Non-Competition and Non-Solicitation. Executive acknowledges and recognizes the highly competitive nature of the businesses of the Company and its subsidiaries and affiliates and accordingly agrees as follows: (a) During the Executive’s employment with the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reason, the Executive shall not, anywhere within the United States either as principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, own, manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an employment, business or other activity competitive with the Company. The post-employment restriction contained in this section shall not apply in the State of California. (b) Executive further agrees that, during the Executive’s employment with the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reason, the Executive shall not, directly or indirectly, either as a principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, on the Executive’s behalf or any other persons or entity other than the Company or its affiliates, (i) solicit or induce, or attempt to solicit or induce, directly or indirectly, any customer or prospective customer of the Company with whom the Executive has had personal contact within the twelve (12) month period prior to the Executive’s termination date, or (ii) solicit or induce, or attempt to solicit or induce, directly or indirectly any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee or agent of, or consultant to, the Company or any of its affiliates, to terminate its, his or her relationship therewith, or (iii) hire or engage any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee, agent of or consultant to the Company or any of its affiliates. (c) Executive understands that the provisions of this Section 11 may limit Executive’s ability to earn a livelihood in a business similar to the business of the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests of the Company, (ii) such provisions contain reasonable limitations as to time and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable (d) If a judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.
Appears in 5 contracts
Sources: Employment Agreement (SIMPLICITY ESPORTS & GAMING Co), Employment Agreement (SIMPLICITY ESPORTS & GAMING Co), Employment Agreement (SIMPLICITY ESPORTS & GAMING Co)
Non-Competition and Non-Solicitation. Executive acknowledges As an essential ingredient of, and recognizes the highly competitive nature in consideration of the businesses of the Company and its subsidiaries and affiliates and accordingly agrees as follows:
(a) During substantial severance benefits provided pursuant to this Agreement in addition to the Executive’s employment employment, or continued employment, with the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reasonEmployer, the Executive shall not, anywhere within during the United States either as principalRestricted Period, agent, employee, consultant, partner, officer, director, shareholder, directly or in indirectly do any other individual of the following:
(i) Engage or representative capacityinvest in, own, manage, operate, finance, operatecontrol, control or otherwise engage or participate in any manner the ownership, management, operation, or fashion in an employmentcontrol of, business or other activity competitive with the Company. The post-employment restriction contained in this section shall not apply in the State of California.
(b) Executive further agrees thatbe employed by, during the Executive’s employment with the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reason, the Executive shall not, directly or indirectly, either as a principal, agent, employee, consultant, partner, officer, director, shareholderassociated with, or in any other individual or representative capacitymanner connected with, on the Executive’s behalf or any other persons or entity other than the Company or its affiliatesserve as a director, (i) solicit or induce, or attempt to solicit or induce, directly or indirectly, any customer or prospective customer of the Company with whom the Executive has had personal contact within the twelve (12) month period prior to the Executive’s termination date, or (ii) solicit or induce, or attempt to solicit or induce, directly or indirectly any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee or agent ofofficer, or consultant to, lend the Company Executive’s name or any of its affiliatessimilar name to, lend the Executive’s credit to terminate itsor render services or advice to, his or her relationship therewithany Financial Institution with an office located, or to be located at an address identified in a filing with any regulatory authority, within the Restricted Area; provided, however, that the ownership by the Executive of shares of the capital stock of any Financial Institution, which shares are listed on a securities exchange and that do not represent more than 1% of the institution’s outstanding capital stock, shall not violate any terms of this Agreement. For purposes of clarification and not limitation or expansion, it is the parties intent that the foregoing is not intended to limit Executive from performing services outside of the Restricted Area for a person or entity solely because the person or entity has a location within the Restricted Area, unless Executive’s services are directed towards activities on behalf of such person or entity within the Restricted Area;
(ii) (A) Hire, or induce or attempt to induce any employee of the Employer or its Affiliates (limited to all officer-level employees, Executive’s direct reports, or members of Executive’s department or area of responsibility) to leave the employ of the Employer or its Affiliates; (B) interfere with the relationship between the Employer or its Affiliates and any such employee of the Employer or its Affiliates; or (C) induce or attempt to induce any customer, supplier, licensee, or other business relation of the Employer or its Affiliates with whom the Executive had an ongoing business relationship while employed by the Employer or its Affiliates to cease doing business with the Employer or its Affiliates or interfere with the relationship between the Employer its Affiliates and their respective customers, suppliers, licensees, or other business relations with whom the Executive had an ongoing business relationship.
(iii) hire or engage Solicit the business of any person who isor entity known to the Executive to be a customer of the Employer or its Affiliates, where the Executive, or during the twelve (12) month period prior any person reporting to the Executive’s termination date was, had accessed Confidential Information of, had an employee, agent of or consultant to ongoing business relationship with while employed by the Company or any Employer of its affiliates.
(c) Executive understands Affiliates, or had made Substantial Business Efforts with respect to, such person or entity, with respect to products, activities, or services that compete in whole or in part with the provisions of this Section 11 may limit Executive’s ability to earn a livelihood in a business similar to the business products, activities, or services of the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests of the Company, (ii) such provisions contain reasonable limitations as to time and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained hereinEmployer its Affiliates.
Appears in 5 contracts
Sources: Employment Agreement (County Bancorp, Inc.), Employment Agreement (County Bancorp, Inc.), Employment Agreement (County Bancorp, Inc.)
Non-Competition and Non-Solicitation. The Executive acknowledges and recognizes agrees that the nature of the Company’s confidential, proprietary, and trade secret information to which the Executive has, and will continue to have, access to derives value from the fact that it is not generally known and used by others in the highly competitive nature of industry in which the businesses Company competes. The Executive further acknowledges and agrees that, even in complete good faith, it would be impossible for the Executive to work in a similar capacity for a competitor of the Company without drawing upon and its subsidiaries and affiliates and accordingly agrees as follows:
(a) During the Executive’s utilizing information gained during employment with the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reason, the Executive shall not, anywhere within the United States either as principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, own, manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an employment, business or other activity competitive with the Company. The post-employment restriction contained in this section shall not apply in the State of California.
(b) Executive further agrees thatAccordingly, at all times during the Executive’s employment with the Company and for a period of one (1) year from the date of termination of Executive’s employment after termination, for any reason, of such employment, the Executive shall will not, directly or indirectly, either :
(a) Engage in any business or enterprise (whether as a principal, agent, employee, consultantowner, partner, officer, director, shareholderemployee, consultant, investor, lender or otherwise, except as the holder of not more than one percent (1%) of the outstanding capital stock of a company) that directly or indirectly competes with the Company’s business or the business of any of its subsidiaries anywhere in the United States; or
(b) Either alone or in association with others (i) solicit, or facilitate any organization with which the Executive is associated in soliciting, any other individual or representative capacity, on the Executive’s behalf or any other persons or entity other than employee of the Company or any of its affiliates, (i) solicit or induce, or attempt subsidiaries to solicit or induce, directly or indirectly, any customer or prospective customer leave the employ of the Company with whom the Executive has had personal contact within the twelve (12) month period prior to the Executive’s termination date, or any of its subsidiaries; (ii) solicit for employment, hire or induceengage as an independent contractor, or attempt to solicit facilitate any organization with which the Executive is associated in soliciting for employment, hire or induceengagement as an independent contractor, directly or indirectly any person who is, was employed by the Company or any of its subsidiaries at any time during the twelve (12) month period prior to term of the Executive’s termination date wasemployment with the Seller or the Company or any of their respective subsidiaries (provided, an employee or agent of, or consultant tothat this clause (ii) shall not apply to any individual whose employment with the Seller, the Company or any of its affiliates, to terminate its, his subsidiaries has been terminated for a period of one year or her relationship therewith, longer); or (iii) hire solicit business from or engage perform services for any person who iscustomer, supplier, licensee or during business relation of the twelve (12) month period prior Seller or the Company or any of their respective subsidiaries, induce or attempt to the Executive’s termination date wasinduce, an employee, agent of or consultant any such entity to cease doing business with the Company or any of its affiliates.
(c) Executive understands that subsidiaries; or in any way interfere with the provisions of this Section 11 may limit Executive’s ability to earn a livelihood in a business similar to the business of relationship between any such entity and the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests of the Company, (ii) such provisions contain reasonable limitations as to time and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained hereinits subsidiaries.
Appears in 5 contracts
Sources: Executive Employment Agreement (SCWorx Corp.), Executive Employment Agreement (SCWorx Corp.), Executive Employment Agreement (SCWorx Corp.)
Non-Competition and Non-Solicitation. Executive acknowledges and recognizes the highly competitive nature of the businesses of the Company and its subsidiaries and affiliates and accordingly agrees as follows:
(a) During the Executive’s employment with the Company Employment Period and for a period of one (1) year from thereafter (the date of termination of Executive’s employment for any reason“Non-Compete Period”), the Executive shall notnot engage, anywhere within the United States either directly or indirectly, whether as principal, agent, employee, consultant, partnerdistributor, officerrepresentative, directorfive percent (5%) or greater stockholder or otherwise, shareholder, or in any business activities in the United States of America or any other individual jurisdiction in which the Parent or representative capacity, own, manage, finance, any of its direct or indirect subsidiaries operate, control or otherwise engage or participate which are in any manner or fashion in an employment, business or other activity way competitive with the Company. The post-employment restriction contained in this section shall not apply in business conducted by the State Parent or any of Californiaits direct or indirect subsidiaries during the Employment Period.
(b) Executive further agrees that, during During the Executive’s employment with the Company Employment Period and for a period of one two (12) year from years thereafter (the date of termination of Executive’s employment for any reason“Non-Solicitation Period” and together with the Non-Compete Period, the “Restricted Period”), the Executive shall not, directly or indirectly, either as a principal, agent, employee, consultant, partner, officer, director, shareholder, indirectly (whether alone or in any other individual or representative capacity, on the Executive’s behalf or any other persons or entity other than the Company or its affiliatesjointly with another Person), (i) solicit or inducefor employment, hire, employ, or attempt engage any Person who, at any time during the Non-Solicitation Period, is an officer or employee of the Parent or any of its direct or indirect subsidiaries, including the Company; provided, however, that the preceding sentence does not prohibit the Executive from (A) soliciting or hiring any Person whose employment, or engagement for services, was terminated by any such Person at least twelve (12) months prior to solicit the date of such solicitation or inducehire; and provided, further, that such termination was not encouraged by the Executive, or (B) engaging in any general solicitation not targeted at any employee of any such Person, including a non-directed executive search or placing general advertisements for employees in newspapers or other media of general circulation so long as such employee is not hired, directly or indirectly, any customer or prospective customer of the Company with whom by the Executive has had personal contact within the twelve (12) month period prior to the Executive’s termination date, or any of his controlled Affiliates or (ii) solicit business from any customer or induce, solicit products or attempt to solicit or induce, directly or indirectly services from any person who is, or during vendor of the twelve (12) month period prior to the Executive’s termination date was, an employee or agent of, or consultant to, the Company Parent or any of its affiliatesdirect or indirect subsidiaries, to terminate itsincluding the Company, his that interferes with or her relationship therewith, jeopardizes the business or (iii) hire relationships of any such Person with any such customer or engage any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee, agent of or consultant to the Company or any of its affiliatesvendor.
(c) Executive understands The Parties acknowledge and agree that the provisions of Executive’s obligations under Section 6, this Section 11 7 and the following Section 8(c) (collectively, the “Covenants”) are of a special, unique and extraordinary nature, that there may limit Executive’s ability be no adequate remedy at law for any breach thereof, that any such breach may allow third parties to earn a livelihood compete unfairly with the Parent or any of its direct or indirect parents or subsidiaries, including the Company, resulting in a business similar irreparable harm to any such Person, and, therefore, upon any such breach or any threat thereof, the business Companies shall be entitled to preliminary and permanent, mandatory or negative injunctive relief against any breach or threatened breach by the Executive of any of the Company but Covenants, without having to post a bond, in addition to whatever remedies they may have at law. The Executive nevertheless hereby agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests terms of the CompanyCovenants are reasonable, (ii) such provisions contain reasonable limitations as to time the foregoing restrictions will not prevent him from obtaining gainful employment in his occupation or field of expertise or cause him undue hardship, and scope of activity to be restrained, (iii) in the event a court determines that any of the provisions of the Covenants are unreasonable or contrary to public policy, or invalid or unenforceable for any reason in fact, law or equity, then such provisions are not harmful provision shall be deemed to be modified to permit its enforcement to the general publicmaximum extent permitted by law. So that the Companies may enjoy the full benefits of the covenants set forth in this Section 7, (iv) such provisions are not unduly burdensome to Executivethe Executive further agrees that the Restricted Period shall be tolled, and (v) shall not run, during the consideration provided hereunder period of time during which the Executive is sufficient to compensate Executive for in breach of any of the restrictions covenants contained in this Section 117, after such time the Company has informed the Executive that he is so in breach. In consideration It is also agreed that each of the foregoing Parent and in light its direct or indirect parents or subsidiaries, including the Company, shall have the right to enforce all of the Executive’s educationobligations to that Affiliate under this Agreement, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of including without limitation pursuant to this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein7.
Appears in 4 contracts
Sources: Employment Agreement (Hayward Holdings, Inc.), Employment Agreement (Hayward Holdings, Inc.), Employment Agreement (Hayward Holdings, Inc.)
Non-Competition and Non-Solicitation. Executive acknowledges and recognizes the highly competitive nature As a condition of the businesses of the Company and its subsidiaries and affiliates and accordingly agrees as follows:
(a) During the ExecutiveEmployee’s employment with by the Company Company, and in order to protect the Company’s trade secret and other confidential information and the Company’s other legitimate business interests, including the Company’s goodwill and customer and client relationships and for a period of one (1) year from good and valuable consideration, including the date of termination of Executive’s employment for any reason, the Executive shall not, anywhere within the United States either as principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, own, manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an employment, business or other activity competitive with the Company. The post-employment restriction contained in this section shall not apply benefits set forth in the State of California.
(b) Executive further Amended and Restated Severance Agreement to which this Exhibit A is attached, Employee covenants and agrees that, without prior written consent from the Company, during the Executive’s employment with the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reasonProhibited Period, the Executive Employee shall not, directly or indirectly, either as a principalfor Employee or on behalf of or in conjunction with any person or entity of any nature:
(a) engage or participate in competition with the Company within the Market Area in any aspect of the Business, agentwhich prohibition shall prevent Employee from directly or indirectly owning, employeemanaging, consultantoperating, partnerjoining, becoming an officer, director, shareholderemployee or consultant of, or in loaning money to, or selling or leasing equipment or real estate to, or otherwise being affiliated with any other individual or representative capacity, on the Executive’s behalf or any other persons person or entity other than the Company or its affiliates, (i) solicit or induceengaged in, or attempt planning to solicit engage in, the Business in the Market Area in competition, or induceanticipated competition, directly or indirectly, with the Company;
(b) appropriate any customer or prospective customer Business Opportunity of the Company with whom located in the Executive has had personal contact within the twelve (12) month period prior to the Executive’s termination date, or (ii) solicit or induce, or attempt to solicit or induce, directly or indirectly any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee or agent of, or consultant to, the Company or any of its affiliates, to terminate its, his or her relationship therewith, or (iii) hire or engage any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee, agent of or consultant to the Company or any of its affiliates.Market Area;
(c) Executive understands that the provisions of this Section 11 may limit Executive’s ability to earn a livelihood in a business similar to the business solicit, canvass, approach, encourage, entice or induce any customer or supplier of the Company but Executive nevertheless agrees and hereby acknowledges that (i) to cease or lessen such provisions do not impose a greater restraint than is necessary to protect the goodwill customer’s or other supplier’s business interests of with the Company, (ii) such provisions contain reasonable limitations as to time and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable; or
(d) If solicit, canvass, approach, encourage, entice or induce any employee or contractor of the Company to terminate his, her or its employment or engagement with the Company. Nothing herein shall prohibit Employee from being a judicial determination is made by a court passive owner of competent jurisdiction that not more than 1% of the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability outstanding stock of any class of securities of any person listed on a national securities exchange which is engaged in the other restrictions contained hereinBusiness, so long as Employee has no active participation in the Business of such person and does not serve on the board of directors or similar body of such person.
Appears in 4 contracts
Sources: Severance Agreement (Goodrich Petroleum Corp), Severance Agreement (Goodrich Petroleum Corp), Severance Agreement (Goodrich Petroleum Corp)
Non-Competition and Non-Solicitation. Executive acknowledges and recognizes the highly competitive nature of the businesses of the Company and its subsidiaries and affiliates and accordingly agrees as followsthat:
(a) During the Executive’s employment with the Company Term and for a period of one year thereafter or during any Severance Period, if longer (1the "Restricted Period"), Executive agrees that he will not (without the written consent of the Chairman of the Board) year from the date of termination of Executive’s employment for engage directly or indirectly in any reason, the Executive shall not, anywhere business within the United States either (financially as principal, agent, an investor or lender or as an employee, consultantdirector, officer, partner, officerindependent contractor, director, shareholder, consultant or owner or in any other individual capacity calling for the rendition of personal services or representative capacityacts of management, own, manage, finance, operate, control operation or otherwise engage or participate in any manner or fashion in an employment, business or other activity control) which is directly competitive with the Company. The post-employment restriction contained in this section shall not apply in the State of California.
(b) Executive further agrees that, business at any time during the Executive’s employment with the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reason, the Executive shall not, directly or indirectly, either as a principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, on the Executive’s behalf or any other persons or entity other than the Company or its affiliates, (i) solicit or induce, or attempt to solicit or induce, directly or indirectly, any customer or prospective customer of the Company with whom the Executive has had personal contact within the twelve (12) month period prior to the Executive’s termination date, or (ii) solicit or induce, or attempt to solicit or induce, directly or indirectly any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee or agent of, or consultant to, Restricted Period conducted by the Company or any of its affiliatessubsidiaries or Affiliates as defined below. Notwithstanding the foregoing, Executive shall be entitled to terminate its, his or her relationship therewith, or (iii) hire or engage own securities of any person who is, or during corporation conducting a business competitive with the twelve (12) month period prior to the Executive’s termination date was, an employee, agent business of or consultant to the Company or any of its affiliatessubsidiaries or Affiliates so long as the securities of such corporation are listed on a national securities exchange and the securities owned directly or indirectly by Executive do not represent more than two percent (2%) of any class of the outstanding securities of such company.
(cb) During the Restricted Period, in addition to the obligations pursuant to Subsection 5(a), Executive understands agrees that neither he nor any business in which he engages directly or indirectly will (i) directly or indirectly induce any customers of the provisions Company or of this Section 11 may limit Executive’s ability corporations or businesses which directly or indirectly control or are controlled by or under common control with the Company ("Affiliates") to earn a livelihood in a patronize any business similar to the business of the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests of the Company, (ii) such provisions contain reasonable limitations as to time and scope canvass, solicit or accept any similar business from any customer of activity to be restrainedthe Company or any Affiliates, (iii) directly or indirectly request or advise any customer of the Company or Affiliates to withdraw, curtail or cancel such provisions are not harmful to customer's business with the general publicCompany or Affiliates, (iv) such provisions are not unduly burdensome directly or indirectly disclose to Executiveany other person, and firm or corporation the names or addresses of any of the customers of the Company or Affiliates, or (v) compete with the consideration provided hereunder is sufficient Company or Affiliates in acquiring or merging with any other business or acquiring the assets of such other business.
(c) During the Restricted Period, in addition to compensate Executive for the restrictions contained in this Section 11. In consideration of the foregoing obligations pursuant to Subsections 5(a) and in light of Executive’s education, skills and abilities5(b), Executive agrees that Executive neither he nor any business in which he engages directly or indirectly will (i) hire or attempt to hire any employee of the Company or its Affiliates nor (ii) directly or indirectly encourage any employee of the Company or its Affiliates to terminate employment with the Company or its Affiliates. Notwithstanding the foregoing, it shall not assert thatbe deemed a violation of this subsection if a business which employs Executive hires or attempts to hire an employee of the Affiliates and Executive has no knowledge of, and it should not be considered that, control over or involvement with such solicitation.
(d) In the event that any of the provisions of this Section 11 otherwise are void5 should ever be deemed to exceed the time, voidable geographic or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made occupational limitations permitted by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Executiveapplicable laws, the then such provisions of this Agreement shall not be rendered void but shall be deemed amended and are hereby reformed to apply as to such the maximum time and territory and to such maximum extent as such court may judicially determine time, geographic or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained hereinoccupational limitations permitted by law.
Appears in 4 contracts
Sources: Employment Security Agreement (Waste Management Inc /De/), Employment Security Agreement (Waste Management Inc /De/), Employment Security Agreement (Waste Management Inc /De/)
Non-Competition and Non-Solicitation. Executive acknowledges and recognizes the highly competitive nature of the businesses of Participant agrees to comply fully with any written agreement between the Company and its subsidiaries and affiliates and accordingly agrees as follows:
the Participant which provides for post-termination of employment restrictions against solicitation or competition (a) During the Executive’s employment with “Restrictive Covenant Agreement”); provided, however, that if no such Restrictive Covenant Agreement exists, the Company and Participant shall not for a period of one [six (1) year from the date of 6)][twelve (12)][eighteen (18)] months after Participant’s voluntary termination of Executive’s employment for any reasonwith Company or involuntary termination of employment by Company, either himself or together with other persons, directly or indirectly: (i) own, manage, operate, finance, join, control or participate in the Executive shall notownership, anywhere within the United States either management, operation, financing, or control of or be connected as an officer, director, employee, partner, principal, agent, employeerepresentative, consultant, partner, officer, director, shareholderconsultant or otherwise with, or have any financial interest in, or aid or assist anyone else in the conduct of, or use or permit Participant’s name to be used in connection with, any other individual business engaged in the research, development, manufacture, sale, marketing or representative capacitydistribution of stainless steel, owntitanium, managespecialty alloys, finance, operate, control metal powders or otherwise engage metal fabricated parts or participate in any manner components similar to or fashion in an employment, business or other activity competitive with those manufactured by the Company. The post-employment restriction contained in this section shall not apply in Company (a “Competing Business”) as of the State of California.
(b) Executive further agrees that, during date the ExecutiveParticipant’s employment with Company ends; provided, however, that nothing herein shall prevent the Company and for Participant from investing in the securities of any company listed on a period national securities exchange, provided that Participant’s involvement with any such company is solely that of one a stockholder of 5% or less of any class of the outstanding securities thereof; (1) year from the date of termination of Executive’s employment for any reason, the Executive shall not, directly or indirectly, either as a principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, on the Executive’s behalf or any other persons or entity other than the Company or its affiliates, (iii) solicit or induce, divert to any Competing Business any individual or attempt to solicit or induce, directly or indirectly, any entity that is a customer or prospective customer of the Company with whom or its subsidiaries or affiliates, or was such a customer or prospective customer at any time during the Executive has had personal contact within the twelve eighteen (1218) month period months prior to the Executivedate of Participant’s employment termination date, or (ii) solicit or induce, or attempt to solicit or induce, directly or indirectly any person who is, or during with the twelve (12) month period prior to the Executive’s termination date was, an employee or agent of, or consultant to, the Company or any of its affiliates, to terminate its, his or her relationship therewith, or Company; (iii) hire induce, offer, assist, encourage or engage suggest (A) that another business or enterprise offer employment to or enter into a business affiliation with any person who isCompany employee, agent or representative, or during the twelve (12) month period prior to the Executive’s termination date was, any individual who acted as an employee, agent of or consultant to the Company or any of its affiliates.
(c) Executive understands that the provisions of this Section 11 may limit Executive’s ability to earn a livelihood in a business similar to the business representative of the Company but Executive nevertheless agrees and hereby acknowledges in the previous six (6) months; or (B) that any Company employee, agent or representative (ior individual who acted as an employee, agent or representative of the Company in the previous six (6) such provisions do not impose months) terminate his or her employment or business affiliation with the Company; or (iv) hire or participate in the hiring of any Company employee or any person who was an employee of the Company in the previous six (6) months, by any business, enterprise or employer. For this purpose, “prospective customer” shall mean a greater restraint than is necessary to protect person or business entity that the goodwill Company has identified as a user or other business interests potential user of the Company, (ii) such provisions contain reasonable limitations as ’s products and toward which the Company plans to time and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11direct sales or marketing activities. In consideration of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court of competent jurisdiction event that the time or territory or Company determines in good faith that the Participant violated the terms of any other restriction contained in this Agreement Restrictive Covenant Agreement, or, if there is an unenforceable restriction against the Executiveno Restrictive Covenant Agreement, the provisions of the preceding paragraph: (i) this Agreement shall not be rendered void but Award shall be deemed amended forfeited and (ii) the Participant shall be obligated to apply as return to the Company any shares previously issued under this Award or a cash payment equal to the value of the shares at the time such maximum time and territory and to such maximum extent as such court may judicially determine shares were sold or indicate to be enforceable. Alternativelytransferred, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any all of the other restrictions contained hereinAward has been issued to the Participant or such recoupment is required by law.
Appears in 4 contracts
Sources: Three Year Performance Stock Unit Award Agreement (Carpenter Technology Corp), Restricted Stock Unit Award Agreement (Carpenter Technology Corp), Three Year Performance Stock Unit Award Agreement (Carpenter Technology Corp)
Non-Competition and Non-Solicitation. The Executive acknowledges and recognizes agrees that the nature of the Company’s confidential, proprietary, and trade secret information to which the Executive has, and will continue to have, access to derives value from the fact that it is not generally known and used by others in the highly competitive nature of industry in which the businesses Company competes. The Executive further acknowledges and agrees that, even in complete good faith, it would be impossible for the Executive to work in a similar capacity for a competitor of the Company without drawing upon and its subsidiaries and affiliates and accordingly agrees as follows:
(a) During the Executive’s utilizing information gained during employment with the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reason, the Executive shall not, anywhere within the United States either as principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, own, manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an employment, business or other activity competitive with the Company. The post-employment restriction contained in this section shall not apply in the State of California.
(b) Executive further agrees thatAccordingly, at all times during the Executive’s employment with the Company and for a period of one three (13) year from the date of termination of Executive’s employment years after termination, for any reason, of such employment, the Executive shall will not, directly or indirectly, either :
(a) Engage in any business or enterprise (whether as a principal, agent, employee, consultantowner, partner, officer, director, shareholderemployee, consultant, investor, lender or otherwise, except as the holder of not more than one percent (1%) of the outstanding capital stock of a company) that directly or indirectly competes with the Company’s business or the business of any of its subsidiaries anywhere in the United States, including but not limited to any business or enterprise that develops, manufactures, markets, or in sells any other individual product or representative capacityservice that competes with any product or service developed, on the Executive’s behalf manufactured, marketed or any other persons sold, or entity other than planned to be developed, manufactured, marketed or sold, by the Company or any of its affiliates, subsidiaries while the Executive was employed by the Seller or the Company; or
(b) Either alone or in association with others (i) solicit or inducesolicit, or attempt to solicit or induce, directly or indirectlyfacilitate any organization with which the Executive is associated in soliciting, any customer or prospective customer employee of the Company with whom or any of its subsidiaries to leave the Executive has had personal contact within employ of the twelve (12) month period prior to the Executive’s termination date, Company or any of its subsidiaries; (ii) solicit for employment, hire or induceengage as an independent contractor, or attempt to solicit facilitate any organization with which the Executive is associated in soliciting for employment, hire or induceengagement as a independent contractor, directly or indirectly any person who is, was employed by the Company or any of its subsidiaries at any time during the twelve (12) month period prior to term of the Executive’s termination date wasemployment with the Seller or the Company or any of their respective subsidiaries (provided, an employee or agent of, or consultant tothat this clause (ii) shall not apply to any individual whose employment with the Seller, the Company or any of its affiliates, to terminate its, his subsidiaries has been terminated for a period of one year or her relationship therewith, longer); or (iii) hire solicit business from or engage perform services for any person who iscustomer, supplier, licensee or during business relation of the twelve (12) month period prior Seller or the Company or any of their respective subsidiaries, induce or attempt to the Executive’s termination date wasinduce, an employee, agent of or consultant any such entity to cease doing business with the Company or any of its affiliates.
(c) Executive understands that subsidiaries; or in any way interfere with the provisions of this Section 11 may limit Executive’s ability to earn a livelihood in a business similar to the business of relationship between any such entity and the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests of the Company, (ii) such provisions contain reasonable limitations as to time and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained hereinits subsidiaries.
Appears in 4 contracts
Sources: Executive Employment Agreement (Alliance MMA, Inc.), Executive Employment Agreement (Alliance MMA, Inc.), Executive Employment Agreement (Alliance MMA, Inc.)
Non-Competition and Non-Solicitation. Executive acknowledges and recognizes the highly competitive nature of the businesses of While employed by the Company and its subsidiaries and affiliates and accordingly agrees as follows:
(a) During for 12 months after termination of the Executive’s employment for any reason (the “Restricted Period”), the Executive agrees not to, directly or indirectly, in the United States or elsewhere where the any member of the Company Group (as defined below) is engaged in business, on such person’s own behalf or on the behalf of another (including as a shareholder, member, partner, joint venturer or investor of another person):
(i) engage in, own, control, advise, manage, serve as a director, officer or employee of, act as a consultant to or contractor or other agent for, receive any economic benefit from or exert any influence upon, any business or activity that competes, directly or indirectly, with the business of the Company and Group (a “Competitive Business”);
(ii) solicit, divert or attempt to solicit or divert any person who as of the date of the Executive’s termination of employment is or was, within the one-year period prior to such date, a customer, client, supplier or other business relationship of any member of the Company Group, or within the one-year period prior to such date, was solicited to become a customer, client, supplier or other business relationship of any member of the Company Group (each, a “Company Customer”), for a period the purpose of one attempting to persuade any such Company Customer to cease to do business or to reduce the amount of business which any such Company Customer has customarily done or contemplates doing with any member of the Company Group; or
(1iii) year from hire, employ, engage or solicit for employment or services any officer, employee or consultant of any member of the Company Group as of the date of termination of Executive’s employment for any reason, the Executive shall not, anywhere within the United States either as principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, own, manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an employment, business or other activity competitive with the Company. The post-employment restriction contained in this section shall not apply in the State of California.
(b) Executive further agrees that, during the Executive’s employment with or at any time in the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reason, the Executive shall not, directly or indirectly, either as a principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, on the Executive’s behalf or any other persons or entity other than the Company or its affiliates, (i) solicit or induce, or attempt to solicit or induce, directly or indirectly, any customer or prospective customer of the Company with whom the Executive has had personal contact within the twelve (12) month period 12 months prior to the Executive’s termination dateof employment, in each case until the date that is 12 months after the date on which such officer, employee or consultant ceases to be employed by any member of the Company Group, or encourage or induce any such individual to leave his or her employment or service relationship with any member of the Company Group; provided that the term “solicit for employment or services” as used in this clause (iiiv) solicit shall not be deemed to include generalized searches for employees through media advertisements of general circulation, employment search firms, open job fairs or induceotherwise. Notwithstanding the foregoing, or attempt to solicit or induceif the Executive’s principal place of employment is in the State of California, directly or indirectly this Section 6(c) shall not apply for any person who is, or during the twelve (12) month period prior to following the Executive’s termination date was, an employee or agent of, or consultant to, the Company or of employment for any of its affiliates, to terminate its, his or her relationship therewith, or (iii) hire or engage any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee, agent of or consultant to the Company or any of its affiliatesreason.
(c) Executive understands that the provisions of this Section 11 may limit Executive’s ability to earn a livelihood in a business similar to the business of the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests of the Company, (ii) such provisions contain reasonable limitations as to time and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.
Appears in 4 contracts
Sources: Employment Agreement (Doma Holdings, Inc.), Employment Agreement (Doma Holdings, Inc.), Employment Agreement (Capitol Investment Corp. V)
Non-Competition and Non-Solicitation. Executive acknowledges (a) Unless the following covenants are waived in whole or in part by the Company in accordance with Section 7, for a period of two years after the effective date of termination of your employment with the Company (the “Termination Date) (irrespective of the reason for, or manner of, such termination), you shall not, directly or indirectly:
(i) solicit, recruit or hire, or in any manner assist in the soliciting, recruitment or hiring of (A) any of the employees of PAETEC Holding or any Subsidiary or any individuals who were employed by PAETEC Holding or any Subsidiary within 12 months before the Termination Date, or (B) any of the sales agents or independent sales agents of PAETEC Holding or any Subsidiary, or any individual or Person that was a sales agent or independent sales agent of PAETEC Holding or any Subsidiary within 12 months before the Termination Date;
(ii) individually or as an officer, director, employee, shareholder or equity owner (other than as a shareholder or other equity owner of less than 1% of the outstanding capital stock of a publicly traded company), consultant, contractor, partner, joint venturer, agent, manager, or other representative, work for, become employed by or perform services for any corporation or other Person that is competitive with the Company’s Business or that would divert business from PAETEC Holding or any Subsidiary in any geographical area in which PAETEC Holding or any Subsidiary is then conducting operations (such competitive corporation or other Person, an “Other Enterprise”), provided that you shall not be restricted from working for, becoming employed by or performing services for any Other Enterprise, even if another division, subsidiary or Affiliate of such Other Enterprise is competitive with the Company’s Business or would divert business from PAETEC Holding or any Subsidiary, so long as you do not perform any services for such division, subsidiary or Affiliate, and recognizes provided, further, that you shall not be restricted under this Section 3(b)(ii) from competing with any business of PAETEC Holding or any Subsidiary if you did not provide any services to such business of PAETEC Holding or such Subsidiary or did not possess or have knowledge of Company Confidential Information within the 24-month period before the Termination Date;
(iii) solicit on behalf of any Other Enterprise, or accept on behalf of any Other Enterprise, business from any individual, business or organization that was known by you to be a customer of PAETEC Holding or any Subsidiary, or identified by PAETEC Holding or any Subsidiary as a prospective customer of PAETEC Holding or such Subsidiary, in each case as of or within 12 months before the Termination Date; or
(iv) take any action to influence or attempt to influence customers, prospective customers, vendors or suppliers of PAETEC Holding or any Subsidiary known to you to divert their business to any Other Enterprise or take any action which is intended, or would reasonably be expected, to affect adversely PAETEC Holding or any Subsidiary, the Company’s Business, the reputation of PAETEC Holding or any Subsidiary, or the relationship of PAETEC Holding or any Subsidiary with its customers, prospective customers, vendors or suppliers.
(b) The parties agree that if a court of competent jurisdiction finds that any term of this Section 3 is for any reason unenforceable because it is overly broad in scope or duration, such term shall be modified to the minimum extent necessary to make it enforceable. Further, the covenants in this Section 3 shall be deemed to be a series of separate covenants and agreements, one for each and every region of each state, territory, possession or other political division of the United States of America and each other political division worldwide. If, in any judicial proceeding, a court of competent jurisdiction shall refuse to enforce any of the separate covenants deemed included herein, then, at the option of the Company, wholly unenforceable covenants shall be deemed eliminated from this Section 3 for the purpose of such proceeding to the extent necessary to permit the remaining separate covenants to be enforced in such proceeding. In addition, if a court or other enforcement body finds that any provision of this Section 3 may not be enforced as written because of a public policy, you agree that such court or enforcement body shall modify and construe such provision to permit its enforcement to the maximum extent permitted by law.
(c) You acknowledge the highly competitive nature of the businesses of industry in which the Company is involved and further as follows: (i) your services to the Company are special and unique; (ii) your work for the Company shall allow you access to Company Confidential Information, including trade secrets, and customers; (iii) the Company’s business is conducted throughout the United States and over the Internet and World Wide Web, enabling the Company and its subsidiaries you to regularly provide services to customers nationwide; (iv) PAETEC Holding would not have entered into this Agreement but for the covenants and affiliates agreements contained in this Section 3; and accordingly agrees as follows:
(av) During the Executive’s employment with agreements and covenants contained in this Section 3 are reasonable and are necessary and essential to protect the business, Company Confidential Information, including trade secrets, and for a period goodwill of one (1) year from the date of termination of Executive’s employment for any reason, the Executive shall not, anywhere within the United States either as principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, own, manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an employment, business or other activity competitive with the Company. The post-employment restriction contained You further acknowledge that this Agreement does not restrict your ability to be gainfully employed, and you acknowledge that the geographic boundaries, scope of prohibited activities, and duration of the covenants set forth in this section shall not apply Section 3 are reasonable in the State of California.
(b) Executive further agrees that, during the Executive’s employment with the Company nature and for a period of one (1) year from the date of termination of Executive’s employment for any reason, the Executive shall not, directly or indirectly, either as a principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, on the Executive’s behalf or any other persons or entity other no broader than the Company or its affiliates, (i) solicit or induce, or attempt to solicit or induce, directly or indirectly, any customer or prospective customer of the Company with whom the Executive has had personal contact within the twelve (12) month period prior to the Executive’s termination date, or (ii) solicit or induce, or attempt to solicit or induce, directly or indirectly any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee or agent of, or consultant to, the Company or any of its affiliates, to terminate its, his or her relationship therewith, or (iii) hire or engage any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee, agent of or consultant to the Company or any of its affiliates.
(c) Executive understands that the provisions of this Section 11 may limit Executive’s ability to earn a livelihood in a business similar to the business of the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is are necessary to protect the goodwill or other legitimate business interests of the Company, (ii) such provisions contain reasonable limitations as . You agree not to time and scope of activity to be restrained, (iii) such provisions are not harmful raise any objection to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions reasonableness of this Section 11 otherwise are void, voidable 3 in any action or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court of competent jurisdiction that proceeding to enforce the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions terms of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained hereinAgreement.
Appears in 4 contracts
Sources: Executive Confidentiality, Non Solicitation, Non Competition and Severance Agreement (PAETEC Holding Corp.), Executive Confidentiality, Non Solicitation, Non Competition and Severance Agreement (PAETEC Holding Corp.), Executive Confidentiality, Non Solicitation, Non Competition and Severance Agreement (PAETEC Holding Corp.)
Non-Competition and Non-Solicitation. Executive acknowledges and recognizes The Parties have agreed that the highly competitive nature primary service area of the businesses Employer’s operations, including lending and deposit taking functions, in which Executive will actively participate extends to an area that encompasses a thirty-five (35)-mile radius from each banking or other office location of the Company Employer and its subsidiaries any Affiliates as of the Termination Date (such area, the “Restrictive Area”). Therefore, as an essential ingredient of and affiliates in consideration of this Agreement and accordingly agrees as follows:
(a) During the Executive’s employment with the Company Employer, Executive, during Executive’s employment with the Employer and for a period of one (1) year from the date of Restrictive Period immediately following the termination of Executive’s employment for any reason, whether such termination occurs during the Executive Employment Period or thereafter, shall not, anywhere within not directly or indirectly do any of the United States either as principal, agent, employee, consultant, partner, officer, director, shareholder, following:
(i) Engage or in any other individual or representative capacityinvest in, own, manage, operate, finance, operatecontrol, participate in the ownership, management, operation or control of, be employed by, associated with or otherwise engage or participate in any manner or fashion in an employmentconnected with, business or other activity competitive with the Company. The post-employment restriction contained in this section shall not apply in the State of California.
(b) Executive further agrees that, during the Executive’s employment with the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reason, the Executive shall not, directly or indirectly, either serve as a principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, on the Executive’s behalf or any other persons or entity other than the Company or its affiliates, (i) solicit or induce, or attempt to solicit or induce, directly or indirectly, any customer or prospective customer of the Company with whom the Executive has had personal contact within the twelve (12) month period prior to the Executive’s termination date, or (ii) solicit or induce, or attempt to solicit or induce, directly or indirectly any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee or agent of, officer or consultant to, lend Executive’s name or any similar name to, lend Executive’s credit to or render services or advice to, in each case in the Company capacity that Executive provided services to the Employer or any Affiliate, any Financial Institution; provided, however, that the ownership by Executive of shares of the capital stock of any Financial Institution, which shares are listed on a securities exchange or quoted on the National Association of Securities Dealers Automated Quotation System and which do not represent more than five (5) percent (5%) of the institution’s outstanding capital stock, shall not violate any terms of this Agreement;
(ii) Either for Executive or any Financial Institution: (A) induce or attempt to induce any employee of the Employer or any of its affiliates, Affiliates with whom Executive had significant contact to terminate its, his or her relationship therewith, or (iii) hire or engage any person who is, or during leave the twelve (12) month period prior to employ of the Executive’s termination date was, an employee, agent of or consultant to the Company Employer or any of its affiliates.Affiliates; (B) in any way interfere with the relationship between the Employer or any of its Affiliates and any employee of the Employer or any of its Affiliates with whom Executive had significant contact; or (C) induce or attempt to induce any customer, supplier, licensee or business relation of the Employer or any of its Affiliates with whom Executive had significant contact to cease doing business with the Employer or any of its Affiliates or in any way interfere with the relationship between the Employer or any of its Affiliates and their respective customers, suppliers, licensees or business relations with whom Executive had significant contact; or
(ciii) Either for Executive understands that the provisions of this Section 11 may limit Executive’s ability to earn a livelihood in a business similar to or any Financial Institution, solicit the business of the Company but any person or entity known to Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose to be a greater restraint than is necessary to protect the goodwill or other business interests customer of the CompanyEmployer or any of its Affiliates, (ii) where Executive had significant contact with such provisions contain reasonable limitations as person or entity, with respect to time and scope of activity to be restrainedproducts, (iii) such provisions are not harmful to activities or services that compete in whole or in part with the general publicproducts, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration activities or services of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court of competent jurisdiction that the time or territory Employer or any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained hereinits Affiliates.
Appears in 4 contracts
Sources: Employment Agreement (Level One Bancorp Inc), Employment Agreement (Level One Bancorp Inc), Employment Agreement (Level One Bancorp Inc)
Non-Competition and Non-Solicitation. The Executive hereby acknowledges and recognizes the highly competitive nature of the businesses business of the Company Corporation and its subsidiaries and affiliates Bank and accordingly agrees as followsthat, for the applicable period and the applicable circumstances set forth in Section 11(c) hereof, Executive shall not:
(ai) During be engaged, directly or indirectly, either for his own account or as agent, consultant, employee, partner, officer, director, proprietor, investor (except as an investor owning less than 5% of the stock of a publicly owned company) or otherwise of any person, firm, corporation or enterprise engaged in (1) the banking or financial services industry (including bank holding company), or (2) any other activity in which Corporation, Bank or any of their subsidiaries or affiliates are engaged during the Employment Period, in any county in which, a branch, or office of Corporation or any of its subsidiaries is located, or within a fifty (50) mile radius of any branch, or office of Corporation or any of its subsidiaries, any of the foregoing which existed on the date of termination of the Executive’s employment with employment, which radius includes areas located outside of the Company and for a period Commonwealth of one Pennsylvania (the “Non-Competition Area”); or
(ii) provide financial or other assistance to any person, firm, corporation, or enterprise engaged in (1) year from the banking or financial services industry (including bank holding company), or (2) any other activity in which Corporation, Bank or any of their subsidiaries or affiliates are engaged during the Employment Period in the Non-Competition Area; or
(iii) directly or indirectly contact, solicit or induce any person, firm, corporation or other entity who or which is a customer or referral source of Corporation, Bank or any of their subsidiaries or affiliates during the term of Executive’s employment or at the date of termination of Executive’s employment for employment, to become a client, customer or referral service of any reasonother person, the Executive shall notfirm, anywhere within the United States either as principalcorporation or other entity provided that such other person, agentfirm, employee, consultant, partner, officer, director, shareholder, corporation or other entity competes in any other individual or representative capacity, own, manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an employment, business or other activity competitive way with the Company. The post-employment restriction contained in this section shall not apply in the State Corporation, Bank or any of California.their subsidiaries or affiliates; or
(biv) Executive further agrees thatdirectly or indirectly solicit, induce or encourage any employee of Corporation, Bank or any of their subsidiaries or affiliates, who is employed during the term of Executive’s employment with the Company and for a period of one (1) year from or at the date of termination of Executive’s employment for any reasonemployment, to leave the Executive shall notemploy of Corporation, directly or indirectly, either as a principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, on the Executive’s behalf Bank or any other persons of their subsidiaries or affiliates or to seek, obtain or accept employment with any person or entity other than the Company or its affiliatesCorporation, (i) solicit or induce, or attempt to solicit or induce, directly or indirectly, any customer or prospective customer of the Company with whom the Executive has had personal contact within the twelve (12) month period prior to the Executive’s termination date, or (ii) solicit or induce, or attempt to solicit or induce, directly or indirectly any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee or agent of, or consultant to, the Company Bank or any of its their subsidiaries or affiliates, to terminate itsprovided, his or her relationship therewithhowever, or (iii) hire or engage any person who isthe furnishing of a written reference, or during the twelve (12) month period prior to the Executive’s termination date was, requested by an employee, agent of or consultant to the Company or any of its affiliates.
(c) Executive understands that the provisions shall not itself be a violation of this Section 11 may limit Executive’s ability to earn a livelihood in a business similar to the business of the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests of the Company, (ii) such provisions contain reasonable limitations as to time and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained hereinrestrictive covenant.
Appears in 3 contracts
Sources: Executive Employment Agreement (Citizens Financial Services Inc), Executive Employment Agreement (Citizens Financial Services Inc), Executive Employment Agreement (Citizens Financial Services Inc)
Non-Competition and Non-Solicitation. Executive acknowledges and recognizes In the highly competitive nature event of the businesses voluntary termination of the Company and its subsidiaries and affiliates and accordingly agrees as follows:
(a) During the Executive’s employment with during the Company and for a period of one Employment Period by the Executive without Good Reason (1i) year from the date of termination of Executive’s employment for any reason, the Executive shall not, anywhere within not engage in Competition (as defined below) during the United States either as principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, own, manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an one-year period immediately following Executive’s termination of employment, business or other activity competitive with the Company. The post-employment restriction contained in this section shall not apply in the State of California.
and (bii) Executive further agrees that, during the Executive’s employment with the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reason, the Executive shall notnot engage in Solicitation (as defined below) during the two-year period immediately following Executive’s termination of employment. For purposes of this Section 5, the term Competition shall mean that Executive, without the written approval of the CEO, commences employment with, or provides consulting services to, any pharmaceutical enterprise that is engaged in research, development, and/or sales of human and/or pharmaceutical products (unless sales from pharmaceutical products constitute less than 20% of total sales of the company conducting the enterprise and the consolidated affiliates of that company); provided that service solely as a member of the Board of Directors of a company whose annual sales are less than $100 million on a consolidated basis with all affiliated companies shall not be considered Competition. Further, the term Competition specifically excludes (i) companies whose primary purpose is to provide consulting and/or audit services so long as those companies have revenues in excess of $100 million, and (ii) law firms whose primary purpose is to provide legal services. For purposes of this Section 5, the term Solicitation shall mean that without the written approval of the CEO or his delegate, the Executive, directly or indirectly, either as a principalsolicits, agentencourages or participates in the solicitation or hiring of, employee, consultant, partner, officer, director, shareholder, any person who is currently an employee of the Company or in independent contractor doing business with the Company or who was an employee of the Company at any other individual or representative capacity, on time during the Executive’s behalf or last three (3) months of the Employment Period by any other persons or entity employer other than the Company for any position as an employee, independent contractor, consultant or its affiliatesotherwise; provided that the Executive shall not be considered to have engaged in Solicitation for purposes of this Section 5 if an employer other than the Company solicits or hires, (i) solicit with no participation or induce, or attempt to solicit or induce, directly or indirectlyinvolvement by the Executive, any customer current or prospective customer former employee, independent contractor or consultant of the Company with whom who is not or was not employed in, or providing direct services to, a business area of the Company for which Executive has had personal contact within the twelve (12) month period immediately prior to the Executive’s termination date, of his employment) had no direct authority or (ii) solicit or induce, or attempt to solicit or induce, directly or indirectly any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee or agent of, or consultant to, the Company or any of its affiliates, to terminate its, his or her relationship therewith, or (iii) hire or engage any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee, agent of or consultant to the Company or any of its affiliates.
(c) Executive understands responsibility; and provided further that the provisions of this Section 11 may limit Executive’s ability to earn a livelihood in a business similar to the business of the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests of the Company, (ii) such provisions contain reasonable limitations as to time and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive term Solicitation shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained hereinpreclude Executive from giving references.
Appears in 3 contracts
Sources: Employment Agreement (Schering Plough Corp), Employment Agreement (Schering Plough Corp), Employment Agreement (Schering Plough Corp)
Non-Competition and Non-Solicitation. Executive acknowledges and recognizes the highly competitive nature (a) As part of the businesses consideration for the compensation and benefits to be paid to Executive hereunder, to protect Confidential Information of the Company and its customers and clients that have been and will be entrusted to Executive, the business goodwill of the Company and its subsidiaries that will be developed in and affiliates through Executive and accordingly agrees the business opportunities that will be disclosed or entrusted to Executive by the Company and its subsidiaries, and as followsan additional incentive for the Company to enter into this Agreement, from the date hereof through the first anniversary of the Date of Termination (the “Restricted Period”), Executive will not (other than for the benefit of the Company pursuant to this Agreement), directly or indirectly:
(ai) During the Executive’s employment with the Company and for engage in, or carry on or assist, individually or as a period of one (1) year from the date of termination of Executive’s employment for any reason, the Executive shall not, anywhere within the United States either as principal, agent, employee, consultant, partnerowner, officer, director, employee, shareholder, consultant, contractor, partner, member, joint venturer, agent, equity owner or in any other individual or representative capacity whatsoever (in any such capacity, ownan “Investor”), manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an employment, (A) any business or other activity directly competitive with the business in which the Company is engaged from time to time (“Competing Business”) or (B) Business Enterprise (as defined below) that is otherwise directly competitive with the Company within the states in which the Company conducts business;
(ii) perform for any corporation, partnership, limited liability company, sole proprietorship, joint venture or other business association or entity (a “Business Enterprise”) engaged in any Competing Business any duty Executive has performed for the Company that involved Executive’s access to, or knowledge or application of, Confidential Information;
(iii) induce or attempt to induce any customer, supplier, licensee or other business relation of the Company to cease doing business with the Company or in any way interfere with the relationship between any such customer, supplier, licensee or business relation and the Company. The post-employment restriction contained ;
(iv) induce or attempt to induce any customer, supplier, licensee or other business relation of the Company with whom Executive had direct business contact in this section shall not apply dealings during the Employment Period in the State course of Californiahis employment with the Company to cease doing business with the Company or in any way interfere with the relationship between any such customer, supplier, licensee or business relation and the Company; or
(v) solicit with the purpose of hiring or hire any person who is or, within 180 days after such person ceased to be an employee of the Company, was an employee of the Company.
(b) Notwithstanding the duration of the restrictions set forth in Section 10(a) above and subject to Section 10(e) below, the restrictions set forth under Sections 10(a)(i) and (ii) shall expire after (x) 180 days following the Date of Termination, if Executive further agrees that, during terminates this Agreement under Sections 5(c) or 4(b) hereof or the Company terminates Executive’s employment with without Cause under Sections 5(a) or 4(b) or (y) sixty (60) days following the Company and for a period Date of one (1) year from the date of termination of Executive’s employment Termination, if Executive elects to terminate this Agreement for any other reason.
(c) Notwithstanding the foregoing restrictions of this Section 10, the Executive nothing in this Section 10 shall notprohibit (i) any investment by Executive, directly or indirectly, either as in securities which are issued by a principalBusiness Enterprise involved in or conducting a Competing Business, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, on the provided that Executive’s behalf or any other persons or entity other than the Company or its affiliates, (i) solicit or induce, or attempt to solicit or induce, directly or indirectly, any customer or prospective customer does not own more than five percent (5%) of the Company with whom the Executive has had personal contact within the twelve (12) month period prior to the Executive’s termination date, outstanding equity or voting securities of such Business Enterprise or (ii) solicit or induce, or attempt to solicit or induceExecutive, directly or indirectly indirectly, from owning any person who isinterest in any Business Enterprise which conducts a Competing Business if such interest in such Business Enterprise is owned as of the date of this Agreement and Executive does not have the right, in the case of (i) or during (ii), through the twelve (12) month period prior to the Executive’s termination date was, an employee ownership of a voting interest or agent of, or consultant to, the Company or any of its affiliatesotherwise, to terminate its, his or her relationship therewith, or (iii) hire or engage any person who is, or during direct the twelve (12) month period prior to the Executive’s termination date was, an employee, agent activities of or consultant to associated with the Company or any business of its affiliatessuch Business Enterprise.
