Non-Competition and Non-Solicitation. 6.1 Employee agrees that he will not: (i) anywhere the Company does business, including but not limited to Williston Basin and the Rocky Mountain Region, engage, directly or indirectly, alone or as a shareholder (other than as a holder of less than ten percent (10%) of the common stock of any publicly traded corporation), partner, officer, director, employee, consultant or advisor, or otherwise in any way participate in or become associated with, any other business organization that is engaged or becomes engaged in any business that is the same or substantially identical business of the Company, or is directly competitive with, any business activity that the Company is conducting at the time of Employee’s termination or has notified Employee that it proposes to conduct and for which the Company has, prior to the time of such termination, expended substantial resources (the “Designated Industry”), (ii) divert to any competitor of the Company any customer of the Company, or (iii) solicit any employee, consultant or independent contractor of the Company to change its relationship with the Company, or hire or offer employment to, or a consulting or independent contractor relationship with, any person to whom Employee actually knows the Company has offered employment; provided, however, that this provision does not apply to any employee, consultant or independent contractor of the Company who responds to a general solicitation for an advertised position provided Employee has not otherwise engaged in conduct prohibited by this Section 6. 6.2 Employee agrees to be bound by the provisions of this Section 6 in consideration for the Company’s employment of Employee, payment of the compensation and benefits provided under Section 3 and Section 4 above and the covenants and agreements set forth herein. The provisions of this Section 6 shall apply during the term of Employee’s employment with the Company and for a period of two (2) years following termination of Employee’s employment with the Company for any reason, whether such termination is at the initiative of Employee or the Company or before or after expiration of the Term. The parties agree that the provisions of this Section 6 shall survive any termination of this Agreement, Employee will continue to be bound by the provisions of this Section 6 until their expiration and Employee shall not be entitled to any compensation from the Company with respect thereto except as provided under this Agreement. 6.3 Employee acknowledges that the provisions of this Section 6 are essential to protect the business and goodwill of the Company. If at any time the provisions of this Section 6 shall be determined to be invalid or unenforceable by reason of being vague or unreasonable as to area, duration or scope of activity, this Section 6 shall be considered divisible and shall become and be immediately amended to only such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and Employee agrees that this Section 6 as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included herein.
Appears in 7 contracts
Sources: Employment Agreement (Dakota Plains Holdings, Inc.), Employment Agreement (Dakota Plains Holdings, Inc.), Employment Agreement (Dakota Plains Holdings, Inc.)
Non-Competition and Non-Solicitation. 6.1 Employee agrees that he will not:
(i) anywhere During the Company does business, including but not limited to Williston Basin and the Rocky Mountain Region, engage, directly or indirectly, alone or as a shareholder (other than as a holder of less than ten percent (10%) of the common stock of any publicly traded corporation), partner, officer, director, employee, consultant or advisor, or otherwise in any way participate in or become associated with, any other business organization that is engaged or becomes engaged in any business that is the same or substantially identical business of the Company, or is directly competitive with, any business activity that the Company is conducting at the time of Employee’s termination or has notified Employee that it proposes to conduct and for which the Company has, prior to the time of such termination, expended substantial resources (the “Designated Industry”),
(ii) divert to any competitor of the Company any customer of the Company, or
(iii) solicit any employee, consultant or independent contractor of the Company to change its relationship with the Company, or hire or offer employment to, or a consulting or independent contractor relationship with, any person to whom Employee actually knows the Company has offered employment; provided, however, that this provision does not apply to any employee, consultant or independent contractor of the Company who responds to a general solicitation for an advertised position provided Employee has not otherwise engaged in conduct prohibited by this Section 6.
6.2 Employee agrees to be bound by the provisions of this Section 6 in consideration for the Company’s employment of Employee, payment of the compensation and benefits provided under Section 3 and Section 4 above and the covenants and agreements set forth herein. The provisions of this Section 6 shall apply during the term of Employee’s employment with the Company Term and for a period of two (2) years one year following the date of termination of Employee’s employment with the Company and/or the termination of this Agreement, for any reasonreason and whether voluntary or involuntary: (a) the Employee shall not in the United States or in any country in which the Company shall then be doing business, whether such termination directly or indirectly, enter the employ of, or render any services to, any person, firm or corporation engaged in any business that is at competitive with the initiative business of Employee or the Company or before of any of its subsidiaries or after expiration affiliates of which the Employee may become an employee or officer during the Term; Employee shall not engage in such business on Employee’s own account; and Employee shall not become interested in any such business, directly or indirectly, as an individual, partner, shareholder, director, officer, principal, agent, employee, trustee, consultant, or any other relationship or capacity; provided, however, that nothing contained in this Section 10 shall be deemed to prohibit the Employee from acquiring, solely as an investment, shares of capital stock of any public corporation; (b) neither the Employee nor any Affiliate of the TermEmployee shall solicit or utilize, or assist any person in any way to solicit or utilize, the services, directly or indirectly, of any of the Company's directors, key advisors, officers or employees (collectively, "Associates of the Company"). This non-solicitation and non-utilization provision shall not apply to Associates of the Company who have previously terminated their relationship with the Company. The parties agree that above covenants will apply to the Employee, regardless of the circumstances under which the employment ends or this Agreement is terminated.
10.1 If the Employee commits a breach, or threatens to commit a breach, of any of the provisions of this Section 6 10, the Company shall have the following rights and remedies:
10.1.1 The right and remedy to have the provisions of this Agreement specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach shall cause irreparable injury to the Company and that money damages shall not provide an adequate remedy to the Company; and
10.1.2 The right and remedy immediately to cease providing the salary continuation payments and other benefits under Sections 6.1 and 6.2 of this Agreement and to require the Employee to repay to the Company any such payments and benefits that already have been provided as of the time the Company learns of Employee’s breach of this Section 10.
10.1.3 The right and remedy and to require the Employee to account for and pay over to the Company all compensation, profits, monies, accruals, increments or other benefits (collectively "Benefits") derived or received by the Employee as the result of any transactions constituting a breach of any of the provisions of the preceding paragraph, and the Employee hereby agrees to account for and pay over such Benefits to the Company. Each of the rights and remedies enumerated above shall be independent of the other, and shall be severally enforceable, and all of such rights and remedies shall be in addition to, and not in lieu of, any other rights and remedies available to the Company under law or in equity.
10.2 If any of the covenants contained in Section 8, 9 or 10, or any part thereof, is hereafter construed to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect without regard to the invalid portions.
10.3 If any of the covenants contained in Section 8, 9 or 10, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties agree that the court making such determination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
10.4 The parties hereto intend to and hereby confer jurisdiction to enforce the covenants contained in Sections 8, 9 and 10 upon the courts of any state within the geographical scope of such covenants. In the event that the courts of any one or more of such states shall hold any such covenant wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other states within the geographical scope of such covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each state being, for this purpose, severable into diverse and independent covenants.
10.5 The covenants in Sections 8, 9, and 10 are conditions of Employee’s continued employment with the Company, and they are not tied to Employee’s performance of any particular position, role or job; therefore, the covenants in Sections 8, 9, and 10 shall survive any termination of this Agreementchange in Employee’s position, title, compensation, benefits, role, or responsibilities and shall remain in full force and effect following any such change. By continuing in the Company’s employ, Employee will continue continually re-affirms the intention to be bound by the provisions of this Section 6 until their expiration and Employee shall not be entitled to any compensation from the Company with respect thereto except as provided under this Agreementthese ongoing covenants.
6.3 Employee acknowledges that the provisions of this Section 6 are essential to protect the business and goodwill of the Company. If at any time the provisions of this Section 6 shall be determined to be invalid or unenforceable by reason of being vague or unreasonable as to area, duration or scope of activity, this Section 6 shall be considered divisible and shall become and be immediately amended to only such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and Employee agrees that this Section 6 as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included herein.
Appears in 7 contracts
Sources: Executive Employment Agreement (Ariad Pharmaceuticals Inc), Executive Employment Agreement (Ariad Pharmaceuticals Inc), Executive Employment Agreement (Ariad Pharmaceuticals Inc)
Non-Competition and Non-Solicitation. 6.1 Employee In consideration of the salary paid to the Executive by the Company, the Executive agrees that he will notduring the term of the Employment and for a period of twelve (12) months following the termination of the Employment for whatever reason:
(ia) anywhere The Executive will not approach clients, customers or contacts of the Company does businessor the Group, including but users of the Company’s or the Group’s services, or other persons or entities introduced to the Executive in the Executive’s capacity as a representative of the Company or the Group for the purposes of doing business with such persons or entities which will harm the business relationship between the Company or the Group and such persons and/or entities;
(b) the Executive will not limited to Williston Basin and assume employment with or provide services as a director, consultant or otherwise for any Competitor, or engage, whether as principal, partner, licensor or otherwise, in any Competitor; and
(c) the Rocky Mountain Region, engageExecutive will not seek, directly or indirectly, alone by the offer of alternative employment or as a shareholder (other than as a holder of less than ten percent (10%) of inducement whatsoever, to solicit the common stock services of any publicly traded corporation), partner, officer, director, employee, or employee of or consultant to the Company or advisor, or otherwise in any way participate in or become associated with, any other business organization that is engaged or becomes engaged in any business that is the same or substantially identical business member of the Company, Group employed or is directly competitive with, any business activity that engaged as at or after the Company is conducting at the time of Employee’s termination or has notified Employee that it proposes to conduct and for which the Company has, prior to the time date of such termination, expended substantial resources or in the twelve (12) months preceding such termination. The provisions contained in Section 9 are considered reasonable by the “Designated Industry”),
(ii) divert Executive in order to any competitor protect the legitimate business interest of the Company and the Group. In the event that any customer of the Company, or
(iii) solicit any employee, consultant or independent contractor of the Company to change its relationship with the Company, or hire or offer employment to, or a consulting or independent contractor relationship with, any person to whom Employee actually knows the Company has offered employment; provided, however, that this provision does not apply to any employee, consultant or independent contractor of the Company who responds to a general solicitation for an advertised position provided Employee has not otherwise engaged in conduct prohibited by this Section 6.
6.2 Employee agrees such provisions should be found to be bound by 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 make them valid and effective. This Section 9 shall survive the termination of this Section 6 in consideration for the Company’s employment of Employee, payment of the compensation and benefits provided under Section 3 and Section 4 above and the covenants and agreements set forth herein. The provisions of this Section 6 shall apply during the term of Employee’s employment with the Company and for a period of two (2) years following termination of Employee’s employment with the Company Agreement for any reason. In the event the Executive breaches this Section 9, whether such termination is the Executive acknowledges that there will be no adequate remedy at the initiative of Employee or law, and the Company or before or after expiration the applicable member of the Term. The parties agree that the provisions of this Section 6 Group shall survive any termination of this Agreement, Employee will continue to be bound by the provisions of this Section 6 until their expiration and Employee shall not be entitled to injunctive relief and/or a decree for specific performance, and such other relief as may be proper (including monetary damages if appropriate). In any compensation from event, the Company with respect thereto except as provided under this Agreement.
6.3 Employee acknowledges that the provisions of this Section 6 are essential to protect the business and goodwill or any applicable member of the Company. If at any time the provisions of this Section 6 Group shall be determined have right to be invalid or unenforceable by reason of being vague or unreasonable as to area, duration or scope of activity, this Section 6 shall be considered divisible and shall become and be immediately amended to only such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and Employee agrees that this Section 6 as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included hereinseek all remedies permissible under applicable law.
Appears in 6 contracts
Sources: Employment Agreement (Fashionista Distributor Holdings Inc.), Employment Agreement (Fashionista Distributor Holdings Inc.), Employment Agreement (Indonesia Energy Corp LTD)
Non-Competition and Non-Solicitation. 6.1 Employee agrees that he will not:
(ia) anywhere the Company does business, including but not limited to Williston Basin and the Rocky Mountain Region, engage, directly or indirectly, alone or as a shareholder (other than as a holder of less than ten percent (10%) of the common stock of any publicly traded corporation), partner, officer, director, employee, consultant or advisor, or otherwise in any way participate in or become associated with, any other business organization that is engaged or becomes engaged in any business that is the same or substantially identical business of the Company, or is directly competitive with, any business activity that the Company is conducting at the time of Employee’s termination or has notified Employee that it proposes to conduct and for which the Company has, prior to the time of such termination, expended substantial resources (the “Designated Industry”),
(ii) divert to any competitor of the Company any customer of the Company, or
(iii) solicit any employee, consultant or independent contractor of the Company to change its relationship with the Company, or hire or offer employment to, or a consulting or independent contractor relationship with, any person to whom Employee actually knows the Company has offered employment; provided, however, that this provision does not apply to any employee, consultant or independent contractor of the Company who responds to a general solicitation for an advertised position provided Employee has not otherwise engaged in conduct prohibited While employed by this Section 6.
6.2 Employee agrees to be bound by the provisions of this Section 6 in consideration for the Company’s employment of Employee, payment of the compensation and benefits provided under Section 3 and Section 4 above and the covenants and agreements set forth herein. The provisions of this Section 6 shall apply during the term of Employee’s employment with the Company and for a period of two one year thereafter (2) years following termination of Employee’s employment the “Restricted Period”), the Executive shall not engage in Competition with the Company or any Subsidiary. “Competition” shall mean engaging in any activity, except as provided below, for any reason, whether such termination is at the initiative a Competitor of Employee or the Company or before any Subsidiary, whether as an employee, consultant, principal, agent, officer, director, partner, shareholder (except as a less than five percent shareholder of a publicly traded company) or after expiration otherwise (together “Employment”). A “Competitor” shall mean any corporation or other entity which derives at least 35% or more of its revenues from the conduct of business which competes, directly or indirectly, with the business conducted by the Company, as determined on the Date of Termination of the TermExecutive’s employment unless the Executive does not oversee or manage activities of such entity which are competitive with activities of the Company or Subsidiary. If the Executive commences Employment with any entity that is not a Competitor at the time the Executive initially becomes employed or becomes a consultant, principal, agent, officer, director, partner, or shareholder of the entity, future activities of such entity shall not result in a violation of this provision unless (i) such activities were contemplated by the Executive at the time the Executive initially commenced Employment or (ii) the Executive commences overseeing or managing the activities of an entity which becomes a Competitor during the Restricted Period, which activities are competitive with the activities of the Company or Subsidiary. In addition, the Executive may be employed by, or otherwise associated with, non-competing portions of the competing entity so long as he does not oversee, manage or contribute to the competing activities of the Competitor. The parties agree that the provisions of this Section 6 shall survive any termination of this Agreement, Employee will continue to be bound by the provisions of this Section 6 until their expiration and Employee Executive shall not be entitled deemed to any compensation from be overseeing, managing or contributing to the Competitor’s activities which are competitive with the activities of the Company or Subsidiary so long as he does not regularly participate in any discussions with respect thereto except as provided under this Agreementregard to the conduct of, or take any act intended to facilitate the success of, the competing business.
6.3 Employee acknowledges that the provisions of this Section 6 are essential to protect the business and goodwill of the Company. If at any time the provisions of this Section 6 shall be determined to be invalid or unenforceable by reason of being vague or unreasonable as to area, duration or scope of activity, this Section 6 shall be considered divisible and shall become and be immediately amended to only such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and Employee agrees that this Section 6 as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included herein.
Appears in 5 contracts
Sources: Employment Agreement (Blue Earth, Inc.), Employment Agreement (Blue Earth, Inc.), Employment Agreement (Blue Earth, Inc.)
Non-Competition and Non-Solicitation. 6.1 During the Term and for a period of one year following the date of termination or nonrenewal for any reason (other than termination pursuant to Section 5.1(a): (a) the Employee agrees that he will not:
(i) anywhere shall not in the United States or in any country in which the Company does shall then be doing business, including but not limited to Williston Basin and the Rocky Mountain Region, engage, directly or indirectly, alone or as a shareholder (other than as a holder of less than ten percent (10%) of enter the common stock of any publicly traded corporation), partner, officer, director, employee, consultant or advisoremploy of, or otherwise in render any way participate in or become associated withservices to, any other business organization that is engaged person, firm or becomes corporation engaged in any business that is competitive with the same or substantially identical business of the CompanyCompany or of any of its subsidiaries or affiliates of which the Employee may become an employee or officer during the Term; he shall not engage in such business on his own account; and he shall not become interested in any such business, directly or indirectly, as an individual, partner, shareholder, director, officer, principal, agent, employee, trustee, consultant, or is directly competitive with, any business activity that the Company is conducting at the time of Employee’s termination other relationship or has notified Employee that it proposes to conduct and for which the Company has, prior to the time of such termination, expended substantial resources (the “Designated Industry”),
(ii) divert to any competitor of the Company any customer of the Company, or
(iii) solicit any employee, consultant or independent contractor of the Company to change its relationship with the Company, or hire or offer employment to, or a consulting or independent contractor relationship with, any person to whom Employee actually knows the Company has offered employmentcapacity; provided, however, that nothing contained in this Section 10 shall be deemed to prohibit the Employee from acquiring, solely as an investment, shares of capital stock of any public corporation; (b) neither the Employee nor any Affiliate of the Employee shall solicit or utilize, or assist any person in any way to solicit or utilize, the services, directly or indirectly, of any of the Company's directors, consultants, members of the Board of Scientific and Medical Advisors, officers or employees (collectively, "Associates of the Company"). This nonsolicitation and nonutilization provision does shall not apply to any employee, consultant or independent contractor Associates of the Company who responds to a general solicitation for an advertised position provided Employee has not otherwise engaged in conduct prohibited by this Section 6have previously terminated their relationship with the Company.
6.2 10.1 If the Employee agrees commits a breach, or threatens to be bound by commit a breach, of any of the provisions of this Section 6 in consideration for 10, the Company’s employment of Employee, payment of Company shall have the compensation following rights and benefits provided under Section 3 remedies:
10.1.1 The right and Section 4 above and remedy to have the covenants and agreements set forth herein. The provisions of this Section 6 Agreement specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach shall apply during the term of Employee’s employment with cause irreparable injury to the Company and that money damages shall not provide an adequate remedy to the Company; and
10.1.2 The right and remedy to require the Employee to account for a period of two (2) years following termination of Employee’s employment with and pay over to the Company all compensation, profits, monies, accruals, increments or other benefits (collectively "Benefits") derived or received by the Employee as the result of any transactions constituting a breach of any of the provisions of the preceding paragraph, and the Employee hereby agrees to account for and pay over such Benefits to the Company. Each of the rights and remedies enumerated above shall be independent of the other, and shall be severally enforceable, and all of such rights and remedies shall be in addition to, and not in lieu of, any reasonother rights and remedies available to the Company under law or in equity.
10.2 If any of the covenants contained in Section 8, whether 9 or 10, or any part thereof, is hereafter construed to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect without regard to the invalid portions.
10.3 If any of the covenants contained in Section 8, 9 or 10, or any part thereof, is held to be unenforceable because of the duration of such termination is at the initiative of Employee provision or the Company or before or after expiration of area covered thereby, the Term. The parties agree that the provisions court making such determination shall have the power to reduce the duration and/or area of this Section 6 such provision and, in its reduced form, such provision shall survive any termination of this Agreement, Employee will continue to then be bound by the provisions of this Section 6 until their expiration and Employee shall not be entitled to any compensation from the Company with respect thereto except as provided under this Agreementenforceable.
6.3 Employee acknowledges 10.4 The parties hereto intend to and hereby confer jurisdiction to enforce the covenants contained in Sections 8, 9 and 10 upon the courts of any state within the geographical scope of such covenants. In the event that the provisions courts of this Section 6 are essential to protect the business and goodwill any one or more of the Company. If at such states shall hold any time the provisions of this Section 6 shall be determined to be invalid or such covenant wholly unenforceable by reason of being vague the breadth of such scope or unreasonable otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other states within the geographical scope of such covenants, as to areabreaches of such covenants in such other respective jurisdictions, duration or scope of activitythe above covenants as they relate to each state being, for this Section 6 shall be considered divisible purpose, severable into diverse and shall become and be immediately amended to only such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and Employee agrees that this Section 6 as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included hereinindependent covenants.
Appears in 5 contracts
Sources: Executive Employment Agreement (Ariad Pharmaceuticals Inc), Executive Employment Agreement (Ariad Pharmaceuticals Inc), Executive Employment Agreement (Ariad Pharmaceuticals Inc)
Non-Competition and Non-Solicitation. 6.1 Employee Participant agrees that he will not:
(i) anywhere to comply fully with any written agreement between the Company does business, including but not limited to Williston Basin and the Rocky Mountain RegionParticipant which provides for post-termination of employment restrictions against solicitation or competition (the “Restrictive Covenant Agreement”); provided, engagehowever, that if no such Restrictive Covenant Agreement exists, the Participant shall not for a period of [six (6)] [twelve (12)] [eighteen (18)] months after termination of employment by Company, either himself or together with other persons, directly or indirectly: (i) own, alone manage, operate, finance, join, control or participate in the ownership, management, operation, financing, or control of or be connected as a shareholder (other than as a holder of less than ten percent (10%) of the common stock of any publicly traded corporation), partner, an officer, director, employee, partner, principal, agent, representative, consultant or advisorotherwise with, or otherwise in have any way participate in or become associated with, any other business organization that is engaged or becomes engaged in any business that is the same or substantially identical business of the Companyfinancial interest in, or is directly competitive aid or assist anyone else in the conduct of, or use or permit Participant’s name to be used in connection with, any business activity that engaged in the research, development, manufacture, sale, marketing or distribution of stainless steel, titanium, specialty alloys, metal powders or metal fabricated parts or components similar to or competitive with those manufactured by the Company is conducting at the time of Employee’s termination or has notified Employee that it proposes to conduct and for which the Company has, prior to the time of such termination, expended substantial resources (the a “Designated IndustryCompeting Business”),
(ii) divert to any competitor as of the date the Participant’s employment with Company any customer of the Company, or
(iii) solicit any employee, consultant or independent contractor of the Company to change its relationship with the Company, or hire or offer employment to, or a consulting or independent contractor relationship with, any person to whom Employee actually knows the Company has offered employmentends; provided, however, that this provision does not apply nothing herein shall prevent the Participant from investing in the securities of any company listed on a national securities exchange, provided that Participant’s involvement with any such company is solely that of a stockholder of 5% or less of any class of the outstanding securities thereof; (ii) solicit or divert to any employee, consultant Competing Business any individual or independent contractor entity that is a customer or prospective customer of the Company or its subsidiaries or affiliates, or was such a customer or prospective customer at any time during the three (3) years prior to the date of Participant’s employment termination with the Company; (iii) induce, offer, assist, encourage or suggest (A) that another business or enterprise offer employment to or enter into a business affiliation with any Company employee, agent or representative, or any individual who responds acted as an employee, agent or representative of the Company in the previous six (6) months; or (B) that any Company employee, agent or representative (or individual who acted as an employee, agent or representative of the Company in the previous six (6) 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 person or business entity that the Company has identified as a user or potential user of the Company’s products and toward which the Company plans to a general solicitation for an advertised position provided Employee has not otherwise engaged direct sales or marketing activities. In the event that the Company determines in conduct prohibited by this Section 6.
6.2 Employee agrees to be bound by good faith that the Participant violated the terms of any Restrictive Covenant Agreement, or, if there is no Restrictive Covenant Agreement, the provisions of the preceding paragraph: (i) this Section 6 in consideration for Award shall be forfeited and (ii) the Company’s employment of Employee, Participant shall be obligated to return to the Company any shares previously issued under this Award or a cash payment equal to the value of the compensation and benefits provided under Section 3 and Section 4 above and the covenants and agreements set forth herein. The provisions of this Section 6 shall apply during the term of Employee’s employment with the Company and for a period of two (2) years following termination of Employee’s employment with the Company for any reason, whether such termination is shares at the initiative of Employee time such shares were sold or the Company transferred, if any or before or after expiration all of the Term. The parties agree that Award has been issued to the provisions of this Section 6 shall survive any termination of this Agreement, Employee will continue to be bound Participant or such recoupment is required by the provisions of this Section 6 until their expiration and Employee shall not be entitled to any compensation from the Company with respect thereto except as provided under this Agreementlaw.
6.3 Employee acknowledges that the provisions of this Section 6 are essential to protect the business and goodwill of the Company. If at any time the provisions of this Section 6 shall be determined to be invalid or unenforceable by reason of being vague or unreasonable as to area, duration or scope of activity, this Section 6 shall be considered divisible and shall become and be immediately amended to only such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and Employee agrees that this Section 6 as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included herein.
Appears in 4 contracts
Sources: Restricted Stock Unit Award Agreement (Carpenter Technology Corp), Performance Stock Unit Award Agreement (Carpenter Technology Corp), Performance Stock Unit Award Agreement (Carpenter Technology Corp)
Non-Competition and Non-Solicitation. 6.1 Employee agrees that he will not:
(ia) anywhere the Company does business, including but not limited to Williston Basin and the Rocky Mountain Region, engage, directly or indirectly, alone or as a shareholder (other than as a holder of less than ten percent (10%) of the common stock of any publicly traded corporation), partner, officer, director, employee, consultant or advisor, or otherwise in any way participate in or become associated with, any other business organization that is engaged or becomes engaged in any business that is the same or substantially identical business of the Company, or is directly competitive with, any business activity that the Company is conducting at the time of During Employee’s termination or has notified Employee that it proposes to conduct and for which the Company has, prior to the time of such termination, expended substantial resources (the “Designated Industry”),
(ii) divert to any competitor of the Company any customer of the Company, or
(iii) solicit any employee, consultant or independent contractor of the Company to change its relationship with the Company, or hire or offer 's employment to, or a consulting or independent contractor relationship with, any person to whom Employee actually knows the Company has offered employment; provided, however, that this provision does not apply to any employee, consultant or independent contractor of the Company who responds to a general solicitation for an advertised position provided Employee has not otherwise engaged in conduct prohibited by this Section 6.
6.2 Employee agrees to be bound by the provisions of this Section 6 in consideration for the Company’s employment of Employee, payment of the compensation and benefits provided under Section 3 and Section 4 above and the covenants and agreements set forth herein. The provisions of this Section 6 shall apply during the term of Employee’s employment with the Company and for a period of two six (26) years following termination of months after Employee’s employment 's Termination in Connection with a Change in Control, Employee will not, except with the prior written consent of the Board (which consent shall not be unreasonably withheld or delayed), own, manage, operate, join, control or finance, or participate in the ownership, management, operation, control or financing of, or be connected as an officer, director, employee, partner, principal, agent, representative, consultant or otherwise with, or use or permit Employee's name to be used in connection with, any business or enterprise directly engaged in, or with affiliates directly engaged in, the business of researching, developing, licensing, selling, distributing, marketing or otherwise commercializing organic light emitting device ("OLED") technology, chemicals or manufacturing equipment. The foregoing restrictions shall not be construed to prohibit the ownership by Employee of less than five percent (5%) of any class of securities of a corporation engaged in any of the foregoing business activities that has a class of securities registered pursuant to the Securities Exchange Act, provided that such ownership represents a passive investment and that neither Employee nor any group of Persons including Employee, either directly or indirectly, manages or exercises control over any such corporation, guarantees any of its financial obligations, otherwise takes any part in the conduct of its business (other than in exercising their rights as shareholders), or seeks to do any of the foregoing.
(b) During his or her employment by the Company, and thereafter during the Separation Period, Employee will not knowingly (i) solicit, divert, take away, redirect or unreasonably interfere with the Company's business relationships with any of its suppliers, customers, partners or joint venturers with whom Employee had any direct or indirect involvement during the term of this Agreement; or (ii) solicit, induce, recruit or attempt to influence any person who is now or is hereafter an employee of the Company to become an employee or be engaged as an independent contractor of any entity engaged in activities competitive with those of the Company.
(c) An amount equal to one-half of the severance benefits payable under this Agreement is specifically designated as additional consideration for the covenants described in this Section 11. The covenants described in this Section 11 shall continue to apply during the period specified herein after Employee's Termination of Employment for any reason, without regard to whether Employee executes a Release or receives any severance benefits as a result of such termination is at the initiative of termination. If Employee or the Company or before or after expiration breaches any of the Term. The parties agree that the provisions of covenants described in this Section 6 shall survive any termination of this Agreement11, Employee will continue to be bound by the provisions of this Section 6 until their expiration and Employee shall not be entitled to any compensation from applicable period during which the Company with respect thereto except as provided under this Agreement.
6.3 Employee acknowledges that the provisions of this Section 6 are essential to protect the business and goodwill of the Company. If at any time the provisions of this Section 6 covenant applies shall be determined to be invalid or unenforceable by reason tolled during the period of being vague or unreasonable as to area, duration or scope of activity, this Section 6 shall be considered divisible and shall become and be immediately amended to only such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and Employee agrees that this Section 6 as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included hereinbreach.
Appears in 4 contracts
Sources: Change in Control Agreement (Universal Display Corp \Pa\), Change in Control Agreement (Universal Display Corp \Pa\), Change in Control Agreement (Universal Display Corp \Pa\)
Non-Competition and Non-Solicitation. 6.1 Employee agrees that he will not:
(ia) anywhere the Company does business, including but not limited to Williston Basin and the Rocky Mountain Region, engage, directly or indirectly, alone or as a shareholder (other than as a holder of less than ten percent (10%) of the common stock of any publicly traded corporation), partner, officer, director, employee, consultant or advisor, or otherwise in any way participate in or become associated with, any other business organization that is engaged or becomes engaged in any business that is the same or substantially identical business of the Company, or is directly competitive with, any business activity that the Company is conducting at the time of Employee’s termination or has notified Employee that it proposes to conduct and for which the Company has, prior to the time of such termination, expended substantial resources (the “Designated Industry”),
(ii) divert to any competitor of the Company any customer of the Company, or
(iii) solicit any employee, consultant or independent contractor of the Company to change its relationship with the Company, or hire or offer employment to, or a consulting or independent contractor relationship with, any person to whom Employee actually knows the Company has offered employment; provided, however, that this provision does not apply to any employee, consultant or independent contractor of the Company who responds to a general solicitation for an advertised position provided Employee has not otherwise engaged in conduct prohibited by this Section 6.
6.2 Employee agrees to be bound by the provisions of this Section 6 in consideration for the Company’s employment of Employee, payment of the compensation and benefits provided under Section 3 and Section 4 above and the covenants and agreements set forth herein. The provisions of this Section 6 shall apply during the term of During Employee’s employment with by the Company and for a period of two six (26) years following termination of months after Employee’s employment Termination in Connection with a Change in Control, Employee will not, except with the prior written consent of the Board (which consent shall not be unreasonably withheld or delayed), own, manage, operate, join, control or finance, or participate in the ownership, management, operation, control or financing of, or be connected as an officer,
(b) director, employee, partner, principal, agent, representative, consultant or otherwise with, or use or permit Employee’s name to be used in connection with, any business or enterprise directly engaged in, or with affiliates directly engaged in, the business of researching, developing, licensing, selling, distributing, marketing or otherwise commercializing organic light emitting device (“OLED”) technology, chemicals or manufacturing equipment. The foregoing restrictions shall not be construed to prohibit the ownership by Employee of less than five percent (5%) of any class of securities of a corporation engaged in any of the foregoing business activities that has a class of securities registered pursuant to the Securities Exchange Act, provided that such ownership represents a passive investment and that neither Employee nor any group of Persons including Employee, either directly or indirectly, manages or exercises control over any such corporation, guarantees any of its financial obligations, otherwise takes any part in the conduct of its business (other than in exercising their rights as shareholders), or seeks to do any of the foregoing.
(c) During his or her employment by the Company, and thereafter during the Separation Period, Employee will not knowingly (i) solicit, divert, take away, redirect or unreasonably interfere with the Company’s business relationships with any of its suppliers, customers, partners or joint venturers with whom Employee had any direct or indirect involvement during the term of this Agreement; or (ii) solicit, induce, recruit or attempt to influence any person who is now or is hereafter an employee of the Company to become an employee or be engaged as an independent contractor of any entity engaged in activities competitive with those of the Company.
(d) An amount equal to one-half of the severance benefits payable under this Agreement is specifically designated as additional consideration for the covenants described in this Section 12. The covenants described in this Section 12 shall continue to apply during the period specified herein after Employee’s Termination of Employment for any reason, without regard to whether Employee executes a Release or receives any severance benefits as a result of such termination is at the initiative of termination. If Employee or the Company or before or after expiration breaches any of the Term. The parties agree that the provisions of covenants described in this Section 6 shall survive any termination of this Agreement12, Employee will continue to be bound by the provisions of this Section 6 until their expiration and Employee shall not be entitled to any compensation from applicable period during which the Company with respect thereto except as provided under this Agreement.
6.3 Employee acknowledges that the provisions of this Section 6 are essential to protect the business and goodwill of the Company. If at any time the provisions of this Section 6 covenant applies shall be determined to be invalid or unenforceable by reason tolled during the period of being vague or unreasonable as to area, duration or scope of activity, this Section 6 shall be considered divisible and shall become and be immediately amended to only such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and Employee agrees that this Section 6 as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included hereinbreach.
Appears in 4 contracts
Sources: Change in Control Agreement (Universal Display Corp \Pa\), Change in Control Agreement (Universal Display Corp \Pa\), Change in Control Agreement (Universal Display Corp \Pa\)
Non-Competition and Non-Solicitation. 6.1 Employee agrees that he will not:
(i) anywhere the Company does business, including but not limited to Williston Basin and the Rocky Mountain Region, engage, directly or indirectly, alone or as a shareholder (other than as a holder of less than ten percent (10%) In consideration of the common stock of any publicly traded corporation), partner, officer, director, employee, consultant or advisor, or otherwise in any way participate in or become associated with, any other business organization that is engaged or becomes engaged in any business that is salary paid to the same or substantially identical business of Executive by the Company, or is directly competitive with, any business activity the Executive agrees that the Company is conducting at the time of Employee’s termination or has notified Employee that it proposes to conduct and for which the Company has, prior to the time of such termination, expended substantial resources (the “Designated Industry”),
(ii) divert to any competitor of the Company any customer of the Company, or
(iii) solicit any employee, consultant or independent contractor of the Company to change its relationship with the Company, or hire or offer employment to, or a consulting or independent contractor relationship with, any person to whom Employee actually knows the Company has offered employment; provided, however, that this provision does not apply to any employee, consultant or independent contractor of the Company who responds to a general solicitation for an advertised position provided Employee has not otherwise engaged in conduct prohibited by this Section 6.
6.2 Employee agrees to be bound by the provisions of this Section 6 in consideration for the Company’s employment of Employee, payment of the compensation and benefits provided under Section 3 and Section 4 above and the covenants and agreements set forth herein. The provisions of this Section 6 shall apply during the term of Employee’s employment with the Company Employment and for a period of two (2) years following the termination of Employeethe Employment for whatever reason:
(a) The Executive will not approach clients, customers or contacts of the Company or the Group, users of the Company’s or the Group’s services, or other persons or entities introduced to the Executive in the Executive’s capacity as a representative of the Company or the Group for the purposes of doing business with such persons or entities which will harm the business relationship between the Company or the Group and such persons and/or entities;
(b) the Executive will not assume employment with or provide services as a director, consultant or otherwise for any Competitor, or engage, whether as principal, partner, licensor or otherwise, in any Competitor; and
(c) the Executive will not seek, directly or indirectly, by the offer of alternative employment or other inducement whatsoever, to solicit the services of any officer, director, or employee of or consultant to the Company or any member of the Group employed or engaged as at or after the date of such termination, or in the two (2) years preceding such termination. The provisions contained in Section 10 are considered reasonable by the Executive in order to protect the legitimate business interest of the Company and the Group. In the event that any such provisions 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 make them valid and effective. This Section 10 shall survive the termination of this Agreement for any reason. In the event the Executive breaches this Section 10, whether such termination is the Executive acknowledges that there will be no adequate remedy at the initiative of Employee or law, and the Company or before or after expiration the applicable member of the Term. The parties agree that the provisions of this Section 6 Group shall survive any termination of this Agreement, Employee will continue to be bound by the provisions of this Section 6 until their expiration and Employee shall not be entitled to injunctive relief and/or a decree for specific performance, and such other relief as may be proper (including monetary damages if appropriate). In any compensation from event, the Company with respect thereto except as provided under this Agreement.
6.3 Employee acknowledges that the provisions of this Section 6 are essential to protect the business and goodwill or any applicable member of the Company. If at any time the provisions of this Section 6 Group shall be determined have right to be invalid or unenforceable by reason of being vague or unreasonable as to area, duration or scope of activity, this Section 6 shall be considered divisible and shall become and be immediately amended to only such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and Employee agrees that this Section 6 as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included hereinseek all remedies permissible under applicable law.
Appears in 4 contracts
Sources: Employment Agreement (YanGuFang International Group Co., LTD), Employment Agreement (YanGuFang International Group Co., LTD), Employment Agreement (YanGuFang International Group Co., LTD)
Non-Competition and Non-Solicitation. 6.1 Employee agrees that he will not:
(ia) anywhere the Company does business, including but not limited to Williston Basin and the Rocky Mountain Region, engage, directly or indirectly, alone or as a shareholder (other than as a holder of less than ten percent (10%) of the common stock of any publicly traded corporation), partner, officer, director, employee, consultant or advisor, or otherwise in any way participate in or become associated with, any other business organization that is engaged or becomes engaged in any business that is the same or substantially identical business of the Company, or is directly competitive with, any business activity that the Company is conducting at the time of Employee’s termination or has notified Employee that it proposes to conduct and for which the Company has, prior to the time of such termination, expended substantial resources (the “Designated Industry”),
(ii) divert to any competitor of the Company any customer of the Company, or
(iii) solicit any employee, consultant or independent contractor of the Company to change its relationship with the Company, or hire or offer employment to, or a consulting or independent contractor relationship with, any person to whom Employee actually knows the Company has offered employment; provided, however, that this provision does not apply to any employee, consultant or independent contractor of the Company who responds to a general solicitation for an advertised position provided Employee has not otherwise engaged in conduct prohibited by this Section 6.
