee, vendor, supplier, customer, distributor, employee, consultant or other business associate of PQ or any of its Subsidiaries as such relationship relates to PQ’s conduct of its businessSubsidiary.
(db) 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 and any of its AffiliatesCompany, but he nevertheless believes that he has received and will receive sufficient consideration and other benefits as an employee of PQ the Company and as otherwise provided hereunder or as described in the recitals hereto to clearly justify such restrictions which, in any event (given his education, skills and ability), the Executive does not believe would prevent him from otherwise earning a living.
(c) The provisions of this Section 8 shall terminate in the event the Company fails to make any payments required by Sections 4(a) or 4(b) and such failure remains uncured for a period equal to at least 30 days after written notice of such event from Executive.
Appears in 1 contract
Non-Compete and Non-Solicitation. (a) The Executive acknowledges and agrees with the Company that during the course of the Executive’s 's involvement and/or employment with the Company, the 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 Holdings, the Company and their Subsidiaries (collectively, “PQ”) which relationships constitute goodwill of PQthe Company, and PQ 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:
(ai) The Executive acknowledges that PQ the Company currently conducts its business throughout the world United States, including without limitation the areas listed on Exhibit A attached hereto (the “"Territory”"). Accordingly, during the Executive’s employment 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, for so long as severance payments are being made pursuant to Section 4(b) (such period is referred to herein as the Company and during the 24-month period following the Termination Date (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 Person that offers one or more products or services or business which engages in a businessselling, in each caseat the retail level, that is directly competitive with a product musical instruments, pro-audio equipment or service or related accessories within the business Territory (the "Line of PQ, as conducted or in active planning (a “Competitor”Business"), whether for or by himself or in as a representative for any other capacity. To the extent that the covenant provided for in this Section 4.03(a) may later be deemed by a court to be too broad to be enforced with respect to its duration or with respect to any particular activity or geographic area, the court making such determination shall have the power to reduce the duration or scope of the provision, and to add or delete specific words or phrases to or from the provision. The provision as modified shall then be enforced. Notwithstanding the foregoing restriction, it shall not be a violation of this Section 4.03(a) for the Executive to work for a Competitor if: (i) the Executive works in a separate legal subsidiary or Affiliate that offers products or services or conducts a business, in each case, that is not directly competitive with PQ, (ii) the Executive informs Holdings in writing prior to accepting the position how such position complies with the terms of this subsection, and (iii) Holdings consents to Executive’s employment with such entity, which consent shall not be unreasonably withheldPerson.
(bii) 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 Personentity, which securities are traded on a national or foreign securities exchange, quoted on the NASDAQ stock market Nasdaq Stock Market or other automated quotation system, and which Person entity competes with PQ 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 violation of Section 4.03(a)financial interest in a competitor. In the event that any Person entity in which the Executive has any financial or other interest directly or indirectly enters into a line the Line of business Business during the Non-Compete Period that competes with PQ or engages in the business of PQ within the TerritoryPeriod, the Executive shall use his reasonable best efforts to divest all of his interest (other than as any amount permitted to be held pursuant to the first sentence of this Section 4.03(b7(a)(ii)) in such Person entity within 15 30 days after such Person enters into such line of business that competes with PQ or engages in such business within the Territory; provided that, in the event learning that such equity interest is not publicly traded, entity has entered the Executive will divest such interest as promptly as practicable and, pending such divestiture, will recuse himself from any and all activities that would be in competition, whether directly or indirectly, with PQ or that would otherwise be precluded under Section 4.03(a). For the avoidance Line of doubt, the immediately preceding sentence shall not be construed as an amendment, waiver or modification to any other term or provision of this Agreement, or to any restrictive covenant or other provision contained in any agreement between the Executive, Holdings, the Company or any Affiliate of any of them and in the event that the Executive does not promptly divest such interest and recuse himself from competitive activities with such non-public entity while attempting to divest his interest in such entity or engages in any activity that would otherwise be precluded under Section 4.03(a), the Executive’s termination shall be immediately deemed a termination of employment for Cause pursuant to the terms of this AgreementBusiness.
(ciii) The Executive covenants and agrees that during the Executive’s employment with the Company and during the 24Non-month period following the Termination Date, except as expressly provided hereinCompete Period, the Executive will not, directly or indirectly, either for himself or for any other Person (i) person or entity, solicit or attempt to induce any employee of the Company (other than such Executive's personal assistant or consultant of PQ secretary) or any Subsidiary to terminate his employment; (ii) or her employment with the Company or any Subsidiary or employ any employee such individual during his or consultant of PQ during her employment with the Company or any Subsidiary and for a period of six months after such individual terminates his or her employment or consulting relationship with PQ; (iii) solicit any customer of PQ to purchase or distribute information, products or services of or on behalf of the Executive or such other Person that are competitive with the information, products or services provided by PQ or (iv) take any action that may cause injury to or interfere with the relationships between PQ Company or any of their employees and any lessor, lessee, vendor, supplier, customer, distributor, employee, consultant or other business associate of PQ or any of its Subsidiaries as such relationship relates to PQ’s conduct of its businessSubsidiary.
(db) 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 and any of its AffiliatesCompany, but he nevertheless believes that he has received and will receive sufficient consideration and other benefits as an employee of PQ the Company and as otherwise provided hereunder or as described in the recitals hereto to clearly justify such restrictions which, in any event (given his education, skills and ability), the Executive does not believe would prevent him from otherwise earning a living.
(c) The provisions of this Section 7 shall terminate in the event the Company fails to make any payments required by Section 4(b) and such failure remains uncured for a period equal to at least 30 days after written notice of such event from Executive.
Appears in 1 contract
Non-Compete and Non-Solicitation. The Executive acknowledges and agrees with the Company that during the course of the Executive’s employment with the Company, the Executive will have the opportunity to develop relationships with existing employees, customers and other business associates of Holdings, the Company and their Subsidiaries (collectively, “PQ”) which relationships constitute goodwill of PQ, and PQ would be irreparably damaged if the Executive were to take actions that would damage or misappropriate such goodwill. Accordingly, the Executive agrees as follows:
(a) The Executive acknowledges that PQ currently conducts its business throughout the world (the “Territory”). Accordingly, during the Executive’s employment with the Company and during the 24-month period following the Termination Date (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 Person that offers one or more products or services or engages in a business, in each case, that is directly competitive with a product or service or the business of PQ, as conducted or in active planning (a “Competitor”), whether for or by himself or in any other capacity. To the extent that the covenant provided for in this Section 4.03(a) may later be deemed by a court to be too broad to be enforced with respect to its duration or with respect to any particular activity or geographic area, the court making such determination shall have the power to reduce the duration or scope of the provision, and to add or delete specific words or phrases to or from the provision. The provision as modified shall then be enforced. Notwithstanding the foregoing restriction, it shall not be a violation of this Section 4.03(a) for the Executive to work for a Competitor if: (i) the Executive works in a separate legal subsidiary or Affiliate that offers products or services or conducts a business, in each case, that is not directly competitive with PQ, (ii) the Executive informs Holdings in writing prior to accepting the position how such position complies with the terms of this subsection, and (iii) Holdings consents to Executive’s employment with such entity, which consent shall not be unreasonably withheld.