(cd) Executive understands acknowledges that each of the covenants of Section 10(a) are in addition to, and shall not be construed as a limitation upon, any other covenant provided in Section 10(a). Executive agrees that the provisions geographic boundaries, scope of this Section 11 may limit Executive’s ability to earn a livelihood in a business similar to the business prohibited activities, and time duration of each of the Company but Executive nevertheless agrees covenants set forth in Section 10(a) are reasonable in nature and hereby acknowledges that (i) such provisions do not impose a greater restraint are no broader than is are necessary to maintain the confidentiality and the goodwill of the Company’s proprietary and Confidential Information, plans and services and to protect the goodwill or other legitimate business interests of the Company, including without limitation the goodwill developed by Executive with Company’s customers, suppliers, licensees and business relations.
(iie) such provisions contain reasonable limitations as to If, during any portion of the Restricted Period, Executive is not in compliance with the terms of Section 10(a), the Company shall be entitled to, among other remedies, compliance by Executive with the terms of Section 10(a) for an additional period of time and scope of activity to be restrained(i.e., (iii) such provisions are not harmful in addition to the general public, Restricted Period) that shall equal the period(s) over which such noncompliance occurred.
(ivf) such provisions are not unduly burdensome to Executive, and (v) The parties hereto intend that the consideration provided hereunder is sufficient to compensate Executive for the restrictions covenants contained in this Section 11. In consideration 10(a) be construed as a series of separate covenants, one for each defined province in each geographic area in which Executive on behalf of the foregoing and in light of Executive’s educationCompany conducts business. Except for geographic coverage, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions of this Agreement shall not be rendered void but each such separate covenant shall be deemed amended identical in terms to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction the applicable covenant contained in this Agreement is unenforceableSection 10(a). Furthermore, each of the covenants in Section 9(a) shall be deemed a separate and such restriction cannot be amended so as to make it enforceableindependent covenant, such finding shall not affect each being enforceable irrespective of the enforceability of any (with or without reformation) of the other restrictions covenants contained hereinin Section 10(a).
Appears in 3 contracts
Sources: Employment Agreement (Vanguard Natural Resources, Inc.), Employment Agreement (Vanguard Natural Resources, Inc.), Employment Agreement (Vanguard Natural Resources, Inc.)
Non-Competition and Non-Solicitation. Executive acknowledges and recognizes the highly competitive nature of the businesses of the Company and its subsidiaries and affiliates and accordingly agrees as follows:
(a) During The Executive agrees and acknowledges that, in connection with the Executive’s 's employment with the Company Employer, the Executive will be provided with access to and become familiar with confidential and proprietary information and trade secrets belonging to the Employer. Executive further acknowledges and agrees that, given the nature of this information and trade secrets, it is likely that such information and trade secrets would inevitably be used or revealed, either directly or indirectly, in any subsequent employment with a competitor of the Employer in any position comparable to the position the Executive holds with the Employer under this Agreement. Accordingly, in consideration of the Executive's employment with the Employer pursuant to this Agreement, and other good and valuable consideration, the receipt of which is hereby acknowledged, Executive agrees that, while the Executive is in the employ of the Employer and for a period equal to the greater of one the period during which the Executive receives any severance pursuant to this Agreement, if any, and Twelve (112) year from months after the date of termination of the Executive’s employment for any reason's employment, the Executive shall not, anywhere within either on the United States either Executive's own behalf or on behalf of any third party, except on behalf of the Employer or, with the prior written agreement of the Employer (not to be unreasonably withheld) or any affiliate of the Employer, directly or indirectly:
(1) Other than through the Executive's ownership of stock of the Employer, directly or indirectly, own, manage, operate, join, control, finance or participate in the ownership, management, operation, control, or financing of, or be connected as principal, agent, employee, consultanta proprietor, partner, stockholder, officer, director, shareholder, or in any other individual or representative capacity, own, manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an employment, business or other activity competitive with the Company. The post-employment restriction contained in this section shall not apply in the State of California.
(b) Executive further agrees that, during the Executive’s employment with the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reason, the Executive shall not, directly or indirectly, either as a principal, agent, employeerepresentative, consultantjoint venturer, partnerinvestor, officerlender, director, shareholderconsultant or otherwise with, or use or permit the Executive's name to be used in connection with, any business or enterprise engaged directly or indirectly in competition with the Business Conducted by the Employer (as hereinafter defined) at any time during such period, and any other business ("Other Business") engaged in by the Employer that Executive is or has been directly involved with during the Twelve (12) month period immediately preceding termination of the Executive's employment. As used in this Agreement, the term "Business Conducted by the Employer" shall mean the discovery, clinical or pre-clinical development, sale and/or manufacture of drugs or drug candidates that are known to be pharmacologically active at the delta and/or mu cell receptor(s), and the acquisition, licensing, development, manufacturing, marketing and distribution of drugs and treatments for such other conditions as the Employer is engaged in addressing during the Twelve (12) month period immediately preceding termination of the Executive's employment. The foregoing, however, shall not prevent Executive from performing services for a business engaged in the biotechnology or biopharmaceutical businesses generally which is not competitive with the Employer, or for a competitive business if such competitive business is also engaged in lines of business which do not compete with the Employer and if Executive's services are restricted to employment in such other lines of business. It is recognized by the Executive and the Employer that the Business Conducted by the Employer is and is expected to continue to be conducted throughout the United States and the world, and that more narrow geographical limitations of any nature on this non-competition covenant (and the non-solicitation provisions set forth in clauses (2) and (3) below) are therefore not appropriate. The foregoing restriction shall not be construed to prohibit the ownership by Executive as a passive investment of not more than one percent (1%) percent of any class of securities of any corporation which is engaged in any other individual of the foregoing businesses having a class of securities registered pursuant to the Securities Exchange Act of 1934, as amended.
(2) Attempt in any manner to solicit from a current client or representative capacity, on customer of the Employer at the time of the Executive’s behalf 's termination, business of the type performed by the Employer or to persuade any other persons client of the Employer to cease to do business or entity other than change the Company nature of the business or its affiliatesto reduce the amount of business which any such client has customarily done or actively contemplates doing with the Employer; or
(3) Recruit, (i) solicit or induce, or attempt to solicit or induce, directly any person or indirectlyentity which, any customer or prospective customer at the time of the Company with whom termination of the Executive has had personal contact within Executive's employment or at any time during the twelve Twelve (12) month period prior to the Executive’s such termination date, or (ii) solicit or induce, or attempt to solicit or induce, directly or indirectly any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, was an employee of the Employer or agent of, or consultant to, the Company or any of its affiliates, to terminate its, his or her relationship therewithsuch employee's employment with, or (iii) hire otherwise cease such employee's relationship with the Employer or engage its affiliates. As used in this Agreement, an affiliate of the Employer is any person who isor entity that, directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with, the Employer.
(b) The parties agree that the relevant public policy aspects of covenants not to compete have been discussed, and that every effort has been made to limit the restrictions placed upon the Executive to those that are reasonable and necessary to protect the Employer's legitimate interests. Executive acknowledges that, based upon the Executive's education, experience, and training, this non-compete provision will not prevent the Executive from earning a livelihood and supporting himself and the Executive's family during the twelve (12) month period prior to the Executive’s termination date was, an employee, agent of or consultant to the Company or any of its affiliatesrelevant time period.
(c) Executive understands that If any restriction set forth in Section 4.3 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or geographic area, it shall be interpreted to extend over the provisions maximum period of this Section 11 may limit Executive’s ability to earn a livelihood in a business similar to the business time, range of the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill activities or other business interests of the Company, (ii) such provisions contain reasonable limitations geographic areas as to time and scope of activity to which it may be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceableenforceable.
(d) If a judicial determination is made The restrictions contained in 4.3 are necessary for the protection of the business and goodwill of the Employer and/or its affiliates and are considered by a court the Executive to be reasonable for such purposes. The Executive agrees that any material breach of competent jurisdiction that Section 4.3 will cause the Employer and/or its affiliates substantial and irrevocable damage and therefore, in the event of any such breach, in addition to such other remedies which may be available, the Employer shall have the right to seek specific performance and injunctive relief.
(e) The provisions of Section 4.3 shall survive termination or expiration of this Agreement.
(f) EXECUTIVE HAS READ AND CAREFULLY CONSIDERED THE TERMS OF THIS AGREEMENT, HAS HAD THE OPPORTUNITY TO CONTACT EXECUTIVE'S OWN LEGAL COUNSEL TO ADVISE EXECUTIVE REGARDING THE TERMS OF THIS AGREEMENT, AND EXECUTIVE NOW AGREES THAT THE TERMS OF THIS AGREEMENT ARE FAIR AND REASONABLE AND ARE REASONABLY REQUIRED FOR THE PROTECTION OF THE INTEREST OF THE EMPLOYER. EXECUTIVE FURTHER AGREES THAT THE RESTRICTIONS AND COVENANTS OF THIS AGREEMENT WILL NOT IMPAIR THE ABILITY OF EXECUTIVE TO SECURE EMPLOYMENT SO AS TO BE ABLE TO MAKE A REASONABLE LIVING. The provisions of this Agreement shall be enforceable notwithstanding the existence of any claim or cause of action of Executive against the Employer whether predicated on this Agreement or otherwise. Failure of the Employer to enforce at any time or territory for any period of time any of the conditions or any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions covenants of this Agreement shall not be rendered void but construed as a waiver of such provisions or of the right of the Employer to enforce subsequent breaches of the same or other conditions and covenants, unless such permanent waiver is provided to Executive in writing and signed by the President of the Employer or, if Executive is the President of the Employer, such writing is to be signed by the officer of the Employer designated for such purpose by the Board of Directors.
(g) Notwithstanding anything herein which may be construed to the contrary, Executive shall be deemed amended free to apply as to such maximum time use and territory employ Executive's general skills, know-how and expertise, and to such maximum extent use, disclose and employ any generalized ideas, concepts, know-how, methods, techniques or skills gained or learned during the course of providing the services hereunder, so long as such court may judicially determine Executive acquires and applies this information without violating the terms of this Paragraph 4.3 or indicate the Proprietary Rights and Confidentiality Agreement executed and delivered by the Executive to the Employer in connection herewith.
(h) The term of this non-competition covenant shall be enforceable. Alternatively, if tolled during any court period of actual competition or arbitrator breach of competent jurisdiction finds that this Section 4.3 by the Executive and/or any restriction contained in period of litigation to enforce Executive's obligations under this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained hereinAgreement.
Appears in 3 contracts
Sources: Employment Agreement (Enhance Biotech Inc), Employment Agreement (Enhance Biotech Inc), Employment Agreement (Enhance Biotech Inc)
Non-Competition and Non-Solicitation. The Executive acknowledges and recognizes agrees that the nature of the Company’s confidential, proprietary, and trade secret information to which the Executive has, and will continue to have, access to derives value from the fact that it is not generally known and used by others in the highly competitive nature of industry in which the businesses Company competes. The Executive further acknowledges and agrees that, even in complete good faith, it would be impossible for the Executive to work in a similar capacity for a competitor of the Company without drawing upon and its subsidiaries and affiliates and accordingly agrees as follows:
(a) During the Executive’s utilizing information gained during employment with the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reason, the Executive shall not, anywhere within the United States either as principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, own, manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an employment, business or other activity competitive with the Company. The post-employment restriction contained in this section shall not apply in the State of California.
(b) Executive further agrees thatAccordingly, at all times during the Executive’s employment with the Company and for a period of one (1) year from the date of after termination of Executive’s such employment for any reasonCause, as that term is defined in the Executive Employment Agreement effectively dated as of ________________ (the “Employment Agreement”), the Executive shall will not, directly or indirectly, either :
(a) Engage in any business or enterprise (whether as a principal, agent, employee, consultantowner, partner, officer, director, shareholderemployee, consultant, investor, lender or otherwise, except as the holder of not more than one percent (1%) of the outstanding capital stock of a company) that directly or indirectly competes with the Company’s business or the business of any of its subsidiaries anywhere in the United States, including but not limited to any business or enterprise that develops, manufactures, markets, or in sells any other individual product or representative capacityservice that competes with any product or service developed, on the Executive’s behalf manufactured, marketed or any other persons sold, or entity other than planned to be developed, manufactured, marketed or sold, by the Company or any of its affiliates, subsidiaries while the Executive was employed by the Seller or the Company; or
(b) Either alone or in association with others (i) solicit or induceinitiate the solicitation, or attempt to solicit or induce, directly or indirectlyfacilitate any organization with which the Executive is associated in initiating the solicitation of, any customer or prospective customer employee of the Company with whom or any of its subsidiaries to leave the Executive has had personal contact within employ of the twelve (12) month period prior to the Executive’s termination date, Company or any of its subsidiaries; (ii) solicit for employment, hire or induceengage as an independent contractor, or attempt to solicit facilitate any organization with which the Executive is associated in soliciting for employment, hire or induceengagement as a independent contractor, directly or indirectly any person who is, was employed by the Company or any of its subsidiaries at any time during the twelve (12) month period prior to term of the Executive’s termination date wasemployment with the Seller or the Company or any of their respective subsidiaries (provided, an employee or agent of, or consultant tothat this clause (ii) shall not apply to any individual whose employment with the Seller, the Company or any of its affiliates, to terminate its, his subsidiaries has been terminated for a period of one year or her relationship therewith, longer); or (iii) hire initiate the solicitation of business from any customer, supplier, licensee or engage business relation of the Seller or the Company or any person who isof their respective subsidiaries, induce or during the twelve (12) month period prior attempt to the Executive’s termination date wasinduce, an employee, agent of or consultant any such entity to cease doing business with the Company or any of its affiliatessubsidiaries; or in any way interfere with the relationship between any such entity and the Company or any of its subsidiaries.
(c) Notwithstanding the foregoing, nothing contained in this Agreement shall preclude the Executive understands that the provisions of this Section 11 may limit Executive’s ability to earn a livelihood in a business similar to from managing or training mixed martial arts fighters or conducting single martial arts style (e.g., kick-boxing or boxing) promotional events even if such activities are arguably competitive with the business of the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests of the Company, (ii) such provisions contain reasonable limitations as to time and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained hereinits subsidiaries.
Appears in 3 contracts
Sources: Asset Purchase Agreement (Alliance MMA, Inc.), Asset Purchase Agreement (Alliance MMA, Inc.), Asset Purchase Agreement (Alliance MMA, Inc.)
Non-Competition and Non-Solicitation. Executive acknowledges and recognizes the highly competitive nature of the businesses of the Company and its subsidiaries and affiliates and accordingly agrees as follows:
(a) During The Executive agrees and acknowledges that, in connection with the Executive’s 's employment with the Company Employer, the Executive will be provided with access to and become familiar with confidential and proprietary information and trade secrets belonging to the Employer. Executive further acknowledges and agrees that, given the nature of this information and trade secrets, it is likely that such information and trade secrets would inevitably be used or revealed, either directly or indirectly, in any subsequent employment with a competitor of the Employer in any position comparable to the position the Executive holds with the Employer under this Agreement. Accordingly, in consideration of the Executive's employment with the Employer pursuant to this Agreement, and other good and valuable consideration, the receipt of which is hereby acknowledged, Executive agrees that, while the Executive is in the employ of the Employer and for a period equal to the greater of one the period during which the Executive receives any severance pursuant to this Agreement, if any, and Twelve (112) year from months after the date of termination of the Executive’s employment for any reason's employment, the Executive shall not, anywhere within either on the United States either Executive's own behalf or on behalf of any third party, except on behalf of the Employer or, with the prior written agreement of the Employer (not to be unreasonably withheld) or any affiliate of the Employer, directly or indirectly:
(1) Other than through the Executive's ownership of stock of the Employer, directly or indirectly, own, manage, operate, join, control, finance or participate in the ownership, management, operation, control, or financing of, or be connected as principal, agent, employee, consultanta proprietor, partner, stockholder, officer, director, shareholder, or in any other individual or representative capacity, own, manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an employment, business or other activity competitive with the Company. The post-employment restriction contained in this section shall not apply in the State of California.
(b) Executive further agrees that, during the Executive’s employment with the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reason, the Executive shall not, directly or indirectly, either as a principal, agent, employeerepresentative, consultantjoint venturer, partnerinvestor, officerlender, director, shareholderconsultant or otherwise with, or use or permit the Executive's name to be used in connection with, any business or enterprise engaged directly or indirectly in competition with the Business Conducted by the Employer (as hereinafter defined) at any time during such period, and any other business ("Other Business") engaged in by the Employer that Executive is or has been directly involved with during the Twelve (12) month period immediately preceding termination of the Executive's employment. As used in this Agreement, the term "Business Conducted by the Employer" shall mean the discovery, clinical or pre-clinical development, sale and/or manufacture of drugs or drug candidates that are known to be pharmacologically active at the delta and/or mu cell receptor(s), and the acquisition, licensing, development, manufacturing, marketing and distribution of drugs and treatments for such other conditions as the Employer is engaged in addressing during the Twelve (12) month period immediately preceding termination of the Executive's employment. The foregoing, however, shall not prevent Executive from performing services for a business engaged in the biotechnology or biopharmaceutical businesses generally which is not competitive with the Employer, or for a competitive business if such competitive business is also engaged in lines of business which do not compete with the Employer and if Executive's services are restricted to employment in such other lines of business. It is recognized by the Executive and the Employer that the Business Conducted by the Employer is and is expected to continue to be conducted throughout the United States and the world, and that more narrow geographical limitations of any nature on this non-competition covenant (and the non-solicitation provisions set forth in clauses (2) and (3) below) are therefore not appropriate. The foregoing restriction shall not be construed to prohibit the ownership by Executive as a passive investment of not more than one percent (1%) percent of any class of securities of any corporation which is engaged in any other individual of the foregoing businesses having a class of securities registered pursuant to the Securities Exchange Act of 1934, as amended.
(2) Attempt in any manner to solicit from a current client or representative capacity, on customer of the Employer at the time of the Executive’s behalf 's termination, business of the type performed by the Employer or to persuade any other persons client of the Employer to cease to do business or entity other than change the Company nature of the business or its affiliatesto reduce the amount of business which any such client has customarily done or actively contemplates doing with the Employer; or
(3) Recruit, (i) solicit or induce, or attempt to solicit or induce, directly any person or indirectlyentity which, any customer or prospective customer at the time of the Company with whom termination of the Executive has had personal contact within Executive's employment or at any time during the twelve Twelve (12) month period prior to the Executive’s such termination date, or (ii) solicit or induce, or attempt to solicit or induce, directly or indirectly any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, was an employee of the Employer or agent of, or consultant to, the Company or any of its affiliates, to terminate its, his or her relationship therewithsuch employee's employment with, or (iii) hire otherwise cease such employee's relationship with the Employer or engage its affiliates. As used in this Agreement, an affiliate of the Employer is any person who isor entity that, directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with, the Employer.
(b) The parties agree that the relevant public policy aspects of covenants not to compete have been discussed, and that every effort has been made to limit the restrictions placed upon the Executive to those that are reasonable and necessary to protect the Employer's legitimate interests. Executive acknowledges that, based upon the Executive's education, experience, and training, this non-compete provision will not prevent the Executive from earning a livelihood and supporting himself and the Executive's family during the twelve (12) month period prior to the Executive’s termination date was, an employee, agent of or consultant to the Company or any of its affiliatesrelevant time period.
(c) Executive understands that If any restriction set forth in Section 4.3 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or geographic area, it shall be interpreted to extend over the provisions maximum period of this Section 11 may limit Executive’s ability to earn a livelihood in a business similar to the business time, range of the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill activities or other business interests of the Company, (ii) such provisions contain reasonable limitations geographic areas as to time and scope of activity to which it may be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceableenforceable.
(d) If a judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction The restrictions contained in this Agreement is an unenforceable restriction against 4.3 are necessary for the Executiveprotection of the business and goodwill of the Employer and/or its affiliates and are considered by the Executive to be reasonable for such purposes. The Executive agrees that any material breach of Section 4.3 will cause the Employer and/or its affiliates substantial and irrevocable damage and therefore, in the event of any such breach, in addition to such other remedies which may be available, the Employer shall have the right to seek specific performance and injunctive relief.
(e) The provisions of Section 4.3 shall survive termination or expiration of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceableAgreement.
(f) EXECUTIVE HAS READ AND CAREFULLY CONSIDERED THE TERMS OF THIS AGREEMENT, HAS HAD THE OPPORTUNITY TO CONTACT EXECUTIVE'S OWN LEGAL COUNSEL TO ADVISE EXECUTIVE REGARDING THE TERMS OF THIS AGREEMENT, AND EXECUTIVE NOW AGREES THAT THE TERMS OF THIS AGREEMENT ARE FAIR AND REASONABLE AND ARE REASONABLY REQUIRED FOR THE PROTECTION OF THE INTEREST OF THE EMPLOYER. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.EXECUTIVE FURTHER AGREES THAT THE RESTRICTIONS AND COVENANTS OF THIS AGREEMENT WILL NOT IMPAIR THE ABILITY OF EXECUTIVE TO SECURE EMPLOYMENT SO AS TO BE ABLE TO MAKE A
Appears in 3 contracts
Sources: Employment Agreement (Enhance Biotech Inc), Employment Agreement (Enhance Biotech Inc), Employment Agreement (Enhance Biotech Inc)
Non-Competition and Non-Solicitation. Executive acknowledges and recognizes the highly competitive nature (a) As part of the businesses consideration for the compensation and benefits to be paid to Executive hereunder, to protect Confidential Information of the Company and its customers and clients that have been and will be entrusted to Executive, the business goodwill of the Company and its subsidiaries that will be developed in and affiliates through Executive and accordingly agrees the business opportunities that will be disclosed or entrusted to Executive by the Company and its subsidiaries, and as followsan additional incentive for the Company to enter into this Agreement, from the date hereof through the first anniversary of the Date of Termination (the “Restricted Period”), Executive will not (other than for the benefit of the Company pursuant to this Agreement), directly or indirectly:
(ai) During the Executive’s employment with the Company and for engage in, or carry on or assist, individually or as a period of one (1) year from the date of termination of Executive’s employment for any reason, the Executive shall not, anywhere within the United States either as principal, agent, employee, consultant, partnerowner, officer, director, employee, shareholder, consultant, contractor, partner, member, joint venturer, agent, equity owner or in any other individual or representative capacitycapacity whatsoever, own, manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an employment, (A) any business or other activity directly competitive with the business in which the Company is engaged from time to time (“Competing Business”) or (B) Business Enterprise (as defined below) that is otherwise directly competitive with the Company within the states in which the Company conducts business;
(ii) perform for any corporation, partnership, limited liability company, sole proprietorship, joint venture or other business association or entity (a “Business Enterprise”) engaged in any Competing Business any duty Executive has performed for the Company that involved Executive’s access to, or knowledge or application of, Confidential Information;
(iii) induce or attempt to induce any customer, supplier, licensee or other business relation of the Company to cease doing business with the Company or in any way interfere with the relationship between any such customer, supplier, licensee or business relation and the Company. The post-employment restriction contained ;
(iv) induce or attempt to induce any customer, supplier, licensee or other business relation of the Company with whom Executive had direct business contact in this section shall not apply dealings during the Employment Period in the State course of Californiahis employment with the Company to cease doing business with the Company or in any way interfere with the relationship between any such customer, supplier, licensee or business relation and the Company; or
(v) solicit with the purpose of hiring or hire any person who is or, within 180 days after such person ceased to be an employee of the Company, was an employee of the Company.
(b) Notwithstanding the duration of the restrictions set forth in Section 10(a) above and subject to Section 10(e) below, the restrictions set forth under Sections 10(a)(i) and (ii) shall expire after 180 days following the Date of Termination, if Executive further agrees that, during terminates this Agreement under Sections 5(c) or 4(b) hereof or the Company terminates Executive’s employment with without Cause under Sections 5(a) or 4(b).
(c) Notwithstanding the Company and for a period foregoing restrictions of one this Section 10, nothing in this Section 10 shall prohibit (1i) year from the date of termination of any investment by Executive’s employment for any reason, the Executive shall not, directly or indirectly, either as in securities which are issued by a principalBusiness Enterprise involved in or conducting a Competing Business, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, on the provided that Executive’s behalf or any other persons or entity other than the Company or its affiliates, (i) solicit or induce, or attempt to solicit or induce, directly or indirectly, any customer or prospective customer does not own more than five percent (5%) of the Company with whom the Executive has had personal contact within the twelve (12) month period prior to the Executive’s termination date, outstanding equity or voting securities of such Business Enterprise or (ii) solicit or induce, or attempt to solicit or induceExecutive, directly or indirectly indirectly, from owning any person who isinterest in any Business Enterprise which conducts a Competing Business if such interest in such Business Enterprise is owned as of the date of this Agreement and Executive does not have the right, in the case of (i) or (ii), through the ownership of a voting interest or otherwise, to direct the activities of or associated with the business of such Business Enterprise. Further, the foregoing restrictions of this Section 10 will be limited to the extent required to comply with applicable law, Rule 5.06(a) of the Texas Disciplinary Rules of Professional Conduct, or during the twelve (12) month period prior to the Executive’s termination date was, an employee other similar ethical or agent of, professional rules or consultant to, the Company or any of its affiliates, to terminate its, his or her relationship therewith, or (iii) hire or engage any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee, agent of or consultant to the Company or any of its affiliatesrestrictions.
(cd) Executive understands acknowledges that each of the covenants of Section 10(a) are in addition to, and shall not be construed as a limitation upon, any other covenant provided in Section 10(a). Executive agrees that the provisions geographic boundaries, scope of this Section 11 may limit Executive’s ability to earn a livelihood in a business similar to the business prohibited activities, and time duration of each of the Company but Executive nevertheless agrees covenants set forth in Section 10(a) are reasonable in nature and hereby acknowledges that (i) such provisions do not impose a greater restraint are no broader than is are necessary to maintain the confidentiality and the goodwill of the Company’s proprietary and Confidential Information, plans and services and to protect the goodwill or other legitimate business interests of the Company, including without limitation the goodwill developed by Executive with Company’s customers, suppliers, licensees and business relations.
(iie) such provisions contain reasonable limitations as to If, during any portion of the Restricted Period, Executive is not in compliance with the terms of Section 10(a), the Company shall be entitled to, among other remedies, compliance by Executive with the terms of Section 10(a) for an additional period of time and scope of activity to be restrained(i.e., (iii) such provisions are not harmful in addition to the general public, Restricted Period) that shall equal the period(s) over which such noncompliance occurred.
(ivf) such provisions are not unduly burdensome to Executive, and (v) The parties hereto intend that the consideration provided hereunder is sufficient to compensate Executive for the restrictions covenants contained in this Section 11. In consideration 10(a) be construed as a series of separate covenants, one for each defined province in each geographic area in which Executive on behalf of the foregoing and in light of Executive’s educationCompany conducts business. Except for geographic coverage, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions of this Agreement shall not be rendered void but each such separate covenant shall be deemed amended identical in terms to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction the applicable covenant contained in this Agreement is unenforceableSection 10(a). Furthermore, each of the covenants in Section 9(a) shall be deemed a separate and such restriction cannot be amended so as to make it enforceableindependent covenant, such finding shall not affect each being enforceable irrespective of the enforceability of any (with or without reformation) of the other restrictions covenants contained hereinin Section 10(a).
Appears in 3 contracts
Sources: Employment Agreement (Grizzly Energy, LLC), Employment Agreement (Vanguard Natural Resources, Inc.), Employment Agreement (Vanguard Natural Resources, Inc.)
Non-Competition and Non-Solicitation. Executive acknowledges and recognizes the highly competitive nature of the businesses of the Company and its subsidiaries and affiliates and accordingly agrees as follows:
(a) During Subject to Section 7(b) below, in consideration of his employment hereunder and in view of the Executive’s employment with confidential position to be held by the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reason, the Executive shall not, anywhere within the United States either as principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, own, manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an employment, business or other activity competitive with the Company. The post-employment restriction contained in this section shall not apply in the State of California.
(b) Executive further agrees thatEmployee hereunder, during the Executive’s employment with Employment Period and through the Company and for a two-year period of one (1) year from commencing on the effective date of the termination of Executive’s Employee's employment for any reasonhereunder, the Executive Employee shall not, directly or indirectly, either be employed by, or act as a principalconsultant or lender to or in association with, agentor as a director, officer, employee, consultant, partner, officerowner, directorjoint venturer, shareholdermember or otherwise of any person, firm, corporation, partnership, limited liability company, association or other entity that engages in the same business as, or in competes with, any other individual or representative capacity, on the Executive’s behalf or any other persons or entity other than business actually conducted by the Company or any or its affiliatessubsidiaries (other than beneficial ownership of up to 2% of the outstanding voting stock of a publicly traded company that is or owns such a competitor);
(b) In the event that the employee is terminated by the Company for Cause or resigns without Good Reason, (i) solicit or induceduring the Employment Period and through the one-year period commencing on the effective date of the termination of Employee's employment hereunder, or attempt to solicit or inducethe Employee shall not, directly or indirectly, be employed by, or act as a consultant or lender to or in association with, or as a director, officer, employee, partner, owner, joint venturer, member or otherwise of any customer person, firm, corporation, partnership, limited liability company, association or prospective customer other entity that engages in the same business as, or competes with, any business actually conducted by the Company or any of its subsidiaries (other than beneficial ownership of up to 2% of the outstanding voting stock of a publicly traded company that is or owns such a competitor);
(c) In consideration of his employment hereunder and in view of the confidential position to be held by the Employee hereunder, during the Employment Period and through the one-year period commencing on the effective date of the termination of Employee's employment hereunder, the Employee will not (i) induce or attempt to induce any employee of the Company with whom or any of its subsidiaries to leave the Executive has had personal contact within employ of the twelve (12) month period prior to the Executive’s termination dateCompany or such subsidiary, or in any way interfere with the relationship between the Company or any of it subsidiaries and any employee thereof, (ii) solicit or induce, or attempt to solicit or induce, hire directly or indirectly any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, is then an employee or agent of, or consultant to, of the Company or any of its affiliates, to terminate its, his or her relationship therewithsubsidiaries, or (iii) hire induce or engage attempt to induce any person who iscustomer, supplier, licensee or during the twelve (12) month period prior to the Executive’s termination date was, an employee, agent other business relation of or consultant to the Company or any of its affiliates.subsidiaries to cease doing business with the Company or such subsidiary, or in any way interfere with the relationship between any such customer, supplier, licensee or business relation and the Company or such subsidiary; provided, however, that the Employee will cease to be bound by this Section 7(c) on the six-month anniversary of the effective date of the termination of Employee's employment hereunder if his employment is terminated without Cause;
(cd) Executive understands The Employee expressly agrees that the character, duration and geographic scope of the provisions of this Section 11 may limit Executive’s ability to earn a livelihood in a business similar to the business of the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests of the Company, (ii) such provisions contain 7 are reasonable limitations as to time and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration of the foregoing and in light of Executive’s educationthe circumstances, skills as they exist on the date hereof. If any competent court shall determine that the character, duration or geographic scope of such provisions is unreasonable, then it is the intention and abilities, Executive agrees the agreement of the Employee and the Company that Executive this Agreement shall not assert that, be construed by the court in such a manner as to impose only those restrictions on the Employee's conduct that are reasonable in the light of the circumstances and it should not be considered that, any provisions that are necessary to assure to the Company the benefits of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein7.
Appears in 3 contracts
Sources: Employment Agreement (Condor Systems Inc), Employment Agreement (Condor Systems Inc), Employment Agreement (Condor Systems Inc)
Non-Competition and Non-Solicitation. Executive acknowledges and recognizes During the highly competitive nature period commencing as of the businesses date hereof and until the fifth anniversary of the Closing Date (such period, the “Non-compete Term”), each member of the Senior Management hereby agrees that such Person will not, to the extent permitted by applicable laws, directly or indirectly, engage in, or have any interest in, any Person, firm, corporation, or business (whether as an executive, officer, director, agent, security holder, consultant, investor or similar position) that engages in a Competitive Business, or otherwise interfere with the business of the Company and its subsidiaries and affiliates and accordingly agrees as followsor any Company Affiliates, including without limitation:
(a) During either on his own behalf or on behalf of any other Person, solicit business similar to the Executive’s employment with Business from any customer, supplier, distributor of, or a Person in a similar commercial relationship with, the Company and for a period or Company Affiliates; or
(b) either on his own behalf or on behalf of one (1) year from the date of termination of Executive’s employment for any reasonother Person, the Executive shall notsolicit, anywhere within the United States either employ or otherwise engage as principal, agent, an employee, consultantindependent contractor, partneror otherwise any Person who is and was, officerat any time during one year prior to such solicitation, directoremployment or engagement, shareholderan employee of the Company or Company Affiliates, or in any other individual or representative capacity, own, manage, finance, operate, control or otherwise engage or participate in manner induce any manner or fashion in an employment, business or other activity competitive with the Company. The post-employment restriction contained in this section shall not apply in the State employee of California.
(b) Executive further agrees that, during the Executive’s employment with the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reason, the Executive shall not, directly or indirectly, either as a principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, on the Executive’s behalf or any other persons or entity other than the Company or its affiliates, Company Affiliates to terminate his or her employment therewith; Notwithstanding the foregoing paragraphs of this Section:
(i) solicit or induce, or attempt to solicit or induce, directly or indirectly, any customer or prospective customer Each member of the Company Senior Management may own, as an investor, holdings as part of a portfolio investment through mutual funds or other funds pooling investments in different corporations (the stock of which is publicly traded) some of which may be engaging in a Competitive Business, in each case when any and all the investment and voting decisions with whom the Executive has had personal contact within the twelve (12) month period prior respect to the Executive’s termination date, or such voting stock are made by unaffiliated third party fund managers;
(ii) solicit or induceEach member of the Senior Management may continue his involvement as a shareholder, or attempt to solicit or induce, directly or indirectly any person who is, or during officer and/or director of the twelve (12) month period prior entities as set forth in the Disclosure Schedules to the Executive’s termination date wasNotes Purchase Agreement, an employee or agent of, or consultant to, which represents the Company or any of its affiliates, to terminate its, his or her relationship therewith, or pre-existing relationships disclosed by the Company; and
(iii) hire Each member of the Senior Management may serve as a shareholder, director or engage officer of any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee, agent of or consultant to the Company or any of its affiliates.
(c) Executive understands entity that the provisions of this Section 11 may limit Executive’s ability to earn a livelihood is not engaged in a business similar to the business of the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests of the Company, (ii) such provisions contain reasonable limitations as to time and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained hereinCompetitive Business.
Appears in 3 contracts
Sources: Investor Rights Agreement (Citadel L P), Investor Rights Agreement (Fushi International Inc), Investor Rights Agreement (Fushi Copperweld, Inc.)
Non-Competition and Non-Solicitation. Executive acknowledges and recognizes the highly competitive nature of the businesses of the Company and its subsidiaries and affiliates and accordingly agrees as follows:
(ai) During the term of the Executive’s employment with the Company and for a period of one five years thereafter (1) year from or, if the date Executive is receiving severance payments under Section 4(c), during the Severance Period and for a period of termination of Executive’s employment for any reasonfive years thereafter), the Executive shall will not, anywhere within the United States either as principaldirectly or indirectly, agent, employee, consultant, partner, officer, director, shareholder, or (A) engage in any other individual Competing Business or representative capacity, (B) own, managebe employed by, financeprovide financing to, operate, control consult with or otherwise engage render services to any person or participate entity who is engaged in any manner or fashion Competing Business; provided, that the Executive will not be in an employment, business or other activity competitive with violation of the Company. The post-employment restriction contained in this section shall foregoing solely by reason of his ownership of not apply in more than 2% of the State outstanding shares of Californiathe stock of any corporation which is listed on a national securities exchange.
(bii) Executive further agrees that, during During the term of the Executive’s employment with the Company and for a period of one five years thereafter (1) year from or, if the date Executive is receiving severance payments under Section 4(c), during the Severance Period and for a period of termination of Executive’s employment for any reasonfive years thereafter), the Executive shall not, directly or indirectly, either as a principal, agent, employee, consultant, partner, officer, director, shareholderwill not (A) solicit the trade of, or in trade with, any other individual customer or representative capacitysupplier of the Company such that any such customer or supplier reduces the amount of business which it does (or, on the Executive’s behalf or any other persons or entity other than but for such solicitation, would do) with the Company or its affiliatessubsidiaries or (B) solicit or induce any employee, distributor, sales representative, agent or contractor of the Company to terminate his or its employment or other relationship with the Company or its subsidiaries.
(iii) If the Executive is in breach of any of the provisions of clauses (i) solicit or induce, or attempt to solicit or induce, directly or indirectly, any customer or prospective customer of the Company with whom the Executive has had personal contact within the twelve (12) month period prior to the Executive’s termination date, or (ii) solicit or induceabove, or attempt to solicit or induce, directly or indirectly any person who is, or then the time periods set forth in such clauses will be extended by the length of time during which the twelve (12) month period prior to the Executive’s termination date was, an employee or agent of, or consultant to, the Company or Executive is in breach of any of its affiliates, to terminate its, his or her relationship therewith, or such provisions.
(iiiiv) hire or engage any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee, agent of or consultant The Executive represents and warrants to the Company or any of its affiliates.
(c) Executive understands that his experience and capabilities are such that the provisions of this Section 11 may limit Executive’s ability to earn a subsection (c) will not prevent him from earning an adequate livelihood in a business similar to the business of the Company but Executive nevertheless agrees for himself and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests of the Company, (ii) such provisions contain reasonable limitations as to time and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained hereinhis family.
Appears in 3 contracts
Sources: Employment Agreement (Nascent Wine Company, Inc.), Employment Agreement (Nascent Wine Company, Inc.), Employment Agreement (Nascent Wine Company, Inc.)
Non-Competition and Non-Solicitation. Executive acknowledges and recognizes the highly competitive nature of the businesses of the Company and its subsidiaries and affiliates and accordingly agrees as follows:
(a) During Subject to Section 7(b) below, in consideration of his employment hereunder and in view of the Executive’s employment with confidential position to be held by the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reason, the Executive shall not, anywhere within the United States either as principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, own, manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an employment, business or other activity competitive with the Company. The post-employment restriction contained in this section shall not apply in the State of California.
(b) Executive further agrees thatEmployee hereunder, during the Executive’s employment with Employment Period and through the Company and for a two-year period of one (1) year from commencing on the effective date of the termination of Executive’s Employee's employment for any reasonhereunder, the Executive Employee shall not, directly or indirectly, either be employed by, or act as a principalconsultant or lender to or in association with, agentor as a director, officer, employee, consultant, partner, officerowner, directorjoint venturer, shareholdermember or otherwise of any person, firm, corporation, partnership, limited liability company, association or other entity that engages in the same business as, or in competes with, any other individual or representative capacity, on the Executive’s behalf or any other persons or entity other than business actually conducted by the Company or any or its affiliatessubsidiaries (other than beneficial ownership of up to 2% of the outstanding voting stock of a publicly traded company that is or owns such a competitor);
(b) In the event that the employee is terminated by the Company for Cause or resigns without Good Reason, (i) solicit or induceduring the Employment Period and through the one-year period commencing on the effective date of the termination of Employee's employment hereunder, or attempt to solicit or inducethe Employee shall not, directly or indirectly, be employed by, or act as a consultant or lender to or in association with, or as a director, officer, employee, partner, owner, joint venturer, member or otherwise of any customer person, firm, corporation, partnership, limited liability company, association or prospective customer other entity that engages in the same business as, or competes with, any business actually conducted by the Company or any of its subsidiaries (other than beneficial ownership of up to 2% of the outstanding voting stock of a publicly traded company that is or owns such a competitor);
(c) In consideration of his employment hereunder and in view of the confidential position to be held by the Employee hereunder, during the Employment Period and through the one-year period commencing on the effective date of the termination of Employee's employment hereunder, the Employee will not (i) induce or attempt to induce any employee of the Company with whom or any of its subsidiaries to leave the Executive has had personal contact within employ of the twelve (12) month period prior to the Executive’s termination dateCompany or such subsidiary, or in any way interfere with the relationship between the Company or any of it subsidiaries and any employee thereof, (ii) solicit or induce, or attempt to solicit or induce, hire directly or indirectly any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, is then an employee or agent of, or consultant to, of the Company or any of its affiliates, to terminate its, his or her relationship therewithsubsidiaries, or (iii) hire induce or engage attempt to induce any person who iscustomer, supplier, licensee or during the twelve (12) month period prior to the Executive’s termination date was, an employee, agent other business relation of or consultant to the Company or any of its affiliates.subsidiaries to cease doing business with the Company or such subsidiary, or in any way interfere with the relationship between any such customer, supplier, licensee or business relation and the Company or such subsidiary; provided, however, that the Employee will cease to be bound by this Section 7(c) on the six-month anniversary of the effective date of the termination of Employee's employment hereunder if his employment is terminated without Cause;
(cd) Executive understands The Employee expressly agrees that the character, duration and geographic scope of the provisions of this Section 11 may limit Executive’s ability to earn a livelihood in a business similar to the business of the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests of the Company, (ii) such provisions contain 7 are reasonable limitations as to time and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration of the foregoing and in light of Executive’s educationthe circumstances as they exist on the date hereof. If any competent court shall determine that the character, skills duration or geographic scope of such provisions is unreasonable, then it is the intention and abilities, Executive agrees the agreement of the Employee and the Company that Executive this Agreement shall not assert that, be construed by the court in such a manner as to impose only those restrictions on the Employee's conduct that are reasonable in the light of the circumstances and it should not be considered that, any provisions that are necessary to assure to the Company the benefits of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein7.
Appears in 3 contracts
Sources: Employment Agreement (Condor Systems Inc), Employment Agreement (Condor Systems Inc), Employment Agreement (Condor Systems Inc)
Non-Competition and Non-Solicitation. Executive acknowledges and recognizes While the highly competitive nature of the businesses of the Company and its subsidiaries and affiliates and accordingly agrees as follows:
(a) During the Executive’s employment with Employee is employed by the Company and for a period of one (1) year from after the date termination or cessation of termination of Executive’s such employment for any reason, the Executive shall notEmployee will not directly or indirectly:
(i) in the geographical areas that the Company does business or has done business at the time of the Employee’s termination, anywhere within the United States either engage or assist others in engaging in any business or enterprise (whether as principal, agent, employee, consultantowner, partner, officer, director, shareholderemployee, consultant, investor, lender or in any other individual or representative capacityotherwise, own, manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an employment, business or other activity except as the holder of not more than 1% of the outstanding stock of a publicly-held company) that is competitive with the business of the Company while the Employee was employed by the Company. The post-employment restriction contained in this section shall , including but not apply in the State of California.limited to any business or enterprise that develops, manufactures, markets, licenses, sells or provides any product or service that competes with any product or service developed, manufactured, marketed, licensed, sold or provided, or planned to be developed, manufactured, marketed, licensed, sold or provided (“Competing Business”); or
(bii) Executive further agrees thateither alone or in association with others, solicit, divert or take away, or attempt to divert or take away, the business or patronage of any of the actual or prospective clients, customers, accounts or business partners of the Company which were contacted, solicited, or served by the Company during the ExecutiveEmployee’s employment with the Company; or
(iii) either alone or in association with others (i) solicit, induce or attempt to induce, any employee or independent contractor of the Company, with whom the Employee had prior contact while employed with the Company, to terminate his or her employment or other engagement with the Company, or (ii) hire or recruit, or attempt to hire or recruit, or engage or attempt to engage as an independent contractor, any person who was employed or otherwise engaged by the Company and at any time during the term of the Employee’s employment with the Company; provided, that this clause (ii) shall not apply to the recruitment or hiring or other engagement of any individual whose employment or other engagement with the Company has been terminated for a period of one six months or longer or as a result of a general solicitation to which such employee or contractor responded. Notwithstanding the foregoing, Section 1(a) shall not preclude the Employee from becoming an employee of, or from otherwise providing services to, a separate division or operating unit of a multi-divisional business or enterprise (1a “Division”) year from if: (i) the date of termination of Executive’s employment for any reasonDivision by which the Employee is employed, or to which the Executive shall notEmployee provides services, is not engaged in a Competing Business, (ii) the Employee does not provide services, directly or indirectly, either as a principal, agent, employee, consultant, partner, officer, director, shareholder, or in to any other individual division or representative capacityoperating unit of such multi-divisional business or enterprise which is engaged in a Competing Business (individually, on a “Competitive Division” and collectively, the Executive’s behalf or any other persons or entity other “Competitive Divisions”) and (iii) the Competitive Divisions, in the aggregate, accounted for less than the Company or its affiliates, (i) solicit or induce, or attempt to solicit or induce, directly or indirectly, any customer or prospective customer one-third of the Company with whom multi-divisional business or enterprises’ consolidated revenues for the Executive has had personal contact within the twelve (12) month period fiscal year, and each subsequent quarterly period, prior to the ExecutiveEmployee’s termination date, or (ii) solicit or induce, or attempt to solicit or induce, directly or indirectly any person who is, or during commencement of employment with the twelve (12) month period prior to the Executive’s termination date was, an employee or agent of, or consultant to, the Company or any of its affiliates, to terminate its, his or her relationship therewith, or (iii) hire or engage any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee, agent of or consultant to the Company or any of its affiliatesDivision.
(c) Executive understands that the provisions of this Section 11 may limit Executive’s ability to earn a livelihood in a business similar to the business of the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests of the Company, (ii) such provisions contain reasonable limitations as to time and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.
Appears in 3 contracts
Sources: Employment Agreement, Employment Agreement (Editas Medicine, Inc.), Employment Agreement (Editas Medicine, Inc.)
Non-Competition and Non-Solicitation. Executive The Selling Member acknowledges and recognizes agrees that the nature of the Company’s confidential, proprietary, and trade secret information to which the Selling Member has, and will continue to have, access to derives value from the fact that it is not generally known and used by others in the highly competitive nature of industry in which the businesses Company competes. The Selling Member further acknowledges and agrees that, even in complete good faith, it would be impossible for the Selling Member to work in a similar capacity for a competitor of the Company without drawing upon and its subsidiaries and affiliates and accordingly agrees as follows:
(a) During utilizing information gained during employment with the ExecutiveCompany. Accordingly, at all times during the Selling Member’s employment with the Company and for a period of one three (13) year from the date of termination of Executive’s employment years after termination, for any reason, of such employment, the Executive shall Selling Member will not, anywhere within the United States either directly or indirectly:
(a) Engage in any business or enterprise (whether as principal, agent, employee, consultantowner, partner, officer, director, shareholderemployee, consultant, investor, lender or in any other individual otherwise, except as the holder of not more than one percent (1%) of the outstanding capital stock of a company) that directly or representative capacity, own, manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an employment, business or other activity competitive indirectly competes with the Company. The post-employment restriction contained in this section shall not apply ’s business or the business of any of its subsidiaries anywhere in the State United States, including but not limited to any business or enterprise that develops, manufactures, markets, or sells any product or service that competes with any product or service developed, manufactured, marketed or sold, or planned to be developed, manufactured, marketed or sold, by the Company or any of California.its subsidiaries while the Selling Member was employed by the Seller or the Company; or
(b) Executive further agrees thatEither alone or in association with others (i) solicit, or facilitate any organization with which the Selling Member is associated in soliciting, any employee of the Company or any of its subsidiaries to leave the employ of the Company or any of its subsidiaries; (ii) solicit for employment, hire or engage as an independent contractor, or facilitate any organization with which the Selling Member is associated in soliciting for employment, hire or engagement as a independent contractor, any person who was employed by the Company or any of its subsidiaries at any time during the Executiveterm of the Selling Member’s employment with the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reason, the Executive shall not, directly Seller or indirectly, either as a principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, on the Executive’s behalf or any other persons or entity other than the Company or its affiliatesany of their respective subsidiaries (provided, (i) solicit or induce, or attempt to solicit or induce, directly or indirectly, any customer or prospective customer of the Company with whom the Executive has had personal contact within the twelve (12) month period prior to the Executive’s termination date, or that this clause (ii) solicit or induce, or attempt shall not apply to solicit or induce, directly or indirectly any person who is, or during individual whose employment with the twelve (12) month period prior to the Executive’s termination date was, an employee or agent of, or consultant toSeller, the Company or any of its affiliates, to terminate its, his subsidiaries has been terminated for a period of one year or her relationship therewith, longer); or (iii) hire solicit business from or engage perform services for any person who iscustomer, supplier, licensee or during business relation of the twelve (12) month period prior Seller or the Company or any of their respective subsidiaries, induce or attempt to the Executive’s termination date wasinduce, an employee, agent of or consultant any such entity to cease doing business with the Company or any of its affiliatessubsidiaries; or in any way interfere with the relationship between any such entity and the Company or any of its subsidiaries.
(c) Executive understands that Notwithstanding the provisions of this Section 11 may limit Executive’s ability to earn a livelihood in a business similar to the business of the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests of the Companyforegoing, (ii) such provisions contain reasonable limitations as to time and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction nothing contained in this Agreement is an unenforceable restriction against shall preclude the Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained hereinSelling Member from training mixed martial arts fighters.
Appears in 3 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Alliance MMA, Inc.), Asset Purchase Agreement (Alliance MMA, Inc.)
Non-Competition and Non-Solicitation. Executive acknowledges and recognizes the highly competitive nature The primary service area of the businesses Company’s business in which Executive will actively participate extends separately to the Restricted Area. Therefore, as an essential ingredient of and in consideration of this Agreement and Executive’s employment with the Company and its subsidiaries and affiliates and accordingly agrees as follows:
(a) During the Company, Executive shall not, during Executive’s employment with the Company and for a period of one (1) year from or during the date of Restricted Period, whether the termination of Executive’s employment for occurs during the Employment Period or thereafter, directly or indirectly do any reason, of the Executive shall not, anywhere within following (all of which are collectively referred to in this Agreement as the United States either as principal, agent, employee, consultant, partner, officer, director, shareholder, “Restrictive Covenant”):
(i) Engage or in any other individual or representative capacityinvest in, own, manage, operate, finance, operatecontrol, participate in the ownership, management, operation or control of, be employed by, associated with or otherwise engage or participate in any manner connected with, serve as a director, officer or fashion consultant to, lend Executive’s name or any similar name to, lend Executive’s credit to or render services or advice to, any person, firm, partnership, corporation or trust that owns, operates or is in the process of forming a Competitor with an employmentoffice located, business or other activity competitive to be located at an address identified in a filing with any regulatory authority, within the Company. The post-employment restriction contained in this section Restricted Area; provided, however, that the ownership by Executive of shares of the capital stock of any institution, which shares are listed on a securities exchange and which do not represent more than one percent (1%) of the institution’s outstanding capital stock, shall not apply in the State violate any terms of California.this Agreement;
(bA) Executive further agrees that, during the Executive’s employment with the Company and for a period Induce or attempt to induce any officer-level employee of one (1) year from the date of termination of Executive’s employment for any reason, the Executive shall not, directly or indirectly, either as a principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, on the Executive’s behalf or any other persons or entity other than the Company or its affiliates, Affiliates to leave the employ of the Company or its Affiliates; (iB) solicit in any way interfere with the relationship between the Company or induce, its Affiliates and any management-level employee of the Company or its Affiliates; or (C) induce or attempt to solicit induce any customer, supplier, licensee or induceother business relation of the Company or its Affiliates to cease doing business with the Company or its Affiliates or in any way interfere with the relationship between the Company or its Affiliates and their respective customers, directly suppliers, licensees or indirectly, other business relations.
(iii) Solicit the business of any customer person or prospective entity known to Executive to be a customer of the Company with whom the Executive has had personal contact within the twelve (12) month period prior to the or its Affiliates, where Executive’s termination date, or (ii) solicit or induce, or attempt to solicit or induce, directly or indirectly any person who isreporting to Executive, had accessed Confidential Information of, had an ongoing business relationship with or during had made Substantial Business Efforts with respect to, such person or entity, with respect to products, activities or services that compete in whole or in part with the twelve products, activities or services of the Company or its Affiliates.
(12iv) month period prior to Serve as the Executive’s termination date wasagent, an employee broker or agent representative of, or consultant tootherwise assist, any person or entity in obtaining services or products from any Competitor within the Restricted Area, with respect to products, activities or services that compete in whole or in part with the products, activities or services of the Company or any of its affiliates, to terminate its, his or her relationship therewith, or (iii) hire or engage any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee, agent of or consultant to the Company or any of its affiliatesAffiliates.
(cv) Accept employment, provide services to, or act in any other such capacity for or with any Competitor, if in such employment or capacity Executive understands that the provisions would, because of this Section 11 may limit Executive’s ability to earn a livelihood in a business similar to the business of the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests knowledge of the Company’s Confidential Information or trade secrets, (ii) such provisions contain reasonable limitations as to time and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained inevitably use and/or disclose Company’s Confidential Information or trade secrets in this Section 11. In consideration of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable work or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to service for such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained hereinCompetitor.