6.2 Employee agrees to be bound by the provisions of this Section 6 in consideration for the Company’s employment of Employee, payment of the compensation and benefits provided under Section 3 and Section 4 above and the covenants and agreements set forth herein. The provisions of this Section 6 shall apply during the term of During Employee’s employment with by the Company and for a period of two six (26) years following termination of months after Employee’s employment Termination in Connection with a Change in Control, Employee will not, except with the prior written consent of the Board (which consent shall not be unreasonably withheld or delayed), own, manage, operate, join, control or finance, or participate in the ownership, management, operation, control or financing of, or be connected as an officer, director, employee, partner, principal, agent, representative, consultant or otherwise with, or use or permit Employee’s name to be used in connection with, any business or enterprise directly engaged in, or with affiliates directly engaged in, the business of researching, developing, licensing, selling, distributing, marketing or otherwise commercializing organic light emitting device (“OLED”) technology, chemicals or manufacturing equipment. The foregoing restrictions shall not be construed to prohibit the ownership by Employee of less than five percent (5%) of any class of securities of a corporation engaged in any of the foregoing business activities that has a class of securities registered pursuant to the Securities Exchange Act, provided that such ownership represents a passive investment and that neither Employee nor any group of Persons including Employee, either directly or indirectly, manages or exercises control over any such corporation, guarantees any of its financial obligations, otherwise takes any part in the conduct of its business (other than in exercising their rights as shareholders), or seeks to do any of the foregoing.
(b) During his or her employment by the Company, and thereafter during the Separation Period, Employee will not knowingly (i) solicit, divert, take away, redirect or unreasonably interfere with the Company’s business relationships with any of its suppliers, customers, partners or joint venturers with whom Employee had any direct or indirect involvement during the term of this Agreement; or (ii) solicit, induce, recruit or attempt to influence any person who is now or is hereafter an employee of the Company to become an employee or be engaged as an independent contractor of any entity engaged in activities competitive with those of the Company.
(c) An amount equal to one-half of the severance benefits payable under this Agreement is specifically designated as additional consideration for the covenants described in this Section 12. The covenants described in this Section 12 shall continue to apply during the period specified herein after Employee’s Termination of Employment for any reason, without regard to whether Employee executes a Release or receives any severance benefits as a result of such termination is at the initiative of termination. If Employee or the Company or before or after expiration breaches any of the Term. The parties agree that the provisions of covenants described in this Section 6 shall survive any termination of this Agreement12, Employee will continue to be bound by the provisions of this Section 6 until their expiration and Employee shall not be entitled to any compensation from applicable period during which the Company with respect thereto except as provided under this Agreement.
6.3 Employee acknowledges that the provisions of this Section 6 are essential to protect the business and goodwill of the Company. If at any time the provisions of this Section 6 covenant applies shall be determined to be invalid or unenforceable by reason tolled during the period of being vague or unreasonable as to area, duration or scope of activity, this Section 6 shall be considered divisible and shall become and be immediately amended to only such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and Employee agrees that this Section 6 as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included hereinbreach.
Appears in 3 contracts
Sources: Change in Control Agreement (Universal Display Corp \Pa\), Change in Control Agreement (Universal Display Corp \Pa\), Change in Control Agreement (Universal Display Corp \Pa\)
Non-Competition and Non-Solicitation. 6.1 Employee agrees that he will not:
(i) anywhere 7.1. Each of the Company does business, including but not limited to Williston Basin Consultant and the Rocky Mountain RegionKey Person agrees and declares that, engageso long as it/he is a shareholder, holding shares or options (vested or non-vested) of the Company, directly or indirectly, alone reflecting 5% or as a shareholder (other than as a holder of less than ten percent (10%) more of the common stock of any publicly traded corporation), partner, officer, director, employee, consultant or advisor, or otherwise in any way participate in or become associated with, any other business organization that is engaged or becomes engaged in any business that is the same or substantially identical business issued and outstanding share capital of the Company, or is directly competitive withdirector, any business activity employee (in the event that a competent court rules that the Company Consultant or the Key Person is conducting at the time of Employee’s termination or has notified Employee that it proposes to conduct and for which the Company has, prior to the time of such termination, expended substantial resources (the “Designated Industry”),
(ii) divert to any competitor of the Company any customer of employed by the Company, or
(iii) solicit any employee, consultant or independent contractor advisor of the Company to change its relationship with the Company, or hire or offer employment to, or a consulting or independent contractor relationship with, any person to whom Employee actually knows the Company has offered employment; provided, however, that this provision does not apply to any employee, consultant or independent contractor of the Company who responds to a general solicitation for an advertised position provided Employee has not otherwise engaged in conduct prohibited by this Section 6.
6.2 Employee agrees to be bound by the provisions of this Section 6 in consideration for the Company’s employment of Employee, payment of the compensation and benefits provided under Section 3 and Section 4 above and the covenants and agreements set forth herein. The provisions of this Section 6 shall apply during the term of Employee’s employment with the Company and for a period of two twelve (212) years following termination of Employee’s employment months thereafter (the “Non-Competition Period”), it/he shall not, as an owner, partner, joint venturor, stockholder (provided that this shall not preclude the Consultant or the Key Person from owning a stock interest not greater than 5% in a publicly traded company), employee, broker, agent, principal, trustee, corporate officer, director, licensor or in any other capacity whatsoever engage in, become financially interested in any business venture worldwide that is engaged in any activities involving any products or technologies competing with the Company for any reasonactual products or technologies then produced or otherwise commercialized, whether such termination is at the initiative of Employee researched or under development by the Company or before its subsidiaries.
7.2. During the Non-Competition Period the Consultant or after expiration the Key Person shall not accept from the Company’s customers any position, order, offer, work or business in any field of activity in which the Company is engaged and which is directly competitive with the Company, or approach any of the TermCompany’s customers in connection with products or services that competes with those sold or provided by the Company.
7.3. Each of the Consultant and the Key Person undertakes, so long as it/he is director, employee (in the event that a competent court rules that the Consultant or the Key Person is employed by the Company), or advisor of the Company and for a period of twelve (12) months thereafter, not to employ or otherwise engage, directly or indirectly, in any business activity with any of the Company’s employees at that time, or any person who was employed by the Company within the preceding year.
7.4. The parties agree that Consultant shall provide the provisions Company with a written undertaking of this Section 6 shall survive any termination of this Agreement, Employee will continue the Key Person to be bound abide by the provisions of this Section 6 until their expiration and Employee shall not be entitled to any compensation from the Company with respect thereto except 9, as provided under this Agreementset forth in Annex A hereto.
6.3 Employee acknowledges that the provisions of this Section 6 are essential to protect the business and goodwill of the Company. If at any time the provisions of this Section 6 shall be determined to be invalid or unenforceable by reason of being vague or unreasonable as to area, duration or scope of activity, this Section 6 shall be considered divisible and shall become and be immediately amended to only such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and Employee agrees that this Section 6 as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included herein.
Appears in 3 contracts
Sources: Consultancy Agreement (InspireMD, Inc.), Consultancy Agreement (InspireMD, Inc.), Consultancy Agreement (InspireMD, Inc.)
Non-Competition and Non-Solicitation. 6.1 5.1 The Employee agrees further undertakes to the Employer that during the period of his employment with the Employer and for a further period of twelve (12) months from the date he will ceases to be in the employment of the Employer (“Non-Compete Period”), he shall refrain from engaging in any Competing Business as that of the Employer or its Affiliates, either as principal, agent, partner, director, employee, secondee, consultant, advisor in of or to any Person who carries it on.
5.2 The Employee shall not, in any manner directly or indirectly during the Non-Compete Period:
(i) anywhere call upon, cause to be called upon, solicit or assist in the Company does businesssolicitation of, including but not limited to Williston Basin and the Rocky Mountain Regionany client, engagecustomer, directly supplier or indirectly, alone or as a shareholder (other than as a holder of less than ten percent (10%) contractor of the common stock Employer or its Affiliates for the purpose of offering, selling, supplying or making provision for any publicly traded corporation), partner, officer, director, employee, consultant product or advisor, or otherwise in any way participate in or become associated with, any other business organization that is engaged or becomes engaged in any business that is service competing with the same or substantially identical business products and services of the CompanyEmployer or its Affiliates or request, recommend or is directly competitive withadvise any client, any customer, supplier or contractor to cease or curtail doing business activity that with the Company is conducting at the time of Employee’s termination Employer or has notified Employee that it proposes to conduct and for which the Company has, prior to the time of such termination, expended substantial resources (the “Designated Industry”),its Affiliates;
(ii) divert solicit, employ, engage or seek to employ or engage any competitor individual or entity, on behalf of the Company Employee or any customer entity other than the Employer, or advise any employee or director of the CompanyEmployer or its Affiliates to terminate their employment or engagement with the Employer or its Affiliates, or
who is employed or had been engaged by the Employer or its Affiliates or who was employed or engaged by the Employer or its Affiliates during the twelve (iii12) solicit any employee, consultant or independent contractor month period preceding the date of the Company to change its relationship with the Company, or hire or offer employment to, or a consulting or independent contractor relationship with, any person to whom purported solicitation/ employment/ engagement.
5.3 The Employee actually knows the Company has offered employment; provided, however, confirms and acknowledges that this provision does not apply to any employee, consultant or independent contractor each of the Company who responds to covenants contained herein shall be a general solicitation for an advertised position provided Employee has not otherwise engaged in conduct prohibited by this Section 6.
6.2 Employee agrees to separate covenant and shall be bound by the provisions enforceable separately and independently of this Section 6 in consideration for the Company’s employment of Employee, payment any of the compensation other covenants against the Employee and benefits provided under Section 3 and Section 4 above and the covenants and agreements set forth herein. The provisions of this Section 6 shall apply during the term of Employee’s employment with the Company and for a period of two (2) years following termination of Employee’s employment with the Company for any reason, whether such termination is at the initiative of Employee or the Company or before or after expiration of the Term. The parties agree that the provisions of this Section 6 shall survive any termination of this Agreement, Employee will continue to be bound by the provisions of this Section 6 until their expiration and Employee its validity shall not be entitled affected if any of the others is invalid; if any of the covenants is void but would be valid if some parts of the covenant were deleted, the covenant in question shall apply with such modification as may be necessary to any compensation from the Company with respect thereto except as provided under this Agreementmake it valid.
6.3 5.4 The Employee hereby acknowledges that the provisions of restrictions under this Section 6 Clause 5 are essential fair and reasonable as to subject matter, geographical scope and duration, and are reasonably necessary to protect the business and goodwill value of the Company. If at any time the provisions of this Section 6 shall be determined Employer and its Affiliates and associated goodwill.
5.5 The Employee represents that: (a) he possesses various skill sets which he can deploy once he ceases to be invalid or unenforceable by reason an employee of being vague or unreasonable as the Employer without breaching the restrictions under this Clause 5; (b) his experience and knowledge will enable him to area, duration or scope of activity, this Section 6 shall be considered divisible and shall become and be immediately amended to only such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or earn an adequate living pursuing activities other body having jurisdiction over the matter; and Employee agrees that this Section 6 as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included hereinthan in connection with a Competing Business.
Appears in 3 contracts
Sources: Employment Agreement, Employment Agreement, Employment Agreement
Non-Competition and Non-Solicitation. 6.1 Employee agrees that he will not:
(i) anywhere During the Company does business, including but not limited to Williston Basin and the Rocky Mountain Region, engage, directly or indirectly, alone or as a shareholder (other than as a holder of less than ten percent (10%) of the common stock of any publicly traded corporation), partner, officer, director, employee, consultant or advisor, or otherwise in any way participate in or become associated with, any other business organization that is engaged or becomes engaged in any business that is the same or substantially identical business of the Company, or is directly competitive with, any business activity that the Company is conducting at the time of Employee’s termination or has notified Employee that it proposes to conduct and for which the Company has, prior to the time of such termination, expended substantial resources (the “Designated Industry”),
(ii) divert to any competitor of the Company any customer of the Company, or
(iii) solicit any employee, consultant or independent contractor of the Company to change its relationship with the Company, or hire or offer employment to, or a consulting or independent contractor relationship with, any person to whom Employee actually knows the Company has offered employment; provided, however, that this provision does not apply to any employee, consultant or independent contractor of the Company who responds to a general solicitation for an advertised position provided Employee has not otherwise engaged in conduct prohibited by this Section 6.
6.2 Employee agrees to be bound by the provisions of this Section 6 in consideration for the Company’s employment of Employee, payment of the compensation and benefits provided under Section 3 and Section 4 above and the covenants and agreements set forth herein. The provisions of this Section 6 shall apply during the term of Employee’s employment with the Company Term and for a period of two (2) years one year following the date of termination of Employee’s employment with the Company and/or the termination of this Agreement, for any reasonreason and whether voluntary or involuntary: (a) the Employee shall not in the United States or in any country in which the Company shall then be doing business, whether such termination directly or indirectly, enter the employ of, or render any services to, any person, firm or corporation engaged in any business that is at competitive with the initiative business of Employee or the Company or before of any of its subsidiaries or after expiration affiliates of which the Employee may become an employee or officer during the Term; Employee shall not engage in such business on Employee’s own account; and Employee shall not become interested in any such business, directly or indirectly, as an individual, partner, shareholder, director, officer, principal, agent, employee, trustee, consultant, or any other relationship or capacity; provided, however, that nothing contained in this Section 10 shall be deemed to prohibit the Employee from acquiring, solely as an investment, shares of capital stock of any public corporation; (b) neither the Employee nor any Affiliate of the TermEmployee shall solicit or utilize, or assist any person in any way to solicit or utilize, the services, directly or indirectly, of any of the Company’s directors, key advisors, officers or employees (collectively, “Associates of the Company”). This non-solicitation and non-utilization provision shall not apply to Associates of the Company who have previously terminated their relationship with the Company. The parties agree that above covenants will apply to the Employee, regardless of the circumstances under which the employment ends or this Agreement is terminated.
10.1 If the Employee commits a breach, or threatens to commit a breach, of any of the provisions of this Section 6 10, the Company shall have the following rights and remedies:
10.1.1 The right and remedy to have the provisions of this Agreement specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach shall cause irreparable injury to the Company and that money damages shall not provide an adequate remedy to the Company; and
10.1.2 The right and remedy immediately to cease providing the salary continuation payments and other benefits under Sections 6.1 and 6.2 of this Agreement and to require the Employee to repay to the Company any such payments and benefits that already have been provided as of the time the Company learns of Employee’s breach of this Section 10.
10.1.3 The right and remedy and to require the Employee to account for and pay over to the Company all compensation, profits, monies, accruals, increments or other benefits (collectively “Benefits”) derived or received by the Employee as the result of any transactions constituting a breach of any of the provisions of the preceding paragraph, and the Employee hereby agrees to account for and pay over such Benefits to the Company. Each of the rights and remedies enumerated above shall be independent of the other, and shall be severally enforceable, and all of such rights and remedies shall be in addition to, and not in lieu of, any other rights and remedies available to the Company under law or in equity.
10.2 If any of the covenants contained in Section 8, 9 or 10, or any part thereof, is hereafter construed to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect without regard to the invalid portions.
10.3 If any of the covenants contained in Section 8, 9 or 10, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties agree that the court making such determination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
10.4 The parties hereto intend to and hereby confer jurisdiction to enforce the covenants contained in Sections 8, 9 and 10 upon the courts of any state within the geographical scope of such covenants. In the event that the courts of any one or more of such states shall hold any such covenant wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company’s right to the relief provided above in the courts of any other states within the geographical scope of such covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each state being, for this purpose, severable into diverse and independent covenants.
10.5 The covenants in Sections 8, 9, and 10 are conditions of Employee’s continued employment with the Company, and they are not tied to Employee’s performance of any particular position, role or job; therefore, the covenants in Sections 8, 9, and 10 shall survive any termination of this Agreementchange in Employee’s position, title, compensation, benefits, role, or responsibilities and shall remain in full force and effect following any such change. By continuing in the Company’s employ, Employee will continue continually re-affirms the intention to be bound by the provisions of this Section 6 until their expiration and Employee shall not be entitled to any compensation from the Company with respect thereto except as provided under this Agreementthese ongoing covenants.
6.3 Employee acknowledges that the provisions of this Section 6 are essential to protect the business and goodwill of the Company. If at any time the provisions of this Section 6 shall be determined to be invalid or unenforceable by reason of being vague or unreasonable as to area, duration or scope of activity, this Section 6 shall be considered divisible and shall become and be immediately amended to only such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and Employee agrees that this Section 6 as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included herein.
Appears in 3 contracts
Sources: Executive Employment Agreement (Ariad Pharmaceuticals Inc), Executive Employment Agreement (Ariad Pharmaceuticals Inc), Executive Employment Agreement (Ariad Pharmaceuticals Inc)
Non-Competition and Non-Solicitation. 6.1 Employee agrees that he will not:In order to protect the Company’s Proprietary Information and good will, during my employment and for a period of twelve (12) months following the termination of my employment for any reason (the “Restricted Period”):
(ia) anywhere in consideration of the Company does businessoffer of employment, including but not limited to Williston Basin my salary or wage, any bonus I may receive, and the Rocky Mountain Regionequity granted to me in connection with commencement of employment with the Company, engageall of which I deem as fair and reasonable consideration for entering into this Agreement, I will not directly or indirectly, alone or whether as a shareholder (other than as a holder of less than ten percent (10%) of the common stock of any publicly traded corporation)owner, partner, officershareholder, director, consultant, agent, employee, consultant co-venturer or advisorotherwise, engage, participate or otherwise in any way participate in or become associated with, any other business organization that is engaged or becomes engaged invest in any business that is the same develops, manufactures or substantially identical business markets microbiome therapeutics that are competitive with products or services of the Company, or is directly competitive with, any business activity that the Company is conducting has under development, or that are the subject of active planning at any time during my employment (collectively, the time “Competitive Products”); provided that this will not prohibit any possible investment in publicly traded stock of Employee’s termination or has notified Employee that it proposes to conduct and for which a company representing less than one percent of the Company has, prior to the time stock of such termination, expended substantial resources company and provided further that this provision shall apply only if I am an exempt employee (as that term is defined by the “Designated Industry”),Fair Labor Standards Act) or if and when I subsequently become an exempt employee; and
(iib) divert to I will not directly or indirectly, in any competitor of manner, other than for the Company any customer benefit of the Company, or
(iiii) solicit call upon, solicit, divert or take away any employeeof the customers, business or prospective customers of the Company or any of its suppliers, and/or (ii) solicit, entice or attempt to persuade any other employee or consultant or independent contractor of the Company to change its relationship with leave the Company, or hire or offer employment to, or a consulting or independent contractor relationship with, any person to whom Employee actually knows the Company has offered employment; provided, however, that this provision does not apply to any employee, consultant or independent contractor services of the Company who responds to a general solicitation for an advertised position provided Employee has not otherwise engaged in conduct prohibited by this Section 6.
6.2 Employee agrees to be bound by the provisions of this Section 6 in consideration for the Company’s employment of Employee, payment of the compensation and benefits provided under Section 3 and Section 4 above and the covenants and agreements set forth herein. The provisions of this Section 6 shall apply during the term of Employee’s employment with the Company and for a period of two (2) years following termination of Employee’s employment with the Company for any reason. I acknowledge and agree that if I violate any of the provisions of this Section, whether such termination is at the initiative of Employee or in addition to any other remedies to which the Company may be entitled in law or before or after expiration equity, the running of the TermRestricted Period will be extended by the time during which I engage in such violation(s) or up to twenty four (24) months, whichever is longer. The parties I acknowledge and agree that the provisions of this Section 6 agreement shall survive any termination of this Agreement, Employee will continue to be bound apply during and following my employment by the provisions of this Section 6 until their expiration Company and Employee shall not be entitled affected by any change in my job duties, whether material or immaterial. I further acknowledge and agree that I have the right and have had the opportunity to any compensation from the Company consult with respect thereto except as provided under an attorney prior to signing this Agreement.
6.3 Employee acknowledges that the provisions of this Section 6 are essential to protect the business and goodwill of the Company. If at any time the provisions of this Section 6 shall be determined to be invalid or unenforceable by reason of being vague or unreasonable as to area, duration or scope of activity, this Section 6 shall be considered divisible and shall become and be immediately amended to only such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and Employee agrees that this Section 6 as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included herein.
Appears in 3 contracts
Sources: Employment Agreement (Seres Therapeutics, Inc.), Employment Agreement (Seres Therapeutics, Inc.), Employment Agreement (Seres Therapeutics, Inc.)
Non-Competition and Non-Solicitation. 6.1 During the Term and for a period of one year following the date of termination or nonrenewal for any reason (other than termination pursuant to Section 5.1(a): (a) the Employee agrees that he will not:
(i) anywhere shall not in the United States or in any country in which the Company does shall then be doing business, including but not limited to Williston Basin and the Rocky Mountain Region, engage, directly or indirectly, alone or as a shareholder (other than as a holder of less than ten percent (10%) of enter the common stock of any publicly traded corporation), partner, officer, director, employee, consultant or advisoremploy of, or otherwise in render any way participate in or become associated withservices to, any other business organization that is engaged person, firm or becomes corporation engaged in any business that is competitive with the same or substantially identical business of the CompanyCompany or of any of its subsidiaries or affiliates of which the Employee may become an employee or officer during the Term; he shall not engage in such business on his own account; and he shall not become interested in any such business, directly or indirectly, as an individual, partner, shareholder, director, officer, principal, agent, employee, trustee, consultant, or is directly competitive with, any business activity that the Company is conducting at the time of Employee’s termination other relationship or has notified Employee that it proposes to conduct and for which the Company has, prior to the time of such termination, expended substantial resources (the “Designated Industry”),
(ii) divert to any competitor of the Company any customer of the Company, or
(iii) solicit any employee, consultant or independent contractor of the Company to change its relationship with the Company, or hire or offer employment to, or a consulting or independent contractor relationship with, any person to whom Employee actually knows the Company has offered employmentcapacity; provided, however, that nothing contained in this Section 10 shall be deemed to prohibit the Employee from acquiring, solely as an investment, shares of capital stock of any public corporation; (b) neither the Employee nor any Affiliate of the Employee shall solicit or utilize, or assist any person in any way to solicit or utilize, the services, directly or indirectly, of any of the Company's directors, consultants, members of the Board of Scientific and Medical Advisors, officers or employees (collectively, "Associates of the Company"). This nonsolicitation and nonutilization provision does shall not apply to any employee, consultant or independent contractor Associates of the Company who responds to a general solicitation for an advertised position provided Employee has not otherwise engaged in conduct prohibited by this Section 6have previously terminated their relationship with the Company.
6.2 10.1 If the Employee agrees commits a breach, or threatens to be bound by commit a breach, of any of the provisions of this Section 6 in consideration for 10, the Company’s employment of Employee, payment of Company shall have the compensation following rights and benefits provided under Section 3 remedies:
10.1.1 The right and Section 4 above and remedy to have the covenants and agreements set forth herein. The provisions of this Section 6 Agreement specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach shall apply during the term of Employee’s employment with cause irreparable injury to the Company and that money damages shall not provide an adequate remedy to the Company; and
10.1.2 The right and remedy to require the Employee to account for a period of two (2) years following termination of Employee’s employment with and pay over to the Company all compensation, profits, monies, accruals,increments or other benefits (collectively "Benefits") derived or received by the Employee as the result of any transactions constituting a breach of any of the provisions of the preceding paragraph, and the Employee hereby agrees to account for and pay over such Benefits to the Company. Each of the rights and remedies enumerated above shall be independent of the other, and shall be severally enforceable, and all of such rights and remedies shall be in addition to, and not in lieu of, any reasonother rights and remedies available to the Company under law or in equity.
10.2 If any of the covenants contained in Section 8, whether 9 or 10, or any part thereof, is hereafter construed to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect without regard to the invalid portions.
10.3 If any of the covenants contained in Section 8, 9 or 10, or any part thereof, is held to be unenforceable because of the duration of such termination is at the initiative of Employee provision or the Company or before or after expiration of area covered thereby, the Term. The parties agree that the provisions court making such determination shall have the power to reduce the duration and/or area of this Section 6 such provision and, in its reduced form, such provision shall survive any termination of this Agreement, Employee will continue to then be bound by the provisions of this Section 6 until their expiration and Employee shall not be entitled to any compensation from the Company with respect thereto except as provided under this Agreementenforceable.
6.3 Employee acknowledges 10.4 The parties hereto intend to and hereby confer jurisdiction to enforce the covenants contained in Sections 8, 9 and 10 upon the courts of any state within the geographical scope of such covenants. In the event that the provisions courts of this Section 6 are essential to protect the business and goodwill any one or more of the Company. If at such states shall hold any time the provisions of this Section 6 shall be determined to be invalid or such covenant wholly unenforceable by reason of being vague the breadth of such scope or unreasonable otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other states within the geographical scope of such covenants, as to areabreaches of such covenants in such other respective jurisdictions, duration or scope of activitythe above covenants as they relate to each state being, for this Section 6 shall be considered divisible purpose, severable into diverse and shall become and be immediately amended to only such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and Employee agrees that this Section 6 as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included hereinindependent covenants.
Appears in 3 contracts
Sources: Executive Employment Agreement (Ariad Pharmaceuticals Inc), Executive Employment Agreement (Ariad Pharmaceuticals Inc), Executive Employment Agreement (Ariad Pharmaceuticals Inc)
Non-Competition and Non-Solicitation. 6.1 Employee agrees In order to protect the Company’s Proprietary Information and good will, during my employment and for a period of twelve (12) months following the termination of my employment for any reason (the “Restricted Period”), I will not directly or indirectly, whether as owner, partner, shareholder, director, consultant, agent, employee, co-venturer or otherwise, engage, participate or invest in any business activity anywhere in the United States that he researches, develops, manufactures, licenses or markets any products, or performs any services, that are competitive with the products or services of the Company, or products or services that the Company has under development or that are the subject of active planning at any time during my employment; provided that this shall not prohibit any possible investment in publicly traded stock of a company representing less than one percent of the stock of such company or in private investment vehicles for which I do not control any aspect of the investments by such vehicles related to investments in competition. In addition, during the Restricted Period, I will not:
(i) anywhere the Company does business, including but not limited to Williston Basin and the Rocky Mountain Region, engage, directly or indirectly, alone in any manner, other than for the benefit of the Company, (a) divert or take away any of the customers, business or prospective customers of the Company or any of its suppliers, or call upon or solicit in order to do so, and/or (b) solicit, entice or attempt to persuade any other employee or consultant of the Company to leave the services of the Company for any reason or otherwise participate in or facilitate the hire, directly or through another person or entity, of any person who is employed or exclusively engaged by the Company or who was employed or exclusively engaged by the Company within six months of the attempt to hire such person, provided that the foregoing shall not be violated by advertising not targeted at the foregoing in (a) or (b) or by serving as a shareholder (reference upon request. I acknowledge and agree that if I violate any of the provisions of this paragraph 8, the running of the Restricted Period will be extended by the time during which I engage in such violation(s). Notwithstanding the foregoing, after the end of my employment, the obligations above other than as a holder (b) in the preceding sentence shall not apply to my employment by any publicly traded company where the competitive activities of such company comprise less than ten five percent (105%) of the common stock of any publicly traded corporation), partner, officer, director, employee, consultant or advisor, or otherwise in any way participate in or become associated with, any other business organization that is engaged or becomes engaged in any business that is the same or substantially identical business revenues under my supervision measured as of the Company, or is directly competitive with, any business activity that end of the Company is conducting at the time of Employee’s termination or has notified Employee that it proposes to conduct and for which the Company has, fiscal year ending immediately prior to the time my commencement of such termination, expended substantial resources (the “Designated Industry”),
(ii) divert to any competitor of the Company any customer of the Company, or
(iii) solicit any employee, consultant or independent contractor of the Company to change its relationship with the Company, or hire or offer employment to, or a consulting or independent contractor relationship with, any person to whom Employee actually knows the Company has offered employment; provided, however, that this provision does not apply to any employee, consultant or independent contractor of the Company who responds to a general solicitation for an advertised position provided Employee has not otherwise engaged in conduct prohibited by this Section 6.
6.2 Employee agrees to be bound by the provisions of this Section 6 in consideration for the Company’s employment of Employee, payment of the compensation and benefits provided under Section 3 and Section 4 above and the covenants and agreements set forth herein. The provisions of this Section 6 shall apply during the term of Employee’s employment with the Company and for a period of two (2) years following termination of Employee’s employment with the Company for any reason, whether such termination is at the initiative of Employee or the Company or before or after expiration of the Term. The parties agree that the provisions of this Section 6 shall survive any termination of this Agreement, Employee will continue to be bound by the provisions of this Section 6 until their expiration and Employee shall not be entitled to any compensation from the Company with respect thereto except as provided under this Agreementcompany.
6.3 Employee acknowledges that the provisions of this Section 6 are essential to protect the business and goodwill of the Company. If at any time the provisions of this Section 6 shall be determined to be invalid or unenforceable by reason of being vague or unreasonable as to area, duration or scope of activity, this Section 6 shall be considered divisible and shall become and be immediately amended to only such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and Employee agrees that this Section 6 as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included herein.
Appears in 2 contracts
Sources: Executive Employment Agreement (Centrexion Therapeutics Corp), Executive Employment Agreement (Centrexion Therapeutics Corp)
Non-Competition and Non-Solicitation. 6.1 Employee agrees that he will not:
For a period of five (i5) anywhere years following the Company does businessClosing Date, neither Seller nor its affiliates, including but not limited to Williston Basin and the Rocky Mountain RegionShareholder, engage, directly or indirectly, alone shall (individually or as a shareholder (other than as a holder of less than ten percent (10%) of the common stock of any publicly traded corporation)consultant, shareholder, partner, officerventurer, director, employeeofficer, consultant agent or advisorotherwise) (a) engage in the business of operating a janitorial business or any related enterprise that is competitive with the facilities or services offered by the Business within a hundred (100) mile radius from Anytown, USA, or otherwise in (b) solicit, call on or contact any way participate in past (within the past 12 months) or become associated withpresent customers, suppliers or employees of Seller with respect to the Business. In addition, Seller and Shareholder shall keep and maintain all confidential and proprietary information of Seller, including without limitation, financial statements, customer and supplier lists, pricing information, sales and purchases margins and practices, methods of telephone solicitation and similar information regarding the business and affairs of Seller, confidential and shall not disclose such information to any other business organization that is engaged third person or becomes engaged in any business that is the same or substantially identical business of the Companyexploit such information personally except as required under law, or if such information is directly competitive within the public domain. In the event that Seller breaches this Section 13, any business activity that Buyer shall have the Company is conducting at the time of Employee’s termination or has notified Employee that it proposes non-exclusive right and remedy to conduct and for which the Company has, prior have this section specifically enforced to the time extent permitted by any court of such terminationcompetent jurisdiction, expended substantial resources (the “Designated Industry”),
(ii) divert it being acknowledged and agreed that any breach or threatened breach might cause immediate irreparable injury to Buyer and that monetary damages may not provide an adequate remedy at law. If any competitor of the Company any customer of the Company, or
(iii) solicit any employee, consultant or independent contractor of the Company to change its relationship with the Company, or hire or offer employment to, or a consulting or independent contractor relationship with, any person to whom Employee actually knows the Company has offered employment; provided, however, that this provision does not apply to any employee, consultant or independent contractor of the Company who responds to a general solicitation for an advertised position provided Employee has not otherwise engaged in conduct prohibited by this Section 6.
6.2 Employee agrees to be bound by the provisions of this Section 6 in consideration for the Company’s employment of Employee, payment of the compensation and benefits provided under Section 3 and Section 4 above and the covenants and agreements set forth herein. The provisions of this Section 6 shall apply during the term of Employee’s employment with the Company and for a period of two (2) years following termination of Employee’s employment with the Company for any reason, whether such termination is at the initiative of Employee or the Company or before or after expiration of the Term. The parties agree that the provisions of this Section 6 shall survive any termination of this Agreement, Employee will continue to be bound by the provisions of this Section 6 until their expiration and Employee shall not be entitled to any compensation from the Company with respect thereto except as provided under this Agreement.
6.3 Employee acknowledges that the provisions of this Section 6 13 are essential to protect the business and goodwill of the Company. If at any time the provisions of this Section 6 shall be determined construed to be invalid or unenforceable by reason in any jurisdiction, the remainder of being vague or unreasonable as this section shall not be affected, and the court making such a determination shall have the power to area, duration or scope of activity, modify this Section 6 shall be considered divisible 13 and shall become and be immediately amended to only such substitute the maximum duration, scope, or area permissible under the circumstances for the stated duration, scope, or area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and Employee agrees that this Section 6 as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included herein.
Appears in 2 contracts
Non-Competition and Non-Solicitation. 6.1 Employee (a) Seller agrees that he will that, for a period of five (5) years following the Closing Date, it shall not:
(i) anywhere the Company does business, including but and shall cause its Affiliates not limited to Williston Basin and the Rocky Mountain Region, engageto, directly or indirectly, alone own, manage, operate, control or as a shareholder participate in the ownership, management, operation or control of any business, whether in corporate, proprietorship or partnership form or otherwise, engaged in the Business. Notwithstanding the foregoing or any other term or provision in this Agreement to the contrary, (i) Seller shall not be prohibited from participating in the operation of the remaining business and assets of Seller (other than as a holder of less than ten percent the Business) including permitting any Person to advertise with Seller (10%) of the common stock of any publicly traded corporation), partner, officer, director, employee, consultant or advisor, on or otherwise in any way participate in of Seller’s websites, magazines or become associated withjob boards) or attend, exhibit, sponsor or speak at any other business organization that is engaged Seller conference, exhibition, training, class or becomes engaged in any business that is the same or substantially identical business of the Company, or is directly competitive with, any business activity that the Company is conducting at the time of Employee’s termination or has notified Employee that it proposes to conduct webinar and for which the Company has, prior to the time of such termination, expended substantial resources (the “Designated Industry”),
(ii) divert following the expiration of the Non-Competition Period (as defined in the Non-Competition Agreement), this Section 5.13(a) shall only apply to ▇▇▇▇ ▇▇▇▇▇▇▇ in his capacity as an employee, officer and director of Seller and its Subsidiaries (and not in his individual capacity or as an Affiliate of Seller or its Subsidiaries). The parties hereto specifically acknowledge and agree that the remedy at law for any breach of the foregoing will be inadequate and that Purchaser, in addition to any competitor other relief available to it, shall be entitled to temporary and permanent injunctive relief without the necessity of the Company proving actual damage or posting any customer of the Company, orbond whatsoever.
(iiib) Seller and Purchaser each agree that, for a period of three (3) years following the Closing Date, it shall not solicit or induce the employment or services of or hire any employeeemployee of Purchaser or any employee providing services to the Business, consultant or independent contractor in the case of the Company to change its relationship with the CompanySeller, or hire or offer employment toany employee of Seller, or a consulting or independent contractor relationship within the case of Purchaser, any person to whom Employee actually knows without the Company has offered employmentprior written consent of such other party hereto; provided, however, that this provision does general solicitations to the public not apply to any employee, consultant or independent contractor of the Company who responds to directed at such employees shall not be deemed a general solicitation for an advertised position provided Employee has not otherwise engaged in conduct prohibited by this Section 6.
6.2 Employee agrees to be bound by the provisions violation of this Section 6 in consideration for 5.13(b). Notwithstanding the Company’s foregoing, if Seller or Purchaser terminates the employment of Employeeany such employee, payment of Purchaser or Seller, as the compensation and benefits provided under Section 3 and Section 4 above and the covenants and agreements set forth herein. The provisions of this Section 6 shall apply during the term of Employee’s employment with the Company and for a period of two (2) years following termination of Employee’s employment with the Company for any reasoncase may be, whether such termination is at the initiative of Employee or the Company or before or after expiration of the Term. The parties agree that the provisions of this Section 6 shall survive any termination of this Agreement, Employee will continue to be bound by the provisions of this Section 6 until their expiration and Employee shall not be entitled to any compensation from the Company with respect thereto except as provided under this Agreement.
6.3 Employee acknowledges that the provisions of this Section 6 are essential to protect the business and goodwill of the Company. If at any time the provisions of this Section 6 shall be determined permitted to be invalid or unenforceable by reason of being vague or unreasonable as to area, duration or scope of activity, this Section 6 shall be considered divisible and shall become and be immediately amended to only solicit such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and Employee agrees that this Section 6 as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included hereinterminated employee.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Meckler Alan M), Stock Purchase Agreement (Jupitermedia Corp)
Non-Competition and Non-Solicitation. 6.1 Employee agrees that he will not:
(i) anywhere During the Company does business, including but not limited to Williston Basin and the Rocky Mountain Region, engage, directly or indirectly, alone or as a shareholder (other than as a holder of less than ten percent (10%) of the common stock of any publicly traded corporation), partner, officer, director, employee, consultant or advisor, or otherwise in any way participate in or become associated with, any other business organization that is engaged or becomes engaged in any business that is the same or substantially identical business of the Company, or is directly competitive with, any business activity that the Company is conducting at the time of Employee’s termination or has notified Employee that it proposes to conduct and for which the Company has, prior to the time of such termination, expended substantial resources (the “Designated Industry”),
(ii) divert to any competitor of the Company any customer of the Company, or
(iii) solicit any employee, consultant or independent contractor of the Company to change its relationship with the Company, or hire or offer employment to, or a consulting or independent contractor relationship with, any person to whom Employee actually knows the Company has offered employment; provided, however, that this provision does not apply to any employee, consultant or independent contractor of the Company who responds to a general solicitation for an advertised position provided Employee has not otherwise engaged in conduct prohibited by this Section 6.
6.2 Employee agrees to be bound by the provisions of this Section 6 in consideration for the Company’s employment of Employee, payment of the compensation and benefits provided under Section 3 and Section 4 above and the covenants and agreements set forth herein. The provisions of this Section 6 shall apply during the term of Employee’s employment with the Company and for a period of one (1) year following the Termination Date: (a) the Employee shall not in the United States or in any country in which the Company shall then be doing business, directly or indirectly, enter the employ of, or render any services to, any person, firm or corporation engaged in any business that is Competing with the business of the Company or of any of its Subsidiaries or Affiliates of which the Employee may become an employee or officer during the Employee’s employment with the Company; Employee shall not engage in such business on Employee’s own account; and Employee shall not become interested in any such business, directly or indirectly, as an individual, partner, shareholder, director, officer, principal, agent, employee, trustee, consultant, or any other relationship or capacity; provided, however, that nothing contained in this Section 9 shall be deemed to prohibit the Employee from acquiring, solely as an investment, up to two percent (2%) years of the shares of capital stock of any Competing public corporation or from being employed by or associated with (including serving as a consultant to) a subsidiary, division, department, unit or affiliate (each, a “Unit”) of an entity if that Unit is not engaged in any business which is Competing with the business of the Company, irrespective of whether some other Unit of such entity engages in such competition; and (b) the Employee nor any Affiliate of the Employee shall not, directly or indirectly, solicit, entice or persuade, or attempt to solicit, entice or persuade, any directors, key advisors, officers or employees of or consultants to the Company (collectively, “Associates of the Company”) to leave the services of the Company for any reason. This non-solicitation provision shall not apply to Associates of the Company who previously terminated their relationship with the Company. The above covenants will apply to the Employee, regardless of the circumstances under which the employment ends.