(b) 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 Person, which securities are traded on a national or foreign securities exchange, quoted on the NASDAQ stock market or other automated quotation system, and which Person competes with PQ (or any part thereof) within the Territory, shall not be deemed to be a violation of Section 4.03(a). In the event that any Person in which the Executive has any financial or other interest directly or indirectly enters into a line of business during the Non-Compete Period that competes with PQ or engages in the business of PQ within the Territory, the Executive shall divest all of his interest (other than as permitted to be held pursuant to the first sentence of this Section 4.03(b)) in such Person within 15 days after such Person enters into such line of business that competes with PQ or engages in such business within the Territory; provided that, in the event that such equity interest is not publicly traded, the Executive will divest such interest as promptly as practicable and, pending such divestiture, will recuse himself from any and all activities that would be in competition, whether directly or indirectly, with PQ or that would otherwise be precluded under Section 4.03(a). For the avoidance of doubt, the immediately preceding sentence shall not be construed as an amendment, waiver or modification to any other term or provision of this Agreement, or to any restrictive covenant or other provision contained in any agreement between the Executive, Holdings, the Company or any Affiliate of any of them and in the event that the Executive does not promptly divest such interest and recuse himself from competitive activities with such non-public entity while attempting to divest his interest in such entity or engages in any activity that would otherwise be precluded under Section 4.03(a), the Executive’s termination shall be immediately deemed a termination of employment for Cause pursuant to the terms of this Agreement.
(c) The Executive covenants and agrees that during the Executive’s employment with the Company and during the 24-month period following the Termination Date, except as expressly provided herein, the Executive will not, directly or indirectly, either for himself or for any other Person (i) solicit or attempt to induce any employee or consultant of PQ to terminate his employment; (ii) employ any employee or consultant of PQ during the period of his employment or consulting relationship with PQ; (iii) solicit any customer of PQ to purchase or distribute information, products or services of or on behalf of the Executive or such other Person that are competitive with the information, products or services provided by PQ or (iv) take any action that may cause injury to or interfere with the relationships between PQ or any of their employees and any lessor, lessee, vendor, supplier, customer, distributor, employee, consultant or other business associate of PQ or any of its Subsidiaries as such relationship relates to PQ’s conduct of its business.
(d) 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 and any of its Affiliates, but he nevertheless believes that he has received and will receive sufficient consideration and other benefits as an employee of PQ and as otherwise provided hereunder or as described in the recitals hereto to clearly justify such restrictions which, in any event (given his education, skills and ability), the Executive does not believe would prevent him from otherwise earning a living.Section
Appears in 1 contract
Non-Compete and Non-Solicitation. The Executive acknowledges and agrees (a) Except as otherwise explicitly permitted by the last sentence of this Section 5.2(a), while employed with the Company that during the course or any of the Executive’s employment with the Companyits Affiliates and for a period of twelve (12) months thereafter, the Executive will have the opportunity to develop relationships with existing employees, customers and other business associates of Holdings, the Company and their Subsidiaries (collectively, “PQ”) which relationships constitute goodwill of PQ, and PQ would be irreparably damaged if the Executive were to take actions that would damage or misappropriate such goodwill. Accordingly, the Executive agrees as follows:
(a) The Executive acknowledges that PQ currently conducts its business throughout the world (the “Territory”). Accordingly, during the Executive’s employment with the Company and during the 24-month period following the Termination Date (the “Non-Compete Period”), the Executive Employee shall not, either directly or indirectly, enter intoindividually or by or through any Covered Entity, engage participate in, assist, give aid or lend funds to or otherwise finance, be employed by or consult with, or have a financial or other interest inadvise in any way, any Person that offers one business or more products or services or engages in a business, in each case, that is directly competitive with a product or service or the business of PQ, as conducted or in active planning (a “Competitor”), whether for or by himself or in any other capacity. To the extent that the covenant provided for in this Section 4.03(a) may later be deemed by a court to be too broad to be enforced with respect to its duration or with respect to any particular activity or geographic area, the court making such determination shall have the power to reduce the duration or scope of the provision, and to add or delete specific words or phrases to or from the provision. The provision as modified shall then be enforced. Notwithstanding the foregoing restriction, it shall not be a violation of this Section 4.03(a) for the Executive to work for a Competitor if: (i) the Executive works in a separate legal subsidiary or Affiliate that offers products or services or conducts a business, in each case, that is not directly competitive with PQ, (ii) the Executive informs Holdings in writing prior to accepting the position how such position complies with the terms of this subsection, and (iii) Holdings consents to Executive’s employment with such entity, which consent shall not be unreasonably withheld.
(b) 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 Person, which securities are traded on a national or foreign securities exchange, quoted on the NASDAQ stock market or other automated quotation system, and which Person competes with PQ (or any part thereof) within the Territory, shall not be deemed to be a violation of Section 4.03(a). In the event that any Person in which the Executive has any financial or other interest directly or indirectly enters into a line of business during the Non-Compete Period enterprise that competes with PQ or engages the Business in the business of PQ within Territory (including, without limitation, providing services to any customer or other person or entity in the Territory, ). Except as otherwise explicitly permitted by the Executive shall divest all of his interest (other than as permitted to be held pursuant to the first last sentence of this Section 4.03(b5.2(a), while employed with the Company or any of its Affiliates and for a period of twelve (12) in such Person within 15 days after such Person enters into such line of business that competes with PQ or engages in such business within the Territory; provided thatmonths thereafter, in the event that such equity interest is not publicly tradedEmployee shall not, the Executive will divest such interest as promptly as practicable and, pending such divestiture, will recuse himself from any and all activities that would be in competition, whether either directly or indirectly, with PQ individually or that would otherwise be precluded under Section 4.03(aby or through any Covered Entity, invest in (whether through debt or equity securities), contribute any capital or make any advances to, take an ownership interest or profit-sharing percentage in, seek to purchase or acquire, or receive income, compensation or consulting fees from, any entity or person involved in the Business in the Territory. For the avoidance of doubt, the immediately preceding sentence an entity whose primary business is not colocation, interconnection, Meet-Me-Room services or peering services, shall not be construed deemed a competitor with the Company for purposes of this provision. Furthermore, an entity that is primarily in the business of providing telecommunications services or managed hosting services shall also be excluded from the above prohibitions. Notwithstanding the foregoing, nothing contained in this Section 5.2(a) shall prohibit Employee or any Affiliate of Employee from owning less than five percent (5%) of any class of voting securities registered under the Securities Exchange Act of 1934, as an amendmentamended, waiver and publicly held and quoted on a recognized securities exchange or modification to inter-deal quotation system, of any issuer, and no such issuer shall be considered a Covered Entity solely by virtue of such ownership or the incidents thereof.
(b) While employed with the Company or any of its Affiliates and for a period of twelve (12) months thereafter, Employee shall not, either directly or indirectly and shall not permit any Covered Entity which is Controlled by Employee to, either directly or indirectly, (i) solicit, or take any other term action that is intended to solicit, the business of any customers or provision Referral Sources with whom Employee had direct or indirect contact or whose identity Employee learned as a result of this Agreementhis employment with the Company and with which the Company or any of its Affiliates conducts business or receives referrals or has conducted business or received referrals within the 12 months preceding such solicitation or other action; or (ii) hire, solicit, take away, or attempt to hire, solicit or take away (either on such Employee’s behalf or on behalf of any restrictive covenant other person or other provision contained in entity) any agreement between the Executive, Holdings, person (A) who is then an employee of the Company or any Affiliate of the Company or (B) who has terminated his or her employment with the Company or any Affiliate of them and in the event that Company within the Executive does not promptly divest 12 months preceding such interest and recuse himself from competitive activities with such non-public entity while attempting to divest his interest in such entity hiring, solicitation or engages in any activity that would otherwise be precluded under Section 4.03(a), the Executive’s termination shall be immediately deemed a termination of employment for Cause pursuant to the terms of this Agreementother action.