Appears in 3 contracts
Sources: Transitional Employment Agreement (West Bancorporation Inc), Employment Agreement (West Bancorporation Inc), Employment Agreement (West Bancorporation Inc)
Non-Competition and Non-Solicitation. Executive acknowledges and recognizes the highly competitive nature of the businesses of the Company and its subsidiaries and affiliates and accordingly agrees as follows:
(a) During the Executive’s 's employment with the Company and for a period of one (1) year from thereafter equal to the date of termination of Executive’s employment for any reasonSeverance Period, the Executive shall not, anywhere within for himself or herself or on behalf of or in conjunction with any other person, persons, company, firm, partnership, corporation, business, group or other entity (each, a "Person"), work in the United States either as principal, agent, employee, consultant, partner, officer, director, shareholderprincipal line of business engaged in, or planned to be engaged in, by the Company and its affiliates at the Date of Termination within any state where the Company or its affiliates are doing business or have plans for commencing business as of the Date of Termination. The Executive's passive ownership of less than five percent (5%) of the securities of a public company shall not be treated as an action in competition with the Company and its affiliates.
(a) Executive hereby acknowledges and agrees that his employment with the Company places him in a position of trust and confidence with respect to the business operations, customers, prospects and personnel of the Company and its affiliates. He agrees that, due to his position and knowledge, his engaging in any other individual or representative capacity, own, manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an employment, business or other activity competitive with the Company. The post-employment restriction contained in this section shall not apply that competes in the State principal line of Californiabusiness as the Company will cause the Company and its affiliates significant and irreparable harm.
(b) In consideration of the compensation and benefits extended to him under this Agreement, Executive further agrees that, during the term of Executive’s 's employment with by the Company and for a period of one (1) year from thereafter equal to the date of termination of Executive’s employment for any reasonSeverance Period, the Executive shall not, for any reason whatsoever, directly or indirectly, either as a principalfor himself or herself or on behalf of or in conjunction with any other Person with whom the Executive works or is affiliated:
(i) solicit and/or hire any Person who is on the Date of Termination, agentor has been within six (6) months prior to the Date of Termination, employeean employee of the Company or its affiliates;
(ii) solicit, consultantinduce or attempt to induce or hire any Person who is, at the Date of Termination, or has been within six (6) months prior to the Date of Termination, an actual customer, client, business partner, officeror a prospective customer, directorclient, shareholderbusiness partner of the Company or its affiliates, for the purpose or in any other individual with the intent of (A) inducing or representative capacity, on the Executive’s behalf or any other persons or entity other than attempting to induce such Person to cease doing business with the Company or its affiliates, (iB) solicit enticing or induceattempting to entice such Person to do business with Executive or any affiliate of Executive, or (C) in any way interfering with the relationship between such Person and the Company or its affiliates; or
(iii) solicit, induce or attempt to solicit induce any Person who is or inducethat is, directly or indirectly, any customer or prospective customer at the time of the Company with whom the Executive Date of Termination, or has had personal contact been within the twelve six (126) month period months prior to the Executive’s termination dateDate of Termination, a supplier, licensee or (ii) solicit or induce, or attempt to solicit or induce, directly or indirectly any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee or agent consultant of, or consultant to, the Company provider of goods or any of its affiliates, to terminate its, his or her relationship therewith, or (iii) hire or engage any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee, agent of or consultant services to the Company or its affiliates, for the purpose or with the intent of (A) inducing or attempting to induce such Person to cease doing business with the Company or its affiliates or (B) in any of way interfering with the relationship between such Person and the Company or its affiliates.
(c) In the event the Severance Period is less than 12 months, or in the event there is no Severance Period, the Company shall have the right, but not the obligation, to extend the period of time during which the restrictive covenants set forth in clauses (a) and (b) above shall remain in effect for up to 24 additional months following the Severance Period or the Date of Termination, as the case may be, subject to paying consideration to the Executive understands for such extended period in cash in an amount equal to the Executive's Base Salary in effect on the Date of Termination, payable monthly in arrears. The Company shall provide written notice to the Executive at least 60 days prior to the second anniversary of the Date of Termination of the Company's election to extend the restrictive covenants as provided herein.
(d) Because of the difficulty of measuring economic losses to the Company as a result of a breach of the foregoing covenants, and because of the immediate and irreparable damage that could be caused to the Company and its affiliates for which it would have no other adequate remedy, Executive agrees that the provisions of foregoing covenants in this Section 11 may limit Executive’s ability 9, in addition to earn a livelihood and not in a business similar limitation of any other rights, remedies or damages available to the Company at law, in equity or under this Agreement, shall be enforced by the Company in the event of the breach or threatened breach by Executive, by injunctions and/or restraining orders.
(e) It is agreed by the parties that the covenants contained in this Section 9 impose a fair and reasonable restraint on Executive in light of the activities and business of the Company and its affiliates on the date of the execution of this Agreement and the current plans of the Company and its affiliates; but it is also the intent of the Company and Executive nevertheless agrees that such covenants be construed and hereby enforced in accordance with the changing activities, business and locations of the Company and its affiliates throughout the term of these covenants. Executive also acknowledges that this restraint will not prevent him from earning a living in his chosen field of work.
(if) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests of the Company, (ii) such provisions contain reasonable limitations as to time and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained The covenants in this Section 11. In consideration 9 are severable and separate, and the unenforceability of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive any specific covenant shall not assert that, and it should not be considered that, any affect the provisions of this Section 11 otherwise are voidany other covenant. Moreover, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a in the event any court of competent jurisdiction shall determine that the scope, time or territory or territorial restrictions set forth herein are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent that such court deems reasonable, and the Agreement shall thereby be reformed to reflect the same.
(g) All of the covenants in this Section 9 shall be construed as an agreement independent of any other restriction contained provision in this Agreement is an unenforceable restriction Agreement, and the existence of any claim or cause of action of Executive against the Executive, Company whether predicated on this Agreement or otherwise shall not constitute a defense to the provisions enforcement by the Company of such covenants. It is specifically agreed that the duration of the period during which the agreements and covenants of Executive made in this Section 9 shall be effective shall be computed by excluding from such computation any time during which Executive is in violation of any provision of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. AlternativelySection 9.
(h) Notwithstanding any of the foregoing, if any court applicable law, judicial ruling or arbitrator order shall reduce the time period during which Executive shall be prohibited from engaging in any competitive activity described in Section 9 hereof, the period of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot time for which Executive shall be amended so as prohibited pursuant to make it enforceable, such finding Section 9 hereof shall not affect be the enforceability of any of the other restrictions contained hereinmaximum time permitted by law.
Appears in 3 contracts
Sources: Employment Agreement (KMG America CORP), Employment Agreement (KMG America CORP), Employment Agreement (KMG America CORP)
Non-Competition and Non-Solicitation. Executive acknowledges While employed by the Company, the Employee shall devote all of his business time, attention, skill and recognizes effort to the highly competitive nature faithful performance of his duties for the businesses of the Company and its subsidiaries and affiliates and accordingly agrees as follows:
(a) During the Executive’s employment with the Company and for Company. For a period of one (1) year from after the date termination or cessation of termination of Executive’s Employee's employment for any reason, the Executive shall Employee will not, anywhere within in the United States either geographical areas that the Company or any of its subsidiaries does business or has done business at the time of Employee's departure, directly or indirectly:
(a) Engage or assist others in engaging in any business or enterprise (whether as principal, agent, employee, consultantowner, partner, officer, director, shareholderemployee, consultant, investor, lender or in any other individual or representative capacityotherwise, own, manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an employment, business or other activity except as the holder of not more than 1% of the outstanding stock of a publicly-held company) that is competitive with the Company. The post-employment restriction contained in this section shall 's business, including but not apply in the State of California.
(b) Executive further agrees thatlimited to any business or enterprise that develops, during the Executive’s employment with the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reasonmanufactures, the Executive shall not, directly or indirectly, either as a principal, agent, employee, consultant, partner, officer, director, shareholdermarkets, or in sells any other individual product or representative capacityservice that competes with any product or service developed, on the Executive’s behalf manufactured, marketed or any other persons or entity other than the Company or its affiliates, (i) solicit or inducesold, or attempt planned to solicit be developed, manufactured, marketed or inducesold, directly or indirectly, any customer or prospective customer of the Company with whom the Executive has had personal contact within the twelve (12) month period prior to the Executive’s termination date, or (ii) solicit or induce, or attempt to solicit or induce, directly or indirectly any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee or agent of, or consultant to, by the Company or any of its affiliatessubsidiaries while the Employee was employed by the Company; or
(b) Either alone or in association with others (i) induce or attempt to induce, any employee or independent contractor of the Company to terminate its, his leave employment or her relationship therewithother engagement with the Company, or (iiiii) hire hire, solicit or engage recruit or attempt to hire, solicit or recruit for employment engagement as an independent contractor, or any person who is, or was employed by the Company at any time during the twelve (12) month period prior term of the Employee's employment with the Company. This restriction shall not apply to the Executive’s termination date was, an employee, agent hire of or consultant to any individual who has not been employed by the Company for a period of six (6) months or any of its affiliates.more; or
(c) Executive understands that the provisions of this Section 11 may limit Executive’s ability Either alone or in association with others, solicit, divert or take away, or attempt to earn a livelihood in a business similar to solicit, divert or take away, the business of the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests of the Company, (ii) such provisions contain reasonable limitations as to time and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability patronage of any of the other restrictions contained hereinclients, customers, business partners, investors or accounts of the Company which were contacted, solicited or served by the Company at any time during the term of the Employee's employment with the Company and regarding which the Employee had either: (i) substantive contact; or (ii) access to confidential information.
Appears in 3 contracts
Sources: Non Disclosure, Non Solicitation, Non Competition and Invention Assignment Agreement (Medical Device Manufacturing, Inc.), Non Disclosure, Non Solicitation, Non Competition and Invention Assignment Agreement (Medical Device Manufacturing, Inc.), Non Disclosure, Non Solicitation, Non Competition and Invention Assignment Agreement (Medical Device Manufacturing, Inc.)
Non-Competition and Non-Solicitation. Executive acknowledges and recognizes the highly competitive nature of the businesses of the Company and its subsidiaries and affiliates and accordingly agrees as follows:
(a) During Unless the Executive’s employment with following covenants are waived in whole or in part by the Company and in accordance with Section 7, for a period of one (1) year from after the effective date of termination of Executive’s employment for any reason, the Executive shall not, anywhere within the United States either as principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, own, manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an employment, business or other activity competitive with the Company. The post-employment restriction contained in this section shall not apply in the State of California.
(b) Executive further agrees that, during the Executive’s your employment with the Company and for a period (the “Termination Date) (irrespective of one (1) year from the date of termination of Executive’s employment for any reasonreason for, the Executive or manner of, such termination), you shall not, directly or indirectly:
(i) solicit, either recruit or hire, or in any manner assist in the soliciting, recruitment or hiring of (A) any of the employees of PAETEC Holding or any Subsidiary or any individuals who were employed by PAETEC Holding or any Subsidiary within 12 months before the Termination Date, or (B) any of the sales agents or independent sales agents of PAETEC Holding or any Subsidiary, or any individual or Person that was a sales agent or independent sales agent of PAETEC Holding or any Subsidiary within 12 months before the Termination Date;
(ii) individually or as a principal, agent, employee, consultant, partner, an officer, director, shareholderemployee, shareholder or equity owner (other than as a shareholder or other equity owner of less than 1% of the outstanding capital stock of a publicly traded company), consultant, contractor, partner, joint venturer, agent, manager, or other representative, work for, become employed by or perform services for any corporation or other Person that is competitive with the Company’s Business or that would divert business from PAETEC Holding or any Subsidiary in any other individual or representative capacity, on the Executive’s behalf geographical area in which PAETEC Holding or any Subsidiary is then conducting operations (such competitive corporation or other persons Person, an “Other Enterprise”), provided that you shall not be restricted from working for, becoming employed by or entity other than performing services for any Other Enterprise, even if another division, subsidiary or Affiliate of such Other Enterprise is competitive with the Company’s Business or would divert business from PAETEC Holding or any Subsidiary, so long as you do not perform any services for such division, subsidiary or Affiliate, and provided, further, that you shall not be restricted under this Section 3(b)(ii) from competing with any business of PAETEC Holding or any Subsidiary if you did not provide any services to such business of PAETEC Holding or such Subsidiary or did not possess or have knowledge of Company or its affiliates, Confidential Information within the 24-month period before the Termination Date;
(iiii) solicit on behalf of any Other Enterprise, or induceaccept on behalf of any Other Enterprise, business from any individual, business or organization that was known by you to be a customer of PAETEC Holding or any Subsidiary, or identified by PAETEC Holding or any Subsidiary as a prospective customer of PAETEC Holding or such Subsidiary, in each case as of or within 12 months before the Termination Date; or
(iv) take any action to influence or attempt to solicit influence customers, prospective customers, vendors or induce, directly suppliers of PAETEC Holding or indirectly, any customer Subsidiary known to you to divert their business to any Other Enterprise or prospective customer of the Company with whom the Executive has had personal contact within the twelve (12) month period prior to the Executive’s termination datetake any action which is intended, or (ii) solicit would reasonably be expected, to affect adversely PAETEC Holding or induceany Subsidiary, the Company’s Business, the reputation of PAETEC Holding or any Subsidiary, or attempt to solicit or induce, directly or indirectly any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee or agent of, or consultant to, the Company relationship of PAETEC Holding or any of Subsidiary with its affiliatescustomers, to terminate itsprospective customers, his vendors or her relationship therewith, or (iii) hire or engage any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee, agent of or consultant to the Company or any of its affiliatessuppliers.
(cb) Executive understands The parties agree that the provisions of this Section 11 may limit Executive’s ability to earn a livelihood in a business similar to the business of the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests of the Company, (ii) such provisions contain reasonable limitations as to time and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by if a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained term of this Section 3 is for any reason unenforceable because it is overly broad in this Agreement is unenforceablescope or duration, and such restriction cannot term shall be amended so as modified to the minimum extent necessary to make it enforceable. Further, such finding the covenants in this Section 3 shall not affect be deemed to be a series of separate covenants and agreements, one for each and every region of each state, territory, possession or other political division of the enforceability United States of America and each other political division worldwide. If, in any judicial proceeding, a court of competent jurisdiction shall refuse to enforce any of the separate covenants deemed included herein, then, at the option of the Company, wholly unenforceable covenants shall be deemed eliminated from this Section 3 for the purpose of such proceeding to the extent necessary to permit the remaining separate covenants to be enforced in such proceeding. In addition, if a court or other restrictions enforcement body finds that any provision of this Section 3 may not be enforced as written because of a public policy, you agree that such court or enforcement body shall modify and construe such provision to permit its enforcement to the maximum extent permitted by law.
(c) You acknowledge the highly competitive nature of the industry in which the Company is involved and further as follows: (i) your services to the Company are special and unique; (ii) your work for the Company shall allow you access to Company Confidential Information, including trade secrets, and customers; (iii) the Company’s business is conducted throughout the United States and over the Internet and World Wide Web, enabling the Company and you to regularly provide services to customers nationwide; (iv) PAETEC Holding would not have entered into this Agreement but for the covenants and agreements contained hereinin this Section 3; and (v) the agreements and covenants contained in this Section 3 are reasonable and are necessary and essential to protect the business, Company Confidential Information, including trade secrets, and goodwill of the Company. You further acknowledge that this Agreement does not restrict your ability to be gainfully employed, and you acknowledge that the geographic boundaries, scope of prohibited activities, and duration of the covenants set forth in this Section 3 are reasonable in nature and no broader than are necessary to protect the legitimate business interests of the Company. You agree not to raise any objection to the reasonableness of this Section 3 in any action or proceeding to enforce the terms of this Agreement.
Appears in 3 contracts
Sources: Executive Confidentiality, Non Solicitation, Non Competition and Severance Agreement (PAETEC Holding Corp.), Executive Confidentiality, Non Solicitation, Non Competition and Severance Agreement (PAETEC Holding Corp.), Executive Confidentiality, Non Solicitation, Non Competition and Severance Agreement (PAETEC Holding Corp.)
Non-Competition and Non-Solicitation. Executive acknowledges and recognizes During the highly competitive nature Term of the businesses Agreement and for a period of 12 months after the Executive’s Termination Date, the Executive covenants and agrees that he shall not, without the express written consent of the Company and its subsidiaries and affiliates and accordingly agrees as followsCompany:
(a) During be employed by, serve as a consultant to, or otherwise assist or directly or indirectly provide services to a Competitor (defined below) if: (i) the Executive’s employment with employment, consulting, assistance or services that the Executive is to provide to the Competitor are the same as, or substantially similar to, any of the services that the Executive provided to the Company or its affiliates and for a period of one are or will be within the Restricted Territory (1as defined in Attachment A); or (ii) year from the date of termination of Executive’s employment for any reason, Confidential Information to which the Executive had access could reasonably be expected to benefit the Competitor if the Competitor were to obtain access to such Confidential Information. For purposes of this subparagraph (a), services provided by others shall not, anywhere within be deemed to have been provided by the United States either as principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, own, manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an employment, business or other activity competitive Executive if the Executive had material supervisory responsibilities with respect to the Company. The post-employment restriction contained in this section shall not apply in the State provision of Californiasuch services.
(b) Executive further agrees thatsolicit or attempt to solicit any party who is then, or during the 12- month period prior to the Executive’s employment with Termination Date was, a customer or supplier of the Company and for a period of one or with whom the Executive (1) year from or the date of termination of Executive’s employment subordinates) had Confidential Information or contact on behalf of the Company, provided that the restriction in this subparagraph (b) shall not apply to any activity on behalf of a business that is not a Competitor.
(c) solicit, entice, persuade or induce any individual who is employed by the Company or its affiliates (or was so employed within 90 days prior to the Executive’s action and not involuntarily terminated for any reason, the Executive shall not, directly reason other than Cause) to terminate or indirectly, either as a principal, agent, employee, consultant, partner, officer, director, shareholder, refrain from renewing or in extending such employment or to become employed by or enter into contractual relations with any other individual or representative capacity, on the Executive’s behalf or any other persons or entity other than the Company or its affiliates, (i) solicit or induce, or attempt to solicit or induce, directly or indirectly, any customer or prospective customer of and the Company with whom the Executive has had personal contact within the twelve (12) month period prior to the Executive’s termination date, or (ii) solicit or induce, or attempt to solicit or induce, directly or indirectly any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee or agent of, or consultant to, the Company or any of its affiliates, to terminate its, his or her relationship therewith, or (iii) hire or engage any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee, agent of or consultant to the Company or any of its affiliates.
(c) Executive understands that the provisions of this Section 11 may limit Executive’s ability to earn a livelihood in a business similar to the business of the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests of the Company, (ii) such provisions contain reasonable limitations as to time and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive shall not assert thatapproach any such employee, and it should not be considered thateither in person or through electronic or social media, for any provisions such purpose or authorize or knowingly cooperate with the taking of this Section 11 otherwise are void, voidable any such actions by any other individual or unenforceable or should be voided or held unenforceableentity.
(d) If a judicial determination is made by a court directly or indirectly own an equity interest in any Competitor (other than ownership of competent jurisdiction that 5% or less of the time outstanding stock of any corporation listed on the New York Stock Exchange or territory the American Stock Exchange or any other restriction contained included in this Agreement is an unenforceable restriction against the ExecutiveNASDAQ System, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent so long as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained ownership is passive in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained hereinnature).
Appears in 3 contracts
Sources: Severance Agreement (Castle a M & Co), Change in Control Agreement (Castle a M & Co), Severance Agreement (Castle a M & Co)
Non-Competition and Non-Solicitation. Executive acknowledges and recognizes the highly competitive nature (a) As part of the businesses consideration for the compensation and benefits to be paid to Executive hereunder and the covenants made by the Company in Sections 2, 4 and 6, to protect the trade secrets and Confidential Information of the Company that have been and will be entrusted to Executive immediately upon commencement of the Term and thereafter, the business goodwill of the Company and its subsidiaries and affiliates that will be developed in and accordingly agrees as follows:
(a) During through Executive and/or the Executive’s employment with business opportunities that will be disclosed or entrusted to Executive by the Company and its subsidiaries and affiliates immediately upon commencement of the Term and thereafter, and as an additional incentive for a period of one (1) year the Company to enter into this Agreement, from the date Effective Date through two years following the Date of termination Termination (the “Restricted Period”), Executive will not (other than for the benefit of Executive’s employment for any reason, the Executive shall not, anywhere within the United States either as principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, own, manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an employment, business or other activity competitive with the Company. The post-employment restriction contained in this section shall not apply in the State of California.
(b) Executive further agrees that, during the Executive’s employment with the Company pursuant to this Agreement), and for a period will not permit any member of one the Restricted Party Group (1as defined in Section 9(e)(v)) year from the date of termination of Executive’s employment for any reason, the Executive shall notto, directly or indirectly, either individually or as a principal, agent, employee, consultant, partner, an officer, director, employee, shareholder, consultant, member, contractor, partner, joint venturer, agent, equity owner or in any capacity whatsoever (including without limitation assisting any other member of the Restricted Party Group to):
(i) conduct, engage in, carry on or assist any other Person in conducting, engaging in or carrying on, in any capacity, any Competing Business (as defined in Section 9(e)(ii).
(ii) induce or attempt to induce any customer, supplier, licensee or other business relation of the Company or any subsidiaries or affiliates of the Company with whom Executive has had direct business contact in dealings during the Term in the course of his employment with the Company, to cease doing business with the Company or any of its subsidiaries or affiliates, or in any other individual way interfere with the relationship between any such customer, supplier, licensee or representative capacity, on the Executive’s behalf or any other persons or entity other than business relation and the Company or any of its subsidiaries or affiliates;
(iii) own, (i) solicit or induceacquire, or attempt to acquire or solicit or inducethe acquisition of, directly or indirectly, any customer or prospective customer of the Company with whom the Executive has had personal contact within the twelve equity interest in any Competing Business;
(12iv) month period prior to the Executive’s termination datehire, or (ii) solicit or induce, or attempt to hire or contact or solicit or induce, directly or indirectly with respect to hiring any person individual who is, or during the twelve (12) month period prior to the Executive’s termination date was, was an employee or agent of, or consultant to, of the Company or any of its affiliatessubsidiaries during the Term; provided, however, that the foregoing clause shall not prohibit (A) any general advertisement or solicitation by Executive that is not directed towards any such employee or group of employees of the Company or any subsidiary thereof, (B) Executive from hiring any individual who responds to terminate itssuch general advertisement or solicitation, his so long as such individual is not an employee of the Company or her relationship therewith, any subsidiary thereof at the time such individual responds to such general advertisement or solicitation or (iiiC) hire or engage Executive from hiring any person individual who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee, agent of or consultant to has not worked for the Company or any of its affiliatessubsidiaries at any time during the 180-day period immediately preceding the date that Executive hires such individual; or
(v) cause, influence, induce, encourage or attempt to persuade any individual employed by the Company or any subsidiary thereof to terminate his or her employment relationship with the Company or any subsidiary thereof.
(b) Nothing in this Section 9 shall prohibit any investment by Executive or any other member of the Restricted Party Group in securities of any class of the equity securities of a Competing Business, which are regularly traded or quoted on a national securities exchange or an inter-dealer quotation system, provided that the Restricted Party Group directly or indirectly collectively owns no more than 5% of such class of securities, and no member of the Restricted Party Group has the right, through the ownership of an equity interest, voting securities or otherwise, to direct the activities of the Competing Business.
(c) Executive understands acknowledges that each of the covenants of Sections 9(a)(i) through (vii) are in addition to, and shall not be construed as a limitation upon, any other covenant provided in Section 9(a). Executive agrees that the provisions geographic boundaries, scope of this Section 11 may limit Executive’s ability to earn a livelihood in a business similar to the business prohibited activities, and time duration of each of the Company but Executive nevertheless agrees covenants set forth in Sections 9(a)(i) through (v) are reasonable in nature and hereby acknowledges that (i) such provisions do not impose a greater restraint are no broader than is are necessary to maintain the confidentiality and the goodwill of the Company’s Confidential Information, plans and services and to protect the goodwill or other legitimate business interests of the Company, including the goodwill developed by Executive with the Company’s customers, suppliers, licensees and business partners. Executive further acknowledges that, during the Term, Executive’s engagement hereunder shall necessitate, and the Company will provide, access to or the disclosure of Confidential Information to Executive and/or that Executive’s responsibilities shall include the development of the Company’s goodwill through Executive’s contacts with the Company’s customers, suppliers, licensees and business relations.
(iid) such provisions contain reasonable limitations as to time and scope The parties hereto intend that the covenants contained in each of activity to be restrained, (iiiSections 9(a)(i) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) be construed as a series of separate covenants, one for each county or other defined province in each geographic area in which the consideration provided hereunder is sufficient Company conducts its business. Except for geographic coverage, each such separate covenant shall be deemed identical in terms to compensate Executive for the restrictions applicable covenant contained in this Section 11Sections 9(a)(i) and (v). Furthermore, each of the covenants in Sections 9(a)(i) through (v) hereof shall be deemed a separate and independent covenant, each being enforceable irrespective of the enforceability (with or without reformation) of the other covenants contained in Sections 9(a)(i) through (v) hereof. In consideration of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees event that Executive shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable arbitrator or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court of competent jurisdiction shall determine that the scope, time or territory or any other restriction contained territorial restrictions set forth in this Section 9 are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent that the arbitrator or court, as applicable, deems reasonable and the Agreement is an unenforceable restriction against the Executive, the provisions shall thereby be reformed.
(e) For purposes of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.Agreement:
Appears in 2 contracts
Sources: Executive Employment Agreement (Regency Energy Partners LP), Executive Employment Agreement (Regency Energy Partners LP)
Non-Competition and Non-Solicitation. Executive acknowledges and recognizes the highly competitive nature (a) As part of the businesses consideration for the compensation and benefits to be paid to Executive hereunder, to protect Confidential Information of the Company and its customers and clients that have been and will be entrusted to Executive, the business goodwill of the Company and its subsidiaries that will be developed in and affiliates through Executive and accordingly agrees the business opportunities that will be disclosed or entrusted to Executive by the Company and its subsidiaries, and as followsan additional incentive for the Company to enter into this Agreement, from the date hereof through the first anniversary of the Date of Termination (the “Restricted Period”), Executive will not (other than for the benefit of the Company pursuant to this Agreement), directly or indirectly:
(ai) During the Executive’s employment with the Company and for engage in, or carry on or assist, individually or as a period of one (1) year from the date of termination of Executive’s employment for any reason, the Executive shall not, anywhere within the United States either as principal, agent, employee, consultant, partnerowner, officer, director, employee, shareholder, consultant, contractor, partner, member, joint venturer, agent, equity owner or in any other individual or representative capacitycapacity whatsoever, own, manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an employment, (A) any business or other activity directly competitive with the business in which the Company is engaged from time to time (“Competing Business”) or (B) Business Enterprise (as defined below) that is otherwise directly competitive with the Company within the states in which the Company conducts business;
(ii) perform for any corporation, partnership, limited liability company, sole proprietorship, joint venture or other business association or entity (a “Business Enterprise”) engaged in any Competing Business any duty Executive has performed for the Company that involved Executive’s access to, or knowledge or application of, Confidential Information;
(iii) induce or attempt to induce any customer, supplier, licensee or other business relation of the Company to cease doing business with the Company or in any way interfere with the relationship between any such customer, supplier, licensee or business relation and the Company. The post-employment restriction contained ;
(iv) induce or attempt to induce any customer, supplier, licensee or other business relation of the Company with whom Executive had direct business contact in this section shall not apply dealings during the Employment Period in the State course of Californiahis employment with the Company to cease doing business with the Company or in any way interfere with the relationship between any such customer, supplier, licensee or business relation and the Company; or
(v) solicit with the purpose of hiring or hire any person who is or, within 180 days after such person ceased to be an employee of the Company, was an employee of the Company.
(b) Notwithstanding the duration of the restrictions set forth in Section 10(a) above and subject to Section 10(e) below, the restrictions set forth under Sections 10(a)(i) and (ii) shall expire after 180 days following the Date of Termination, if Executive further agrees that, during terminates this Agreement under Sections 5(c) or 4(b) hereof or the Company terminates Executive’s employment with without Cause under Sections 5(a) or 4(b).
(c) Notwithstanding the Company and for a period foregoing restrictions of one this Section 10, nothing in this Section 10 shall prohibit (1i) year from the date of termination of any investment by Executive’s employment for any reason, the Executive shall not, directly or indirectly, either as in securities which are issued by a principalBusiness Enterprise involved in or conducting a Competing Business, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, on the provided that Executive’s behalf or any other persons or entity other than the Company or its affiliates, (i) solicit or induce, or attempt to solicit or induce, directly or indirectly, any customer or prospective customer does not own more than five percent (5%) of the Company with whom the Executive has had personal contact within the twelve (12) month period prior to the Executive’s termination date, outstanding equity or voting securities of such Business Enterprise or (ii) solicit or induce, or attempt to solicit or induceExecutive, directly or indirectly indirectly, from owning any person who isinterest in any Business Enterprise which conducts a Competing Business if such interest in such Business Enterprise is owned as of the date of this Agreement and Executive does not have the right, in the case of (i) or during (ii), through the twelve (12) month period prior to the Executive’s termination date was, an employee ownership of a voting interest or agent of, or consultant to, the Company or any of its affiliatesotherwise, to terminate its, his or her relationship therewith, or (iii) hire or engage any person who is, or during direct the twelve (12) month period prior to the Executive’s termination date was, an employee, agent activities of or consultant to associated with the Company or any business of its affiliatessuch Business Enterprise.
(cd) Executive understands acknowledges that each of the covenants of Section 10(a) are in addition to, and shall not be construed as a limitation upon, any other covenant provided in Section 10(a). Executive agrees that the provisions geographic boundaries, scope of this Section 11 may limit Executive’s ability to earn a livelihood in a business similar to the business prohibited activities, and time duration of each of the Company but Executive nevertheless agrees covenants set forth in Section 10(a) are reasonable in nature and hereby acknowledges that (i) such provisions do not impose a greater restraint are no broader than is are necessary to maintain the confidentiality and the goodwill of the Company’s proprietary and Confidential Information, plans and services and to protect the goodwill or other legitimate business interests of the Company, including without limitation the goodwill developed by Executive with Company’s customers, suppliers, licensees and business relations.
(iie) such provisions contain reasonable limitations as to If, during any portion of the Restricted Period, Executive is not in compliance with the terms of Section 10(a), the Company shall be entitled to, among other remedies, compliance by Executive with the terms of Section 10(a) for an additional period of time and scope of activity to be restrained(i.e., (iii) such provisions are not harmful in addition to the general public, Restricted Period) that shall equal the period(s) over which such noncompliance occurred.
(ivf) such provisions are not unduly burdensome to Executive, and (v) The parties hereto intend that the consideration provided hereunder is sufficient to compensate Executive for the restrictions covenants contained in this Section 11. In consideration 10(a) be construed as a series of separate covenants, one for each defined province in each geographic area in which Executive on behalf of the foregoing and in light of Executive’s educationCompany conducts business. Except for geographic coverage, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions of this Agreement shall not be rendered void but each such separate covenant shall be deemed amended identical in terms to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction the applicable covenant contained in this Agreement is unenforceableSection 10(a). Furthermore, each of the covenants in Section 9(a) shall be deemed a separate and such restriction cannot be amended so as to make it enforceableindependent covenant, such finding shall not affect each being enforceable irrespective of the enforceability of any (with or without reformation) of the other restrictions covenants contained hereinin Section 10(a).
Appears in 2 contracts
Sources: Employment Agreement (Grizzly Energy, LLC), Employment Agreement (Vanguard Natural Resources, Inc.)
Non-Competition and Non-Solicitation. Executive acknowledges and recognizes the highly competitive nature In consideration of the businesses Employee’s employment hereunder and the benefits derived by the Employee as a result of the Company and its subsidiaries and affiliates and accordingly Transaction, Employee agrees as followsto the following:
(a) During Employee hereby agrees that during the Executiveperiod commencing on the date hereof and ending on the date that is one year following the date of the termination of Employee’s employment with the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reasonreason regardless of the circumstances thereof (the “Noncompetition Period”), the Executive shall Employee will not, without the express written consent of the Company, directly or indirectly, anywhere within in the United States either or in any foreign country in which the Company has conducted business, is conducting business or is presently contemplating conducting business, engage in any activity which is, or participate or invest in, or provide or facilitate the provision of financing to, or assist (whether as principalowner, agentpart-owner, employeeshareholder, consultantmember, partner, director, officer, directortrustee, shareholderexecutive, agent or consultant, or in any other individual capacity), any business, organization or representative capacity, own, manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an employment, business or other activity competitive with the Company. The post-employment restriction contained in this section shall not apply in the State of California.
(b) Executive further agrees that, during the Executive’s employment with the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reason, the Executive shall not, directly or indirectly, either as a principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, on the Executive’s behalf or any other persons or entity person other than the Company (or any subsidiary or affiliate of the Company), including any such business, organization or person involving, or which is, a family member of Employee, whose business, activities, products or services are competitive with any of the business, activities, products or services conducted or offered or proposed to be conducted or offered by the Company or its affiliates, (i) solicit or induce, or attempt to solicit or induce, directly or indirectly, subsidiaries during any customer or prospective customer of the Company with whom the Executive has had personal contact within the twelve (12) month period prior to the Executive’s termination date, or (ii) solicit or induce, or attempt to solicit or induce, directly or indirectly any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee or agent of, or consultant to, in which Employee is employed by the Company or any of its affiliatessubsidiaries. Without implied limitation, the foregoing covenant shall be deemed to terminate its, his prohibit (other than through a general solicitation not targeted at the Company or her relationship therewith, its Subsidiaries) (a) hiring or (iii) engaging or attempting to hire or engage for or on behalf of Employee or any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee, agent such competitor any employee of or consultant to the Company or any of its direct and/or indirect subsidiaries and affiliates.
, or any former employee of the Company and any of its direct and/or indirect subsidiaries and affiliates who was employed during the six (6) month period immediately preceding the date of such attempt to hire or engage, (b) encouraging for or on behalf of Employee or any such competitor any such employee to terminate his or her relationship or employment with the Company or any of its direct or indirect subsidiaries and affiliates, (c) Executive understands that the provisions recruiting or soliciting for or on behalf of this Section 11 may limit Executive’s ability to earn a livelihood in a business similar to the business Employee or any such competitor any customer of the Company but Executive nevertheless agrees or any of its direct or indirect subsidiaries and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill affiliates, or other business interests any former customer of the Company, Company or any of its direct or indirect subsidiaries and affiliates who was a customer during the six (ii6) month period immediately preceding the date of such provisions contain reasonable limitations as to time solicitation and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by diverting to any person (as hereinafter defined) any customer or business opportunity of the Company or any of any of its direct or indirect subsidiaries and affiliates. Notwithstanding anything herein to the contrary, Employee may make passive investments in any enterprise the shares of which are publicly traded if such investment constitutes less than five percent (5%) of the equity of such enterprise. Employee agrees that if a court of competent jurisdiction determines that any restriction, or portion thereof, set forth in this Section 7 is overly restrictive and unenforceable, the court may reduce or modify such restrictions to those which it deems reasonable and enforceable under the circumstances, and as so reduced or modified, the parties hereto agree that the time or territory or restrictions of this Section 7 shall remain in full force and effect. Employee further agrees that if a court of competent jurisdiction determines that any other restriction contained in provision of this Agreement Section 7 is an unenforceable restriction against the Executiveunenforceable, the remaining provisions of this Section 7 and the remainder of this Agreement shall not be rendered void but affected thereby, and shall be deemed amended to apply as to such maximum time remain in full force and territory and to such maximum extent as such court may judicially determine or indicate to be enforceableeffect. Alternatively, if any court or arbitrator of competent jurisdiction finds Employee acknowledges that any restriction the restrictions contained in this Agreement is unenforceableparagraph in view of the nature of the Company’s business, are reasonable and necessary to protect the Company’s legitimate business interests and that any violation of this paragraph would result in irreparable injury to the Company, and such restriction canthat monetary damages may not be amended so sufficient to compensate the Company for any economic loss which may be incurred by reason of breach of the foregoing restrictive covenants. In the event of a breach or a threatened breach by Employee of any provision in this paragraph, the Company shall be entitled to a temporary restraining order and injunctive relief restraining Employee from the commission of any breach, and to recover the Company’s attorneys’ fees, costs and expenses related to the breach or threatened breach. Nothing contained in this paragraph shall be construed as prohibiting the Company from pursuing any other remedies available to make it enforceablefor any breach or threatened breach, such finding including, without limitation, the recovery of money damages, attorneys’ fees and costs. The restrictions in this paragraph shall each be construed as independent of any other provisions in this Agreement, and the existence of any claim or cause of action by Employee against the Company, whether predicated on this Agreement or otherwise, shall not affect constitute a defense to the enforceability enforcement of this Agreement. If Employee violates any of the other restrictions contained hereinin this Section, the restrictive period will be suspended and will not run in favor of Employee from the time of the commencement of any violation until the time when Employee cures the violation to the Company’s reasonable satisfaction.
(b) During and after Employee’s employment, Employee shall cooperate fully with the Company in the defense or prosecution of any claims or actions now in existence or which may be brought in the future against or on behalf of the Company that relate to events or occurrences that transpired while Employee was employed by the Company. Employee’s full cooperation in connection with such claims or actions shall include, but not be limited to, being available to meet with counsel to prepare for discovery or trial and to act as a witness on behalf of the Company at mutually convenient times. During and after the Employment, Employee also shall cooperate fully with the Company in connection with any investigation or review of any federal, state or local regulatory authority as any such investigation or review relates to events or occurrences that transpired while Employee was employed by the Company. The Company shall reimburse Employee for any reasonable fees and reasonable out-of-pocket expenses incurred in connection with Employee’s performance of obligations pursuant to this Section 7(b).
(c) Employee agrees, while he is employed by the Company, to offer or otherwise make known or available to it, as directed by the Board of the Company and without additional compensation or consideration, any business prospects, contracts or other business opportunities that Employee may discover, find, develop or otherwise have available to Employee in the Company’s general industry and further agrees that any such prospects, contacts or other business opportunities shall be the property of the Company.
Appears in 2 contracts
Sources: Employment Agreement (Open Link Financial, Inc.), Employment Agreement (Open Link Financial, Inc.)
Non-Competition and Non-Solicitation. Executive acknowledges and recognizes the highly competitive nature of the businesses of the Company and its subsidiaries and affiliates and accordingly agrees as follows:
(a) During the Executive’s employment with the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reason, the Executive shall not, anywhere within the United States either as principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, own, manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an employment, business or other activity competitive with In order to protect the Company. The post-employment restriction contained in this section shall not apply in the State of California.
(b) Executive further agrees that’s proprietary information and good will, during the Executive’s employment with the Company and for a period of one twelve (112) year from months following the date (i) the delivery of a Notice of Termination, in the case of an Involuntary Departure or (ii) the termination of the Executive’s employment for any reasonother reason (the “Restricted Period”), the Executive will not directly or indirectly, whether as owner, partner, shareholder, director, manager, consultant, agent, employee, co-venturer or otherwise, engage, participate or invest in any Competing Business. For purposes hereof, the term “Competing Business” shall mean any entity engaged in the discovery, development or commercialization of CAS9 technology for human therapeutics. Notwithstanding the foregoing, nothing contained hereinabove or hereinbelow shall be deemed to prohibit the Executive from (i) acquiring, solely as an investment, shares of capital stock (or other interests) of any corporation (or other entity) not exceeding 2% of such corporation’s (or other entity’s) then outstanding shares of capital stock (or equity interest), or (ii) working for a line of business, division or unit of a larger entity that competes with the Company as long as the Executive’s activities for such line of business, division or unit do not involve work by the Executive on matters that are directly competitive with the Company’s business. In addition, during the Restricted Period, the Executive will not, directly or indirectly, either as a principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacitymanner, on the Executive’s behalf or any other persons or entity other than for the benefit of the Company or its affiliates, (i) solicit divert or induce, or attempt to solicit or induce, directly or indirectly, any customer or prospective customer take away customers of the Company with whom the Executive has had personal contact within the twelve (12) month period prior to the Executive’s termination date, or (ii) solicit or induce, or attempt to solicit or induce, directly or indirectly any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee or agent of, or consultant to, the Company or any of its affiliatessuppliers; and/or (ii) solicit, entice, attempt to terminate its, his persuade any other employee or her relationship therewith, or consultant of the Company to leave the Company for any reason (iii) hire or engage any person who is, or during other than the twelve (12) month period prior to termination of subordinate employees undertaken in the course of the Executive’s termination date was, an employee, agent of or consultant to employment with the Company or Company). The Executive acknowledges and agrees that if the Executive violates any of its affiliates.
(c) Executive understands that the provisions of this Section 11 may limit Executive’s ability to earn a livelihood in a business similar to paragraph 7(b), the business running of the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests of the Company, (ii) such provisions contain reasonable limitations as to time and scope of activity to Restricted Period will be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made extended by a court of competent jurisdiction that the time or territory or any other restriction contained during which the Executive engages in this Agreement is an unenforceable restriction against the Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained hereinviolation(s).
Appears in 2 contracts
Sources: Employment Agreement (CRISPR Therapeutics AG), Employment Agreement (CRISPR Therapeutics AG)
Non-Competition and Non-Solicitation. The Executive acknowledges and recognizes agrees that the nature of the Company’s confidential, proprietary, and trade secret information to which the Executive has, and will continue to have, access to derives value from the fact that it is not generally known and used by others in the highly competitive nature of industry in which the businesses Company competes. The Executive further acknowledges and agrees that, even in complete good faith, it would be impossible for the Executive to work in a similar capacity for a competitor of the Company without drawing upon and its subsidiaries and affiliates and accordingly agrees as follows:
(a) During the Executive’s utilizing information gained during employment with the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reason, the Executive shall not, anywhere within the United States either as principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, own, manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an employment, business or other activity competitive with the Company. The post-employment restriction contained in this section shall not apply in the State of California.
(b) Executive further agrees thatAccordingly, at all times during the Executive’s employment with the Company and for a period of one three (13) year from the date of termination of Executive’s employment years after termination, for any reason, of such employment, the Executive shall will not, directly or indirectly, either :
(a) Engage in any business or enterprise (whether as a principal, agent, employee, consultantowner, partner, officer, director, shareholderemployee, consultant, investor, lender or otherwise, except as the holder of not more than one percent (1%) of the outstanding capital stock of a company) that directly or indirectly competes with the Company’s business or the business of any of its subsidiaries anywhere in the United States, including but not limited to any business or enterprise that develops, manufactures, markets, or in sells any other individual product or representative capacityservice that competes with any product or service developed, on the Executive’s behalf manufactured, marketed or any other persons sold, or entity other than planned to be developed, manufactured, marketed or sold, by the Company or any of its affiliates, subsidiaries while the Executive was employed by GFL or the Company; or
(b) Either alone or in association with others (i) solicit or inducesolicit, or attempt to solicit or induce, directly or indirectlyfacilitate any organization with which the Executive is associated in soliciting, any customer or prospective customer employee of the Company with whom or any of its subsidiaries to leave the Executive has had personal contact within employ of the twelve (12) month period prior to the Executive’s termination date, Company or any of its subsidiaries; (ii) solicit for employment, hire or induceengage as an independent contractor, or attempt to solicit facilitate any organization with which the Executive is associated in soliciting for employment, hire or induceengagement as a independent contractor, directly or indirectly any person who is, was employed by the Company or any of its subsidiaries at any time during the twelve (12) month period prior to term of the Executive’s termination date wasemployment with GFL or the Company or any of their respective subsidiaries (provided, an employee or agent of, or consultant tothat this clause (ii) shall not apply to any individual whose employment with GFL, the Company or any of its affiliates, to terminate its, his subsidiaries has been terminated for a period of one year or her relationship therewith, longer); or (iii) hire solicit business from or engage perform services for any person who iscustomer, supplier, licensee or during business relation of GFL or the twelve (12) month period prior Company or any of their respective subsidiaries, induce or attempt to the Executive’s termination date wasinduce, an employee, agent of or consultant any such entity to cease doing business with the Company or any of its affiliatessubsidiaries; or in any way interfere with the relationship between any such entity and the Company or any of its subsidiaries.
(c) Notwithstanding the foregoing, nothing contained in this Agreement shall preclude the Executive understands that from managing or operating the provisions of this Section 11 may limit Executive’s ability to earn a livelihood in a business similar to GFL boxing assets even if such activities are arguably competitive with the business of the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests of the Company, (ii) such provisions contain reasonable limitations as to time and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained hereinits subsidiaries.
Appears in 2 contracts
Sources: Merger Agreement (Alliance MMA, Inc.), Merger Agreement (Alliance MMA, Inc.)
Non-Competition and Non-Solicitation. Executive acknowledges and recognizes the highly competitive nature of the businesses of Participant agrees to comply fully with any written agreement between the Company and its subsidiaries and affiliates and accordingly agrees as follows:
the Participant which provides for post-termination of employment restrictions against solicitation or competition (a) During the Executive’s employment with “Restrictive Covenant Agreement”); provided, however, that if no such Restrictive Covenant Agreement exists, the Company and Participant shall not for a period of one [six (1) year from the date of 6)][twelve (12)][eighteen (18)] months after Participant’s voluntary termination of Executive’s employment for any reasonwith Company or involuntary termination of employment by Company, either himself or together with other persons, directly or indirectly: (i) own, manage, operate, finance, join, control or participate in the Executive shall notownership, anywhere within the United States either management, operation, financing, or control of or be connected as an officer, director, employee, partner, principal, agent, employeerepresentative, consultant, partner, officer, director, shareholderconsultant or otherwise with, or have any financial interest in, or aid or assist anyone else in the conduct of, or use or permit Participant’s name to be used in connection with, any other individual business engaged in the research, development, manufacture, sale, marketing or representative capacitydistribution of stainless steel, owntitanium, managespecialty alloys, finance, operate, control metal powders or otherwise engage metal fabricated parts or participate in any manner components similar to or fashion in an employment, business or other activity competitive with those manufactured by the Company. The post-employment restriction contained in this section shall not apply in Company (a “Competing Business”) as of the State of California.
(b) Executive further agrees that, during date the ExecutiveParticipant’s employment with Company ends; provided, however, that nothing herein shall prevent the Company and for Participant from investing in the securities of any company listed on a period national securities exchange, provided that Participant’s involvement with any such company is solely that of one a stockholder of five percent (15%) year from or less of any class of the date of termination of Executive’s employment for any reason, the Executive shall not, directly or indirectly, either as a principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, on the Executive’s behalf or any other persons or entity other than the Company or its affiliates, outstanding securities thereof; (iii) solicit or induce, divert to any Competing Business any individual or attempt to solicit or induce, directly or indirectly, any entity that is a customer or prospective customer of the Company with whom or its subsidiaries or affiliates, or was such a customer or prospective customer at any time during the Executive has had personal contact within the twelve eighteen (1218) month period months prior to the Executivedate of Participant’s employment termination date, or (ii) solicit or induce, or attempt to solicit or induce, directly or indirectly any person who is, or during with the twelve (12) month period prior to the Executive’s termination date was, an employee or agent of, or consultant to, the Company or any of its affiliates, to terminate its, his or her relationship therewith, or Company; (iii) hire induce, offer, assist, encourage or engage suggest (A) that another business or enterprise offer employment to or enter into a business affiliation with any person who isCompany employee, agent or representative, or during the twelve (12) month period prior to the Executive’s termination date was, any individual who acted as an employee, agent of or consultant to the Company or any of its affiliates.
(c) Executive understands that the provisions of this Section 11 may limit Executive’s ability to earn a livelihood in a business similar to the business representative of the Company but Executive nevertheless agrees and hereby acknowledges in the previous six (6) months; or (B) that any Company employee, agent or representative (ior individual who acted as an employee, agent or representative of the Company in the previous six (6) such provisions do not impose months) terminate his or her employment or business affiliation with the Company; or (iv) hire or participate in the hiring of any Company employee or any person who was an employee of the Company in the previous six (6) months, by any business, enterprise or employer. For this purpose, “prospective customer” shall mean a greater restraint than is necessary to protect person or business entity that the goodwill Company has identified as a user or other business interests potential user of the Company, (ii) such provisions contain reasonable limitations as ’s products and toward which the Company plans to time and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11direct sales or marketing activities. In consideration of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court of competent jurisdiction event that the time or territory or Company determines in good faith that the Participant violated the terms of any other restriction contained in this Agreement Restrictive Covenant Agreement, or, if there is an unenforceable restriction against the Executiveno Restrictive Covenant Agreement, the provisions of the preceding paragraph: (A) this Agreement shall not be rendered void but Award shall be deemed amended forfeited and (B) the Participant shall be obligated to apply as return to the Company any shares previously issued under this Award or a cash payment equal to the value of the shares at the time such maximum time and territory and to such maximum extent as such court may judicially determine shares were sold or indicate to be enforceable. Alternativelytransferred, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any all of the other restrictions contained hereinAward has been issued to the Participant or such recoupment is required by law.
Appears in 2 contracts
Sources: Three Year Performance Stock Unit Award Agreement (Carpenter Technology Corp), Restricted Stock Unit Award Agreement (Carpenter Technology Corp)
Non-Competition and Non-Solicitation. Executive acknowledges and recognizes the highly competitive nature of the businesses of the Company and its subsidiaries and affiliates and accordingly agrees as follows:
(a) During Subject to the Executive’s employment Section 7(b) hereof, each Seller acknowledges that in order to assure Buyer that it will retain the value of KP as a "going concern," such Seller agrees not to utilize its special knowledge of the business of KP and its relationship with customers, suppliers and others to compete with KP. For the Company period beginning on the Closing Date and for a period ending on the third anniversary thereof, no Seller (or any of one his or her employees, agents or others under his or her control, directly or indirectly, on his or her behalf or on behalf of any other Person) shall (1A) year from engage anywhere in the date States of termination of Executive’s employment for any reasonConnecticut, the Executive shall notNew York, anywhere within the United States either New Jersey and Pennsylvania, alone or in association with others, as principal, officer, agent, employee, consultantdirector, partner, officer, director, shareholderstockholder, or through the investment of capital, lending of money or property, rendering of services or otherwise, in any other individual business that competes with KP in the sale of international calling cards and handsets (the "Calling Card Business"); provided, that the fulfillment of the Master Vendor Agreement by each Seller shall not be deemed a violation of the terms hereof, (B) accept business from, or representative capacitysolicit the business of any Person who is, ownor who had been at any time during the one year preceding the date hereof was, managea customer of KP, finance, operate, control or otherwise engage divert or participate in attempt to divert any manner Calling Card Business from KP; or fashion in (C) recruit or otherwise solicit or induce any person who is an employmentemployee of, business or otherwise engaged by KP to terminate his or her employment or other activity competitive relationship with KP, or hire any person who has left the Company. The post-employment restriction contained in this section shall not apply in employ of KP during the State of Californiaone year preceding the date hereof.
(b) Executive further agrees thatNotwithstanding anything to the contrary herein, during the Executive’s if a Seller's employment with KP, as the Company and case may be, pursuant to an Employment Agreement is terminated without Cause (as defined therein) or for a period of one (1) year from the date of termination of Executive’s employment for any reasonDisability by KP, the Executive shall not, directly or indirectly, either as a principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, on the Executive’s behalf or any other persons or entity other than the Company or its affiliatesprovisions of subsections (A), (iB) solicit or induceand (C) above shall not apply to such Seller after any and all Severance Payments (as defined in the Employment Agreement) have been paid by KP to such Seller. Furthermore, or attempt to solicit or induce, directly or indirectly, any customer or prospective customer of the Company with whom the Executive has had personal contact within the twelve (12) month period prior notwithstanding anything to the Executive’s termination datecontrary herein, or (ii) solicit or induce, or attempt to solicit or induce, directly or indirectly any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee or agent of, or consultant to, the Company or any of its affiliates, to terminate its, if a Seller validly terminates his or her relationship therewithemployment under the Employment Agreement (if applicable) as a Coordinated Termination (as defined therein), the provisions of subsections (A), (B) and (C) above shall not apply to such Seller upon the effective date of such Coordinated Termination. The providing of self-labeled calling cards to KP by a Seller or an affiliate thereof shall not be deemed a violation of Subsection (iiiA) hire or engage any person who is, or during above if both the twelve (12) month period prior to the Executive’s termination date was, an employee, agent of or consultant to the Company or any of its affiliatesBuyer and such Seller consent in writing thereto.