9.1 If the Employee commits a breach, or threatens to commit a breach, of any of the provisions of this Section 9, the Company shall have the following rights and remedies:
9.1.1 The right and remedy to have the provisions of this Agreement specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach shall cause irreparable injury to the Company and that money damages shall not provide an adequate remedy to the Company; and
9.1.2 The right and remedy immediately to cease providing the salary continuation payments and other benefits under Sections 6.1 and 6.2 of this Agreement and to require the Employee to repay to the Company any such payments and benefits that already have been provided as of the time the Company learns of Employee’s breach of this Section 9; provided, however, that if the Employee challenges pursuant to Section 12.2 the Company’s enforcement of the provisions of Section 9 and the cessation of salary continuation payments and other benefits under this Section 9.1.2 and the Employee prevails in such action, the Company shall pay the Employee any salary continuation payments and other benefits that were withheld.
9.1.3 The right and remedy and to require the Employee to account for and pay over to the Company all compensation, profits, monies, accruals, increments or other benefits (collectively “Benefits”) derived or received by the Employee as the result of any transactions constituting a breach of any of the provisions of the preceding paragraph, and the Employee hereby agrees to account for and pay over such Benefits to the Company.
9.1.4 The one (1) year post-termination restriction period shall be tolled during any period of such breach or threatened breach. Each of the rights and remedies enumerated above shall be independent of the other, and shall be severally enforceable, and all of such rights and remedies shall be in addition to, and not in lieu of, any other rights and remedies available to the Company under law or in equity.
9.2 If any of the covenants contained in Section 7, 8 or 9, or any part thereof, is hereafter construed to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect without regard to the invalid portions.
9.3 If any of the covenants contained in Section 7, 8 or 9, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties agree that the court making such determination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
9.4 The covenants in Sections 7, 8, and 9 are conditions of Employee’s employment with the Company for Company, and they are not tied to Employee’s performance of any reasonparticular position, whether such termination is at role or job; therefore, the initiative of Employee or the Company or before or after expiration of the Term. The parties agree that the provisions of this Section 6 covenants in Sections 7, 8, and 9 shall survive any termination of this Agreementchange in Employee’s position, Employee will continue to be bound by the provisions of this Section 6 until their expiration and Employee shall not be entitled to any compensation from the Company with respect thereto except as provided under this Agreement.
6.3 Employee acknowledges that the provisions of this Section 6 are essential to protect the business and goodwill of the Company. If at any time the provisions of this Section 6 shall be determined to be invalid title, compensation, benefits, role, or unenforceable by reason of being vague or unreasonable as to area, duration or scope of activity, this Section 6 shall be considered divisible responsibilities and shall become remain in full force and be immediately amended to only effect following any such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and Employee agrees that this Section 6 as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included hereinchange.
Appears in 2 contracts
Sources: Executive Employment Agreement (Ariad Pharmaceuticals Inc), Executive Employment Agreement (Ariad Pharmaceuticals Inc)
Non-Competition and Non-Solicitation. 6.1 Employee Subject to applicable law, the Director agrees that he will not:
(i) anywhere the Company does business, including but not limited to Williston Basin and the Rocky Mountain Region, engage, directly or indirectly, alone or as a shareholder (other than as a holder of less than ten percent (10%) of the common stock of any publicly traded corporation), partner, officer, director, employee, consultant or advisor, or otherwise in any way participate in or become associated with, any other business organization that is engaged or becomes engaged in any business that is the same or substantially identical business of the Company, or is directly competitive with, any business activity that the Company is conducting at the time of Employee’s termination or has notified Employee that it proposes to conduct and for which the Company has, prior to the time of such termination, expended substantial resources (the “Designated Industry”),
(ii) divert to any competitor of the Company any customer of the Company, or
(iii) solicit any employee, consultant or independent contractor of the Company to change its relationship with the Company, or hire or offer employment to, or a consulting or independent contractor relationship with, any person to whom Employee actually knows the Company has offered employment; provided, however, that this provision does not apply to any employee, consultant or independent contractor of the Company who responds to a general solicitation for an advertised position provided Employee has not otherwise engaged in conduct prohibited by this Section 6.
6.2 Employee agrees to be bound by the provisions of this Section 6 in consideration for the Company’s employment of Employee, payment of the compensation and benefits provided under Section 3 and Section 4 above and the covenants and agreements set forth herein. The provisions of this Section 6 shall apply during the term of Employee’s employment with the Company Employment and for a period of two (2) years following the termination of Employeethe Employment for whatever reason:
(i) The Director will not solicit, canvass or approach clients, customers or contacts of the Company or other persons or entities introduced to the Director in the Director’s employment capacity as a representative of the Company for the purposes of doing business with such persons or entities which will harm the business relationship between the Company and such persons and/or entities;
(ii) The Director will not solicit, canvass or approach, or endeavor to solicit, canvass or approach any person who has business communication with the Company for any reasonor its affiliates to terminate such communication, whether such termination is at the initiative of Employee or who has negotiation with the Company or before its affiliates on business cooperation to terminate such negotiation;
(iii) The Director will not solicit, canvass or persuade or endeavor to solicit, canvass or persuade in any way, or intend to or actually disturb the Company’s business in any way or 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 the Company or any of its affiliates; or (2) any current client or supplier of the Company or its affiliates terminates the cooperation with the Company or its affiliates; and
(iv) The Director will not seek, directly or indirectly, by the offer of alternative employment or other inducement whatsoever, to solicit the services of any employee of the Company employed as at or after expiration the date of such termination, or in the Term. year preceding such termination; The parties agree that the provisions of this contained in Section 6 shall survive any termination of this Agreement, Employee will continue to be bound 8(a) are considered reasonable by the provisions of this Section 6 until their expiration Director and Employee shall not be entitled to any compensation from the Company with respect thereto except as provided under this Agreement.
6.3 Employee acknowledges that the provisions of this Section 6 are essential to protect the business and goodwill of the Company. If at In the event that any time the such provisions of this Section 6 shall should be determined found to be invalid or unenforceable by reason of being vague or unreasonable as to area, duration or scope of activity, this Section 6 shall be considered divisible and shall become and be immediately amended to only such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and Employee agrees that this Section 6 as so amended shall 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 make them valid and binding as though any invalid or unenforceable provision had not been included hereineffective.
Appears in 2 contracts
Sources: Director Agreement (Lucas GC LTD), Director Agreement (Jayud Global Logistics LTD)
Non-Competition and Non-Solicitation. 6.1 9.1 During [term of non-compete], the Employee agrees that he will shall not:
, directly or indirectly, own, manage, operate, finance, join, control or otherwise participate in the ownership, management, operation, financing or control of, or in any way be connected as an officer, employee, partner, principal, agent, representative, or consultant, or otherwise with, any business or enterprise engaged anywhere in the world (i) anywhere in any business in which SierraCities was engaged on the Company does businessdate hereof, including but not limited to Williston Basin the business of equipment leasing and the Rocky Mountain Regiondeveloping and operating on-line equipment leasing, engage, directly or indirectly, alone or as a shareholder (other than as a holder of less than ten percent (10%) of the common stock of any publicly traded corporation), partner, officer, director, employee, consultant or advisorcommercial leasing and business financing, or otherwise (ii) in any way participate the ownership or operation of a business in or become associated with, any other business organization that which VerticalNet Credit is engaged or becomes during the Employment Term, nor shall the Employee assist any person that shall be engaged in any such foregoing business activities. The foregoing restriction, however, shall not restrict the Employee's ability to own, as a passive investment, up to 5% of any entity whose equity securities are traded on NASDAQ or on any other national securities exchange. In addition, during [term of non-compete], the Employee shall not solicit any employee of the Company for the purposes of having any such employee terminate his or her employment with the Company. If a court determines that the foregoing restrictions are too broad or otherwise unreasonable under applicable law, including with respect to time or space, the court is hereby requested and authorized by the same or substantially identical business parties hereto to revise the foregoing restriction to include the maximum restrictions allowable under applicable law. The Employee acknowledges that this Section 9.1 has been negotiated by the parties.
9.2 The Employee acknowledges and understands that (i) the Company is, and will be, relying upon the covenants made by the Employee in Section 9.1 in entering into this Agreement, (ii) that any violation of the restrictions contained in Section 9.1 will result in irreparable injury to the Company, (iii) the covenants contained in Section 9.1 are reasonable as to geographic and temporal scope, (iv) that the Company competes in the Business in which it is currently engaged and that Confidential Information known by the Employee makes it necessary for the Company to restrict the Employee's activities in all markets where the Company competes and where the Employee's access to Confidential Information and other proprietary information could be used to the detriment of the Company, or is directly competitive with, any business activity that and (v) the Company is conducting at Employee has the time of Employee’s termination or has notified Employee that it proposes skills and training to conduct and for which be able to continue to earn a livelihood without violating the Company has, prior to the time of such termination, expended substantial resources (the “Designated Industry”),
(ii) divert to any competitor terms of the Company any customer covenants contained in Section 9.1.
9.3 The terms of the Company, or
(iii) solicit any employee, consultant or independent contractor of the Company to change its relationship with the Company, or hire or offer employment to, or a consulting or independent contractor relationship with, any person to whom Employee actually knows the Company has offered employment; provided, however, that this provision does not Section 9 shall apply to any employee, consultant or independent contractor of the Company who responds to a general solicitation for an advertised position provided Employee has not otherwise engaged in conduct prohibited by this Section 6.
6.2 Employee agrees to be bound person controlled by the provisions Employee to the same extent as if it were a party hereto, and each such party shall take whatever actions may be necessary to cause any such party to adhere to the terms of this Section 6 in consideration for the Company’s employment of Employee, payment of the compensation and benefits provided under Section 3 and Section 4 above and the covenants and agreements set forth herein. The provisions of this Section 6 shall apply during the term of Employee’s employment with the Company and for a period of two (2) years following termination of Employee’s employment with the Company for any reason, whether such termination is at the initiative of Employee or the Company or before or after expiration of the Term. The parties agree that the provisions of this Section 6 shall survive any termination of this Agreement, Employee will continue to be bound by the provisions of this Section 6 until their expiration and Employee shall not be entitled to any compensation from the Company with respect thereto except as provided under this Agreement9.
6.3 Employee acknowledges that the provisions of this Section 6 are essential to protect the business and goodwill of the Company. If at any time the provisions of this Section 6 shall be determined to be invalid or unenforceable by reason of being vague or unreasonable as to area, duration or scope of activity, this Section 6 shall be considered divisible and shall become and be immediately amended to only such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and Employee agrees that this Section 6 as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included herein.
Appears in 2 contracts
Sources: Employment Agreement (Sierracities Com Inc), Employment Agreement (Verticalnet Inc)
Non-Competition and Non-Solicitation. 6.1 Employee agrees You agree that he during your employment with the Company and for the 12-month period of time following the termination of your employment with the Company, you will not:
(i) anywhere , without the Company does business, including but not limited to Williston Basin and prior written consent of the Rocky Mountain Region, engageCEO, directly or indirectly:
(a) own, alone control, manage, loan money to, represent, render any service or advice to or act as a shareholder (other than as a holder of less than ten percent (10%) of the common stock of any publicly traded corporation), partner, an officer, director, employee, consultant or advisoragent, or otherwise in any way participate in or become associated withrepresentative, any other business organization that is engaged or becomes engaged in any business that is the same or substantially identical business of the Company, or is directly competitive with, any business activity that the Company is conducting at the time of Employee’s termination or has notified Employee that it proposes to conduct and for which the Company has, prior to the time of such termination, expended substantial resources (the “Designated Industry”),
(ii) divert to any competitor of the Company any customer of the Company, or
(iii) solicit any employee, consultant partner or independent contractor of any securities exchange, “ECN” or other such entity or similar direct seller of market data in the financial services business, whose business competes with the businesses of the Company to change or its relationship with the Companymajority-owned subsidiaries, in North America or Europe as such businesses were being conducted, or hire or offer employment to, or a consulting or independent contractor relationship with, any person to whom Employee actually knows which the Company has offered employmentwas actively planning to enter, during your employment if the breach or alleged breach occurs during your employment or on the date of your termination of employment if the breach or alleged breach occurs thereafter (“Competitive Activities”); provided, however, that (i) the foregoing shall not prohibit you from passive ownership of securities in any publicly traded company that is engaged in any such business as long as you do not own more than five percent (5%) or more of any class of the equity securities of such company, and (ii) nothing in this provision Agreement shall preclude you from accepting employment with, or providing services to, any entity that engages in Competitive Activities so long as you work solely in a subsidiary, division or other distinct unit of such any entity, including an Affiliate, that does not apply engage, and is not actively planning to engage, in Competitive Activities.
(b) Solicit, induce, influence, encourage, or attempt to solicit, induce, influence or encourage, either directly or indirectly, any employeeperson who is, consultant at the time of such solicitation, inducement, influence, encouragement or independent contractor attempt, or was during the previous six months, employed by the Company to terminate his or her employment relationship with the Company or hire or employ or engage any such person or otherwise interfere with any such person’s employment by or association with the Company;
(c) Induce, influence, encourage, or attempt to induce, influence or encourage, either directly or indirectly, any third party to terminate such party’s business relationship with the Company or otherwise interfere with any business or contractual relationship of the Company; or
(d) Serve as a board member on any board of directors of any company engaged in Competitive Activities, except as provided in Section 4(a)(ii). You acknowledge and agree that: (i) the purposes of the foregoing covenants are to protect the goodwill and confidential or proprietary information and trade secrets of the Company, and to prevent you from interfering with the business of the Company; (ii) it would be impractical and excessively difficult to determine the actual damages of the Company who responds to a general solicitation for an advertised position provided Employee has not otherwise engaged in conduct prohibited by this Section 6.
6.2 Employee agrees to be bound by the provisions event you breach any of the covenants of this Section 6 in consideration 4; (iii) remedies at law for any breach of your obligations under this Section 4 would be inadequate; and (iv) the Company’s employment of Employee, payment terms of the compensation covenants are sufficiently limited to protect the legitimate interests of the Company and benefits provided impose no undue hardship on you. You therefore agree that if you commit any breach of a covenant under Section 3 and this Section 4 above or threaten to commit any such breach, the Company shall have the right (in addition to any other right or remedy that may be available to it) to injunctive relief from a court of competent jurisdiction located in the State of New York or otherwise, without posting any bond or other security and without the covenants and agreements set forth hereinnecessity of proof of actual damage. The provisions With respect to any provision of this Section 6 shall apply during the term 4 finally determined by a court of Employee’s employment with the Company and for a period of two (2) years following termination of Employee’s employment with the Company for any reason, whether such termination is at the initiative of Employee or the Company or before or after expiration of the Term. The parties agree that the provisions of this Section 6 shall survive any termination of this Agreement, Employee will continue competent jurisdiction to be bound by the provisions of unenforceable, this Section 6 until their expiration and Employee shall not be entitled to Agreement or any compensation from the Company with respect thereto except as provided under this Agreement.
6.3 Employee acknowledges that the provisions of this Section 6 are essential to protect the business and goodwill of the Company. If at any time the provisions of this Section 6 provision hereof shall be determined reformed so that it is enforceable to be invalid or unenforceable the maximum extent permitted by reason of being vague or unreasonable as to area, duration or scope of activity, this Section 6 shall be considered divisible and shall become and be immediately amended to only such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and Employee agrees that this Section 6 as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included hereinlaw.
Appears in 2 contracts
Sources: Employment Agreement (NYSE Euronext), Employment Agreement (NYSE Euronext)
Non-Competition and Non-Solicitation. 6.1 3.1. Employee agrees hereby covenants to the Company that he will throughout the Term and thereafter for a period of six (6) months following the effective date of termination of Employee’s employment howsoever arising, Employee shall not:
(i) anywhere the Company does business, including but not limited to Williston Basin and the Rocky Mountain Region, engage3.1.1. Engage, directly or indirectly, alone in any capacity whatsoever, whether independently or as a shareholder (other than as a holder of less than ten percent (10%) of the common stock of any publicly traded corporation), partner, officer, director, an employee, consultant or advisorotherwise, through any corporate body and/or with or otherwise through others, in any way participate in or become associated with, any other business organization that is engaged or becomes engaged in any business that is activity competing with the same or substantially identical business of the Company, or is directly competitive with, any business activity that the Company is conducting at the time of Employee’s termination or has notified Employee that it proposes to conduct and for which the Company has, prior to the time of such termination, expended substantial resources (the “Designated Industry”),
(ii) divert to any competitor actual and/or planned activities of the Company any customer of the Companyand its affiliates, or
(iii) solicit any employee, consultant or independent contractor of the Company as same have existed and shall exist from time to change its relationship with the Company, or hire or offer employment to, or a consulting or independent contractor relationship with, any person to whom Employee actually knows the Company has offered employment; provided, however, that this provision does not apply to any employee, consultant or independent contractor of the Company who responds to a general solicitation for an advertised position provided Employee has not otherwise engaged in conduct prohibited by this Section 6.
6.2 Employee agrees to be bound by the provisions of this Section 6 in consideration for the Company’s employment of Employee, payment of the compensation and benefits provided under Section 3 and Section 4 above and the covenants and agreements set forth herein. The provisions of this Section 6 shall apply time during the term Term and as shall exist at the effective date of Employee’s employment with the Company and for a period of two (2) years following termination of Employee’s employment with the Company.
3.1.2. Accept any position, whether as employee, consultant or otherwise with, or hold any interest in, any corporate body that competes with the actual and/or planned activities of the Company as same shall exist at the termination of his employment under this Agreement; provided, however, that nothing stated herein shall preclude Employee from owning a stock interest not greater than 5% in any publicly traded corporation.
3.1.3. Whether on Employee’s own account and/or on behalf of others, in any way interfere with and/or endeavor to entice away, or offer or solicit for the purpose of so interfering and/or enticing away, from the Company and/or any of its affiliates, any person, firm or company with whom the Company and/or any of its affiliates shall have any contractual and/or commercial relationship as an employee, consultant, licenser, joint venture, supplier, customer, distributor, agent or contractor of whatsoever nature, existing or under negotiation on, or within the twelve (12) months prior to, the effective date of termination of Employee’s employment with the Company.
3.2. Employee acknowledges that the restrictions set forth in this Section 3 are fair and reasonable, and are essential for protection of the Company’s business, the Company’s proprietary rights and other legitimate interests of the Company, in view of the nature of the business in which the Company is engaged. Employee further acknowledges that the above restrictions are customarily complied with by persons situated in a similar position, correspond with fair dealing requirements and are adequate in light of Employee’s usage of the Company resources during Employee’s employment hereunder.
3.3. Employee is aware of and acknowledges that Employee’s obligations under Section 3.1 are derived from Employee’s access to the Company’s Propriety Information and confidential information and that a portion of the salary paid to the Employee pursuant to the Employment Agreement constitutes a special consideration given to Employee in return for the aforesaid undertakings.
3.4. If any one or more of the terms contained in this Section 3 shall, for any reason, whether such termination is at the initiative of Employee or the Company or before or after expiration of the Term. The parties agree that the provisions of this Section 6 shall survive any termination of this Agreement, Employee will continue be held to be bound by excessively broad with regard to time, geographic scope or activity, the provisions of this Section 6 until their expiration and Employee shall not be entitled to any compensation from the Company with respect thereto except as provided under this Agreement.
6.3 Employee acknowledges that the provisions of this Section 6 are essential to protect the business and goodwill of the Company. If at any time the provisions of this Section 6 term shall be determined construed in a manner to enable it to be invalid or unenforceable by reason of being vague or unreasonable as enforced to area, duration or scope of activity, this Section 6 shall be considered divisible and shall become and be immediately amended to only such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and Employee agrees that this Section 6 as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included hereinextent compatible with applicable law.
Appears in 2 contracts
Sources: Employment Agreement (Playtika Holding Corp.), Employment Agreement (Playtika Holding Corp.)
Non-Competition and Non-Solicitation. 6.1 Employee (a) Throughout the period from the Grant Date to the Vesting Date or, if earlier, to the first anniversary of the Participant’s termination of employment for any reason (the “Non-Compete Period”), the Participant agrees that he will not:
(i) anywhere , except on behalf of the Company does businessor any Subsidiary (collectively, including but not limited to Williston Basin and the Rocky Mountain Region, engage“Control Group”) or with the written consent of a member the Control Group: (a) engage in any business activity, directly or indirectly, alone on his own behalf or as a shareholder partner, stockholder (other than as a holder except by ownership of less than ten percent (10%) 1% of the common outstanding stock of any a publicly traded held corporation), partnerdirector, officertrustee, directorprincipal, agent, employee, consultant or advisorotherwise of any person, firm or otherwise corporation, which is engaged in any way participate activity in or become associated with, any other business organization that which the Control Group is engaged at the time; or becomes engaged (b) allow the use of his name by or in connection with any business that is competitive with any activity in which the same or substantially identical business Control Group is engaged.
(b) Throughout the period from the Grant Date to the first anniversary of the Company, or is directly competitive with, any business activity that the Company is conducting at the time of EmployeeParticipant’s termination or has notified Employee that it proposes to conduct and of employment for which the Company has, prior to the time of such termination, expended substantial resources any reason (the “Designated IndustryNon-Solicit Period”),
(ii) divert , the Participant agrees that he will not, except on behalf of the Control Group or with the written consent of a member of the Control Group, offer employment to or employ, for himself or on behalf of any competitor of the Control Group, any person who at any time within the prior three years shall have been employed by the Control Group.
(c) In the event that the Participant violates any of these restrictive covenants, (i) the Award (whether or not vested) will be cancelled and forfeited in its entirety; and (ii) to the extent the Award has vested, the Participant shall pay to the Company any customer within 90 days of the Company, or
(iii) solicit any employee, consultant or independent contractor ’s request an amount equal to the Fair Market Value of the Company to change its relationship with the Company, or hire or offer employment to, or a consulting or independent contractor relationship with, any person to whom Employee actually knows the Company has offered employment; provided, however, that this provision does not apply to any employee, consultant or independent contractor of the Company who responds to a general solicitation for an advertised position provided Employee has not otherwise engaged in conduct prohibited by this Section 6.
6.2 Employee agrees to be bound by the provisions of this Section 6 in consideration for the Company’s employment of Employee, payment of the compensation and benefits provided under Section 3 and Section 4 above and the covenants and agreements set forth herein. The provisions of this Section 6 shall apply during the term of Employee’s employment with the Company and for a period of two (2) years following termination of Employee’s employment with the Company for any reason, whether such termination is at the initiative of Employee or the Company or before or after expiration of the TermShares. The parties agree acknowledge that this Section 7 is fair and reasonable under the circumstances. It is the desire and intent of the parties that the provisions of this Section 6 7 shall survive be enforced to the fullest extent permitted by law. Accordingly, if any termination of this Agreement, Employee will continue to be bound by the provisions particular portion of this Section 6 until their expiration and Employee shall not be entitled to any compensation from the Company with respect thereto except as provided under this Agreement.
6.3 Employee acknowledges that the provisions of this Section 6 are essential to protect the business and goodwill of the Company. If at any time the provisions of this Section 6 7 shall be determined adjudicated to be invalid or unenforceable by reason of being vague or unreasonable as to area, duration or scope of activityunenforceable, this Section 6 7 shall be considered divisible and shall become and be immediately deemed amended to: (1) reform the particular portion to only provide for such area, duration and scope of activity maximum restrictions as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and Employee agrees that this Section 6 as so amended shall will be valid and binding as though any enforceable, or if that is not possible, (2) delete the portion found invalid or unenforceable provision had not been included hereinunenforceable, such reformation or deletion to apply only with respect to the operation of this Section 7 in the particular jurisdiction in which such adjudication is made. During the Participant’s employment, the covenants contained in this Section 7 shall apply without regard to geographic location. Upon the termination of the Participant’s employment, the covenants contained in this Section 7 shall be limited to a twenty-five (25) mile radius of any office of the Control Group.
Appears in 2 contracts
Sources: Restricted Stock Award Agreement (First Defiance Financial Corp), Restricted Stock Award Agreement (First Defiance Financial Corp)
Non-Competition and Non-Solicitation. 6.1 Employee agrees that he Except as otherwise set forth in this Section 4, during the period beginning on the date hereof and ending on the earlier of the Termination Date (as defined below) and May 31, 2007 (the “Term”) I will not:
, (ia) anywhere the Company does business, including but not limited to Williston Basin and the Rocky Mountain Region, engagein any manner, directly or indirectly, alone as an employee, employer, consultant, agent, principal, partner, manager, stockholder, officer, director, or as a shareholder in any other individual or representative capacity, engage in or become interested in any business (other than as a holder of less than ten i) whose primary business is developing, marketing and/or selling mobile platform application software (for this purpose wireless carriers and email providers shall not be deemed businesses whose primary business is developing, marketing and/or selling mobile platform application software per se) or (ii) that develops, markets and/or sells mobile wagering or gambling software; provided, however, you may own up to five percent (105%) of the common listed and outstanding capital stock of any publicly traded corporation)company; (b)solicit or entice or attempt to solicit or entice away from the Company any of its employees to enter into employment or services with any person, partnerbusiness, officer, director, employee, consultant firm or advisor, or otherwise in any way participate in or become associated with, any corporation other business organization that is engaged or becomes engaged in any business that is the same or substantially identical business of than the Company, ; or is directly competitive with, any business activity that the Company is conducting at the time of Employee’s termination (b) solicit or has notified Employee that it proposes entice or attempt to conduct and for which the Company has, prior to the time of such termination, expended substantial resources (the “Designated Industry”),
(ii) divert to any competitor of solicit or entice away from the Company any customer of the Companyor any other person, or
(iii) solicit firm or corporation whom you have contacted at any employee, consultant or independent contractor of the Company to change its relationship with the Company, or hire or offer employment to, or a consulting or independent contractor relationship with, any person to whom Employee actually knows the Company has offered employment; provided, however, that this provision does not apply to any employee, consultant or independent contractor of the Company who responds to a general solicitation for an advertised position provided Employee has not otherwise engaged in conduct prohibited by this Section 6.
6.2 Employee agrees to be bound by the provisions of this Section 6 in consideration for the Company’s employment of Employee, payment of the compensation and benefits provided under Section 3 and Section 4 above and the covenants and agreements set forth herein. The provisions of this Section 6 shall apply time during the term last six months on behalf of Employee’s employment with Company. In the Company and for a period of two (2) years following termination of Employee’s employment with the Company for any reason, whether such termination is at the initiative of Employee or the Company or before or after expiration of the Term. The parties agree event that the provisions of this Section 6 4 should ever be deemed to exceed the time or geographic limitations or any other limitations permitted by applicable laws, then such provisions shall survive any termination of this Agreement, Employee will continue be deemed reformed to be bound the maximum permitted by applicable laws. In the provisions of this Section 6 until their expiration and Employee shall not be entitled event I introduce a new client to any compensation from the Company with respect thereto except as provided under this Agreement.
6.3 Employee acknowledges that and the provisions of this Section 6 are essential Company chooses not to protect the business and goodwill seek an engagement from such potential client, I shall be free to introduce such client to another possible solution provider including a competitor of the Company. If I specifically acknowledge and agree that (x) the foregoing covenant is an essential element of this Agreement and that, but for my agreement to comply with such covenants, the Company would not have entered into the Mutual Separation Agreement or the Consultant Agreement; (y) the remedy at law for any time breach of the provisions foregoing covenant will be inadequate; and (z) the Company, in addition to any other relief available to it, shall be entitled to temporary and permanent injunctive relief in the event I violate any of the terms of this Section 6 4. Termination Date shall be determined to be invalid or unenforceable by reason mean the date on which my Consulting Agreement with the Company is terminated as set forth in Paragraph 9 of being vague or unreasonable as to area, duration or scope of activity, this Section 6 shall be considered divisible and shall become and be immediately amended to only such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and Employee agrees that this Section 6 as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included hereinConsulting Agreement.
Appears in 2 contracts
Sources: Consulting Agreement (Sona Mobile Holdings Corp), Mutual Separation Agreement (Sona Mobile Holdings Corp)
Non-Competition and Non-Solicitation. 6.1 Employee agrees that he will not, directly or indirectly:
(i) anywhere within the Company does business, including but not limited to Williston Basin and the Rocky Mountain RegionUnited States, engage, directly or indirectly, alone or as a shareholder (other than as a holder of less than ten five percent (105%) of the common stock of any publicly traded corporation), partner, officer, director, employee, consultant or advisor, or otherwise in any way participate in or become associated with, any other business organization that is engaged or becomes engaged in any business that is the same or substantially identical business of the Company, or is directly competitive with, any business activity that the Company is conducting at the time of the Employee’s termination or has notified the Employee that it proposes to conduct and for which the Company has, prior to the time of such termination, expended substantial resources (the “Designated Industry”),
(ii) divert solicit any operator or holder of mineral or other land rights to any competitor of change, terminate, or alter its relationship with the Company or induce any customer of such operator or holder to not renew any then existing relationship with the Company, or
(iii) solicit any employee, consultant consultant, or independent contractor operator of the Company to change its relationship with the Company, or hire or offer employment to, or a consulting or independent contractor relationship with, to any person to whom the Employee actually knows the Company has offered employment; provided, however, that this provision does not apply to any employee, consultant or independent contractor of the Company who responds to a general solicitation for an advertised position provided Employee has not otherwise engaged in conduct prohibited by this Section 6.
6.2 Employee agrees to be bound by the provisions of this Section 6 in consideration for the Company’s employment of Employee, payment of the compensation and benefits provided under Section 3 and Section 4 above and the covenants and agreements set forth herein. The provisions of this Section 6 shall apply during the term of Employee’s employment with the Company and for a period of two one (21) years year following termination of the Employee’s employment; provided, however, that the provisions of this Section 6 shall cease to apply immediately upon any “change in control” or in the event that the Company terminates Employee’s employment with for any reason other than for Cause. For the purposes of this Agreement, a “change in control” shall mean (i) the consummation of a reorganization, merger, share exchange, consolidation or similar transaction, or the sale or disposition of all or substantially all of the assets of the Company, unless, in any case, the persons beneficially owning the voting securities of the Company for any reasonimmediately before the transaction beneficially own, whether such termination is directly or indirectly, immediately after the transaction, at least fifty percent (50%) of the initiative voting securities of Employee or the Company or before any other corporation or after expiration other entity resulting from or surviving the transaction in substantially the same proportion as their respective ownership of the Termvoting securities of the Company immediately prior to the transaction. The parties agree that the provisions of this Section 6 shall survive any termination of this Agreement, Employee will continue to be bound by the provisions of this Section 6 until their expiration and Employee shall not be entitled to any compensation from the Company with respect thereto except as provided under this Agreement.
6.3 Employee acknowledges that the provisions of this Section 6 are essential to protect the business and goodwill of the Company. If at any time the provisions of this Section 6 shall be determined to be invalid or unenforceable by reason of being vague or unreasonable as to area, duration or scope of activity, this Section 6 shall be considered divisible and shall become and be immediately amended to only such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and the Employee agrees that this Section 6 as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included herein.
Appears in 2 contracts
Sources: Employment Agreement (Voyager Oil & Gas, Inc.), Employment Agreement (Voyager Oil & Gas, Inc.)
Non-Competition and Non-Solicitation. 6.1 Employee agrees that he will not:
(i) anywhere In recognition of the Company does businessconsideration set forth herein, including but not limited the sufficiency of which is hereby acknowledged, Executive hereby covenants and agrees that, subject to Williston Basin extension as set forth below, while employed during the Term and for one (1) year after Executive’s termination of employment for any reason (the Rocky Mountain Region“Non-Compete Term”), engageExecutive shall not, either directly or indirectly, alone individually or as a shareholder by or through any Covered Entity, whether for consideration or otherwise: (other than as a holder of less than ten percent 1) engage in (10%) except on behalf of the common stock Company or any of any publicly traded corporationits Subsidiaries or Affiliates), partneror compete with the Company or any of its Subsidiaries or Affiliates in, a Competing Business anywhere in the Territory; or (2) form or assist others in forming, be employed by, perform services for, become an officer, director, employeemember or partner of, or participant in, or consultant or advisorindependent contractor to, or otherwise in any way participate invest in or become associated withown any interest in (whether through equity or debt securities), assist (financially or otherwise) or lend Executive’s name, counsel or assistance to any entity engaged in a Competing Business anywhere in the Territory. Notwithstanding the foregoing, Executive’s continuance of service in the Existing Board Positions shall not be a violation of this Section 4(k).
(ii) Also in recognition of the consideration set forth herein, Executive hereby covenants and agrees that, during the Non-Compete Term, Executive shall not, either directly or indirectly, individually or by or through any Covered Entity, whether for consideration or otherwise: (A) solicit or accept business from any Customer or Prospective Customer, in each case, for the purpose of providing goods or services in a Competing Business, (B) solicit or induce any Customer to terminate, reduce or alter, in a manner adverse to the Company, any other existing business organization that is engaged arrangement or becomes engaged in any business that is the same or substantially identical business of agreement with the Company, or (C) solicit, hire, attempt to solicit or attempt to hire any person who is directly competitive with, any business activity that the Company is conducting at the time of Employee’s termination or has notified Employee that it proposes to conduct and for which the Company has, prior to the time of such termination, expended substantial resources (the “Designated Industry”),
(ii) divert to any competitor of the Company any customer of the Company, or
(iii) solicit any was an employee, third party consultant or independent contractor of the Company to change or any of its relationship with the Company, Subsidiaries or hire or offer employment to, or a consulting or independent contractor relationship with, any person to whom Employee actually knows the Company has offered employment; provided, however, that this provision does not apply to any employee, consultant or independent contractor of the Company who responds to a general solicitation for an advertised position provided Employee has not otherwise engaged in conduct prohibited by this Section 6.
6.2 Employee agrees to be bound by the provisions of this Section 6 in consideration for the Company’s employment of Employee, payment of the compensation and benefits provided under Section 3 and Section 4 above and the covenants and agreements set forth herein. The provisions of this Section 6 shall apply during the term of Employee’s employment with the Company and for a period of two (2) years following termination of Employee’s employment with the Company for any reason, whether such termination is at the initiative of Employee or the Company or before or after expiration of the Term. The parties agree that the provisions of this Section 6 shall survive any termination of this Agreement, Employee will continue to be bound by the provisions of this Section 6 until their expiration and Employee shall not be entitled to any compensation from the Company with respect thereto except as provided under this Agreement.
6.3 Employee acknowledges that the provisions of this Section 6 are essential to protect the business and goodwill of the Company. If Affiliates at any time during the provisions of 24 months prior to such solicitation or hiring. The restrictions set forth in this Section 6 4(k)(ii) shall be determined not prohibit any form of general advertising or solicitation that is not directed at a specific person or entity and does not relate to a Competing Business.
(iii) Executive agrees that the payment of any severance, including Without Cause Severance Pay or Good Reason Severance Pay, is conditioned on Executive’s compliance with Sections 4(h), 4(i), 4(j), 4(k) and 4(l) and that, if Executive breaches any of those sections, Executive (A) forfeits his rights to receive any Without Cause Severance Pay or Good Reason Severance Pay and (B) will repay, or cause to be invalid repaid, to the Company the full amount of any severance, including Without Cause Severance Pay or unenforceable by reason of being vague or unreasonable as to area, duration or scope of activity, this Section 6 shall be considered divisible and shall become and be immediately amended to only such area, duration and scope of activity as shall be determined to be reasonable and enforceable Good Reason Severance Pay paid by the court or other body having jurisdiction over Company to him prior to the matter; and Employee agrees that this Section 6 as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included hereindate of such breach.
Appears in 2 contracts
Sources: Executive Employment Agreement (TriSalus Life Sciences, Inc.), Executive Employment Agreement (TriSalus Life Sciences, Inc.)
Non-Competition and Non-Solicitation. 6.1 Employee In consideration of the Company’s entering into this Agreement, Executive agrees that he will during the Employment Term and for a period of twelve (12) months after the termination of the Employment Term, without regard to its termination for any reason which does not constitute a breach of this Agreement by the Company or a resignation for Good Reason by Executive, Executive shall not, unless acting pursuant hereto or with the prior written consent of the Board:
(ia) anywhere the Company does business, including but not limited to Williston Basin and the Rocky Mountain Region, engage, directly or indirectly, alone own, manage, operate, finance, join, control or participate in the ownership, management, operation, financing or control of, or be connected as a shareholder (other than as a holder of less than ten percent (10%) of the common stock of any publicly traded corporation), partner, an officer, director, employee, partner, principal, agent, representative, consultant or advisorotherwise with, or otherwise use or permit Executive’s name to be used in connection with any Competing Business (defined below) within any state in which the Company, and/or its affiliates, currently engage in any way participate Substantial Business Activity (defined below) or any state in or become associated withwhich the Company, any other business organization that is engaged or becomes and/or its affiliates, engaged in any business that is Substantial Business Activity during the same or substantially identical business of thirty-six month period preceding the Company, or is directly competitive with, any business activity that the Company is conducting at the time of Employeedate Executive’s termination or has notified Employee that it proposes to conduct and for which the Company has, prior to the time of such termination, expended substantial resources (the “Designated Industry”),
(ii) divert to any competitor of the Company any customer of the Company, or
(iii) solicit any employee, consultant or independent contractor of the Company to change its relationship with the Company, or hire or offer employment to, or a consulting or independent contractor relationship with, any person to whom Employee actually knows the Company has offered employmentterminates; provided, however, that notwithstanding the foregoing, this provision does not apply to any employee, consultant or independent contractor of the Company who responds to a general solicitation for an advertised position provided Employee has not otherwise engaged in conduct prohibited by this Section 6.
6.2 Employee agrees to be bound by the provisions of this Section 6 in consideration for the Company’s employment of Employee, payment of the compensation and benefits provided under Section 3 and Section 4 above and the covenants and agreements set forth herein. The provisions of this Section 6 shall apply during the term of Employee’s employment with the Company and for a period of two (2) years following termination of Employee’s employment with the Company for any reason, whether such termination is at the initiative of Employee or the Company or before or after expiration of the Term. The parties agree that the provisions of this Section 6 shall survive any termination of this Agreement, Employee will continue to be bound by the provisions of this Section 6 until their expiration and Employee shall not be entitled construed to prohibit the passive ownership by Executive of not more than five percent (5%) of the capital stock of any corporation which is engaged in any Competing Business having a class of securities registered pursuant to the Exchange Act; or
(b) solicit or divert to any compensation from the Company with respect thereto except as provided under this Agreement.