(c) The Executive covenants Employee hereby acknowledges and agrees that during the Executivepayment of any amount under the Severance Package is conditioned upon Employee’s employment compliance with the provisions of this Section 5, and that the Company and during will have the 24-month period following the Termination Date, except as expressly provided herein, the Executive will not, directly or indirectly, either for himself or for right to withhold payment if Employee is in breach of any other Person (i) solicit or attempt to induce any employee or consultant of PQ to terminate his employment; (ii) employ any employee or consultant of PQ during the period of his employment or consulting relationship with PQ; (iii) solicit any customer of PQ to purchase or distribute information, products or services of or on behalf of the Executive or such other Person that are competitive with the information, products or services provided by PQ or (iv) take any action that may cause injury to or interfere with the relationships between PQ or any provisions of their employees and any lessor, lessee, vendor, supplier, customer, distributor, employee, consultant or other business associate of PQ or any of its Subsidiaries as such relationship relates to PQ’s conduct of its businessthis Section 5.
(d) 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 and any of its Affiliates, but he nevertheless believes that he has received and will receive sufficient consideration and other benefits as an employee of PQ and as otherwise provided hereunder or as described in the recitals hereto to clearly justify such restrictions which, in any event (given his education, skills and ability), the Executive does not believe would prevent him from otherwise earning a living.
Appears in 1 contract
Non-Compete and Non-Solicitation. (a) The Executive acknowledges and agrees with the Company that during the course of the Executive’s 's involvement and/or employment with the Company, the 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 Holdings, the Company and their Subsidiaries (collectively, “PQ”) which relationships constitute goodwill of PQthe Company, and PQ 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:
(ai) The Executive acknowledges that PQ the Company currently conducts its business throughout the world United States, including without limitation the areas listed on Exhibit B attached hereto (the “"Territory”"). Accordingly, during the Executive’s employment 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, for so long as severance payments are being made pursuant to Section 4(b) (such period is referred to herein as the Company and during the 24-month period following the Termination Date (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 Person that offers one or more products or services or business which engages in a businessselling, in each caseat the retail level, that is directly competitive with a product musical instruments, pro-audio equipment or service or related accessories within the business Territory (the "Line of PQ, as conducted or in active planning (a “Competitor”Business"), whether for or by himself or in as a representative for any other capacity. To the extent that the covenant provided for in this Section 4.03(a) may later be deemed by a court to be too broad to be enforced with respect to its duration or with respect to any particular activity or geographic area, the court making such determination shall have the power to reduce the duration or scope of the provision, and to add or delete specific words or phrases to or from the provision. The provision as modified shall then be enforced. Notwithstanding the foregoing restriction, it shall not be a violation of this Section 4.03(a) for the Executive to work for a Competitor if: (i) the Executive works in a separate legal subsidiary or Affiliate that offers products or services or conducts a business, in each case, that is not directly competitive with PQ, (ii) the Executive informs Holdings in writing prior to accepting the position how such position complies with the terms of this subsection, and (iii) Holdings consents to Executive’s employment with such entity, which consent shall not be unreasonably withheldPerson.
(bii) 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 Personentity, which securities are traded on a national or foreign securities exchange, quoted on the NASDAQ stock market Nasdaq Stock Market or other automated quotation system, and which Person entity competes with PQ 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 violation of Section 4.03(a)financial interest in a competitor. In the event that any Person entity in which the Executive has any financial or other interest directly or indirectly enters into a line the Line of business Business during the Non-Compete Period that competes with PQ or engages in the business of PQ within the TerritoryPeriod, the Executive shall use his reasonable best efforts to divest all of his interest (other than as any amount permitted to be held pursuant to the first sentence of this Section 4.03(b7(a)(ii)) in such Person entity within 15 30 days after such Person enters into such line of business that competes with PQ or engages in such business within the Territory; provided that, in the event learning that such equity interest is not publicly traded, entity has entered the Executive will divest such interest as promptly as practicable and, pending such divestiture, will recuse himself from any and all activities that would be in competition, whether directly or indirectly, with PQ or that would otherwise be precluded under Section 4.03(a). For the avoidance Line of doubt, the immediately preceding sentence shall not be construed as an amendment, waiver or modification to any other term or provision of this Agreement, or to any restrictive covenant or other provision contained in any agreement between the Executive, Holdings, the Company or any Affiliate of any of them and in the event that the Executive does not promptly divest such interest and recuse himself from competitive activities with such non-public entity while attempting to divest his interest in such entity or engages in any activity that would otherwise be precluded under Section 4.03(a), the Executive’s termination shall be immediately deemed a termination of employment for Cause pursuant to the terms of this AgreementBusiness.
(ciii) The Executive covenants and agrees that during the Executive’s employment with the Company and during the 24Non-month period following the Termination Date, except as expressly provided hereinCompete Period, the Executive will not, directly or indirectly, either for himself or for any other Person (i) person or entity, solicit or attempt to induce any employee of the Company (other than such Executive's personal assistant or consultant of PQ secretary) or any Subsidiary to terminate his employment; (ii) or her employment with the Company or any Subsidiary or employ any employee such individual during his or consultant of PQ during her employment with the Company or any Subsidiary and for a period of six months after such individual terminates his or her employment or consulting relationship with PQ; (iii) solicit any customer of PQ to purchase or distribute information, products or services of or on behalf of the Executive or such other Person that are competitive with the information, products or services provided by PQ or (iv) take any action that may cause injury to or interfere with the relationships between PQ Company or any of their employees and any lessor, lessee, vendor, supplier, customer, distributor, employee, consultant or other business associate of PQ or any of its Subsidiaries as such relationship relates to PQ’s conduct of its businessSubsidiary.
(db) 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 and any of its AffiliatesCompany, but he nevertheless believes that he has received and will receive sufficient consideration and other benefits as an employee of PQ the Company and as otherwise provided hereunder or as described in the recitals hereto to clearly justify such restrictions which, in any event (given his education, skills and ability), the Executive does not believe would prevent him from otherwise earning a living.
(c) The provisions of this Section 7 shall terminate in the event the Company fails to make any payments required by Section 4(b) and such failure remains uncured for a period equal to at least 30 days after written notice of such event from Executive.