(c) Executive understands The restrictions set forth in this Section 7 are considered by the parties to be reasonable for the purposes of protecting the value of the business and goodwill of KP. It is the desire and intent of the parties that the provisions of this Section 11 may limit Executive’s ability to earn a livelihood in a business similar 7 be enforced to the business fullest extent permissible under the laws and public policies of the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than each jurisdiction in which enforcement is necessary to protect the goodwill or other business interests of the Company, (ii) such provisions contain reasonable limitations as to time and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11sought. In consideration of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, If any provisions of this Section 11 otherwise are void7 relating to the time period, voidable scope of activities or unenforceable or should be voided or held unenforceable
(d) If a judicial determination geographic area of restrictions is made declared by a court of competent jurisdiction that to exceed the maximum permissible time period, scope of activities or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Executivegeographic area, the maximum time period, scope of activities or geographic area, as the case may be, shall be reduced to the maximum which such court deems enforceable. If any provisions of this Agreement shall not Section 7 other than those described in the preceding sentence are adjudicated to be rendered void but invalid or unenforceable, the invalid or unenforceable provisions shall be deemed amended (with respect only to apply the jurisdiction in which such adjudication is made) in such manner as to such maximum time and territory render them enforceable and to such maximum extent effectuate as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, nearly as possible the original intentions and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any agreement of the other restrictions contained hereinparties.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Smartserv Online Inc), Stock Purchase Agreement (Smartserv Online Inc)
Non-Competition and Non-Solicitation. Executive acknowledges and recognizes the highly competitive nature of the businesses of the Company and its subsidiaries and affiliates and accordingly agrees as follows:
(a) During the Executive’s employment with the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reason, the Executive shall not, anywhere within the United States either as principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, own, manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an employment, business or other activity competitive with the Company. The post-employment restriction contained in this section shall not apply in the State of California.
(b) Executive further agrees that, during without the Executiveprior express written consent of the Chairman (which consent may be granted or withheld in the Chairman’s employment with the Company sole and for a period of one (1) year from the date of termination of Executive’s employment for any reasonabsolute discretion), the Executive shall not, directly or indirectly, either prior to the expiration of one (1) year after Executive ceases to be employed by the Company (or any of the Affiliated Entities) for any reason, on his own account, or as a principal, agent, an employee, consultant, adviser, partner, member, co-venturer, owner, manager, officer, director, shareholderor stockholder, of any other person or other entity:
(A) conduct, engage in, have any interest in, or in any other individual aid or representative capacityassist anyone else to conduct, on the Executive’s behalf or any other persons or entity other than the Company or its affiliates, (i) solicit or induceengage in, or attempt have an interest in, the Business within a seventy-five (75) mile radius of the Company’s Headquarters;
(B) with regard to solicit the Business, call on, solicit, or, accept business, employment, or induceengagement from, directly or indirectlyprovide services to, any customer or prospective customer of the Company with whom clients of the Companies who Executive has had personal contact within the twelve (12) month period prior to the Executive’s termination datelearned or developed Confidential Information regarding, or (ii) solicit or induceprovided services to on behalf of any of the Companies, or attempt to solicit or induce, directly or indirectly at any person who is, or time during the twelve (12) month period prior to the termination of Executive’s termination date wasemployment with the Company for any reason, an employee unless the Executive can demonstrate that Executive had a previous business relationship in the Business with such client prior to and independent of Executive’s employment with the Company; and
(i) solicit for employment or agent ofengagement any Current Employee (as defined below) of any of the Companies, (ii) hire, employ, or consultant to, the Company or engage any Current Employee of any of its affiliates, to terminate its, his or her relationship therewiththe Companies, or (iii) hire induce or engage any person who isinfluence, or during the twelve (12) month period prior seek to the Executive’s termination date was, an employee, agent of induce or consultant to the Company or any of its affiliates.
(c) Executive understands that the provisions of this Section 11 may limit Executive’s ability to earn a livelihood in a business similar to the business of the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests of the Company, (ii) such provisions contain reasonable limitations as to time and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered thatinfluence, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability Current Employee of any of the other restrictions contained hereinCompanies to terminate his, her, or its employment or engagement with any of the Companies for any reason; provided that nothing in this Section 10 will prevent Executive from owning in the aggregate not more than two percent (2%) of the outstanding stock of any class of a corporation which is publicly traded, so long as Executive has no participation in the management of such corporation. As used in this Agreement, a “Current Employee” is a person who, at the time of the solicitation, employment, engagement, inducement or influence, is employed by the Company, a person who was employed by the Company any time during the six (6) months prior to the time in question, or, at the time in question, is employed by a third party and assigned to work more than twenty (20) hours per week for the Company.
Appears in 2 contracts
Sources: Executive Employment Agreement (Sunovia Energy Technologies Inc), Executive Employment Agreement (Sunovia Energy Technologies Inc)
Non-Competition and Non-Solicitation. Executive acknowledges and recognizes the highly competitive nature of the businesses of the Company and its subsidiaries and affiliates and accordingly agrees as follows:
(a) During As of the Executive’s employment with the Company Effective Time and for a period three (3) years thereafter, neither Stockholder nor any of one his or her respective Affiliates (1which Stockholder shall use his or her best efforts to cause to comply with Section 2 and Section 3 hereof) year from the date of termination of Executive’s employment for any reason(collectively, the Executive shall not, anywhere within the United States either as principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, own, manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an employment, business or other activity competitive with the Company. The post-employment restriction contained in this section shall not apply in the State of California.
(b“Restricted Parties”) Executive further agrees that, during the Executive’s employment with the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reason, the Executive shall notshall, directly or indirectly, either as a principalwhether alone or in concert with others, agentand in whatever capacity, employee, consultant, partner, officer, director, shareholder, for any of them or on behalf of or in conjunction with any other Person:
(i) engage in any Competing Business Purpose anywhere in North America or in any other individual or representative capacity, on the Executive’s behalf or any other persons or entity other than territory where the Company or its affiliatessubsidiaries conducts its business (the “Restricted Territory”), except that (iA) the Restricted Parties may own not more than an aggregate of one percent (1%) of the outstanding voting securities of any publicly held Person that competes, directly or indirectly, with the Company, as long as none of the Restricted Parties participates in the management, direction or operations of any such publicly held Person and (B) Stockholder may own voting securities of, be employed by, and participate in the management, direction and operations of, Parent;
(ii) solicit or induce, divert away or attempt to solicit or induce, directly or indirectly, divert away any customer served or prospective solicited by Parent or the Company or any of their Affiliates in an effort to provide services or products to such customer which compete with those provided by the Company or any of its Affiliates or currently planned to be provided by the Company or any of its Affiliates in the future, or otherwise induce any customer of the Company with whom the Executive has had personal contact within the twelve (12) month period prior to the Executive’s termination date, or (ii) solicit or induce, or attempt to solicit or induce, directly or indirectly any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee or agent of, or consultant toParent, the Company or any of its affiliatestheir Affiliates to curtail or cease doing business with Parent, to terminate its, his or her relationship therewith, or (iii) hire or engage any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee, agent of or consultant to the Company or any of its affiliatestheir Affiliates; or
(iii) encourage, induce, attempt to induce, solicit, or attempt to solicit any of the Company Employees to terminate his or her employment with Parent, the Company or any of their Affiliates, or employ or establish a business with any Company Employee or solicit or encourage any Company Employee to leave his or her employment or terminate his or her relationship with Parent, the Company or any of their Affiliates.
(b) If any provision contained in this Section 2 shall for any reason be held invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Section 2, which shall remain in full force and effect. The covenants contained in Section 2 hereof shall be construed as a series of separate covenants, one for each country, province, state, city or other political subdivision of the Restricted Territory. Except for geographic coverage, each such separate covenant shall be deemed identical in terms to the covenant contained in Section 2 hereof. If, in any judicial proceeding, an arbitrator or a court refuses to enforce any of such separate covenants (or any part thereof), then such unenforceable covenant (or such part) shall be eliminated from this Agreement to the extent necessary to permit the remaining separate covenants (or portions thereof) to be enforced. In the unlikely event that any of the terms, provisions, or covenants of this Section 1 are deemed by an arbitrator or a court of competent jurisdiction to exceed the time, geographic or scope limitations permitted by applicable law, the arbitrator or court shall limit the application of any such term, provision or covenant, or modify such term, provision or covenant to the maximum time, geographic or scope limitations, as the case may be, and proceed to enforce those terms as so limited or modified.
(c) Executive understands Stockholder acknowledges that the provisions Parent would be irreparably harmed by any breach of this Section 11 may limit Executive’s ability 2 and that there would be no adequate remedy at law or in damages to earn compensate Parent for any such breach. Accordingly, in the event of a livelihood in breach or threatened breach of this Section 2, Stockholder agrees that Parent shall be entitled to temporary, preliminary, and permanent injunctive relief, without the necessity of proving actual damages or posting a business similar bond therefore, requiring specific performance by Stockholder of this Section 2, and Stockholder consents to the business entry or enforcement thereof. Stockholder shall be responsible for all violations of any of the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests of the Company, (ii) such provisions contain reasonable limitations as to time and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained covenants in this Section 11. In consideration 2 by any of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceableRestricted Parties.
(d) If a judicial determination Stockholder’s obligations under this Agreement shall remain in effect if Stockholder’s employment with Parent is made by a court of competent jurisdiction that the time terminated for any or territory or any other restriction contained no reason.
(g) Nothing in this Agreement is an unenforceable restriction against the Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended or construed to apply as to such maximum time create or alter any employment relationship between Parent or the Company and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained hereinStockholder.
Appears in 2 contracts
Sources: Non Compete and Non Solicitation Agreement (Nuance Communications, Inc.), Non Compete and Non Solicitation Agreement (Transcend Services Inc)
Non-Competition and Non-Solicitation. The Executive acknowledges and recognizes agrees that the nature of the Company’s confidential, proprietary, and trade secret information to which the Executive has, and will continue to have, access to derives value from the fact that it is not generally known and used by others in the highly competitive nature of industry in which the businesses Company competes. The Executive further acknowledges and agrees that, even in complete good faith, it would be impossible for the Executive to work in a similar capacity for a competitor of the Company without drawing upon and its subsidiaries and affiliates and accordingly agrees as follows:
(a) During the Executive’s utilizing information gained during employment with the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reason, the Executive shall not, anywhere within the United States either as principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, own, manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an employment, business or other activity competitive with the Company. The post-employment restriction contained in this section shall not apply in the State of California.
(b) Executive further agrees thatAccordingly, at all times during the Executive’s employment with the Company and for a period of one two (12) year from the date of years after termination of Executive’s employment such employment, other than for any reasontermination without Cause, the Executive shall will not, directly or indirectly, either :
(a) Engage in any business or enterprise (whether as a principal, agent, employee, consultantowner, partner, officer, director, shareholderemployee, consultant, investor, lender or otherwise, except as the holder of not more than one percent (1%) of the outstanding capital stock of a company) that directly or indirectly competes with the Company’s business or the business of any of its subsidiaries anywhere in the United States, including but not limited to any business or enterprise that develops, manufactures, markets, or in sells any other individual product or representative capacityservice that competes with any product or service developed, on the Executive’s behalf manufactured, marketed or any other persons sold, or entity other than planned to be developed, manufactured, marketed or sold, by the Company or any of its affiliates, subsidiaries while the Executive was employed by the Seller or the Company; or
(b) Either alone or in association with others (i) solicit or inducesolicit, or attempt to solicit or induce, directly or indirectlyfacilitate any organization with which the Executive is associated in soliciting, any customer or prospective customer employee of the Company with whom or any of its subsidiaries to leave the Executive has had personal contact within employ of the twelve (12) month period prior to the Executive’s termination date, Company or any of its subsidiaries; (ii) solicit for employment, hire or induceengage as an independent contractor, or attempt to solicit facilitate any organization with which the Executive is associated in soliciting for employment, hire or induceengagement as a independent contractor, directly or indirectly any person who is, was employed by the Company or any of its subsidiaries at any time during the twelve (12) month period prior to term of the Executive’s termination date wasemployment with the Seller or the Company or any of their respective subsidiaries (provided, an employee or agent of, or consultant tothat this clause (ii) shall not apply to any individual whose employment with the Seller, the Company or any of its affiliates, to terminate its, his subsidiaries has been terminated for a period of one year or her relationship therewith, longer); or (iii) hire solicit business from or engage perform services for any person who iscustomer, supplier, licensee or during business relation of the twelve (12) month period prior Seller or the Company or any of their respective subsidiaries, induce or attempt to the Executive’s termination date wasinduce, an employee, agent of or consultant any such entity to cease doing business with the Company or any of its affiliatessubsidiaries; or in any way interfere with the relationship between any such entity and the Company or any of its subsidiaries.
(c) Notwithstanding the foregoing, nothing contained in this Agreement shall preclude the Executive understands that the provisions of this Section 11 may limit Executive’s ability to earn a livelihood in a business similar to from managing or training mixed martial arts fighters or conducting single martial arts style (e.g., kick-boxing or boxing) promotional events even if such activities are arguably competitive with the business of the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect or any of its subsidiaries. Notwithstanding the goodwill or other business interests of the Companyforegoing, (ii) such provisions contain reasonable limitations as to time and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions nothing in contained in this Section 11. In consideration of Agreement, shall preclude the foregoing Executive from continuing to own and in light of Executive’s education, skills operate the Gym Business and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained hereinTraining Business.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Alliance MMA, Inc.), Asset Purchase Agreement (Alliance MMA, Inc.)
Non-Competition and Non-Solicitation. Executive acknowledges and recognizes the highly competitive nature of the businesses of the Company and its subsidiaries and affiliates and accordingly agrees as follows:
(a) During the Executive’s period of employment by or with the Company Company, and for a period following the termination of his employment under this Agreement equal to the longer of (i) one (1) year from or (ii) the date of termination of Executive’s employment period during which Employee is entitled to receive and is receiving any payment pursuant to Section 4.2(d), 4.2(e) or 4.3 hereof, Employee will not, for any reasonreason whatsoever, the Executive shall notdirectly or indirectly, anywhere within the United States either for himself or on behalf of or in conjunction with any other person, persons, company, partnership, corporation or business of whatever nature:
a. engage, as principal, agent, employee, consultant, partner, an officer, director, shareholderowner, partner, joint venturer, employee, independent contractor, consultant or advisor in any other individual business selling any products or representative capacity, own, manage, finance, operate, control or otherwise engage or participate services in any manner or fashion in an employment, business or other activity competitive direct competition with the Company. The post-employment restriction contained , within one hundred (100) miles of the principle executive office of the Company or where any of the Company's affiliates or subsidiaries conduct business, including any territory serviced by the Company or any of such affiliates or subsidiaries (the "Territory");
b. call upon any person who is, at that time, within the Territory, an employee of the Company (including the affiliates and subsidiaries thereof) in this section shall not apply in a managerial capacity for the State of California.
(b) Executive further agrees that, during the Executive’s employment purpose or with the intent of enticing such employee away from or out of the employ of the Company (including the affiliates and for a period subsidiaries thereof), provided that Employee shall be permitted to call upon and hire any member of his or her immediate family;
c. call upon any person or entity which is, at that time, or which has been, within one (1) year from the date of termination of Executive’s employment for any reasonprior to that time, the Executive shall not, directly or indirectly, either as a principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, on the Executive’s behalf or any other persons or entity other than the Company or its affiliates, (i) solicit or induce, or attempt to solicit or induce, directly or indirectly, any customer or prospective customer of the Company with whom (including the Executive has had personal contact affiliates and subsidiaries thereof) within the Territory for the purpose of soliciting or selling products or services in direct competition with the Company within the Territory;
d. call upon any prospective acquisition candidate, on Employee's own behalf or on behalf of any competitor, which candidate was either called upon by the Company (including the affiliates and subsidiaries thereof) or for which the Company made an acquisition analysis, for the purpose of acquiring such entity, in either case, during the last twelve (12) month period prior to the Executive’s termination date, or (ii) solicit or induce, or attempt to solicit or induce, directly or indirectly any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee or agent of, or consultant to, the Company or any of its affiliates, to terminate its, his or her relationship therewith, or (iii) hire or engage any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee, agent of or consultant to the Company or any of its affiliates.
(c) Executive understands that the provisions of this Section 11 may limit Executive’s ability to earn a livelihood in a business similar to the business months of the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests of Employee's employment with the Company, (ii) such provisions contain reasonable limitations as to time and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.
Appears in 2 contracts
Sources: Employment Agreement (Eastern States Oil & Gas Inc), Employment Agreement (Eastern States Oil & Gas Inc)
Non-Competition and Non-Solicitation. Executive acknowledges and recognizes the highly competitive nature The primary service area of the businesses Company's business in which Executive will actively participate extends separately to the Restricted Area. Therefore, as an essential ingredient of and in consideration of this Agreement and Executive's employment with the Company and its subsidiaries and affiliates and accordingly agrees as follows:
(a) During the Company, Executive shall not, during Executive’s 's employment with the Company and for a period or during the Restricted Period, directly or indirectly do any of one the following (1all of which are collectively referred to in this Agreement as the "Restrictive Covenant"):
(i) year from the date of termination of Executive’s employment for any reason, the Executive shall not, anywhere within the United States either as principal, agent, employee, consultant, partner, officer, director, shareholder, Engage or in any other individual or representative capacityinvest in, own, manage, operate, finance, operatecontrol, control or otherwise engage or participate in any manner the ownership, management, operation, or fashion in an employmentcontrol of, business or other activity competitive with the Company. The post-employment restriction contained in this section shall not apply in the State of California.
(b) Executive further agrees thatbe employed by, during the Executive’s employment with the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reason, the Executive shall not, directly or indirectly, either as a principal, agent, employee, consultant, partner, officer, director, shareholderassociated with, or in any other individual or representative capacitymanner connected with, on the Executive’s behalf or any other persons or entity other than the Company or its affiliatesserve as a director, (i) solicit or induce, or attempt to solicit or induce, directly or indirectly, any customer or prospective customer of the Company with whom the Executive has had personal contact within the twelve (12) month period prior to the Executive’s termination date, or (ii) solicit or induce, or attempt to solicit or induce, directly or indirectly any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee or agent ofofficer, or consultant to, lend Executive's name or any similar name to, lend Executive's credit to or render services or advice to, in each case in the capacity (or any substantially similar capacity) that Executive provided services to the Company, any person, firm, partnership, corporation, other business entity, or trust that owns, operates, or is in the process of forming a Competitor with an office located, or to be located at an address identified in a filing with any regulatory authority, within the Restricted Area; provided, however, that the ownership by Executive of shares of the capital stock of any institution, which shares are listed on a securities exchange and that do not represent more than 1% of the institution's outstanding capital stock, shall not violate any terms of this Agreement;
(A) Induce or attempt to induce any employee of the Company or its Affiliates to leave the employ of the Company or its Affiliates; (B) interfere with the relationship between the Company or its Affiliates and any employee of the Company or its Affiliates; or (C) induce or attempt to induce any customer, supplier, licensee, or other business relation of the Company or its Affiliates with whom Executive had an ongoing business relationship to cease doing business with the Company or its Affiliates or interfere with the relationship between the Company or its Affiliates and their respective customers, suppliers, licensees, or other business relations with whom Executive had an ongoing business relationship.
(iii) Solicit the business of any person or entity known to Executive to be a customer of the Company or its Affiliates, where Executive, or any person reporting to Executive, had accessed Confidential Information of, had an ongoing business relationship with, or had made Substantial Business Efforts with respect to, such person or entity, with respect to products, activities, or services that compete in whole or in part with the products, activities, or services of the Company or its Affiliates.
(iv) Serve as the agent, broker, or representative of, or otherwise assist, any person or entity in obtaining services or products from any Competitor within the Restricted Area, with respect to products, activities, or services that Executive devoted time to on behalf of the Company or any of its affiliatesAffiliate (or any substantially similar products, to terminate its, his or her relationship therewithactivities, or (iiiservices) hire and that compete in whole or engage any person who isin part with the products, activities, or during the twelve (12) month period prior to the Executive’s termination date was, an employee, agent services of or consultant to the Company or any of its affiliatesAffiliates.
(cv) Accept employment with, provide services to, or act in any other such capacity for or with any Competitor, if in such employment or capacity Executive understands that the provisions of this Section 11 may limit Executive’s ability to earn a livelihood in a business similar to the business of the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill would inevitably use or other business interests of disclose the Company, (ii) 's Confidential Information in Executive's work or service for such provisions contain reasonable limitations as to time and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained hereinCompetitor.
Appears in 2 contracts
Sources: Employment Agreement (Trinity Capital Corp), Employment Agreement (Trinity Capital Corp)
Non-Competition and Non-Solicitation. 5.1 Executive acknowledges and recognizes that the highly competitive nature Company is, as of the businesses Effective Date, engaged principally in the business of providing health information risk assessment services to insurance companies and health and wellness providers, performing lab testing services, providing underwriting services in connection with the processing of life insurance applications, and providing health information gathering and assessment services to healthcare and research entities, throughout the United States. By virtue of Executive's position with the Company, Executive will be exposed to and acquire significant confidential information about the Company and its subsidiaries existing and affiliates future plans and accordingly agrees as follows:strategies. As a result, Executive acknowledges that the Company has a legitimate business interest supporting the restrictive covenants set forth in this Section 5.
(a) 5.2 During the Executive’s 's employment with the Company and for a period until the first anniversary of one (1) year from the date of termination of Executive’s 's employment for any reason, the Executive shall not, anywhere within the United States either as principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, own, manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an employment, business or other activity competitive with the Company. The post-employment restriction contained in this section , Executive shall not apply in the State of California.
(b) Executive further agrees that, during the Executive’s employment with the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reason, the Executive shall notmanner, directly or indirectly, either within the United States (without the prior written consent of a duly authorized officer of the Company):
(a) act as a principal, agent, employee, consultant, partner, officer, director, shareholder, Competitive Enterprise or accept any engagement in any capacity that involves Executive performing management, consultation, advisory or other individual or representative capacity, on the services of any kind with a Competitive Enterprise (as defined in Section 5.3 below) in which Executive’s behalf or role will include competing with Company in any other persons or entity other than the Company or its affiliates, (i) solicit or induce, or attempt to solicit or induce, directly or indirectly, any customer or prospective customer of the Company with whom the Executive has had personal contact within the twelve (12) month period prior to the Executive’s termination date, or (ii) solicit or induce, or attempt to solicit or induce, directly or indirectly any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee or agent of, or consultant to, business in which the Company or any of its affiliates, subsidiaries is then engaged;
(b) Solicit (as defined in Section 5.3 below) any Customer (as defined in Section 5.3 below) to terminate its, his transact business with a Competitive Enterprise or her relationship therewith, to reduce or (iii) hire or engage refrain from doing any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee, agent of or consultant to business with the Company or any of its affiliates.subsidiaries;
(c) transact business with any Customer that would cause Executive understands that the provisions of this Section 11 may limit Executive’s ability to earn a livelihood in a business similar to the business of the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests of the Company, (ii) such provisions contain reasonable limitations as to time and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceablea Competitive Enterprise;
(d) If a judicial determination is made by a court of competent jurisdiction that interfere with or damage any relationship between the time or territory Company or any its subsidiaries with a Customer; or
(e) Solicit anyone who is then an employee of the Company or any of its subsidiaries (or who was an employee of the Company or any of its subsidiaries within the prior 12 months) to resign from the Company or any of its subsidiaries or to apply for or accept employment with any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions business or enterprise.
5.3 For purposes of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.Agreement:
Appears in 2 contracts
Sources: Employment Agreement (Hooper Holmes Inc), Employment Agreement (Hooper Holmes Inc)
Non-Competition and Non-Solicitation. The Executive acknowledges and recognizes that in the highly competitive nature course of the businesses of the Company his employment with Saia and its subsidiaries affiliates he has become, and in the course of his employment with Saia he will continue to become, familiar with ▇▇▇▇’▇ trade secrets and those of ▇▇▇▇’▇ affiliates and accordingly agrees as follows:
(a) During the Executive’s employment with the Company its customers and for a period suppliers. Executive further acknowledges that his services are of one (1) year from the date of termination of Executive’s employment for any reasonspecial, unique and extraordinary value to Saia. Therefore, the Executive shall not, anywhere within the United States either as principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, own, manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an employment, business or other activity competitive with the Company. The post-employment restriction contained in this section shall not apply in the State of California.
(b) Executive further agrees that, during the Executive’s employment with the Company and for a period of one Restricted Period (1) year from the date of termination of Executive’s employment for any reasonas defined below), the Executive he shall not, either directly or indirectly, either for himself or on behalf of or in conjunction with any other person, company, partnership, corporation, business, group, or other entity (each, a “Person”):
(a) perform (as a principal, agent, employee, consultant, partner, an officer, director, shareholderowner, partner, member, joint venturer, or in a managerial capacity (whether as an employee, independent contractor, or consultant)), within the Territory, any other individual executive, managerial, sales, business planning, financial planning, or representative capacitymarketing services that are the same or substantially similar to the services that he performed for Saia or an affiliate of Saia at any time during the last twelve (12) months of his employment for any business engaged in the Restricted Business (as defined below);
(b) directly or indirectly solicit, on the Executive’s behalf call upon, divert, or any other persons or entity other than the Company or its affiliates, (i) solicit or inducetake away, or attempt to solicit solicit, call upon, divert, or inducetake away, directly or indirectlyfor the purpose of competing with Saia in the Restricted Business, any customer customer, supplier, or prospective customer trading partner of Saia with or as to whom Executive had any business-related contact or acquired or had access to any Confidential Information or Trade Secrets of Saia or an affiliate of Saia at any time during the Company with whom the Executive has had personal contact within the last twelve (12) month period prior to the Executive’s termination date, months of his employment;
(c) directly or (ii) indirectly solicit or induce, or attempt to solicit or induceany employees, directly or indirectly any person who isagents, or during independent contractors of Saia or an affiliate of Saia with whom Executive had any business-related contact within the last twelve (12) month period months of his employment with Saia, without the prior written consent of Saia, in order to the Executive’s termination date was, an employee or agent of, or consultant to, the Company or any of its affiliates, induce them to terminate its, his their employment or her to terminate or limit their agency or independent contractor agreement or relationship therewith, with Saia or (iii) hire or engage any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee, agent affiliate of or consultant to the Company or any of its affiliatesSaia.
(c) Executive understands that the provisions of this Section 11 may limit Executive’s ability to earn a livelihood in a business similar to the business of the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests of the Company, (ii) such provisions contain reasonable limitations as to time and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court For purposes of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions Sections 11 and 12 of this Agreement Agreement:
(i) References to the “Territory” shall not be rendered void but mean the territory described in Exhibit B hereto, which Executive acknowledges and agrees is the territory in which Saia operates its business. Executive further acknowledges and agrees that he performs services for Saia, and calls on ▇▇▇▇’▇ customers, throughout the entire Territory.
(ii) References to the “Restricted Business” shall be deemed amended to apply as to such maximum mean the provision of regional, interregional and/or national less-than-truckload services. Executive acknowledges that ▇▇▇▇’▇ business may change over time and territory agrees that he will not unreasonably withhold consent to the modification of this definition resulting from such change.
(iii) References to the “Restricted Period” shall mean the period of time Executive is employed by Saia or an affiliate of Saia and to such maximum extent as such court may judicially determine or indicate a period of two years after the date the Executive ceases to be enforceable. Alternatively, if any court employed by Saia or arbitrator an affiliate of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained hereinSaia.
Appears in 2 contracts
Sources: Employment Agreement (Saia Inc), Employment Agreement (Saia Inc)
Non-Competition and Non-Solicitation. Executive acknowledges and recognizes the highly competitive nature (i) In view of the businesses unique and valuable services it is expected Executive has rendered and will continue to render to the Company and its affiliates, the relationship Executive has and will have with the customers of the Company and its subsidiaries affiliates, Executive's knowledge of the customers, trade secrets, and other proprietary information relating to the business of the Company and its affiliates and accordingly their customers, suppliers and licensees and similar knowledge regarding the Company and its affiliates which Executive has obtained and will continue to obtain, and in consideration of the rights granted to Executive under this Agreement, Executive agrees that Executive will not during the period Executive is employed by the Company or any of its affiliates Participate In (as follows:herein defined) any other business or organization, whether or not such business or organization now is or shall then be competing with or of a nature similar to the business of the Company or any of its affiliates or their licensees. Nothing herein shall prevent Executive from owning publicly traded securities representing less than 1 % of the equity of a publicly traded company.
(aii) During Executive further agrees that while Executive is employed by the Company or any of its affiliates and thereafter (notwithstanding the reason or basis for the termination of Executive’s 's employment with the Company and or its affiliates) for a period of one (1) year from the date of termination of Executive’s employment for any reason24 months, the Executive shall not, anywhere within the United States either as principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, own, manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an employment, business or other activity competitive with the Company. The post-employment restriction contained in this section shall not apply in the State of California.
(b) Executive further agrees that, during the Executive’s employment with the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reason, the Executive shall not, directly or indirectly, either as a principalhire, agent, employee, consultant, partner, officer, director, shareholderengage or retain, or in aid or assist any other individual or representative capacity, on the Executive’s behalf or any other persons person or entity other than to hire, engage, or retain (A) (x) any designers of the Company or its affiliates, (iy) solicit any person who held the position of Director or induceany equivalent or more senior position at the Company or any of its affiliates, or attempt to solicit (z) any licensee of Company or induceany person who acted as one of the Company's or its affiliates' outside consultants, directly in each instance at the time of termination of Executive's employment or indirectlywithin the six-month period prior thereto, (B) any customer or prospective customer person employed by a licensee of the Company with whom or its affiliates who worked on the Executive has had personal contact Company's brands at the time of termination of Executive's employment or within the twelve (12) six-month period prior to the Executive’s termination datethereto, or (iiC) solicit any person or induceentity that supplied piece goods or designs to, or attempt to solicit that manufactured or induce, directly or indirectly any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee or agent of, or consultant sold apparel to, the Company or any of its affiliates, to terminate its, his or her relationship therewith, or (iii) hire or engage any person who is, or affiliates during the twelve (12) six-month period prior to the Executive’s termination date was, an employee, agent of or consultant to the Company or any of its affiliatessuch termination.
(c) Executive understands that the provisions of this Section 11 may limit Executive’s ability to earn a livelihood in a business similar to the business of the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests of the Company, (ii) such provisions contain reasonable limitations as to time and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.
Appears in 2 contracts
Sources: Employment Agreement (Kasper a S L LTD), Employment Agreement (Kasper a S L LTD)
Non-Competition and Non-Solicitation. Executive acknowledges and recognizes the highly competitive nature (a) As part of the businesses consideration for the compensation and benefits to be paid to Executive hereunder, to protect Confidential Information of the Company and its customers and clients that have been and will be entrusted to Executive, the business goodwill of the Company and its subsidiaries that will be developed in and affiliates through Executive and accordingly agrees the business opportunities that will be disclosed or entrusted to Executive by the Company and its subsidiaries, and as followsan additional incentive for the Company to enter into this Agreement, if termination is (x) as a result of Executive’s voluntary termination under Section 8(a) or (y) by the Company for Cause under Section 8(b), from the date hereof through the first anniversary of the Date of Termination (the “Restricted Period”), Executive will not (other than for the benefit of the Company pursuant to this Agreement), directly or indirectly:
(ai) During the Executive’s employment with the Company and for engage in, or carry on or assist, individually or as a period of one (1) year from the date of termination of Executive’s employment for any reason, the Executive shall not, anywhere within the United States either as principal, agent, employee, consultant, partnerowner, officer, director, employee, shareholder, consultant, contractor, partner, member, joint venturer, agent, equity owner or in any other individual or representative capacity whatsoever (in any such capacity, ownan “Investor”), manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an employment, (1) any business or other activity directly competitive with the business in which the Company is engaged from time to time (“Competing Business”) or (2) Business Enterprise (as defined below) that is otherwise directly competitive with the Company within the States of Tennessee and Kentucky;
(ii) perform for any corporation, partnership, limited liability company, sole proprietorship, joint venture or other business association or entity (a “Business Enterprise”) engaged in any Competing Business any duty Executive has performed for the Company that involved Executive’s access to, or knowledge or application of, Confidential Information;
(iii) induce or attempt to induce any customer, supplier, licensee or other business relation of the Company to cease doing business with the Company or in any way interfere with the relationship between any such customer, supplier, licensee or business relation and the Company. The post-employment restriction contained ;
(iv) induce or attempt to induce any customer, supplier, licensee or other business relation of the Company with whom Executive had direct business contact in this section shall not apply dealings during the Employment Period in the State course of Californiahis employment with the Company to cease doing business with the Company or in any way interfere with the relationship between any such customer, supplier, licensee or business relation and the Company; or
(v) solicit with the purpose of hiring or hire any person who is or, within 180 days after such person ceased to be an employee of the Company, was an employee of the Company.
(b) Executive further agrees thatNotwithstanding the foregoing restrictions of this Section 15, during the nothing in this Section 15 shall prohibit (A) any investment by Executive’s employment with the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reason, the Executive shall not, directly or indirectly, either as in securities which are issued by a principalBusiness Enterprise involved in or conducting a Competing Business, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, on the provided that Executive’s behalf or any other persons or entity other than the Company or its affiliates, (i) solicit or induce, or attempt to solicit or induce, directly or indirectly, any customer or prospective customer does not own more than 5% of the Company with whom the Executive has had personal contact within the twelve (12) month period prior to the Executive’s termination date, outstanding equity or voting securities of such Business Enterprise or (iiB) solicit or induce, or attempt to solicit or induceExecutive, directly or indirectly indirectly, from owning any person who isinterest in any Business Enterprise which conducts a Competing Business if such interest in such Business Enterprise is owned as of the date of this Agreement and Executive does not have the right, in the case of (A) or during (B), through the twelve (12) month period prior to the Executive’s termination date was, an employee ownership of a voting interest or agent of, or consultant to, the Company or any of its affiliatesotherwise, to terminate its, his or her relationship therewith, or (iii) hire or engage any person who is, or during direct the twelve (12) month period prior to the Executive’s termination date was, an employee, agent activities of or consultant to associated with the Company or any business of its affiliatessuch Business Enterprise.
(c) Executive understands acknowledges that each of the covenants of Section 15(a) are in addition to, and shall not be construed as a limitation upon, any other covenant provided in Section 15(a). Executive agrees that the provisions geographic boundaries, scope of this Section 11 may limit Executive’s ability to earn a livelihood in a business similar to the business prohibited activities, and time duration of each of the Company but Executive nevertheless agrees covenants set forth in Section 15(a) are reasonable in nature and hereby acknowledges that (i) such provisions do not impose a greater restraint are no broader than is are necessary to maintain the confidentiality and the goodwill of the Company’s proprietary and Confidential Information, plans and services and to protect the goodwill or other legitimate business interests of the Company, (ii) such provisions contain reasonable limitations as to time including without limitation the goodwill developed by Executive with Company’s customers, suppliers, licensees and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceablebusiness relations.
(d) If a judicial determination If, during any portion of the Restricted Period, Executive is made not in compliance with the terms of Section 15(a), the Company shall be entitled to, among other remedies, compliance by a court Executive with the terms of competent jurisdiction Section 15(a) for an additional period of time (i.e., in addition to the Restricted Period) that shall equal the period(s) over which such noncompliance occurred.
(e) The parties hereto intend that the time or territory or any other restriction covenants contained in this Agreement is an unenforceable restriction against Section 15(a) be construed as a series of separate covenants, one for each defined province in each geographic area in which Executive on behalf of the ExecutiveCompany conducts business. Except for geographic coverage, the provisions of this Agreement shall not be rendered void but each such separate covenant shall be deemed amended identical in terms to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction the applicable covenant contained in this Agreement is unenforceableSection 15(a). Furthermore, each of the covenants in Section 14(a) shall be deemed a separate and such restriction cannot be amended so as to make it enforceableindependent covenant, such finding shall not affect each being enforceable irrespective of the enforceability of any (with or without reformation) of the other restrictions covenants contained hereinin Section 15(a).
Appears in 2 contracts
Sources: Employment Agreement (Vanguard Natural Resources, LLC), Employment Agreement (Vanguard Natural Resources, LLC)
Non-Competition and Non-Solicitation. Executive acknowledges and recognizes the highly competitive nature (a) In consideration of the businesses of CSI Confidential Information acquired by the Company and its subsidiaries the Partnership Group and affiliates the other Confidential Information being provided, and accordingly which the Company herein agrees to provide in the future, to the Employee as follows:
(a) During stated in Section 5.1 hereof, and other good and valuable new consideration as stated in this Agreement and as provided to the Executive’s Employee as of the Effective Date, including, without limitation, employment with the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reasonCompany, the Executive shall notPhantom Units being granted by the Partnership pursuant to Section 3.3(a), anywhere within and the United States either as principalbusiness relationships, agentPartnership Group goodwill, employeework experience, consultantclient, partnercustomer and/or vendor relationships and other benefits of employment that the Employee will have the opportunity to obtain, officeruse and develop under this Agreement, director, shareholder, or in any other individual or representative capacity, own, manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an employment, business or other activity competitive with the Company. The post-employment restriction contained Employee agrees to the restrictive covenants stated in this section shall not apply in the State of CaliforniaSection 5.3.
(b) Executive further agrees that, during During the Executive’s employment with Employment Period and until the Company and for a period end of one (1) year from the date of termination of Executive’s employment for any reasonRestricted Period, the Executive shall Employee agrees that the Employee will not, directly or indirectly, either as a principal, agent, employee, consultant, partner, officer, director, shareholder, on the Employee’s own behalf or in on the behalf of any other individual or representative capacityPerson, on within the Executive’s behalf or any other persons or entity other than the Company or its affiliates, Restricted Area:
(i) solicit engage in a Competing Business, including, without limitation, by owning, managing, operating, controlling, being employed by, providing services as a consultant or independent contractor to or participating in the ownership, management, operation or control of any Competing Business;
(ii) induce or attempt to induce any customer, vendor, supplier, licensor or other Person in a current or previous business relationship with any member of the Partnership Group, (A) to do business with a Competing Business or (B) to cease, restrict, terminate or otherwise reduce business with any member of the Partnership Group, in each case regardless of whether the Employee initiates contact; or
(iii) (A) solicit, recruit, persuade, influence or induce, or attempt to solicit solicit, recruit, persuade, influence or induceinduce anyone employed by any member of the Partnership Group (including any former employees of CSI who are employed by any member of the Partnership Group as part of the Transaction), to cease or leave their employment relationship with any member of the Partnership Group or (B) hire, employ or otherwise attempt to establish, for any Person, any employment, consulting, independent contractor or other business relationship with any Person who is or was during the prior twelve (12) months employed by any member of the Partnership Group (including any former employees of CSI who are employed by any member of the Partnership Group as part of the Transaction); provided, however, the Employee may, directly or indirectly, on the Employee’s own behalf or on behalf of any customer or prospective customer other Person, hire any former employee of the Company or the Partnership Group whose employment with the Company or Partnership Group had terminated not less than three (3) months prior to the date of hire and (i) who is not specifically solicited for employment by the Employee, either directly or indirectly, but who on his or her own initiative seeks employment with Employee or any other Person with whom the Executive has had personal contact within the twelve (12) month period prior to the Executive’s termination dateEmployee is affiliated, or (ii) solicit or inducewho responds to a general ad for employment published by Employee, or attempt any other Person with whom the Employee is affiliated, that is not specifically targeted to solicit or induce, directly or indirectly any person who is, or during employees of the twelve (12) month period prior to the Executive’s termination date was, an employee or agent of, or consultant to, the Company or any of its affiliates, to terminate its, his or her relationship therewith, or (iii) hire or engage any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee, agent of or consultant to the Company or any of its affiliatesPartnership Group.
(c) Executive understands The parties hereto acknowledge and agree that, notwithstanding anything in Section 5.3(b)(i) hereof, the Employee may own or hold, solely as passive investments, securities of Persons engaged in any business that would otherwise be included in Section 5.3(b)(i), as long as with respect to each such investment the securities held by the Employee do not exceed one percent (1%) of the outstanding securities of such Person and such securities are publicly traded and registered under Section 12 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”); provided, however, that the provisions Employee shall not be permitted to, directly or indirectly, participate in, or attempt to influence, the management, direction or policies of (other than through the exercise of any voting rights held by the Employee in connection with such securities), or lend the Employee’s name to, any such Persons.
(d) The Employee acknowledges and agrees that, for purposes of this Section 11 5.3, indirect acts by the Employee shall include, without limitation, an act by any entity directly or indirectly controlled by the Employee. Employee may limit Executive’s ability to earn not avoid the purpose and intent of this Section 5.3 by engaging in the restricted conduct within the Restricted Area from a livelihood in a business remote location through means such as telecommunications, written correspondence, computer generated or assisted communications including, without limitation, email or the internet, or other similar to the business of the Company but Executive nevertheless agrees and hereby methods.
(e) The Employee acknowledges that (i) the restrictive covenants contained in this Section 5.3 hereof are ancillary to and part of an otherwise enforceable agreement, such provisions being the agreements concerning Confidential Information and other consideration as stated in this Agreement, (ii) at the time that these restrictive covenants are made, the limitations as to time, geographic scope and activity to be restrained, as described herein, are reasonable and do not impose a greater restraint than is necessary to protect the goodwill or and other legitimate business interests of the CompanyPartnership Group, including without limitation, Confidential Information (ii) such provisions contain reasonable limitations as to time including trade secrets), client, customer and/or vendor relationships, client and/or customer goodwill and scope of activity to be restrainedbusiness productivity, (iii) in the event of termination of the Employee’s employment, the Employee’s experiences and capabilities are such provisions are not harmful to that the general publicEmployee can obtain gainful employment without violating this Agreement and without the Employee incurring undue hardship, (iv) such provisions are not unduly burdensome based on the relevant benefits and other new consideration provided for in this Agreement, including, without limitation, the disclosure and use of Confidential Information, the restrictive covenants of this Section 5.3, as applicable according to Executivetheir terms, shall remain in full force and effect even in the event of the Employee’s involuntary termination from employment, with or without Cause, (v) the Employee has carefully read this Agreement and has given careful consideration provided hereunder is sufficient to compensate Executive for the restrictions contained restraints imposed upon the Employee by this Agreement and consents to the terms of the restrictive covenants in this Section 11. In consideration of 5.3, with the foregoing knowledge that this Agreement may be terminated at any time in accordance with the provisions hereof and (vi) the restrictions set forth in this Section 5.3 are fair and reasonable in light of Executivethe nature and wide geographic scope of the Partnership Group’s educationoperations, skills which occur throughout the Restricted Area and abilitiesthe Employee’s level of control over, Executive agrees that Executive shall not assert thatcontact with, and it should not be considered thatassociation, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court of competent jurisdiction that with the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against Partnership Group’s business throughout the Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained hereinRestricted Area.
Appears in 2 contracts
Sources: Employment Agreement (CSI Compressco LP), Employment Agreement (Compressco Partners, L.P.)
Non-Competition and Non-Solicitation. Executive acknowledges and recognizes the highly competitive nature of the businesses of the Company and its subsidiaries Affiliates, the valuable confidential business information in Executive’s possession and affiliates the customer goodwill associated with the ongoing business practice of the Company, and accordingly agrees as follows:
(ai) During the Executive’s employment with the Company and for For a period ending on the expiration of one (1) year from following the date of termination of Executive’s employment (the “Restricted Period”), Executive will not directly or indirectly, (A) engage in any business for Executive’s own account that competes with the business of the Company, (B) enter the employ of, or render any reasonservices to, any person engaged in any business that competes with the Executive shall notbusiness of the Company, anywhere within (C) acquire a financial interest in, or otherwise become actively involved with, any person engaged in any business that competes with the United States either business of the Company, directly or indirectly, as principal, agent, employee, consultantan individual, partner, shareholder, officer, director, shareholder, or in any other individual or representative capacity, own, manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an employment, business or other activity competitive with the Company. The post-employment restriction contained in this section shall not apply in the State of California.
(b) Executive further agrees that, during the Executive’s employment with the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reason, the Executive shall not, directly or indirectly, either as a principal, agent, employee, trustee or consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, on the Executive’s behalf or any other persons or entity other than the Company or its affiliates, (i) solicit or induce, or attempt to solicit or induce, directly or indirectly, any customer or prospective customer of the Company with whom the Executive has had personal contact within the twelve (12) month period prior to the Executive’s termination date, or (iiD) solicit interfere with business relationships (whether formed before or induce, or attempt to solicit or induce, directly or indirectly any person who is, or during after the twelve (12date of this Agreement) month period prior to the Executive’s termination date was, an employee or agent of, or consultant to, between the Company or any of its affiliates, to terminate its, his or her relationship therewith, or (iii) hire or engage any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee, agent of or consultant to the Company or any of its affiliates.
(c) Executive understands Affiliates that the provisions of this Section 11 may limit Executive’s ability to earn a livelihood are engaged in a business similar to the business of the Company but (the “Company Affiliates”) and customers or suppliers of the Company or the Company Affiliates.
(ii) Notwithstanding anything to the contrary in this Agreement, Executive nevertheless agrees may directly or indirectly own, solely as a passive investment, securities of any person engaged in the business of the Company which are publicly traded on a national or regional stock exchange or on the over-the-counter market if Executive (A) is not a controlling person of, or a member of a group which controls, such person and hereby acknowledges that (iB) does not, directly or indirectly, own one percent (1%) or more of any class of securities of such provisions do not impose a greater restraint than is necessary to protect person.
(iii) During the goodwill Restricted Period, and for an additional one year after the end of the Restricted Period, Executive shall not, directly or other business interests indirectly, (A) without the written consent of the Company, solicit or encourage any employee of the Company or the Company Affiliates to leave the employment of the Company or the Company Affiliates, or (iiB) without the written consent of the Company (which shall not be unreasonably withheld), hire any such provisions contain reasonable limitations employee who has left the employment of the Company or the Company Affiliates (other than as to time and scope a result of activity to be restrained, (iiithe termination of such employment by the Company or the Company Affiliates) within one year after the termination of such provisions are not harmful to employee’s employment with the general public, Company or the Company Affiliates.
(iv) such provisions are not unduly burdensome to Executive, and (v) During the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration of the foregoing and in light of Executive’s education, skills and abilitiesRestricted Period, Executive agrees that Executive shall not assert thatwill not, and it should not be considered thatdirectly or indirectly, solicit or encourage to cease to work with the Company or the Company Affiliates any provisions of this Section 11 otherwise are void, voidable consultant then under contract with the Company or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained hereinCompany Affiliates.
Appears in 2 contracts
Sources: Change in Control Severance Agreement (Interline Brands, Inc./De), Change in Control Severance Agreement (Interline Brands, Inc./De)
Non-Competition and Non-Solicitation. Executive acknowledges and recognizes (a) The parties acknowledge that as prime consideration for the highly competitive nature of the businesses obligations of the Company hereunder, the Employee has agreed and its subsidiaries represented that for and affiliates during the duration of his employment, and accordingly agrees as follows:
(a) During the Executive’s employment with the Company and for during a period of one (1) year from the date of his termination of Executive’s employment for any reasonreason whatsoever, the Executive shall not, anywhere within the United States either as principal, agent, employee, consultant, partner, officer, director, shareholder, he will not directly or in any other individual or representative capacityindirectly:
(i) Provide services to, own, manage, finance, operate, control or otherwise engage or participate in the ownership, management or control of, or be connected as an officer, employee, partner, director, or otherwise with, or have any manner financial interest in, or fashion in an employment, business aid or other activity competitive with the Company. The post-employment restriction contained in this section shall not apply assist anyone else in the State of California.
conduct of, any entity or business (b) Executive further agrees that, during existing on the Executivedate that Employee’s employment with the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reason, the Executive shall not, directly or indirectly, either as a principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, on the Executive’s behalf or any other persons or entity other than the Company or its affiliates, (i) solicit or induce, or attempt to solicit or induce, directly or indirectly, any customer or prospective customer of the Company with whom the Executive has had personal contact within the twelve (12) month period prior to the Executive’s termination date, or (ii) solicit or induce, or attempt to solicit or induce, directly or indirectly any person who is, or terminates and/or during the twelve (12one-year period thereafter) month period prior that is or has current plans to the Executive’s termination date was, an employee or agent of, or consultant to, be in competition with the Company or any of its affiliates, to terminate its, his subsidiaries or her relationship therewith, or (iii) hire or engage affiliates within any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee, agent of or consultant to area in which the Company conducts its business on the date that Employee’s employment with the Company terminates. Notwithstanding the foregoing, Employee’s ownership of securities of a public company engaged in competition with the Company not in excess of two percent (2%) of any class of such securities shall not be considered a breach of the covenants set forth herein; or
(ii) Contact, call upon, communicate, solicit or sell or attempt to contact, call upon, communicate, solicit or sell any services or products which are provided by or dealt in by, the Company to any of its affiliates.
(c) Executive understands that the provisions of this Section 11 may limit Executive’s ability to earn a livelihood in a business similar to the business of the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests present customers of the Company, (ii) such provisions contain reasonable limitations as to time any past customers of the Company who were customers during the period of the Employee’s employment or to any prospective customers of the Company’s whom the Employee solicited during the period of his employment. It is the intent of the Employee and scope the Company to preserve the exclusivity of activity the Company’s customer relations, special knowledge, trade secrets and experience gained or to be restrainedgained in the future by the Employee during his association with the Company, (iii) recognizing that if such provisions are not harmful customer relations, experience, knowledge and trade secrets were made available to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration competitors of the foregoing and in light of ExecutiveCompany, it would irreparably damage the Company’s education, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained hereinbusiness.
Appears in 2 contracts
Sources: Severance Agreement (BioHorizons, Inc.), Severance Agreement (BioHorizons, Inc.)
Non-Competition and Non-Solicitation. Executive (a) Employee acknowledges that during the course of Employee’s employment Employee will receive confidential and recognizes proprietary information from and concerning the highly competitive Company. Employee also acknowledges that the Company will make substantial investments in the development of the Company’s goodwill and in Employee’s professional development. The capital expended to develop this goodwill directly benefits Employee and should continue to do so in the event that the relationship between the Company and Employee is terminated. Likewise, the Company has conferred and will confer a direct economic benefit on Employee. Employee agrees that the Company is entitled to protect these business interests and investments and to prevent Employee from using or taking advantage of the foregoing economic benefits to the Company’s detriment.
(b) Employee agrees that, except for services and duties performed for or on behalf of the Company according to this Agreement, Employee will not, during the period of Employee’s employment with the Company, and for a period (the “Restricted Period”) of one (1) year immediately following the termination of Employee’s employment under this Agreement, for any reason whatsoever, directly or indirectly, for himself or on behalf of or in conjunction with any other person, persons, company, partnership, corporation, association, enterprise, venture or business of whatever nature:
(i) engage, as an officer, director, shareholder, owner, partner, joint venturer, lender or in a managerial capacity, whether as an employee, independent contractor, agent, consultant or advisor or as a sales representative, or similar business in direct competition with those aspects of the business of the Company or any subsidiary of the Company, with which Employee has had any involvement, within United States of America, Canada and all other countries in which customers of the Company have access to the world wide web (the “Territory”);
(ii) solicit any person who is, at that time, or who has been within one (1) year prior to that time, an employee of the Company for the purpose or with the intent of enticing such employee away from or out of the employ of the Company;
(iii) solicit any person or entity which is, at that time, or which has been within one (1) year prior to that time, a customer, doctor, service provider or supplier of the Company for the purpose of soliciting or selling products or services in direct competition with those aspects of the business of the Company or any subsidiary of the Company with which Employee has had any involvement, within the Territory; or
(iv) solicit any prospective acquisition candidate, on Employee’s own behalf or on behalf of any competitor or potential competitor, which candidate was, to Employee’s knowledge, either called upon by the Company or for which the Company made an acquisition analysis, for the purpose of acquiring such entity. Notwithstanding the above, the foregoing covenant shall not be deemed to prohibit Employee from acquiring as an investment not more than two percent (5%) of the capital stock of a competing business, whose stock is traded on a national securities exchange or over-the-counter.
(c) In recognition of the substantial nature of such potential damages and the businesses difficulty of measuring economic losses to the Company as a result of a breach of the foregoing covenants, and because of the immediate and irreparable damage that could be caused to the Company for which they would have no other adequate remedy, Employee agrees that in the event of breach by Employee of the foregoing covenant, the Company shall be entitled to specific performance of this provision and co-injunctive and other equitable relief.
(d) It is agreed by the parties that the foregoing covenants in this paragraph 4 impose a reasonable restraint on Employee in light of the activities and business of the Company on the date of the execution of this Agreement and the current plans of the Company and its subsidiaries Employee that such covenants be construed and affiliates enforced in accordance with the changing activities, business and accordingly agrees as follows:locations of the Company throughout the term of this Agreement, whether before or after the date of termination of the employment of Employee.