6.3 Employee acknowledges that the provisions of this Section 6 are essential to protect the business and goodwill Competing Business any individual or entity which is an active or prospective customer of the Company. If , and/or its affiliates, or was such an active or prospective customer at any time during the provisions preceding twelve (12) months; or
(c) employ, attempt to employ, solicit or assist any Competing Business in employing any employee of this Section 6 shall be determined to be invalid the Company, and/or its affiliates, whether as an employee or unenforceable by reason of being vague or unreasonable as to area, duration or scope of activity, this Section 6 shall be considered divisible and shall become and be immediately amended to only such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and Employee agrees that this Section 6 as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included hereinconsultant.
Appears in 2 contracts
Sources: Employment Agreement (Independence Realty Trust, Inc), Employment Agreement (Independence Realty Trust, Inc)
Non-Competition and Non-Solicitation. 6.1 Employee agrees that he will 3.1. During the Participant’s Service and during the twenty-four (24)-month period immediately following the termination of the Participant’s Service (in the aggregate, the “Restricted Period”), the Participant shall not:
(i) anywhere the Company does business, including but not limited to Williston Basin and the Rocky Mountain Region, engage, directly or indirectly, alone whether as owner, partner, investor, consultant, agent, employee, co-venturer or as a shareholder otherwise, compete with the Company or any of its Affiliates in any geographic area in which the Company or any of its Affiliates does business or is actively planning to do business during the Participant’s Service or, with respect to the portion of the Restricted Period that follows the termination of the Participant’s Service, at the time the Participant’s Service terminates (the “Restricted Area”), or undertake any planning for any business competitive with the Company or any of its Affiliates in the Restricted Area.
3.2. During the Restricted Period, the Participant will not directly or indirectly (i) solicit or encourage any customer (other than as a holder of less than ten percent retail consumer who is a natural person), vendor, supplier, manufacturer or other business partner (10%collectively “Business Partners” and each, a “Business Partner”) of the common stock Company or any of any publicly traded corporation), partner, officer, director, employee, consultant its Affiliates to terminate or advisor, diminish its relationship with them; or otherwise in any way participate in or become associated with, any other business organization that is engaged or becomes engaged in any business that is the same or substantially identical business of the Company, or is directly competitive with, any business activity that the Company is conducting at the time of Employee’s termination or has notified Employee that it proposes to conduct and for which the Company has, prior to the time of such termination, expended substantial resources (the “Designated Industry”),
(ii) divert seek to persuade any competitor such Business Partner, or any prospective Business Partner of the Company or any customer of the Companyits Affiliates, or
(iii) solicit to conduct with anyone else any employee, consultant business or independent contractor of activity which such Business Partner or such prospective Business Partner conducts or could conduct with the Company to change or any of its relationship with the Company, or hire or offer employment to, or a consulting or independent contractor relationship with, any person to whom Employee actually knows the Company has offered employmentAffiliates; provided, however, that this provision does not these restrictions shall apply (y) only with respect to any employee, consultant those Persons who are or independent contractor have been a Business Partner of the Company who responds to a general solicitation for an advertised position provided Employee has not otherwise engaged in conduct prohibited or any of its Affiliates at any time within the two (2)-year period immediately preceding the activity restricted by this Section 6.
6.2 Employee agrees to be bound by the provisions of this Section 6 in consideration for the Company’s employment of Employee, payment 3.2 or whose business has been solicited on behalf of the compensation Company or any of the Affiliates by any of their officers, employees or agents within such two (2)-year period, other than by form letter, blanket mailing or published advertisement, and benefits provided under Section 3 and Section 4 above and (z) only if the covenants and agreements set forth herein. The provisions of this Section 6 shall apply Participant has performed work for such Person during the term of EmployeeParticipant’s employment Service with the Company and for or any of its Affiliates or been introduced to, or otherwise had contact with, such Person as a period result of two (2) years following termination of Employeethe Participant’s employment Service or other associations with the Company or any of its Affiliates or has had access to Confidential Information which would assist in the Participant’s solicitation of such Person.
3.3. During the Restricted Period, the Participant will not, directly or indirectly, (i) employ or engage, or solicit for employment or engagement, any reason, whether such termination is at the initiative of Employee or Person who was employed by the Company or before or after expiration any of the Term. The parties agree that the provisions of this Section 6 shall survive any termination of this Agreement, Employee will continue to be bound by the provisions of this Section 6 until their expiration and Employee shall not be entitled to any compensation from the Company with respect thereto except as provided under this Agreement.
6.3 Employee acknowledges that the provisions of this Section 6 are essential to protect the business and goodwill of the Company. If its Affiliates at any time during the provisions Participant’s Service or, with respect to the portion of this Section 6 the Restricted Period that follows termination of the Participant’s Service, within the twelve (12)-month period immediately preceding the date of termination, or (ii) solicit or encourage any independent contractor providing services to the Company or any of its Affiliates to terminate or diminish its relationship with them; provided, however, that the foregoing shall be determined not apply with respect to the Participant (a) soliciting any such Person who has not been employed or engaged by the Company or any of its Affiliates for at least twelve (12) months or (b) causing to be invalid placed any general advertisements in newspapers and/or other media of general circulation (including advertisements posted on the Internet or unenforceable by reason of being vague or unreasonable as to area, duration or scope of activity, this Section 6 shall be considered divisible and shall become and be immediately amended to only social media) that are not targeted specifically at any such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and Employee agrees that this Section 6 as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included hereinPersons.
Appears in 1 contract
Sources: Nonqualified Stock Option Award Agreement (Olaplex Holdings, Inc.)
Non-Competition and Non-Solicitation. 6.1 Employee agrees (a) Beginning on the Closing and for a period of five (5) years thereafter, the Founder and the Sellers shall not, and shall cause their respective Affiliates not to, directly or indirectly (including through any Affiliate or other Person, by Contract or otherwise), own any interest in, control, manage, direct or operate any business that he will not:
engages in a Competing Activity in the United States, Canada or in any other jurisdiction in which the Company Group has operations or conducts business as of the Closing Date; provided, that the foregoing shall not in any manner restrict or be otherwise deemed to limit (i) anywhere the Company Founder, Sellers or any of their respective Affiliates from acquiring, holding of investments or direct or indirect ownership of any Equity Interests in any Person engaged in a Competing Activity, so long as (x) such ownership interest represents not more than five (5) percent of the aggregate voting power or outstanding Equity Interests of such Person, and (y) the Founder, the applicable Seller or Affiliate (including through any Affiliate or other Person) does businessnot directly or indirectly control, including but not limited manage, direct or operate the business of such Person, (ii) purchasing goods or services as a consumer from any business engaged in a Competing Activity, or (iii) for the avoidance of doubt, the provision of insurance to Williston Basin aircraft and other participants in the aviation industry.
(b) Beginning on the Closing and for a period of five (5) years thereafter, (i) the Founder and the Rocky Mountain RegionSellers shall not, engageand shall cause any Affiliates not to, without the prior written consent of Buyer, directly or indirectlyindirectly (including through any Affiliate or other Person, alone by Contract or as a shareholder (other than as a holder of less than ten percent (10%) of the common stock of any publicly traded corporationotherwise), partnersolicit to employ, engage or hire (whether as an officer, director, employee, consultant or advisorother independent contractor or otherwise) any director, manager or otherwise in any way participate in or become associated with, any other business organization that is engaged or becomes engaged in any business that is the same or substantially identical business of the Company, or is directly competitive with, any business activity that the Company is conducting at the time of Employee’s termination or has notified Employee that it proposes to conduct and for which the Company has, prior to the time of such termination, expended substantial resources (the “Designated Industry”),
(ii) divert to any competitor officer of the Company any customer Group as of the CompanyClosing, or
(iii) solicit or knowingly encourage, aid or induce any employeedirector, consultant manager or independent contractor officer of the Company Group to change its relationship with the Company, leave his or hire or offer employment to, or a consulting or independent contractor relationship with, any person to whom Employee actually knows the Company has offered her employment; provided, however, that the restrictions of this provision does Section 8.9(b) shall not apply to (i) any employeegeneral advertisement or any search firm engagement which, consultant in any such case, is not directed, targeted or independent contractor focused on any such director, manager or officer of the Company Group, or (ii) the solicitation or hiring of any director, manager or officer of the Company Group who responds (A) following the Closing Date, voluntarily resigns as a director, manager or officer of the Company Group at least six (6) months prior to a general the date of the applicable solicitation for an advertised position provided Employee has not otherwise engaged in conduct prohibited by this Section 6.
6.2 Employee agrees to be bound or hiring, or (B) is terminated by the provisions of this Section 6 in consideration for Company Group at any time following the Company’s employment of Employee, payment of Closing Date;
(c) Beginning on the compensation and benefits provided under Section 3 and Section 4 above and the covenants and agreements set forth herein. The provisions of this Section 6 shall apply during the term of Employee’s employment with the Company Closing and for a period of two five (25) years following termination thereafter, the Founder and the Sellers shall not, and shall cause its Affiliates not to, without the prior written consent of Employee’s employment Buyer, directly or indirectly (including through any Affiliate or other Person, by Contract or otherwise), solicit, divert, encourage, or knowingly entice, induce or take away any customer, supplier, or other Person having material business relations with the Company Group as of the Closing Date (each, a “Restricted Party”) for any reason, whether such termination is at the initiative purpose of Employee or (i) competing with the Company Group in a Competing Activity, or before (ii) influencing any Restricted Party to cease using the services of, or providing services or products to, the Company Group.
(d) The Founder and each Seller has independently consulted with its counsel and after expiration such consultation acknowledges and agrees that the geographic scope, scope of activity restrictions, and duration of the Termcovenants contained in this Section 8.9 are the result of arm’s length negotiations between sophisticated parties, are fair and reasonable, do not impose any greater restraint than is necessary to protect the legitimate business interests of Buyer. The parties agree It is the desire and intent of the Parties that the provisions of this Section 6 8.9 be enforced to the fullest extent permitted under applicable Law, and each Party acknowledges that this Section 8.9 is enforceable in all respects. Nonetheless, if any provision set forth in this Section 8.9 is invalid, illegal or incapable of being enforced by any Law or public policy, such invalidity, illegality or unenforceability shall survive not affect any termination of this Agreement, Employee will continue to be bound by the other provisions of this Section 6 until their expiration and Employee 8.9, but this Section 8.9 shall be construed as if such invalid, illegal or unenforceable provision had never been set forth in this Section 8.9. It is the intention of the Parties that if any of the restrictions or covenants contained in this Section 8.9 is held to cover a geographic area or to be for a length of time which is not permitted by applicable Law, or in any way construed to be too broad or to any extent invalid, such provision shall not be entitled construed to any compensation from be null, void and of no effect, but to the Company with respect thereto except as provided extent such provision would be valid or enforceable under this Agreement.
6.3 Employee acknowledges that the provisions applicable Law, a court of competent jurisdiction shall construe and interpret or reform this Section 6 are essential 8.9 to protect provide for a covenant having the business maximum enforceable geographic area, time period and goodwill of the Company. If at any time the provisions of other provisions, in each case not greater than those contained in this Section 6 shall be determined to be invalid or unenforceable by reason of being vague or unreasonable 8.9, as to area, duration or scope of activity, this Section 6 shall be considered divisible and shall become and be immediately amended to only such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and Employee agrees that this Section 6 as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included hereinenforceable to the fullest extent permitted under such applicable Law.
Appears in 1 contract
Sources: Purchase Agreement (Gogo Inc.)
Non-Competition and Non-Solicitation. 6.1 During the Term and for a period of one year following the date of termination or nonrenewal for any reason (other than termination pursuant to Section 5.1(a): (a) the Employee agrees that he will not:
(i) anywhere shall not in the United States or in any country in which the Company does shall then be doing business, including but not limited to Williston Basin and the Rocky Mountain Region, engage, directly or indirectly, alone or as a shareholder (other than as a holder of less than ten percent (10%) of enter the common stock of any publicly traded corporation), partner, officer, director, employee, consultant or advisoremploy of, or otherwise in render any way participate in or become associated withservices to, any other business organization that is engaged person, firm or becomes corporation engaged in any business that is competitive with the same or substantially identical business of the CompanyCompany or of any of its subsidiaries or affiliates of which the Employee may become an employee or officer during the Term; he shall not engage in such business on his own account; and he shall not become interested in any such business, directly or indirectly, as an individual, partner, shareholder, director, officer, principal, agent, employee, trustee, consultant, or is directly competitive with, any business activity that the Company is conducting at the time of Employee’s termination other relationship or has notified Employee that it proposes to conduct and for which the Company has, prior to the time of such termination, expended substantial resources (the “Designated Industry”),
(ii) divert to any competitor of the Company any customer of the Company, or
(iii) solicit any employee, consultant or independent contractor of the Company to change its relationship with the Company, or hire or offer employment to, or a consulting or independent contractor relationship with, any person to whom Employee actually knows the Company has offered employmentcapacity; provided, however, that nothing contained in this Section 10 shall be deemed to prohibit the Employee from acquiring, solely as an investment, shares of capital stock of any public corporation; (b) neither the Employee nor any Affiliate of the Employee shall solicit or utilize, or assist any person in any way to solicit or utilize, the services, directly or indirectly, of any of the Company's directors, consultants, members of the Board of Scientific and Medical Advisors, officers or employees (collectively, "Associates of the Company"). This nonsolicitation and nonutilization provision does shall not apply to any employee, consultant or independent contractor Associates of the Company who responds to a general solicitation for an advertised position provided Employee has not otherwise engaged in conduct prohibited by this Section 6have previously terminated their relationship with the Company.
6.2 10.1 If the Employee agrees commits a breach, or threatens to be bound by commit a breach, of any of the provisions of this Section 6 in consideration for 10, the Company’s employment of Employee, payment of Company shall have the compensation following rights and benefits provided under Section 3 remedies:
10.1.1 The right and Section 4 above and remedy to have the covenants and agreements set forth herein. The provisions of this Section 6 Agreement specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach shall apply during the term of Employee’s employment with cause irreparable injury to the Company and that money damages shall not provide an adequate remedy to the Company; and 6
10.1.2 The right and remedy to require the Employee to account for a period of two (2) years following termination of Employee’s employment with and pay over to the Company all compensation, profits, monies, accruals, increments or other benefits (collectively "Benefits") derived or received by the Employee as the result of any transactions constituting a breach of any of the provisions of the preceding paragraph, and the Employee hereby agrees to account for and pay over such Benefits to the Company. Each of the rights and remedies enumerated above shall be independent of the other, and shall be severally enforceable, and all of such rights and remedies shall be in addition to, and not in lieu of, any reasonother rights and remedies available to the Company under law or in equity.
10.2 If any of the covenants contained in Section 8, whether 9 or 10, or any part thereof, is hereafter construed to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect without regard to the invalid portions.
10.3 If any of the covenants contained in Section 8, 9 or 10, or any part thereof, is held to be unenforceable because of the duration of such termination is at the initiative of Employee provision or the Company or before or after expiration of area covered thereby, the Term. The parties agree that the provisions court making such determination shall have the power to reduce the duration and/or area of this Section 6 such provision and, in its reduced form, such provision shall survive any termination of this Agreement, Employee will continue to then be bound by the provisions of this Section 6 until their expiration and Employee shall not be entitled to any compensation from the Company with respect thereto except as provided under this Agreementenforceable.
6.3 Employee acknowledges 10.4 The parties hereto intend to and hereby confer jurisdiction to enforce the covenants contained in Sections 8, 9 and 10 upon the courts of any state within the geographical scope of such covenants. In the event that the provisions courts of this Section 6 are essential to protect the business and goodwill any one or more of the Company. If at such states shall hold any time the provisions of this Section 6 shall be determined to be invalid or such covenant wholly unenforceable by reason of being vague the breadth of such scope or unreasonable otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other states within the geographical scope of such covenants, as to areabreaches of such covenants in such other respective jurisdictions, duration or scope of activitythe above covenants as they relate to each state being, for this Section 6 shall be considered divisible purpose, severable into diverse and shall become and be immediately amended to only such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and Employee agrees that this Section 6 as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included hereinindependent covenants.
Appears in 1 contract
Sources: Executive Employment Agreement (Ariad Pharmaceuticals Inc)
Non-Competition and Non-Solicitation. 6.1 Employee agrees that he will not:In order to protect the Company’s Proprietary Information and good will, during my employment and for a period of twelve (12) months following the termination of my employment for any reason (the “Restricted Period”):
(ia) anywhere in consideration of the Company does businessoffer of employment, including but not limited to Williston Basin my salary or wage, any bonus I may receive, and the Rocky Mountain Regionequity granted to me in connection with commencement of employment with the Company, engageall of which I deem as fair and reasonable consideration for entering into this Agreement, I will not directly or indirectly, alone or whether as a shareholder (other than as a holder of less than ten percent (10%) of the common stock of any publicly traded corporation)owner, partner, officershareholder, director, consultant, agent, employee, consultant co-venturer or advisorotherwise, engage, participate or otherwise in any way participate in or become associated with, any other business organization that is engaged or becomes engaged invest in any business that is the same develops, manufactures or substantially identical business markets microbiome therapeutics that are competitive with products or services of the Company, or is directly competitive with, any business activity that the Company is conducting has under development, or that are the subject of active planning at any time during my employment (collectively, the time “Competitive Products”); provided that this will not prohibit any possible investment in publicly traded stock of Employee’s termination or has notified Employee that it proposes to conduct and for which a company representing less than one percent of the Company has, prior to the time stock of such termination, expended substantial resources company and provided further that this provision shall apply only if I am an exempt employee (as that term is defined by the “Designated Industry”),Fair Labor Standards Act) or if and when I subsequently become an exempt employee; and US-DOCS\64377647.6
(iib) divert to I will not directly or indirectly, in any competitor of manner, other than for the Company any customer benefit of the Company, or
(iiii) solicit call upon, solicit, divert or take away any employeeof the customers, business or prospective customers of the Company or any of its suppliers, and/or (ii) solicit, entice or attempt to persuade any other employee or consultant or independent contractor of the Company to change its relationship with leave the Company, or hire or offer employment to, or a consulting or independent contractor relationship with, any person to whom Employee actually knows the Company has offered employment; provided, however, that this provision does not apply to any employee, consultant or independent contractor services of the Company who responds to a general solicitation for an advertised position provided Employee has not otherwise engaged in conduct prohibited by this Section 6.
6.2 Employee agrees to be bound by the provisions of this Section 6 in consideration for the Company’s employment of Employee, payment of the compensation and benefits provided under Section 3 and Section 4 above and the covenants and agreements set forth herein. The provisions of this Section 6 shall apply during the term of Employee’s employment with the Company and for a period of two (2) years following termination of Employee’s employment with the Company for any reason. I acknowledge and agree that if I violate any of the provisions of this Section, whether such termination is at the initiative of Employee or in addition to any other remedies to which the Company may be entitled in law or before or after expiration equity, the running of the TermRestricted Period will be extended by the time during which I engage in such violation(s) or up to twenty four (24) months, whichever is longer. The parties I acknowledge and agree that the provisions of this Section 6 agreement shall survive any termination of this Agreement, Employee will continue to be bound apply during and following my employment by the provisions of this Section 6 until their expiration Company and Employee shall not be entitled affected by any change in my job duties, whether material or immaterial. I further acknowledge and agree that I have the right and have had the opportunity to any compensation from the Company consult with respect thereto except as provided under an attorney prior to signing this Agreement.
6.3 Employee acknowledges that the provisions of this Section 6 are essential to protect the business and goodwill of the Company. If at any time the provisions of this Section 6 shall be determined to be invalid or unenforceable by reason of being vague or unreasonable as to area, duration or scope of activity, this Section 6 shall be considered divisible and shall become and be immediately amended to only such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and Employee agrees that this Section 6 as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included herein.
Appears in 1 contract
Non-Competition and Non-Solicitation. 6.1 During the Term and for a period of one year following the date of termination or nonrenewal for any reason (other than termination pursuant to Section 5.1(a): (a) the Employee agrees that he will not:
(i) anywhere shall not in the United States or in any country in which the Company does shall then be doing business, including but not limited to Williston Basin and the Rocky Mountain Region, engage, directly or indirectly, alone or as a shareholder (other than as a holder of less than ten percent (10%) of enter the common stock of any publicly traded corporation), partner, officer, director, employee, consultant or advisoremploy of, or otherwise in render any way participate in or become associated withservices to, any other business organization that is engaged person, firm or becomes corporation engaged in any business that is competitive with the same or substantially identical business of the CompanyCompany or of any of its subsidiaries or affiliates of which the Employee may become an employee or officer during the Term; she shall not engage in such business on her own account; and she shall not become interested in any such business, directly or indirectly, as an individual, partner, shareholder, director, officer, principal, agent, employee, trustee, consultant, or is directly competitive with, any business activity that the Company is conducting at the time of Employee’s termination other relationship or has notified Employee that it proposes to conduct and for which the Company has, prior to the time of such termination, expended substantial resources (the “Designated Industry”),
(ii) divert to any competitor of the Company any customer of the Company, or
(iii) solicit any employee, consultant or independent contractor of the Company to change its relationship with the Company, or hire or offer employment to, or a consulting or independent contractor relationship with, any person to whom Employee actually knows the Company has offered employmentcapacity; provided, however, that nothing contained in this provision does not apply Section 10 shall be deemed to prohibit the Employee from acquiring, solely as an investment, shares of capital stock of any employee, consultant or independent contractor public corporation; (b) neither the Employee nor any Affiliate of the Company who responds Employee shall solicit or utilize, or 20
10.1 If the Employee commits a breach, or threatens to commit a general solicitation for an advertised position provided Employee has not otherwise engaged in conduct prohibited by this Section 6.
6.2 Employee agrees to be bound by breach, of any of the provisions of this Section 6 in consideration for 10, the Company’s employment of Employee, payment of Company shall have the compensation following rights and benefits provided under Section 3 remedies: 10.
1.1 The right and Section 4 above and remedy to have the covenants and agreements set forth herein. The provisions of this Section 6 Agreement specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach shall apply during the term of Employee’s employment with cause irreparable injury to the Company and that money damages shall not provide an adequate remedy to the Company; and 10.
1.2 The right and remedy to require the Employee to account for a period of two (2) years following termination of Employee’s employment with and pay over to the Company all compensation, profits, monies, accruals, increments or other benefits (collectively “Benefits”) derived or received by the Employee as the result of any transactions constituting a breach of any of the provisions of the preceding paragraph, and the Employee hereby agrees to account for and pay over such Benefits to the Company. Each of the rights and remedies enumerated above shall be independent of the other, and shall be severally enforceable, and all of such rights and remedies shall be in addition to, and not in lieu of, any reasonother rights and remedies available to the Company under law or in equity. 10.2 If any of the covenants contained in Section 8, whether 9 or 10, or any part thereof, is hereafter construed to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect without regard to the invalid portions.
10.3 If any of the covenants contained in Section 8, 9 or 10, or any part thereof, is held to be unenforceable because of the duration of such termination is at the initiative of Employee provision or the Company or before or after expiration of area covered thereby, the Term. The parties agree that the provisions court making such determination shall have the power to reduce the duration and/or area of this Section 6 such provision and, in its reduced form, such provision shall survive then be enforceable. 21
10.4 The parties hereto intend to and hereby confer jurisdiction to enforce the covenants contained in Sections 8, 9 and 10 upon the courts of any termination state within the geographical scope of this Agreement, Employee will continue to be bound by such covenants. In the provisions of this Section 6 until their expiration and Employee shall not be entitled to any compensation from the Company with respect thereto except as provided under this Agreement.
6.3 Employee acknowledges event that the provisions courts of this Section 6 are essential to protect the business and goodwill any one or more of the Company. If at such states shall hold any time the provisions of this Section 6 shall be determined to be invalid or such covenant wholly unenforceable by reason of being vague the breadth of such scope or unreasonable otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company’s right to the relief provided above in the courts of any other states within the geographical scope of such covenants, as to areabreaches of such covenants in such other respective jurisdictions, duration or scope of activitythe above covenants as they relate to each state being, for this Section 6 shall be considered divisible purpose, severable into diverse and shall become and be immediately amended to only such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and Employee agrees that this Section 6 as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included hereinindependent covenants.
Appears in 1 contract
Sources: Executive Employment Agreement (Ariad Pharmaceuticals Inc)
Non-Competition and Non-Solicitation. 6.1 Employee Each of the Companies and Shareholders agrees that he will notfrom and after the date of this Agreement until four (4) years after the Closing Date (the “Non-Competition Period”), neither such Person nor any of his, her or its Affiliates will, directly or indirectly, anywhere in the United States:
(i) anywhere the Company does businessengage in, including but not limited to Williston Basin and the Rocky Mountain Regionor own, engagehave any interest in, directly or indirectlycontrol, alone or advise, manage, serve as a shareholder (other than director, manager, officer or employee of, act as a holder 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 Companies (a “Restricted Business”); provided, that the forgoing shall not prohibit any Shareholder or any of less than ten his, her or its Affiliates from owning up to an aggregate of one percent (101%) of the common outstanding shares of any class of capital stock of any publicly traded corporationRestricted Business so long as neither such Shareholder 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 Shareholder 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 Shareholders, as creditor, with ▇▇▇▇▇▇▇▇ International Group Inc. (“▇▇▇▇▇▇▇▇”), partneras 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 Shareholder nor any of its Affiliates shall be involved in the management or operations of such business, whether as a director, officer, directormanager, employeeconsultant, consultant advisor or advisor, or otherwise in any way participate in or become associated with, any other business organization that is engaged or becomes engaged in any business that is the same or substantially identical business of the Company, or is directly competitive with, any business activity that the Company is conducting at the time of Employee’s termination or has notified Employee that it proposes to conduct and for which the Company has, prior to the time of such termination, expended substantial resources (the “Designated Industry”),otherwise;
(ii) solicit, divert or attempt to solicit or divert any competitor Person who is, was or was solicited to become, a customer or supplier of the Company Companies at any customer of time prior to the Company, orClosing Date;
(iii) employ, solicit any employee, consultant for employment or independent contractor of the Company encourage to change its relationship with the Company, leave his or hire or offer employment to, or a consulting or independent contractor relationship withher employment, any person to whom Employee actually knows the Company has offered employment; provided, however, that this provision does not apply to any employee, consultant or independent contractor of the Company individual who responds to a general solicitation for an advertised position provided Employee has not otherwise engaged in conduct prohibited by this Section 6.
6.2 Employee agrees to be bound by the provisions of this Section 6 in consideration for the Company’s employment of Employee, payment of the compensation and benefits provided under Section 3 and Section 4 above and the covenants and agreements set forth herein. The provisions of this Section 6 shall apply during the term of Employee’s employment with the Company and for a period of two (2) years following termination of Employee’s employment with the Company for any reason, whether such termination is at the initiative of Employee time of, or was during the Company nine-month period prior to, such employment, solicitation or before encouragement an officer or after expiration employee of the Term. The parties agree that Buyer (or any successor Person into which the provisions Buyer may be merged, amalgamated or consolidated) or any of this Section 6 shall survive its Affiliates;
(iv) impair, or attempt to impair, any termination business relationship between any third party and Buyer (or any successor Person into which Buyer may be merged, amalgamated or consolidated) or any of this Agreement, Employee will continue to be bound by the provisions of this Section 6 until their expiration and Employee shall not be entitled its Affiliates; or
(v) make any statement to any compensation from third party, including the Company with respect thereto except as provided under this Agreementpress or media, likely to result in adverse publicity for Buyer (or any successor Person into which Buyer may be merged, amalgamated or consolidated) or any of its Affiliates.
6.3 Employee acknowledges that the provisions of this Section 6 are essential to protect the business and goodwill of the Company. If at any time the provisions of this Section 6 shall be determined to be invalid or unenforceable by reason of being vague or unreasonable as to area, duration or scope of activity, this Section 6 shall be considered divisible and shall become and be immediately amended to only such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and Employee agrees that this Section 6 as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included herein.
Appears in 1 contract
Sources: Asset Purchase Agreement (Atkore International Holdings Inc.)
Non-Competition and Non-Solicitation. 6.1 Employee agrees that he will not:
(ia) anywhere Partially in consideration of the Company does business, including but not limited to Williston Basin payment of the Purchase Price and the Rocky Mountain Regionassumption of the Assumed Liabilities, engagefor a period of three (3) years commencing on the Closing Date (“Restricted Period”), Seller shall not, directly or indirectly, alone (i) engage or as a shareholder (other than as a holder of less than ten percent (10%) of the common stock of any publicly traded corporation), partner, officer, director, employee, consultant or advisor, or otherwise in any way participate in or become associated with, any other business organization that is engaged or becomes engaged in any business that is the same or substantially identical business of the Company, or is directly competitive with, any business activity that is in direct competition with any activities of the Company is conducting at the time of Employee’s termination or has notified Employee that it proposes to conduct and for which the Company has, prior to the time of such termination, expended substantial resources Business as currently conducted by Seller (the “Designated IndustryRestricted Business”) anywhere in the United States of America including its territories and possessions (the “Territory”),
, or (ii) divert have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory. For purposes of this Section 6.07(a), the term “engage in” shall encompass and include, without limitation, owning an interest in, managing, operating, joining, controlling, lending money or rendering financial or other assistance to any competitor of the Company any customer of the Companyor participating in a business, or
(iii) solicit any employeewhether as a partner, shareholder, member, consultant or independent contractor otherwise, and whether the activity is performed or occurs directly or indirectly. Notwithstanding the foregoing, Seller may own, directly or indirectly, solely as an investment, securities of the Company to change its relationship with the Company, or hire or offer employment toany Person traded on any national securities exchange if Seller is not a controlling Person of, or a consulting member of a group which controls, such Person and does not, directly or indirectly, own five percent (5%) or more of any class of securities of such Person.
(b) As a separate and independent contractor relationship withcovenant, any person during the Restricted Period, Seller shall not, and shall use its commercially reasonable efforts to whom Employee actually knows the Company has offered employment; providedensure that none of its Affiliates, however, that this provision does not apply to any employee, consultant or independent contractor solicit customers of the Company Business with the intent to modify, reduce or terminate their business or relationship with Buyer or any of its Affiliates, or become a customer of Seller or any of its Affiliates with respect to the Business. For purposes of this Section 6.07, “solicit” shall include any direct or indirect communication of any kind whatsoever, regardless of by whom initiated, inviting, advising, encouraging or requesting any Person, in any manner, to take or refrain from taking any action.
(c) During the Restricted Period, Seller shall not, and shall use their reasonable best efforts to ensure that none of their respective Affiliates, directly or indirectly, solicit for employment or other services, or employ or engage, as an employee any Transferred Employee or any other employee who responds is or was employed by Buyer or its Affiliates during the Restricted Period, or encourage any such Transferred Employee to leave such employment or solicit any such Transferred Employee who has left such employment, except pursuant to a general solicitation for an advertised position provided Employee has which is not otherwise engaged in conduct prohibited by this Section 6directed specifically to any such Transferred Employee.
6.2 Employee agrees to be bound by the provisions (d) Seller acknowledges that a breach or threatened breach of this Section 6 6.07 would give rise to irreparable harm to Buyer, for which monetary damages would not be an adequate remedy, and hereby agrees that in consideration for the Company’s employment event of Employeea breach or a threatened breach by Seller of any such obligations, payment Buyer shall, in addition to any and all other rights and remedies that may be available to it in respect of the compensation and benefits provided under Section 3 and Section 4 above and the covenants and agreements set forth herein. The provisions of this Section 6 shall apply during the term of Employee’s employment with the Company and for a period of two (2) years following termination of Employee’s employment with the Company for any reasonsuch breach, whether such termination is at the initiative of Employee or the Company or before or after expiration of the Term. The parties agree that the provisions of this Section 6 shall survive any termination of this Agreement, Employee will continue to be bound by the provisions of this Section 6 until their expiration and Employee shall not be entitled to seek equitable relief, including a temporary restraining order, an injunction, specific performance and any compensation other relief that may be available from the Company with respect thereto except as provided under this Agreementa court of competent jurisdiction.
6.3 Employee (e) Seller acknowledges that the provisions of restrictions contained in this Section 6 6.07 are essential reasonable and necessary to protect the business legitimate interests of Buyer and goodwill of constitute a material inducement to Buyer to enter into this Agreement and consummate the Companytransactions contemplated by this Agreement. If at In the event that any time the provisions of covenant contained in this Section 6 6.07 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 determined deemed reformed, in such jurisdiction to be invalid the maximum time, geographic, product or unenforceable service or other limitations permitted by reason of being vague or unreasonable as to area, duration or scope of activity, applicable law. The covenants contained in this Section 6 6.07 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall be considered divisible not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall become and be immediately amended to only not invalidate or render unenforceable such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court covenant or provision in any other body having jurisdiction over the matter; and Employee agrees that this Section 6 as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included hereinjurisdiction.
Appears in 1 contract
Non-Competition and Non-Solicitation. 6.1 During the period of Employee’s employment by ▇▇▇▇▇▇ Delaware or ▇▇▇▇▇▇ New York and for a period of twenty-four (24) months thereafter, or, if Employee agrees that he will is entitled to continue to receive his base salary pursuant to Section VII above, for the Severance Period plus an additional twelve (12) months thereafter, Employee shall not:
: (i) anywhere the Company does business, including but not limited to Williston Basin and the Rocky Mountain Region, engageengage or become interested in any way, directly or indirectly, alone or (whether as a shareholder (other than as a holder of less than ten percent (10%) of the common stock of any publicly traded corporation)an owner, stockholder, partner, officerlender, investor, director, officer, employee, consultant or advisorotherwise) in any activity, business or enterprise, if such activity, business or enterprise competes, directly or indirectly, within the geographical area of the United States, Canada or the European Union, with (A) the business of designing, developing, distributing, marketing or manufacturing dental products or (B) any other significant part of the business conducted by the Company or its subsidiaries during the period of Employee’s employment or contemplated to be conducted by it during such period (except that passive ownership of not more than 5% of the outstanding securities of any class of any corporation that are listed on a national securities exchange or traded in the over-the-counter market shall not be considered a breach of this Section); or (ii) solicit or hire for any purpose any employee of the Company or its subsidiaries, or otherwise in any way participate in or become associated withemployee who has left such employment within the previous six months. If, any other business organization that is engaged or becomes engaged in any business that is the same or substantially identical business of the Company, or is directly competitive with, any business activity that the Company is conducting at the time of Employee’s termination or has notified Employee that it proposes to conduct and for which the Company has, prior to the time of such termination, expended substantial resources (the “Designated Industry”),
(ii) divert to any competitor of the Company any customer of the Company, or
(iii) solicit any employee, consultant or independent contractor of the Company to change its relationship with the Company, or hire or offer employment to, or a consulting or independent contractor relationship with, any person to whom Employee actually knows the Company has offered employment; provided, however, that this provision does not apply to any employee, consultant or independent contractor of the Company who responds to a general solicitation for an advertised position provided Employee has not otherwise engaged in conduct prohibited by this Section 6.
6.2 Employee agrees to be bound by the provisions enforcement of this Section 6 in consideration for IX, a court shall hold that the Company’s employment of Employeeduration, payment of scope or area restrictions stated herein are unreasonable under circumstances then existing, the compensation and benefits provided under Section 3 and Section 4 above and the covenants and agreements set forth herein. The provisions of this Section 6 shall apply during the term of Employee’s employment with the Company and for a period of two (2) years following termination of Employee’s employment with the Company for any reason, whether such termination is at the initiative of Employee or the Company or before or after expiration of the Term. The parties agree that the provisions of this Section 6 maximum duration, scope or area reasonable under such circumstances shall survive any termination of this Agreementbe substituted for the stated duration, Employee will continue to be bound by the provisions of this Section 6 until their expiration scope or area and Employee shall not be entitled to any compensation from the Company with respect thereto except as provided under this Agreement.
6.3 Employee acknowledges that the provisions of this Section 6 are essential to protect the business and goodwill of the Company. If at any time the provisions of this Section 6 court shall be determined allowed to be invalid or unenforceable revise the restrictions contained herein to cover the maximum period, scope and area permitted by reason of being vague or unreasonable as to area, duration or scope of activity, this Section 6 shall be considered divisible and shall become and be immediately amended to only such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and Employee agrees that this Section 6 as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included hereinlaw.
Appears in 1 contract
Non-Competition and Non-Solicitation. 6.1 Employee agrees You further agree that he during your employment with Edison and for one year after the termination of such employment for any reason, you will not at any time engage in or participate as an executive officer, employee, director, agent, consultant, representative, stockholder, or partner, or have any financial interest, in any business which "competes" with Edison or any subsidiary of Edison. For the purposes hereof, a "competing" business shall mean any business which directly competes with any of the businesses of Edison as such shall exist during your employment with Edison (for example, the business of managing public and/or private schools for profit or the sale of school management or student assessment systems such as "The Edison Common"), but a "competing" business shall not include the business of developing for or marketing to or implementing in schools electronic curriculum services or technology delivery systems for such services. Ownership by you of publicly traded stock of any corporation conducting any such business shall not be deemed a violation of the preceding two sentences provided you do not own more than three percent (3%) of the stock of any such corporation. You further agree that for a period of one year after termination of your employment with Edison for any reason, you will not:
(i) anywhere the Company does business, including but not limited to Williston Basin and the Rocky Mountain Region, engage, directly or indirectly, alone solicit the employment or as a shareholder (other than as a holder services of less than ten percent (10%) any executive employee Edison. For the purposes of the common stock of any publicly traded corporation), partner, officer, director, employee, consultant or advisor, or otherwise in any way participate in or become associated withforegoing, any other business organization that is engaged executive employee who within twelve (12) months of terminating his employment with Edison becomes employed by any entity of which you are an officer or becomes engaged in any business that is the same director or substantially identical business owner of more than an aggregate of 3% of the Company, outstanding stock or is directly competitive with, any business activity that the Company is conducting at the time of Employee’s termination or has notified Employee that it proposes to conduct and for which the Company has, prior to the time of such termination, expended substantial resources (the “Designated Industry”),
(ii) divert to any competitor of the Company any customer of the Company, or
(iii) solicit any employee, consultant or independent contractor of the Company to change its relationship with the Company, or hire or offer employment to, or a consulting or independent contractor relationship with, any person to whom Employee actually knows the Company has offered employment; provided, however, that this provision does not apply to any employee, consultant or independent contractor of the Company who responds to a general solicitation for an advertised position provided Employee has not otherwise engaged in conduct prohibited by this Section 6.