Appears in 1 contract
Non-Compete and Non-Solicitation. The Executive acknowledges and agrees with the Company that during the course of the Executive’s employment with the Company, the Executive will have the opportunity to develop relationships with existing employees, customers and other business associates of HoldingsEcovyst, the Company and and/or their Subsidiaries (collectively, the “PQEcovyst Entities”) which relationships exist throughout the world and constitute goodwill of PQone or more of the Ecovyst Entities, and PQ the Ecovyst Entities would be irreparably damaged if the Executive were to take actions that would damage or misappropriate such goodwill. Accordingly, the Executive agrees as follows:
(a) The Executive acknowledges that PQ the Ecovyst Entities currently conducts its business conduct their businesses throughout the world (the “Territory”). Accordingly, during the Executive’s employment with the Company and during the 24-month period following the Termination Date (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 Person that offers one or more products or services or engages in a business, in each case, that is directly competitive with a product or service or the business of PQthe Ecovyst Entities, as conducted or in active planning (a “Competitor”), whether for or by himself or in any other capacity. To the extent that the covenant provided for in this Section 4.03(a) may later be deemed by a court to be too broad to be enforced with respect to its duration or with respect to any particular activity or geographic area, the court making such determination shall have the power to reduce the duration or scope of the provision, and to add or delete specific words or phrases to or from the provision. The provision as modified shall then be enforced. Notwithstanding the foregoing restriction, it shall not be a violation of this Section 4.03(a) for the Executive to work for a Competitor if: (i) the Executive works in a separate legal subsidiary or Affiliate that offers products or services or conducts a business, in each case, that is not directly competitive with PQthe Ecovyst Entities, (ii) the Executive informs Holdings Ecovyst in writing prior to accepting the position how such position complies with the terms of this subsection, and (iii) Holdings Ecovyst consents to Executive’s employment with such entity, which consent shall not be unreasonably withheld.
(b) 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 Person, which securities are traded on a national or foreign securities exchange, quoted on the NASDAQ stock market or other automated quotation system, and which Person competes with PQ the Ecovyst Entities (or any part thereof) within the Territory, shall not be deemed to be a violation of Section 4.03(a). In the event that any Person in which the Executive has any financial or other interest directly or indirectly enters into a line of business during the Non-Compete Period that competes with PQ the Ecovyst Entities or engages in the business of PQ the Ecovyst Entities within the Territory, the Executive shall divest all of his interest (other than as permitted to be held pursuant to the first sentence of this Section 4.03(b)) in such Person within 15 days after such Person enters into such line of business that competes with PQ the Ecovyst Entities or engages in such business within the Territory; provided that, in the event that such equity interest is not publicly traded, the Executive will divest such interest as promptly as practicable and, pending such divestiture, will recuse himself from any and all activities that would be in competition, whether directly or indirectly, with PQ the Ecovyst Entities or that would otherwise be precluded under Section 4.03(a). For the avoidance of doubt, the immediately preceding sentence shall not be construed as an amendment, waiver or modification to any other term or provision of this Agreement, or to any restrictive covenant or other provision contained in any agreement between the Executive, HoldingsEcovyst, the Company or any Affiliate of any of them and in the event that the Executive does not promptly divest such interest and recuse himself from competitive activities with such non-public entity while attempting to divest his interest in such entity or engages in any activity that would otherwise be precluded under Section 4.03(a), the Executive’s termination shall be immediately deemed a termination of employment for Cause pursuant to the terms of this Agreement.
(c) The Executive covenants and agrees that during the Executive’s employment with the Company and during the 24-month period following the Termination Date, except as expressly provided herein, the Executive will not, directly or indirectly, either for himself or for any other Person (i) solicit or attempt to induce any employee or consultant of PQ the Ecovyst Entities to terminate his employmentemployment or relationship; (ii) employ any employee or consultant of PQ the Ecovyst Entities during the period of his employment or consulting relationship with PQthe Ecovyst Entities; (iii) solicit any customer of PQ the Ecovyst Entities to purchase or distribute information, products or services of or on behalf of the Executive or such other Person that are competitive with the information, products or services provided by PQ the Ecovyst Entities or (iv) take any action that may cause injury to or interfere with the relationships between PQ the Ecovyst Entities or any of their employees and any lessor, lessee, vendor, supplier, customer, distributor, employee, consultant or other business associate of PQ or any of its Subsidiaries the Ecovyst Entities as such relationship relates to PQ’s the Ecovyst Entities’ conduct of its businesstheir businesses.
(d) The Executive understands that the foregoing restrictions may limit his ability to earn a livelihood in a business similar to the business businesses of the Company and any of its AffiliatesEcovyst Entities, but he nevertheless believes that he has received and will receive sufficient consideration and other benefits as an employee of PQ the Company and as otherwise provided hereunder or as described in the recitals hereto to clearly justify such restrictions which, in any event (given his education, skills and ability), the Executive does not believe would prevent him from otherwise earning a living.
Appears in 1 contract
Sources: Severance Agreement (Ecovyst Inc.)
Non-Compete and Non-Solicitation. The Executive acknowledges and agrees with the Company that during the course of the Executive’s employment with the Company, the Executive will have the opportunity to develop relationships with existing employees, customers and other business associates of Holdings, the Company and their its Subsidiaries (collectively, “PQ”) which relationships constitute goodwill of PQthe Company, and PQ 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:
(a) : The Executive acknowledges that PQ the Company currently conducts its business throughout the world North America, South America, Europe and Asia (the “Territory”). Accordingly, during the Executive’s employment with the Company Term and during the 2418-month period following the Termination Date (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 Person that offers one or more products or services or business which engages within the Territory in a business, any business in each case, that is directly competitive with a product or service or which the business of PQ, as conducted or in active planning (a “Competitor”)Company engages, whether for or by himself or in as an independent contractor, agent, stockholder, partner or joint ventures for any other capacityPerson (any such activity, “Competition”). To the extent that the covenant provided for in this Section 4.03(a8(a) may later be deemed by a court to be too broad to be enforced with respect to its duration or with respect to any particular activity or geographic area, the court making such determination shall have the power to reduce the duration or scope of the provision, and to add or delete specific words or phrases to or from the provision. The provision as modified shall then be enforced. Notwithstanding the foregoing restriction, it shall not be a violation of this Section 4.03(a) for the Executive to work for a Competitor if: (i) the Executive works in a separate legal subsidiary or Affiliate that offers products or services or conducts a business, in each case, that is not directly competitive with PQ, (ii) the Executive informs Holdings in writing prior to accepting the position how such position complies with the terms of this subsection, and (iii) Holdings consents to Executive’s employment with such entity, which consent shall not be unreasonably withheld.
(b) Notwithstanding the foregoing, the aggregate ownership by the Executive of no more than two (2) percent (on a fully-diluted basis) of the outstanding equity securities of any Person, which securities are traded on a national or foreign securities exchange, quoted on the NASDAQ stock market or other automated quotation system, and which Person competes with PQ the Company (or any part thereof) within the Territory, shall not be deemed to be a violation of Section 4.03(a8(a). In the event that any Person in which the Executive has any financial or other interest directly or indirectly enters into a line of business during the Non-Compete Period that competes with PQ the Company or engages in the business of PQ the Company within the Territory, the Executive shall divest all of his interest (other than as permitted to be held pursuant to the first sentence of this Section 4.03(b8(b)) in such Person within 15 days after such Person enters into such line of business that competes with PQ the Company or engages in such business within the Territory; provided that, in the event that such equity interest is not publicly traded, the Executive will divest such interest as promptly as practicable and, pending such divestiture, will recuse himself from any and all activities that would be in competition, whether directly or indirectly, with PQ or that would otherwise be precluded under Section 4.03(a). For the avoidance of doubt, the immediately preceding sentence shall not be construed as an amendment, waiver or modification to any other term or provision of this Agreement, or to any restrictive covenant or other provision contained in any agreement between the Executive, Holdings, the Company or any Affiliate of any of them and in the event that the Executive does not promptly divest such interest and recuse himself from competitive activities with such non-public entity while attempting to divest his interest in such entity or engages in any activity that would otherwise be precluded under Section 4.03(a), the Executive’s termination shall be immediately deemed a termination of employment for Cause pursuant to the terms of this Agreement.