(ae) During All of the Executivecovenants in this paragraph 4 shall be construed as an agreement independent of any other provision in this Agreement, and the existence of any claim or cause of action of Employee against the Company, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by the Company of such covenants. Further, this paragraph 4 shall survive the termination of this Agreement and the termination of Employee’s employment with the Company and for a Company. It is specifically agreed that the period of one (1) year from the date of following termination of Executive’s employment for any reasonstated at the beginning of this paragraph 4, during which the Executive shall not, anywhere within the United States either as principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, own, manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an employment, business or other activity competitive with the Company. The post-employment restriction contained agreements and covenants of Employee made in this section paragraph 4 shall not apply be effective, shall be computed by excluding from such computation any time during which Employee is in the State violation of California.
(b) Executive further agrees that, during the Executive’s employment with the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reason, the Executive shall not, directly or indirectly, either as a principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, on the Executive’s behalf or any other persons or entity other than the Company or its affiliates, (i) solicit or induce, or attempt to solicit or induce, directly or indirectly, any customer or prospective customer of the Company with whom the Executive has had personal contact within the twelve (12) month period prior to the Executive’s termination date, or (ii) solicit or induce, or attempt to solicit or induce, directly or indirectly any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee or agent of, or consultant to, the Company or any of its affiliates, to terminate its, his or her relationship therewith, or (iii) hire or engage any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee, agent of or consultant to the Company or any of its affiliates.
(c) Executive understands that the provisions provision of this Section 11 may limit Executive’s ability to earn a livelihood in a business similar to the business of the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests of the Company, (ii) such provisions contain reasonable limitations as to time and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained hereinparagraph 4.
Appears in 2 contracts
Sources: Executive Employment Agreement (Willowtree Advisor, Inc.), Executive Employment Agreement (Omnireliant Holdings, Inc.)
Non-Competition and Non-Solicitation. Executive acknowledges and recognizes the highly competitive nature of the businesses of the Company and its subsidiaries and affiliates and accordingly agrees as follows:
(a) During the Executive’s employment with the Company and for a period of one (1) year from thereafter equal to the date of termination of Executive’s employment for any reasonSeverance Period, the Executive shall not, anywhere within for himself or herself or on behalf of or in conjunction with any other person, persons, company, firm, partnership, corporation, business, group or other entity (each, a “Person”), work in the United States either as principal, agent, employee, consultant, partner, officer, director, shareholderprincipal line of business engaged in, or planned to be engaged in, by the Company and its affiliates at the Date of Termination within any state where the Company or its affiliates are doing business or have plans for commencing business as of the Date of Termination. The Executive’s passive ownership of less than five percent (5%) of the securities of a public company shall not be treated as an action in competition with the Company and its affiliates.
(a) Executive hereby acknowledges and agrees that his employment with the Company places him in a position of trust and confidence with respect to the business operations, customers, prospects and personnel of the Company and its affiliates. He agrees that, due to his position and knowledge, his engaging in any other individual or representative capacity, own, manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an employment, business or other activity competitive with the Company. The post-employment restriction contained in this section shall not apply that competes in the State principal line of Californiabusiness as the Company will cause the Company and its affiliates significant and irreparable harm.
(b) In consideration of the compensation and benefits extended to him under this Agreement, Executive further agrees that, during the term of Executive’s employment with by the Company and for a period of one (1) year from thereafter equal to the date of termination of Executive’s employment for any reasonSeverance Period, the Executive shall not, for any reason whatsoever, directly or indirectly, either as a principalfor himself or herself or on behalf of or in conjunction with any other Person with whom the Executive works or is affiliated:
(i) solicit and/or hire any Person who is on the Date of Termination, agentor has been within six (6) months prior to the Date of Termination, employeean employee of the Company or its affiliates;
(ii) solicit, consultantinduce or attempt to induce or hire any Person who is, at the Date of Termination, or has been within six (6) months prior to the Date of Termination, an actual customer, client, business partner, officeror a prospective customer, directorclient, shareholderbusiness partner of the Company or its affiliates, for the purpose or in any other individual with the intent of (A) inducing or representative capacity, on the Executive’s behalf or any other persons or entity other than attempting to induce such Person to cease doing business with the Company or its affiliates, (iB) solicit enticing or induceattempting to entice such Person to do business with Executive or any affiliate of Executive, or (C) in any way interfering with the relationship between such Person and the Company or its affiliates; or
(iii) solicit, induce or attempt to solicit induce any Person who is or inducethat is, directly or indirectly, any customer or prospective customer at the time of the Company with whom the Executive Date of Termination, or has had personal contact been within the twelve six (126) month period months prior to the Executive’s termination dateDate of Termination, a supplier, licensee or (ii) solicit or induce, or attempt to solicit or induce, directly or indirectly any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee or agent consultant of, or consultant to, the Company provider of goods or any of its affiliates, to terminate its, his or her relationship therewith, or (iii) hire or engage any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee, agent of or consultant services to the Company or its affiliates, for the purpose or with the intent of (A) inducing or attempting to induce such Person to cease doing business with the Company or its affiliates or (B) in any of way interfering with the relationship between such Person and the Company or its affiliates.
(c) In the event the Severance Period is less than 12 months, or in the event there is no Severance Period, the Company shall have the right, but not the obligation, to extend the period of time during which the restrictive covenants set forth in clauses (a) and (b) above shall remain in effect for up to 24 additional months following the Severance Period or the Date of Termination, as the case may be, subject to paying consideration to the Executive understands for such extended period in cash in an amount equal to the Executive’s Base Salary in effect on the Date of Termination, payable monthly in arrears. The Company shall provide written notice to the Executive at least 60 days prior to the second anniversary of the Date of Termination of the Company’s election to extend the restrictive covenants as provided herein.
(d) Because of the difficulty of measuring economic losses to the Company as a result of a breach of the foregoing covenants, and because of the immediate and irreparable damage that could be caused to the Company and its affiliates for which it would have no other adequate remedy, Executive agrees that the provisions of foregoing covenants in this Section 11 may limit Executive’s ability 9, in addition to earn a livelihood and not in a business similar limitation of any other rights, remedies or damages available to the Company at law, in equity or under this Agreement, shall be enforced by the Company in the event of the breach or threatened breach by Executive, by injunctions and/or restraining orders.
(e) It is agreed by the parties that the covenants contained in this Section 9 impose a fair and reasonable restraint on Executive in light of the activities and business of the Company and its affiliates on the date of the execution of this Agreement and the current plans of the Company and its affiliates; but it is also the intent of the Company and Executive nevertheless agrees that such covenants be construed and hereby enforced in accordance with the changing activities, business and locations of the Company and its affiliates throughout the term of these covenants. Executive also acknowledges that this restraint will not prevent him from earning a living in his chosen field of work.
(if) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests of the Company, (ii) such provisions contain reasonable limitations as to time and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained The covenants in this Section 11. In consideration 9 are severable and separate, and the unenforceability of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive any specific covenant shall not assert that, and it should not be considered that, any affect the provisions of this Section 11 otherwise are voidany other covenant. Moreover, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a in the event any court of competent jurisdiction shall determine that the scope, time or territory or territorial restrictions set forth herein are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent that such court deems reasonable, and the Agreement shall thereby be reformed to reflect the same.
(g) All of the covenants in this Section 9 shall be construed as an agreement independent of any other restriction contained provision in this Agreement is an unenforceable restriction Agreement, and the existence of any claim or cause of action of Executive against the Executive, Company whether predicated on this Agreement or otherwise shall not constitute a defense to the provisions enforcement by the Company of such covenants. It is specifically agreed that the duration of the period during which the agreements and covenants of Executive made in this Section 9 shall be effective shall be computed by excluding from such computation any time during which Executive is in violation of any provision of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. AlternativelySection 9.
(h) Notwithstanding any of the foregoing, if any court applicable law, judicial ruling or arbitrator order shall reduce the time period during which Executive shall be prohibited from engaging in any competitive activity described in Section 9 hereof, the period of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot time for which Executive shall be amended so as prohibited pursuant to make it enforceable, such finding Section 9 hereof shall not affect be the enforceability of any of the other restrictions contained hereinmaximum time permitted by law.
Appears in 2 contracts
Sources: Employment Agreement (KMG America CORP), Employment Agreement (KMG America CORP)
Non-Competition and Non-Solicitation. Executive acknowledges and recognizes the highly competitive nature of the businesses of the Company and its subsidiaries and affiliates and accordingly agrees as follows:
(a) a. During the Executivetime of Employee’s employment with the Company Celanese and for a period of one (1) year from the date of termination of Executive’s employment for any reasonRestricted Period thereafter, the Executive Employee shall not, anywhere within whether on Employee’s own behalf or on behalf of or in conjunction with any person, directly or indirectly solicit or assist in soliciting in competition with Celanese, the United States either business of any customer, prospective customer, client or prospective client: (i) with whom Employee had personal contact or dealings on behalf of Celanese during the one year period preceding the termination of Employee’s employment; (ii) with whom employees directly or indirectly reporting to Employee have had personal contact or dealings on behalf of Celanese during the one-year immediately preceding the termination of Employee’s employment; or (iii) for whom Employee had direct or indirect responsibility during the one year period immediately preceding the termination of Employee’s employment.
b. During the time of Employee’s employment with Celanese and for the Restricted Period thereafter, Employee shall not directly or indirectly: (i) engage in any Competitive Business, (ii) enter the employ of, or render any services to, any person (or any division or controlled or controlling affiliate of any person) who or which engages in a Competitive Business, (iii) acquire a financial interest in, or otherwise become actively involved with, any Competitive Business, directly or indirectly, as principal, agent, employee, consultantan individual, partner, stockholder, officer, director, shareholderprincipal, agent, trustee or consultant, or in any other individual (iv) interfere with, or representative capacityattempt to interfere with, business relationships between Celanese and customers, clients, suppliers partners, members or investors of Celanese. Notwithstanding the foregoing, Employee may directly or indirectly own, managesolely as an investment, finance, operate, control or otherwise engage or participate in securities of any manner or fashion in an employment, business or other activity competitive with the Company. The post-employment restriction contained in this section shall not apply person engaged in the State business of California.
Celanese which are publicly traded on a national or regional stock exchange or on the over-the-counter market if Employee (bx) Executive further agrees thatis not a controlling person of, during the Executive’s employment with the Company or a member of a group which controls, such person and for a period of one (1y) year from the date of termination of Executive’s employment for any reason, the Executive shall does not, directly or indirectly, either as a principal, agent, employee, consultant, partner, officer, director, shareholder, own 5% or in any other individual or representative capacity, on the Executive’s behalf or any other persons or entity other than the Company or its affiliates, (i) solicit or induce, or attempt to solicit or induce, directly or indirectly, any customer or prospective customer of the Company with whom the Executive has had personal contact within the twelve (12) month period prior to the Executive’s termination date, or (ii) solicit or induce, or attempt to solicit or induce, directly or indirectly any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee or agent of, or consultant to, the Company or any of its affiliates, to terminate its, his or her relationship therewith, or (iii) hire or engage any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee, agent of or consultant to the Company or any of its affiliates.
(c) Executive understands that the provisions of this Section 11 may limit Executive’s ability to earn a livelihood in a business similar to the business of the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests of the Company, (ii) such provisions contain reasonable limitations as to time and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability more of any class of the other restrictions contained hereinsecurities of such person.
Appears in 2 contracts
Sources: General Release Agreement (Celanese Corp), Long Term Incentive Award Claw Back Agreement (Celanese CORP)
Non-Competition and Non-Solicitation. Executive acknowledges and recognizes the highly competitive nature In consideration of the businesses of Rollover Consideration and the Company and its subsidiaries and affiliates and accordingly transactions contemplated hereby, the Major Stockholder agrees as followsto the following:
(a) During the Executive’s employment with the Company and for a period of one (1) year from commencing on the date hereof and ending on the fifth anniversary of termination of Executive’s employment for any reasonthe date hereof (the “Noncompetition Period”), the Executive shall Major Stockholder will not, without the express written consent of the Company, directly or indirectly, anywhere within in the United States either or in any foreign country in which the Company or its Subsidiaries or affiliates have conducted business, are conducting business or are presently contemplating conducting business, engage in any activity which is, or participate or invest in, or provide or facilitate the provision of financing to, or assist (whether as principalowner, agentpart-owner, employeeshareholder, consultantmember, partner, director, officer, directortrustee, shareholderexecutive, agent or consultant, or in any other individual capacity), any business, organization or representative capacity, own, manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an employment, business or other activity competitive with the Company. The post-employment restriction contained in this section shall not apply in the State of California.
(b) Executive further agrees that, during the Executive’s employment with the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reason, the Executive shall not, directly or indirectly, either as a principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, on the Executive’s behalf or any other persons or entity person other than the Company (or any Subsidiary or affiliate of the Company), including any such business, organization or person involving, or which is, a family member of the Major Stockholder, whose business, activities, products or services are competitive with any of the business, activities, products or services conducted or offered or proposed to be conducted or offered by the Company or its affiliates, (i) solicit subsidiaries or induce, or attempt to solicit or induce, directly or indirectly, affiliates during any customer or prospective customer of period in which the Company with whom the Executive has had personal contact within the twelve (12) month period prior to the Executive’s termination date, or (ii) solicit or induce, or attempt to solicit or induce, directly or indirectly any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee or agent of, or consultant to, Major Stockholder is employed by the Company or any of its subsidiaries or affiliates. Without implied limitation, the foregoing covenant shall be deemed to terminate its, his prohibit (i) hiring or her relationship therewith, engaging or (iii) attempting to hire or engage for or on behalf of the Major Stockholder or any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee, agent such competitor any employee of or consultant to the Company or any of its Subsidiaries and affiliates, or any former employee of the Company and any of its Subsidiaries and affiliates who was employed during the six (6) month period immediately preceding the date of such attempt to hire or engage, (b) encouraging for or on behalf of the Major Stockholder or any such competitor any such employee to terminate his or her relationship or employment with the Company or any of its Subsidiaries and affiliates, (c) recruiting or soliciting for or on behalf of the Major Stockholder or any such competitor any customer of the Company or any of its Subsidiaries and affiliates, or any former customer of the Company or any of its Subsidiaries and affiliates who was a customer during the six (6) month period immediately preceding the date of such solicitation and (d) diverting to any person (as hereinafter defined) any customer or business opportunity of the Company or any of any of its Subsidiaries and affiliates.
(b) Notwithstanding anything herein to the contrary, the Major Stockholder may make passive investments in any enterprise the shares of which are publicly traded if such investment constitutes less than five percent (5%) of the equity of such enterprise.
(c) Executive understands The Major Stockholder agrees that if a court of competent jurisdiction determines that any restriction, or portion thereof, set forth in this Section 8 is overly restrictive and unenforceable, the court may reduce or modify such restrictions to those which it deems reasonable and enforceable under the circumstances, and as so reduced or modified, the parties hereto agree that the restrictions of this Section 8 shall remain in full force and effect. The Major Stockholder further agrees that if a court of competent jurisdiction determines that any provision of this Section 8 is unenforceable, the remaining provisions of this Section 11 may limit Executive’s ability to earn a livelihood in a business similar to the business of the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do 8 shall not impose a greater restraint than is necessary to protect the goodwill or other business interests of the Company, (ii) such provisions contain reasonable limitations as to time and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executiveaffected thereby, and shall remain in full force and effect.
(vd) If the consideration provided hereunder is sufficient to compensate Executive for Major Stockholder violates any of the restrictions contained in this Section 11. In consideration 8, the restrictive period will be suspended and will not run in favor of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court of competent jurisdiction that Major Stockholder from the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against of the Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability commencement of any of violation until the other restrictions contained hereintime when the Major Stockholder cures the violation to the Company’s reasonable satisfaction.
Appears in 2 contracts
Sources: Major Stockholder Contribution and Exchange Agreement, Major Stockholder Contribution and Exchange Agreement (Open Link Financial, Inc.)
Non-Competition and Non-Solicitation. The Executive acknowledges that the Company has invested substantial time, money and resources in the development and retention of its Inventions, Confidential Information (including trade secrets), customers, accounts and business partners, and further acknowledges that during the course of the Executive's employment with the Company the Executive has had and will have access to the Company's Inventions and Confidential Information (including trade secrets), and will be introduced to existing and prospective customers, accounts and business partners of the Company. The Executive acknowledges and recognizes agrees that any and all "goodwill" associated with any existing or prospective customer, account or business partner belongs exclusively to the highly competitive nature Company, including, but not limited to, any goodwill created as a result of direct or indirect contacts or relationships between the businesses Executive and any existing or prospective customers, accounts or business partners. Additionally, the parties acknowledge and agree that Executive possesses skills that are special, unique or extraordinary and that the value of the Company depends upon his use of such skills on its behalf. In recognition of this, the Executive covenants and its subsidiaries and affiliates and accordingly agrees as followsthat:
(a) During the Executive’s employment with the Company Term, and for a period of one (1) year from the date of termination of Executive’s employment for any reasonthereafter, the Executive shall may not, anywhere within without the United States either prior written consent of the Board, (whether as principalan employee, agent, employeeservant, owner, partner, consultant, partnerindependent contractor, officerrepresentative, director, shareholder, stockholder or in any other individual capacity whatsoever): (i) conduct any business with any customer of the Company on behalf of any entity or representative capacityperson other than the Company (including the Executive), own, manage, finance, operate, control or otherwise engage or participate (ii) perform any work competitive in any manner way to the actual or fashion in an employment, planned business of the Company on behalf of any entity or person other activity competitive with than the Company. The post-employment restriction contained in this section shall not apply in Company (including the State of CaliforniaExecutive).
(b) Executive further agrees thatDuring the Term, during the Executive’s employment with the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reasonthereafter, the Executive shall may not entice, solicit or encourage any Company employee to leave the employ of the Company or any independent contractor to sever its engagement with the Company, absent prior written consent to do so from the Board.
(c) During the Term, and for a period of one (1) year thereafter, the Executive may not, directly or indirectly, either as a principalentice, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, on the Executive’s behalf or any other persons or entity other than the Company or its affiliates, (i) solicit or induce, or attempt to solicit or induce, directly or indirectly, encourage any customer or prospective customer of the Company to cease doing business with whom the Executive has had personal contact within the twelve (12) month period prior to the Executive’s termination dateCompany, or (ii) solicit or induce, or attempt to solicit or induce, directly or indirectly any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee or agent of, or consultant to, reduce its relationship with the Company or any of refrain from expanding its affiliates, to terminate its, his or her relationship therewith, or (iii) hire or engage any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee, agent of or consultant to the Company or any of its affiliates.
(c) Executive understands that the provisions of this Section 11 may limit Executive’s ability to earn a livelihood in a business similar to the business of the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests of with the Company, (ii) such provisions contain reasonable limitations as to time and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.
Appears in 2 contracts
Sources: Employment Agreement (Predictive Systems Inc), Employment Agreement (Predictive Systems Inc)
Non-Competition and Non-Solicitation. Executive acknowledges In consideration of Employee’s employment hereunder and recognizes the highly competitive nature benefits derived by Employee as a result of the businesses of transactions contemplated by the Company and its subsidiaries and affiliates and accordingly Merger Agreement, Employee agrees as followsto the following:
(a) During Employee hereby agrees that during the Executiveperiod commencing on the date hereof and ending on the date that is the later of (i) the second (2nd) anniversary of the date of the termination of Employee’s employment with the Company for any reason regardless of the circumstances thereof and (ii) in the case of a termination by the Company without Cause or a resignation by Employee for a period of one (1) year from Good Reason, if Employee receives benefits subsequent to the date of twenty four (24) month after the termination of Executive’s employment for any reasonpursuant to Section 6(e)(iv), the Executive shall last day that Employee receives benefits pursuant to such Section 6(e)(iv) (the “Noncompetition Period”), Employee will not, without the express written consent of the Company, directly or indirectly, anywhere within in the United States either or in any foreign country in which the Company has conducted business, is conducting business or is presently contemplating conducting business, engage in any activity which is, or participate or invest in, or provide or facilitate the provision of financing to, or assist (whether as principalowner, agentpart-owner, employeeshareholder, consultantmember, partner, director, officer, directortrustee, shareholderexecutive, agent or consultant, or in any other individual capacity), any business, organization or representative capacity, own, manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an employment, business or other activity competitive with the Company. The post-employment restriction contained in this section shall not apply in the State of California.
(b) Executive further agrees that, during the Executive’s employment with the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reason, the Executive shall not, directly or indirectly, either as a principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, on the Executive’s behalf or any other persons or entity Person other than the Company (or any subsidiary or affiliate of the Company), including any such business, organization or Person involving, or which is, a family member of Employee, whose business, activities, products or services are competitive with any of the business, activities, products or services conducted or offered or proposed to be conducted or offered by the Company or its affiliates, (i) solicit or induce, or attempt to solicit or induce, directly or indirectly, subsidiaries during any customer or prospective customer of the Company with whom the Executive has had personal contact within the twelve (12) month period prior to the Executive’s termination date, or (ii) solicit or induce, or attempt to solicit or induce, directly or indirectly any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee or agent of, or consultant to, in which Employee is employed by the Company or any of its affiliatessubsidiaries. Without implied limitation, the foregoing covenant shall be deemed to prohibit (other than through a general solicitation not targeted at the Company or its subsidiaries) (a) hiring or engaging or attempting to hire or engage for or on behalf of Employee or any such competitor any employee of the Company, Parent or any of their direct and/or indirect subsidiaries, or any former employee of the Company, Parent or any of their direct and/or indirect subsidiaries who was employed during the six (6) month period immediately preceding the date of such attempt to hire or engage, (b) encouraging for or on behalf of Employee or any such competitor any such employee to terminate its, his or her relationship therewithor employment with the Company, Parent or any of their direct and/or indirect subsidiaries, or (iiic) hire recruiting, soliciting or engage any person who is, diverting for or during the twelve (12) month period prior to the Executive’s termination date was, an employee, agent on behalf of or consultant to the Company Employee or any of its affiliates.
(c) Executive understands that the provisions of this Section 11 may limit Executive’s ability to earn a livelihood in a business similar to the business of the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests competitor any customer of the Company, Parent or any of their direct and/or indirect subsidiaries, or any former customer of the Company, Parent or any of their direct and/or indirect subsidiaries who was a customer during the six (ii6) month period immediately preceding the date of such provisions contain reasonable limitations recruitment, solicitation or diversion for the purpose of providing any business, activities, products or services the same as to time and scope of activity to be restrained, (iii) such provisions are not harmful or substantially similar to the general publicbusiness, activities, products or services provided or offered by the Company. Notwithstanding anything herein to the contrary, Employee may make passive investments in any enterprise the shares of which are publicly traded if such investment constitutes less than five percent (iv5%) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration of the foregoing and in light equity of Executive’s education, skills and abilities, Executive such enterprise. Employee agrees that Executive shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by if a court of competent jurisdiction determines that any restriction, or portion thereof, set forth in this Section 7 is overly restrictive and unenforceable, the court may reduce or modify such restrictions to those which it deems reasonable and enforceable under the circumstances, and as so reduced or modified, the parties hereto agree that the time or territory or restrictions of this Section 7 shall remain in full force and effect. Employee further agrees that if a court of competent jurisdiction determines that any other restriction contained in provision of this Agreement Section 7 is an unenforceable restriction against the Executiveunenforceable, the remaining provisions of this Section 7 and the remainder of this Agreement shall not be rendered void but affected thereby, and shall be deemed amended to apply as to such maximum time remain in full force and territory and to such maximum extent as such court may judicially determine or indicate to be enforceableeffect. Alternatively, if any court or arbitrator of competent jurisdiction finds Employee acknowledges that any restriction the restrictions contained in this Agreement is unenforceableparagraph in view of the nature of the Company’s business, are reasonable and necessary to protect the Company’s legitimate business interests and that any violation of this paragraph would result in irreparable injury to the Company, and such restriction canthat monetary damages may not be amended so sufficient to compensate the Company for any economic loss which may be incurred by reason of breach of the foregoing restrictive covenants. In the event of a breach or a threatened breach by Employee of any provision in this paragraph, the Company shall be entitled to a temporary restraining order and injunctive relief restraining Employee from the commission of any breach, and to recover the Company’s attorneys’ fees, costs and expenses related to the breach or threatened breach. Nothing contained in this paragraph shall be construed as prohibiting the Company from pursuing any other remedies available to make it enforceablefor any breach or threatened breach, such finding including, without limitation, the recovery of money damages, attorneys’ fees and costs. The restrictions in this paragraph shall each be construed as independent of any other provisions in this Agreement, and the existence of any claim or cause of action by Employee against the Company, whether predicated on this Agreement or otherwise, shall not affect constitute a defense to the enforceability enforcement of this Agreement. If Employee violates any of the other restrictions contained hereinin this Section, the restrictive period will be suspended and will not run in favor of Employee from the time of the commencement of any violation until the time when Employee cures the violation to the Company’s reasonable satisfaction.
(b) During and after Employee’s employment, Employee shall cooperate fully with the Company in the defense or prosecution of any claims or actions now in existence or which may be brought in the future against or on behalf of the Company that relate to events or occurrences that transpired while Employee was employed by the Company. Employee’s full cooperation in connection with such claims or actions shall include, but not be limited to, being available to meet with counsel to prepare for discovery or trial and to act as a witness on behalf of the Company at mutually convenient times. During and after the Employment, Employee also shall cooperate fully with the Company in connection with any investigation or review of any federal, state or local regulatory authority as any such investigation or review relates to events or occurrences that transpired while Employee was employed by the Company. Subject to Section 17(d), the Company shall reimburse Employee for any reasonable fees and reasonable out-of-pocket expenses incurred in connection with Employee’s performance of obligations pursuant to this Section 7(b) and such cooperation shall be at reasonable times and upon reasonable advance notice.
(c) Employee agrees, while he is employed by the Company, to offer or otherwise make known or available to it, as directed by the Board of the Company and without additional compensation or consideration, any business prospects, contracts or other business opportunities that Employee may discover, find, develop or otherwise have available to Employee in the Company’s general industry and further agrees that any such prospects, contacts or other business opportunities shall be the property of the Company.
Appears in 2 contracts
Sources: Employment Agreement (CommScope Holding Company, Inc.), Employment Agreement (CommScope Holding Company, Inc.)
Non-Competition and Non-Solicitation. Executive acknowledges While employed by the Company, the Employee shall devote all of his business time, attention, skill and recognizes effort to the highly competitive nature faithful performance of his duties for the businesses of the Company and its subsidiaries and affiliates and accordingly agrees as follows:
(a) During the Executive’s employment with the Company and for Company. For a period of one (1) year from after the date termination or cessation of termination of ExecutiveEmployee’s employment for any reason, the Executive shall Employee will not, anywhere within in the United States either geographical areas that the Company or any of its subsidiaries does business or has done business at the time of Employee’s departure, directly or indirectly:
(a) Engage or assist others in engaging in any business or enterprise (whether as principal, agent, employee, consultantowner, partner, officer, director, shareholderemployee, consultant, investor, lender or in any other individual or representative capacityotherwise, own, manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an employment, business or other activity except as the holder of not more than 1% of the outstanding stock of a publicly-held company) that is competitive with the Company. The post-employment restriction contained in this section shall ’s business, including but not apply in limited to any business or enterprise that develops, manufactures, markets, or sells any product or service that competes with any product or service developed, manufactured, marketed or sold, or planned to be developed, manufactured, marketed or sold, by the State Company or any of California.its subsidiaries while the Employee was employed by the Company; or
(b) Executive further agrees thatEither alone or in association with others (i) induce or attempt to induce, any employee or independent contractor of the Company to leave employment or other engagement with the Company, or (ii) hire, solicit or recruit or attempt to hire, solicit or recruit for employment engagement as an independent contractor, or any person who was employed by the Company at any time during the Executiveterm of the Employee’s employment with the Company. This restriction shall not apply to hire of any individual who has not been employed by the Company for a period of six (6) months or more; or
(c) Either alone or in association with others, solicit, divert or take away, or attempt to solicit, divert or take away, the business or patronage of any of the clients, customers, business partners, investors or accounts of the Company which were contacted, solicited or served by the Company at any time during the term of the Employee’s employment with the Company and for a period of one (1) year from regarding which the date of termination of Executive’s employment for any reason, the Executive shall not, directly or indirectly, either as a principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, on the Executive’s behalf or any other persons or entity other than the Company or its affiliates, Employee had either: (i) solicit or induce, or attempt to solicit or induce, directly or indirectly, any customer or prospective customer of the Company with whom the Executive has had personal contact within the twelve (12) month period prior to the Executive’s termination date, substantive contact; or (ii) solicit or induce, or attempt access to solicit or induce, directly or indirectly any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee or agent of, or consultant to, the Company or any of its affiliates, to terminate its, his or her relationship therewith, or (iii) hire or engage any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee, agent of or consultant to the Company or any of its affiliatesconfidential information.
(c) Executive understands that the provisions of this Section 11 may limit Executive’s ability to earn a livelihood in a business similar to the business of the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests of the Company, (ii) such provisions contain reasonable limitations as to time and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.
Appears in 2 contracts
Sources: Employment Agreement (Accellent Inc), Employment Agreement (Accellent Inc)
Non-Competition and Non-Solicitation. Executive acknowledges and recognizes the highly competitive nature of the businesses of the Company and its subsidiaries and affiliates and accordingly agrees as follows:
(a) During the Executive’s employment with the Company Employment Period and for a period of one (1) year from thereafter (the date of termination of Executive’s employment for any reason“Non-Compete Period”), the Executive shall notnot engage, anywhere within the United States either directly or indirectly, whether as principal, agent, employee, consultant, partnerdistributor, officerrepresentative, directorfive percent (5%) or greater stockholder or otherwise, shareholder, in the business of manufacturing and/or distributing pool equipment anywhere in the United States or in any other individual jurisdiction in which the Companies operate during the Employment Period or, with respect to the portion of the Non-Compete Period that follows the Employment Period, as of the conclusion of the Employment Period (a “Competing Business”). Notwithstanding the foregoing, nothing contained herein shall prohibit the Executive from providing services for or representative capacitywith respect to any division, ownsubsidiary or affiliate (each, managea “Unit”) of an entity (other than Pentair plc or any of its Affiliates) if that Unit is not engaged in a Competing Business, finance, operate, control irrespective of whether some other Unit of such entity engages in a Competing Business (so long as the Executive does not directly or otherwise engage or participate in any manner or fashion in an employment, business or other activity competitive with indirectly provide services for the Company. The post-employment restriction contained in this section shall not apply in the State of Californiacompeting Unit).
(b) Executive further agrees that, during During the Executive’s employment with the Company Employment Period and for a period of one two (12) year from years thereafter (the date of termination of Executive’s employment for any reason“Non-Solicit Period”), the Executive shall not, directly or indirectly, either as a principal, agent, employee, consultant, partner, officer, director, shareholder, indirectly (whether alone or in any other individual or representative capacity, on the Executive’s behalf or any other persons or entity other than the Company or its affiliatesjointly with another Person), (i) solicit or inducefor employment, hire, employ, or attempt engage any Person who, at any time during the Non-Solicit Period, is an officer or employee of the Parent or any of its direct or indirect subsidiaries, including the Company; provided, however, that the preceding sentence does not prohibit the Executive from (A) soliciting or hiring any Person whose employment, or engagement for services, was terminated by any such Person at least twelve (12) months prior to solicit the date of such solicitation or inducehire; and provided, further, that such termination was not encouraged by the Executive, or (B) engaging in any general solicitation not targeted at any employee of any such Person, including a non-directed executive search or placing general advertisements for employees in newspapers or other media of general circulation so long as such employee is not hired, directly or indirectly, any customer or prospective customer of the Company with whom by the Executive has had personal contact within the twelve (12) month period prior to the Executive’s termination date, or any of his controlled Affiliates or (ii) solicit business from any customer or induce, solicit products or attempt to solicit or induce, directly or indirectly services from any person who is, or during vendor of the twelve (12) month period prior to the Executive’s termination date was, an employee or agent of, or consultant to, the Company Parent or any of its affiliatesdirect or indirect subsidiaries, to terminate itsincluding the Company, his that interferes with or her relationship therewith, jeopardizes the business or (iii) hire relationships of any such Person with any such customer or engage any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee, agent of or consultant to the Company or any of its affiliatesvendor.
(c) Executive understands The Parties acknowledge and agree that the provisions of Executive’s obligations under Section 6, this Section 11 7 and the following Section 8 (collectively, the “Covenants”) are of a special, unique and extraordinary nature, that there may limit Executive’s ability be no adequate remedy at law for any breach thereof, that any such breach may allow third parties to earn a livelihood compete unfairly with the Parent or any of its direct or indirect parents or subsidiaries, including the Company, resulting in a business similar irreparable harm to any such Person, and, therefore, upon any such breach or any threat thereof, the business Companies shall be entitled to preliminary and permanent, mandatory or negative injunctive relief against any breach or threatened breach by the Executive of any of the Company but Covenants, without having to post a bond, in addition to whatever remedies they may have at law. The Executive nevertheless hereby agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests terms of the CompanyCovenants are reasonable, (ii) such provisions contain reasonable limitations as to time the foregoing restrictions will not prevent him from obtaining gainful employment in his occupation or field of expertise or cause him undue hardship, and scope of activity to be restrained, (iii) in the event a court determines that any of the provisions of the Covenants are unreasonable or contrary to public policy, or invalid or unenforceable for any reason in fact, law or equity, then such provisions are not harmful provision shall be deemed to be modified to permit its enforcement to the general publicmaximum extent permitted by law. So that the Companies may enjoy the full benefits of the covenants set forth in this Section 7, (iv) such provisions are not unduly burdensome to Executivethe Executive further agrees that the Non-Compete Period or Non-Solicit Period, as applicable, shall be tolled, and (v) shall not run, during the consideration provided hereunder period of time during which the Executive is sufficient to compensate Executive for in breach of any of the restrictions covenants contained in this Section 117, after such time the Company has informed the Executive that he is so in breach. In consideration It is also agreed that each of the foregoing Parent and in light its direct or indirect parents or subsidiaries, including the Company, shall have the right to enforce all of the Executive’s educationobligations to that Affiliate under this Agreement, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of including without limitation pursuant to this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein7.
Appears in 2 contracts
Sources: Employment Agreement (Hayward Holdings, Inc.), Employment Agreement (Hayward Holdings, Inc.)
Non-Competition and Non-Solicitation. Executive acknowledges and recognizes the highly competitive nature of the businesses of the Company and its subsidiaries and affiliates and accordingly agrees as follows:
(a) During The Executive acknowledges that in the Executive’s course of his employment with the Company Companies he will become familiar with Confidential Information and for a that his services will be of special, unique and extraordinary value to the Companies. Therefore, the Executive agrees that, during the Time Period, the Executive shall not directly or indirectly own, manage, control, or engage in any business with any Person (including by himself or in association with any Person, firm, corporate or other business organization or through any other entity) whose business is substantially similar to any segment of the Business in which the Companies engage, as such Business exists or is in process on the date of the termination of the Executive's employment, within the Trade Area.
(b) During the Time Period, the Executive shall not invest, directly or indirectly, in any corporation or other entity which is engaged in the Business.
(c) During the Time Period, the Executive shall not directly or indirectly through another entity (i) induce or attempt to induce any employee of the Companies or any affiliate of the Companies to leave the employ of the Companies or such affiliate, or in any way interfere with the relationship between the Companies and any employee thereof, (ii) hire any person who was an employee of the Companies at any time within the six-month period of one (1) year from prior to the date of termination of Executive’s employment for any reason, the Executive shall not, anywhere within the United States either as principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, own, manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an employment, business or other activity competitive with the Company. The post-employment restriction contained in this section shall not apply in the State of California.
(b) Executive further agrees that, during the Executive’s 's employment with the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reason, the Executive shall not, directly or indirectly, either as a principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, on the Executive’s behalf Companies or any other persons or entity other than the Company or its affiliates, (i) solicit or induce, or attempt to solicit or induce, directly or indirectly, any customer or prospective customer of the Company with whom the Executive has had personal contact within the twelve (12) month period prior to the Executive’s termination date, or (ii) solicit or induce, or attempt to solicit or induce, directly or indirectly any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee or agent of, or consultant to, the Company or any of its affiliates, to terminate its, his or her relationship therewithaffiliate thereof, or (iii) hire induce or engage attempt to induce any person who isCustomer, supplier, licensee, licensor, franchisee, franchisor or other business relation of the Companies or any affiliate to cease doing business with the Companies or such affiliate, or during in any way interfere with the twelve (12) month period prior to relationship between any such Customer, supplier, licensee, licensor, franchisee, franchisor or business relation and the Executive’s termination date was, an employee, agent of or consultant to the Company Companies or any of its affiliatesaffiliate thereof.
(cd) The Companies and the Executive understands that the provisions of this Section 11 may limit Executive’s ability to earn a livelihood in a business similar to the business of the Company but Executive nevertheless agrees and hereby acknowledges that agree that: (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or covenants set forth in this Section 11.3 are reasonable in geographical and temporal scope and in all other business interests of the Companyrespects, (ii) such provisions contain reasonable limitations as to time the Companies would not have entered into this Agreement but for the covenants of the Executive contained herein, and scope of activity to be restrained, (iii) the covenants contained herein have been made in order to induce the Companies to enter into this Agreement.
(e) If, at the time of enforcement of this Section 11.3, a court or arbiter shall hold that the duration, scope or area restrictions stated herein are unreasonable under circumstances then existing, the parties agree that the maximum duration, scope or area reasonable under such provisions are not harmful circumstances shall be substituted for the stated duration, scope or area and that the court shall be allowed to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for revise the restrictions contained in this Section 11. In consideration herein to cover the maximum period, scope and area permitted by law.
(f) The Executive hereby agrees that he shall at no time either prior to or following expiration of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court of competent jurisdiction that Time Period use the time or territory name "Ferrellgas," "Blue Rhino" or any other restriction contained name used by the Companies in this Agreement is an unenforceable restriction against any business venture unrelated to FGI engaged in by the Executive, Executive without the provisions prior written consent of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained hereinFGI.
Appears in 2 contracts
Sources: Employment Agreement (Blue Rhino Corp), Employment Agreement (Ferrellgas Finance Corp)
Non-Competition and Non-Solicitation. Executive acknowledges During the period commencing upon the Effective Date and recognizes ending on the highly competitive nature 18-month anniversary of the businesses termination of the Company and its subsidiaries and affiliates and accordingly agrees as follows:
(a) During the Executive’s employment with the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reasonCompany, the Executive shall not, anywhere within the United States either as principal, agent, an employee, consultantemployer, partnerstockholder, officer, director, shareholderpartner, associate, consultant or other independent contractor, advisor, proprietor, lender, or in any other individual or representative capacity, own, manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an employment, business or capacity (other activity competitive than with the Company. The post-employment restriction contained in this section shall not apply in the State of California.
(b) Executive further agrees that, during respect to the Executive’s employment with services to the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reason, the Executive shall notAffiliated Group), directly or indirectly, either as a principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, on the Executive’s behalf or any other persons or entity other than the Company or its affiliates, :
(i) solicit or induceperform services for, or attempt to solicit or induceotherwise have any involvement with, any business unit of a person, where such business unit competes directly or indirectly, indirectly with any customer or prospective customer member of the Company with whom Affiliated Group by (x) owning or operating broadband or mobile communications networks for telephone, mobile telephone, cable television or internet services, (y) providing mobile telephone, fixed line telephone, television or internet services or (z) owning, operating or providing any content-generation services or television channels, in each case principally in the United Kingdom (the “Core Businesses”); provided, however, that this Agreement shall not prohibit the Executive has had personal contact from owning up to 1% of any class of equity securities of one or more publicly traded companies;
(ii) hire any individual who is, or within the twelve (12) month period six months prior to the Executive’s termination datewas, an employee of any member of the Company Affiliated Group whose base salary at the time of hire exceeded £65,000 per year and with whom the Executive had direct contact (other than on a de minimis basis); or
(iii) solicit, in competition with any member of the Company Affiliated Group in the Core Businesses, any business, or order of business from any person that the Executive knows was a current or prospective customer of any member of the Company Affiliated Group during the Executive’s employment and with whom the Executive had contact; provided, that, notwithstanding the foregoing, the Executive shall not be deemed to be in violation of clause (i) or clause (iii) of the foregoing by virtue of (i) rejoining Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP (or any of its successors or affiliates) as a partner, member or employee, and acting in such capacity or (ii) solicit acting as an attorney (as partner, shareholder, member or induceemployee) or vice president, director or attempt managing director or in a similar position at any other law firm, investment banking firm or consulting firm, institutional investor or similar entity, in each case so long as the Executive takes reasonable steps to solicit or induce, directly or indirectly insulate himself from the businesses and activities of any person who is, or such entity that compete with the Core Businesses during the twelve (12) month any period prior to the Executive’s termination date was, an employee or agent of, or consultant to, the Company or any of its affiliates, to terminate its, his or her relationship therewith, or (iii) hire or engage any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee, agent of or consultant to the Company or any of its affiliates.
(c) Executive understands that the provisions of this Section 11 may limit Executive’s ability to earn a livelihood 9(b) is in a business similar to the business of the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests of the Company, (ii) such provisions contain reasonable limitations as to time and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained hereineffect.
Appears in 2 contracts
Sources: Employment Agreement (Virgin Media Inc.), Employment Agreement (Virgin Media Inc.)
Non-Competition and Non-Solicitation. Executive acknowledges and recognizes For a period of one year after ------------------------------------ the highly competitive nature closing of the businesses of transactions contemplated by the Company and its subsidiaries and affiliates and accordingly agrees as followsMerger Agreement the Employee will not, directly or indirectly:
(a) During the Executive’s employment with the Company and for a period of one Engage in any business or enterprise (1) year from the date of termination of Executive’s employment for any reason, the Executive shall not, anywhere within the United States either whether as principal, agent, employee, consultantowner, partner, officer, director, shareholder, or in any other individual or representative capacity, own, manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an employment, business or other activity competitive with the Company. The post-employment restriction contained in this section shall not apply in the State of California.
(b) Executive further agrees that, during the Executive’s employment with the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reason, the Executive shall not, directly or indirectly, either as a principal, agent, employee, consultant, partnerinvestor, officerlender or otherwise, director, shareholder, or in any other individual or representative capacity, on except as the Executive’s behalf or any other persons or entity other holder of not more than the Company or its affiliates, (i) solicit or induce, or attempt to solicit or induce, directly or indirectly, any customer or prospective customer 1% of the Company with whom the Executive has had personal contact within the twelve (12outstanding stock of a company) month period prior to the Executive’s termination date, or (ii) solicit or induce, or attempt to solicit or induce, that directly or indirectly any person who is, competes with Entrust's business or during the twelve (12) month period prior to the Executive’s termination date was, an employee or agent of, or consultant to, the Company or business of any of its affiliatessubsidiaries (which, to terminate its, his or her relationship therewith, or (iii) hire or engage any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee, agent of or consultant to the Company or any of its affiliates.
(c) Executive understands that the provisions for purposes of this Section 11 may limit Executive’s ability to earn a livelihood in a business similar Agreement, includes the Company), including but not limited to the business of the Company but Executive nevertheless agrees and hereby acknowledges any business or enterprise that develops, manufactures, markets, or sells any product or service that competes with any product or service developed, manufactured, marketed or sold, or planned to be developed, manufactured, marketed or sold, by Entrust or any of its subsidiaries while the Employee was employed by Entrust or any of its subsidiaries; or
(b) Either alone or in association with others (i) such provisions do not impose a greater restraint than is necessary solicit, or encourage any organization directly or indirectly controlled by the Employee to protect solicit, any employee of Entrust or any of its subsidiaries to leave the goodwill employ of Entrust or other business interests any of the Companyits subsidiaries, (ii) such provisions contain reasonable limitations solicit for employment, hire or engage as an independent contractor, or permit any organization directly or indirectly controlled by the Employee to solicit for employment, hire or engage as an independent contractor, any person who was employed by Entrust or any of its subsidiaries at any time and scope during the term of activity the Employee's employment with Entrust or any of its subsidiaries; provided, that this clause (ii) shall not apply to be restrainedany individual whose -------- employment with Entrust or any of its subsidiaries has been terminated for a period of one year or longer, or (iii) such provisions are not harmful solicit business from or perform services for or induce or attempt to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered thatinduce, any provisions customer, supplier, licensee or business relation of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court of competent jurisdiction that the time or territory Entrust or any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended its subsidiaries to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine cease doing business with Entrust or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of its subsidiaries, or in any way interfere with the other restrictions contained hereinrelationship between any customer, supplier, licensee or business relation of Entrust or any of its subsidiaries.
Appears in 2 contracts
Sources: Non Competition and Non Solicitation Agreement (Entrust Technologies Inc), Non Competition and Non Solicitation Agreement (Entrust Technologies Inc)
Non-Competition and Non-Solicitation.
(a) During the Employment Term, Executive acknowledges shall faithfully serve the Company to the best of Executive’s ability, shall use Executive’s best endeavors to promote the interest and recognizes welfare thereof, and shall devote the highly whole of Executive’s time, attention and abilities to such duties. By way of example and not limitation, this means that during the Employment Term, Executive will not do or say anything that: (i) could advance an interest of any existing or prospective competitor of the Company or any of its Affiliates in any way; or (ii) will or may injure an interest of the Company or any of its Affiliates in its relationship and dealings with existing or potential suppliers or customers. TXRH Executive Employment Agreement – ▇▇▇▇▇▇
(b) During Executive’s employment and for two (2) years following the termination of Executive’s employment (whether under this Agreement or during a successor or “at will” employment period):
(i) Executive shall not, directly or indirectly, on Executive’s own behalf or on behalf of any person or entity other than the Company, including without limitation as a proprietor, principal, agent, partner, officer, director, stockholder, employee, member of any association, consultant or otherwise, engage in any business that is directly competitive nature with the business of the Company, including without limitation any business that operates one or more full-service, casual dining steakhouse restaurants within the United States or any foreign country in which the Company or its franchisees or its joint venture partners is operating or in which Executive knows the Company or its franchisees or its joint venture partners proposes to open within twenty-four (24) months. The provisions of this Section shall also apply to any business which is directly competitive with any other business which the Company or an Affiliate acquires or develops during Executive’s employment with the Company.
(ii) Except as required in the performance of Executive’s duties as an employee of the Company, Executive shall not, directly or indirectly, (A) hire, engage or solicit or induce or attempt to induce to cease working for the Company, any person who is then an employee of the Company or who was an employee of the Company during the six (6) month period immediately preceding Executive’s termination of employment with the Company, nor (B) solicit, request, advise, induce or attempt to induce any vendor, supplier or other business contact of the Company to cancel, curtail, cease doing business with, or otherwise adversely change its relationship with the Company.
(c) For the purposes of this Agreement, the phrase “proposes to open” a restaurant includes all locations for which active, bona fide negotiations to secure a fee or leasehold interest with the intention of establishing a restaurant are being conducted. Mere ownership, whether through direct or indirect stock holdings or otherwise, of one percent (1%) or less of a business shall not constitute a violation of the restriction in Section 11(b)(i) above, unless a greater amount is approved in writing by the Board. Executive is deemed to engage in a business if Executive expects to acquire a proprietary interest in a business or to be made an employee, officer, director, manager, consultant, independent contractor, advisor or otherwise of such business at any time after such possibility has been discussed with any officer, director, employee, agent, or promoter of such business.
(d) Executive agrees that Executive’s experience, capabilities and circumstances are such that these provisions will not prevent Executive from earning a livelihood. Executive further agrees that the limitations set forth in this Section (including, without limitation, any time or territorial limitations) are reasonable and properly required for the adequate protection of the businesses of the Company and its subsidiaries and affiliates and accordingly agrees as follows:
(a) During the Executive’s employment with the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reason, the Executive shall not, anywhere within the United States either as principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, own, manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an employment, business or other activity competitive with the CompanyAffiliates. The post-employment restriction contained in this section shall not apply in the State of California.
(b) covenants made by Executive further agrees that, during the Executive’s employment with the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reason, the Executive shall not, directly or indirectly, either as a principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, on the Executive’s behalf or any other persons or entity other than the Company or its affiliates, (i) solicit or induce, or attempt to solicit or induce, directly or indirectly, any customer or prospective customer of the Company with whom the Executive has had personal contact within the twelve (12) month period prior to the Executive’s termination date, or (ii) solicit or induce, or attempt to solicit or induce, directly or indirectly any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee or agent of, or consultant to, the Company or any of its affiliates, to terminate its, his or her relationship therewith, or (iii) hire or engage any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee, agent of or consultant to the Company or any of its affiliates.
(c) Executive understands that the provisions of this Section 11 may limit Executive’s ability to earn a livelihood in a business similar to the business of the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests of the Company, (ii) such provisions contain reasonable limitations as to time and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration of the foregoing (and in light of Executive’s educationSections 8, skills 9, 10 and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions 17) will survive the expiration or termination of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceableAgreement. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.
Appears in 2 contracts
Sources: Employment Agreement (Texas Roadhouse, Inc.), Employment Agreement (Texas Roadhouse, Inc.)
Non-Competition and Non-Solicitation. Executive acknowledges and recognizes the highly competitive nature of the businesses of the Company and its subsidiaries and affiliates and accordingly agrees as follows:
(a) During The Founder hereby covenants and undertakes that, unless upon the Executive’s employment with prior written consent of the Company and for a period Preferred Majority, that commencing from the date of this Agreement until one (1) year from after the later of (i) the date of termination of Executive’s employment for on which the Founder ceases to hold, directly or indirectly, any reason, the Executive shall not, anywhere within the United States either as principal, agent, employee, consultant, partner, officer, director, shareholder, or Equity Securities in any other individual or representative capacity, own, manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an employment, business or other activity competitive with the Group Company. The post-employment restriction contained in this section shall not apply in the State of California.
; and (bii) Executive further agrees that, during the Executive’s employment with the Company and for a period of one (1) year from the date on which the Founder ceases to be engaged by or holds any position as an officer or director or employee of termination of Executive’s employment for any reasonGroup Company (the “Non-Competition Period”), the Executive he shall not, directly or indirectly, either as a principalown, agentmanage, employeebe engaged in, consultantoperate, partnerControl, officerwork for, directorconsult with, shareholderrender services for, do business with, maintain any interest in (proprietary, financial or otherwise) or participate in the ownership, management, operation or Control of, any other individual business, whether in corporate, proprietorship or representative capacitypartnership form or otherwise, on that includes the Executive’s behalf business of any Group Company or any other persons part thereof or entity other than the Company or its affiliates, (i) solicit or induce, or attempt to solicit or induce, directly or indirectly, any customer or prospective customer of the Company with whom the Executive has had personal contact within the twelve (12) month period prior to the Executive’s termination date, or (ii) solicit or induce, or attempt to solicit or induce, that otherwise competes directly or indirectly with any person who isGroup Company, except that the Founder may have a passive investment of less than five percent (5%) of the stock of any publicly traded company that engages in the foregoing as a financial investor.
(b) During the Non-Competition Period, in the event any Person directly or during indirectly established or managed by any Founder engages or proposes to engage in any business that includes the twelve (12) month period prior to the Executive’s termination date was, an employee or agent of, or consultant to, the business of any Group Company or any of its affiliatespart thereof or that otherwise competes directly or indirectly with any Group Company, to terminate its, his or her relationship therewith, or (iii) hire or engage such Founder shall disclose any person who is, or during the twelve (12) month period prior and all information regarding such Person to the ExecutiveInvestors upon request and shall cause the lawful portion of such Person’s termination date was, an employee, agent of or consultant business to be transferred immediately to the Company or any of its affiliatesSubsidiary designated by the Company.
(c) Executive understands that The Founder further covenants and undertakes that, during the provisions of this Section 11 may limit Executive’s ability to earn a livelihood in a business similar to the business of the Company but Executive nevertheless agrees and hereby acknowledges that Non-Competition Period, he shall not (i) cause, solicit, induce or encourage any employee of any Group Company to leave the employment or hire of such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests of the Group Company, (ii) employ or otherwise engage any such provisions contain reasonable limitations as to time and scope of activity to be restrained, individual nor (iii) such provisions are not harmful cause, induce or encourage any material actual or prospective client, customer, supplier, licensee or licensor of any Group Company, or any other Person who has a material business relationship with any Group Company, to terminate or modify to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration detriment of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, Group Companies any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceablesuch relationship.