6.2 Employee agrees to be bound by the provisions of this Section 6 in consideration for the Company’s employment of Employee, payment of the compensation and benefits provided under Section 3 and Section 4 above and the covenants and agreements set forth herein. The provisions of this Section 6 shall apply during the term of Employee’s employment with the Company and for a period of two (2) years following termination of Employee’s employment with the Company for any reason, whether such termination is at the initiative of Employee or the Company or before or after expiration of the Term. The parties agree that the provisions of this Section 6 shall survive any termination of this Agreement, Employee will continue to be bound by the provisions of this Section 6 until their expiration and Employee shall not be entitled to any compensation from the Company with respect thereto except as provided under this Agreement.
6.3 Employee acknowledges that the provisions of this Section 6 are essential to protect the business and goodwill of the Company. If at any time the provisions of this Section 6 equity interest therein shall be determined deemed, prima facie, to be invalid or unenforceable by reason of being vague or unreasonable as to area, duration or scope of activity, this Section 6 shall be considered divisible and shall become and be immediately amended to only such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and Employee agrees that this Section 6 as have been so amended shall be valid and binding as though any invalid or unenforceable provision had not been included hereinsolicited.
Appears in 1 contract
Non-Competition and Non-Solicitation. 6.1 In consideration for participation in this Agreement, Employee hereby covenants and agrees that he will notas follows:
(ia) anywhere At all times during the Company does businessperiod in which he receives Retirement Benefits pursuant to Section 3.2 hereof, including but not limited to Williston Basin and the Rocky Mountain Region, engageEmployee shall not, directly or indirectly, alone indirectly and whether on his own behalf or as a shareholder (other than as a holder of less than ten percent (10%) of the common stock on behalf of any publicly traded corporation)other person, partnerpartnership, association, corporation or other entity, engage in or be an owner, director, officer, directoremployee, employeeagent, consultant or advisor, other representative of or otherwise in any way participate in or become associated with, any other business organization that is engaged or becomes engaged in for any business that is manufactures, engineers, markets, sells or provides, in any state of the United States of America, metal building systems or components (including, without limitation, primary and secondary framing systems, roofing systems, end or side wall panels, doors, windows or other metal components of a building structure), coated or painted steel or metal coils, coil coating or painting services, or any other products or services that are the same as or substantially identical business similar to those manufactured, engineered, marketed, sold or provided by the Company or its subsidiaries and affiliates during the period of employment of Employee by the Company. Ownership by Employee of equity securities of the Company, or is directly competitive withof equity securities in other publicly owned companies constituting less than 1% of the voting securities in such companies, any business activity that the Company is conducting at the time shall be deemed not to be a breach of Employee’s termination or has notified Employee that it proposes to conduct and for which the Company has, prior to the time of such termination, expended substantial resources (the “Designated Industry”),this covenant.
(iib) divert At all times during the period in which he receives Retirement Benefits pursuant to Section 3.2 hereof, Employee shall not, directly or indirectly and whether on his own SUPPLEMENTAL BENEFIT AGREEMENT - JOHNIE SCHULTE Page 8 behalf or on behal▇ ▇▇ ▇▇▇ ▇▇▇▇▇ person, partnership, association, corporation or other entity, either hire, seek to hire or solicit the employment of any competitor employee of the Company or in any customer of the Company, or
(iii) solicit manner attempt to influence or induce any employee, consultant or independent contractor employee of the Company or its subsidiaries and affiliates to change its relationship with leave the Company, or hire or offer employment to, or a consulting or independent contractor relationship with, any person to whom Employee actually knows the Company has offered employment; provided, however, that this provision does not apply to any employee, consultant or independent contractor of the Company who responds or its subsidiaries and affiliates, or use or disclose to a general solicitation for an advertised position provided Employee has not otherwise engaged in conduct prohibited by this Section 6.
6.2 Employee agrees to be bound by any person, partnership, association, corporation or other entity any information concerning the provisions names and addresses of this Section 6 in consideration for the Company’s employment any employees of Employee, payment of the compensation and benefits provided under Section 3 and Section 4 above and the covenants and agreements set forth herein. The provisions of this Section 6 shall apply during the term of Employee’s employment with the Company and for a period of two (2) years following termination of Employee’s employment with the Company for any reason, whether such termination is at the initiative of Employee or the Company or before or after expiration its subsidiaries and affiliates unless required by due process of the Term. The parties agree that the provisions of this Section 6 shall survive any termination of this Agreement, Employee will continue to be bound by the provisions of this Section 6 until their expiration and Employee shall not be entitled to any compensation from the Company with respect thereto except as provided under this Agreementlaw.
6.3 Employee acknowledges that the provisions of this Section 6 are essential to protect the business and goodwill of the Company. If at any time the provisions of this Section 6 shall be determined to be invalid or unenforceable by reason of being vague or unreasonable as to area, duration or scope of activity, this Section 6 shall be considered divisible and shall become and be immediately amended to only such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and Employee agrees that this Section 6 as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included herein.
Appears in 1 contract
Sources: Supplemental Benefit Agreement (Nci Building Systems Inc)
Non-Competition and Non-Solicitation. 6.1 During the Term and for a period of one year following the date of termination or nonrenewal for any reason (other than termination pursuant to Section 5.1(a)): (a) the Employee agrees that he will not:
(i) anywhere shall not in the Company does United States or in any country in which the Employer shall then be doing business, including but not limited to Williston Basin and the Rocky Mountain Region, engage, directly or indirectly, alone or as a shareholder (other than as a holder of less than ten percent (10%) of enter the common stock of any publicly traded corporation), partner, officer, director, employee, consultant or advisoremploy of, or otherwise in render any way participate in or become associated withservices to, any other business organization that is engaged person, firm or becomes corporation engaged in any business that is directly competitive with the same or substantially identical business of the CompanyCompany or of any of its subsidiaries or affiliates of which the Employee may become an employee or officer during the Term; he shall not engage in such business on his own account; and he shall not become interested in any such business, directly or indirectly, as an individual, partner, shareholder, director, officer, principal, agent, employee, trustee, consultant, or is directly competitive with, any business activity that the Company is conducting at the time of Employee’s termination other relationship or has notified Employee that it proposes to conduct and for which the Company has, prior to the time of such termination, expended substantial resources (the “Designated Industry”),
(ii) divert to any competitor of the Company any customer of the Company, or
(iii) solicit any employee, consultant or independent contractor of the Company to change its relationship with the Company, or hire or offer employment to, or a consulting or independent contractor relationship with, any person to whom Employee actually knows the Company has offered employmentcapacity; provided, however, that nothing contained in this Section 10 shall be deemed to prohibit the Employee from acquiring, solely as an investment, shares of capital stock of any public corporation; (b)neither the Employee nor any Affiliate of the Employee shall solicit or utilize, or assist any person in any way to solicit or utilize, the services, directly or indirectly, of any of the Company's directors, consultants, members of the Board of Scientific and Medical Advisors, officers or employees (collectively, "Associates of the Company"). This nonsolicitation and nonutilization provision does shall not apply to any employee, consultant or independent contractor Associates of the Company who responds to a general solicitation for an advertised position provided Employee has not otherwise engaged in conduct prohibited by this Section 6have previously terminated their relationship with the Company.
6.2 10.1 If the Employee agrees commits a breach, or threatens to be bound by commit a breach, of any of the provisions of this Section 6 in consideration for 10, the Company’s employment of Employee, payment of Company shall have the compensation following rights and benefits provided under Section 3 remedies:
10.1.1 The right and Section 4 above and remedy to have the covenants and agreements set forth herein. The provisions of this Section 6 Agreement specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach shall apply during the term of Employee’s employment with cause irreparable injury to the Company and that money damages shall not provide an adequate remedy to the Company; and
10.1.2 The right and remedy to require the Employee to account for a period of two (2) years following termination of Employee’s employment with and pay over to the Company all compensation, profits, monies, accruals, increments or other benefits (collectively "Benefits") derived or received by the Employee as the result of any transactions constituting a breach of any of the provisions of the preceding paragraph, and the Employee hereby agrees to account for and pay over such Benefits to the Company. Each of the rights and remedies enumerated above shall be independent of the other, and shall be severally enforceable, and all of such rights and remedies shall be in addition to, and not in lieu of, any reasonother rights and remedies available to the Company under law or in equity.
10.2 If any of the covenants contained in Section 8, whether 9 or 10, or any part thereof, is hereafter construed to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect without regard to the invalid portions.
10.3 If any of the covenants contained in Section 8, 9 or 10, or any part thereof, is held to be unenforceable because of the duration of such termination is at the initiative of Employee provision or the Company or before or after expiration of area covered thereby, the Term. The parties agree that the provisions court making such determination shall have the power to reduce the duration and/or area of this Section 6 such provision and, in its reduced form, such provision shall survive any termination of this Agreement, Employee will continue to then be bound by the provisions of this Section 6 until their expiration and Employee shall not be entitled to any compensation from the Company with respect thereto except as provided under this Agreementenforceable.
6.3 Employee acknowledges 10.4 The parties hereto intend to and hereby confer jurisdiction to enforce the covenants contained in Sections 8, 9 and 10 upon the courts of any state within the geographical scope of such covenants. In the event that the provisions courts of this Section 6 are essential to protect the business and goodwill any one or more of the Company. If at such states shall hold any time the provisions of this Section 6 shall be determined to be invalid or such covenant wholly unenforceable by reason of being vague the breadth of such scope or unreasonable otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other states within the geographical scope of such covenants, as to areabreaches of such covenants in such other respective jurisdictions, duration or scope of activitythe above covenants as they relate to each state being, for this Section 6 shall be considered divisible purpose, severable into diverse and shall become and be immediately amended to only such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and Employee agrees that this Section 6 as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included hereinindependent covenants.
Appears in 1 contract
Sources: Executive Employment Agreement (Ariad Pharmaceuticals Inc)
Non-Competition and Non-Solicitation. 6.1 During the Term and for a period of one year following the date of termination or nonrenewal for any reason (other than termination pursuant to Section 5.l(a): (a) the Employee agrees that he will not:
(i) anywhere shall not in the United States or in any country in which the Company does shall then be doing business, including but not limited to Williston Basin and the Rocky Mountain Region, engage, directly or indirectly, alone or as a shareholder (other than as a holder of less than ten percent (10%) of enter the common stock of any publicly traded corporation), partner, officer, director, employee, consultant or advisoremploy of, or otherwise in render any way participate in or become associated withservices to, any other business organization that is engaged person, firm or becomes corporation engaged in any business that is competitive with the same or substantially identical business of the CompanyCompany or of any of its subsidiaries or affiliates of which the Employee may become an employee or officer during the Term; he shall not engage in such business on his own account; and he shall not become interested in any such business, directly or indirectly, as an individual, partner, shareholder, director, officer, principal, agent, employee, trustee, consultant, or is directly competitive with, any business activity that the Company is conducting at the time of Employee’s termination other relationship or has notified Employee that it proposes to conduct and for which the Company has, prior to the time of such termination, expended substantial resources (the “Designated Industry”),
(ii) divert to any competitor of the Company any customer of the Company, or
(iii) solicit any employee, consultant or independent contractor of the Company to change its relationship with the Company, or hire or offer employment to, or a consulting or independent contractor relationship with, any person to whom Employee actually knows the Company has offered employmentcapacity; provided, however, that nothing contained in this Section 10 shall be deemed to prohibit the Employee from acquiring, solely as an investment, shares of capital stock of any public corporation; (b) neither the Employee nor any Affiliate of the Employee shall solicit or utilize, or assist any person in any way to solicit or utilize, the services, directly or indirectly, of any of the Company's directors, consultants, members of the Board of Scientific and Medical Advisors, officers or employees (collectively, "Associates of the Company"). This nonsolicitation and nonutilization provision does shall not apply to any employee, consultant or independent contractor Associates of the Company who responds to a general solicitation for an advertised position provided Employee has not otherwise engaged in conduct prohibited by this Section 6have previously terminated their relationship with the Company.
6.2 10.1 If the Employee agrees commits a breach, or threatens to be bound by commit a breach, of any of the provisions of this Section 6 in consideration for 10, the Company’s employment of Employee, payment of Company shall have the compensation following rights and benefits provided under Section 3 remedies:
10.1.1 The right and Section 4 above and remedy to have the covenants and agreements set forth herein. The provisions of this Section 6 Agreement specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach shall apply during the term of Employee’s employment with cause irreparable injury to the Company and that money damages shall not provide an adequate remedy to the Company; and
10.1.2 The right and remedy to require the Employee to account for a period of two (2) years following termination of Employee’s employment with and pay over to the Company all compensation, profits, monies, accruals, increments or other benefits (collectively "Benefits") derived or received by the Employee as the result of any transactions constituting a breach of any of the provisions of the preceding paragraph, and the Employee hereby agrees to account for and pay over such Benefits to the Company. Each of the rights and remedies enumerated above shall be independent of the other, and shall be severally enforceable, and all of such rights and remedies shall be in addition to, and not in lieu of, any reasonother rights and remedies available to the Company under law or in equity.
10.2 If any of the covenants contained in Section 8, whether 9 or 10, or any part thereof, is hereafter construed to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect without regard to the invalid portions.
10.3 If any of the covenants contained in Section 8, 9 or 10, or any part thereof, is held to be unenforceable because of the duration of such termination is at the initiative of Employee provision or the Company or before or after expiration of area covered thereby, the Term. The parties agree that the provisions court making such determination shall have the power to reduce the duration and/or area of this Section 6 such provision and, in its reduced form, such provision shall survive any termination of this Agreement, Employee will continue to then be bound by the provisions of this Section 6 until their expiration and Employee shall not be entitled to any compensation from the Company with respect thereto except as provided under this Agreementenforceable.
6.3 Employee acknowledges 10.4 The parties hereto intend to and hereby confer jurisdiction to enforce the covenants contained in Sections 8, 9 and 10 upon the courts of any state within the geographical scope of such covenants. In the event that the provisions courts of this Section 6 are essential to protect the business and goodwill any one or more of the Company. If at such states shall hold any time the provisions of this Section 6 shall be determined to be invalid or such covenant wholly unenforceable by reason of being vague the breadth of such scope or unreasonable otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other states within the geographical scope of such covenants, as to areabreaches of such covenants in such other respective jurisdictions, duration or scope of activitythe above covenants as they relate to each state being, for this Section 6 shall be considered divisible purpose, severable into diverse and shall become and be immediately amended to only such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and Employee agrees that this Section 6 as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included hereinindependent covenants.
Appears in 1 contract
Sources: Executive Employment Agreement (Ariad Pharmaceuticals Inc)
Non-Competition and Non-Solicitation. 6.1 Employee agrees that he will not:
(i) anywhere During the Company does business, including but not limited to Williston Basin and the Rocky Mountain Region, engage, directly or indirectly, alone or as a shareholder (other than as a holder of less than ten percent (10%) of the common stock of any publicly traded corporation), partner, officer, director, employee, consultant or advisor, or otherwise in any way participate in or become associated with, any other business organization that is engaged or becomes engaged in any business that is the same or substantially identical business of the Company, or is directly competitive with, any business activity that the Company is conducting at the time of Employee’s termination or has notified Employee that it proposes to conduct and for which the Company has, prior to the time of such termination, expended substantial resources (the “Designated Industry”),
(ii) divert to any competitor of the Company any customer of the Company, or
(iii) solicit any employee, consultant or independent contractor of the Company to change its relationship with the Company, or hire or offer employment to, or a consulting or independent contractor relationship with, any person to whom Employee actually knows the Company has offered employment; provided, however, that this provision does not apply to any employee, consultant or independent contractor of the Company who responds to a general solicitation for an advertised position provided Employee has not otherwise engaged in conduct prohibited by this Section 6.
6.2 Employee agrees to be bound by the provisions of this Section 6 in consideration for the Company’s employment of Employee, payment of the compensation and benefits provided under Section 3 and Section 4 above and the covenants and agreements set forth herein. The provisions of this Section 6 shall apply during the term of Employee’s employment with the Company Term and for a period of two (2) years one year following the date of termination of Employee’s employment with the Company and/or the termination of this Agreement, for any reasonreason and whether voluntary or involuntary and Employee receives severance pursuant to Section 6 of this agreement: (a) the Employee shall not in the United States or in any country in which the Company shall then be doing business, whether such termination directly, enter the employ of, or render any services to, any person, firm or corporation engaged in any business that is at “Directly Competitive” (as defined in Section 14) with the initiative business of Employee or the Company or before of any of its subsidiaries or after expiration Affiliates of which the Employee may become an employee or officer during the Term prior to any change in control; Employee shall not engage in such business on Employee’s own account; and Employee shall not become interested in any such business, directly as an individual, partner, shareholder, director, officer, principal, agent, employee, trustee, consultant, or any other relationship or capacity; provided, however, that nothing contained in this Section 9 shall be deemed to prohibit the Employee from acquiring, solely as an investment, shares of capital stock of any public corporation; (b) neither the Employee nor any Affiliate of the TermEmployee shall solicit or utilize, or assist any person in any way to solicit or utilize, the services, directly, of any of the Company’s directors, key advisors, officers or employees (collectively, “Associates of the Company”). This non-solicitation and non-utilization provision shall not apply to Associates of the Company who have previously terminated their relationship with the Company. The parties agree that above covenants will apply to the Employee, regardless of the circumstances under which the employment ends or this Agreement is terminated.
9.1 If the Employee commits a breach, or threatens to commit a breach, of any of the provisions of this Section 6 9, the Company shall survive have the following rights and remedies:
9.1.1 The right and remedy to have the provisions of this Agreement specifically enforced by any termination court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach shall cause irreparable injury to the Company and that money damages shall not provide an adequate remedy to the Company; and
9.1.2 The right and remedy immediately to cease providing the salary continuation payments and other benefits under Sections 6.1 and 6.2 of this Agreement and to require the Employee to repay to the Company any such payments and benefits that already have been provided as of the time the Company learns of Employee’s breach of this Section 9.
9.1.3 The right and remedy and to require the Employee to account for and pay over to the Company all compensation, profits, monies, accruals, increments or other benefits (collectively “Benefits”) derived or received by the Employee as the result of any transactions constituting a breach of any of the provisions of this Agreement, and the Employee will continue hereby agrees to account for and pay over such Benefits to the Company. Each of the rights and remedies enumerated above shall be independent of the other, and shall be severally enforceable, and all of such rights and remedies shall be in addition to, and not in lieu of, any other rights and remedies available to the Company under law or in equity.
9.2 If any of the covenants contained in Section 7, 8 or 9, or any part thereof, is hereafter construed to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect without regard to the invalid portions.
9.3 If any of the covenants contained in Section 7, 8 or 9, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties agree that the court making such determination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
9.4 The parties hereto intend to and hereby confer jurisdiction to enforce the covenants contained in Sections 7, 8 and 9 upon the courts of any state within the geographical scope of such covenants. In the event that the courts of any one or more of such states shall hold any such covenant wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company’s right to the relief provided above in the courts of any other states within the geographical scope of such covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each state being, for this purpose, severable into diverse and independent covenants.
9.5 The covenants in Sections 7, 8 and 9 are conditions of Employee’s continued employment with the Company, and they are not tied to Employee’s performance of any particular position, role or job; therefore, the covenants in Sections 7, 8, and 9 shall survive any change in Employee’s position, title, compensation, benefits, role, or responsibilities and shall remain in full force and effect following any such change. By continuing in the Company’s employ, Employee continually re-affirms the intention to be bound by the provisions of this Section 6 until their expiration and Employee shall not be entitled to any compensation from the Company with respect thereto except as provided under this Agreementthese ongoing covenants.
6.3 Employee acknowledges that the provisions of this Section 6 are essential to protect the business and goodwill of the Company. If at any time the provisions of this Section 6 shall be determined to be invalid or unenforceable by reason of being vague or unreasonable as to area, duration or scope of activity, this Section 6 shall be considered divisible and shall become and be immediately amended to only such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and Employee agrees that this Section 6 as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included herein.
Appears in 1 contract
Sources: Executive Employment Agreement (Ariad Pharmaceuticals Inc)
Non-Competition and Non-Solicitation. 6.1 Employee agrees that he will not:
(ia) anywhere In consideration of the Company does businessmutual covenants provided for herein, including but not limited during the period beginning on the Closing Date and ending on the third (3rd) anniversary of the Closing Date (the “Non- compete Period”), and subject further to Williston Basin all other conditions in this Agreement, the Seller shall not, except at the express written direction of Buyer, and the Rocky Mountain Region, engageSeller shall cause its respective Affiliates to not, directly engage as owner, operator or indirectlyemployee in any business competitive with the Business anywhere within the Restricted Territory; provided, alone or as a shareholder (other than as a holder that ownership of less than ten percent (10%) of the common outstanding stock of any publicly traded corporation), partner, officer, director, employee, consultant or advisor, or otherwise in any way participate in or become associated with, any other business organization that is engaged or becomes engaged in any business that is the same or substantially identical business of the Company, or is directly competitive with, any business activity that the Company is conducting at the time of Employee’s termination or has notified Employee that it proposes to conduct and for which the Company has, prior to the time of such termination, expended substantial resources (the “Designated Industry”),
(ii) divert to any competitor of the Company any customer of the Company, or
(iii) solicit any employee, consultant or independent contractor of the Company to change its relationship with the Company, or hire or offer employment to, or a consulting or independent contractor relationship with, any person to whom Employee actually knows the Company has offered employment; provided, however, that this provision does corporation shall not apply to any employee, consultant or independent contractor of the Company who responds to a general solicitation for an advertised position provided Employee has not otherwise engaged in conduct prohibited by this Section 6.
6.2 Employee agrees be deemed to be bound by the provisions a breach of this Section 6 in consideration for 5.6. The Parties agree that the Company’s employment of Employee, payment of the compensation and benefits provided under Section 3 and Section 4 above and the covenants and agreements covenant set forth hereinin this Section 5.6 is reasonable with respect to its duration, geographical area, and scope. The provisions If the final judgment of a court of competent jurisdiction declares that any term or provision of this Section 6 shall apply during 5.6 is invalid or unenforceable, the term of Employee’s employment with the Company and for a period of two (2) years following termination of Employee’s employment with the Company for any reason, whether such termination is at the initiative of Employee or the Company or before or after expiration of the Term. The parties Parties agree that the provisions court making the determination of this Section 6 invalidity or unenforceability shall survive any termination of this Agreementhave the power to reduce the scope, Employee will continue to be bound by the provisions of this Section 6 until their expiration and Employee shall not be entitled to any compensation from the Company with respect thereto except as provided under this Agreement.
6.3 Employee acknowledges that the provisions of this Section 6 are essential to protect the business and goodwill duration, or area of the Company. If at any time the provisions of this Section 6 shall be determined term or provision, to be invalid delete specific words or unenforceable by reason of being vague phrases, or unreasonable as to area, duration or scope of activity, this Section 6 shall be considered divisible and shall become and be immediately amended to only such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and Employee agrees that this Section 6 as so amended shall be valid and binding as though replace any invalid or unenforceable term or provision had with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified after the expiration of the time within which the judgment may be appealed. Notwithstanding the foregoing, nothing in this Section 5.7 shall restrict Seller or its Affiliates to furnish consulting services (other than management services comparable to that of the Business) on an independent contractor basis to any business within the Restricted Territory.
(b) The Seller agrees that, during the Non-compete Period, it will not been included herein.(and will not cause its Affiliates to) directly or indirectly, (i) contact, approach, or solicit for the purpose of offering employment to or hiring (whether as an employee, consultant, agent, independent contractor, or otherwise) or actually hire any Person employed by, under contract with or working as an independent contractor for, any Subject Company, Buyer or any of their Affiliates, at any time during the one year period immediately preceding the Closing Date or during the Non-compete Period, without the prior written consent of Buyer,
Appears in 1 contract
Sources: Securities Purchase Agreement
Non-Competition and Non-Solicitation. 6.1 The Employee agrees that he will not:
(i) anywhere the Company does business, including but not limited to Williston Basin and the Rocky Mountain Region, engage, directly or indirectly, alone or as a shareholder (other than as a holder of less than ten percent (10%) of the common stock of any publicly traded corporation), partner, officer, director, employee, consultant or advisor, or otherwise in any way participate in or become associated with, any other business organization that is engaged or becomes engaged in any business that is the same or substantially identical business of the Company, or is directly competitive with, any business activity that the Company is conducting at the time of Employee’s termination or has notified Employee that it proposes to conduct and for which the Company has, prior to the time of such termination, expended substantial resources (the “Designated Industry”),
(ii) divert to any competitor of the Company any customer of the Company, or
(iii) solicit any employee, consultant or independent contractor of the Company to change its relationship with the Company, or hire or offer employment to, or a consulting or independent contractor relationship with, any person to whom Employee actually knows the Company has offered employment; provided, however, that this provision does not apply to any employee, consultant or independent contractor of the Company who responds to a general solicitation for an advertised position provided Employee has not otherwise engaged in conduct prohibited by this Section 6.
6.2 Employee agrees to be bound by the provisions of this Section 6 in consideration for the Company’s employment of Employee, payment of the compensation and benefits provided under Section 3 and Section 4 above and the covenants and agreements set forth herein. The provisions of this Section 6 shall apply during the term of Employee’s employment with the Company Employment Period and for a period of two (2) years following after termination of Employee’s employment the Employment Period (the “Restricted Period”) he will not directly, indirectly, once, occasionally or professionally, under his name or under a third party name, on behalf of his own or on behalf of third parties compete with the Company Employer within the scope of its business. The Employee furthermore agrees that he will not participate in any way in any enterprise competing with the Employer, and he also agrees not to found or assist any business being active in the same line of business as the Employer. This non-compete undertaking shall be effective for the whole territory of the business activities of the Employer and each of its group companies during the Employment and at the moment of termination of the Employment. During Restricted Period the Employee shall abstain from, directly or indirectly via any company owned or controlled by the Employee, enticing away, soliciting or interfering with (i) any personnel from the Employer or (ii) any person who is or was a client of the Employer. In the event the Employee breaches any of the obligations pursuant to this Section Article 23: a penalty of CHF 30,000 shall be owed by the Employee to the Employer for any such breach. However, the payment of the penalty does not release the Employee from further complying with the respective obligation. In addition, the Employer reserves the right to claim compensation for damages as well as the right to the remedy of specific performance. Article 40: CONFIDENTIALITY The Employee will have access to confidential and proprietary information relating to the business and operations of the Employer and their clients. Such confidential and proprietary information constitutes a unique and valuable asset of the Employer and their acquisition required great time and expense. The disclosure or any other use of such confidential or proprietary information, other than for the sole benefit of the Employer, would be wrongful and would cause irreparable harm to the Employer or other group companies. The Employee is under a strict duty to keep all confidential and proprietary information strictly and permanently confidential and, accordingly, shall not during the Employment or after termination of the Employment directly or indirectly use for any purpose other than for the sole benefit of the Employer, or disclose or permit to be disclosed to any third person or entity, any confidential or proprietary information without first obtaining the written consent of the responsible executive and the party concerned, if applicable, except if required to do so by law. The Employee may not make any statement to the media related to confidential information, as far as he is not authorized to do so by the responsible executive. Upon termination of this Employment Agreement for any reason, whether such termination is at the initiative of Employee or shall return to the Company or before or after expiration Employer all files and any company documents concerning the business of the TermEmployer in his possession or open to his access, including all designs, customer and price lists, printed material, documents, sketches, notes, drafts as well as copies thereof, regardless whether or not the same are originally furnished by the Employer. The parties agree that Employer reserves the provisions right to the remedy of this Section 6 shall survive any termination specific performance of this Agreement, Employee will continue to be bound by the provisions of this Section 6 until their expiration and Employee shall not be entitled Employee’s obligations in addition to any compensation from the Company with respect thereto except as provided under this Agreement.
6.3 Employee acknowledges that the provisions of this Section 6 are essential to protect the business and goodwill of the Companydamages. If at any time the provisions of this Section 6 shall be determined to be invalid or unenforceable by reason of being vague or unreasonable as to area, duration or scope of activity, this Section 6 shall be considered divisible and shall become and be immediately amended to only such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and Employee agrees that this Section 6 as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included herein.Article 41: MISCELLEANOUS
Appears in 1 contract
Sources: Share Purchase Agreement (Measurement Specialties Inc)
Non-Competition and Non-Solicitation. 6.1 Employee In consideration of the Company’s entering into this Agreement, Executive agrees that he will during the Employment Term and for a period of twelve (12) months after the termination of the Employment Term, without regard to its termination for any reason which does not constitute a breach of this Agreement by the Company or a resignation for Good Reason by Executive, Executive shall not:, unless acting pursuant hereto or with the prior written consent of the Board: #56956674 v6
(ia) anywhere the Company does business, including but not limited to Williston Basin and the Rocky Mountain Region, engage, directly or indirectly, alone own, manage, operate, finance, join, control or participate in the ownership, management, operation, financing or control of, or be connected as a shareholder (other than as a holder of less than ten percent (10%) of the common stock of any publicly traded corporation), partner, an officer, director, employee, partner, principal, agent, representative, consultant or advisorotherwise with, or otherwise use or permit Executive’s name to be used in connection with any Competing Business (defined below) within any state in which the Company, and/or its affiliates, currently engage in any way participate Substantial Business Activity (defined below) or any state in or become associated withwhich the Company, any other business organization that is engaged or becomes and/or its affiliates, engaged in any business that is Substantial Business Activity during the same or substantially identical business of thirty-six month period preceding the Company, or is directly competitive with, any business activity that the Company is conducting at the time of Employeedate Executive’s termination or has notified Employee that it proposes to conduct and for which the Company has, prior to the time of such termination, expended substantial resources (the “Designated Industry”),
(ii) divert to any competitor of the Company any customer of the Company, or
(iii) solicit any employee, consultant or independent contractor of the Company to change its relationship with the Company, or hire or offer employment to, or a consulting or independent contractor relationship with, any person to whom Employee actually knows the Company has offered employmentterminates; provided, however, that notwithstanding the foregoing, this provision does not apply to any employee, consultant or independent contractor of the Company who responds to a general solicitation for an advertised position provided Employee has not otherwise engaged in conduct prohibited by this Section 6.
6.2 Employee agrees to be bound by the provisions of this Section 6 in consideration for the Company’s employment of Employee, payment of the compensation and benefits provided under Section 3 and Section 4 above and the covenants and agreements set forth herein. The provisions of this Section 6 shall apply during the term of Employee’s employment with the Company and for a period of two (2) years following termination of Employee’s employment with the Company for any reason, whether such termination is at the initiative of Employee or the Company or before or after expiration of the Term. The parties agree that the provisions of this Section 6 shall survive any termination of this Agreement, Employee will continue to be bound by the provisions of this Section 6 until their expiration and Employee shall not be entitled construed to prohibit the passive ownership by Executive of not more than five percent (5%) of the capital stock of any corporation which is engaged in any Competing Business having a class of securities registered pursuant to the Exchange Act; or
(b) solicit or divert to any compensation from the Company with respect thereto except as provided under this Agreement.
6.3 Employee acknowledges that the provisions of this Section 6 are essential to protect the business and goodwill Competing Business any individual or entity which is an active or prospective customer of the Company. If , and/or its affiliates, or was such an active or prospective customer at any time during the provisions preceding twelve (12) months; or
(c) employ, attempt to employ, solicit or assist any Competing Business in employing any employee of this Section 6 shall be determined to be invalid the Company, and/or its affiliates, whether as an employee or unenforceable by reason of being vague or unreasonable as to area, duration or scope of activity, this Section 6 shall be considered divisible and shall become and be immediately amended to only such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and Employee agrees that this Section 6 as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included hereinconsultant.
Appears in 1 contract
Sources: Employment Agreement (Independence Realty Trust, Inc.)
Non-Competition and Non-Solicitation. 6.1 Employee agrees For purposes 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 learned significant secret, confidential, and proprietary information relating to the business of the Company. In addition, you have been provided with intimate ▇▇▇▇▇ ▇▇▇▇▇▇ August 10, 2016 knowledge regarding the Company’s technology, products, services, systems, methods, and operations. You also acknowledge that he 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 notcontinue 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 defined 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:
(ia) anywhere You shall not, either alone or in association with others, for a period of twelve (12) months after the Company does business, including but not limited to Williston Basin and the Rocky Mountain Region, engagetermination of your employment, directly or indirectly, alone on your own behalf, or as an employee, representative or agent of a shareholder third party, by ownership or any type of interest in any business enterprise, or by any other means whatsoever, engage in any business competitive with the Company’s products, or those of its parents, subsidiaries, or affiliates (other than collectively, a “Competitor’s Business”), or become associated with or render services to a Competitor’s Business. Mere ownership as a holder passive investor of less not more than ten five percent (105%) of the common stock securities of a corporation or other business enterprise shall not be deemed control of or an association with such corporation or enterprise for purposes of or otherwise violate the terms of this letter agreement.
(b) You shall not, either alone or in association with others, for a period of twelve (12) months after termination of your employment, directly or indirectly, call upon or solicit any publicly traded corporation), partner, officer, director, employee, consultant or advisorCompany customer, or otherwise in any way participate in those of its parents, subsidiaries, or become associated withaffiliates, any other business organization that is engaged or becomes engaged in any for business that is competitive with the same Company’s business, nor shall you permit a Competitor’s Business controlled directly or substantially identical business indirectly by you to do so.
(c) You shall not, either alone or in association with others, for a period of twelve (12) months after termination of your employment, directly or indirectly solicit, induce or attempt to induce, any employee or independent contractor of the Company, or is directly competitive withthose 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 business activity that the Company person who is conducting at the time of Employee’s termination employed or has notified Employee that it proposes to conduct and for which the Company has, prior to the time of such termination, expended substantial resources (the “Designated Industry”),
(ii) divert to any competitor of the Company any customer of the Company, or
(iii) solicit any employee, consultant or independent contractor of the Company to change its relationship with otherwise engaged by the Company, or hire or offer employment toany of its parents, subsidiaries, or a consulting or independent contractor relationship withaffiliates, at any person to whom Employee actually knows time while you were employed by the Company has offered employmentCompany; provided, however, that this provision does shall not apply to the solicitation, hiring or other engagement of any employee, consultant individual whose employment or independent contractor of the Company who responds to a general solicitation for an advertised position provided Employee has not otherwise engaged in conduct prohibited by this Section 6.
6.2 Employee agrees to be bound by the provisions of this Section 6 in consideration for the Company’s employment of Employee, payment of the compensation and benefits provided under Section 3 and Section 4 above and the covenants and agreements set forth herein. The provisions of this Section 6 shall apply during the term of Employee’s employment other engagement with the Company and has been terminated for a period of two six (26) years following termination months or longer ▇▇▇▇▇ ▇▇▇▇▇▇ August 10, 2016 nor general advertising not directed specifically at any of Employeethe 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 employment Business. You agree that these restrictions are reasonable, no greater than what is required to protect the Company’s legitimate interests with respect to trade secrets, confidential information and customers, and customer relationships, and do not impair or prevent you from earning a living. It is the intention of the parties to restrict your activities only to the extent necessary for the protection of the Company’s legitimate business interests. To the extent that this Paragraph of this letter agreement is determined by a court of competent jurisdiction to be invalid or unenforceable in any respect or to any extent, the Paragraph shall not be rendered invalid, but instead shall be automatically amended for such lesser term or to such lesser extent, or in such other degree, as may grant the Company for any reason, whether the maximum protection and restrictions on your activities permitted by applicable law in such termination is at the initiative of Employee or the Company or before or after expiration of the Termcircumstances. The parties agree that non-competition and non-solicitation obligations contained in this letter agreement shall be extended by the length of time during which you shall have been in breach of any of said provisions. If you violate the provisions of this Section 6 shall survive any termination of the preceding sections of this AgreementParagraph, Employee will you shall continue to be bound by the provisions restrictions set forth in such section until the period equal to the period of this Section 6 until their expiration and Employee shall not be entitled to restriction has expired without any compensation from the Company with respect thereto except as provided under this Agreementviolation.
6.3 Employee acknowledges that the provisions of this Section 6 are essential to protect the business and goodwill of the Company. If at any time the provisions of this Section 6 shall be determined to be invalid or unenforceable by reason of being vague or unreasonable as to area, duration or scope of activity, this Section 6 shall be considered divisible and shall become and be immediately amended to only such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and Employee agrees that this Section 6 as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included herein.
Appears in 1 contract
Non-Competition and Non-Solicitation. 6.1 In consideration of the salary paid to the Significant Employee by the Company and subject to applicable law, the Significant Employee agrees that he will notduring the term of the Employment and for a period of one (1) year following the termination of the Employment for whatever reason:
(ia) anywhere The Significant Employee will not approach clients, customers or contacts of the Company does businessor other persons or entities introduced to the Significant Employee in the Significant Employee’s capacity as a representative of the Company for the 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) The Significant Employee will not assume employment with or provide services as a director or otherwise for any Competitor, including but or engage, whether as principal, partner, licensor or otherwise, in any Competitor; and
(c) The Significant Employee will not limited to Williston Basin and the Rocky Mountain Region, engageseek, directly or indirectly, alone by the offer of alternative employment or as a shareholder (other than as a holder inducement whatsoever, to solicit the services of less than ten percent (10%) any employee of the common stock of any publicly traded corporation), partner, officer, director, employee, consultant Company employed as at or advisor, or otherwise in any way participate in or become associated with, any other business organization that is engaged or becomes engaged in any business that is after the same or substantially identical business of the Company, or is directly competitive with, any business activity that the Company is conducting at the time of Employee’s termination or has notified Employee that it proposes to conduct and for which the Company has, prior to the time date of such termination, expended substantial resources (or in the “Designated Industry”),
(ii) divert to any competitor of the Company any customer of the Company, or
(iii) solicit any employee, consultant or independent contractor of the Company to change its relationship with the Company, or hire or offer employment to, or a consulting or independent contractor relationship with, any person to whom Employee actually knows the Company has offered employment; provided, however, that this provision does not apply to any employee, consultant or independent contractor of the Company who responds to a general solicitation for an advertised position provided Employee has not otherwise engaged in conduct prohibited by this Section 6.