(c) The Executive covenants and agrees that during the Executive’s employment with the Company Term and during the 2418-month period following the Termination Date, except as expressly provided herein, the Executive will not, directly or indirectly, either for himself or for any other Person (i) solicit or attempt to induce any employee or consultant of PQ the Company or any of its Subsidiaries to terminate his employmentor her employment or consulting relationship with the Company or any of its Subsidiaries; (ii) employ any employee or consultant of PQ the Company or any of its Subsidiaries during the period of his or her employment or consulting relationship with PQthe Company or any of its Subsidiaries; (iii) solicit any customer of PQ the Company or any of its Subsidiaries to purchase or distribute information, products or services of or on behalf of the Executive or such other Person that are competitive with the information, products or services provided by PQ the Company or any of its Subsidiaries or (iv) take any action that may cause injury to or interfere with the relationships between PQ the Company or any of its Subsidiaries or any of their employees and any lessor, lessee, vendor, supplier, customer, distributor, employee, consultant or other business associate of PQ the Company or any of its Subsidiaries as such relationship relates to PQthe Company’s or any of its Subsidiaries’ conduct of its their business.
. Notwithstanding the preceding sentence, the provisions of this Section 8(c) shall not apply to the solicitation or employment of the members of the Peak Group (d) but shall apply with respect to the solicitation or employment of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇); provided, however, that nothing herein shall be construed as an amendment, waiver or modification to any other term or provision of this Agreement, or to any restrictive covenant or other provision contained in any agreement between any member of the Peak Group or ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and Holdings, the Company or any Subsidiary of either of them. 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 and any of its AffiliatesSubsidiaries, but he nevertheless believes that he has received and will receive sufficient consideration and other benefits as an employee of PQ the Company and as otherwise provided hereunder or as described in the recitals hereto to clearly justify such restrictions which, in any event (given his education, skills and ability), the Executive does not believe would prevent him from otherwise earning a living.
Appears in 1 contract
Sources: Employment Agreement (Pq Corp)
Non-Compete and Non-Solicitation. The Executive acknowledges and agrees with the Company that during the course of the Executive’s employment with the Company, the Executive will have the opportunity to develop relationships with existing employees, customers and other business associates of Holdings, the Company and their its Subsidiaries (collectively, “PQ”) which relationships constitute goodwill of PQthe Company, and PQ 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:
(a) The Executive acknowledges that PQ the Company currently conducts its business throughout the world North America, South America, Europe and Asia (the “Territory”). Accordingly, during the Executive’s employment with the Company Term and during the 2418-month period following the Termination Date (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 Person that offers one or more products or services or business which engages within the Territory in a business, any business in each case, that is directly competitive with a product or service or which the business of PQ, as conducted or in active planning (a “Competitor”)Company engages, whether for or by himself or in as an independent contractor, agent, stockholder, partner or joint ventures for any other capacityPerson (any such activity, “Competition”). To the extent that the covenant provided for in this Section 4.03(a8(a) may later be deemed by a court to be too broad to be enforced with respect to its duration or with respect to any particular activity or geographic area, the court making such determination shall have the power to reduce the duration or scope of the provision, and to add or delete specific words or phrases to or from the provision. The provision as modified shall then be enforced. Notwithstanding the foregoing restrictionforegoing, it the primary business activity conducted by each of the Peak Companies as of the Effective Time shall not be a violation of this Section 4.03(a) for the Executive to work for a Competitor if: (i) the Executive works in a separate legal subsidiary or Affiliate that offers products or services or conducts a business, in each case, that is not directly competitive with PQ, (ii) the Executive informs Holdings in writing prior to accepting the position how such position complies with the terms of this subsection, and (iii) Holdings consents to Executive’s employment with such entity, which consent shall not be unreasonably withheldconstitute Competition hereunder.
(b) Notwithstanding the foregoing, the aggregate ownership by the Executive of no more than two (2) percent (on a fully-diluted basis) of the outstanding equity securities of any Person, which securities are traded on a national or foreign securities exchange, quoted on the NASDAQ stock market or other automated quotation system, and which Person competes with PQ the Company (or any part thereof) within the Territory, shall not be deemed to be a violation of Section 4.03(a8(a). In the event that any Person in which the Executive has any financial or other interest directly or indirectly enters into a line of business during the Non-Compete Period that competes with PQ the Company or engages in the business of PQ the Company within the Territory, the Executive shall divest all of his interest (other than as permitted to be held pursuant to the first sentence of this Section 4.03(b8(b)) in such Person within 15 days after such Person enters into such line of business that competes with PQ the Company or engages in such business within the Territory; provided that, in the event that such equity interest is not publicly traded, the Executive will divest such interest as promptly as practicable and, pending such divestiture, will recuse himself from any and all activities that would be in competition, whether directly or indirectly, with PQ or that would otherwise be precluded under Section 4.03(a). For the avoidance of doubt, the immediately preceding sentence shall not be construed as an amendment, waiver or modification to any other term or provision of this Agreement, or to any restrictive covenant or other provision contained in any agreement between the Executive, Holdings, the Company or any Affiliate of any of them and in the event that the Executive does not promptly divest such interest and recuse himself from competitive activities with such non-public entity while attempting to divest his interest in such entity or engages in any activity that would otherwise be precluded under Section 4.03(a), the Executive’s termination shall be immediately deemed a termination of employment for Cause pursuant to the terms of this Agreement.
(c) The Executive covenants and agrees that during the Executive’s employment with the Company Term and during the 2418-month period following the Termination Date, except as expressly provided herein, the Executive will not, directly or indirectly, either for himself or for any other Person (i) solicit or attempt to induce any employee or consultant of PQ the Company or any of its Subsidiaries to terminate his employmentor her employment or consulting relationship with the Company or any of its Subsidiaries; (ii) employ any employee or consultant of PQ the Company or any of its Subsidiaries during the period of his or her employment or consulting relationship with PQthe Company or any of its Subsidiaries; (iii) solicit any customer of PQ the Company or any of its Subsidiaries to purchase or distribute information, products or services of or on behalf of the Executive or such other Person that are competitive with the information, products or services provided by PQ the Company or any of its Subsidiaries or (iv) take any action that may cause injury to or interfere with the relationships between PQ the Company or any of its Subsidiaries or any of their employees and any lessor, lessee, vendor, supplier, customer, distributor, employee, consultant or other business associate of PQ the Company or any of its Subsidiaries as such relationship relates to PQthe Company’s or any of its Subsidiaries’ conduct of its their business. Notwithstanding the preceding sentence, the provisions of this Section 8(c) shall not apply to the solicitation or employment of the members of the Peak Group; provided, however, that nothing herein shall be construed as an amendment, waiver or modification to any other term or provision of this Agreement, or to any restrictive covenant or other provision contained in any agreement between any member of the Peak Group and Holdings, the Company or any Subsidiary of either of them.
(d) 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 and any of its AffiliatesSubsidiaries, but he nevertheless believes that he has received and will receive sufficient consideration and other benefits as an employee of PQ the Company and as otherwise provided hereunder or as described in the recitals hereto to clearly justify such restrictions which, in any event (given his education, skills and ability), the Executive does not believe would prevent him from otherwise earning a living.