(d) If a judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in Each and every obligation under this Agreement is an unenforceable restriction against the Executive, the provisions of this Agreement shall not be rendered void but Section 11.2 shall be deemed amended to apply treated as to such maximum time a separate obligation and territory and to such maximum extent shall be severally enforceable as such court may judicially determine such. In the event of any obligation being or indicate to be enforceable. Alternatively, if any court becoming unenforceable in whole or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceablepart, such finding part which is unenforceable shall be deleted from such clause and any such deletion shall not affect the enforceability of any the remainder parts of such clause.
(e) The Parties agree that having regard to all the circumstances, the restrictive covenants contained in this Section 11.2 are reasonable and necessary for the protection of the other restrictions contained hereinGroup Companies and the Investors, and further agree that having regard to those circumstances those covenants are not excessive or unduly onerous upon the Founder.
Appears in 2 contracts
Sources: Shareholder Agreement (Gracell Biotechnologies Inc.), Shareholder Agreement (Gracell Biotechnologies Inc.)
Non-Competition and Non-Solicitation. Executive acknowledges and recognizes the highly competitive nature of the businesses of the Company and its subsidiaries and affiliates and accordingly agrees as follows:
(a) During Executive acknowledges that the services to be performed by him under this Agreement are of a special, unique, unusual, extraordinary and intellectual character, and the provisions of this Section 7 are reasonable and necessary to protect the Business.
(b) In consideration of the foregoing acknowledgments by Executive’s employment with , and in consideration of the Company compensation and benefits to be paid or provided to Executive by THK, Executive covenants that he will not, during the term of this Agreement and for a period of one (1) year from thereafter, directly or indirectly:
(1) except in the date course of termination of Executive’s his employment for any reasonhereunder, the Executive shall notand except as permitted by Section 3 above, anywhere within the United States either as principal, agent, employee, consultant, partner, officer, director, shareholder, engage or in any other individual or representative capacityinvest in, own, manage, operate, finance, operatecontrol, control or otherwise engage or participate in the ownership, management, operation, financing, or control of, be employed by, associated with, or in any manner connected with, any business whose products or fashion services compete in an employment, business whole or other activity competitive in part with the Company. The post-employment restriction contained in this section shall products or services of THK or any THK Affiliate; provided, however, that Executive may purchase or otherwise acquire up to (but not apply more than) one percent (1%) of any class of securities of any enterprise (but without otherwise participating in the State activities of California.such enterprise) if such securities are listed on any national or regional securities exchange or have been registered under Section 12(g) of the Securities Exchange Act of 1934;
(b2) whether for Executive’s own account or for the account of any other person, solicit business of the same or similar type of business then being carried on by THK or any THK Affiliate, from any person or entity known by Executive further agrees thatto be a customer of THK or any THK Affiliate, whether or not Executive had personal contact with such person or entity during the and by reason of Executive’s employment with the Company and THK;
(3) whether for a period of one (1) year from the date of termination of Executive’s employment for own account or the account of any reasonother person (i) solicit, the Executive shall not, directly employ or indirectly, either otherwise engage as a principal, agent, an employee, consultantindependent contractor or otherwise, partner, officer, director, shareholder, any person who is or was an employee of THK or any THK Affiliate at any time during the term of this Agreement or in any other individual or representative capacity, on the Executive’s behalf or any other persons or entity other than the Company or its affiliates, (i) solicit or induce, manner induce or attempt to solicit induce any employee of THK or induce, directly any THK Affiliate to terminate his employment with THK or indirectly, any customer or prospective customer of the Company with whom the Executive has had personal contact within the twelve (12) month period prior to the Executive’s termination dateTHK Affiliate, or (ii) solicit interfere with THK’s or induce, or attempt to solicit or induce, directly or indirectly any THK Affiliate relationship with any person or entity, including any person or entity who is, or at any time during the twelve term of this Agreement was an employee, contractor, supplier or customer of THK or any THK Affiliate; or
(124) month period prior to at any time during or after the Executive’s termination date wasterm of this Agreement, an employee disparage THK or agent ofany THK Affiliate, or consultant to, the Company or any of its affiliatestheir respective shareholders, to terminate itsdirectors, his officers, employees or her relationship therewith, or (iii) hire or engage any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee, agent of or consultant to the Company or any of its affiliatesagents.
(c) Executive understands that the provisions If any covenant of this Section 11 may limit Executive’s ability 7 is held to earn a livelihood in a business similar be unreasonable, arbitrary or against public policy, such covenant will be considered to the business of the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary be divisible with respect to protect the goodwill or other business interests of the Companyscope, (ii) such provisions contain reasonable limitations as to time and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executivegeographic area, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration such lesser scope, time or geographic area, or all of the foregoing and in light of Executive’s educationthem, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by as a court of competent jurisdiction may determine to be reasonable, not arbitrary and not against public policy, will be effective, binding and enforceable against Executive.
(d) Executive acknowledges and agrees that should Executive transfer between or among THK and any of its affiliated companies including, without limitation, any parent, subsidiary or other corporately related entity (a “THK Affiliate”) wherever situated, or otherwise become employed by any THK Affiliate, or should he be promoted or reassigned to functions other than the time or territory or any other restriction contained duties set forth in this Agreement is an unenforceable restriction against the Agreement, or should Executive’s compensation and benefit package change (either higher or lower), the provisions terms of this Agreement Section 7 shall not be rendered void but shall be deemed amended continue to apply as with full force.
(e) Executive agrees and acknowledges that THK does not have an adequate remedy at law for the breach or threatened breach by Executive of this Section 7 and agrees that THK may, in addition to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained hereinremedies which may be available to it under this Agreement, file suit in equity to enjoin Executive from such breach or threatened breach.
Appears in 2 contracts
Sources: Employment Agreement (Think Partnership Inc), Employment Agreement (Think Partnership Inc)
Non-Competition and Non-Solicitation. Executive acknowledges and recognizes the highly competitive nature of the businesses of the Company and its subsidiaries and affiliates and accordingly agrees as follows:
(a) During the Executive’s employment with the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reason, the Executive shall not, anywhere within the United States either as principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, own, manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an employment, business or other activity competitive with the Company. The post-employment restriction contained in this section shall not apply in the State of California.
(b) Executive further agrees that, during without the Executiveprior express written consent of the Chairman (which consent may be granted or withheld in the Chairman’s employment with the Company sole and for a period of one (1) year from the date of termination of Executive’s employment for any reasonabsolute discretion), the Executive shall not, directly or indirectly, either prior to the expiration of one (1) year after Executive ceases to be employed by the Company (or any of the Affiliated Entities) for any reason, on his own account, or as a principal, agent, an employee, consultant, adviser, partner, member, co-venturer, owner, manager, officer, director, shareholderor stockholder, of any other person or other entity:
(A) conduct, engage in, have any interest in, or in any other individual aid or representative capacityassist anyone else to conduct, on the Executive’s behalf or any other persons or entity other than the Company or its affiliates, (i) solicit or induceengage in, or attempt have an interest in, the Business within a seventy-five (75) mile radius of the Company’s Headquarters;
(B) with regard to solicit the Business, call on, solicit, or, accept business, employment, or induceengagement from, directly or indirectlyprovide services to, any customer or prospective customer of the Company with whom clients of the Companies who Executive has had personal contact within the twelve (12) month period prior to the Executive’s termination datelearned or developed Confidential Information regarding, or (ii) solicit or induceprovided services to on behalf of any of the Companies, or attempt to solicit or induce, directly or indirectly at any person who is, or time during the twelve (12) month period prior to the termination of Executive’s termination date wasemployment with the Company for any reason, an employee unless the Executive can demonstrate that Executive had a previous business relationship in the Business with such client prior to and independent of Executive’s employment with the Company; and
(C) (i) solicit for employment or agent ofengagement any Current Employee (as defined below) of any of the Companies, (ii) hire, employ, or consultant to, the Company or engage any Current Employee of any of its affiliates, to terminate its, his or her relationship therewiththe Companies, or (iii) hire induce or engage any person who isinfluence, or during the twelve (12) month period prior seek to the Executive’s termination date was, an employee, agent of induce or consultant to the Company or any of its affiliates.
(c) Executive understands that the provisions of this Section 11 may limit Executive’s ability to earn a livelihood in a business similar to the business of the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests of the Company, (ii) such provisions contain reasonable limitations as to time and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered thatinfluence, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability Current Employee of any of the other restrictions contained hereinCompanies to terminate his, her, or its employment or engagement with any of the Companies for any reason; provided that nothing in this Section 10 will prevent Executive from owning in the aggregate not more than two percent (2%) of the outstanding stock of any class of a corporation which is publicly traded, so long as Executive has no participation in the management of such corporation. As used in this Agreement, a “Current Employee” is a person who, at the time of the solicitation, employment, engagement, inducement or influence, is employed by the Company, a person who was employed by the Company any time during the six (6) months prior to the time in question, or, at the time in question, is employed by a third party and assigned to work more than twenty (20) hours per week for the Company.
Appears in 1 contract
Sources: Executive Employment Agreement (Sunovia Energy Technologies Inc)
Non-Competition and Non-Solicitation. The Executive acknowledges and recognizes the highly competitive nature of the businesses of the Company and its subsidiaries and affiliates and accordingly agrees as followsthat:
(a) During the Executive’s employment with the Company Term and for a period of one year thereafter or during any Severance Period, if longer (1) year from the date of termination of Executive’s employment for any reason"Restricted Period"), the Executive shall not, anywhere agrees that he will not (without the written consent of the Chief Executive Officer of the Company) engage in any business within the United States either (financially as principal, agent, an investor or lender or as an employee, consultantdirector, officer, partner, officerindependent contractor, director, shareholder, consultant or owner or in any other individual capacity calling for the rendition of personal services or representative capacityacts of management, own, manage, finance, operate, control operation or otherwise engage or participate in any manner or fashion in an employment, business or other activity control) which is competitive with the Company. The post-employment restriction contained in this section shall not apply in the State of California.
(b) Executive further agrees that, during the Executive’s employment with the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reason, the Executive shall not, directly or indirectly, either as a principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, on the Executive’s behalf or any other persons or entity other than the Company or its affiliates, (i) solicit or induce, or attempt to solicit or induce, directly or indirectly, any customer or prospective customer of the Company with whom the Executive has had personal contact within the twelve (12) month period prior to the Executive’s termination date, or (ii) solicit or induce, or attempt to solicit or induce, directly or indirectly any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee or agent of, or consultant to, business conducted by the Company or any of its affiliatesAffiliates (as defined below) on the date of termination of employment. Notwithstanding the foregoing, the Executive shall be entitled to terminate its, his or her relationship therewith, or (iii) hire or engage own securities of any person who is, or during corporation conducting a business competitive with the twelve (12) month period prior to the Executive’s termination date was, an employee, agent business of or consultant to the Company or any of its affiliatesAffiliates so long as the securities of such corporation are listed on a national securities exchange or on the Nasdaq National Market and the securities owned directly or indirectly by the Executive do not represent more than two percent (2%) of any class of the outstanding securities of such company.
(cb) During the Restricted Period, in addition to the obligations pursuant to Subsection 5(a), the Executive understands agrees that neither he nor any business in which he engages will (i) induce any customers of the provisions Company or of this Section 11 may limit Executive’s ability corporations or businesses which directly or indirectly control or are controlled by or under common control with the Company ("Affiliates") to earn a livelihood in a patronize any business similar to the business of the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests of the Company, (ii) such provisions contain reasonable limitations as to time and scope canvass, solicit or accept any similar business from any customer of activity to be restrainedthe Company or any of its Affiliates, (iii) request or advise any customer of the Company or any of its Affiliates to withdraw, curtail or cancel such provisions are not harmful to customer's business with the general publicCompany or any of its Affiliates, (iv) such provisions are not unduly burdensome disclose to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against person, firm or corporation the Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine names or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability addresses of any of the customers of the Company or any of its Affiliates, or (v) compete with the Company or any of its Affiliates in acquiring or merging with any other restrictions contained hereinbusiness or acquiring the assets of such other business.
(c) During the Restricted Period, in addition to the obligations pursuant to Subsections 5(a) and 5(b), the Executive agrees that neither he nor any business in which he
Appears in 1 contract
Non-Competition and Non-Solicitation. Executive (a) Employee acknowledges that during the course of Employee's employment Employee will receive confidential and recognizes proprietary information from and concerning the highly competitive Company. Employee also acknowledges that the Company will make substantial investments in the development of the Company's goodwill and in Employee's professional development. The capital expended to develop this goodwill directly benefits Employee and should continue to do so in the event that the relationship between the Company and Employee is terminated. Likewise, the Company has conferred and will confer a direct economic benefit on Employee. Employee agrees that the Company is entitled to protect these business interests and investments and to prevent Employee from using or taking advantage of the foregoing economic benefits to the Company's detriment.
(b) Employee agrees that, except for services and duties performed for or on behalf of the Company according to this Agreement, Employee will not, during the period of Employee's employment with the Company, and for a period (the "Restricted Period") of one (1) year immediately following the termination of Employee's employment under this Agreement, for any reason whatsoever, directly or indirectly, for himself or on behalf of or in conjunction with any other person, persons, company, partnership, corporation, association, enterprise, venture or business of whatever nature:
(i) engage, as an officer, director, shareholder, owner, partner, joint venturer, lender or in a managerial capacity, whether as an employee, independent contractor, agent, consultant or advisor or as a sales representative, or similar business in direct competition with those aspects of the business of the Company or any subsidiary of the Company, with which Employee has had any involvement, within United States of America, Canada and all other countries in which customers of the Company have access to the world wide web (the "Territory");
(ii) solicit any person who is, at that time, or who has been within one (1) year prior to that time, an employee of the Company for the purpose or with the intent of enticing such employee away from or out of the employ of the Company;
(iii) solicit any person or entity which is, at that time, or which has been within one (1) year prior to that time, a customer, doctor, service provider or supplier of the Company for the purpose of soliciting or selling products or services in direct competition with those aspects of the business of the Company or any subsidiary of the Company with which Employee has had any involvement, within the Territory; or
(iv) solicit any prospective acquisition candidate, on Employee's own behalf or on behalf of any competitor or potential competitor, which candidate was, to Employee's knowledge, either called upon by the Company or for which the Company made an acquisition analysis, for the purpose of acquiring such entity. Notwithstanding the above, the foregoing covenant shall not be deemed to prohibit Employee from acquiring as an investment not more than two percent (2%) of the capital stock of a competing business, whose stock is traded on a national securities exchange or over-the-counter.
(c) In recognition of the substantial nature of such potential damages and the businesses difficulty of measuring economic losses to the Company as a result of a breach of the foregoing covenants, and because of the immediate and irreparable damage that could be caused to the Company for which they would have no other adequate remedy, Employee agrees that in the event of breach by Employee of the foregoing covenant, the Company shall be entitled to specific performance of this provision and co-injunctive and other equitable relief.
(d) It is agreed by the parties that the foregoing covenants in this paragraph 4 impose a reasonable restraint on Employee in light of the activities and business of the Company on the date of the execution of this Agreement and the current plans of the Company and its subsidiaries Employee that such covenants be construed and affiliates enforced in accordance with the changing activities, business and accordingly agrees as follows:locations of the Company throughout the term of this Agreement, whether before or after the date of termination of the employment of Employee.
(ae) During All of the Executive’s covenants in this paragraph 4 shall be construed as an agreement independent of any other provision in this Agreement, and the existence of any claim or cause of action of Employee against the Company, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by the Company of such covenants. Further, this paragraph 4 shall survive the termination of this Agreement and the termination of Employee's employment with the Company and for a Company. It is specifically agreed that the period of one (1) year from the date of following termination of Executive’s employment for any reasonstated at the beginning of this paragraph 4, during which the Executive shall not, anywhere within the United States either as principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, own, manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an employment, business or other activity competitive with the Company. The post-employment restriction contained agreements and covenants of Employee made in this section paragraph 4 shall not apply be effective, shall be computed by excluding from such computation any time during which Employee is in the State violation of California.
(b) Executive further agrees that, during the Executive’s employment with the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reason, the Executive shall not, directly or indirectly, either as a principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, on the Executive’s behalf or any other persons or entity other than the Company or its affiliates, (i) solicit or induce, or attempt to solicit or induce, directly or indirectly, any customer or prospective customer of the Company with whom the Executive has had personal contact within the twelve (12) month period prior to the Executive’s termination date, or (ii) solicit or induce, or attempt to solicit or induce, directly or indirectly any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee or agent of, or consultant to, the Company or any of its affiliates, to terminate its, his or her relationship therewith, or (iii) hire or engage any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee, agent of or consultant to the Company or any of its affiliates.
(c) Executive understands that the provisions provision of this Section 11 may limit Executive’s ability to earn a livelihood in a business similar to the business of the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests of the Company, (ii) such provisions contain reasonable limitations as to time and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained hereinparagraph 4.
Appears in 1 contract
Non-Competition and Non-Solicitation. Executive acknowledges During the period commencing upon the Effective Date and recognizes ending on the highly competitive nature eighteen month anniversary of the businesses termination of the Company and its subsidiaries and affiliates and accordingly agrees as follows:
(a) During the Executive’s 's employment with the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reasonCompany, the Executive shall not, anywhere within the United States either as principal, agent, an employee, consultantemployer, partnerstockholder, officer, director, shareholderpartner, colleague, consultant or other independent contractor, advisor, proprietor, lender, or in any other individual manner or representative capacitycapacity (other than with respect to the Executive's services to the Company Affiliated Group), owndirectly or indirectly:
(i) perform services for, manage, finance, operate, control or otherwise engage have any involvement with, a business unit of a person, where such business unit competes directly or participate indirectly with any member of the Company Affiliated Group by (x) owning or operating broadband or mobile communications networks for telephone, mobile telephone, cable television or internet services, (y) providing mobile telephone, fixed line telephone, television or internet services or (z) owning, operating or providing any content-generation services or television channels, in any manner or fashion each case principally in an employmentthe United Kingdom (the "Core Businesses"); provided, business or other activity competitive with the Company. The post-employment restriction contained in however, that this section Agreement shall not apply prohibit the Executive from owning up to 1% of any class of equity securities of one or more publicly traded companies;
(ii) hire any individual who is, or within the six months prior to the Executive's termination was, an employee of any member of the Company Affiliated Group whose base salary at the time of hire exceeded £65,000 per year; or
(iii) solicit, in competition with any member of the Company Affiliated Group in the State Core Businesses, any business, or order of California.
(b) business from any person that the Executive further agrees that, knows was a current or prospective customer of any member of the Company Affiliated Group during the Executive’s employment with 's employment; provided, that, notwithstanding the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reasonforegoing, the Executive shall not, directly or indirectly, either as a principal, agent, employee, consultant, partner, officer, director, shareholder, or not be deemed to be in any other individual or representative capacity, on the Executive’s behalf or any other persons or entity other than the Company or its affiliates, violation of clause (i) solicit or induce, or attempt to solicit or induce, directly or indirectly, any customer or prospective customer of the Company with whom the Executive has had personal contact within the twelve (12) month period prior to the Executive’s termination date, or (ii) solicit or induce, or attempt to solicit or induce, directly or indirectly any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee or agent of, or consultant to, the Company or any of its affiliates, to terminate its, his or her relationship therewith, or (iii) hire or engage any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee, agent of or consultant to the Company or any of its affiliates.
(c) Executive understands that the provisions of this Section 11 may limit Executive’s ability to earn a livelihood in a business similar to the business of the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests of the Company, (ii) such provisions contain reasonable limitations as to time and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration of the foregoing by virtue of acting as an attorney (as partner, associate, shareholder, member or employee) or as vice president, director or managing director or similar position at any accounting firm, law firm, investment banking firm or consulting firm, institutional investor or similar entity, in each case so long as the Executive takes reasonable steps to insulate himself from the businesses and in light activities of Executive’s education, skills and abilities, Executive agrees any such entity that Executive shall not assert that, and it should not be considered that, relate to the Core Businesses during any provisions of period that this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d8(b) If a judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained hereineffect.
Appears in 1 contract
Sources: Employment Agreement (Virgin Media Investment Holdings LTD)
Non-Competition and Non-Solicitation. Executive acknowledges and recognizes the highly competitive nature For purposes of the businesses of this section, “Company” shall include the Company and any of its parents, subsidiaries or affiliates. In your employment with the Company, you have developed or helped develop, had access to and affiliates learned significant secret, confidential, and accordingly agrees proprietary information relating to the business of the Company. In addition, you have been provided with intimate knowledge regarding the Company’s technology, products, services, systems, methods, and operations. You also acknowledge that the Company has invested substantial resources and time to developing the technology, products, services, systems, methods, and operations, all of which are highly valuable assets to the Company. You agree that the Company has spent and will continue to spend substantial effort, time, and resources in developing and protecting its technology, products, services, systems, methods, and operations, and relationships with its customers and vendors. You also agree that the Company’s competitors would obtain an unfair advantage if you were to disclose the Company’s Confidential Information (as followsdefined above) to a competitor, used it on a competitor’s behalf, or if you were able to exploit the relationships you developed in your role with the Company to solicit business on behalf of a competitor. Accordingly, you agree that:
(a) During the Executive’s employment You shall not, either alone or in association with the Company and others, for a period of one twelve (112) year from months after the date of termination of Executive’s employment for any reasonyour employment, the Executive shall notdirectly or indirectly, anywhere within the United States either on your own behalf, or as principal, agent, an employee, consultantrepresentative or agent of a third party, partner, officer, director, shareholderby ownership or any type of interest in any business enterprise, or by any other means whatsoever, engage in any other individual or representative capacity, own, manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an employment, business or other activity competitive with the Company’s products, or those of its parents, subsidiaries, or affiliates (collectively, a “Competitor’s Business”), or become associated with or render services to a Competitor’s Business. The post-employment restriction contained in this section Mere ownership as a passive investor of not more than five percent (5%) of the securities of a corporation or other business enterprise shall not apply in be deemed control of or an association with such corporation or enterprise for purposes of or otherwise violate the State terms of Californiathis letter agreement.
(b) Executive further agrees thatYou shall not, during the Executive’s employment either alone or in association with the Company and others, for a period of one twelve (112) year from the date of months after termination of Executive’s employment for any reason, the Executive shall notyour employment, directly or indirectly, either as a principal, agent, employee, consultant, partner, officer, director, shareholdercall upon or solicit any Company customer, or in any other individual those of its parents, subsidiaries, or representative capacity, on the Executive’s behalf or any other persons or entity other than the Company or its affiliates, (i) solicit or inducefor business that is competitive with the Company’s business, or attempt to solicit or induce, directly or indirectly, any customer or prospective customer of the Company with whom the Executive has had personal contact within the twelve (12) month period prior to the Executivenor shall you permit a Competitor’s termination date, or (ii) solicit or induce, or attempt to solicit or induce, Business controlled directly or indirectly any person who is, or during the twelve (12) month period prior by you to the Executive’s termination date was, an employee or agent of, or consultant to, the Company or any of its affiliates, to terminate its, his or her relationship therewith, or (iii) hire or engage any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee, agent of or consultant to the Company or any of its affiliatesdo so.
(c) Executive understands that the provisions You shall not, either alone or in association with others, for a period of this Section 11 may limit Executive’s ability twelve (12) months after termination of your employment, directly or indirectly solicit, induce or attempt to earn a livelihood in a business similar to the business of the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill induce, any employee or other business interests independent contractor of the Company, (ii) such provisions contain reasonable limitations or those of its parents, subsidiaries, or affiliates, to terminate his or her employment or other engagement, or hire or attempt to hire as an employee, or engage or attempt to engage as an independent contractor, any person who is employed or otherwise engaged by the Company, or any of its parents, subsidiaries, or affiliates, at any time and scope of activity to be restrainedwhile you were employed by the Company; provided, (iii) such provisions are that this provision shall not harmful apply to the solicitation, hiring or other engagement of any individual whose employment or other engagement with the Company has been terminated for a period of six (6) months or longer nor general publicadvertising not directed specifically at any of the prohibited individuals. You may serve on the Board of any public or private company or as a manager of any limited partnership provided that the company or partnership is not a Competitor’s Business. You agree that these restrictions are reasonable, (iv) such provisions are not unduly burdensome no greater than what is required to Executiveprotect the Company’s legitimate interests with respect to trade secrets, confidential information and customers, and (v) customer relationships, and do not impair or prevent you from earning a living. It is the consideration provided hereunder is sufficient intention of the parties to compensate Executive restrict your activities only to the extent necessary for the restrictions contained in this Section 11. In consideration protection of the foregoing and in light of ExecutiveCompany’s education, skills and abilities, Executive agrees legitimate business interests. To the extent that Executive shall not assert that, and it should not be considered that, any provisions this Paragraph of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination letter agreement is made determined by a court of competent jurisdiction that the time to be invalid or territory unenforceable in any respect or to any other restriction contained in this Agreement is an unenforceable restriction against the Executiveextent, the provisions of this Agreement Paragraph shall not be rendered void invalid, but instead shall be deemed automatically amended to apply as for such lesser term or to such lesser extent, or in such other degree, as may grant the Company the maximum time protection and territory restrictions on your activities permitted by applicable law in such circumstances. The non-competition and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction non-solicitation obligations contained in this Agreement is unenforceable, and such restriction cannot letter agreement shall be amended so as to make it enforceable, such finding extended by the length of time during which you shall not affect have been in breach of any of said provisions. If you violate the enforceability provisions of any of the other preceding sections of this Paragraph, you shall continue to be bound by the restrictions contained hereinset forth in such section until the period equal to the period of restriction has expired without any violation.
Appears in 1 contract
Non-Competition and Non-Solicitation. Executive Employee acknowledges and recognizes that it may be very difficult for her to avoid using or disclosing the highly competitive nature Confidential Information in violation of Article Three above in the businesses event that she is employed by any person or entity other than the Employer in a capacity similar or related to the capacity in which she is employed by the Employer. Accordingly, Employee agrees that she will not, during the term of the Company and its subsidiaries and affiliates and accordingly agrees as follows:
(a) During the Executive’s employment with the Company Employer and for a period of one two (2) years after the termination of such employment, irrespective of the time, manner or cause of such termination, directly or indirectly (whether or not for compensation or profit):
(1) year from Engage in any business or enterprise the date nature of termination any part of Executive’s employment for which is competitive with any reasonpart of that of the Employer (a “Prohibited Business”); or
(2) Participate as an officer, the Executive shall notdirector, anywhere within the United States either as principalcreditor, promoter, proprietor, associate, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, own, manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an employment, business or other activity competitive with the Company. The post-employment restriction contained in this section shall not apply in the State of California.
(b) Executive further agrees that, during the Executive’s employment with the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reason, the Executive shall not, directly or indirectly, either as a principal, agent, employee, consultant, partner, officer, director, shareholdersales representative or otherwise, or promote or assist, financially or otherwise, or directly or indirectly own any interest in any other individual or representative capacity, on the Executive’s behalf or any other persons person or entity other than the Company or its affiliatesinvolved in any Prohibited Business; or
(3) Canvas, (i) solicit or call upon, solicit, entice, persuade, induce, respond to, or attempt to solicit or induceotherwise deal with, directly or indirectly, any individual or entity which, during Employee’s term of employment with the Employer, was or is a customer or prospective supplier, or proposed customer or supplier, of the Company with Employer whom the Executive has had personal contact within the twelve (12) month period prior to the Executive’s termination dateEmployee called upon or dealt with, or whose account Employee supervised, for any of the following purposes:
(iia) solicit to purchase (with respect to customers) or induceto sell (with respect to suppliers) products of the types or kinds sold by the Employer or which could be substituted for (including, but not limited to, rebuilt products), or attempt which serve the same purpose or function as, products sold by the Employer (all of which products are herein sometimes referred to, jointly and severally, as “Prohibited Products”), or
(b) to solicit request or induceadvise any such customer or supplier to withdraw, directly curtail or indirectly cancel its business with the Employer; or
(4) For herself or for or through any person who isother individual or entity call upon, solicit, entice, persuade, induce or offer any individual who, during Employee’s term of employment with the twelve (12) month period prior to the Executive’s termination date wasEmployer, was an employee or agent ofsales representative or distributor of the Employer, employment by, or consultant representation as sales agent or distributor for, any one other than the Employer, or request or advise any such employee or sales agent or distributor to cease employment with or representation of the Employer, and Employee shall not approach, respond to, the Company or otherwise deal with any such employee or sales representative or distributor of its affiliates, to terminate its, his or her relationship therewithEmployer for any such purpose, or (iii) hire authorize or engage knowingly cooperate with the taking of any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee, agent of or consultant to the Company or any of its affiliates.
(c) Executive understands that the provisions of this Section 11 may limit Executive’s ability to earn a livelihood in a business similar to the business of the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests of the Company, (ii) such provisions contain reasonable limitations as to time and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made actions by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine individual or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained hereinentity.
Appears in 1 contract
Sources: Employment Agreement (Richardson Electronics LTD/De)
Non-Competition and Non-Solicitation. Executive acknowledges The Stockholder hereby agrees that during the period commencing on the date hereof and recognizes ending on the highly competitive nature date which is the later of five (5) years after the date hereof or two (2) years after termination of Stockholder's employment with the Company, if any, it will not, without the express written consent of the businesses of Company, directly or indirectly, anywhere in the United States or in any foreign country where the Company and its subsidiaries and affiliates and accordingly agrees as follows:
has conducted business, is conducting business or is presently contemplating conducting business, (a) During engage in any activity which is or (b) participate or invest in, provide or facilitate the Executive’s employment with the Company and for a period provision of one financing to, or assist (1) year from the date of termination of Executive’s employment for any reasonwhether as owner, the Executive shall notpart-owner, anywhere within the United States either as principalshareholder, agentmember, partner, director, officer, trustee, employee, agent or consultant, partner, officer, director, shareholder, or in any other individual capacity) any business, organization or representative capacity, own, manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an employment, business or other activity competitive with the Company. The post-employment restriction contained in this section shall not apply in the State of California.
(b) Executive further agrees that, during the Executive’s employment with the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reason, the Executive shall not, directly or indirectly, either as a principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, on the Executive’s behalf or any other persons or entity person other than the Company (or its affiliatesany subsidiary of the Company), (i) solicit including any such business, organization or induceperson involving, or attempt to solicit or inducewhich is, directly or indirectly, any customer or prospective customer a family member of the Company Stockholder, whose business, activities, products or services are competitive with whom any of the Executive has had personal contact within the twelve (12) month period prior to the Executive’s termination datebusiness, activities, products or (ii) solicit services conducted or induce, or attempt to solicit or induce, directly or indirectly any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee or agent of, or consultant to, offered by the Company or any of its affiliatessubsidiaries, which business, activities, products and services shall include in any event and without limitation the Company Business. Without implied limitation, the forgoing covenant shall be deemed to terminate its, his prohibit (a) hiring or her relationship therewith, engaging or (iii) attempting to hire or engage for or on behalf of the Stockholder or any person who is, such competitor any officer or during the twelve (12) month period prior to the Executive’s termination date was, an employee, agent employee of or consultant to the Company or any of its affiliates.
subsidiaries, or any former employee of the Company and any of its subsidiaries who was employed during the six (6) month period immediately preceding the date hereof, (b) encouraging for or on behalf of the Stockholder or any such competitor any such officer or employee to terminate its relationship or employment with the Company or any of its subsidiaries, (c) Executive understands that soliciting for or on behalf of the provisions of this Section 11 may limit Executive’s ability to earn a livelihood in a business similar to the business Stockholder or any such competitor any client of the Company but Executive nevertheless agrees or any of its subsidiaries and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests of the Company, (ii) such provisions contain reasonable limitations as to time and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court diverting to any person any client or business opportunity of competent jurisdiction that the time or territory Company or any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of its subsidiaries. Notwithstanding anything herein to the contrary, the Stockholder may make passive investments in any publicly traded enterprise if such investment constitutes less than one percent (2%) of the equity of such enterprise. Neither the Stockholder nor any business entity controlled by the Stockholder is a party to any contract, commitment, arrangement or agreement which could, following the date hereof, restrain or restrict the Company or any subsidiary of the Company from carrying on its business or restrain or restrict the Stockholder from performing the Stockholder's employment obligations, and, as of the date of this Agreement, the Stockholder has no business interests whatsoever in or relating to the industries in which the Company and its subsidiaries currently engage other restrictions contained hereinthan the Stockholder's interest in the Company and other than interests in public companies of less than one percent (2%).
Appears in 1 contract
Sources: Non Competition Agreement (Eagle Test Systems, Inc.)
Non-Competition and Non-Solicitation. Executive acknowledges and recognizes the highly competitive nature of the businesses Each of the Company and its subsidiaries and affiliates and accordingly the Restricted Members agrees as follows:
(a) During the Executive’s employment with the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reason, the Executive shall not, anywhere within the United States either as principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, own, manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an employment, business or other activity competitive with the Company. The post-employment restriction contained in this section shall not apply in the State of California.
(b) Executive further agrees that, that during the Executive’s employment with the Company and for a period applicable Non-Competition Period, neither such Person nor any of one (1) year from the date of termination of Executive’s employment for any reasonhis, the Executive shall nother or its Affiliates will, directly or indirectly, either as a principal, agent, employee, consultant, partner, officer, director, shareholder, or anywhere in any other individual or representative capacity, on the Executive’s behalf or any other persons or entity other than the Company or its affiliates, United States:
(i) solicit engage in, or induceown, have any interest in, control, advise, manage, serve as a director, manager, officer or employee of, act as a consultant to, render services for, receive any economic benefit from or exert any influence upon, any Competing Business; provided, that the forgoing shall not prohibit any Restricted Member or any of his, her or its Affiliates from owning up to an aggregate of one percent (1%) of the outstanding shares of any class of capital stock of any publicly traded Competing Business so long as neither such Member nor any of his, her or its Affiliates have any participation in the management of such Competing Business; provided, further, that the foregoing shall not prohibit any Restricted Member from performing any services on behalf of Buyer or its Affiliates in its capacity as a director, officer or employee of Buyer or its Affiliates;
(ii) solicit, divert or attempt to solicit or inducedivert any Person who is, directly was or indirectlywas solicited to become, any a customer or prospective customer supplier of the Company with whom the Executive has had personal contact within the twelve (12) month period at any time prior to the Executive’s termination dateClosing Date;
(iii) employ, solicit for employment or encourage to leave his or her employment, any individual who is at the time of, or was during the two-year period prior to, such employment, solicitation or encouragement an officer or employee of the Buyer (iior any successor Person into which the Buyer may be merged, amalgamated or consolidated) solicit or induceany of its Affiliates;
(iv) impair, or attempt to solicit impair, any business relationship between any third party and Buyer (or induceany successor Person into which Buyer may be merged, directly amalgamated or indirectly any person who is, or during the twelve (12consolidated) month period prior to the Executive’s termination date was, an employee or agent of, or consultant to, the Company or any of its affiliatesAffiliates; or
(v) make any statement to any third party, including the press or media, likely to terminate itsresult in adverse publicity for Buyer (or any successor Person into which Buyer may be merged, his amalgamated or her relationship therewith, or (iiiconsolidated) hire or engage any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee, agent of or consultant to the Company or any of its affiliatesAffiliates.
(c) Executive understands that the provisions of this Section 11 may limit Executive’s ability to earn a livelihood in a business similar to the business of the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests of the Company, (ii) such provisions contain reasonable limitations as to time and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.
Appears in 1 contract
Sources: Asset Purchase Agreement (Atkore International Holdings Inc.)
Non-Competition and Non-Solicitation. Executive acknowledges and recognizes the highly competitive nature of the businesses of the Company and its subsidiaries and affiliates and accordingly (A) Seller agrees as follows:
(a) During the Executive’s employment with the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reason, the Executive shall not, anywhere within the United States either as principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, own, manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an employment, business or other activity competitive with the Company. The post-employment restriction contained in this section shall not apply in the State of California.
(b) Executive further agrees that, that during the Executive’s employment with the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reason, the Executive Restricted Period he shall not, directly or indirectly, either as a principalthrough any Affiliate or otherwise, agent, employee, consultant, partner, officer, director, shareholder, or anywhere in any other individual or representative capacity, on the Executive’s behalf or any other persons or entity other than the Company or its affiliates, Restricted Area:
(i) solicit or induceown, manage, market, operate, control, consult with, participate in, or attempt to solicit be connected in any manner with the ownership, management, operation, or inducecontrol of any business which (a) engages, directly or indirectly, in any customer business that is the same or prospective substantially similar to the Business or (b) sells any product that is the same or substantially similar to any product sold by the Business, except in, each case, his capacity as an employee of EnerPath, Lime or any of its Subsidiaries;
(ii) be or become a shareholder, partner, manager, member, owner, agent of, or a consultant to or give financial or other assistance to, any Person (a) considering engaging in or who is engaged in any business that is the same or substantially similar to the Business, or (b) considering selling or who sells any product that is the same or substantially similar to any product sold by the Business, except in, in each case, his capacity as an employee of Lime or any of its Subsidiaries; or
(iii) seek in competition with the Company or its Subsidiaries to do business with any customer of the Company or its Subsidiaries as of the Effective Time for which the Company or the Subsidiary has sold products or provided services at any time as part of its Business; provided, however, that nothing in this Agreement shall prohibit Seller solely from owning, as a passive investor, not more than two percent (2%) in the aggregate of the outstanding publicly traded securities of any Person so engaged, further that nothing in this Agreement shall prohibit Seller from engaging in energy sector activities that do not compete with whom the Executive has had personal contact within Business, for example, the twelve Seller may work as an employee of a utility, of a government agency, of a government authority, of an engineering firm, consultancy, project developer or energy services company that is advising clients on energy or developing projects and seeking incentives for specific project(s), but not offering DSM Services to an agency, authority or utility in the Restricted Area, of an independent power producer, of an equipment supplier or software developer that is not offering DSM Services to an agency, authority or utility in the Restricted Area, of a Public Utility Commission or like entity, of a State Energy Office or like entity, of a Department of Environmental Protection or like entity, of a Regional Transmission Organization, of an Independent System Operator, of an independent market monitor, and of a non-profit advocacy organization.
(12B) month period prior to During the Executive’s termination dateRestricted Period, or (ii) solicit or induce, or attempt to solicit or induce, the Seller shall not ,directly or indirectly on behalf of himself or itself or others, through any person who isAffiliate or otherwise, anywhere in the Restricted Area, hire, solicit, or during the twelve (12) month period prior contact with a view to the Executive’s termination date wasengagement or employment of, any Person who is an employee or agent of, or consultant to, of the Company or any of its affiliatesSubsidiaries as of the Effective Time; or engage in or participate in any effort or act to induce any of the customers, to terminate itssuppliers, his or her relationship therewithconsultants, or (iii) hire or engage any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee, agent employees of or consultant to the Company or any of its affiliatesSubsidiaries as of the Effective Time to take any action to discontinue or reduce the business done with the Company or any of its Subsidiaries as of the Effective Time.
(cC) Executive understands that The duration of the provisions covenants set forth in Section 2(A) and Section 2(B) above shall be extended by a period of this Section 11 may limit Executive’s ability to earn a livelihood in a business similar time equal to the business number of the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests of the Company, (ii) such provisions contain reasonable limitations as to time and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternativelycalendar days, if any court or arbitrator of competent jurisdiction finds that any restriction contained any, during which Seller is in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability violation of any of the other restrictions provisions contained hereinin such Sections, only if Lime has provided to Seller written notice of the alleged violations.
Appears in 1 contract
Non-Competition and Non-Solicitation. Executive acknowledges and recognizes the highly competitive nature of the businesses of the Company and its subsidiaries and affiliates and accordingly agrees as follows:
(a) During the Executive’s employment with the Company Term, and for a period of one 12 months after the termination for any reason (1other than termination without Cause by the Company or with Good Reason by the Employee) year from the date of termination of ExecutiveEmployee’s employment for any reason, the Executive shall not, anywhere within the United States either as principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, own, manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an employment, business or other activity competitive with the Company. The post-employment restriction contained in this section shall not apply in the State of California.
(b) Executive further agrees that, during the Executive’s employment with by the Company hereunder, Employee agrees and for a period of one (1) year from the date of termination of Executive’s employment for any reason, the Executive covenants that he shall not, directly or indirectly, either own, manage, operate, join, control, participate in, invest in, advise, assist, act as a principalconsultant for or otherwise be connected with, agentin any manner, employee, consultant, partner, whether as an officer, director, shareholder, employee, partner, venturer, investor or otherwise, any competitor, which shall mean any person or business entity engaged in or about to become engaged in the production, licensing, sale or marketing of any other individual product or representative capacityservice or planned business involving endovenous laser treatment, on the Executive’s behalf photodynamic therapy or any other persons product or entity other than service of or under development by the Company at the time of termination of the Employee’s employment. The foregoing shall not be deemed to prohibit Employee from investing Employee’s personal funds in securities of an issuer that is a competitor of the Company if the securities of such issuer are listed for trading on a national securities exchange or its affiliatesare traded in the over-the-counter market and Employee’s holdings therein represent less than 5% of the total number of outstanding shares or principal amount of the securities of such issuer.
(b) During the Term, and for a period of 12 months after the termination for any reason of Employee’s employment by the Company hereunder, Employee agrees and covenants that he will not directly or indirectly, either for himself or on behalf of any other person or enterprise, without the express written consent of the Company, (ia) solicit or induce, or attempt to solicit or induce, directly entice away or indirectly, interfere with the Company’s contractual relationships any customer or prospective customer of the Company with whom Company’s customers, business partners, suppliers or shareholders in existence at the Executive has had personal contact within the twelve (12) month period prior to the Executive’s time of termination dateof such employment, or (iib) recruit, solicit or inducehire, seek or attempt to recruit, solicit or inducehire or assist in recruiting, directly soliciting or indirectly hiring any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee or agent ofof the Company, or consultant toexcept in connection with the performance of his duties hereunder, take action that results in the termination of employment or other arrangements between the Company or and any of its affiliates, to terminate its, his employees or her relationship therewith, agents or (iii) hire otherwise interferes with such employment or engage any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee, agent of or consultant to the Company or any of its affiliatesarrangements.
(c) Executive understands Employee acknowledges and agrees that the provisions of Section 4 and this Section 11 may limit Executive’s ability to earn a livelihood in a business similar to 5 are reasonable and necessary for the business protection of the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other its intellectual property and business interests of the Company, (ii) such provisions contain reasonable limitations as to time and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained hereininterests.
Appears in 1 contract
Non-Competition and Non-Solicitation. Executive acknowledges and recognizes the highly competitive nature of the businesses of the Company and its subsidiaries and affiliates and accordingly agrees as follows:
(a) During Executive acknowledges that the services to be performed by him under this Agreement are of a special, unique, unusual, extraordinary and intellectual character, and the provisions of this Section 7 are reasonable and necessary to protect the Business.
(b) In consideration of the foregoing acknowledgments by Executive’s employment with , and in consideration of the Company compensation and benefits to be paid or provided to Executive by Company, Executive covenants that he will not, during the term of this Agreement and for a period of one (1) year from thereafter, directly or indirectly:
(i) except in the date course of termination of Executive’s his employment for any reasonhereunder, the Executive shall not, anywhere within the United States either as principal, agent, employee, consultant, partner, officer, director, shareholder, engage or in any other individual or representative capacityinvest in, own, manage, operate, finance, operatecontrol, control or otherwise engage or participate in the ownership, management, operation, financing, or control of, be employed by, associated with, or in any manner connected with, any business whose products or fashion services compete in an employment, business whole or other activity competitive in part with the Company. The post-employment restriction contained in this section shall products or services of Company or HPI; provided, however, that Executive may purchase or otherwise acquire up to (but not apply more than) one percent (1%) of any class of securities of any enterprise (but without otherwise participating in the State activities of California.such enterprise) if such securities are listed on any national or regional securities exchange or have been registered under Section 12(g) of the Securities Exchange Act of 1934;
(bii) whether for Executive’s own account or for the account of any other person, solicit business of the same or similar type of business then being carried on by Company, from any person or entity known by Executive further agrees thatto be a customer of Company or HPI, whether or not Executive had personal contact with such person or entity during the and by reason of Executive’s employment with the Company and Company;
(iii) whether for a period of one (1) year from the date of termination of Executive’s employment for own account or the account of any reasonother person (A) solicit, employ or otherwise engage as an Executive, independent contractor or otherwise, any person who is or was an employee of Company or HPI at any time during the Executive shall not, directly or indirectly, either as a principal, agent, employee, consultant, partner, officer, director, shareholder, term of this Agreement or in any other individual or representative capacity, on the Executive’s behalf or any other persons or entity other than the Company or its affiliates, (i) solicit or induce, manner induce or attempt to solicit induce any employee of Company or induce, directly HPI to terminate his employment with Company or indirectly, any customer or prospective customer of the Company with whom the Executive has had personal contact within the twelve (12) month period prior to the Executive’s termination dateHPI, or (iiB) solicit interfere with Company’s or induce, or attempt to solicit or induce, directly or indirectly HPI’s relationship with any person or entity, including any person or entity who is, or at any time during the twelve term of this Agreement was an employee, contractor, supplier or customer of Company or HPI; or
(12iv) month period prior to at any time during or after the Executive’s termination date wasterm of this Agreement, an employee disparage Company or agent ofHPI, or consultant to, the Company or any of its affiliatestheir respective shareholders, to terminate itsdirectors, his executives, officers, employees or her relationship therewith, or (iii) hire or engage any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee, agent of or consultant to the Company or any of its affiliatesagents.
(c) Executive understands that the provisions If any covenant of this Section 11 may limit Executive’s ability 7 is held to earn a livelihood in a business similar be unreasonable, arbitrary or against public policy, such covenant will be considered to the business of the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary be divisible with respect to protect the goodwill or other business interests of the Companyscope, (ii) such provisions contain reasonable limitations as to time and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executivegeographic area, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration such lesser scope, time or geographic area, or all of the foregoing and in light of Executive’s educationthem, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by as a court of competent jurisdiction may determine to be reasonable, not arbitrary and not against public policy, will be effective, binding and enforceable against Executive.
(d) Executive acknowledges and agrees that should Executive transfer between or among Company and HPI or any of its affiliated companies including, without limitation, any parent, subsidiary or other corporately related entity (a “Company Affiliate”) wherever situated, or otherwise become employed by any Company Affiliate, or should he be promoted or reassigned to functions other than the duties set forth in this Agreement, or should Executive’s compensation and benefit package change (either higher or lower), the terms of this Section 7 shall continue to apply with full force.
(e) In the event Executive is terminated other than For Cause, Executive may, in his sole discretion, elect to waive any severance payment which may otherwise be due and owing to Executive pursuant to Section 6(e) above in exchange for Company’s agreement that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions restrictions of this Agreement shall not be rendered void but Section 7(b)(i) shall be deemed amended to apply as to such maximum time null and territory void and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, unenforceable against Executive and such restriction cannot be amended so as to make it enforceable, such finding Company shall not affect attempt to enforce the enforceability same.
(f) Executive agrees and acknowledges that Company does not have an adequate remedy at law for the breach or threatened breach by Executive of any of this Section 7 and agrees that Company may, in addition to the other restrictions contained hereinremedies which may be available to it under this Agreement, file suit in equity to enjoin Executive from such breach or threatened breach.
(g) All references in Section 7(b) hereof to Company shall be deemed to include any subsidiary or other Affiliate of Company or HPI.
Appears in 1 contract
Non-Competition and Non-Solicitation. Executive acknowledges a) By entering into this Agreement, you acknowledge that the Confidential Information has been and recognizes will be developed and acquired by the highly competitive nature Company by means of substantial expense and effort, that the Confidential Information is a valuable asset of the businesses Company’s business, that the disclosure of the Confidential Information to any of the Company’s competitors would cause substantial and irreparable injury to the Company’s business, and that any customers of the Company developed by you or others during your employment are developed on behalf of the Company. You further acknowledge that you have been provided with access to Confidential Information, including Confidential Information concerning the Company’s major customers, and its subsidiaries technical, marketing and affiliates and accordingly agrees as follows:business plans, disclosure or misuse of which would irreparably injure the Company.
(ab) During In exchange for the Executive’s consideration specified in Section 1 of this Agreement — the adequacy of which you expressly acknowledge — you agree that during your employment with by the Company and for a period of one twelve (112) year from the date of termination of Executive’s employment for any reasonmonths following Employment Separation, the Executive shall not, anywhere within the United States either as principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, own, manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an employment, business or other activity competitive with the Company. The post-employment restriction contained in this section shall not apply in the State of California.
(b) Executive further agrees that, during the Executive’s employment with the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reason, the Executive you shall not, directly or indirectly, either as a principalan owner, agentshareholder, officer, employee, manager, consultant, partner, officer, director, shareholderindependent contractor, or in any other individual or representative capacity, on the Executive’s behalf or any other persons or entity other than the Company or its affiliates, otherwise:
(i) solicit Attempt to recruit or inducehire, interfere with or harm, or attempt to solicit interfere with or induceharm, the relationship of the Company, its subsidiaries or affiliates, with any person who is an employee, customer or supplier of the Company, its subsidiaries or affiliates;
(ii) Contact any employee of the Company for the purpose of discussion or suggesting that such employee resign form employment with the Company for the purpose of becoming employed elsewhere or provide information about individual employees of the Company or personnel policies or procedures of the Company to any person Page 4 of 4 Change in Control & Non-competition Agreement | ▇▇▇▇▇ or entity, including any individual, agency or company engaged in the business of recruiting employees, executives or officer; or
(iii) Own, manage, operate, join control, be employed by, consult with or participate in the ownership, management, operation or control of, or be connected with (as a stockholder, partner, or otherwise), any business, individual, partner, firm, corporation, or other entity that competes or plans to compete, directly or indirectly, any customer or prospective customer of with the Company with whom the Executive has had personal contact within the twelve (12) month period prior to the Executive’s termination dateCompany, its products, or (ii) solicit any division, subsidiary or induce, or attempt to solicit or induce, directly or indirectly any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee or agent of, or consultant to, the Company or any of its affiliates, to terminate its, his or her relationship therewith, or (iii) hire or engage any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee, agent of or consultant to the Company or any of its affiliates.
(c) Executive understands that the provisions of this Section 11 may limit Executive’s ability to earn a livelihood in a business similar to the business of the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests affiliate of the Company; provided, (ii) however, that your “beneficial ownership,” either individually or as a member of a “group” as such provisions contain reasonable limitations as to time and scope of activity to be restrained, (iii) such provisions terms are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained used in this Section 11. In consideration Rule 13d of the foregoing General Rules and in light Regulations under the Securities Exchange Act of Executive’s education1934, skills and abilitiesas amended (the “Exchange Act”), Executive agrees that Executive shall of not assert thatmore than two percent (2%) of the voting stock of any publicly held corporation, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator a violation of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained hereinAgreement.
Appears in 1 contract
Sources: Change in Control & Non Competition Agreement (Commercial Vehicle Group, Inc.)
Non-Competition and Non-Solicitation. Executive acknowledges and recognizes the highly competitive nature of the businesses of the Company and its subsidiaries and affiliates and accordingly agrees as follows:
(a) 9.1 During the Executive’s employment with the Company and for a period of one Restricted Period (1) year from the date of termination of Executive’s employment for any reasonas defined below), the Executive shall not, anywhere within in the United States either geographical area in which the Company or any of its affiliates does business or has done business at the time of his employment termination, engage in any business or enterprise that would be competitive with any business of the Company (inclusive of all of its subsidiaries, divisions and affiliates, including, without limitation, Wizards of the Coast) in existence as principalof the Date of Termination (a “Competitive Business”). This obligation shall preclude any involvement in a Competitive Business, agentwhether on a direct or indirect basis, employee, consultantand whether as an owner, partner, officer, director, shareholderemployee, consultant, investor, lender or in any other individual or representative capacityotherwise, own, manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an employment, business or other activity competitive with except as the Company. The postpassive holder of not more than 1% of the outstanding stock of a publicly-employment restriction contained in this section shall not apply in the State of Californiaheld company.
(b) Executive further agrees that, during 9.2 During the Executive’s employment with the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reasonRestricted Period, the Executive shall not, directly or indirectly, either as a principal, agent, employee, consultant, partner, officer, director, shareholder, alone or in association with others, (a) solicit, recruit, induce, attempt to induce or permit any other individual organization directly or representative capacityindirectly controlled by the Executive to solicit, on the Executive’s behalf recruit, induce or attempt to induce any other persons or entity other than employee of the Company or any of its affiliates, (i) solicit or induce, or attempt affiliates to solicit or induce, directly or indirectly, any customer or prospective customer leave the employ of the Company with whom the Executive has had personal contact within the twelve (12) month period prior to the Executive’s termination date, or (ii) solicit or induce, or attempt to solicit or induce, directly or indirectly any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee or agent of, or consultant to, the Company or any of its affiliates, to terminate its, his or her relationship therewith, or (iiib) solicit, recruit, induce, attempt to induce for employment or hire or engage as an independent contractor, or permit any organization directly or indirectly controlled by the Executive to solicit, recruit, induce, attempt to induce for employment or hire or engage as an independent contractor, any person who is, is employed by the Company or any of its affiliates or who was employed by the Company or any of its affiliates at any time during the twelve (12) month period prior to term of the Executive’s termination date wasemployment with the Company, an employeeprovided that this clause (b) shall not apply to any individual whose employment with the Company or any of its affiliates has been terminated for a period of six (6) months or longer. For purposes of this Agreement, agent “affiliates” means entities controlling, controlled by, or under common control with, the Company, and “control” means the ability to exercise more than 50% of the voting interests or consultant otherwise control management.