6.2 Employee agrees to be bound by the provisions of this Section 6 in consideration for the Company’s employment of Employee, payment of the compensation and benefits provided under Section 3 and Section 4 above and the covenants and agreements set forth hereinyear preceding such termination. The provisions contained in Section 10 are considered reasonable by the Significant Employee and the Company. In the event that any such provisions 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 make them valid and effective. This Section 10 shall survive the termination of this Section 6 shall apply during the term of Employee’s employment with the Company and for a period of two (2) years following termination of Employee’s employment with the Company Agreement for any reason. In the event the Significant Employee breaches this Section 10, whether such termination is the Significant Employee acknowledges that there will be no adequate remedy at the initiative of Employee or law, and the Company or before or after expiration of the Term. The parties agree that the provisions of this Section 6 shall survive any termination of this Agreement, Employee will continue to be bound by the provisions of this Section 6 until their expiration and Employee shall not be entitled to injunctive relief and/or a decree for specific performance, and such other relief as may be proper (including monetary damages if appropriate). In any compensation from event, the Company with respect thereto except as provided shall have right to seek all remedies permissible under this Agreementapplicable law.
6.3 Employee acknowledges that the provisions of this Section 6 are essential to protect the business and goodwill of the Company. If at any time the provisions of this Section 6 shall be determined to be invalid or unenforceable by reason of being vague or unreasonable as to area, duration or scope of activity, this Section 6 shall be considered divisible and shall become and be immediately amended to only such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and Employee agrees that this Section 6 as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included herein.
Appears in 1 contract
Sources: Employment Agreement (China SXT Pharmaceuticals, Inc.)
Non-Competition and Non-Solicitation. 6.1 Employee agrees that he will not:
(i) anywhere During the Company does business, including but not limited to Williston Basin and the Rocky Mountain Region, engage, directly or indirectly, alone or as a shareholder (other than as a holder of less than ten percent (10%) of the common stock of any publicly traded corporation), partner, officer, director, employee, consultant or advisor, or otherwise in any way participate in or become associated with, any other business organization that is engaged or becomes engaged in any business that is the same or substantially identical business of the Company, or is directly competitive with, any business activity that the Company is conducting at the time of Employee’s termination or has notified Employee that it proposes to conduct and for which the Company has, prior to the time of such termination, expended substantial resources (the “Designated Industry”),
(ii) divert to any competitor of the Company any customer of the Company, or
(iii) solicit any employee, consultant or independent contractor of the Company to change its relationship with the Company, or hire or offer employment to, or a consulting or independent contractor relationship with, any person to whom Employee actually knows the Company has offered employment; provided, however, that this provision does not apply to any employee, consultant or independent contractor of the Company who responds to a general solicitation for an advertised position provided Employee has not otherwise engaged in conduct prohibited by this Section 6.
6.2 Employee agrees to be bound by the provisions of this Section 6 in consideration for the Company’s employment of Employee, payment of the compensation and benefits provided under Section 3 and Section 4 above and the covenants and agreements set forth herein. The provisions of this Section 6 shall apply during the term of Employee’s employment with the Company and for a period of one (1) year following the Termination Date: (a) the Employee shall not in the United States or in any country in which the Company shall then be doing business, directly or indirectly, enter the employ of, or render any services to, any person, firm or corporation engaged in any business that is Competing with the business of the Company or of any of its Subsidiaries or Affiliates of which the Employee may become an employee or officer during the Employee’s employment with the Company; Employee shall not engage in such business on Employee’s own account; and Employee shall not become interested in any such business, directly or indirectly, as an individual, partner, shareholder, director, officer, principal, agent, employee, trustee, consultant, or any other relationship or capacity; provided, however, that nothing contained in this Section 9 shall be deemed to prohibit the Employee from acquiring, solely as an investment, up to two percent (2%) years of the shares of capital stock of any Competing public corporation or from being employed by or associated with (including serving as a consultant to) a subsidiary, division, department, unit or affiliate (each, a “Unit”) of an entity if that Unit is not engaged in any business which is Competing with the business of the Company, irrespective of whether some other Unit of such entity engages in such competition; and (b) the Employee nor any Affiliate of the Employee shall not, directly or indirectly, solicit, entice or persuade, or attempt to solicit, entice or persuade, any directors, key advisors, officers or employees of or consultants to the Company (collectively, “Associates of the Company”) to leave the services of the Company for any reason. This non-solicitation provision shall not apply to Associates of the Company who previously terminated their relationship with the Company. The above covenants will apply to the Employee, regardless of the circumstances under which the employment ends.
9.1 If the Employee commits a breach, or threatens to commit a breach, of any of the provisions of this Section 9, the Company shall have the following rights and remedies:
9.1.1 The right and remedy to have the provisions of this Agreement specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach shall cause irreparable injury to the Company and that money damages shall not provide an adequate remedy to the Company; and
9.1.2 The right and remedy immediately to cease providing the salary continuation payments and other benefits under Sections 6.1 and 6.2 of this Agreement and to require the Employee to repay to the Company any such payments and benefits that already have been provided as of the time the Company learns of Employee’s breach of this Section 9.
9.1.3 The right and remedy and to require the Employee to account for and pay over to the Company all compensation, profits, monies, accruals, increments or other benefits (collectively “Benefits”) derived or received by the Employee as the result of any transactions constituting a breach of any of the provisions of the preceding paragraph, and the Employee hereby agrees to account for and pay over such Benefits to the Company.
9.1.4 The one (1) year post-termination restriction period shall be tolled during any period of such breach or threatened breach. Each of the rights and remedies enumerated above shall be independent of the other, and shall be severally enforceable, and all of such rights and remedies shall be in addition to, and not in lieu of, any other rights and remedies available to the Company under law or in equity.
9.2 If any of the covenants contained in Section 7, 8 or 9, or any part thereof, is hereafter construed to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect without regard to the invalid portions.
9.3 If any of the covenants contained in Section 7, 8 or 9, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties agree that the court making such determination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
9.4 The covenants in Sections 7, 8, and 9 are conditions of Employee’s employment with the Company for Company, and they are not tied to Employee’s performance of any reasonparticular position, whether such termination is at role or job; therefore, the initiative of Employee or the Company or before or after expiration of the Term. The parties agree that the provisions of this Section 6 covenants in Sections 7, 8, and 9 shall survive any termination of this Agreementchange in Employee’s position, Employee will continue to be bound by the provisions of this Section 6 until their expiration and Employee shall not be entitled to any compensation from the Company with respect thereto except as provided under this Agreement.
6.3 Employee acknowledges that the provisions of this Section 6 are essential to protect the business and goodwill of the Company. If at any time the provisions of this Section 6 shall be determined to be invalid title, compensation, benefits, role, or unenforceable by reason of being vague or unreasonable as to area, duration or scope of activity, this Section 6 shall be considered divisible responsibilities and shall become remain in full force and be immediately amended to only effect following any such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and Employee agrees that this Section 6 as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included hereinchange.
Appears in 1 contract
Sources: Executive Employment Agreement (Ariad Pharmaceuticals Inc)
Non-Competition and Non-Solicitation. 6.1 Employee agrees that he will not:
(ia) anywhere the Company does business, including but not limited to Williston Basin and the Rocky Mountain Region, engage, directly or indirectly, alone or as a shareholder (other than as a holder of less than ten percent (10%) of the common stock of any publicly traded corporation), partner, officer, director, employee, consultant or advisor, or otherwise in any way participate in or become associated with, any other business organization that is engaged or becomes engaged in any business that is the same or substantially identical business Because of the Company, or is directly competitive with, any ’s legitimate business activity that the Company is conducting at the time of Employee’s termination or has notified Employee that it proposes to conduct interests and for which the Company has, prior to the time of such termination, expended substantial resources (the “Designated Industry”),
(ii) divert to any competitor in consideration of the Company any customer of good and valuable consideration offered in granting the CompanyPSUs to Grantee, or
(iii) solicit any employee, consultant or independent contractor of the Company to change its relationship with the Company, or hire or offer employment to, or a consulting or independent contractor relationship with, any person to whom Employee actually knows the Company has offered employment; provided, however, that this provision does not apply to any employee, consultant or independent contractor of the Company who responds to a general solicitation for an advertised position provided Employee has not otherwise engaged in conduct prohibited by this Section 6.
6.2 Employee agrees to be bound by the provisions of this Section 6 in consideration for the Company’s employment of Employee, payment of the compensation and benefits provided under Section 3 and Section 4 above and the covenants and agreements set forth herein. The provisions of this Section 6 shall apply during the term of EmployeeGrantee’s employment with the Company and for the Restricted Period (defined below), the Grantee agrees and covenants not to:
(i) directly or indirectly, in whole or in part, engage in, provide services to, or otherwise participate in, whether as an employee, employer, owner, operator, manager, advisor, consultant, agent, officer, partner, director, shareholder, volunteer, intern or in any other similar capacity to an entity engaged in a period of two Competitive Business (2as defined below);
(ii) years following termination of Employee’s directly or indirectly, (A) solicit, hire, attempt to hire, engage, contract with or recruit any Company Employee (as defined below), or (B) induce or otherwise advise or encourage any Company Employee to terminate or alter his or her employment with the Company; or
(iii) directly or indirectly, solicit, contact (including but not limited to, verbal, email, regular mail, express mail, telephone, fax, and instant message), attempt to contact or meet with the current or prospective business partners or counterparties (or business partners or counterparties that have engaged in business or financial transactions with the Company for and its subsidiaries within the twelve (12) month period preceding the Grantee’s Termination of Service).
(b) If the Grantee breaches any reasonof the restrictive covenants set forth in Section 7(a):
(i) all unvested Equity Awards (as defined below) made to Grantee pursuant to the Plan shall be immediately forfeited;
(ii) the Grantee shall be required to disgorge to the Company any shares of Common Stock issued to Grantee upon the vesting and settlement of any Equity Awards, whether such termination is at the initiative of Employee or the Company or before or after expiration proceeds of any sales of such shares of Common Stock issued to Grantee upon the Term. The parties agree vesting and settlement of such Equity Awards, which occurred during the Restricted Period; and
(iii) the Grantee hereby consents and agrees that the provisions of this Section 6 Company shall survive any termination of this Agreement, Employee will continue to be bound by the provisions of this Section 6 until their expiration and Employee shall not be entitled to seek, in addition to other available remedies, a temporary or permanent injunction or other equitable relief against such breach or threatened breach from any compensation from court of competent jurisdiction, without the Company with respect thereto except as provided under this Agreementnecessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall be in addition to, not in lieu of, legal remedies, money damages or other available forms of relief.
6.3 Employee acknowledges (c) The prohibitions in Section 7(a) do not, in any way, restrict or impede the Grantee from:
(i) Purchasing or owning less than five percent (5%) of the publicly traded securities of any corporation (even if such corporation is engaged in a Competitive Business), provided that such ownership represents a passive investment and that the provisions Grantee is not a controlling person or, or a member of a group that controls, such corporation; or
(ii) Exercising protected rights to the extent that such rights cannot be waived by this Section 6 are essential Agreement or from complying with any applicable law or regulation or a valid order of a court of competent jurisdiction or an authorized government agency, provided that such compliance does not exceed that required by the law, regulation or order (and, in such event, Grantee shall promptly provide written notice of any such order to protect the business and goodwill of the Company. If at any time ’s General Counsel).
(d) For the provisions purposes of this Section 6 shall be determined 7, the following terms have the meanings ascribed to be invalid or unenforceable by reason of being vague or unreasonable as to area, duration or scope of activity, this Section 6 shall be considered divisible and shall become and be immediately amended to only such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and Employee agrees that this Section 6 as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included herein.them below:
Appears in 1 contract
Sources: Performance Share Unit Agreement (Two Harbors Investment Corp.)
Non-Competition and Non-Solicitation. 6.1 Employee In consideration of the benefits of this Agreement to Sellers and in order to induce Purchaser to enter into this Agreement, and in order to protect the trade secrets, proprietary information and goodwill of the Company after the Closing and as a condition precedent to Purchaser entering into and performing its obligations under this Agreement, each Seller individually agrees that he will notto the following restrictions:
(ia) anywhere Seller hereby covenants and agrees that, from and after the Company does businessClosing and until the fifth anniversary of the Closing Date (the “Restricted Period”), including but not limited to Williston Basin Seller and its Affiliates shall not, within the Rocky Mountain Region, engageUnited States, directly or indirectly, alone or as a shareholder (other than as a holder of less than ten percent (10%) of the common stock of any publicly traded corporation), partner, officerstockholder, directormember, proprietor, consultant, employee, consultant or advisorjoint venturer, or otherwise in any way investor, engage in, or own, manage, operate or control, or participate in the ownership, management, operation or become associated withcontrol of, or provide services to any other business organization or entity that is engaged or becomes engaged engages anywhere in the United States in any business that is in direct or indirect competition with the same Business or substantially identical any other business of the Company, or is directly competitive with, any business activity that the Company is conducting at the time of Employee’s termination or has notified Employee that it proposes to conduct and for which the Company has, prior to the time of such termination, expended substantial resources (the “Designated Industry”),
(ii) divert to any competitor actively pursuing as of the Company any customer of the Closing Date, in a capacity in which Seller performs services substantially similar to those provided to Company, or
(iii) solicit any employee, consultant or independent contractor of the Company to change its relationship with the Company, or hire or offer employment to, or a consulting or independent contractor relationship with, any person to whom Employee actually knows the Company has offered employment; provided, however, that nothing herein shall prohibit Seller and its Affiliates from owning, in the aggregate, not more than one percent (1%) of any class of securities of a publicly traded entity in any of the foregoing lines of business so long as neither Seller nor any of its Affiliates participates in any way in the management, operation or control of such entity. Seller agrees that this provision does not apply covenant is reasonable with respect to its duration, geographical area and scope.
(b) Seller hereby covenants and agrees that, during the Restricted Period, Seller and its Affiliates shall not, directly or indirectly, as a partner, stockholder, member, proprietor, consultant, joint venturer, investor or in any other capacity, solicit or attempt to solicit or take any actions calculated to persuade (or that could otherwise reasonably be expected to cause) any Person who is or has been a customer, supplier, distributor, licensor, licensee, sales representative, sales agent, consultant or any other business relation of the Company prior to or after the Closing and with whom Seller has had material contact to cease doing business with, or to alter or limit its business relationship with, the Company. Neither Seller nor any of its Affiliates shall take any action designed or intended to have the effect of discouraging any customer, supplier, distributor, licensor, licensee, sales representative, sales agent, consultant or any other business relation of the Company from maintaining the same business relationships with the Company after the Closing as such Person maintained with the Company prior to the Closing.
(c) Seller hereby covenants and agrees that, during the Restricted Period, Seller and its Affiliates shall not, directly or indirectly, within the United States, as a partner, stockholder, member, proprietor, consultant, joint venturer, investor, employee or in any other capacity, hire or solicit to perform services (as an employee, consultant or independent contractor otherwise) any Persons who are or, within the 12-month period immediately preceding such Seller’s or such Affiliate’s action, were employees of the Company who responds or take any actions intended to persuade any employee of the Company to terminate his or her association with the Company; provided, however, that general solicitations of employment published in a journal, newspaper or other publication of general circulation or listed on any internet job site and not specifically directed towards such employees shall not be deemed to constitute solicitation for an advertised position provided Employee has not otherwise engaged in conduct prohibited by purposes of this Section 66.6(c).
6.2 Employee agrees (d) If any covenant in this Section 6.6 is found to be bound by unreasonable, arbitrary, or against public policy or otherwise not enforceable in accordance with its terms, such covenant will be considered to be divisible with respect to scope, time, and geographic area, and such lesser scope, time, or geographic area, or all of them, as a court of competent jurisdiction may determine to be reasonable, not arbitrary, or not against public policy, will be effective, binding, and enforceable against Seller and its Affiliates. Seller hereby acknowledges and agrees that: (i) the making of the covenants set forth in this Section 6.6 are a condition to Purchaser’s consummation of the Transactions; (ii) the Company’s businesses are nationwide in scope and its products and services are marketed and distributed throughout the United States; (iii) the Company competes with other businesses that are or could be located in any part of the United States; and (iv) the provisions of this Section 6 in consideration for 6.6 are reasonable and necessary to protect the Company’s employment of Employee, payment of the compensation business.
(e) Seller acknowledges and benefits provided under Section 3 and Section 4 above and the covenants and agreements set forth herein. The provisions affirms that a breach of this Section 6 shall apply during the term of Employee’s employment with 6.6 by Seller cannot be adequately compensated in an action for damages at Law, and equitable relief would be necessary to protect the Company and for Purchaser from a period violation of two (2) years following termination this Agreement and from the harm which this Agreement is intended to prevent. Accordingly, Seller agrees that in the event of Employee’s employment with any actual or threatened breach of such provisions, the Company and Purchaser shall (in addition to any other remedies which they may have) be entitled to enforce their rights and Seller’s obligations under this Section 6.6 not only by an action or actions for damages, but also by an action or actions for specific performance, temporary or permanent injunctive relief or other equitable relief in order to enforce or prevent any reasonviolations (whether anticipatory, whether such termination is at the initiative continuing or future) of Employee or the Company or before or after expiration of the Term. The parties agree that the provisions of this Section 6 shall survive any termination 6.6 and recover attorneys’ fees and costs for the same, and such relief may be granted without the necessity of this Agreementproving actual damages or the inadequacy of money damages, Employee will continue to be bound by or posting bond.
(f) Without limiting the provisions of this Section 6 until their expiration 6.6 and Employee in addition to the indemnification provisions set forth in Article XI, if Seller fails to comply with the restrictions set forth in this Section 6.6, Seller shall not be entitled deemed to have forfeited and shall have no further right, title or interest whatsoever to any compensation from the Company with respect thereto except as provided under this Agreementpayment due Seller, if any, hereunder.
6.3 Employee acknowledges that the provisions of this Section 6 are essential to protect the business and goodwill of the Company. If at any time the provisions of this Section 6 shall be determined to be invalid or unenforceable by reason of being vague or unreasonable as to area, duration or scope of activity, this Section 6 shall be considered divisible and shall become and be immediately amended to only such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and Employee agrees that this Section 6 as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included herein.
Appears in 1 contract
Sources: Merger Agreement (Medovex Corp.)
Non-Competition and Non-Solicitation. 6.1 Employee agrees that he will During the period commencing upon the Restatement Effective Date and ending on the one-year anniversary of the termination of the Executive’s employment with the Company, the Executive shall not, as an employee, employer, stockholder, officer, director, partner, colleague, consultant or other independent contractor, advisor, proprietor, lender, or in any other manner or capacity (other than with respect to the Executive’s services to the Company Affiliated Group), directly or indirectly:
(i) anywhere the Company does business, including but not limited to Williston Basin and the Rocky Mountain Region, engage, directly or indirectly, alone or as a shareholder (other than as a holder of less than ten percent (10%) of the common stock of any publicly traded corporation), partner, officer, director, employee, consultant or advisorperform services for, or otherwise in have any way participate in or become associated involvement with, a business unit of a person, where such business unit competes directly or indirectly with any other business organization that is engaged or becomes engaged in any business that is the same or substantially identical business member of the CompanyCompany Affiliated Group by (x) owning or operating broadband or mobile communications networks for telephone, mobile telephone, cable television or is directly competitive withinternet services, (y) providing mobile telephone, fixed line telephone, television or internet services or (z) owning, operating or providing any business activity that content-generation services or television channels, in each case principally in the Company is conducting at the time of Employee’s termination or has notified Employee that it proposes to conduct and for which the Company has, prior to the time of such termination, expended substantial resources United Kingdom (the “Designated IndustryCore Businesses”),
(ii) divert to any competitor of the Company any customer of the Company, or
(iii) solicit any employee, consultant or independent contractor of the Company to change its relationship with the Company, or hire or offer employment to, or a consulting or independent contractor relationship with, any person to whom Employee actually knows the Company has offered employment; provided, however, that this provision does Agreement shall not apply prohibit the Executive from owning up to 1% of any employeeclass of equity securities of one or more publicly traded companies;
(ii) hire any individual who is, consultant or independent contractor within the six months prior to the Executive’s termination was, an employee of any member of the Company who responds to a general solicitation for an advertised position provided Employee has not otherwise engaged Affiliated Group whose base salary at the time of hire exceeded £65,000 per year; or
(iii) solicit, in conduct prohibited by this Section 6.
6.2 Employee agrees to be bound by the provisions of this Section 6 in consideration for the Company’s employment of Employee, payment competition with any member of the compensation and benefits provided under Section 3 and Section 4 above and Company Affiliated Group in the covenants and agreements set forth herein. The provisions Core Businesses, any business, or order of this Section 6 shall apply business from any person that the Executive knows was a current or prospective customer of any member of the Company Affiliated Group during the term of EmployeeExecutive’s employment with employment; provided, that, notwithstanding the Company and for a period of two (2) years following termination of Employee’s employment with foregoing, the Company for any reason, whether such termination is at the initiative of Employee or the Company or before or after expiration of the Term. The parties agree that the provisions of this Section 6 shall survive any termination of this Agreement, Employee will continue to be bound by the provisions of this Section 6 until their expiration and Employee Executive shall not be entitled deemed to be in violation of clause (i) or (iii) 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 compensation 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 Company with respect thereto except as provided under this Agreement.
6.3 Employee acknowledges businesses and activities of any such entity that relate to the provisions of this Section 6 are essential to protect the business and goodwill of the Company. If at Core Businesses during any time the provisions of this Section 6 shall be determined to be invalid or unenforceable by reason of being vague or unreasonable as to area, duration or scope of activity, this Section 6 shall be considered divisible and shall become and be immediately amended to only such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and Employee agrees period that this Section 6 as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included herein9(b) is in effect.
Appears in 1 contract
Non-Competition and Non-Solicitation. 6.1 Employee In consideration of the Company’s entering into this Agreement, Executive agrees that he will during the Employment Term and for a period of twelve (12) months after the termination of the Employment Term, without regard to its termination for any reason which does not constitute a breach of this Agreement by the Company or a resignation for Good Reason by Executive, Executive shall not, unless acting pursuant hereto or with the prior written consent of the Board:
(ia) anywhere the Company does business, including but not limited to Williston Basin and the Rocky Mountain Region, engage, directly or indirectly, alone own, manage, operate, finance, join, control or participate in the ownership, management, operation, financing or control of, or be connected as a shareholder (other than as a holder of less than ten percent (10%) of the common stock of any publicly traded corporation), partner, an officer, director, employee, partner, principal, agent, representative, consultant or advisorotherwise with, or otherwise use or permit Executive’s name to be used in connection with any Competing Business (defined below) within any state in which the Company, and/or its affiliates, currently engage in any way participate Substantial Business Activity (defined below) or any state in or become associated withwhich the Company, any other business organization that is engaged or becomes and/or its affiliates, engaged in any business that is Substantial Business Activity during the same or substantially identical business of thirty-six month period preceding the Company, or is directly competitive with, any business activity that the Company is conducting at the time of Employeedate Executive’s termination or has notified Employee that it proposes to conduct and for which the Company has, prior to the time of such termination, expended substantial resources (the “Designated Industry”),
(ii) divert to any competitor of the Company any customer of the Company, or
(iii) solicit any employee, consultant or independent contractor of the Company to change its relationship with the Company, or hire or offer employment to, or a consulting or independent contractor relationship with, any person to whom Employee actually knows the Company has offered employmentterminates; provided, however, that notwithstanding the foregoing, this provision does not apply to any employee, consultant or independent contractor of the Company who responds to a general solicitation for an advertised position provided Employee has not otherwise engaged in conduct prohibited by this Section 6.
6.2 Employee agrees to be bound by the provisions of this Section 6 in consideration for the Company’s employment of Employee, payment of the compensation and benefits provided under Section 3 and Section 4 above and the covenants and agreements set forth herein. The provisions of this Section 6 shall apply during the term of Employee’s employment with the Company and for a period of two (2) years following termination of Employee’s employment with the Company for any reason, whether such termination is at the initiative of Employee or the Company or before or after expiration of the Term. The parties agree that the provisions of this Section 6 shall survive any termination of this Agreement, Employee will continue to be bound by the provisions of this Section 6 until their expiration and Employee shall not be entitled construed to prohibit the passive ownership by Executive of not more than five percent (5%) of the capital stock of any corporation which is engaged in any Competing Business having a class of securities registered pursuant to the Exchange Act; provided, further, that notwithstanding the foregoing, the Company recognizes that Executive currently has an ownership position in two multifamily rental properties; provided, further, that Executive may invest in additional commercial real estate properties but only after giving the Company the right to make the investment on the same terms and conditions as Executive; or
(b) solicit or divert to any compensation from the Company with respect thereto except as provided under this Agreement.
6.3 Employee acknowledges that the provisions of this Section 6 are essential to protect the business and goodwill Competing Business any individual or entity which is an active or prospective customer of the Company. If , and/or its affiliates, or was such an active or prospective customer at any time during the provisions preceding twelve (12) months; or
(c) employ, attempt to employ, solicit or assist any Competing Business in employing any employee of this Section 6 shall be determined to be invalid the Company, and/or its affiliates, whether as an employee or unenforceable by reason of being vague or unreasonable as to area, duration or scope of activity, this Section 6 shall be considered divisible and shall become and be immediately amended to only such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and Employee agrees that this Section 6 as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included hereinconsultant.
Appears in 1 contract
Sources: Employment Agreement (Independence Realty Trust, Inc)
Non-Competition and Non-Solicitation. 6.1 During the Term and for a period of one (1) year following the date of termination or nonrenewal of Employee’s employment with the Company, for any reason and whether voluntary or involuntary (other than termination pursuant to Section 5.1(a): (a) the Employee agrees that he will not:
(i) anywhere shall not in the United States or in any country in which the Company does shall then be doing business, including but not limited to Williston Basin and the Rocky Mountain Region, engage, directly or indirectly, alone or as a shareholder (other than as a holder of less than ten percent (10%) of enter the common stock of any publicly traded corporation), partner, officer, director, employee, consultant or advisoremploy of, or otherwise in render any way participate in or become associated withservices to, any other business organization that is engaged person, firm or becomes corporation engaged in any business that is competitive with the same or substantially identical business of the CompanyCompany or of any of its subsidiaries or affiliates of which the Employee may become an employee or officer during the Term; Employee shall not engage in such business on Employee’s own account; and Employee shall not become interested in any such business, directly or indirectly, as an individual, partner, shareholder, director, officer, principal, agent, employee, trustee, consultant, or is directly competitive with, any business activity that the Company is conducting at the time of Employee’s termination other relationship or has notified Employee that it proposes to conduct and for which the Company has, prior to the time of such termination, expended substantial resources (the “Designated Industry”),
(ii) divert to any competitor of the Company any customer of the Company, or
(iii) solicit any employee, consultant or independent contractor of the Company to change its relationship with the Company, or hire or offer employment to, or a consulting or independent contractor relationship with, any person to whom Employee actually knows the Company has offered employmentcapacity; provided, however, that nothing contained in this Section 10 shall be deemed to prohibit the Employee from acquiring, solely as an investment, shares of capital stock of any public corporation; (b) neither the Employee nor any Affiliate of the Employee shall solicit or utilize, or assist any person in any way to solicit or utilize, the services, directly or indirectly, of any of the Company's directors, consultants, members of the Board of Scientific and Medical Advisors, officers or employees (collectively, "Associates of the Company"). This non-solicitation and non-utilization provision does shall not apply to any employee, consultant or independent contractor Associates of the Company who responds to a general solicitation for an advertised position provided Employee has not otherwise engaged in conduct prohibited by this Section 6have previously terminated their relationship with the Company.
6.2 10.1 If the Employee agrees commits a breach, or threatens to be bound by commit a breach, of any of the provisions of this Section 6 in consideration for 10, the Company’s employment of Employee, payment of Company shall have the compensation following rights and benefits provided under Section 3 remedies:
10.1.1 The right and Section 4 above and remedy to have the covenants and agreements set forth herein. The provisions of this Section 6 Agreement specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach shall apply during the term of Employee’s employment with cause irreparable injury to the Company and that money damages shall not provide an adequate remedy to the Company; and
10.1.2 The right and remedy to require the Employee to account for a period of two (2) years following termination of Employee’s employment with and pay over to the Company all compensation, profits, monies, accruals,increments or other benefits (collectively "Benefits") derived or received by the Employee as the result of any transactions constituting a breach of any of the provisions of the preceding paragraph, and the Employee hereby agrees to account for and pay over such Benefits to the Company. Each of the rights and remedies enumerated above shall be independent of the other, and shall be severally enforceable, and all of such rights and remedies shall be in addition to, and not in lieu of, any reasonother rights and remedies available to the Company under law or in equity.
10.2 If any of the covenants contained in Section 8, whether 9 or 10, or any part thereof, is hereafter construed to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect without regard to the invalid portions.
10.3 If any of the covenants contained in Section 8, 9 or 10, or any part thereof, is held to be unenforceable because of the duration of such termination is at the initiative of Employee provision or the Company or before or after expiration of area covered thereby, the Term. The parties agree that the provisions court making such determination shall have the power to reduce the duration and/or area of this Section 6 such provision and, in its reduced form, such provision shall survive any termination of this Agreement, Employee will continue to then be bound by the provisions of this Section 6 until their expiration and Employee shall not be entitled to any compensation from the Company with respect thereto except as provided under this Agreementenforceable.
6.3 Employee acknowledges 10.4 The parties hereto intend to and hereby confer jurisdiction to enforce the covenants contained in Sections 8, 9 and 10 upon the courts of any state within the geographical scope of such covenants. In the event that the provisions courts of this Section 6 are essential to protect the business and goodwill any one or more of the Company. If at such states shall hold any time the provisions of this Section 6 shall be determined to be invalid or such covenant wholly unenforceable by reason of being vague the breadth of such scope or unreasonable otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other states within the geographical scope of such covenants, as to areabreaches of such covenants in such other respective jurisdictions, duration or scope of activitythe above covenants as they relate to each state being, for this Section 6 shall be considered divisible purpose, severable into diverse and shall become and be immediately amended to only such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and Employee agrees that this Section 6 as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included hereinindependent covenants.
Appears in 1 contract
Sources: Executive Employment Agreement (Ariad Pharmaceuticals Inc)
Non-Competition and Non-Solicitation. 6.1 Employee agrees that he will not:
(i) anywhere During the Company does business, including but not limited to Williston Basin and the Rocky Mountain Region, engage, directly or indirectly, alone or as a shareholder (other than as a holder of less than ten percent (10%) of the common stock of any publicly traded corporation), partner, officer, director, employee, consultant or advisor, or otherwise in any way participate in or become associated with, any other business organization that is engaged or becomes engaged in any business that is the same or substantially identical business of the Company, or is directly competitive with, any business activity that the Company is conducting at the time of Employee’s termination or has notified Employee that it proposes to conduct and for which the Company has, prior to the time of such termination, expended substantial resources (the “Designated Industry”),
(ii) divert to any competitor of the Company any customer of the Company, or
(iii) solicit any employee, consultant or independent contractor of the Company to change its relationship with the Company, or hire or offer employment to, or a consulting or independent contractor relationship with, any person to whom Employee actually knows the Company has offered employment; provided, however, that this provision does not apply to any employee, consultant or independent contractor of the Company who responds to a general solicitation for an advertised position provided Employee has not otherwise engaged in conduct prohibited by this Section 6.
6.2 Employee agrees to be bound by the provisions of this Section 6 in consideration for the Company’s employment of Employee, payment of the compensation and benefits provided under Section 3 and Section 4 above and the covenants and agreements set forth herein. The provisions of this Section 6 shall apply during the term of Employee’s employment with the Company Term and for a period of two (2) years one year following the date of termination of Employee’s employment with the Company and/or the termination of this Agreement, for any reasonreason and whether voluntary or involuntary: (a) the Employee shall not in the United States or in any country in which the Company shall then be doing business, whether such termination directly or indirectly, enter the employ of, or render any services to, any person, firm or corporation engaged in any business that is at competitive with the initiative business of Employee or the Company or before of any of its subsidiaries or after expiration affiliates of which the Term. The parties agree Employee may become an employee or officer during the Term where the nature of such employment or services causes the Employee to serve primarily in a non-lawyer capacity; under such circumstances, Employee shall not engage in such business on Employee’s own account; and Employee shall not become interested in any such business, directly or indirectly, as an individual, partner, shareholder, director, officer, principal, agent, employee, trustee, consultant, or any other relationship or capacity; provided, however, that nothing contained in this Section 10 shall be deemed to prohibit the Employee from (i) acquiring, solely as an investment, shares of capital stock of any public corporation; or (ii) performing a role in which Employee’s primary duty is to render legal services to a person or entity, either as inside or outside legal counsel;
10.1 If the Employee commits a breach, or threatens to commit a breach, of any of the provisions of this Section 6 10, the Company shall have the following rights and remedies:
10.1.1 The right and remedy to have the provisions of this Agreement specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach shall cause irreparable injury to the Company and that money damages shall not provide an adequate remedy to the Company; and
10.1.2 The right and remedy immediately to cease providing the salary continuation payments and other benefits under Sections 6.1 and 6.2 of this Agreement and to require the Employee to repay to the Company any such payments and benefits that already have been provided as of the time the Company learns of Employee’s breach of this Section 10.
10.1.3 The right and remedy and to require the Employee to account for and pay over to the Company all compensation, profits, monies, accruals, increments or other benefits (collectively "Benefits") derived or received by the Employee as the result of any transactions constituting a breach of any of the provisions of the preceding paragraph, and the Employee hereby agrees to account for and pay over such Benefits to the Company. Each of the rights and remedies enumerated above shall be independent of the other, and shall be severally enforceable, and all of such rights and remedies shall be in addition to, and not in lieu of, any other rights and remedies available to the Company under law or in equity.
10.2 If any of the covenants contained in Section 8, 9 or 10, or any part thereof, is hereafter construed to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect without regard to the invalid portions.
10.3 If any of the covenants contained in Section 8, 9 or 10, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties agree that the court making such determination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
10.4 The parties hereto intend to and hereby confer jurisdiction to enforce the covenants contained in Sections 8, 9 and 10 upon the courts of any state within the geographical scope of such covenants. In the event that the courts of any one or more of such states shall hold any such covenant wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other states within the geographical scope of such covenants, as to breaches of such covenants in such other respective jurisdictions, the above covenants as they relate to each state being, for this purpose, severable into diverse and independent covenants.
10.5 The covenants in Sections 8, 9, and 10 are conditions of Employee’s continued employment with the Company, and they are not tied to Employee’s performance of any particular position, role or job; therefore, the covenants in Sections 8, 9, and 10 shall survive any termination of this Agreementchange in Employee’s position, title, compensation, benefits, role, or responsibilities and shall remain in full force and effect following any such change. By continuing in the Company’s employ, Employee will continue continually re-affirms the intention to be bound by the provisions of this Section 6 until their expiration and Employee shall not be entitled to any compensation from the Company with respect thereto except as provided under this Agreementthese ongoing covenants.
6.3 Employee acknowledges that the provisions of this Section 6 are essential to protect the business and goodwill of the Company. If at any time the provisions of this Section 6 shall be determined to be invalid or unenforceable by reason of being vague or unreasonable as to area, duration or scope of activity, this Section 6 shall be considered divisible and shall become and be immediately amended to only such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and Employee agrees that this Section 6 as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included herein.
Appears in 1 contract
Sources: Executive Employment Agreement (Ariad Pharmaceuticals Inc)
Non-Competition and Non-Solicitation. 6.1 Employee (a) The Executive hereby understands, acknowledges and agrees that, by virtue of his position at the Company, he has or will have advantageous familiarity and personal contacts with the suppliers, vendors, employees and customers (wherever located) of the Company and the Company’s subsidiaries or affiliates and has and will have advantageous familiarity with the Confidential Information. As such, and in view of the competitive nature of the business in which the Company and the Company’s subsidiaries and affiliates 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’s business and the Confidential Information.
(b) At all times while the Executive is employed by the Company, he will shall not engage in or compete with, or assist another party in engaging in or competing with (or finance, operate or control) any business, operation or activity which is conducted or proposed to be conducted by the Company or any of the Company’s subsidiaries or affiliates (or which is in the same or a similar line of business as or competes with the Company or any of the Company’s 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 or any of Company’s subsidiaries or affiliates relating to products or services offered or sold by any of them.
(c) For a period of nine (9) months following his last day of employment with the Company (whether the Executive’s employment is terminated by the Company or the Executive and whether such termination is with or without Cause, with or without Good Reason or otherwise), the Executive shall not, in any location within the United States of America, directly or indirectly, or individually or together with any other party, as owner, shareholder, investor, member, partner, proprietor, principal, director, officer, employee, manager, agent, representative, independent contractor, consultant or otherwise:
(i) anywhere engage in or compete with or assist another party in engaging in or competing with (or finance, operate or control) any business, operation or activity which competes with any business, operation or activity that is conducted or actively being developed or pursued by the Company does business, including but not limited to Williston Basin and the Rocky Mountain Region, engage, directly or indirectly, alone or as a shareholder (other than as a holder of less than ten percent (10%) any of the common stock of any publicly traded corporation), partner, officer, director, employee, consultant Company’s subsidiaries or advisor, affiliates (or otherwise which is in any way participate in or become associated with, any other business organization that is engaged or becomes engaged in any business that is the same or substantially identical a similar line of business as the Company or any of its subsidiaries or affiliates) on the Executive’s last day of employment, or which was conducted or actively being developed or pursued by the Company or any of the Company, ’s subsidiaries or is directly competitive with, affiliates at any business activity that time during the Company is conducting at the time one (1) year period preceding his last day of Employee’s termination or has notified Employee that it proposes to conduct and for which the Company has, prior to the time of such termination, expended substantial resources (the “Designated Industry”),employment; or
(ii) divert solicit in any manner, seek to obtain, service or accept any competitor business of any party who is a customer of the Company or any of the Company’s subsidiaries or affiliates relating to products or services offered or sold by any of them on the Executive’s last day of employment or who was an existing or prospective customer of the Company or any of the Company, ’s subsidiaries or affiliates at any time during the one (1) year period preceding the Executive’s last day of employment; or
(iii) solicit offer or provide employment, hire or engage (whether on a full-time, part-time or consulting basis or otherwise) any employee, consultant or independent contractor individual who is an employee of the Company to change its relationship with the Company, or hire or offer employment to, or a consulting or independent contractor relationship with, any person to whom Employee actually knows the Company has offered employment; provided, however, that this provision does not apply to any employee, consultant or independent contractor of the Company who responds to a general solicitation for an advertised position provided Employee has not otherwise engaged in conduct prohibited by this Section 6.