Appears in 1 contract
Non-Compete and Non-Solicitation. The Executive acknowledges Simultaneously with and agrees in conjunction with the Company that during the course closing of the Executive’s employment with Transaction, you will execute and deliver to the Company, the Executive will have the opportunity to develop relationships with existing employees, customers and other business associates of Holdings, the Company and their Subsidiaries (collectively, “PQ”) which relationships constitute goodwill of PQ, and PQ would be irreparably damaged if the Executive were to take actions that would damage or misappropriate such goodwill. Accordingly, the Executive agrees as follows:
(a) The Executive acknowledges that PQ currently conducts its business throughout the world (the “Territory”). Accordingly, during the Executive’s employment with the Company and during the 24Corporation a Non-month period following the Termination Date Competition Agreement (the “Non-Compete PeriodCompetition Agreement”), pursuant to which you agree to the Executive restrictions on your business activities set forth therein in consideration of (i) the sums of money paid to you in connection with the closing of the Transaction; and (ii) your employment by the Corporation. You acknowledge and agree that the Non-Competition Agreement shall notremain in full force and effect in accordance with the terms thereof and that you shall remain subject to the restrictions on your business activities set forth therein until such restrictions lapse in accordance with the terms of the Non-Competition Agreement. As a material inducement to the Corporation to enter into this letter, you agree that, in addition to the restrictions set forth in Non-Competition Agreement, at all times during your Employment after the lapse of the restrictions set forth in the Non-Competition Agreement, and for a period of twelve (12) months after the termination of your Employment, you will not (i) act in a capacity similar to that in which you shall have served in the Corporation for any Competing Business or serve in a capacity in any such Competing Business that would entail your functioning as an executive for a Competing Business; or (ii) in any way, 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 Person that offers one or more products or services or engages in a business, in each case, that is directly competitive compete with a product or service or the business of PQthe Corporation, as conducted solicit, divert, or in active planning (a “Competitor”)take away or attempt to solicit, whether for divert, or by himself or in any other capacity. To the extent that the covenant provided for in this Section 4.03(a) may later be deemed by a court to be too broad to be enforced with respect to its duration or with respect to any particular activity or geographic area, the court making such determination shall have the power to reduce the duration or scope take away customers of the provisionCorporation that dealt with the Corporation during your Employment. Competing Business means another business engaged in the business(es) engaged in by the Corporation at any time within one year before or at the time of your termination. As a material inducement to the Corporation to enter into this letter, and to add or delete specific words or phrases to or from the provision. The provision as modified shall then be enforced. Notwithstanding the foregoing restriction, it shall not be a violation of this Section 4.03(a) for the Executive to work for a Competitor if: (i) the Executive works in a separate legal subsidiary or Affiliate that offers products or services or conducts a businessyou agree that, in each caseaddition to the restrictions set forth in Non-Competition Agreement, that is not directly competitive with PQ, (ii) at all times during your Employment after the Executive informs Holdings in writing prior to accepting the position how such position complies with the terms of this subsection, and (iii) Holdings consents to Executive’s employment with such entity, which consent shall not be unreasonably withheld.
(b) Notwithstanding the foregoing, the aggregate ownership by the Executive of no more than two percent (on a fully-diluted basis) lapse of the outstanding equity securities of any Person, which securities are traded on a national or foreign securities exchange, quoted on the NASDAQ stock market or other automated quotation system, and which Person competes with PQ (or any part thereof) within the Territory, shall not be deemed to be a violation of Section 4.03(a). In the event that any Person restrictions set forth in which the Executive has any financial or other interest directly or indirectly enters into a line of business during the Non-Compete Period that competes with PQ or engages in Competition Agreement and for a period of twelve (12) months after the business termination for any reason of PQ your Employment, you will not within the TerritoryUnited States of America, the Executive shall divest all of his interest (other than as permitted to be held pursuant to the first sentence of this Section 4.03(b)) directly, or indirectly through any means, including a business entity in such Person within 15 days after such Person enters into such line of business that competes with PQ which you have an ownership interest, request or engages in such business within the Territory; provided that, in the event that such equity interest is not publicly traded, the Executive will divest such interest as promptly as practicable and, pending such divestiture, will recuse himself from any and all activities that would be in competition, whether directly or indirectly, with PQ or that would otherwise be precluded under Section 4.03(a). For the avoidance of doubt, the immediately preceding sentence shall not be construed as an amendment, waiver or modification to induce any other term employee of the Corporation or provision of this Agreement, or its affiliates to any restrictive covenant or other provision contained in any agreement between the Executive, Holdings, the Company or any Affiliate of any of them and in the event that the Executive does not promptly divest such interest and recuse himself from competitive activities with such non-public entity while attempting to divest his interest in such entity or engages in any activity that would otherwise be precluded under Section 4.03(a), the Executive’s termination shall be immediately deemed a termination of employment for Cause pursuant to the terms of this Agreement.
(c) The Executive covenants and agrees that during the Executive’s employment terminate their relationship with the Company Corporation or its affiliates and during the 24-month period following the Termination Date, except as expressly provided herein, the Executive will not, directly or indirectly, either for himself or for any other Person (i) solicit or attempt to induce any employee or consultant of PQ to terminate his employment; (ii) employ any employee or consultant of PQ during the period of his employment or consulting enter into a similar relationship with PQ; (iii) solicit any customer of PQ to purchase or distribute information, products or services of or on behalf of the Executive or such other Person that are competitive with the information, products or services provided by PQ or (iv) take any action that may cause injury to or interfere with the relationships between PQ or any of their employees and any lessor, lessee, vendor, supplier, customer, distributor, employee, consultant or other another business associate of PQ or any of its Subsidiaries as such relationship relates to PQ’s conduct of its business.
(d) The Executive understands that the foregoing restrictions may limit his ability to earn a livelihood entity engaged in a business similar to the business of the Company and any of its Affiliates, but he nevertheless believes that he has received and will receive sufficient consideration and other benefits as an employee of PQ and as otherwise provided hereunder or as described in the recitals hereto to clearly justify such restrictions which, in any event (given his education, skills and ability), the Executive does not believe would prevent him from otherwise earning a livingCorporation’s.
Appears in 1 contract
Non-Compete and Non-Solicitation. The Executive acknowledges and agrees with the Company that during the course of the Executive’s employment with the Company, the Executive will have the opportunity to develop relationships with existing employees, customers and other business associates of HoldingsEcovyst, the Company and and/or their Subsidiaries (collectively, the “PQEcovyst Entities”) which relationships exist throughout the world and constitute goodwill of PQone or more of the Ecovyst Entities, and PQ the Ecovyst Entities would be irreparably damaged if the Executive were to take actions that would damage or misappropriate such goodwill. Accordingly, the Executive agrees as follows:
(a) The Executive acknowledges that PQ the Ecovyst Entities currently conducts its business conduct their businesses throughout the world (the “Territory”). Accordingly, during the Executive’s employment with the Company and during the 24-month period following the Termination Date (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 Person that offers one or more products or services or engages in a business, in each case, that is directly competitive with a product or service or the business businesses of PQthe Ecovyst Entities, as conducted or in active planning (a “Competitor”), whether for or by himself or in any other capacity. To the extent that the covenant provided for in this Section 4.03(a) may later be deemed by a court to be too broad to be enforced with respect to its duration or with respect to any particular activity or geographic area, the court making such determination shall have the power to reduce the duration or scope of the provision, and to add or delete specific words or phrases to or from the provision. The provision as modified shall then be enforced. Notwithstanding the foregoing restriction, it shall not be a violation of this Section 4.03(a) for the Executive to work for a Competitor if: (i) the Executive works in a separate legal subsidiary or Affiliate that offers products or services or conducts a business, in each case, that is not directly competitive with PQ, (ii) the Executive informs Holdings in writing prior to accepting the position how such position complies with the terms of this subsection, and (iii) Holdings consents to Executive’s employment with such entity, which consent shall not be unreasonably withheld.