9.3 During the Restricted Period, the Executive shall not, directly or indirectly, either alone or in association with others, solicit, divert or take away, or attempt to solicit, divert or take away, or permit any organization directly or indirectly controlled by the Executive to solicit, divert or take away, or attempt to solicit, divert or take away, the business or patronage of any of the clients, customers or accounts, or prospective clients, customers or accounts of the Company or any of its affiliates.
(c) Executive understands that , which were contacted, solicited or served by the provisions Company or any of this Section 11 may limit its affiliates at any time during the Executive’s ability to earn a livelihood in a business similar to the business of the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests of employment with the Company, (ii) such provisions contain reasonable limitations as to time and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.
Appears in 1 contract
Sources: Employment Agreement (Hasbro, Inc.)
Non-Competition and Non-Solicitation. Executive acknowledges and recognizes Subject to applicable law, the highly competitive nature of Director agrees that during the businesses of the Company and its subsidiaries and affiliates and accordingly agrees as follows:
(a) During the Executive’s employment with the Company Term and for a period of [one (1) year from year] thereafter for whatever reason:
(i) The Director will not solicit, canvass or approach clients, customers or contacts of the date of termination of Executive’s employment for any reason, the Executive shall not, anywhere within the United States either as principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, own, manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an employment, business Company or other activity competitive with persons or entities introduced to the Company. The post-employment restriction contained in this section shall not apply Director in the State Director’s capacity as a representative of California.
(b) Executive further agrees that, during the Executive’s employment Company for the purposes of doing business with such persons or entities which will harm the business relationship between the Company and for a period of one such persons and/or entities;
(1ii) year from the date of termination of Executive’s employment for any reasonThe Director will not solicit, the Executive shall not, directly canvass or indirectly, either as a principal, agent, employee, consultant, partner, officer, director, shareholderapproach, or in endeavor to solicit, canvass or approach any other individual or representative capacity, on the Executive’s behalf or any other persons or entity other than person who has business communication with the Company or its affiliates, (i) solicit or induceaffiliates to terminate such communication, or attempt who has negotiation with the Company or its affiliates on business cooperation to solicit terminate such negotiation;
(iii) The Director will not solicit, canvass or inducepersuade or endeavor to solicit, directly canvass or indirectlypersuade in any way, or intend to or actually disturb the Company’s business in any customer way or prospective customer endeavor to do the foresaid activities in order that (1) any current client or supplier of the Company or its affiliates becomes a client or supplier of an entity or individual competing with whom the Executive has had personal contact within the twelve (12) month period prior to the Executive’s termination date, or (ii) solicit or induce, or attempt to solicit or induce, directly or indirectly any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee or agent of, or consultant to, the Company or any of its affiliates, to terminate its, his or her relationship therewith, ; or (iii2) hire any current client or engage any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee, agent supplier of or consultant to the Company or any of its affiliates terminates the cooperation with the Company or its affiliates.; and
(civ) Executive understands that The Director will not seek, directly or indirectly, by the provisions offer of this Section 11 may limit Executive’s ability alternative employment or other inducement whatsoever, to earn a livelihood in a business similar to solicit the business services of any employee of the Company but Executive nevertheless agrees employed as at or after the date of such termination, or in the year preceding such termination; The provisions contained in Section 8(a) are considered reasonable by the Director and hereby acknowledges the Company. In the event that (i) any such provisions do not impose a greater restraint than is should be found to be void under applicable laws but would be valid if some part thereof was deleted or the period or area of application reduced, such provisions shall apply with such modification as may be necessary to protect the goodwill or other business interests of the Company, (ii) such provisions contain reasonable limitations as to time make them valid and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained hereineffective.
Appears in 1 contract
Non-Competition and Non-Solicitation. Executive (a) Employee acknowledges that during the course of Employee's employment Employee will receive confidential and recognizes proprietary information from and concerning the highly competitive nature Company. Employee also acknowledges that the Company will make substantial investments in the development of the businesses Company's goodwill and in Employee's professional development. The capital expended to develop this goodwill directly benefits Employee and should continue to do so in the event that the relationship between the Company and Employee is terminated. Likewise, the Company has conferred and will confer a direct economic benefit on Employee. Employee agrees that the Company is entitled to protect these business interests and investments and to prevent Employee from using or taking advantage of the foregoing economic benefits to the Company's detriment.
(b) Employee agrees that, except for services and duties performed for or on behalf of the Company and its subsidiaries and affiliates and accordingly agrees as follows:
(a) During according to this Agreement, Employee will not, during the Executive’s period of Employee's employment with the Company Company, and for a period (the “Restricted Period”) of one (1) year from years immediately following the date of termination of Executive’s Employee's employment under this Agreement, for any reasonreason whatsoever, the Executive shall notdirectly or indirectly, anywhere within the United States either for himself or on behalf of or in conjunction with any other person, persons, company, partnership, corporation, association, enterprise, venture or business of whatever nature:
(i) engage, as principal, agent, employee, consultant, partner, an officer, director, shareholder, owner, partner, joint venturer, lender or in any other individual or representative a managerial capacity, ownwhether as an employee, manageindependent contractor, financeagent, operateconsultant or advisor or as a sales representative, control or otherwise engage similar business in direct competition with those aspects of the business of the Company or participate in any manner or fashion in an employment, business or other activity competitive with subsidiary of the Company. The post-employment restriction contained , with which Employee has had any involvement, within United States of America, Canada and all other countries in this section shall not apply in which customers of the State of California.Company have access to the world wide web (the “Territory”);
(bii) Executive further agrees thatsolicit any person who is, during the Executive’s employment with the Company and for a period of at that time, or who has been within one (1) year prior to that time, an employee of the Company for the purpose or with the intent of enticing such employee away from or out of the employ of the Company;
(iii) solicit any person or entity which is, at that time, or which has been within one ( l) year prior to that time, a customer, doctor, service provider or supplier of the Company for the purpose of soliciting or selling products or services in direct competition with those aspects of the business of the Company or any subsidiary of the Company with which Employee has had any involvement, within the Territory; or
(iv) solicit any prospective acquisition candidate, on Employee's own behalf or on behalf of any competitor or potential competitor, which candidate was, to Employee's knowledge, either called upon by the Company or for which the Company made an acquisition analysis, for the purpose of acquiring such entity. Notwithstanding the above, the foregoing covenant shall not be deemed to prohibit Employee from acquiring as an investment not more than five percent (5%) of the capital stock of a competing business, whose stock is traded on a national securities exchange or over-the-counter.
(c) In recognition of the substantial nature of such potential damages and the difficulty of measuring economic losses to the Company as a result of a breach of the foregoing covenants, and because of the immediate and irreparable damage that could be caused to the Company for which they would have no other adequate remedy, Employee agrees that in the event of breach by Employee of the foregoing covenant, the Company shall be entitled to specific performance of this provision and co-injunctive and other equitable relief.
(d) It is agreed by the parties that the foregoing covenants in this paragraph 4 impose a reasonable restraint on Employee in light of the activities and business of the Company on the date of the execution of this Agreement and the current plans of the Company and Employee that such covenants be construed and enforced in accordance with the changing activities, business and locations of the Company throughout the term of this Agreement, whether before or after the date of termination of Executive’s the employment for any reason, the Executive shall not, directly or indirectly, either as a principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, on the Executive’s behalf or any other persons or entity other than the Company or its affiliates, (i) solicit or induce, or attempt to solicit or induce, directly or indirectly, any customer or prospective customer of the Company with whom the Executive has had personal contact within the twelve (12) month period prior to the Executive’s termination date, or (ii) solicit or induce, or attempt to solicit or induce, directly or indirectly any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee or agent of, or consultant to, the Company or any of its affiliates, to terminate its, his or her relationship therewith, or (iii) hire or engage any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee, agent of or consultant to the Company or any of its affiliatesEmployee.
(ce) Executive understands that the provisions of this Section 11 may limit Executive’s ability to earn a livelihood in a business similar to the business All of the Company but Executive nevertheless agrees covenants in this paragraph 4 shall be construed as an agreement independent of any other provision in this Agreement, and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill existence of any claim or other business interests cause of action of Employee against the Company, (ii) such provisions contain reasonable limitations as to time and scope of activity to be restrainedwhether predicated on this Agreement or otherwise, (iii) such provisions are shall not harmful constitute a defense to the general publicenforcement by the Company of such covenants. Further, (iv) such provisions are not unduly burdensome to Executive, and (v) this paragraph 4 shall survive the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions termination of this Agreement shall not be rendered void but and the termination of Employee's employment with the Company. It is specifically agreed that the period of two (2) years following termination of employment stated at the beginning of this paragraph 4, during which the agreements and covenants of Employee made in this paragraph 4 shall be deemed amended to apply as to effective, shall be computed by excluding from such maximum computation any time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if during which Employee is in violation of any court or arbitrator provision of competent jurisdiction finds that any restriction contained in this Agreement is unenforceableparagraph 4, and that such restriction cannot be amended so as period shall terminate upon Company's failure to make it enforceable, such finding pay its obligation pursuant to Section 5 below (which obligations shall not affect the enforceability of any remain payable regardless of the other restrictions contained hereintermination of this paragraph 4).
Appears in 1 contract
Sources: Executive Employment Agreement (As Seen on TV, Inc.)
Non-Competition and Non-Solicitation. Executive acknowledges and recognizes the highly competitive nature of the businesses of the Company and its subsidiaries and affiliates and accordingly agrees as follows:
(a) During Subject to Section 7(b) below, in consideration of his employment hereunder and in view of the Executive’s employment with confidential position to be held by the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reason, the Executive shall not, anywhere within the United States either as principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, own, manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an employment, business or other activity competitive with the Company. The post-employment restriction contained in this section shall not apply in the State of California.
(b) Executive further agrees thatEmployee hereunder, during the Executive’s employment with Employment Period and through the Company and for a two-year period of one (1) year from commencing on the effective date of the termination of Executive’s Employee's employment for any reasonhereunder, the Executive Employee shall not, directly or indirectly, either be employed by, or act as a principalconsultant or lender to or in association with, agentor as a director, officer, employee, consultant, partner, officerowner, directorjoint venturer, shareholdermember or otherwise of any person, firm, corporation, partnership, limited liability company, association or other entity that engages in the same business as, or in competes with, any other individual or representative capacity, on the Executive’s behalf or any other persons or entity other than business actually conducted by the Company or any or its affiliatessubsidiaries (other than beneficial ownership of up to 2% of the outstanding voting stock of a publicly traded company that is or owns such a competitor);
(b) In the event that the employee is terminated by the Company for Cause or resigns without Good Reason, (i) solicit or induceduring the Employment Period and through the one-year period commencing on the effective date of the termination of Employee's employment hereunder, or attempt to solicit or inducethe Employee shall not, directly or indirectly, be employed by, or act as a consultant or lender to or in association with, or as a director, officer, employee, partner, owner, joint venturer, member or otherwise of any customer person, firm, corporation, partnership, limited liability company, association or prospective customer other entity that engages in the same business as, or competes with, any business actually conducted by the Company or any of its subsidiaries (other than beneficial ownership of up to 2% of the outstanding voting stock of a publicly traded company that is or owns such a competitor);
(c) In consideration of his employment hereunder and in view of the confidential position to be held by the Employee hereunder, during the Employment Period and through the one-year period commencing on the effective date of the termination of Employee's employment hereunder, the Employee will not (i) induce or attempt to induce any employee of the Company with whom or any of its subsidiaries to leave the Executive has had personal contact within employ of the twelve (12) month period prior to the Executive’s termination dateCompany or such subsidiary, or in any way interfere with the relationship between the Company or any of it subsidiaries and any employee thereof, (ii) solicit or induce, or attempt to solicit or induce, hire directly or indirectly any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, is then an employee or agent of, or consultant to, of the Company or any of its affiliates, to terminate its, his or her relationship therewithsubsidiaries, or (iii) hire induce or engage attempt to induce any person who iscustomer, supplier, licensee or during the twelve (12) month period prior to the Executive’s termination date was, an employee, agent other business relation of or consultant to the Company or any of its affiliates.
(c) Executive understands subsidiaries to cease doing business with the Company or such subsidiary, or in any way interfere with the relationship between any such customer, supplier, licensee or business relation and the Company or such subsidiary; provided, however, that the provisions of Employee will cease to be bound by this Section 11 may limit Executive’s ability to earn a livelihood in a business similar to 7(c) on the business six-month anniversary of the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests effective date of the Company, (ii) such provisions contain reasonable limitations as to time and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.termination
Appears in 1 contract
Non-Competition and Non-Solicitation. Executive acknowledges and recognizes the highly competitive nature of the businesses of the Company and its subsidiaries and affiliates and accordingly agrees as follows:
(a) During the Executive’s employment with the Company Employment Period and for a period of one (1) year from thereafter (the date of termination of Executive’s employment for any reason“Non-Compete Period”), the Executive shall notnot engage, anywhere within the United States either directly or indirectly, whether as principal, agent, employee, consultant, partnerdistributor, officerrepresentative, directorfive percent (5%) or greater stockholder or otherwise, shareholder, or in any business activities in the United States of America or any other individual jurisdiction in which the Parent or representative capacity, own, manage, finance, any of its direct or indirect subsidiaries operate, control or otherwise engage or participate which are in any manner or fashion in an employment, business or other activity way competitive with the Company. The post-employment restriction contained in this section shall not apply in business conducted by the State Parent or any of Californiaits direct or indirect subsidiaries during the Employment Period.
(b) Executive further agrees that, during During the Executive’s employment with the Company Employment Period and for a period of one two (12) year from years thereafter (the date of termination of Executive’s employment for any reason“Non-Solicitation Period” and together with the Non-Compete Period, the “Restricted Period”), the Executive shall not, directly or indirectly, either as a principal, agent, employee, consultant, partner, officer, director, shareholder, indirectly (whether alone or in any other individual or representative capacity, on the Executive’s behalf or any other persons or entity other than the Company or its affiliatesjointly with another Person), (i) solicit or inducefor employment, hire, employ, or attempt engage any Person who, at any time during the Non-Solicitation Period, is an officer or employee of the Parent or any of its direct or indirect subsidiaries, including the Company; provided, however, that the preceding sentence does not prohibit the Executive from (A) soliciting or hiring any Person whose employment, or engagement for services, was terminated by any such Person at least twelve (12) months prior to solicit the date of such solicitation or inducehire; and provided, further, that such termination was not encouraged by the Executive, or (B) engaging in any general solicitation not targeted at any employee of any such Person, including a non-directed executive search or placing general advertisements for employees in newspapers or other media of general circulation so long as such employee is not hired, directly or indirectly, any customer or prospective customer of the Company with whom by the Executive has had personal contact within the twelve (12) month period prior to the Executive’s termination date, or any of her controlled Affiliates or (ii) solicit business from any customer or induce, solicit products or attempt to solicit or induce, directly or indirectly services from any person who is, or during vendor of the twelve (12) month period prior to the Executive’s termination date was, an employee or agent of, or consultant to, the Company Parent or any of its affiliatesdirect or indirect subsidiaries, to terminate itsincluding the Company, his that interferes with or her relationship therewith, jeopardizes the business or (iii) hire relationships of any such Person with any such customer or engage any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee, agent of or consultant to the Company or any of its affiliatesvendor.
(c) Executive understands The Parties acknowledge and agree that the provisions of Executive’s obligations under Section 6, this Section 11 7 and the following Section 8(c) (collectively, the “Covenants”) are of a special, unique and extraordinary nature, that there may limit Executive’s ability be no adequate remedy at law for any breach thereof, that any such breach may allow third parties to earn a livelihood compete unfairly with the Parent or any of its direct or indirect parents or subsidiaries, including the Company, resulting in a business similar irreparable harm to any such Person, and, therefore, upon any such breach or any threat thereof, the business Companies shall be entitled to preliminary and permanent, mandatory or negative injunctive relief against any breach or threatened breach by the Executive of any of the Company but Covenants, without having to post a bond, in addition to whatever remedies they may have at law. The Executive nevertheless hereby agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests terms of the CompanyCovenants are reasonable, (ii) such provisions contain reasonable limitations as to time the foregoing restrictions will not prevent her from obtaining gainful employment in her occupation or field of expertise or cause her undue hardship, and scope of activity to be restrained, (iii) in the event a court determines that any of the provisions of the Covenants are unreasonable or contrary to public policy, or invalid or unenforceable for any reason in fact, law or equity, then such provisions are not harmful provision shall be deemed to be modified to permit its enforcement to the general publicmaximum extent permitted by law. So that the Companies may enjoy the full benefits of the covenants set forth in this Section 7, (iv) such provisions are not unduly burdensome to Executivethe Executive further agrees that the Restricted Period shall be tolled, and (v) shall not run, during the consideration provided hereunder period of time during which the Executive is sufficient to compensate Executive for in breach of any of the restrictions covenants contained in this Section 117, after such time the Company has informed the Executive that she is so in breach. In consideration It is also agreed that each of the foregoing Parent and in light its direct or indirect parents or subsidiaries, including the Company, shall have the right to enforce all of the Executive’s educationobligations to that Affiliate under this Agreement, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of including without limitation pursuant to this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein7.
Appears in 1 contract
Non-Competition and Non-Solicitation. Executive (a) Employee acknowledges that during the course of Employee’s employment Employee will receive confidential and recognizes proprietary information from and concerning the highly competitive Company. Employee also acknowledges that the Company will make substantial investments in the development of the Company’s goodwill and in Employee’s professional development. The capital expended to develop this goodwill directly benefits Employee and should continue to do so in the event that the relationship between the Company and Employee is terminated. Likewise, the Company has conferred and will confer a direct economic benefit on Employee. Employee agrees that the Company is entitled to protect these business interests and investments and to prevent Employee from using or taking advantage of the foregoing economic benefits to the Company’s detriment.
(b) Employee agrees that, except for services and duties performed for or on behalf of the Company according to this Agreement, Employee will not, during the period of Employee’s employment with the Company, and for a period (the “Restricted Period”) of one (1) year immediately following the termination of Employee’s employment under this Agreement, for any reason whatsoever, directly or indirectly, for himself or on behalf of or in conjunction with any other person, persons, company, partnership, corporation, association, enterprise, venture or business of whatever nature:
(i) engage, as an officer, director, shareholder, owner, partner, joint venturer, lender or in a managerial capacity, whether as an employee, independent contractor, agent, consultant or advisor or as a sales representative, or similar business in direct competition with those aspects of the business of the Company or any subsidiary of the Company, with which Employee has had any involvement, within United States of America, Canada and all other countries in which customers of the Company have access to the world wide web (the “Territory”); Private & Confidential 3
(ii) solicit any person who is, at that time, or who has been within one (1) year prior to that time, an employee of the Company for the purpose or with the intent of enticing such employee away from or out of the employ of the Company;
(iii) solicit any person or entity which is, at that time, or which has been within one (1) year prior to that time, a customer, doctor, service provider or supplier of the Company for the purpose of soliciting or selling products or services in direct competition with those aspects of the business of the Company or any subsidiary of the Company with which Employee has had any involvement, within the Territory; or
(iv) solicit any prospective acquisition candidate, on Employee’s own behalf or on behalf of any competitor or potential competitor, which candidate was, to Employee’s knowledge, either called upon by the Company or for which the Company made an acquisition analysis, for the purpose of acquiring such entity. Notwithstanding the above, the foregoing covenant shall not be deemed to prohibit Employee from acquiring as an investment not more than five percent (5%) of the capital stock of a competing business, whose stock is traded on a national securities exchange or over-the-counter.
(c) In recognition of the substantial nature of such potential damages and the businesses difficulty of measuring economic losses to the Company as a result of a breach of the foregoing covenants, and because of the immediate and irreparable damage that could be caused to the Company for which they would have no other adequate remedy, Employee agrees that in the event of breach by Employee of the foregoing covenant, the Company shall be entitled to specific performance of this provision and co-injunctive and other equitable relief.
(d) It is agreed by the parties that the foregoing covenants in this paragraph 4 impose a reasonable restraint on Employee in light of the activities and business of the Company on the date of the execution of this Agreement and the current plans of the Company and its subsidiaries Employee that such covenants be construed and affiliates enforced in accordance with the changing activities, business and accordingly agrees as follows:locations of the Company throughout the term of this Agreement, whether before or after the date of termination of the employment of Employee.
(ae) During All of the Executivecovenants in this paragraph 4 shall be construed as an agreement independent of any other provision in this Agreement, and the existence of any claim or cause of action of Employee against the Company, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by the Company of such covenants. Further, this paragraph 4 shall survive the termination of this Agreement and the termination of Employee’s employment with the Company and for a Company. It is specifically agreed that the period of one (1) year from the date of following termination of Executive’s employment for any reasonstated at the beginning of this paragraph 4, during which the Executive shall not, anywhere within the United States either as principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, own, manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an employment, business or other activity competitive with the Company. The post-employment restriction contained agreements and covenants of Employee made in this section paragraph 4 shall not apply be effective, shall be computed by excluding from such computation any time during which Employee is in the State violation of California.
(b) Executive further agrees that, during the Executive’s employment with the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reason, the Executive shall not, directly or indirectly, either as a principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, on the Executive’s behalf or any other persons or entity other than the Company or its affiliates, (i) solicit or induce, or attempt to solicit or induce, directly or indirectly, any customer or prospective customer of the Company with whom the Executive has had personal contact within the twelve (12) month period prior to the Executive’s termination date, or (ii) solicit or induce, or attempt to solicit or induce, directly or indirectly any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee or agent of, or consultant to, the Company or any of its affiliates, to terminate its, his or her relationship therewith, or (iii) hire or engage any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee, agent of or consultant to the Company or any of its affiliates.
(c) Executive understands that the provisions provision of this Section 11 may limit Executive’s ability to earn a livelihood in a business similar to the business of the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests of the Company, (ii) such provisions contain reasonable limitations as to time and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained hereinparagraph 4.
Appears in 1 contract
Sources: Executive Employment Agreement (Omnireliant Holdings, Inc.)
Non-Competition and Non-Solicitation. Executive acknowledges and recognizes the highly competitive nature of the businesses of the Company and its subsidiaries and affiliates and accordingly agrees as follows:
(a) During Subject to Section 7(b) below, in consideration of his employment hereunder and in view of the Executive’s employment with confidential position to be held by the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reason, the Executive shall not, anywhere within the United States either as principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, own, manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an employment, business or other activity competitive with the Company. The post-employment restriction contained in this section shall not apply in the State of California.
(b) Executive further agrees thatEmployee hereunder, during the Executive’s employment with Employment Period and through the Company and for a two-year period of one (1) year from commencing on the effective date of the termination of Executive’s Employee's employment for any reasonhereunder, the Executive Employee shall not, directly or indirectly, either be employed by, or act as a principalconsultant or lender to or in association with, agentor as a director, officer, employee, consultant, partner, officerowner, directorjoint venturer, shareholdermember or otherwise of any person, firm, corporation, partnership, limited liability company, association or other entity that engages in the same business as, or in competes with, any other individual or representative capacity, on the Executive’s behalf or any other persons or entity other than business actually conducted by the Company or any or its affiliatessubsidiaries (other than beneficial ownership of up to 2% of the outstanding voting stock of a publicly traded company that is or owns such a competitor);
(b) In the event that the employee is terminated by the Company for Cause or resigns without Good Reason, (i) solicit or induceduring the Employment Period and through the one-year period commencing on the effective date of the termination of Employee's employment hereunder, or attempt to solicit or inducethe Employee shall not, directly or indirectly, be employed by, or act as a consultant or lender to or in association with, or as a director, officer, employee, partner, owner, joint venturer, member or otherwise of any customer person, firm, corporation, partnership, limited liability company, association or prospective customer other entity that engages in the same business as, or competes with, any business actually conducted by the Company or any of its subsidiaries (other than beneficial ownership of up to 2% of the outstanding voting stock of a publicly traded company that is or owns such a competitor);
(c) In consideration of his employment hereunder and in view of the confidential position to be held by the Employee hereunder, during the Employment Period and through the one-year period commencing on the effective date of the termination of Employee's employment hereunder, the Employee will not (i) induce or attempt to induce any employee of the Company with whom or any of its subsidiaries to leave the Executive has had personal contact within employ of the twelve (12) month period prior to the Executive’s termination dateCompany or such subsidiary, or in any way interfere with the relationship between the Company or any of it subsidiaries and any employee thereof, (ii) solicit or induce, or attempt to solicit or induce, hire directly or indirectly any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, is then an employee or agent of, or consultant to, of the Company or any of its affiliates, to terminate its, his or her relationship therewithsubsidiaries, or (iii) hire induce or engage attempt to induce any person who iscustomer, supplier, licensee or during the twelve (12) month period prior to the Executive’s termination date was, an employee, agent other business relation of or consultant to the Company or any of its affiliates.subsidiaries to cease doing business with the Company or such subsidiary, or in any way interfere with the relationship between any such customer, supplier, licensee or business relation and the Company or such subsidiary; provided, however, that the Employee will cease to be bound by this Section 7(c) on the six-month anniversary of the effective date of the termination of Employee's employment hereunder if his employment is terminated without Cause;
(cd) Executive understands The Employee expressly agrees that the character, duration and geographic scope of the provisions of this Section 11 may limit Executive’s ability to earn a livelihood in a business similar to the business of the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests of the Company, (ii) such provisions contain 7 are reasonable limitations as to time and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration of the foregoing and in light of Executive’s educationthe circumstances as they exist on the date hereof. If any competent court shall determine that the character, skills duration or geographic scope of such provisions is unreasonable, then it is the intention and abilities, Executive agrees the agreement of the Employee and the Company that Executive this Agreement shall not assert that, be construed by the court in such a manner as to impose only those restrictions on the Employee's conduct that are reasonable in the light of the circumstances and it should not be considered that, any provisions that are necessary to assure to the Company the benefits of this Section 11 otherwise are void7. The Employee agrees that any breach of this Section 7 will cause the Company substantial and irrevocable damage and therefore in the event of any such breach, voidable or unenforceable or should in addition to all other remedies which may be voided or held unenforceable
(d) If a judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Executiveavailable, the provisions of this Agreement Company shall not be rendered void but shall be deemed amended have the right to apply as to such maximum time seek specific performance and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained hereininjunctive relief.
Appears in 1 contract
Non-Competition and Non-Solicitation. Executive Employee acknowledges and recognizes that it may be very difficult for him to avoid using or disclosing the highly competitive nature Confidential Information in violation of Article Three above in the businesses event that he engages in a business similar to Employer’s or is employed by any person or entity other than the Employer in a capacity similar or related to the capacity in which he is employed by the Employer. Accordingly, Employee agrees that he will not, during the term of the Company and its subsidiaries and affiliates and accordingly agrees as follows:
(a) During the Executive’s employment with the Company Employer and for a period of one (1) year from after the date of termination of Executive’s employment such employment, irrespective of the time, manner or cause of such termination, directly or indirectly (whether or not for compensation or profit):
(1) Engage in any reasonbusiness or enterprise the nature of which is competitive with that of the Employer (a “Prohibited Business”); or
(2) Participate as an officer, the Executive shall notdirector, anywhere within the United States either as principalcreditor, promoter, proprietor, associate, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, own, manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an employment, business or other activity competitive with the Company. The post-employment restriction contained in this section shall not apply in the State of California.
(b) Executive further agrees that, during the Executive’s employment with the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reason, the Executive shall not, directly or indirectly, either as a principal, agent, employee, consultant, partner, officer, director, shareholdersales representative or otherwise, or promote or assist, financially or otherwise, or directly or indirectly own any interest in any other individual or representative capacity, on the Executive’s behalf or any other persons person or entity other than the Company or its affiliatesinvolved in any Prohibited Business; or
(3) Canvas, (i) solicit or call upon, solicit, entice, persuade, induce, respond to, or attempt to solicit or induceotherwise deal with, directly or indirectly, any individual or entity which, during Employee’s term of employment with the Employer, was or is a customer or prospective supplier, or proposed customer or supplier, of the Company with Employer whom the Executive has had personal contact within the twelve (12) month period prior to the Executive’s termination dateEmployee called upon or dealt with, or whose account Employee supervised, for the following:
(iia) solicit to purchase (with respect to customers) or inducesell (with respect to suppliers) products of the types or kinds sold by the Employer or which could be substituted for (including, but not limited to, rebuilt products), or attempt which serve the same purpose or function as, products sold by the Employer (all of which products are herein sometimes referred to, jointly and severally, as “Prohibited Products”), or
(b) to solicit request or induceadvise any such customer or supplier to withdraw, directly curtail or indirectly cancel its business with the Employer; or
(4) For himself or for or through any person who isother individual or entity call upon, solicit, entice, persuade, induce or offer any individual who, during Employee’s term of employment with the twelve (12) month period prior to the Executive’s termination date wasEmployer, was an employee or agent ofsales representative or distributor of the Employer, employment by, or consultant representation as sales agent or distributor for, any one other than the Employer, or request or advise any such employee or sales agent or distributor to cease employment with or representation of the Employer, and Employee shall not approach, respond to, the Company or otherwise deal with any such employee or sales representative or distributor of its affiliates, to terminate its, his or her relationship therewithEmployer for any such purpose, or (iii) hire authorize or engage knowingly cooperate with the taking of any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee, agent of or consultant to the Company or any of its affiliates.
(c) Executive understands that the provisions of this Section 11 may limit Executive’s ability to earn a livelihood in a business similar to the business of the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests of the Company, (ii) such provisions contain reasonable limitations as to time and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made actions by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine individual or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained hereinentity.
Appears in 1 contract
Sources: Employment Agreement (Richardson Electronics LTD/De)
Non-Competition and Non-Solicitation. Executive The Selling Member acknowledges and recognizes agrees that the nature of the Company’s confidential, proprietary, and trade secret information to which the Selling Member has, and will continue to have, access to derives value from the fact that it is not generally known and used by others in the highly competitive nature of industry in which the businesses Company competes. The Selling Member further acknowledges and agrees that, even in complete good faith, it would be impossible for the Selling Member to work in a similar capacity for a competitor of the Company without drawing upon and its subsidiaries and affiliates and accordingly agrees as follows:
(a) During utilizing information gained during employment with the ExecutiveCompany. Accordingly, at all times during the Selling Member’s employment with the Company and for a during the period specified in the second sentence of one (1) year from the date of termination of Executive’s employment for any reasonparagraph 10 below in which this paragraph 2 applies, the Executive shall Selling Member will not, anywhere within the United States either directly or indirectly:
(a) Engage in any business or enterprise (whether as principal, agent, employee, consultantowner, partner, officer, director, shareholderemployee, consultant, investor, lender or in any other individual otherwise, except as the holder of not more than one percent (1%) of the outstanding capital stock of a company) that directly or representative capacity, own, manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an employment, business or other activity competitive indirectly competes with the Company. The post-employment restriction contained in this section shall not apply ’s business or the business of any of its subsidiaries anywhere in the State United States, including but not limited to any business or enterprise that develops, manufactures, markets, or sells any product or service that competes with any product or service developed, manufactured, marketed or sold, or planned to be developed, manufactured, marketed or sold, by the Company or any of California.its subsidiaries while the Selling Member was employed by the Seller or the Company; or
(b) Executive further agrees thatEither alone or in association with others (i) solicit, or facilitate any organization with which the Selling Member is associated in soliciting, any employee of the Company or any of its subsidiaries to leave the employ of the Company or any of its subsidiaries; (ii) solicit for employment, hire or engage as an independent contractor, or facilitate any organization with which the Selling Member is associated in soliciting for employment, hire or engagement as a independent contractor, any person who was employed by the Company or any of its subsidiaries at any time during the Executiveterm of the Selling Member’s employment with the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reason, the Executive shall not, directly Seller or indirectly, either as a principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, on the Executive’s behalf or any other persons or entity other than the Company or its affiliatesany of their respective subsidiaries (provided, (i) solicit or induce, or attempt to solicit or induce, directly or indirectly, any customer or prospective customer of the Company with whom the Executive has had personal contact within the twelve (12) month period prior to the Executive’s termination date, or that this clause (ii) solicit or induce, or attempt shall not apply to solicit or induce, directly or indirectly any person who is, or during individual whose employment with the twelve (12) month period prior to the Executive’s termination date was, an employee or agent of, or consultant toSeller, the Company or any of its affiliates, to terminate its, his subsidiaries has been terminated for a period of one year or her relationship therewith, longer); or (iii) hire solicit business from or engage perform services for any person who iscustomer, supplier, licensee or during business relation of the twelve (12) month period prior Seller or the Company or any of their respective subsidiaries, induce or attempt to the Executive’s termination date wasinduce, an employee, agent of or consultant any such entity to cease doing business with the Company or any of its affiliatessubsidiaries; or in any way interfere with the relationship between any such entity and the Company or any of its subsidiaries.
(c) Executive understands that Notwithstanding the provisions of this Section 11 may limit Executive’s ability to earn a livelihood in a business similar to the business of the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests of the Companyforegoing, (ii) such provisions contain reasonable limitations as to time and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction nothing contained in this Agreement is an unenforceable restriction against shall preclude the ExecutiveSelling Member from training mixed martial arts fighters, the provisions of this Agreement shall or from providing and/or promoting any boxing or kickboxing event as long as doing so does not be rendered void but shall be deemed amended materially affect Selling Members’ ability to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained hereinprovide services under his Executive Employment Agreement.
Appears in 1 contract
Non-Competition and Non-Solicitation. Executive acknowledges and recognizes the highly competitive nature of the businesses of the Company and its subsidiaries and affiliates and accordingly agrees as follows:
(a) During the Executive’s employment with the Company and for For a period beginning on the Closing Date and ending on the fifth anniversary of one the Closing Date (1) year from the date of termination of Executive’s employment for any reason“Restriction Period”), the Executive shall not, anywhere within the United States either as principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, own, manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an employment, business or other activity competitive with the Company. The post-employment restriction contained in this section shall not apply in the State of California.
(b) Executive further agrees that, during the Executive’s employment with the Holding Company and for a period of one (1) year from the date of termination of Executive’s employment for any reason, the Executive shall not, directly or indirectly, either engage in or assist others in engaging in the business of engaging in the home health, home care or personal care business (collectively, the “Restricted Business”) in the state of Ohio (the “Territory”), as a principalstockholder, agentpartner, member, owner, joint venturer, investor, employee, consultant, partner, officer, director, shareholdersole proprietor, or in any other individual or representative capacity, on the Executive’s behalf or any other persons or entity similar capacity (other than as a holder of not more than two percent (2%) of the total outstanding stock of a publicly held company).
(b) During the Restriction Period, the Holding Company or its affiliates, (i) solicit or induce, or attempt to solicit or induceshall not, directly or indirectly, for itself or on behalf of any other Person: (i) induce, persuade or encourage any customer or prospective customer supplier of the Company Restricted Business in the Territory to cease doing business with whom the Executive has had personal contact within the twelve (12) month period prior to the Executive’s termination dateCompany, Buyer or any Affiliate thereof; (ii) solicit or induce, or attempt to solicit or induce, directly or indirectly procure the business of any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee or agent of, or consultant to, Person that is a customer of the Company or as of the Closing Date in the Territory in connection with any of its affiliates, to terminate its, his or her relationship therewith, or activities which are in competition with the Restricted Business; (iii) hire accept or engage procure any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee, agent business from any Person that is a customer of or consultant to the Company as of the Closing Date in the Territory in connection with any activities which are in competition with the Restricted Business; or (iv) supply or procure any services to any Person that is a customer of its affiliatesthe Company as of the Closing Date in the Territory in connection with any activities which are in competition with the Restricted Business.
(c) Executive understands During the Restriction Period, the Holding Company shall not, directly or indirectly, for itself or on behalf of any other Person, (i) hire or solicit for employment any employee of the Company, Buyer or any Affiliate thereof who was, as of the Closing Date, an employee of the Company or (ii) induce, persuade or encourage any Employee of the Company, Buyer or any Affiliate thereof who was, as of the Closing Date, an employee of the Company to terminate such employee’s position with the Company, Buyer or any Affiliate thereof.
(d) The Holding Company acknowledges that: (i) an essential part of the acquisition contemplated by this Agreement is the purchase by Buyer of goodwill, and that to protect and preserve such goodwill, the covenants set forth in this Section 6.16 are not only reasonable and necessary but required as a condition to Buyer’s consummation of the transactions contemplated by this Agreement; (ii) the provisions of this Section 11 may limit Executive’s ability to earn a livelihood in a business similar to 6.16 are the business product of the Company but Executive nevertheless agrees arm’s-length negotiations and hereby acknowledges that (i) such provisions do not impose a greater restraint than is are reasonable and necessary to protect and preserve Buyer’s interests in and right to the goodwill or other business interests ownership, use and operation of the Company, (ii) such provisions contain reasonable limitations as to time Business from and scope of activity to be restrained, after the Closing Date; and (iii) such provisions are not harmful to Buyer would be irreparably damaged if the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) Holding Company breached its covenants set forth in this Section 6.16. In the consideration provided hereunder is sufficient to compensate Executive for the restrictions event that any covenant contained in this Section 116.16 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. In consideration The covenants contained in this Section 6.16 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive any such covenant or provision as written shall not assert thatinvalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
(e) The Parties recognize that damages in the event of a breach by the Holding Company of any provision of this Section 6.16 would be difficult, if not impossible, to ascertain, and it should is therefore agreed that Buyer, in addition to and without limiting any other remedy or right it may have, shall have the right to seek an injunction or other equitable relief in any court of competent jurisdiction, enjoining any such breach. The existence of this right shall not be considered that, preclude any provisions other rights or remedies at law or in equity which Buyer may have relating to a breach of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable6.16.
(df) If a judicial determination is made by a court The obligations of competent jurisdiction that the time or territory or any other restriction contained Parties in this Agreement is an unenforceable restriction against Section 6.16 shall terminate if the Executive, transactions contemplated by the provisions of this Agreement shall not Bracor SPA close and thereafter be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect governed by the enforceability of any terms of the other restrictions contained hereinBracor SPA.
Appears in 1 contract
Non-Competition and Non-Solicitation. Executive Employee acknowledges and recognizes that it may be very difficult for him to avoid using or disclosing the highly competitive nature Confidential Information in violation of Article Three above in the businesses event that he is employed by any person or entity other than the Employer in a capacity similar or related to the capacity in which he is employed by the Employer. Accordingly, Employee agrees that he will not, during the term of the Company and its subsidiaries and affiliates and accordingly agrees as follows:
(a) During the Executive’s employment with the Company Employer and for a period of one two (2) years after the termination of such employment, irrespective of the time, manner or cause of such termination, directly or indirectly (whether or not for compensation or profit):
(1) year from Engage in any business or enterprise the date nature of termination any part of Executive’s employment for which is competitive with any reasonpart of that of the Employer (a "Prohibited Business"); or
(2) Participate as an officer, the Executive shall notdirector, anywhere within the United States either as principalcreditor, promoter, proprietor, associate, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, own, manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an employment, business or other activity competitive with the Company. The post-employment restriction contained in this section shall not apply in the State of California.
(b) Executive further agrees that, during the Executive’s employment with the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reason, the Executive shall not, directly or indirectly, either as a principal, agent, employee, consultant, partner, officer, director, shareholdersales representative or otherwise, or promote or assist, financially or otherwise, or directly or indirectly own any interest in any other individual or representative capacity, on the Executive’s behalf or any other persons person or entity other than the Company or its affiliatesinvolved in any Prohibited Business; or
(3) Canvas, (i) solicit or call upon, solicit, entice, persuade, induce, respond to, or attempt to solicit or induceotherwise deal with, directly or indirectly, any individual or entity which, during Employee's term of employment with the Employer, was or is a customer or prospective supplier, or proposed customer or supplier, of the Company with Employer whom the Executive has had personal contact within the twelve (12) month period prior to the Executive’s termination dateEmployee called upon or dealt with, or whose account Employee supervised, for any of the following purposes:
(iia) solicit to purchase (with respect to customers) or induceto sell (with respect to suppliers) products of the types or kinds sold by the Employer or which could be substituted for (including, but not limited to, rebuilt products), or attempt which serve the same purpose or function as, products sold by the Employer (all of which products are herein sometimes referred to, jointly and severally, as "Prohibited Products"), or
(b) to solicit request or induceadvise any such customer or supplier to withdraw, directly curtail or indirectly cancel its business with the Employer; or
(4) For himself or for or through any person who isother individual or entity call upon, solicit, entice, persuade, induce or offer any individual who, during Employee's term of employment with the twelve (12) month period prior to the Executive’s termination date wasEmployer, was an employee or agent ofsales representative or distributor of the Employer, employment by, or consultant representation as sales agent or distributor for, any one other than the Employer, or request or advise any such employee or sales agent or distributor to cease employment with or representation of the Employer, and Employee shall not approach, respond to, the Company or otherwise deal with any such employee or sales representative or distributor of its affiliates, to terminate its, his or her relationship therewithEmployer for any such purpose, or (iii) hire authorize or engage knowingly cooperate with the taking of any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee, agent of or consultant to the Company or any of its affiliates.
(c) Executive understands that the provisions of this Section 11 may limit Executive’s ability to earn a livelihood in a business similar to the business of the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests of the Company, (ii) such provisions contain reasonable limitations as to time and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made actions by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine individual or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained hereinentity.
Appears in 1 contract
Sources: Employment Agreement (Richardson Electronics LTD/De)
Non-Competition and Non-Solicitation. Executive acknowledges As you will have access to the clientele and recognizes the highly competitive nature to manufacturing and business secrets of the businesses Employer and the Amrize Group, you agree by signing this Contract of Employment that during the Company term of this agreement and its subsidiaries and affiliates and accordingly agrees as follows:
(a) During during a period of 12 months following the Executive’s termination of your employment with the Company and for a period of one (1) year Employer, you shall refrain from the date of termination of Executive’s employment for any reason, the Executive shall not, anywhere within the United States either as principal, agent, employee, consultant, partner, officer, director, shareholder, or activity in any territory where the Employer and the Amrize Group or any of its subsidiaries or affiliates have operations that competes with the business of the Employer and the Amrize Group, in particular in the field of the development, manufacturing, marketing and distribution of building materials, systems and solutions, in particular in the areas of roofing, insulation, adhesives, sealants, ready-mix concrete, cement-based and other individual construction-related products, for residential, commercial or representative capacityindustrial building applications, ownprimarily in the North American market, manage, finance, operate, control and you shall not solicit or otherwise engage endeavour to entice away any other employee or participate in any manner person engaged or fashion in an employment, employed by the Employer and the Amrize Group for your own business or the business of any other activity competitive with the Companyperson. The post-employment restriction contained in this section shall In particular, you undertake - not apply in the State of California.
(b) Executive further agrees that, during the Executive’s employment with the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reason, the Executive shall notto participate, directly or indirectly, either financially or otherwise in any enterprise (other than as a principalshareholder of up to 5% of its issued shares for the purposes of investment only) which develops, agentmanufactures, offers, or distributes products, or provides services similar to those of the Employer and the Amrize Group or which otherwise competes with the business of the Employer and the Amrize Group; - not to be active, fully or partially, for such an enterprise, be it as an employee, consultantrepresentative, partner, officer, director, shareholder, adviser or otherwise; - not to directly or indirectly establish such an enterprise; - not to directly or indirectly solicit or employ other employees of the Employer and the Amrize Group or in any other individual way enter into an agreement with such employees for the benefit of himself or representative capacitya third party. You shall for each violation of the covenants set forth in this clause pay to the Employer an amount corresponding to the Annual Base Salary effective at the time of violation as liquidated damages (Konventionalstrafe) plus such additional damages as may be incurred by the Employer. The payment of this sum shall not operate as a waiver of the above obligations. The Employer shall, on the Executivein addition to all other damages, be entitled to obtain a court’s behalf order for specific performance (Realexekution), as well as adequate injunctive relief or any other persons or entity other than the Company or its affiliates, (i) solicit or induce, or attempt to solicit or induce, directly or indirectly, any customer or prospective customer of the Company with whom the Executive has had personal contact within the twelve (12) month period prior to the Executive’s termination date, or (ii) solicit or induce, or attempt to solicit or induce, directly or indirectly any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee or agent of, or consultant to, the Company or any of its affiliatesadequate judicial measure, to terminate itsimmediately stop such violation. By signing this Contract of Employment, his or her relationship therewithyou confirm that this non-competition-clause is reasonable in duration, or (iii) hire or engage any person who isscope, or during the twelve (12) month period prior to the Executive’s termination date was, and geography and does not impose an employee, agent of or consultant to the Company or any of its affiliates.
(c) Executive understands that the provisions of this Section 11 may limit Executive’s undue burden on your ability to earn a livelihood in a business similar to the business of the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests of the Company, (ii) such provisions contain reasonable limitations as to time and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained hereinlivelihood.
Appears in 1 contract
Sources: Contract of Employment (Amrize LTD)
Non-Competition and Non-Solicitation. The Executive acknowledges and recognizes the highly competitive nature of the businesses of the Company and its subsidiaries and affiliates and accordingly agrees as followsthat:
(a) During the Executive’s employment with the Company Term and for a period of one year thereafter or during any Severance Period, if longer (1) year from the date of termination of Executive’s employment for any reason"Restricted Period"), the Executive shall not, anywhere agrees that he will not (without the written consent of the Chief Executive Officer of the Company) engage in any business within the United States either (financially as principal, agent, an investor or lender or as an employee, consultantdirector, officer, partner, officerindependent contractor, director, shareholder, consultant or owner or in any other individual capacity calling for the rendition of personal services or representative capacityacts of management, own, manage, finance, operate, control operation or otherwise engage or participate in any manner or fashion in an employment, business or other activity control) which is competitive with the Company. The post-employment restriction contained in this section shall not apply in the State of California.
(b) Executive further agrees that, during the Executive’s employment with the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reason, the Executive shall not, directly or indirectly, either as a principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, on the Executive’s behalf or any other persons or entity other than the Company or its affiliates, (i) solicit or induce, or attempt to solicit or induce, directly or indirectly, any customer or prospective customer of the Company with whom the Executive has had personal contact within the twelve (12) month period prior to the Executive’s termination date, or (ii) solicit or induce, or attempt to solicit or induce, directly or indirectly any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee or agent of, or consultant to, business conducted by the Company or any of its affiliatesAffiliates (as defined below) on the date of termination of employment. Notwithstanding the foregoing, the Executive shall be entitled to terminate its, his or her relationship therewith, or (iii) hire or engage own securities of any person who is, or during corporation conducting a business competitive with the twelve (12) month period prior to the Executive’s termination date was, an employee, agent business of or consultant to the Company or any of its affiliatesAffiliates so long as the securities of such corporation are listed on a national securities exchange or on the Nasdaq National Market and the securities owned directly or indirectly by the Executive do not represent more than two percent (2%) of any class of the outstanding securities of such company.
(cb) During the Restricted Period, in addition to the obligations pursuant to Subsection 5(a), the Executive understands agrees that neither he nor any business in which he engages will (i) induce any customers of the provisions Company or of this Section 11 may limit Executive’s ability corporations or businesses which directly or indirectly control or are controlled by or under common control with the Company ("Affiliates") to earn a livelihood in a patronize any business similar to the business of the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests of the Company, (ii) such provisions contain reasonable limitations as to time and scope canvass, solicit or accept any similar business from any customer of activity to be restrainedthe Company or any of its Affiliates, (iii) request or advise any customer of the Company or any of its Affiliates to withdraw, curtail or cancel such provisions are not harmful to customer's business with the general publicCompany or any of its Affiliates, (iv) such provisions are not unduly burdensome disclose to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against person, firm or corporation the Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine names or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability addresses of any of the customers of the Company or any of its Affiliates, or (v) compete with the Company or any of its Affiliates in acquiring or merging with any other restrictions contained hereinbusiness or acquiring the assets of such other business.
(c) During the Restricted Period, in addition to the obligations pursuant to Subsections 5(a) and 5(b), the Executive agrees that neither he nor any business in which he engages will (i) hire or attempt to hire any employee of the Company or any of its Affiliates nor
Appears in 1 contract
Non-Competition and Non-Solicitation. Executive acknowledges and recognizes the highly competitive nature In consideration of the businesses salary paid to the Executive by the Company, the Executive agrees that during the term of the Company and its subsidiaries and affiliates and accordingly agrees as follows:
(a) During the Executive’s employment with the Company Employment and for a period of one two (12) year from years following the date of termination of the Employment for whatever reason:
a. The Executive will not approach clients, customers or contacts of the Company or other persons or entities introduced to the Executive in the Executive’s employment capacity as a representative of the Company for any reasonthe purposes of doing business with such persons or entities which will harm the business relationship between the Company and such persons and/or entities;
b. unless expressly consented to by the Company in writing, the Executive shall not, anywhere within the United States either as principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacitywill not engage, own, manage, finance, operate, control control, be employed by, consult for, participate in, or otherwise engage or participate be connected in any manner or fashion in an employment, business or other activity competitive with the Company. The post-employment restriction contained ownership, management, operation, or control of any business of any Competitor, or provide services as a director or otherwise for any Competitor, or engage, whether as principal, partner, licensor or otherwise, in this section shall not apply in the State of California.any Competitor;
(b) Executive further agrees that, during the Executive’s employment with c. unless expressly consented to by the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reasonin writing, the Executive shall will not, directly or indirectly, either as a principalrecruit, agent, employee, consultant, partner, officer, director, shareholdersolicit, or in any other individual or representative capacity, on the Executive’s behalf or any other persons or entity other than the Company or its affiliates, (i) solicit or inducehire, or attempt to recruit, solicit or inducehire, any employee, or independent contractor of the Company to leave the employment (or independent contractor relationship) thereof, wheter or not any such employee or independent contractor is party to an employment agreement;
d. attempt in any manner to solicit or accept from any customer of the Company, with whom the Company had significant contact during Executive’s employment by the Company (whether under this Agreement or otherwise), business of the kind or competitive with the business done by the Company with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce the amount of business which such customer has customarily done or might do with the Company, or if any such customer elects to move its business to a person other than the Company, provide any services (of the kind or competitive with the business of the Company) for such customer, or have any discussions regarding any such service with such customer, on behalf of such other person;
e. interfere with any relationship, contractual or otherwise, between the Company and any other party, including, without limitation, any supplier, distributor, co-venturer or joint venturer of the Company to discontinue or reduce its business with the Company or otherwise interfere in any way with the business of the Company; or
f. have any equity or other ownership interest in, or become a director or manager of, or be otherwise associated with, or engaged or employed by, any customer, prospect or former customer of the Company or their subsidiary or parent entities or affiliates in any job or career that relates to or concerns any activity substantially similar, in whole or in part, to the Company’s business. As used herein, “Competitor” refers to any business or activity which competes, directly or indirectly, any customer with or prospective customer of the Company with whom the Executive has had personal contact within the twelve (12) month period prior to the Executive’s termination date, or (ii) solicit or induce, or attempt to solicit or induce, directly or indirectly any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee or agent of, or consultant to, the Company or any of its affiliates, to terminate its, his or her relationship therewith, or (iii) hire or engage any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee, agent of or consultant to the Company or any of its affiliates.
(c) Executive understands that the provisions of this Section 11 may limit Executive’s ability to earn a livelihood in a business similar to carries on the business of the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary Company, or any business activity substantially similar to protect the goodwill or other business interests of the Company’s business, (ii) such provisions contain reasonable limitations as constituted, from time to time and scope of activity to be restrained, (iii) such provisions are not harmful to time. This Clause 4 shall survive the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions termination of this Agreement shall not for any reason. In the event the Executive breaches this Clause 4, the Executive acknowledges that there will be rendered void but no adequate remedy at law, and the Company shall be deemed amended entitled to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceableinjunctive relief and/or a decree for specific performance, and such restriction cannot other relief as may be amended so as proper (including monetary damages if appropriate). In any event, the Company shall have right to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained hereinseek all remedies permissible under applicable law.