6.2 Employee agrees to be bound by the provisions of this Section 6 in consideration for the Company’s employment of Employee, payment subsidiaries or affiliates on the last day of the compensation and benefits provided under Section 3 and Section 4 above and the covenants and agreements set forth herein. The provisions of this Section 6 shall apply Executive’s employment or who was such an employee at any time during the term one (1) year period preceding the Executive’s last day of Employeeemployment, nor shall the Executive request or attempt to influence any person who is employed by the Company or any of the Company’s subsidiaries or affiliates on the Executive’s last day of employment to terminate such employee’s employment with the Company and for or any of the Company’s subsidiaries or affiliates; or
(iv) request, encourage or advise any party who is a period of two (2) years following termination of Employee’s employment customer, supplier, vendor or otherwise doing business with the Company for or any reasonof the Company’s subsidiaries or affiliates on the Executive’s last day of employment to terminate, whether such termination is at the initiative of Employee reduce, limit or change their business or relationship with the Company or before or after expiration any of the TermCompany’s subsidiaries or affiliates. Notwithstanding the foregoing, in the event the Executive’s employment is terminated following a Change in Control in accordance with Section 3(d) hereof, then the covenants of the Executive set forth above in this Section 5(c) shall be in effect for twelve (12) months instead of nine (9) months.
(d) The parties Executive acknowledges the nationwide scope of the business of the Company and the Company’s subsidiaries or affiliates. Nevertheless, in the event that any provision of Section 5(c) is found by a court of competent jurisdiction to exceed the geographic 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.
(e) The Company and the Executive agree that the provisions of this Section 6 5 shall survive any termination of this Agreement, Employee will continue to be bound by the provisions of severable in accordance with Section 8(e) hereof.
(f) The restrictions and covenants contained in this Section 6 until their expiration and Employee 5 shall be deemed not be entitled to any compensation from run during all periods of noncompliance, with the Company with respect thereto except as provided under this Agreement.
6.3 Employee acknowledges that the provisions of this Section 6 are essential to protect the business and goodwill intention of the Company. If at any time parties being to have such restrictions and covenants apply during the provisions of full periods specified in this Section 6 shall be determined to be invalid or unenforceable by reason of being vague or unreasonable as to area, duration or scope of activity, this Section 6 shall be considered divisible and shall become and be immediately amended to only such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and Employee agrees that this Section 6 as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included hereinSection.
Appears in 1 contract
Non-Competition and Non-Solicitation. 6.1 Employee agrees that he will not:During the Term and for a period of one year following the date of termination or nonrenewal for any reason (other than termination pursuant to Section 5.1(a)):
(ia) anywhere the Company does Employee shall not in the United States or in any country in which the Employer shall then be doing business, including but not limited to Williston Basin and the Rocky Mountain Region, engage, directly or indirectly, alone or as a shareholder (other than as a holder of less than ten percent (10%) of enter the common stock of any publicly traded corporation), partner, officer, director, employee, consultant or advisoremploy of, or otherwise in render any way participate in or become associated withservices to, any other business organization that is engaged person, firm or becomes corporation engaged in any business that is competitive with the same or substantially identical business of the CompanyCompany or of any of its subsidiaries or affiliates of which the Employee may become an employee or officer during the Term; he shall not engage in such business on his own account; and he shall not become interested in any such business, directly or indirectly, as an individual, partner, shareholder, director, officer, principal, agent, employee, trustee, consultant, or is directly competitive with, any business activity that the Company is conducting at the time of Employee’s termination other relationship or has notified Employee that it proposes to conduct and for which the Company has, prior to the time of such termination, expended substantial resources (the “Designated Industry”),
(ii) divert to any competitor of the Company any customer of the Company, or
(iii) solicit any employee, consultant or independent contractor of the Company to change its relationship with the Company, or hire or offer employment to, or a consulting or independent contractor relationship with, any person to whom Employee actually knows the Company has offered employmentcapacity; provided, however, that nothing contained in this Section 10 shall be deemed to prohibit the Employee from acquiring, solely as an investment, shares of capital stock of any public corporation;
(b) neither the Employee nor any Affiliate of the Employee shall solicit or utilize, or assist any person in any way to solicit or utilize, the services, directly or indirectly, of any of the Company's directors, consultants, members of the Board of Scientific and Medical Advisors, officers or employees (collectively, "Associates of the Company"). This nonsolicitation and nonutilization provision does shall not apply to any employee, consultant or independent contractor Associates of the Company who responds to a general solicitation for an advertised position provided Employee has not otherwise engaged in conduct prohibited by this Section 6have previously terminated their relationship with the Company.
6.2 10.1 If the Employee agrees commits a breach, or threatens to be bound by commit a breach, of any of the provisions of this Section 6 in consideration for 10, the Company’s employment of Employee, payment of Company shall have the compensation following rights and benefits provided under Section 3 remedies:
10.1.1 The right and Section 4 above and remedy to have the covenants and agreements set forth herein. The provisions of this Section 6 Agreement specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach shall apply during the term of Employee’s employment with cause irreparable injury to the Company and that money damages shall not provide an adequate remedy to the Company; and
10.1.2 The right and remedy to require the Employee to account for a period of two (2) years following termination of Employee’s employment with and pay over to the Company all compensation, profits, monies, accruals, increments or other benefits (collectively "Benefits") derived or received by the Employee as the result of any transactions constituting a breach of any of the provisions of the preceding paragraph, and the Employee hereby agrees to account for and pay over such Benefits to the Company. Each of the rights and remedies enumerated above shall be independent of the other, and shall be severally enforceable, and all of such rights and remedies shall be in addition to, and not in lieu of, any reasonother rights and remedies available to the Company under law or in equity.
10.2 If any of the covenants contained in Section 8, whether 9 or 10, or any part thereof, is hereafter construed to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect without regard to the invalid portions.
10.3 If any of the covenants contained in Section 8, 9 or 10, or any part thereof, is held to be unenforceable because of the duration of such termination is at the initiative of Employee provision or the Company or before or after expiration of area covered thereby, the Term. The parties agree that the provisions court making such determination shall have the power to reduce the duration and/or area of this Section 6 such provision and, in its reduced form, such provision shall survive any termination of this Agreement, Employee will continue to then be bound by the provisions of this Section 6 until their expiration and Employee shall not be entitled to any compensation from the Company with respect thereto except as provided under this Agreementenforceable.
6.3 Employee acknowledges 10.4 The parties hereto intend to and hereby confer jurisdiction to enforce the covenants contained in Sections 8, 9 and 10 upon the courts of any state within the geographical scope of such covenants. In the event that the provisions courts of this Section 6 are essential to protect the business and goodwill any one or more of the Company. If at such states shall hold any time the provisions of this Section 6 shall be determined to be invalid or such covenant wholly unenforceable by reason of being vague the breadth of such scope or unreasonable otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other states within the geographical scope of such covenants, as to areabreaches of such covenants in such other respective jurisdictions, duration or scope of activitythe above covenants as they relate to each state being, for this Section 6 shall be considered divisible purpose, severable into diverse and shall become and be immediately amended to only such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and Employee agrees that this Section 6 as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included hereinindependent covenants.
Appears in 1 contract
Sources: Executive Employment Agreement (Ariad Pharmaceuticals Inc)
Non-Competition and Non-Solicitation. 6.1 Employee agrees that he will During the Restricted Period, the Executive shall not, and shall cause its Affiliates not to, directly or indirectly through any Person or contractual arrangement:
(i) anywhere the Company does businessmanage, including but not limited to Williston Basin and the Rocky Mountain Regionoperate, engageadvise or consult for, directly render services to, run, control or indirectly, alone or as a shareholder externally manage any Restricted Business (other than as a holder any real estate held or owned by the Executive in his personal capacity or any trust controlled by such individual whose beneficiaries are members of less than ten percent (10%) of the common stock of any publicly traded corporation), partner, officer, director, employee, consultant or advisor, or otherwise in any way participate in or become associated with, any other business organization that is engaged or becomes engaged in any business that is the same or substantially identical business of the Company, or is directly competitive with, any business activity that the Company is conducting at the time of Employee’s termination or has notified Employee that it proposes to conduct and for which the Company has, his family whether acquired prior to or after the time of such terminationdate hereof, expended substantial resources (in each case as set forth on Schedule I in the “Designated Industry”),
(ii) divert to any competitor of the Company any customer of the Company, or
(iii) solicit any employee, consultant or independent contractor of the Company to change its relationship with the Company, or hire or offer employment to, or a consulting or independent contractor relationship with, any person to whom Employee actually knows the Company has offered employmentRestricted Territory; provided, however, that the restrictions contained in this provision Agreement shall in no way be deemed to restrict the Executive or its Affiliates from (i) serving as an employee, officer, director or other service provider of any Group Company (or performing his duties under this Agreement); (ii) owning, directly or indirectly (x) up to 4.9 % of any class of securities of any public entity or (y) any passive investment in any entity that the Executive does not control; (iii) investing equity of no more than the amount set forth on Schedule I of this Agreement in real estate partnerships that own mixed use and shopping center real estate provided, that such activities do not conflict with the terms of the this Agreement or the Executive’s fiduciary duties to the Company; or (iv) working as an employee or acting as a consultant or contractor to a Competitive Entity to the extent such activities do not conflict with the terms of this Agreement; provided, that in each case the Executive does not personally engage in, or provide any services for use in, the Restricted Business and that the Executive performs services exclusively in a division, subsidiary or affiliated entity of the Competitive Entity that does not materially engage in the Restricted Business; provided that Executive shall not be restricted from the matter set forth on or are set forth on Schedule I;
(ii) employ, hire, enter into an agency or consulting relationship with or recruit or solicit for employment any employee of a Group Company (“Restricted Employees”); provided, that the foregoing shall not apply to any employee, consultant or independent contractor of the Company (i) Restricted Employees who responds to a general solicitation for an advertised position provided Employee has not otherwise engaged in conduct prohibited by this Section 6.
6.2 Employee agrees ceased to be bound employed by the provisions of this Section 6 in consideration for the Company’s employment of Employeea Group Company at least ninety (90) days prior to any solicitation by, payment of the compensation and benefits provided under Section 3 and Section 4 above and the covenants commencement of any discussions with, the Executive or any of its Affiliates; (ii) any general solicitations not targeted at Restricted Employees (including through the use of recruiting firms or advertisements in any newspaper, magazine, trade publication, electronic medium or other media) or any hiring as a result thereof; and agreements set forth herein. The provisions of this Section 6 shall apply (iii) the assistant and secretary assigned to work with the Executive during the term of Employee’s his employment with the Company Company, notwithstanding this Agreement or any other agreement to the contrary, it is acknowledged and for agreed that Executive is a period direct or indirect member, owner, director or officer of two (2AR Global Investments, LLC and certain other entities that do not engage in activities that are violative of Section 8(a)(ii) years following termination of Employee’s employment with the Company for any reason, whether such termination is at the initiative of Employee or the Company or before or after expiration of the Term. The parties agree that the provisions of this Section 6 Agreement and that such individuals shall survive any termination of this Agreement, Employee will be permitted to continue to be bound by engage in such business activities; or
(iii) encourage any customer, Prospective Customer or supplier who is a customer, Prospective Customer or supplier of any Group Company to terminate or adversely modify any relationship with a Group Company, provided that in each case the provisions Executive had or should have had knowledge of this Section 6 until their expiration and Employee shall not be entitled to any compensation from the Company with respect thereto except as provided under this Agreementsuch Prospective Customer.
6.3 Employee acknowledges that the provisions of this Section 6 are essential to protect the business and goodwill of the Company. If at any time the provisions of this Section 6 shall be determined to be invalid or unenforceable by reason of being vague or unreasonable as to area, duration or scope of activity, this Section 6 shall be considered divisible and shall become and be immediately amended to only such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and Employee agrees that this Section 6 as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included herein.
Appears in 1 contract
Non-Competition and Non-Solicitation. 6.1 During the Term and for a period of one year following the date of termination or nonrenewal for any reason (other than for termination pursuant to Section 5.1(a): (a) the Employee agrees that he will not:
(i) anywhere shall not in the United States or in any country in which the Company does shall then be doing business, including but not limited to Williston Basin and the Rocky Mountain Region, engage, directly or indirectly, alone or as a shareholder (other than as a holder of less than ten percent (10%) of enter the common stock of any publicly traded corporation), partner, officer, director, employee, consultant or advisoremploy of, or otherwise in render any way participate in or become associated withservices to, any other business organization that is engaged person, firm or becomes corporation engaged in any business that is competitive with the same or substantially identical business of the CompanyCompany or of any of its subsidiaries or affiliates of which the Employee may become an employee or officer during the Term; he shall not engage in such business on his own account; and he shall not become interested in any such business, directly or indirectly, as an individual, partner, shareholder, director, officer, principal, agent, employee, trustee, consultant, or is directly competitive with, any business activity that the Company is conducting at the time of Employee’s termination other relationship or has notified Employee that it proposes to conduct and for which the Company has, prior to the time of such termination, expended substantial resources (the “Designated Industry”),
(ii) divert to any competitor of the Company any customer of the Company, or
(iii) solicit any employee, consultant or independent contractor of the Company to change its relationship with the Company, or hire or offer employment to, or a consulting or independent contractor relationship with, any person to whom Employee actually knows the Company has offered employmentcapacity; provided, however, that nothing contained in this Section 10 shall be deemed to prohibit the Employee from acquiring, solely as an investment, shares of capital stock of any public corporation; (b) neither the Employee nor any Affiliate of the Employee shall solicit or utilize, or assist any person in any way to solicit or utilize, the services, directly or indirectly, of any of the Company's directors, consultants, members of the Board of Scientific and Medical Advisors, officers or employees (collectively, "Associates of the Company"). This nonsolicitation and nonutilization provision does shall not apply to any employee, consultant or independent contractor Associates of the Company who responds to a general solicitation for an advertised position provided Employee has not otherwise engaged in conduct prohibited by this Section 6have previously terminated their relationship with the Company.
6.2 10.1 If the Employee agrees commits a breach, or threatens to be bound by commit a breach, of any of the provisions of this Section 6 in consideration for 10, the Company’s employment of Employee, payment of Company shall have the compensation following rights and benefits provided under Section 3 remedies:
10.1.1 The right and Section 4 above and remedy to have the covenants and agreements set forth herein. The provisions of this Section 6 Agreement specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach shall apply during the term of Employee’s employment with cause irreparable injury to the Company and that money damages shall not provide an adequate remedy to the Company; and
10.1.2 The right and remedy to require the Employee to account for a period of two (2) years following termination of Employee’s employment with and pay over to the Company all compensation, profits, monies, accruals, increments or other benefits (collectively "Benefits") derived or received by the Employee as the result of any transactions 6 constituting a breach of any of the provisions of the preceding paragraph, and the Employee hereby agrees to account for and pay over such Benefits to the Company. Each of the rights and remedies enumerated above shall be independent of the other, and shall be severally enforceable, and all of such rights and remedies shall be in addition to, and not in lieu of, any reasonother rights and remedies available to the Company under law or in equity.
10.2 If any of the covenants contained in Section 8, whether 9 or 10, or any part thereof, is hereafter construed to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect without regard to the invalid portions.
10.3 If any of the covenants contained in Section 8, 9 or 10, or any part thereof, is held to be unenforceable because of the duration of such termination is at the initiative of Employee provision or the Company or before or after expiration of area covered thereby, the Term. The parties agree that the provisions court making such determination shall have the power to reduce the duration and/or area of this Section 6 such provision and, in its reduced form, such provision shall survive any termination of this Agreement, Employee will continue to then be bound by the provisions of this Section 6 until their expiration and Employee shall not be entitled to any compensation from the Company with respect thereto except as provided under this Agreementenforceable.
6.3 Employee acknowledges 10.4 The parties hereto intend to and hereby confer jurisdiction to enforce the covenants contained in Sections 8, 9 and 10 upon the courts of any state within the geographical scope of such covenants. In the event that the provisions courts of this Section 6 are essential to protect the business and goodwill any one or more of the Company. If at such states shall hold any time the provisions of this Section 6 shall be determined to be invalid or such covenant wholly unenforceable by reason of being vague the breadth of such scope or unreasonable otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other states within the geographical scope of such covenants, as to areabreaches of such covenants in such other respective jurisdictions, duration or scope of activitythe above covenants as they relate to each state being, for this Section 6 shall be considered divisible purpose, severable into diverse and shall become and be immediately amended to only such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and Employee agrees that this Section 6 as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included hereinindependent covenants.
Appears in 1 contract
Sources: Executive Employment Agreement (Ariad Pharmaceuticals Inc)
Non-Competition and Non-Solicitation. 6.1 Employee agrees In consideration of your continued employment with the Company and the various benefits and payments provided in conjunction therewith, you agree that he during the term of your employment with Harman and for a period of 12 months after you cease to be employed by the Company or one of our affiliates you will not:
, without the Company’s prior written consent, become an employee, officer, director or investor (iother than a minority shareholder or other equity interest of not more than 1% of a company whose equity interests are publicly traded on a nationally recognized stock exchange or over-the-counter) in any business or enterprise, anywhere in the world, that directly or indirectly competes with the business of the Company does businessor any affiliate and is set forth on the list of competitors (the “Competitive List”) as provided to you on or about the date hereof, including but as it may be modified by the Company from time to time by written notice to you, provided that any modification shall not limited be effective until ninety (90) days after provided to Williston Basin you and only if you are then employed by the Rocky Mountain RegionCompany. The Competitive List may not contain more than fifteen (15) entities. You further agree that during your employment and for a period of 12 months from termination of your employment with the Company, engageyou shall not (a) employ, retain, solicit or recruit for employment or retention or assist any other person or entity in employing, retaining, soliciting or recruiting, directly or indirectly, alone any individual employed by the Company or one of its affiliates or who had been so employed in the prior six (6) months; provided that the non-solicitation limitation shall not be violated by advertising or searches not specifically targeted at the employees of the Company or one of its affiliates, or by serving as a shareholder reference upon request to an entity with which you are not affiliated, or (other b) interfere with the Company’s or any of its affiliate’s relationship with any of its or their suppliers, vendors, joint venturers or independent contractors. You acknowledge that, because of and during the course of your employment by the Company, you will learn or develop confidential information relating to the Company’s sales, marketing or servicing, and relating to the Company’s customers. You recognize that the Company’s relationships with its customers are extremely valuable to it and thus the protection of the Company’s relationships with its customers is essential. Accordingly and in consideration of your continued employment with the Company and the various benefits and payments provided in conjunction therewith, you agree that you will not solicit or attempt to solicit, directly or through another, for a period of 12 months from your termination of employment with the Company, for any reason, and for the purpose of providing services or products that are the same or similar to those offered for sale by the Company at the time of your termination and which services or products group represents more than as a holder of less than ten 10 percent (10%) of the common stock revenues of any publicly traded corporation), partner, officer, director, employee, consultant the Company and its affiliates for its most recently completed fiscal year or advisor, is expected to do so in the current or otherwise in any way participate in or become associated withnext fiscal year, any other business organization that is engaged existing or becomes engaged in prospective customer of the Company or any business that is the same one of its affiliates which you solicited or substantially identical business of with whom you had direct contact while employed by the Company, or is directly competitive with, any business activity provided that the Company is conducting at the time foregoing shall not apply to retail consumers of Employee’s termination or has notified Employee that it proposes to conduct and for which the Company hasor any of its affiliates. The Company and you acknowledge that the time, prior to scope, geographic area and other provisions of this Section 2 have been specifically negotiated by sophisticated commercial parties and agree that all such provisions are reasonable under the time circumstances of such terminationthe activities contemplated by this Agreement. You acknowledge and agree that the terms of this Section 2: (i) are reasonable in light of all of the circumstances, expended substantial resources (the “Designated Industry”),
(ii) divert are sufficiently limited to any competitor protect the legitimate interests of the Company any customer of the Companyand its affiliates, or
(iii) solicit any employeeimpose no undue hardship on you, consultant or independent contractor and (iv) are not injurious to the public. You further acknowledge and agree that your breach of the Company to change its relationship with the Company, or hire or offer employment to, or a consulting or independent contractor relationship with, any person to whom Employee actually knows the Company has offered employment; provided, however, that this provision does not apply to any employee, consultant or independent contractor of the Company who responds to a general solicitation for an advertised position provided Employee has not otherwise engaged in conduct prohibited by this Section 6.
6.2 Employee agrees to be bound by the provisions of this Section 6 in consideration for 2 will cause the Company irreparable harm, which cannot be adequately compensated by money damages, and that if the Company elects to prevent you from breaching such provisions by obtaining an injunction against you, there is a reasonable probability of the Company’s employment of Employeeeventual success on the merits. You consent and agree that if you commit any such breach or threaten to commit any breach, payment of the compensation and benefits provided under Section 3 and Section 4 above and the covenants and agreements set forth herein. The provisions of this Section 6 shall apply during the term of Employee’s employment with the Company shall be entitled to temporary and for permanent injunctive relief from a period court of two (2) years following termination competent jurisdiction, without posting any bond or other security and without the necessity of Employee’s employment with proof of actual damage, in addition to, and not in lieu of, such other remedies as may be available to the Company for any reasonsuch breach, whether such termination is at including the initiative recovery of Employee or the Company or before or after expiration of the Term. The parties agree that the provisions of this Section 6 shall survive any termination of this Agreement, Employee will continue to be bound by the provisions of this Section 6 until their expiration and Employee shall not be entitled to any compensation from the Company with respect thereto except as provided under this Agreementmoney damages.
6.3 Employee acknowledges that the provisions of this Section 6 are essential to protect the business and goodwill of the Company. If at any time the provisions of this Section 6 shall be determined to be invalid or unenforceable by reason of being vague or unreasonable as to area, duration or scope of activity, this Section 6 shall be considered divisible and shall become and be immediately amended to only such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and Employee agrees that this Section 6 as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included herein.
Appears in 1 contract
Sources: Confidentiality Agreement (Harman International Industries Inc /De/)
Non-Competition and Non-Solicitation. 6.1 During the Term and, in the event of an earlier termination of this Agreement by Employee agrees that he will not:
during the Term (other than any termination by Employee pursuant to Section 5.1(a)), for a period of one year following the date of such termination by Employee (the "Section 10 Period"): (a) Employee shall not compete with the Company or any subsidiary or affiliate of the Company for whom she is an employee or officer during the Term (each, an "Interested Entity") by (i) anywhere entering the Company does businessemploy of, including but not limited or rendering services to, any biopharmaceutical entity which is engaged in a business competitive with the Company's Field of Interest in such a capacity as to Williston Basin create, on the date of such employment, a potential conflict of interest for Employee between such biopharmaceutical entity and an Interested Entity, (ii) engaging, during the Rocky Mountain RegionSection 10 Period, engagein any business for her own account which would be competitive with the Company's Field of Interest, or (iii) acquiring, during the Section 10 Period, an equity or financial interest in any business which is competitive with the Company's Field of Interest, directly or indirectly, alone as an individual, partner, shareholder, director, officer, principal, agent, employee, trustee, consultant, or any other relationship or capacity as to create, on the date of acquisition of such interest, a shareholder (potential conflict of interest for Employee between such business and an Interested Entity; PROVIDED, HOWEVER, that nothing contained in this Section 10 shall be deemed to prohibit Employee during the Section 10 Period from providing approved consulting services to Alexandria, accepting a position with a law firm, investment bank, venture capital or investment fund or other than professional or financial services firm or from acquiring, solely as a holder an investment, shares of less than ten percent (10%) of the common capital stock of any publicly traded public corporation), partner, officer, director, employee, consultant ; (b) neither the Employee nor any Affiliate of the Employee shall solicit or advisorutilize, or otherwise assist any person in any way participate in to solicit or become associated withutilize, the services, directly or indirectly, of any other business organization that is engaged or becomes engaged in any business that is the same or substantially identical business of the Company's directors, consultants, members of the Board of Scientific and Medical Advisors, officers or employees (collectively, "Associates of the Company") in any manner which is directly or indirectly competitive with, any with the Company's business activity that the Company is conducting at the time of Employee’s termination or has notified Employee that it proposes . This non-solicitation and non-utilization provision shall not apply to conduct and for which the Company has, prior to the time of such termination, expended substantial resources (the “Designated Industry”),
(ii) divert to any competitor Associates of the Company any customer of the Company, or
(iii) solicit any employee, consultant or independent contractor of the Company to change its who have previously terminated their relationship with the Company.
10.1 If the Employee commits a breach, or hire or offer employment tothreatens to commit a breach, or a consulting or independent contractor relationship with, of any person to whom Employee actually knows the Company has offered employment; provided, however, that this provision does not apply to any employee, consultant or independent contractor of the Company who responds to a general solicitation for an advertised position provided Employee has not otherwise engaged in conduct prohibited by this Section 6.
6.2 Employee agrees to be bound by the provisions of this Section 6 in consideration for 10, the Company’s employment of Employee, payment of Company shall have the compensation following rights and benefits provided under Section 3 remedies:
10.1.1 The right and Section 4 above and remedy to have the covenants and agreements set forth herein. The provisions of this Section 6 Agreement specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach shall apply during the term of Employee’s employment with cause irreparable injury to the Company and that money damages shall not provide an adequate remedy to the Company; and
10.1.2 The right and remedy to require the Employee to account for a period of two (2) years following termination of Employee’s employment with and pay over to the Company all compensation, profits, monies, accruals, increments or other benefits (collectively "Benefits") derived or received by the Employee as the result of any transactions constituting a breach of any of the provisions of the preceding paragraph, and the Employee hereby agrees to account for and pay over such Benefits to the Company. Each of the rights and remedies enumerated above shall be independent of the other, and shall be severally enforceable, and all of such rights and remedies shall be in addition to, and not in lieu of, any reasonother rights and remedies available to the Company under law or in equity.
10.2 If any of the covenants contained in Section 8, whether 9 or 10, or any part thereof, is hereafter construed to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect without regard to the invalid portions.
10.3 If any of the covenants contained in Section 8, 9 or 10, or any part thereof, is held to be unenforceable because of the duration of such termination is at the initiative of Employee provision or the Company or before or after expiration of area covered thereby, the Term. The parties agree that the provisions court making such determination shall have the power to reduce the duration and/or area of this Section 6 such provision and, in its reduced form, such provision shall survive any termination of this Agreement, Employee will continue to then be bound by the provisions of this Section 6 until their expiration and Employee shall not be entitled to any compensation from the Company with respect thereto except as provided under this Agreementenforceable.
6.3 Employee acknowledges 10.4 The parties hereto intend to and hereby confer jurisdiction to enforce the covenants contained in Sections 8, 9 and 10 upon the courts of any state within the geographical scope of such covenants. In the event that the provisions courts of this Section 6 are essential to protect the business and goodwill any one or more of the Company. If at such states shall hold any time the provisions of this Section 6 shall be determined to be invalid or such covenant wholly unenforceable by reason of being vague the breadth of such scope or unreasonable otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company's right to the relief provided above in the courts of any other states within the geographical scope of such covenants, as to areabreaches of such covenants in such other respective jurisdictions, duration or scope of activitythe above covenants as they relate to each state being, for this Section 6 shall be considered divisible purpose, severable into diverse and shall become and be immediately amended to only such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and Employee agrees that this Section 6 as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included hereinindependent covenants.
Appears in 1 contract
Sources: Executive Employment Agreement (Ariad Pharmaceuticals Inc)
Non-Competition and Non-Solicitation. 6.1 Employee 1.1 Hyundai agrees that he will not:
(i) anywhere for a period of three years beginning on the Company does business, including but not limited later to Williston Basin occur of the IP Closing Date and the Rocky Mountain RegionAsset Closing Date, engageit shall not directly or through any wholly-owned subsidiary (other than Maxtor), in any capacity, engage or participate in, the DVD-ROM, CD-R, CD-RW and DVD-RAM businesses or render advisory or consulting or other services in connection with any Competing Business in the United States, Canada, Europe or China. For purposes of this Agreement, "Competing Business" shall be defined as any business and any branch, office or operation thereof, which competes in whole or in part with the DVD-ROM, CD-R, CD-RW and DVD-RAM business of DVS, its subsidiaries and its affiliates, including, without limitation, DVS-Korea (collectively, the "Company").
1. right to control or influence the policy decisions of any Competing Business, and (b) such investment constitutes an ownership interest of less than 5% of any such Competing Business.
1.3 Hyundai agrees that for a period of three years beginning on the later of the IP Closing Date and the Asset Closing Date, Hyundai shall not, directly or indirectlyindirectly (a) encourage any employee, alone supplier or customer of the Company or any of its successors in interest to end his or its employment or supplier or customer relationship, as a shareholder the case may be, with the Company or any of its successors in interest, (b) employ, hire, solicit or cause to be employed, hired or solicited (other than as a holder by the Company or any of less than ten percent (10%) of the common stock of any publicly traded corporationits successors in interest), partner, officer, director, employee, consultant or advisorencourage others to employ or hire any person who within three years prior thereto was employed by the Company or its successors in interest, or otherwise in any way participate in (c) establish a business with, or become associated encourage others to establish a business with, any other business organization that is engaged person who within three years prior thereto was an employee, supplier or becomes engaged in any business that is the same or substantially identical business customer of the Company, or any of its successors in interest.
1.4 If the Transaction is directly competitive withnot consummated, any business activity that the Company is conducting at the time of Employee’s termination or has notified Employee that it proposes to conduct this Agreement shall terminate and for which the Company hasshall be without further force and effect, prior to the time of such termination, expended substantial resources (the “Designated Industry”),
(ii) divert to any competitor and none of the Company parties hereto shall have any customer further obligation of the Company, or
(iii) solicit any employee, consultant nature or independent contractor of the Company to change its relationship kind whatsoever in connection with the Company, or hire or offer employment to, or a consulting or independent contractor relationship with, any person to whom Employee actually knows the Company has offered employment; provided, however, that this provision does not apply to any employee, consultant or independent contractor of the Company who responds to a general solicitation for an advertised position provided Employee has not otherwise engaged in conduct prohibited by this Section 6.
6.2 Employee agrees to be bound by the provisions of this Section 6 in consideration for the Company’s employment of Employee, payment of the compensation and benefits provided under Section 3 and Section 4 above and the covenants and agreements set forth herein. The provisions of this Section 6 shall apply during the term of Employee’s employment with the Company and for a period of two (2) years following termination of Employee’s employment with the Company for any reason, whether such termination is at the initiative of Employee or the Company or before or after expiration of the Term. The parties agree that the provisions of this Section 6 shall survive any termination of this Agreement, Employee will continue to be bound by the provisions of this Section 6 until their expiration and Employee shall not be entitled to any compensation from the Company with respect thereto except as provided under this Agreement.
6.3 Employee acknowledges that the provisions of this Section 6 are essential to protect the business and goodwill of the Company. If at any time the provisions of this Section 6 shall be determined to be invalid or unenforceable by reason of being vague or unreasonable as to area, duration or scope of activity, this Section 6 shall be considered divisible and shall become and be immediately amended to only such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and Employee agrees that this Section 6 as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included herein.
Appears in 1 contract
Sources: Non Competition Agreement (Digital Video Systems Inc)
Non-Competition and Non-Solicitation. 6.1 The primary service area of the Company's business in which Employee agrees that he will actively participate extends separately to the Restricted Area. Therefore, as an essential ingredient of and in consideration of this Agreement and Employee's employment with the Company, Employee shall not:, during Employee's employment with the Company or during the Restricted Period, directly or indirectly do any of the following (all of which are collectively referred to in this Agreement as the "Restrictive Covenant"):
(i) anywhere Engage or invest in, own, manage, operate, finance, control, participate in the Company does businessownership, including but not limited to Williston Basin and the Rocky Mountain Regionmanagement, engageoperation, directly or indirectlycontrol of, alone be employed by, associated with, or in any manner connected with, serve as a shareholder (other than as a holder of less than ten percent (10%) of the common stock of any publicly traded corporation), partnerdirector, officer, directoror consultant to, employeelend Employee's name or any similar name to, consultant lend Employee's credit to or advisorrender services or advice to, in each case in the capacity (or otherwise in any way participate in or become associated with, any other business organization substantially similar capacity) that is engaged or becomes engaged in any business that is the same or substantially identical business of Employee provided services to the Company, any person, firm, partnership, corporation, other business entity, or trust that owns, operates, or is directly competitive with, any business activity that in the Company is conducting at the time process of Employee’s termination or has notified Employee that it proposes to conduct and for which the Company has, prior to the time of such termination, expended substantial resources (the “Designated Industry”),
(ii) divert to any competitor of the Company any customer of the Company, or
(iii) solicit any employee, consultant or independent contractor of the Company to change its relationship forming a Competitor with the Companyan office located, or hire or offer employment toto be located at an address identified in a filing with any regulatory authority, or a consulting or independent contractor relationship with, any person to whom Employee actually knows within the Company has offered employmentRestricted Area; provided, however, that the ownership by Employee 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 provision does not apply Agreement;
(ii) Induce or attempt to induce any employee, consultant or independent contractor employee of the Company who responds or its Affiliates to a general solicitation for an advertised position provided Employee has not otherwise engaged in conduct prohibited by this Section 6.
6.2 Employee agrees to be bound by leave the provisions of this Section 6 in consideration for the Company’s employment of Employee, payment employ of the compensation Company or its Affiliates; (B) interfere with the relationship between the Company or its Affiliates and benefits provided under Section 3 and Section 4 above and any employee of the covenants and agreements set forth herein. The provisions Company or its Affiliates; or (C) induce or attempt to induce any customer, supplier, licensee, or other business relation of this Section 6 shall apply during the term of Employee’s employment Company or its Affiliates with whom Employee had an ongoing business relationship to cease doing business with the Company and for a period of two (2) years following termination of Employee’s employment or its Affiliates or interfere with the Company for any reason, whether such termination is at the initiative of Employee or relationship between the Company or before its Affiliates and their respective customers, suppliers, licensees, or after expiration other business relations with whom Employee had an ongoing business relationship.
(iii) Solicit the business of any person or entity known to Employee to be a customer of the Term. The parties agree Company or its Affiliates, where Employee, or any person reporting to Employee, 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 provisions products, activities, or services of this Section 6 shall survive any termination of this Agreement, Employee will continue to be bound by the provisions of this Section 6 until their expiration and Employee shall not be entitled to any compensation from 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 thereto except as provided under this Agreementto products, activities, or services that Employee devoted time to on behalf of the Company or any Affiliate (or any substantially similar products, activities, or services) and that compete in whole or in part with the products, activities, or services of the Company or its Affiliates.
6.3 (v) Accept employment with, provide services to, or act in any other such capacity for or with any Competitor, if in such employment or capacity Employee acknowledges that the provisions of this Section 6 are essential to protect the business and goodwill of would inevitably use or disclose the Company. If at any time the provisions of this Section 6 shall be determined to be invalid 's Confidential Information in Employee's work or unenforceable by reason of being vague or unreasonable as to area, duration or scope of activity, this Section 6 shall be considered divisible and shall become and be immediately amended to only service for such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and Employee agrees that this Section 6 as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included hereinCompetitor.
Appears in 1 contract
Non-Competition and Non-Solicitation. 6.1 Employee agrees that he will not:
(ia) anywhere In furtherance of the Company does business, including but not limited to Williston Basin sale of the Shares and the Rocky Mountain RegionBusiness to Buyer hereunder by virtue of the transactions contemplated hereby, engageSeller covenants and agrees that, for a period ending on the third anniversary of the Closing Date, neither Seller nor any of its Affiliates will directly or indirectlyindirectly through officers, alone employees, directors, agents or as a shareholder (other than as a holder of less than ten percent (10%) of the common stock of any publicly traded corporation), partner, officer, director, employee, consultant or advisor, representatives or otherwise in any way participate in or become associated with, any other business organization that is engaged or becomes engaged in any business that is develop and commence the same or substantially identical business of the Company, or is directly competitive with, any business activity that the Company is conducting at the time of Employee’s termination or has notified Employee that it proposes to conduct and for which the Company has, prior to the time of such termination, expended substantial resources a pure greenfield aluminum rolling mill (the “Designated IndustryProhibited Business”),
(ii) divert to in any competitor of geographic area where the Company any customer or its Subsidiaries conduct such business as of the Company, or
(iii) solicit any employee, consultant or independent contractor of the Company to change its relationship with the Company, or hire or offer employment to, or a consulting or independent contractor relationship with, any person to whom Employee actually knows the Company has offered employmenteither such dates; provided, however, that it shall not be deemed to be a violation of this provision does not apply paragraph for Seller or any of its Affiliates, directly or indirectly, to any employeeinvest in, consultant own an interest in, or independent contractor acquire all or a majority of the stock or assets of any Person which is engaged, directly or indirectly, in the Prohibited Business anywhere in the world.
(b) None of Seller, any of its Affiliates or any of their respective officers, directors, employees, agents or representatives (acting on behalf of Seller or its Affiliates) will at any time prior to two years from the Closing Date, directly or indirectly, solicit the employment or hire any individual employed by the Company or any of its Subsidiaries who responds as of the date hereof or as of the Closing Date (a “Covered Employee”), or solicit, induce or encourage, or assist others to solicit, induce or encourage, any person who is a Covered Employee to decline or terminate an employment arrangement with Buyer, the Company or any Subsidiary, or any of their Affiliates or successors, in each case without Buyer’s prior written consent; provided, that Seller shall not be prohibited from general advertising or solicitation for an advertised position provided Employee has not otherwise engaged in conduct prohibited targeted to such persons. Seller shall use its reasonable best efforts to communicate the restrictions imposed by this Section 6.
6.2 Employee agrees 5.11(b) to all Persons who would reasonably be bound by expected to engage in such solicitations and instruct such Persons to comply with such restrictions. From and after the provisions of this Section 6 in consideration for the Company’s employment of Employeedate hereof, payment of the compensation and benefits provided under Section 3 and Section 4 above and the covenants and agreements set forth herein. The provisions of this Section 6 shall apply during the term of Employee’s employment with the Company and for a period its Subsidiaries are prohibited from transferring any individual who as of two (2) years following termination of Employee’s employment with the Company for any reason, whether such termination date hereof is at the initiative of Employee or employed by the Company or before any of its Subsidiaries to Seller or after expiration any of the Term. The parties agree that the provisions of this Section 6 shall survive any termination of this Agreement, Employee will continue to be bound by the provisions of this Section 6 until their expiration and Employee shall not be entitled to any compensation from the Company with respect thereto except as provided under this Agreementits Affiliates.