(b) 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 Person, which securities are traded on a national or foreign securities exchange, quoted on the NASDAQ stock market or other automated quotation system, and which Person competes with PQ (or any part thereof) within the Territory, shall not be deemed to be a violation of Section 4.03(a). In the event that any Person in which the Executive has any financial or other interest directly or indirectly enters into a line of business during the Non-Compete Period that competes with PQ or engages in the business of PQ within the Territory, the Executive shall divest all of his interest (other than as permitted to be held pursuant to the first sentence of this Section 4.03(b)) in such Person within 15 days after such Person enters into such line of business that competes with PQ or engages in such business within the Territory; provided that, in the event that such equity interest is not publicly traded, the Executive will divest such interest as promptly as practicable and, pending such divestiture, will recuse himself from any and all activities that would be in competition, whether directly or indirectly, with PQ or that would otherwise be precluded under Section 4.03(a). For the avoidance of doubt, the immediately preceding sentence shall not be construed as an amendment, waiver or modification to any other term or provision of this Agreement, or to any restrictive covenant or other provision contained in any agreement between the Executive, Holdings, the Company or any Affiliate of any of them and in the event that the Executive does not promptly divest such interest and recuse himself from competitive activities with such non-public entity while attempting to divest his interest in such entity or engages in any activity that would otherwise be precluded under Section 4.03(a), the Executive’s termination shall be immediately deemed a termination of employment for Cause pursuant to the terms of this Agreement.
(c) The Executive covenants and agrees that during the Executive’s employment with the Company and during the 24-month period following the Termination Date, except as expressly provided herein, the Executive will not, directly or indirectly, either for himself or for any other Person (i) solicit or attempt to induce any employee or consultant of PQ to terminate his employment; (ii) employ any employee or consultant of PQ during the period of his employment or consulting relationship with PQ; (iii) solicit any customer of PQ to purchase or distribute information, products or services of or on behalf of the Executive or such other Person that are competitive with the information, products or services provided by PQ or (iv) take any action that may cause injury to or interfere with the relationships between PQ or any of their employees and any lessor, lessee, vendor, supplier, customer, distributor, employee, consultant or other business associate of PQ or any of its Subsidiaries as such relationship relates to PQ’s conduct of its business.
(d) 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 and any of its Affiliates, but he nevertheless believes that he has received and will receive sufficient consideration and other benefits as an employee of PQ and as otherwise provided hereunder or as described in the recitals hereto to clearly justify such restrictions which, in any event (given his education, skills and ability), the Executive does not believe would prevent him from otherwise earning a living.be
Appears in 1 contract
Sources: Severance Agreement (Ecovyst Inc.)
Non-Compete and Non-Solicitation. (a) The Executive acknowledges and agrees with the Company that during the course of the Executive’s 's involvement and/or employment with with, or ownership of options and/or Common Stock in, the Company, the 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 Holdings, the Company and their Subsidiaries (collectively, “PQ”) which relationships constitute goodwill of PQthe Company, and PQ 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:
(ai) The Executive acknowledges that PQ the Company currently conducts its business throughout the world United States, including without limitation the areas listed on Exhibit B attached hereto (the “"Territory”"). Accordingly, during the Executive’s employment 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, December 31, 1999 (such period is referred to herein as the Company and during the 24-month period following the Termination Date (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 Person that offers one or more products or services or business which engages in a businessselling at retail musical instruments, in each case, that is directly competitive with a product pro-audio equipment or service or related accessories within the business Territory (the "Line of PQ, as conducted or in active planning (a “Competitor”Business"), whether for or by himself or in as a representative for any other capacity. To the extent that the covenant provided for in this Section 4.03(a) may later be deemed by a court to be too broad to be enforced with respect to its duration or with respect to any particular activity or geographic area, the court making such determination shall have the power to reduce the duration or scope of the provision, and to add or delete specific words or phrases to or from the provision. The provision as modified shall then be enforced. Notwithstanding the foregoing restriction, it shall not be a violation of this Section 4.03(a) for the Executive to work for a Competitor if: (i) the Executive works in a separate legal subsidiary or Affiliate that offers products or services or conducts a business, in each case, that is not directly competitive with PQ, (ii) the Executive informs Holdings in writing prior to accepting the position how such position complies with the terms of this subsection, and (iii) Holdings consents to Executive’s employment with such entity, which consent shall not be unreasonably withheldPerson.
(bii) 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 Personentity, which securities are traded on a national or foreign securities exchange, quoted on the NASDAQ stock market Nasdaq Stock Market or other automated quotation system, and which Person entity competes with PQ 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 violation of Section 4.03(a)financial interest in a competitor. In the event that any Person entity in which the Executive has any financial or other interest directly or indirectly enters into a line the Line of business Business during the Non-Compete Period that competes with PQ or engages in the business of PQ within the TerritoryPeriod, the Executive shall divest all of his interest (other than as any amount permitted to be held pursuant to the first sentence of this Section 4.03(b7(a)(ii)) in such Person entity within 15 thirty (30) days after such Person enters into such line of business that competes with PQ or engages in such business within the Territory; provided that, in the event learning that such equity interest is not publicly traded, entity has entered the Executive will divest such interest as promptly as practicable and, pending such divestiture, will recuse himself from any and all activities that would be in competition, whether directly or indirectly, with PQ or that would otherwise be precluded under Section 4.03(a). For the avoidance Line of doubt, the immediately preceding sentence shall not be construed as an amendment, waiver or modification to any other term or provision of this Agreement, or to any restrictive covenant or other provision contained in any agreement between the Executive, Holdings, the Company or any Affiliate of any of them and in the event that the Executive does not promptly divest such interest and recuse himself from competitive activities with such non-public entity while attempting to divest his interest in such entity or engages in any activity that would otherwise be precluded under Section 4.03(a), the Executive’s termination shall be immediately deemed a termination of employment for Cause pursuant to the terms of this AgreementBusiness.
(ciii) The Executive covenants and agrees that during the Executive’s employment with the Company and during the 24Non-month period following the Termination Date, except as expressly provided hereinCompete Period, the Executive will not, directly or indirectly, either for himself or for any other Person (i) person or entity, solicit or attempt to induce any employee of the Company (other than such Executive's personal assistant or consultant of PQ secretary) or any Subsidiary to terminate his employment; (ii) or her employment with the Company or any Subsidiary or employ any employee such individual during his or consultant of PQ during her employment with the Company or any Subsidiary and for a period of six months after such individual terminates his or her employment or consulting relationship with PQ; (iii) solicit any customer of PQ to purchase or distribute information, products or services of or on behalf of the Executive or such other Person that are competitive with the information, products or services provided by PQ or (iv) take any action that may cause injury to or interfere with the relationships between PQ Company or any of their employees and any lessor, lessee, vendor, supplier, customer, distributor, employee, consultant or other business associate of PQ or any of its Subsidiaries as such relationship relates to PQ’s conduct of its businessSubsidiary.