Appears in 1 contract
Non-Competition and Non-Solicitation. (a) The Executive hereby understands, acknowledges and recognizes agrees that, by virtue of his position at the Bank, he has or will have advantageous and competitive familiarity and personal contacts with the customers and clients (wherever located), products, services, strategies and employees of the Company, the Bank and their subsidiaries and affiliates and has and will have advantageous and competitive familiarity with the Confidential Information. As such, and in view of the highly competitive nature of the businesses business in which the Employers are or may be engaged, the Executive agrees that the covenants set forth in Sections 4, 5 and 6 are reasonable and necessary for the protection of the Company Employers business and its subsidiaries and affiliates and accordingly agrees as follows:the Confidential Information.
(ab) During At all times while the Executive’s employment Executive is employed by the Employers, he shall not engage in or compete with, or assist another party in engaging in or competing with (or finance, operate, or control) any banking, financial services or other business, operation, or activity which is conducted or proposed to be conducted by the Company and Company, the Bank or any of their subsidiaries or affiliates (or which is in the same or a similar line of business as, or competes with, the Company, the Bank or any of their subsidiaries or affiliates), nor shall he shall solicit in any manner, seek to obtain, service or accept any business for or on behalf of a party other than the Company, the Bank or their subsidiaries or affiliates relating to the products or services offered or sold by any of them.
(c) For a period of one (1) year from following his last day of employment with the date of termination of Executive’s employment for any reasonEmployers, the Executive shall not, anywhere within a thirty (30) mile radius of any office of the United States either Employers, directly or indirectly, or individually or together with any other Person (as owner, shareholder, investor, member, partner, proprietor, principal, director, officer, employee, manager, agent, employeerepresentative, independent contractor, consultant, partneradvisor or otherwise), officerengage in any banking, directorfinancial services or other business, shareholderoperation or activity which is conducted by the Company, the Bank or any of their subsidiaries or affiliates during such one (1) year period (or which is in the same or a similar line of business as, or competes with, the Company, the Bank or any of their subsidiaries or affiliates) or which was conducted, or proposed to be conducted, or actively being developed or pursued by the Company, the Bank or any their subsidiaries or affiliates at any time during the one (1) year period preceding his last day of employment, nor shall the Executive assist another party in any other individual engaging in or representative capacity, own, manage, competing with (or finance, operateoperate or control) any banking, control or otherwise engage or participate in any manner or fashion in an employment, business financial services or other business, operation, activity competitive or similar line of business which is conducted, or proposed to be conducted, or actively being developed or pursued by the Company, the Bank or any of their subsidiaries or affiliates on the Executive’s last day of employment with the Bank, or which was conducted, or proposed to be conducted, or actively being developed or pursued by the Company. The post-employment restriction contained in this section shall not apply in , the State Bank or any their subsidiaries or affiliates at any time during the one (1) year period preceding his last day of Californiaemployment.
(bd) Executive further agrees that, during the Executive’s employment with the Company and for For a period of one (1) year from following his last day of employment with the date of termination of Executive’s employment for any reasonEmployers, the Executive shall not, directly or indirectly, either or individually or together with any other Person, as a owner, shareholder, investor, member, partner, proprietor, principal, director, officer, employee, manager, agent, employeerepresentative, independent contractor, consultant, partneradvisor or otherwise:
(i) solicit in any manner, officerseek to obtain, directorservice or accept any business of any Person who is a customer or client of the Company, shareholderthe Bank or any of their subsidiaries or affiliates relating to products or services offered, or in actively being developed, by any other individual or representative capacity, of them on the Executive’s behalf last day of employment with the Employers or who was an existing or prospective customer or client of the Company, the Bank or any other persons of their subsidiaries or entity other than affiliates at any time during the Company or its affiliates, one (i1) solicit or induceyear period preceding the Executive’s last day of employment; or
(ii) contact, or attempt to solicit conduct, authorize or induce, directly approve any advertisement or indirectlycommunication to, any customer or prospective customer client of the Company Company, the Bank or any of their subsidiaries or affiliates (A) for purposes of announcing his employment or affiliation with whom another Person, or (B) in connection with directly or indirectly engaging in any banking, financial services or other business or activity in competition with the Executive has had personal contact within business, affairs or interests of (or which is in the twelve same or a similar line of business as) the Company, the Bank or any of their subsidiaries or affiliates; or
(12iii) month period prior to offer or provide employment, hire or engage (whether on a full-time, part-time, or consulting basis or otherwise) any individual who is an employee of the Company, the Bank or any of their subsidiaries or affiliates on the last day of the Executive’s termination dateemployment with the Employers or who was such an employee at any time during the one (1) year period preceding the Executive’s last day of employment, or (ii) solicit or induce, nor shall the Executive request or attempt to solicit or induce, directly or indirectly influence any person who isis employed by the Company, the Bank or during the twelve (12) month period prior to any of their subsidiaries or affiliates on the Executive’s termination date was, an employee or agent of, or consultant tolast day of employment to terminate such employee’s employment with the Company, the Company Bank or any of its their subsidiaries or affiliates; or
(iv) request, to terminate itsencourage or advise any Person who is a customer, his client, vendor or her otherwise doing business or having a relationship therewithwith the Company, the Bank or (iii) hire any of their subsidiaries or engage any person who is, or during the twelve (12) month period prior to affiliates on the Executive’s termination date waslast day of employment to terminate, an employeereduce, agent of limit or consultant to change their business or relationship with the Company Company, the Bank or any of its their subsidiaries or affiliates.
(ce) The Executive understands acknowledges the geographic scope of the business of the Company, the Bank and their subsidiaries or affiliates. Nevertheless, in the event that any provision of Section 5(c) or Section 5(d) is found by a court of competent jurisdiction to exceed the geographic, time or other restrictions permitted by applicable law, then the court shall have the power to reduce, limit or reform (but not to increase or make greater) such provision to make it enforceable to the maximum extent permitted by law, and such provision shall then be enforceable against the Executive in its reduced, limited or reformed manner.
(f) The Employers and the Executive agree that the provisions of this Section 11 may limit Executive’s ability to earn a livelihood 5 shall be severable in a business similar to the business of the Company but Executive nevertheless agrees accordance with Section 8(e) hereof.
(g) The restrictions and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests of the Company, (ii) such provisions contain reasonable limitations as to time and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions covenants contained in this Section 11. In consideration of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions of this Agreement shall not be rendered void but 5 shall be deemed amended not to run during all periods of noncompliance, with the intention of the parties being to have such restrictions and covenants apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained during the full periods specified in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained hereinSection.
Appears in 1 contract
Non-Competition and Non-Solicitation. Executive acknowledges and recognizes the highly competitive nature of the businesses of the Company and its subsidiaries and affiliates and accordingly agrees as follows:
(a) During the Executive’s I agree that I shall not during my employment with the Company and for a period of one six months after the termination or cessation of such employment, but only if such termination or cessation of employment is voluntary (1unless voluntary for “Good Reason”, as defined in Section 5(c) year from the date hereafter) or involuntary for “Cause” (as defined in Section 5(d) hereafter), either directly or indirectly on my own behalf or in association with or on behalf of termination of Executive’s employment for others:
(i) engage in any reason, the Executive shall not, anywhere within the United States either business or enterprise (whether as principal, agent, employee, consultantowner, partner, officer, director, shareholderemployee, consultant, investor, lender or in any other individual or representative capacityotherwise, own, manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an employment, business or other activity except as the holder of not more than 1% of the outstanding stock of a publicly-held company) that is competitive with the Company. The post-employment restriction contained in this section shall ’s business, including but not apply in the State of California.
(b) Executive further agrees thatlimited to any business or enterprise that develops, during the Executive’s employment with the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reasonmanufactures, the Executive shall not, directly or indirectly, either as a principal, agent, employee, consultant, partner, officer, director, shareholdermarkets, or in sells any other individual product or representative capacityrenders any service that competes with any product or service developed, on the Executive’s behalf manufactured, marketed, sold or any other persons or entity other than the Company or its affiliates, (i) solicit or inducerendered, or attempt planned to solicit be developed, manufactured, marketed, sold or induce, directly or indirectly, any customer or prospective customer of the Company with whom the Executive has had personal contact within the twelve (12) month period prior to the Executive’s termination date, or (ii) solicit or induce, or attempt to solicit or induce, directly or indirectly any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee or agent of, or consultant to, rendered by the Company or any of its affiliatessubsidiaries while I was employed by the Company; or
(ii) directly or indirectly, solicit, entice or induce any employee of the Company to terminate itsleave the employ of the Company or solicit, his entice or her relationship therewithinduce for employment (whether as an advisor, consultant, independent contractor or (iiiotherwise) hire or engage any person who iswas an CONFIDENTIAL INFORMATION, INVENTION, NON-SOLICITATION AND NON-COMPETITION AGREEMENT 5 employee of the Company at the time of the termination or during cessation of my employment with the twelve Company.
(12b) month period prior The geographic scope of this Section 5 shall extend worldwide to the Executive’s termination date was, an employee, agent of or consultant to anywhere the Company or any of its affiliatessubsidiaries: (i) is doing business at the time of termination or cessation of employment; (ii) has done business during the six (6) months prior to the time of termination or cessation of employment; or (iii) has plans to do business as published in any Company business plan at the time of termination or cessation of employment.
(c) Executive understands The Non-Competition obligations to which I am bound will continue in full force and effect in the event that the provisions of this Section 11 may limit Executive’s ability I choose to earn a livelihood in a business similar to the business of the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests of voluntarily terminate my employment with the Company, (ii) unless such provisions contain reasonable limitations as to voluntary termination is for Good Reason, in which such case the Non-Competition obligations shall cease at the time and scope of activity to be restrainedtermination of employment. For this purpose only, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive “Good Reason” shall not assert mean that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is without an unenforceable restriction against the Executiveemployee’s written consent, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent occurrence after an Acquisition Event (as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained is defined in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability Company’s 2000 Stock Incentive Plan) of any of the other restrictions contained herein.following circumstances unless, in the case of paragraphs (ii) or (iii), such circumstances are fully corrected prior to the date of termination specified in any notification of termination given in respect thereof:
Appears in 1 contract
Non-Competition and Non-Solicitation. Executive acknowledges and recognizes the highly competitive nature of the businesses of the Company and its subsidiaries and affiliates and accordingly agrees as follows:
(a) 8.1 During the Executive’s employment with the Company and for a period of one Restricted Period (1) year from the date of termination of Executive’s employment for any reasonas defined below), the Executive shall not, anywhere within in the United States either geographical area in which the Company or any of its affiliates does business or has done business at the time of his employment termination, engage in any business or enterprise that would be competitive with any business of Hasbro in existence as principalof the Date of Termination (a “Competitive Business”). This obligation shall preclude any involvement in a Competitive Business, agentwhether on a direct or indirect basis, employee, consultantand whether as an owner, partner, officer, director, shareholderemployee, consultant, investor, lender or in any other individual or representative capacityotherwise, own, manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an employment, business or other activity competitive with except as the Company. The post-employment restriction contained in this section shall passive holder of not apply in more than 1% of the State outstanding stock of Californiaa publicly held company.
(b) Executive further agrees that, during 8.2 During the Executive’s employment with the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reasonRestricted Period, the Executive shall not, either alone or in association with others, (a) solicit, recruit, induce, attempt to induce or permit any organization directly or indirectlyindirectly controlled by the Executive to solicit, either as a principalrecruit, agent, employee, consultant, partner, officer, director, shareholder, induce or in attempt to induce any other individual or representative capacity, on the Executive’s behalf or any other persons or entity other than employee of the Company or any of its affiliates, (i) solicit or induce, or attempt affiliates to solicit or induce, directly or indirectly, any customer or prospective customer leave the employ of the Company with whom the Executive has had personal contact within the twelve (12) month period prior to the Executive’s termination date, or (ii) solicit or induce, or attempt to solicit or induce, directly or indirectly any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee or agent of, or consultant to, the Company or any of its affiliates, to terminate its, his or her relationship therewith, or (iiib) solicit, recruit, induce, attempt to induce for employment or hire or engage as an independent contractor, or permit any organization directly or indirectly controlled by the Executive to solicit, recruit, induce, attempt to induce for employment or hire or engage as an independent contractor, any person who is, is employed by the Company or any of its affiliates or who was employed by the Company or any of its affiliates at any time during the twelve (12) month period prior to term of the Executive’s termination date wasemployment with the Company, an employeeprovided that this clause (b) shall not apply to any individual whose employment with the Company or any of its affiliates has been terminated for a period of six (6) months or longer.
8.3 During the Restricted Period, agent the Executive shall not, either alone or in association with others, solicit, divert or take away, or attempt to solicit, divert or take away, or permit any organization directly or indirectly controlled by the Executive to solicit, divert or take away, or attempt to solicit, divert or take away, the business or patronage of any of the clients, customers or consultant to accounts, or prospective clients, customers or accounts of the Company or any of its affiliates, which were contacted, solicited or served by the Company or any of its affiliates at any time during the Executive’s employment with the Company.
8.4 The Restricted Period shall mean the one year period after the Executive’s employment with the Company (cincluding any of its affiliates) ends for any reason; provided, however, that if the Executive understands that is eligible (or would have been eligible had he timely entered into the provisions Executive Release) to receive severance pay pursuant to Section 5.1(a) or Section 5.2(a), the Restricted Period shall run for a two-year post-employment period in the event of eligibility pursuant to Section 5.1(a), and for an eighteen-month post-employment period in the event of eligibility pursuant to Section 5.2(a).
8.5 The geographic scope of this Section 11 8 shall extend to anywhere the Company or any of its subsidiaries or affiliates is doing business at the time of termination or expiration of this Agreement. If any restriction set forth in this Section 8 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may limit Executive’s ability to earn a livelihood in a business similar to the business be enforceable. Each of the Company but parties intends that this non-competition provision shall be deemed to be a series of separate covenants, one for each country and one for each and every county or other political subdivision of each and every state or other political subdivision of each country where this provision is intended to be effective.
8.6 The Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests of the Company, (ii) such provisions contain reasonable limitations as to time and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration 8 are necessary for the protection of the foregoing business and in light goodwill of Executive’s education, skills the Company and abilities, are considered by the Executive to be reasonable for such purpose. The Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions breach of this Section 11 otherwise are void8 will cause the Company substantial and irrevocable damage, voidable and therefore, in the event of any such breach, in addition to such other remedies which may be available, the Company shall have the right to obtain and receive specific performance and injunctive relief without posting a bond or unenforceable or should be voided or held unenforceableother security.
(d) 8.7 If a judicial determination it is made determined by a court of competent jurisdiction law that the time or territory or Executive violated any other restriction contained in this Agreement is an unenforceable restriction against the Executive, of the provisions of this Agreement Section 8.1, 8.2, or 8.3, he shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate continue to be enforceablebound by the restrictions set forth therein until a period equal to the Restricted Period has expired without any violation of such provisions. Alternatively, if any court or arbitrator of competent jurisdiction finds The Executive further agrees that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of event he violates any of the provisions of Section 8.1, 8.2, or 8.3 (and such violation is not cured (if capable of being cured) within thirty (30) days after the Executive receives written notice from the Company setting forth in reasonable detail the manner in which the Company believes the Executive has violated any such provision), then the Company shall have no obligation to pay or provide any of the benefits described in Section 5.1, 5.2, or 5.3, as applicable (and, to the extent the Company previously paid or provided any such benefits, the Executive shall be required to immediately repay to the Company the value of any such pay and benefits). In addition, in the event of any violation that is not cured as provided in the preceding sentence, the Executive agrees to forfeit and pay to Hasbro the total Net Proceeds obtained with respect to any unvested stock options, restricted stock units, performance share awards, contingent stock performance awards or other restrictions contained hereinequity accelerated or provided pursuant to Section 5.1 or 5.2, as applicable. For purposes of this Agreement, “Net Proceeds” shall be computed for each stock option grant accelerated pursuant to Section 5.1 or 5.2, as applicable, by multiplying the number of accelerated options times the difference between the closing price of Hasbro’s common stock on the last day of Executive’s employment and the exercise price for the grant being accelerated. “Net Proceeds” for each share of restricted stock unit accelerated pursuant to Section 5.1 or 5.2, as applicable, shall be computed by multiplying the number of shares or units accelerated by the closing price of Hasbro’s common stock on the last day of Executive’s employment. “Net Proceeds” for each share of stock or performance share award provided pursuant to an unvested contingent stock performance or performance share award shall be computed by multiplying the number of shares or units provided pursuant to the Award by the closing price of Hasbro’s common stock on the day such shares are provided to Executive. Net Proceeds will be computed without regard to any subsequent increase or decrease, if any, in the market price or actual proceeds from any sale of Hasbro’s common stock. The foregoing amounts will be owed regardless of whether or not the accelerated options have been actually exercised or the underlying shares of common stock have been actually sold.
Appears in 1 contract
Sources: Employment Agreement (Hasbro Inc)
Non-Competition and Non-Solicitation. Executive acknowledges and recognizes the highly competitive nature of the businesses of the Company and its subsidiaries and affiliates and accordingly agrees as follows:
(a) During the Executive’s employment with In order to induce the Company to enter into this Agreement with GSA, during the Term, and for a period of one (1) year from 12 months after the date of termination of Executive’s employment the Term for any reason, reason (other than termination without Cause by the Executive shall not, anywhere within Company or with Good Reason by the United States either as principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, own, manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an employment, business or other activity competitive with the Company. The post-employment restriction contained in this section shall not apply in the State Employee) of California.
(b) Executive further agrees that, during the Executive’s employment GSA's engagement with the Company hereunder, Employee agrees and for a period of one (1) year from the date of termination of Executive’s employment for any reason, the Executive covenants that he shall not, directly or indirectly, either own, manage, operate, join, control, participate in, invest in, advise, assist, act as a principalconsultant for or otherwise be connected with, agentin any manner, employee, consultant, partner, whether as an officer, director, shareholder, employee, partner, venturer, investor or otherwise, any competitor, which shall mean any person or business entity engaged in or about to become engaged in the production, licensing, sale or marketing of any other individual product or representative capacityservice or planned business involving endogenous laser treatment, on the Executive’s behalf photodynamic therapy or any other persons product or entity other than service of or under development by the Company at the time of termination of the Employee's employment. The foregoing shall not be denied to prohibit Employee from investing Employee's personal funds in securities of an issuer that is a competitor of the Company if the securities of such issuer arc listed for trading on a national securities exchange or its affiliatesare traded in the over-the-counter market and Employee's holdings therein represent less than 5% of the total number of outstanding shares or principal amount of the securities of such issuer.
(b) In order to induce the Company to enter into this Agreement with GSA, during the Term, and for a period of 12 months after the termination of the Term for any reason of GSA's engagement with the Company hereunder, Employee agrees and covenants that he will not directly or indirectly, either (or himself or on behalf of any other person or enterprise, without the express written consent of the Company, (ia) solicit or induce, or attempt to solicit or induce, directly entice away or indirectly, interfere with the Company's contractual relationships any customer or prospective customer of the Company with whom Company's customers, business partners, suppliers or shareholders in existence at the Executive has had personal contact within the twelve (12) month period prior to the Executive’s time of termination dateof such employment, or (iib) recruit, solicit or inducehire, seek or attempt to recruit, solicit or inducehire or assist in recruiting, directly soliciting or indirectly hiring any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee or agent ofof the Company, or consultant toexcept in connection with the performance of his duties hereunder, take action that results in the termination of employment or other arrangements between the Company or and any of its affiliates, to terminate its, his employees or her relationship therewith, agents or (iii) hire otherwise interferes with such employment or engage any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee, agent of or consultant to the Company or any of its affiliatesarrangements.
(c) Executive understands GSA and Employee acknowledge and agree that the provisions of Section 4 and this Section 11 may limit Executive’s ability to earn a livelihood in a business similar to 5 are reasonable and necessary for the business protection of the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other its intellectual property and business interests of the Company, (ii) such provisions contain reasonable limitations as to time and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained hereininterests.
Appears in 1 contract
Non-Competition and Non-Solicitation. Executive acknowledges Each Selling Party agrees that during the period commencing on the date hereof and recognizes continuing through the highly date that is five (5) years after the Closing Date (or such later date as may be provided in any Transaction Document) (the “Restricted Period”), neither they nor any of their Restricted Parties (as defined below), shall, directly or indirectly (A) engage (including as a director, officer, employee, investor, lender, consultant or in any other capacity with respect to a Person that engages in whole or in part) in the registration, development, importation, manufacture, marketing, sale or distribution of any products that are, or would be if so registered, developed, imported, manufactured, marketed, sold or distributed, competitive nature with, or a substitute for, any of the businesses of the Company and its subsidiaries and affiliates and accordingly agrees as follows:
(a) During the Executive’s employment with the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reason, the Executive shall notCompetitive Products, anywhere within in the United States either world (regardless of whether registered or approved in such jurisdiction) (the “Competitive Business”), (B) acquire or hold any economic or financial interest in, act as principala partner, agentmember, shareholder, employee, consultant, partneragent or representative of, render any services to, or otherwise operate or hold an interest in any Person having any location, operation or presence in any country or location in which the Business, Purchaser or any of Purchaser’s Affiliates has or will operate or have a presence at any time prior to or during the Restricted Period, in each case which entity, enterprise or other Person engages in, or engages in the management or operation of any Person that engages in, any business that competes with the Competitive Business, (C) hire, including as a director, officer, directoremployee, shareholderinvestor, lender, consultant or in any other individual or representative capacity, own, manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an employment, business or then-current employee of Company as of the Closing Date other activity competitive with the Company. The post-employment restriction contained in this section shall not apply in the State of California.
(b) Executive further agrees that, during the Executive’s than such employees whose employment with Purchaser has been terminated by Purchaser for reasons other than the conduct of the employee consisting of improper performance or nonperformance of the employee’s duties and responsibilities, engaging in willful misconduct including fraud or misrepresentation, conviction of a felony or misdemeanor (other than traffic violations), repetitive drunkenness or drug abuse, or violation of Company and for a period policies or the code of one conduct, (1D) year from the date of termination of Executive’s employment for induce or attempt to induce, any reasondirector, the Executive shall not, directly or indirectly, either as a principal, agentofficer, employee, consultantrepresentative or agent of Purchaser or any of its Affiliates engaged in the manufacture, partnerstorage, officer, director, shareholderdistribution or sale of the Products to leave the employ of Purchaser or any such Affiliate, or in any other individual or representative capacityviolate the terms of their contracts, on the Executive’s behalf or any other persons employment arrangements, with Purchaser or entity other than the Company any such Affiliate, or its affiliates, (iE) solicit or induce, divert or attempt to solicit or inducedivert any current or former customer, directly supplier or indirectly, any customer or prospective customer employee of the Company with whom Business, anywhere in the Executive has had personal contact within the twelve (12) month period prior world; provided, however, that it shall not be deemed to the Executive’s termination date, or (ii) solicit or induce, or attempt to solicit or induce, directly or indirectly any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee or agent of, or consultant to, the Company or any of its affiliates, to terminate its, his or her relationship therewith, or (iii) hire or engage any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee, agent of or consultant to the Company or any of its affiliates.
(c) Executive understands that the provisions be a violation of this Section 11 may limit Executive’s ability 5.10(a) for such Person or a Restricted Party of such Person to earn a livelihood invest in a business similar to the business securities having less than five percent (5%) of the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests outstanding voting power of the Company, (ii) such provisions contain reasonable limitations as to time and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the ExecutivePerson, the provisions securities of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine which are publicly traded or indicate to be enforceablelisted on any securities exchange or automated quotation system. AlternativelyAs used herein, if any court “Restricted Party” or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein“Restricted Parties” means Selling Parties or their Affiliates.
Appears in 1 contract
Sources: Asset Purchase Agreement (Phibro Animal Health Corp)
Non-Competition and Non-Solicitation. Executive (a) The Employee acknowledges that: (i) the services to be performed by him under this Agreement are of a special, unique, unusual, extraordinary, and recognizes intellectual character; (ii) the highly competitive nature Company's business is international in scope and its products are marketed throughout the United States and the world; (iii) the Company competes with other businesses both nationally within the United States and internationally; and (iv) the provisions of this Section 9 are reasonable and necessary to protect the Company's business.
(b) In consideration of the businesses acknowledgments by the Employee, and in consideration of the Company compensation and its subsidiaries and affiliates and accordingly benefits to be paid or provided to the Employee by the Company, the Employee agrees as followsthat he will not, directly or indirectly:
(ai) During during the Executive’s Employment Period, except in the course of his employment hereunder, and during the Post-Employment Period, engage or invest in, own, manage, operate, finance, control, or participate in the ownership, management, operation, financing, or control of, be employed by, associated with, or in any manner connected with, lend the Employee's name or any similar name to, lend the Employee's credit to or render services or advice to, any business whose products, services or activities compete in whole or in part with the Company and for a period products, services or activities of one (1) year from the date of termination of Executive’s employment for any reasonCompany, the Executive shall notHome Interiors or its Affiliates, anywhere within the United States either where the Company, Home Interiors or its Affiliates conduct or market their business or services;
(ii) whether for the Employee's own account or for the account of any other person, at any time during the Employment Period and the Post-Employment Period, solicit business of the same or similar type being carried on by the Company, Home Interiors or its Affiliates, from any customer of the Company, Home Interiors or its Affiliates, whether or not the Employee had personal contact with such person during and by reason of the Employee's employment with the Company;
(iii) whether for the Employees own account or the account of any other person at anytime during the Employment Period and the Post-Employment Period, solicit, employ, or otherwise engage as principal, agent, an employee, consultantindependent contractor, partneror otherwise, officerany person who is or was at the time of such solicitation, directoremployment EXHIBIT "C" TO ASSET PURCHASE AGREEMENT -- PAGE 6 or engagement an employee, shareholder, consultant or independent contractor of the Company or Home Interiors or in any other individual manner induce or representative capacityattempt to induce any employee of the Company, own, manage, finance, operate, control Home Interiors or otherwise engage or participate in any manner or fashion in an employment, business or other activity competitive its Affiliates to terminate his/her employment with the Company. The post-employment restriction contained in this section shall not apply in the State of California., Home Interiors or its Affiliates;
(biv) Executive further agrees that, whether for the Employee's own account or the account of any other person at any time during the Executive’s employment Employment Period and the Post- Employment Period, interfere with the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reasonCompany's, the Executive shall not, directly or indirectly, either as a principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, on the Executive’s behalf or any other persons or entity other than the Company Home Interiors' or its affiliatesAffiliates' relationship with any person, (i) solicit or induce, or attempt to solicit or induce, directly or indirectly, any customer or prospective customer of the Company with whom the Executive has had personal contact within the twelve (12) month period prior to the Executive’s termination date, or (ii) solicit or induce, or attempt to solicit or induce, directly or indirectly including any person who is, is or was at any time during the twelve (12) month period prior to the Executive’s termination date was, an employee or agent of, or consultant to, the Company or any of its affiliates, to terminate its, his or her relationship therewith, or (iii) hire or engage any person who is, or during the twelve (12) month period prior to the Executive’s termination date wasEmployment Period, an employee, agent contractor, supplier, or customer of the Company, Home Interiors or consultant to its Affiliates; or
(v) at any time during or after the Employment Period, including the Post- Employment Period, disparage the Company, Home Interiors or its Affiliates or any of their shareholders, partners, members, other holders of equity in the Company or Home Interiors, directors, officers, employees, or agents or any Affiliate of its affiliatesthe foregoing.
(c) Executive understands that the provisions of this Section 11 may limit Executive’s ability to earn a livelihood in a business similar to the business of the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests of the Company, (ii) such provisions contain reasonable limitations as to time and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained If any covenant in this Section 11. In consideration of the foregoing and in light of Executive’s education9 is held to be unreasonable, skills and abilitiesarbitrary, Executive agrees that Executive shall not assert thator against public policy, such covenant will be considered to be divisible with respect to scope, time, and it should not be considered thatgeographic area, any provisions and such lesser scope, time, or geographic area, or all of this Section 11 otherwise are voidthem, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by as a court of competent jurisdiction may determine to be reasonable, not arbitrary, and not against public policy, will be effective, binding, and enforceable against the Employee.
(d) The period of time applicable to any covenant in this Section 9 will be extended by the duration of any violation by the Employee of such covenant.
(e) The Employee will, while the covenant under this Section 9 is in effect, give written notice to the Company, within ten (10) days after accepting any other employment or consulting arrangement, of the identity of the Employee's new employer or contractor and all of the material duties and services to be provided by Employee in such employment or retention, which shall not require disclosure by Employee of any terms of compensation. The Company may notify such new employer that the time or territory or any other restriction contained in Employee is bound by this Agreement is an unenforceable restriction against and, at the ExecutiveCompany's election, the provisions furnish such new employer with a copy of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court relevant portion thereof.
(f) The term "Post-Employment Period" means the six (6) month period beginning on the date of termination or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any expiration of the other restrictions contained hereinEmployee's employment with the Company.
Appears in 1 contract
Sources: Asset Purchase Agreement (Home Interiors & Gifts Inc)
Non-Competition and Non-Solicitation. Executive acknowledges As consideration for and recognizes to induce the highly competitive nature engagement of the businesses of Consultant by the Company Company, the Consultant hereby covenants and its subsidiaries and affiliates and accordingly agrees as followsthat he will not:
(a) During during the Executive’s employment with the Company term of this Agreement and for a period of one (1) year from the date of termination of Executive’s employment for any reasonthe Consulting Period is terminated, the Executive shall notalone or as a partner, anywhere within the United States either as principaljoint venturer, agentofficer, director, employee, consultant, partneragent, officerindependent contractor or stockholder of any company or business, director, shareholder, or engage in any other individual or representative capacity, own, manage, finance, operate, control or otherwise engage or participate business activity which is in any manner or fashion in an employment, business or other activity competitive competition with the business conducted by the Company or any of its subsidiaries or affiliates, including without limitation those related to the business of the Company. The post, provided, however, that the beneficial ownership of less than five percent (5%) of the shares of stock of any corporation having a class of equity securities actively traded on a national securities exchange or over-employment restriction contained in this section the-counter market shall not apply be deemed, in and of itself, to violate the State prohibitions of California.this Section;
(b) Executive further agrees that, during the Executive’s employment with the Company term of this Agreement and for a period of one (1) year from the date of termination of Executive’s employment for any reason, the Executive shall not, directly or indirectly, either as a principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, on the Executive’s behalf or any other persons or entity other than the Company or its affiliates, Consulting Period is terminated: (i) solicit induce any person or induce, or attempt to solicit or induce, directly or indirectly, any customer or prospective entity which is a customer of the Company with whom the Executive has had personal contact within the twelve (12) month period prior to the Executive’s termination date, or (ii) solicit or induce, or attempt to solicit or induce, directly or indirectly any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee or agent of, or consultant to, the Company or any of its affiliates, subsidiaries or affiliates to terminate its, his patronize any business directly or her relationship therewith, or (iii) hire or engage any person who is, or during indirectly in competition with the twelve (12) month period prior to the Executive’s termination date was, an employee, agent of or consultant to business conducted by the Company or any of its subsidiaries, affiliates., and/or distributors; (ii) canvass, solicit or accept from any person or entity which is a customer of the Company or any of its subsidiaries or affiliates any such competitive business; or (iii) request or advise any person or entity which has a business relationship with the Company or any of its subsidiaries or affiliates to withdraw, curtail or cancel any business with such entity; or
(c) Executive understands that during the provisions of this Section 11 may limit Executive’s ability to earn a livelihood in a business similar to the business of the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests of the Company, (ii) such provisions contain reasonable limitations as to time and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions term of this Agreement shall not be rendered void but shall be deemed amended and for a period of one (1) year from the date the Consulting Period is terminated, employ or knowingly permit any company or business directly or indirectly controlled by it to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine employ, any person who was employed by the Company or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of its subsidiaries, affiliates at or within the other restrictions contained hereinprior six (6) months, or in any manner seek to induce any such person to leave his or her employment.
Appears in 1 contract
Non-Competition and Non-Solicitation. Executive acknowledges and recognizes the highly competitive nature of the businesses of As an inducement for the Company to enter into this Agreement (which consideration Executive acknowledges), Executive agrees that beginning on the Effective Date and its subsidiaries and affiliates and accordingly agrees as followsending twelve (12) months following the Retirement Date, Executive will not:
(a) During the Executive’s employment with the Company and for a period of one (1) year from the date of termination of Executive’s employment for directly or indirectly, have any reason, the Executive shall not, anywhere within the United States either as principal, agent, employee, consultant, partner, officer, director, shareholderownership interest in, or in any other individual a competitive capacity, directly or representative capacityindirectly, engage or invest in, own, manage, operate, finance, operatecontrol, control or otherwise engage or participate in the ownership, management, operation, financing, or control of, be employed by, work for, advise, be associated with, or in any manner connected with, lend Executive’s name or fashion in an employmentany similar name to, business lend Executive’s credit to, or other activity competitive with render services or advice to, except while employed by the Company to and for the benefit of the Company. The post-employment restriction contained in this section shall not apply in the State of California.
(b) Executive further agrees , any business that, during the Executive’s employment with the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reason, the Executive shall not, directly or indirectly, provides or offers to provide business, goods or services of the type being provided, conducted, marketed or rendered by the Company in its business including, without limitation, the business of athletic specialty and/or sporting goods retail industry (the “Business”) in the United States of America (the “Geographic Area”); provided, however, that Executive may purchase or otherwise acquire up to (but not more than) five percent (5%) of any class of securities of any enterprise (but without otherwise participating in the activities of such enterprise) if such securities are listed on any national or regional securities exchange or have been registered under Section 12(g) of the Securities Exchange Act of 1934 and only if Executive is a passive investor; and/or
(b) directly or indirectly, either as a principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, on the Executive’s behalf for Executive or any other persons person or entity other than the Company or its affiliatesentity, (i) solicit or induce, induce or attempt to solicit or induce, directly or indirectly, induce any customer or prospective customer employee of the Company with whom to leave the Executive has had personal contact within employ of the twelve (12) month period prior to the Executive’s termination dateCompany or hire any such employee, or (ii) solicit or induce, or attempt to solicit or induce, directly or indirectly in any person who is, or during way interfere with the twelve (12) month period prior to the Executive’s termination date was, an employee or agent of, or consultant to, relationship between the Company or and any employee of its affiliates, to terminate its, his or her relationship therewiththe Company, or (iii) hire or engage any person who isemploy, or during the twelve (12) month period prior to the Executive’s termination date was, otherwise engage as an employee, agent independent contractor, or otherwise, any employee of or consultant to the Company or any of its affiliatesCompany; and/or.
(c) directly or indirectly, either for Executive understands that or any other person or entity, induce or attempt to induce any current or prospective customer, dealer, supplier, licensee, vendor or business relation of the provisions Company to not do business with the Company or, in a competitive capacity, to do business with the any other person or entity, or in any way interfere with the relationship between any current or prospective customer, dealer, supplier, licensee, vendor or business relation of this Section 11 may limit the Company. It is very important for the Company to protect its legitimate business interests by restricting Executive’s ability to earn a livelihood in a business similar to the business of compete with the Company but Executive nevertheless agrees in the manner and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect in the goodwill or other business interests of the Company, (ii) such provisions contain reasonable limitations as to time and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained area described in this Section 11. In consideration The parties expressly agree that the terms of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of this limited non-competition provision under this Section 11 otherwise are voidreasonable, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination enforceable, and necessary to protect the Company’s interests, and are valid and enforceable. Therefore, this Section 11 is made by drafted so narrowly as to safeguard the Company’s legitimate business interests while not unreasonably interfering with Executive’s ability to obtain other employment. The Company does not intend, and Executive acknowledges, that the covenants contained in this Section 11 are not an attempt to, prevent Executive from obtaining other employment in violation of Indiana Code § 22-5-3-1. In the unlikely event, however, that a court of competent jurisdiction was to determine that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions portion of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement limited provision is unenforceable, then the parties agree that the remainder of the limited provision shall remain valid and such restriction cannot be amended so as enforceable to make it enforceable, such finding shall not affect the enforceability maximum extent possible. In the event of a breach by Executive of any covenant set forth this Section, the term of such covenant will be extended by the period of the other restrictions contained hereinduration of such breach.
Appears in 1 contract
Non-Competition and Non-Solicitation. Executive acknowledges and recognizes Wang hereby agrees that for a period from the highly competitive nature Closing Date until the fifth (5th) anniversary of the businesses Closing Date, he shall not, without the prior written consent of the Company and its subsidiaries and affiliates and accordingly agrees as follows:
Buyer, (a) During the Executive’s employment with the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reason, the Executive shall not, engage anywhere within in the United States either States, directly or indirectly, alone or as principala shareholder (other than as a holder of less than 5% of the capital stock of any publicly-traded corporation), agent, employee, consultantmember, partner, manager, officer, director, shareholderemployee or consultant, or in any other individual business that is engaged or representative capacity, own, manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an employment, business or other activity competitive with the Company. The post-employment restriction contained in this section shall not apply becomes engaged in the State business of California.
the Company as existing on the Closing Date, (b) Executive further agrees that, during the Executive’s employment with the Company and for a period divert or attempt to divert to any competitor of one (1) year from the date of termination of Executive’s employment for any reason, the Executive shall not, directly or indirectly, either as a principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, on the Executive’s behalf or any other persons or entity other than the Company or its affiliatesany Affiliate of any such competitor, any customer or client of the Company who was such as of the Closing Date, or (ic) solicit or induceencourage, or attempt to solicit or induce, directly or indirectlyencourage, any customer or prospective customer employee of the Company who was such as of the Closing Date to leave such employee's employ with whom the Executive has had personal contact within the twelve (12) month period prior to the Executive’s termination dateCompany for employment by or with either Wang or his Affiliates, or (ii) solicit or induce, or attempt to solicit or induce, directly or indirectly any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee or agent of, or consultant to, competitor of the Company or any of its affiliates, to terminate its, his or her relationship therewith, or (iii) hire or engage any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee, agent of or consultant to the Company or such competitor's Affiliates. If at any of its affiliates.
(c) Executive understands that time the provisions of this Section 11 may limit Executive’s ability 10.2 shall be determined to earn a livelihood in a business similar to the business be invalid or unenforceable, by reason of the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill being vague or other business interests of the Company, (ii) such provisions contain reasonable limitations unreasonable as to time area, duration or scope of activity, this Section 10.2 shall be considered divisible and shall become and be immediately amended to only such area, duration and scope of activity as shall be determined to be restrained, (iii) such provisions are not harmful to reasonable and enforceable by the general public, (iv) such provisions are not unduly burdensome to Executive, court or other body having jurisdiction over the matter; and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in Wang agrees that this Section 11. In consideration of the foregoing 10.2 as so amended shall be valid and in light of Executive’s education, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, binding as though any provisions of this Section 11 otherwise are void, voidable invalid or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions of this Agreement shall had not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained hereinbeen included therein.
Appears in 1 contract
Non-Competition and Non-Solicitation. Executive (a) The Employee agrees and acknowledges that, in connection with his employment with the Company, he has been and will continue to be provided with access to and become familiar with confidential and proprietary information and trade secrets belonging to the Company and its Affiliates. The Employee further acknowledges and recognizes agrees that, given the highly competitive nature of this information and trade secrets, it is likely that such information and trade secrets would inevitably be used or revealed, either directly or indirectly, in any subsequent employment with a Competitive Business in any position comparable to the businesses position he will hold with the Company under this Agreement. Accordingly, in consideration of his employment with the Company pursuant to this Agreement, and other good and valuable consideration, the receipt of which is hereby acknowledged, the Employee agrees that, while he is in the employ of the Company and for one (1) year, Employee will not, without the prior written consent of Company, for his own account or jointly with another, for or on behalf of any person, as principal, agent, shareholder, participant, partner, promoter, director, officer, manager, Employee, consultant, sales representative or otherwise:
(i) provide services the same as or substantially similar to those Employee provided while employed by Company to any business engaged, or which he reasonably knows is undertaking to become engaged, in a business that is in competition with the Business of the Company or its Affiliates (a “Competitive Business”) in any state in the United States where the Company or its Affiliates are carrying on the Competitive Business at the date of termination of employment; provided that Employee may purchase or otherwise acquire up to (but not in excess of) 2% of any class of securities of any Person, including a Competitive Business (but without otherwise participating in the activities of such Person), if such securities are listed on any national or regional securities exchange;
(ii) directly or indirectly solicit, or assist in the solicitation of, any Person to whom the Company or any Affiliate sold or licensed or provided any products or services on, or during the two (2) year period prior to, the date of termination of employment, for the purpose of obtaining the patronage of such Person for the purchase of any competitive products or services, unless such Person had already terminated its business relationship with the Company or applicable Affiliate of the Company;
(iii) directly or indirectly solicit, interfere with, disturb, or attempt to solicit, interfere with or disturb, directly or indirectly, the relationship (contractual or otherwise) with any Person who is, as of the date of termination of employment, or was within two (2) years prior to the date of termination of employment, a supplier of the Company or any Affiliate, including any actively sought prospective supplier of the Company or any Affiliate, for the purpose of inducing such supplier to cease doing business with the Company or any Affiliate, unless such supplier had already terminated its business relationship with the Company or applicable Affiliate of the Company; or
(iv) directly or indirectly recruit solicit, encourage or assist in the solicitation of, for the purpose of offering employment to or hiring, any Person employed by the Company or any Affiliate (as an Employee, independent contractor or otherwise) unless, prior to any such solicitation, such person is no longer employed or engaged by the Company or any Affiliate.
(b) The parties agree that the relevant public policy aspects of covenants not to compete and not to solicit have been discussed, and that every effort has been made to limit the restrictions placed upon the Employee to those that are reasonable and necessary to protect the Company’s and its Affiliates’ legitimate interests. The Employee acknowledges that, based upon his education, experience, and training, these non-compete and non-solicit provisions will not prevent him from earning a livelihood and supporting himself and his family during the relevant time period. The Employee further acknowledges that a narrower geographic limitation on the restrictive covenants than that set forth above would not adequately protect the Company’s legitimate business interests.
(c) The Employee shall, on the Commencement Date, enter into a Key Employee Agreement Regarding Trade Secrets, Confidential Information, Inventions, Non-Betting And Non-Solicitation substantially in the form as Exhibit B attached hereto and the Employee agrees that the entering into such agreement is necessary to protect the interests of the Company, its Subsidiaries or Affiliates and is reasonable and valid in geographical and temporal scope and in all other respects.
(d) If any provision of this Section 3.1, or the application of such provision to any Person or circumstance is held invalid, illegal or unenforceable in any respect by a court or other tribunal of competent jurisdiction, such provision will, without any actions on the part of the parties to this Agreement, be modified to the least extent necessary to cause such provision to conform to the law as may be determined by such court or other tribunal, and such invalidity, illegality or unenforceability will not affect any other provision of this Agreement.
(e) The restrictions contained in Section 3.1 are necessary for the protection of the business, goodwill and Confidential Information of the Company and its subsidiaries Affiliates and affiliates and accordingly are considered by the Employee to be reasonable for such purposes. The Employee agrees as follows:
(a) During the Executive’s employment with that any material breach of Section 3.1 could cause the Company and for a period its Affiliates substantial and irrevocable damage and therefore, in the event of one (1) year from the date of termination of Executive’s employment for any reasonsuch breach, in addition to such other remedies which may be available, the Executive Company shall nothave the right to seek specific performance and injunctive relief, anywhere within cease any severance payments being made to the United States either as principalEmployee, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, own, manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an employment, business or other activity competitive with the Company. The post-employment restriction contained in this section shall not apply in the State of Californiaand/or recover severance payments already made.
(bf) Executive further agrees thatThe existence of a claim, during charge, or cause of action by the Executive’s employment with Employee against the Company and for shall not constitute a period of one (1) year from defense to the date of termination of Executive’s employment for any reason, the Executive shall not, directly or indirectly, either as a principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, on the Executive’s behalf or any other persons or entity other than enforcement by the Company or its affiliates, (i) solicit or induce, or attempt to solicit or induce, directly or indirectly, any customer or prospective customer of the Company with whom the Executive has had personal contact within the twelve (12) month period prior to the Executive’s termination date, or (ii) solicit or induce, or attempt to solicit or induce, directly or indirectly any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee or agent of, or consultant to, the Company or any of its affiliates, to terminate its, his or her relationship therewith, or (iii) hire or engage any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee, agent of or consultant to the Company or any of its affiliatesforegoing restrictive covenants.
(cg) Executive understands that the The provisions of this Section 11 may limit Executive’s ability to earn a livelihood in a business similar to the business of the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests of the Company, (ii) such provisions contain reasonable limitations as to time and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive 3.1 shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions survive termination of this Agreement shall not be rendered void but shall be deemed amended to and apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any regardless of the other restrictions contained hereinreason for the termination of the Employee’s employment.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Elys Game Technology, Corp.)
Non-Competition and Non-Solicitation. Executive acknowledges and recognizes the highly competitive nature of the businesses of the Company and its subsidiaries Affiliates, the valuable confidential business information in Executive's possession and affiliates the customer goodwill associated with the ongoing business practice of the Company, and accordingly agrees as follows:
(ai) During the Executive’s employment with the Company and for For a period ending on the expiration of one (1) year from following the date of termination of Executive’s 's employment (the "Restricted Period"), Executive will not directly or indirectly, (A) engage in any business for Executive's own account that competes with the business of the Company, (B) enter the employ of, or render any reasonservices to, any person engaged in any business that competes with the Executive shall notbusiness of the Company, anywhere within (C) acquire a financial interest in, or otherwise become actively involved with, any person engaged in any business that competes with the United States either business of the Company, directly or indirectly, as principal, agent, employee, consultantan individual, partner, shareholder, officer, director, shareholder, or in any other individual or representative capacity, own, manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an employment, business or other activity competitive with the Company. The post-employment restriction contained in this section shall not apply in the State of California.
(b) Executive further agrees that, during the Executive’s employment with the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reason, the Executive shall not, directly or indirectly, either as a principal, agent, employee, trustee or consultant, partner, officer, director, shareholder, or in any other individual or representative capacity, on the Executive’s behalf or any other persons or entity other than the Company or its affiliates, (i) solicit or induce, or attempt to solicit or induce, directly or indirectly, any customer or prospective customer of the Company with whom the Executive has had personal contact within the twelve (12) month period prior to the Executive’s termination date, or (iiD) solicit interfere with business relationships (whether formed before or induce, or attempt to solicit or induce, directly or indirectly any person who is, or during after the twelve (12date of this Agreement) month period prior to the Executive’s termination date was, an employee or agent of, or consultant to, between the Company or any of its affiliates, to terminate its, his or her relationship therewith, or (iii) hire or engage any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee, agent of or consultant to the Company or any of its affiliates.
(c) Executive understands Affiliates that the provisions of this Section 11 may limit Executive’s ability to earn a livelihood are engaged in a business similar to the business of the Company but (the "Company Affiliates") and customers or suppliers of the Company or the Company Affiliates.
(ii) Notwithstanding anything to the contrary in this Agreement, Executive nevertheless agrees may directly or indirectly own, solely as a passive investment, securities of any person engaged in the business of the Company which are publicly traded on a national or regional stock exchange or on the over-the-counter market if Executive (A) is not a controlling person of, or a member of a group which controls, such person and hereby acknowledges that (iB) does not, directly or indirectly, own one percent (1%) or more of any class of securities of such provisions do not impose a greater restraint than is necessary to protect person.
(iii) During the goodwill Restricted Period, and for an additional one year after the end of the Restricted Period, Executive shall not, directly or other business interests indirectly, (A) without the written consent of the Company, solicit or encourage any employee of the Company or the Company Affiliates to leave the employment of the Company or the Company Affiliates, or (iiB) without the written consent of the Company (which shall not be unreasonably withheld), hire any such provisions contain reasonable limitations employee who has left the employment of the Company or the Company Affiliates (other than as to time and scope a result of activity to be restrained, (iiithe termination of such employment by the Company or the Company Affiliates) within one year after the termination of such provisions are not harmful to employee's employment with the general public, Company or the Company Affiliates.
(iv) such provisions are not unduly burdensome to Executive, and (v) During the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration of the foregoing and in light of Executive’s education, skills and abilitiesRestricted Period, Executive agrees that Executive shall not assert thatwill not, and it should not be considered thatdirectly or indirectly, solicit or encourage to cease to work with the Company or the Company Affiliates any provisions of this Section 11 otherwise are void, voidable consultant then under contract with the Company or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained hereinCompany Affiliates.
Appears in 1 contract
Sources: Change in Control Severance Agreement (Interline Brands, Inc./De)
Non-Competition and Non-Solicitation. Executive acknowledges and recognizes the highly competitive nature of the businesses Each of the Company and its subsidiaries Members agrees that from and affiliates and accordingly agrees as follows:
(a) During the Executive’s employment with the Company and for a period of one (1) year from after the date of termination this Agreement until four (4) years after the Closing Date (the “Non-Competition Period”), neither such Person nor any of Executive’s employment for any reasonhis, the Executive shall not, anywhere within the United States either as principal, agent, employee, consultant, partner, officer, director, shareholder, her or in any other individual or representative capacity, own, manage, finance, operate, control or otherwise engage or participate in any manner or fashion in an employment, business or other activity competitive with the Company. The post-employment restriction contained in this section shall not apply in the State of California.
(b) Executive further agrees that, during the Executive’s employment with the Company and for a period of one (1) year from the date of termination of Executive’s employment for any reason, the Executive shall notits Affiliates will, directly or indirectly, either anywhere in the United States:
(i) engage in, or own, have any interest in, control, advise, manage, serve as a principaldirector, agentmanager, employeeofficer or employee of, act as a consultant to, render services for, receive any economic benefit from or exert any influence upon, any Person that engages in, or is in competition with, the rigid PVC pipe, conduit and conduit fittings business as presently or previously conducted by the Company (a “Restricted Business”); provided, that the forgoing shall not prohibit any Member or any of his, her or its Affiliates from owning up to an aggregate of one percent (1%) of the outstanding shares of any class of capital stock of any publicly traded Restricted Business so long as neither such Member nor any of his, her or its Affiliates have any participation in the management of such Restricted Business; provided, further, that the foregoing shall not prohibit (x) any Member from performing any services on behalf of Buyer or its Affiliates in their capacity as a director, officer or employee of Buyer or its Affiliates; or (y) the current passive creditor relationship of one or more Members, as creditor, with ▇▇▇▇▇▇▇▇ International Group Inc. (“▇▇▇▇▇▇▇▇”), as debtor, with respect to such business located and conducted in Puerto Rico, provided that no further funds or any other financial assistance shall be provided or made available to ▇▇▇▇▇▇▇▇ or its Affiliates and that no Member nor any of its Affiliates shall be involved in the management or operations of such business, whether as a director, officer, manager, consultant, partneradvisor or otherwise;
(ii) solicit, officer, director, shareholder, or in any other individual or representative capacity, on the Executive’s behalf or any other persons or entity other than the Company or its affiliates, (i) solicit or induce, divert or attempt to solicit or inducedivert any Person who is, directly was or indirectlywas solicited to become, any a customer or prospective customer supplier of the Company with whom at any time prior to the Executive has had personal contact within Closing Date;
(iii) employ, solicit for employment or encourage to leave his or her employment, any individual who is at the twelve (12) time of, or was during the nine-month period prior to to, such employment, solicitation or encouragement an officer or employee of the Executive’s termination dateBuyer (or any successor Person into which the Buyer may be merged, amalgamated or consolidated) or any of its Affiliates;
(iiiv) solicit or induceimpair, or attempt to solicit impair, any business relationship between any third party and Buyer (or induceany successor Person into which Buyer may be merged, directly amalgamated or indirectly any person who is, or during the twelve (12consolidated) month period prior to the Executive’s termination date was, an employee or agent of, or consultant to, the Company or any of its affiliatesAffiliates; or
(v) make any statement to any third party, including the press or media, likely to terminate itsresult in adverse publicity for Buyer (or any successor Person into which Buyer may be merged, his amalgamated or her relationship therewith, or (iiiconsolidated) hire or engage any person who is, or during the twelve (12) month period prior to the Executive’s termination date was, an employee, agent of or consultant to the Company or any of its affiliatesAffiliates.
(c) Executive understands that the provisions of this Section 11 may limit Executive’s ability to earn a livelihood in a business similar to the business of the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests of the Company, (ii) such provisions contain reasonable limitations as to time and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient to compensate Executive for the restrictions contained in this Section 11. In consideration of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that Executive shall not assert that, and it should not be considered that, any provisions of this Section 11 otherwise are void, voidable or unenforceable or should be voided or held unenforceable
(d) If a judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.
Appears in 1 contract
Sources: Asset Purchase Agreement (Atkore International Holdings Inc.)