(db) 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 and any of its AffiliatesCompany, but he nevertheless believes that he has received and will receive sufficient consideration and other benefits as an employee or holder of PQ Common Stock of the Company and as otherwise provided hereunder or as described in the recitals hereto to clearly justify such restrictions which, in any event (given his education, skills and ability), the Executive does not believe would prevent him from otherwise earning a living.
(c) The provisions of this Section 7 shall terminate in the event the Company fails to 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 such event from Executive.
Appears in 1 contract
Non-Compete and Non-Solicitation. (a) The Executive acknowledges and agrees with the Company that during the course of the Executive’s involvement and/or employment with the Company, the Executive has had and will continue to have the opportunity to develop relationships with existing employees, vendors, suppliers, customers and other business associates of Holdings, the Company and their Subsidiaries (collectively, “PQ”) which relationships constitute goodwill of PQthe Company, and PQ 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:
(ai) The Executive acknowledges that PQ the Company and its subsidiaries currently conducts its their business throughout the world United States, including, without limitation, the areas listed on Exhibit A attached hereto (the “Territory”). For purposes hereof, the “Territory” shall also include any international market in which the Company or any of its subsidiaries conducts its business or has plans that have been considered by the Board to conduct its business, in either event, at the time of the Executive’s date of termination. Accordingly, during the Executive’s employment with period commencing on the Company Effective Date and during ending on the 24-month period following later of (A) the Termination last day of the Term and (B) the Second Anniversary 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 Person that offers one or more products or services or business which engages in a businessmarketing, in each caseselling, that is directly competitive with a product renting or service 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 business Internet) within the Territory (the “Line of PQ, as conducted or in active planning (a “CompetitorBusiness”), whether for or by himself or in as a representative for any other capacity. To the extent that the covenant provided for in this Section 4.03(a) may later be deemed by a court to be too broad to be enforced with respect to its duration person or with respect to any particular activity or geographic area, the court making such determination shall have the power to reduce the duration or scope of the provision, and to add or delete specific words or phrases to or from the provision. The provision as modified shall then be enforced. Notwithstanding the foregoing restriction, it shall not be a violation of this Section 4.03(a) for the Executive to work for a Competitor if: (i) the Executive works in a separate legal subsidiary or Affiliate that offers products or services or conducts a business, in each case, that is not directly competitive with PQ, (ii) the Executive informs Holdings in writing prior to accepting the position how such position complies with the terms of this subsection, and (iii) Holdings consents to Executive’s employment with such entity, which consent shall not be unreasonably withheld.
(bii) Notwithstanding the foregoing, the aggregate passive ownership by the Executive of no more than two percent (2%) (on a fully-diluted basis) of the outstanding equity securities of any Personentity, which securities are traded on a national or foreign securities exchange, quoted on the NASDAQ stock market Nasdaq Stock Market or other automated quotation system, and which Person entity competes with PQ 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 violation of Section 4.03(a)financial interest in a competitor. In the event that any Person entity in which the Executive has any financial or other interest directly or indirectly enters into a line the Line of business Business during the Non-Compete Period that competes with PQ or engages in the business of PQ within the TerritoryPeriod, the Executive shall use his reasonable best efforts to divest all of his interest (other than as any amount permitted to be held pursuant to the first sentence of this Section 4.03(b7(a)(ii)) in such Person entity within 15 thirty (30) days after such Person enters into such line of business that competes with PQ or engages in such business within the Territory; provided that, in the event learning that such equity interest is not publicly traded, entity has entered the Executive will divest such interest as promptly as practicable and, pending such divestiture, will recuse himself from any and all activities that would be in competition, whether directly or indirectly, with PQ or that would otherwise be precluded under Section 4.03(a). For the avoidance Line of doubt, the immediately preceding sentence shall not be construed as an amendment, waiver or modification to any other term or provision of this Agreement, or to any restrictive covenant or other provision contained in any agreement between the Executive, Holdings, the Company or any Affiliate of any of them and in the event that the Executive does not promptly divest such interest and recuse himself from competitive activities with such non-public entity while attempting to divest his interest in such entity or engages in any activity that would otherwise be precluded under Section 4.03(a), the Executive’s termination shall be immediately deemed a termination of employment for Cause pursuant to the terms of this AgreementBusiness.
(cb) The Executive covenants and agrees that during the Executive’s employment with the Company and during the 24Non-month period following the Termination Date, except as expressly provided hereinCompete Period, the Executive will not, directly or indirectly, either for himself or for any other Person (i) person or entity, solicit or attempt to induce any employee of the Company (other than the Executive’s personal assistant or consultant of PQ secretary) or any subsidiary to terminate his employment; (ii) or her employment with the Company or any subsidiary or employ any employee such individual during his or consultant of PQ during her employment with the Company or any subsidiary and for a period of six (6) months after such individual terminates his or her employment with the Company or consulting relationship with PQ; any subsidiary.
(iiic) solicit any customer of PQ to purchase or distribute information, products or Because the Executive’s services of or on behalf of are unique and because the Executive has access to Confidential Information and Work Product, the parties hereto agree that money damages would be an inadequate remedy for any breach of this Agreement by the Executive. Therefore, in the event of a breach or such threatened breach of this Agreement, the Company or its successors or assigns may, in addition to other Person that are competitive with the informationrights and remedies existing in their favor, products or services provided by PQ or (iv) take apply to any action that may cause injury to or interfere with the relationships between PQ or any court of their employees and any lessor, lessee, vendor, supplier, customer, distributor, employee, consultant competent jurisdiction for specific performance and/or injunctive or other business associate of PQ relief in order to enforce, or prevent any of its Subsidiaries as such relationship relates to PQ’s conduct of its businessviolations of, the provisions hereof (without posting a bond or other security).
(d) 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 and any of its AffiliatesCompany, but he nevertheless believes that he has received and will receive sufficient consideration and other benefits as an employee of PQ a service provider to the Company and as otherwise provided hereunder or as described in the recitals hereto to clearly justify such restrictions which, in any event (given his education, skills and ability), the Executive does not believe would prevent him from otherwise earning a living.
(e) In the event of any violation of the provisions of this Section 7 the Executive acknowledges and agrees that the restrictions contained in this Section 7 shall be extended by a period of time equal to the period of such violation, it being the intention of the parties hereto that the running of the applicable restriction period shall be tolled during any period of such violation.
(f) The Executive agrees that, before providing services, whether as an employee or consultant, to any entity during the Non-Compete Period, the Executive will provide a copy of this Agreement (including, without limitation, Sections 5, 6, and 7) to such entity, and such entity shall acknowledge to the Company in writing that it has read this Agreement. The Executive further covenants that the Executive will not challenge the reasonableness or enforceability of any of the covenants set forth in Sections 5, 6, and 7 and that the Executive will reimburse the Company, its subsidiaries and its affiliates for all costs (including reasonable attorneys’ fees) incurred in connection with any action to enforce any of the provisions of Sections 5, 6 and 7 if either the Company and/or its subsidiaries or affiliates prevails on any material issue involved in such dispute or if the Executive challenges the reasonability or enforceability of any of the provisions set forth in Section 5, 6 or 7.
Appears in 1 contract