6.3 Employee acknowledges that the provisions of this Section 6 are essential to protect the business and goodwill of the Company. If at any time the provisions of this Section 6 shall be determined to be invalid or unenforceable by reason of being vague or unreasonable as to area, duration or scope of activity, this Section 6 shall be considered divisible and shall become and be immediately amended to only such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and Employee agrees that this Section 6 as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included herein.
Appears in 1 contract
Sources: Stock Purchase Agreement (Noranda Aluminum Acquisition CORP)
Non-Competition and Non-Solicitation. 6.1 Employee agrees that he will (a) The Banker Family Trust, ▇▇▇▇▇▇▇▇▇ and Plant shall not:
(i) anywhere the Company does business, including but not limited to Williston Basin and the Rocky Mountain Regionduring such Person’s applicable Restricted Period, engagein any manner, directly or either directly, indirectly, alone or individually, whether as a shareholder (other than as a holder of less than ten percent (10%) of the common stock of any publicly traded corporation)principal, agent, partner, officer, director, shareholder, manager, member, employee, consultant or advisorotherwise, jointly or otherwise in conjunction with any way participate Person, engage in or become associated with, undertake any other business organization that is engaged planning to engage in all or becomes engaged in any portion of the Business (or any business that is the same competitive with all or substantially identical business any portion of the Company, or is directly competitive with, Business) in any business activity that the Company is conducting at the time of Employee’s termination or has notified Employee that it proposes to conduct and for geographic area in which the Company hasGroup Companies conduct all or any portion of the Business as of or within 12 months immediately preceding the Closing Date. Notwithstanding the foregoing, prior to passive ownership of two percent (2%) or less of the time equity securities of a publicly traded company by each of the Banker Family Trust, ▇▇▇▇▇▇▇▇▇ or Plant, as applicable, shall not, solely by reason thereof, constitute a violation on the part of such termination, expended substantial resources (the “Designated Industry”Person of this Section 6.7(a),.
(iib) divert to any competitor None of the Company Sellers shall, during such Person’s applicable Restricted Period, in any customer of the Companymanner, or
(iii) solicit any directly, indirectly, individually, whether as principal, agent, partner, officer, director, shareholder, manager, member, employee, consultant or independent contractor otherwise, jointly or in conjunction with any Person, (i) recruit, hire or engage, solicit or attempt to recruit, hire or engage, or solicit, on such Person’s own behalf or on behalf of any other Person, any senior executive or management-level Employee of the Company Group Companies who is or was such as of or within the 12-month period immediately prior to change the Closing Date, or (ii) encourage any Person (other than the Purchaser or one of its relationship Affiliates) to recruit, hire or engage, or solicit any such senior executive or management-level Employee of the Group Companies, or (iii) otherwise encourage any such senior executive or management-level Employee of the Group Companies to discontinue his or her employment or engagement with the Company, or hire or offer employment to, or a consulting or independent contractor relationship with, any person to whom Employee actually knows the Company has offered employmentGroup Companies; provided, however, that this provision does nothing herein shall restrict or prohibit the recruitment, hiring, engaging, soliciting or employing any such person resulting from generalized searches for employees through the use of bona fide public advertisements in the media or any recruitment efforts conducted by any recruitment agency, in each case that are not apply to targeted specifically at employees of the Group Companies.
(c) The Banker Family Trust, ▇▇▇▇▇▇▇▇▇ and Plant shall not, during such Person’s applicable Restricted Period, in any manner, directly, indirectly, individually, whether as principal, agent, partner, officer, director, shareholder, manager, member, employee, consultant or independent contractor otherwise, jointly or in conjunction with any Person, solicit or entice, or attempt to solicit or entice, any clients, customers, vendors, suppliers or other business partners (each, a “Business Partner”) of the Company Group Companies who responds are or were such as of or within the 12-month period immediately prior to a general solicitation the Closing Date, or prospective Business Partners of the Group Companies who are or were such as of or within the 12-month period immediately prior to the Closing Date, for an advertised position provided Employee has not purposes of diverting their business or services from the Group Companies, or to otherwise engaged terminate or diminish their relationship with the Group Companies.
(d) Each Seller acknowledges that the restrictions contained in conduct prohibited by this Section 6.
6.2 Employee agrees 6.7 are reasonable and necessary to be bound by protect the goodwill, confidential information, trade secrets and other legitimate interests of the Purchaser and constitute a material inducement to the Purchaser to enter into this Agreement and consummate the transactions contemplated hereby. In the event a judicial or arbitral determination is made that any provision of this Section 6.7 constitutes an unreasonable or otherwise unenforceable restriction against Seller, as applicable, the provisions of this Section 6 in consideration for 6.7 shall be rendered void only to the Company’s employment of Employeeextent that such judicial or arbitral determination finds such provisions to be unreasonable or otherwise unenforceable. In this regard, payment any judicial authority construing this Agreement shall be empowered to sever or modify any portion of the compensation and benefits provided under Section 3 and Section 4 above and restricted territory, any prohibited business activity or any time period from the covenants and agreements set forth herein. The provisions coverage of this Section 6 shall 6.7 and to apply during the term of Employee’s employment with the Company and for a period of two (2) years following termination of Employee’s employment with the Company for any reason, whether such termination is at the initiative of Employee or the Company or before or after expiration of the Term. The parties agree that the provisions of this Section 6 shall survive any termination 6.7 to the remaining portion of this Agreementthe restricted territory, Employee will continue the remaining business activities and the remaining time period not so severed or modified by such judicial or arbitral authority and to be bound the maximum extent permitted by the provisions Law.
(e) Each Seller acknowledges that a breach or threatened breach of this Section 6 until their expiration 6.7 may give rise to irreparable harm to the Purchaser, for which monetary damages may not be an adequate remedy, and Employee shall not hereby agrees that (i) in the event of a breach or a threatened breach by such Person of any such obligations, the Purchaser shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to seek equitable relief, including a temporary restraining order, an injunction, specific performance and any compensation other relief that may be available from a court of competent jurisdiction (without any requirement to post bond), together with an award of its reasonable, documented and out-of-pocket attorneys’ fees incurred in enforcing its rights hereunder, (ii) the Company with respect thereto except as provided under this Agreement.
6.3 Employee acknowledges that Restricted Period applicable to such Person will be tolled, and will not run, during the provisions period of any breach by such Person of any such covenants and (iii) no claimed breach of this Section 6 are essential Agreement attributed to protect the business and goodwill of the Company. If at any time the provisions of Purchaser will operate to extinguish such Person’s obligation to comply with this Section 6 shall be determined to be invalid or unenforceable by reason of being vague or unreasonable as to area, duration or scope of activity, this Section 6 shall be considered divisible and shall become and be immediately amended to only such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and Employee agrees that this Section 6 as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included herein6.7.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Hc2 Holdings, Inc.)
Non-Competition and Non-Solicitation. 6.1 Employee agrees You acknowledge that he 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 your services for the Company you have had and will nothave 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. You acknowledge and agree that any and all "goodwill" associated with any existing or prospective customer, account or business partner belongs exclusively to the Company, including, but not limited to, any goodwill created as a result of direct or indirect contacts or relationships between you and any existing or prospective customers, accounts or business partners. Additionally, the parties acknowledge and agree that you possess skills that are special, unique or extraordinary and that the value of the Company depends upon your use of such skills on its behalf. In recognition of this, you covenant and agree that:
(a) During the Term and for a period of six (6) months thereafter, you may not, without the prior written consent of the Board (whether as an employee, agent, servant, owner, partner, consultant, independent contractor, representative, stockholder or in any other capacity whatsoever): (i) anywhere conduct any business with any customer of the Company does businesson behalf of any entity or person other than the Company (including yourself) if such business is competitive with the products or services offered by the Company, or (ii) perform any work competitive in any way with the products or services offered or planned to be brought to market by the Company during the Term or within one (1) year thereafter, on behalf of any entity or person other than the Company (including but yourself), provided that nothing herein shall prohibit you from owning up to 5% of the securities of any company or venture fund, mutual fund or other similar investment vehicle as to which you do not limited control or influence investment decisions, and provided that nothing herein shall prohibit you from making other personal investments that otherwise might violate this sub-Section with the prior approval of the Board.
(b) During the Term and for a period of six (6) months thereafter, you may not entice, solicit or encourage any Company employee to Williston Basin 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 the Rocky Mountain Regionfor a period of six (6) months thereafter, engageyou may not, directly or indirectly, alone entice, solicit or as a shareholder (other than as a holder of less than ten percent (10%) of the common stock of any publicly traded corporation), partner, officer, director, employee, consultant or advisor, or otherwise in any way participate in or become associated with, any other business organization that is engaged or becomes engaged in any business that is the same or substantially identical business of the Company, or is directly competitive with, any business activity that the Company is conducting at the time of Employee’s termination or has notified Employee that it proposes to conduct and for which the Company has, prior to the time of such termination, expended substantial resources (the “Designated Industry”),
(ii) divert to any competitor of the Company encourage any customer of the Company, or
(iii) solicit any employee, consultant or independent contractor prospective customer of the Company to change its relationship cease doing business with the Company, or hire or offer employment to, or a consulting or independent contractor reduce its relationship with, any person to whom Employee actually knows the Company has offered employment; provided, however, that this provision does not apply to any employee, consultant or independent contractor of the Company who responds to a general solicitation for an advertised position provided Employee has not otherwise engaged in conduct prohibited by this Section 6.
6.2 Employee agrees to be bound by the provisions of this Section 6 in consideration for the Company’s employment of Employee, payment of the compensation and benefits provided under Section 3 and Section 4 above and the covenants and agreements set forth herein. The provisions of this Section 6 shall apply during the term of Employee’s employment with the Company and for or refrain from establishing or expanding a period of two (2) years following termination of Employee’s employment relationship with the Company for any reason, whether such termination is at the initiative of Employee or the Company or before or after expiration of the Term. The parties agree that the provisions of this Section 6 shall survive any termination of this Agreement, Employee will continue to be bound by the provisions of this Section 6 until their expiration and Employee shall not be entitled to any compensation from the Company with respect thereto except as provided under this Agreement.
6.3 Employee acknowledges that the provisions of this Section 6 are essential to protect the business and goodwill of the Company. If at any time the provisions of this Section 6 shall be determined to be invalid or unenforceable by reason of being vague or unreasonable as to area▇▇▇▇▇▇▇▇.▇▇▇, duration or scope of activity, this Section 6 shall be considered divisible and shall become and be immediately amended to only such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and Employee agrees that this Section 6 as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included herein.Inc ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Appears in 1 contract
Non-Competition and Non-Solicitation. 6.1 Employee agrees that he will not:
(a) During the Term and for a period of one year following the effective date of the termination of the Term and the Employee’s employment hereunder, for any reason or no reason (the “Restricted Period”): (i) anywhere the Employee shall not, in the United States or in any country in which the Company does shall then be doing business, including but not limited to Williston Basin and the Rocky Mountain Region, engage, directly or indirectly, alone or as a shareholder (other than as a holder of less than ten percent (10%) of enter the common stock of any publicly traded corporation), partner, officer, director, employee, consultant or advisoremploy of, or otherwise in render any way participate in or become associated withservices to, any other business organization that is engaged person, firm or becomes corporation engaged in any business that is competitive with the same or substantially identical business of the CompanyCompany or of any of its subsidiaries or Affiliates of which the Employee may become an employee or officer during the Term, the Employee shall not engage in such business on Employee’s own account and the Employee shall not become interested in any such business, directly or indirectly, as an individual, partner, shareholder, director, officer, principal, agent, employee, trustee, consultant, or is directly competitive with, any business activity that the Company is conducting at the time of Employee’s termination other relationship or has notified Employee that it proposes to conduct and for which the Company has, prior to the time of such termination, expended substantial resources (the “Designated Industry”),
(ii) divert to any competitor of the Company any customer of the Company, or
(iii) solicit any employee, consultant or independent contractor of the Company to change its relationship with the Company, or hire or offer employment to, or a consulting or independent contractor relationship with, any person to whom Employee actually knows the Company has offered employmentcapacity; provided, however, that nothing contained in this provision does not apply Section 13 shall be deemed to prohibit the Employee from acquiring, solely as an investment, of up to 2% of any employeeclass of shares of capital stock of any public corporation; and (ii) neither the Employee nor any entity controlled by the Employee shall, consultant during the Restricted Period, directly or independent contractor indirectly, solicit, hire or utilize, or assist any person in any way to solicit, hire or utilize, the services of any individual or entity that is at such time, or was at any time during the Restricted Period or the six-month period prior thereto, a director, key consultant, officer or employee of the Company who responds to a general solicitation for an advertised position provided Employee has not otherwise engaged in conduct prohibited by this Section 6.
6.2 Employee agrees to be bound by the provisions of this Section 6 in consideration for the Company’s employment of Employee, payment of the compensation and benefits provided under Section 3 and Section 4 above and the covenants and agreements set forth hereinor its subsidiaries or Affiliates. The provisions of this Section 6 Employee shall apply during the term of Employee’s employment with the Company and for a period of two (2) years following termination of Employee’s employment with the Company for any reason, whether such termination is at the initiative of Employee or the Company or before or after expiration of the Term. The parties agree that the provisions of this Section 6 shall survive any termination of this Agreement, Employee will continue to be bound by the provisions terms of this Section 6 until their expiration and Employee shall not be entitled to any compensation from 13 following the Company with respect thereto except as provided under termination of this Agreement, the Term or the Employee’s employment hereunder for any reason or no reason.
6.3 (b) If the Employee acknowledges that commits a breach, or threatens to commit a breach, of any of the provisions of this Section 6 are essential to protect 13, the business Company shall have the following rights and goodwill remedies, each of which shall be independent of the Company. If at other, and shall be severally enforceable, and all of such rights and remedies shall be in addition to, and not in lieu of, any time other rights and remedies available to the Company under law or in equity:
(i) The right and remedy to have the provisions of this Agreement specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach may cause irreparable injury to the Company and that money damages may not provide an adequate remedy to the Company;
(ii) The right and remedy immediately to cease providing the payments and benefits described in Sections 5(d) and 5(e) and to require the Employee to repay to the Company any such payments and benefits that already have been provided as of the time the Company learns of the Employee’s breach of this Section 6 shall be determined 13; and
(iii) The right and remedy and to require the Employee to account for and pay over to the Company all compensation, profits, monies, accruals, increments or other benefits (collectively “Benefits”) derived or received by the Employee as the result of any transactions constituting a breach of any of the provisions of the preceding paragraph, and the Employee hereby agrees to account for and pay over such Benefits to the Company.
(c) If any of the covenants contained in this Section 13, or any part thereof, is hereafter construed to be invalid or unenforceable, the same shall not affect the remainder of such covenant or covenants, which shall be given full effect without regard to the invalid portions.
(d) If any of the covenants contained in this Section 13, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties agree that the court making such determination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, such provision shall then be enforceable.
(e) The parties hereto intend to and hereby confer jurisdiction to enforce the covenants contained in this Sections 13 upon the courts of any state within the geographical scope of such covenants. In the event that the courts of any one or more of such states shall hold any such covenant wholly unenforceable by reason of being vague the breadth of such scope or unreasonable otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the Company’s right to the relief provided above in the courts of any other states within the geographical scope of such covenants, as to areabreaches of such covenants in such other respective jurisdictions, duration or scope of activitythe above covenants as they relate to each state being, for this purpose, severable into diverse and independent covenants.
(f) The covenants in this Section 6 13 are conditions of Employee’s continued employment with the Company, and they are not tied to Employee’s performance of any particular position, role or job; therefore, the covenants in this Section 13 shall be considered divisible survive any change in Employee’s position, title, compensation, benefits, role, or responsibilities and shall become remain in full force and be immediately amended to only effect following any such areachange. By continuing in the Company’s employ, duration and scope of activity as shall be determined Employee continually re-affirms the intention to be reasonable and enforceable bound by the court or other body having jurisdiction over the matter; and these ongoing covenants. The Employee agrees that he shall not, and hereby waives and releases any rights or claims to, contest or challenge the reasonableness, validity or enforceability (but not the applicability) of the restrictions contained in this Section 6 as so amended shall be valid and binding as though any invalid 13, whether in court, arbitration or unenforceable provision had not been included hereinotherwise.
Appears in 1 contract
Sources: Executive Employment Agreement (Ariad Pharmaceuticals Inc)
Non-Competition and Non-Solicitation. 6.1 Employee agrees In order to protect the Company’s Proprietary Information and good will, during my employment and for a period of [ ] months following the termination of my employment for any reason, I will not directly or indirectly, whether as owner, partner, shareholder, director, consultant, agent, employee, co-venturer or otherwise, engage, participate or invest in any business activity anywhere in the “Geographic Scope” (as defined below) that he will not:
(i) manufactures wind turbine blades or wind turbines; (ii) provides field or repair services for wind turbine blades or wind turbines; or (iii) manufactures composites structures or products for the transportation industry; provided that this shall not prohibit any possible investment in publicly traded stock of a company representing less than one percent of the stock of such company. For purposes of this Agreement, Geographic Scope shall mean anywhere in the world, provided however, in case that anywhere in the world shall be held invalid, overly broad, unreasonable, or unenforceable in any respect, the Geographic Scope shall be anywhere in the world where the Company does conducts business provided however, in case that anywhere in the world where the Company conducts business shall be held invalid, overly broad, unreasonable, or unenforceable in any respect, the Geographic Scope shall be anywhere in the United States, provided however, in the event anywhere in the United States shall be held invalid, overly broad, unreasonable, or unenforceable in any respect, the Geographic Scope shall be anywhere in the United States where the Company conducts business, including but not limited to Williston Basin provided however, in the event anywhere in the United States where the Company conducts business shall be held invalid, overly broad, unreasonable, or unenforceable in any respect, the Geographic Scope shall be anywhere in any state in the United States where I perform or have performed services for the Company. In addition, during my employment and for a period of twelve (12) months following the Rocky Mountain Regiontermination of my employment for any reason, engageI will not, directly or indirectly, alone or as a shareholder (in any manner, other than as a holder of less than ten percent (10%) of for the common stock of any publicly traded corporation), partner, officer, director, employee, consultant or advisor, or otherwise in any way participate in or become associated with, any other business organization that is engaged or becomes engaged in any business that is the same or substantially identical business benefit of the Company, (a) call upon, solicit, divert or is directly competitive withtake away any of the customers, any business activity that the Company is conducting at the time of Employee’s termination or has notified Employee that it proposes to conduct and for which the Company has, prior to the time of such termination, expended substantial resources (the “Designated Industry”),
(ii) divert to any competitor prospective customers of the Company or any customer of the Companyits suppliers, or
and/or (iiib) solicit solicit, entice or attempt to persuade any employee, other employee or consultant or independent contractor of the Company to change its relationship with leave the Company, or hire or offer employment to, or a consulting or independent contractor relationship with, any person to whom Employee actually knows the Company has offered employment; provided, however, that this provision does not apply to any employee, consultant or independent contractor services of the Company who responds to a general solicitation for an advertised position provided Employee has not otherwise engaged in conduct prohibited by this Section 6.
6.2 Employee agrees to be bound by the provisions of this Section 6 in consideration for the Company’s employment of Employee, payment of the compensation and benefits provided under Section 3 and Section 4 above and the covenants and agreements set forth herein. The provisions of this Section 6 shall apply during the term of Employee’s employment with the Company and for a period of two (2) years following termination of Employee’s employment with the Company for any reason, whether such termination is at the initiative of Employee or the Company or before or after expiration of the Term. The parties I acknowledge and agree that if I violate any of the provisions of this Section 6 shall survive any termination paragraph 8, the running of this Agreement, Employee the Restricted Period will continue to be bound extended by the provisions of this Section 6 until their expiration and Employee shall not be entitled to any compensation from the Company with respect thereto except as provided under this Agreementtime during which I engage in such violation(s).
6.3 Employee acknowledges that the provisions of this Section 6 are essential to protect the business and goodwill of the Company. If at any time the provisions of this Section 6 shall be determined to be invalid or unenforceable by reason of being vague or unreasonable as to area, duration or scope of activity, this Section 6 shall be considered divisible and shall become and be immediately amended to only such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and Employee agrees that this Section 6 as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included herein.
Appears in 1 contract
Non-Competition and Non-Solicitation. 6.1 4.1. The Employee agrees and undertakes that he will not:
, for so long as this Agreement is in effect and for a period of one (i1) anywhere year thereafter (the Company does business, including but not limited to Williston Basin and the Rocky Mountain Region, engage“Non-Competition Period”), directly compete or indirectly, alone or as a shareholder (other than as a holder of less than ten percent (10%) of to assist others to directly compete with the common stock of any publicly traded corporation), partner, officer, director, employee, consultant or advisor, or otherwise in any way participate in or become associated with, any other business organization that is engaged or becomes engaged in any business that is the same or substantially identical business of the Company, or is as currently conducted and as conducted and/or proposed to be conducted during the Non-Competition Period.
4.2. The Employee further agrees and undertakes that during the Non-Competition Period, he will not directly competitive with, solicit any business activity that the Company which is conducting at the time of Employee’s termination or has notified Employee that it proposes to conduct and for which the Company has, prior similar to the time of such terminationCompany’s business from individuals or entities that are customers, expended substantial resources (the “Designated Industry”),
(ii) divert to any competitor of the Company any customer suppliers or contractors of the Company, orany of its subsidiaries, affiliates or parent company during the Non-Competition Period, without the prior written consent of the CEO.
(iii) 4.3. The Employee further agrees and undertakes that during the Non-Competition Period, without the prior written consent of the CEO, he will not employ, offer to employ, or in any way directly or indirectly solicit or seek to obtain or achieve the employment by any employeebusiness or entity of any person employed by either the Company, consultant its subsidiaries, affiliates, parent company or independent contractor any successors or assigns thereof during the Non-Competition Period.
4.4. The Parties hereto agree that the duration and area for which the covenants set forth in this Section 4 are to be effective are necessary to protect the legitimate interests of the Company and its development efforts and accordingly are reasonable, in terms of their geographical and temporal scope. In the event that any court determines that the time period and/or area are unreasonable and that such covenants are to change its relationship with that extent unenforceable, the Parties hereto agree that such covenants shall remain in full force and effect for the greatest period of time and in the greatest geographical area that would not render them unenforceable. A breach of Sections 3, 4 or 5 hereof, shall cause irreparable harm to the Company, or hire or offer employment toits subsidiaries, or a consulting or independent contractor relationship with, any person to whom Employee actually knows affiliates and/or parent company and that the Company has offered employment; provided, however, that this provision does not apply shall be entitled to any employeeremedy available to it under applicable law, consultant including specific performance of this Agreement or independent contractor of an injunction relief, together with the costs and reasonable attorney’s fees and disbursements incurred by the Company who responds to a general solicitation for an advertised position provided in enforcing its rights under Sections 3, 4 or 5. The Employee has not otherwise engaged in conduct prohibited by this Section 6.
6.2 Employee agrees to be bound by the provisions of this Section 6 in consideration for the Company’s employment of Employee, payment of acknowledges that the compensation and benefits provided under Section 3 he receives hereunder are paid, inter alia, as consideration for his undertakings contained in Sections 3, 4 and Section 4 above and the covenants and agreements set forth herein. The provisions of this Section 6 shall apply during the term of Employee’s employment with the Company and for a period of two (2) years following termination of Employee’s employment with the Company for any reason, whether such termination is at the initiative of Employee or the Company or before or after expiration of the Term. The parties agree that the provisions of this Section 6 shall survive any termination of this Agreement, Employee will continue to be bound by the provisions of this Section 6 until their expiration and Employee shall not be entitled to any compensation from the Company with respect thereto except as provided under this Agreement5.
6.3 Employee acknowledges that the provisions of this Section 6 are essential to protect the business and goodwill of the Company. If at any time the provisions of this Section 6 shall be determined to be invalid or unenforceable by reason of being vague or unreasonable as to area, duration or scope of activity, this Section 6 shall be considered divisible and shall become and be immediately amended to only such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and Employee agrees that this Section 6 as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included herein.
Appears in 1 contract
Sources: Employment Agreement (Protalix BioTherapeutics, Inc.)
Non-Competition and Non-Solicitation. 6.1 Employee agrees that he will not:
(ia) anywhere the Company does business, including but not limited to Williston Basin and the Rocky Mountain Region, engage, directly or indirectly, alone or as a shareholder (other than as a holder of less than ten percent (10%) of the common stock of any publicly traded corporation), partner, officer, director, employee, consultant or advisor, or otherwise in any way participate in or become associated with, any other business organization that is engaged or becomes engaged in any business that is the same or substantially identical business of the Company, or is directly competitive with, any business activity that the Company is conducting at the time of Employee’s termination or has notified Employee that it proposes to conduct and for which the Company has, prior to the time of such termination, expended substantial resources (the “Designated Industry”),
(ii) divert to any competitor of the Company any customer of the Company, or
(iii) solicit any employee, consultant or independent contractor of the Company to change its relationship with the Company, or hire or offer employment to, or a consulting or independent contractor relationship with, any person to whom Employee actually knows the Company has offered employment; provided, however, that this provision does not apply to any employee, consultant or independent contractor of the Company who responds to a general solicitation for an advertised position provided Employee has not otherwise engaged in conduct prohibited by this Section 6.
6.2 Employee agrees to be bound by the provisions of this Section 6 in consideration for the Company’s employment of Employee, payment of the compensation and benefits provided under Section 3 and Section 4 above and the covenants and agreements set forth herein. The provisions of this Section 6 shall apply during During the term of Employee’s employment with the Company this Agreement, except as contemplated herein, and for a period of two (2) years following after the termination of Employee’s his employment with the Company for any reasonEmployer, whether such termination is at the initiative of Employee or the Company or before or after expiration regardless of the Termreason for such termination, the Employee shall not, directly or indirectly, within the State of Louisiana, the State of Texas, or within any other state or foreign country in which the Employer conducts any business, enter into, engage in, be employed by, or consult with any business in competition with the business of the Employer as it is then carried on; further, the Employee shall not sell to, market, produce or otherwise deal with any customer of the Employer as long as these actions are in direct competition with the Employer. The parties agree that the provisions restrictions of this Section 6 9 shall survive extend to any and all activities of the Employee, whether as an independent contractor, partner or joint venturer, or as an officer, director, stockholder, agent, employee or salesman for any person, firm, partnership, corporation or other entity, or otherwise. The restrictions of this Section 9 shall not be violated by the ownership of no more than 2% of the outstanding securities of any company whose stock is traded on a national securities exchange or is quoted in the Automated Quotation System of the National Association of Securities Dealers (NASDAQ). Solicitation or acceptance of orders outside of any prohibited territory as described above for shipment to, delivery in or service in any restricted territory shall also constitute engaging in business within the restricted territories in violation of this Section 9 .
(b) During his employment with the Employer, except as contemplated herein, and for a period of two (2) years after the termination of his employment with the Employer, regardless of the reason for such termination, the Employee agrees he will refrain from and will not directly or indirectly, as independent contractor, employee, consultant, agent, partner, joint venturer, or otherwise: (1) solicit any of the employees of the Employer to terminate their employment or (2) accept employment with or seek remuneration by any of the clients or customers of the Employer with whom the Employer did business during the term of the Employee's employment.
(c) The period of time during which the Employee is prohibited from engaging in certain business practices pursuant to Section 9(a) or (b) shall be extended by any length of time during which the Employee is in breach of such covenants.
(d) It is understood by and between the parties hereto that the foregoing restrictive covenants set forth in Sections 9(a) through (c) are essential elements of this Agreement, and that, but for the agreement of the Employee will continue to comply with such covenants, the Employer would not have agreed to enter into this Agreement. Such covenants by the Employee shall be construed as agreements independent of any other provision in this Agreement. The existence of any claim or cause of action of the Employee against the Employer, whether predicated on this Agreement, or otherwise, save and except a failure of Employer to pay sums due under the terms of this agreement, shall not constitute a defense to the enforcement by the Employer of such covenants.
(e) It is agreed by the Employer and Employee that if any portion of the covenants set forth in this Section 9 are held to be bound by the provisions invalid, unreasonable, arbitrary or against public policy, then such portion of this Section 6 until their expiration and Employee shall not be entitled to any compensation from the Company with respect thereto except as provided under this Agreement.
6.3 Employee acknowledges that the provisions of this Section 6 are essential to protect the business and goodwill of the Company. If at any time the provisions of this Section 6 shall be determined to be invalid or unenforceable by reason of being vague or unreasonable as to area, duration or scope of activity, this Section 6 such covenants shall be considered divisible both as to time and shall become geographical area. The Employer and Employee agree that, if any court of competent jurisdiction determines the specified time period or the specified geographical area applicable to this Section 9 to be immediately amended to only such areainvalid, duration and scope of activity as shall be unreasonable, arbitrary or against public policy, a lesser time period or geographical area which is determined to be reasonable, nonarbitrary and not against public policy may be enforced against the Employee. The Employer and the Employee agree that the foregoing covenants are appropriate and reasonable when considered in light of the nature and enforceable extent of the business conducted by the court or other body having jurisdiction over the matter; and Employee agrees that this Section 6 as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included hereinEmployer.
Appears in 1 contract
Non-Competition and Non-Solicitation. 6.1 Employee agrees that he will not:
(i) anywhere In order to protect the Company’s Proprietary Information and good will, during the term of my Service to the Company does businessor its Affiliates and for the period of time described below following the termination of my Service to the Company or its Affiliates (the “Restricted Period”), I 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 business activity with or through any other company anywhere in the United States, the European Union, Switzerland or Japan that conducts or initiates any program to develop, manufacture or market products that are intended to modulate the same target or operate via the same pathway as any program conducted or actively planned to be conducted by the Company or its Affiliates, including but not limited to Williston Basin and a program to develop, manufacture or market a compound that is an MvfR inhibitor, during my Service to the Rocky Mountain RegionCompany; provided that this shall not prohibit any possible investment in publicly traded stock of a company representing less than one percent of the stock of such company. The “Restricted Period” shall equal the length of my Service period with the Company or 18 months, engagewhichever is shorter. In addition, during the Restricted Period, I will not, directly or indirectly, alone or as a shareholder (in any manner, other than as a holder of less than ten percent (10%) of for the common stock of any publicly traded corporation), partner, officer, director, employee, consultant or advisor, or otherwise in any way participate in or become associated with, any other business organization that is engaged or becomes engaged in any business that is the same or substantially identical business benefit of the Company, (a) call upon, solicit, divert, take away, accept or is directly competitive conduct any business from or with any of the customers or prospective customers of the Company or its Affiliates or any of their suppliers to the extent in competition with, or to the detriment of, the Company, and/or (b) solicit, entice, attempt to persuade any business activity that other employee or consultant of the Company or its Affiliates to leave the Company (or such Affiliate) for any reason or otherwise participate in or facilitate the hire, directly or through another entity, of any person who is employed or engaged by the Company or its Affiliates or who was employed or engaged by the Company or its Affiliates within six months of any attempt to hire such person. Notwithstanding the foregoing provisions of this paragraph 8, (i) the Restricted Period shall terminate if my Service to the Company is conducting at terminated by the time Company without “cause” or if I terminate my Service to the Company as a result of Employeea material uncured diminution of or any other material and adverse change to my Service to the Company, or if I am required by the Company to relocate my principal place of business by more than 30 miles (acknowledging that requiring frequent travel to the Company’s principal place of business in the Boston metropolitan area does not constitute “relocation” for purposes of the foregoing) (a “Good Reason Termination”) and (ii) the foregoing does not restrict me from hiring any person who contacts me for that purpose on an unsolicited basis. I agree that with respect to this provision, any conflicting definition of a for cause termination or has notified Employee that it proposes to conduct and for which Good Reason termination in an agreement between the Company hasor an Affiliate and me, prior to which is in effect at the time of such termination, expended substantial resources (shall supersede the “Designated Industry”),
(ii) divert to any competitor of the Company any customer of the Company, or
(iii) solicit any employee, consultant or independent contractor of the Company to change its relationship with the Company, or hire or offer employment to, or a consulting or independent contractor relationship with, any person to whom Employee actually knows the Company has offered employment; provided, however, that definition contained in this provision does not apply to any employee, consultant or independent contractor of the Company who responds to a general solicitation for an advertised position provided Employee has not otherwise engaged in conduct prohibited by this Section 6provision.
6.2 Employee agrees to be bound by the provisions of this Section 6 in consideration for the Company’s employment of Employee, payment of the compensation and benefits provided under Section 3 and Section 4 above and the covenants and agreements set forth herein. The provisions of this Section 6 shall apply during the term of Employee’s employment with the Company and for a period of two (2) years following termination of Employee’s employment with the Company for any reason, whether such termination is at the initiative of Employee or the Company or before or after expiration of the Term. The parties agree that the provisions of this Section 6 shall survive any termination of this Agreement, Employee will continue to be bound by the provisions of this Section 6 until their expiration and Employee shall not be entitled to any compensation from the Company with respect thereto except as provided under this Agreement.
6.3 Employee acknowledges that the provisions of this Section 6 are essential to protect the business and goodwill of the Company. If at any time the provisions of this Section 6 shall be determined to be invalid or unenforceable by reason of being vague or unreasonable as to area, duration or scope of activity, this Section 6 shall be considered divisible and shall become and be immediately amended to only such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and Employee agrees that this Section 6 as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included herein.
Appears in 1 contract
Sources: Proprietary Information and Inventions Assignment Agreement (Spero Therapeutics, Inc.)
Non-Competition and Non-Solicitation. 6.1 Employee agrees that he will During the Restricted Period, the Executive shall not, and shall cause its Affiliates not to, directly or indirectly through any Person or contractual arrangement:
(i) anywhere the Company does businessmanage, including but not limited to Williston Basin and the Rocky Mountain Regionoperate, engageadvise or consult for, directly or indirectly, alone or as a shareholder (other than as a holder of less than ten percent (10%) of the common stock of any publicly traded corporation), partner, officer, director, employee, consultant or advisor, or otherwise in any way participate in or become associated with, any other business organization that is engaged or becomes engaged in any business that is the same or substantially identical business of the Company, or is directly competitive with, any business activity that the Company is conducting at the time of Employee’s termination or has notified Employee that it proposes to conduct and for which the Company has, prior to the time of such termination, expended substantial resources (the “Designated Industry”),
(ii) divert to any competitor of the Company any customer of the Company, or
(iii) solicit any employee, consultant or independent contractor of the Company to change its relationship with the Company, or hire or offer employment render services to, run, control or a consulting or independent contractor relationship with, externally manage any person to whom Employee actually knows Restricted Business in the Company has offered employmentRestricted Territory; provided, however, that the restrictions contained in this provision Agreement shall in no way be deemed to restrict the Executive or his Affiliates from (i) serving as an employee, officer, director or other service provider of any GNL Group Company or (ii) owning, directly or indirectly up to 2% of any class of securities of any public entity; provided, that the Executive does not personally engage in, or provide any services for use in, the Restricted Business; provided, further, that in the event that a Person is engaged, among other businesses, in the Restricted Business, the Executive shall not be prohibited for providing services, managing, operating, advising, or consulting for such Person so long as the Executive is not doing so for the Restricted Business;
(ii) employ, hire, enter into an agency or consulting relationship with or recruit or solicit for employment any employee of a GNL Group Company (“Restricted Service Providers”); provided, that the foregoing shall not apply to any employee, consultant or independent contractor of the Company (i) Restricted Service Providers who responds to a general solicitation for an advertised position provided Employee has not otherwise engaged in conduct prohibited by this Section 6.
6.2 Employee agrees ceased to be bound employed by the provisions of this Section 6 in consideration for the Company’s employment of Employeea GNL Group Company at least twelve (12) months prior to any solicitation by, payment of the compensation and benefits provided under Section 3 and Section 4 above and the covenants commencement of any discussions with, the Executive or any of its Affiliates; and agreements set forth herein. The provisions (ii) any general solicitations (and resulting hires) not targeted at Restricted Service Providers (including through the use of this Section 6 shall apply during the term recruiting firms or advertisements in any newspaper, magazine, trade publication, electronic medium or other media); or
(iii) encourage any customer, Prospective Customer or supplier who is a customer, Prospective Customer or supplier of Employee’s employment any GNL Group Company to terminate or adversely modify any relationship with the Company and for a period of two (2) years following termination of Employee’s employment with the Company for any reason, whether such termination is at the initiative of Employee or the Company or before or after expiration of the Term. The parties agree that the provisions of this Section 6 shall survive any termination of this Agreement, Employee will continue to be bound by the provisions of this Section 6 until their expiration and Employee shall not be entitled to any compensation from the Company with respect thereto except as provided under this Agreement.
6.3 Employee acknowledges that the provisions of this Section 6 are essential to protect the business and goodwill of the GNL Group Company. If at any time Notwithstanding anything in the provisions of this Section 6 shall be determined foregoing to be invalid or unenforceable by reason of being vague or unreasonable as to area, duration or scope of activitythe contrary, this Section 6 8(a) shall not prohibit the Executive from engaging in the practice of law and shall be considered divisible and shall become and be immediately amended interpreted so as to only such area, duration and scope comply with the rules of activity as shall be determined professional conduct governing lawyers to be reasonable and enforceable by the court or other body having jurisdiction over extent the matter; and Employee agrees that this Section 6 as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included hereinExecutive’s activities involve the practice of law.
Appears in 1 contract
Non-Competition and Non-Solicitation. 6.1 Employee (a) The Company agrees that he that, without the prior written consent of Buyer, for a period of five (5) years immediately following the Closing Date, the Company will not:
, (i) anywhere the Company does business, including but not limited to Williston Basin and the Rocky Mountain Region, engage, directly or indirectly, alone indirectly distribute and sell asset tracking hardware in competition with the Business; or as (ii) solicit for sale of asset tracking hardware (only) any person or entity that is a shareholder (other than as a holder of less than ten percent (10%) customer of the common stock of any publicly traded corporation), partner, officer, director, employee, consultant or advisor, or otherwise in any way participate in or become associated with, any other business organization that is engaged or becomes engaged in any business that is the same or substantially identical business Business as of the Company, Closing Date or is directly competitive with, any business activity person or entity that was a customer of the Company is conducting at Business in the time of Employee’s termination or has notified Employee that it proposes to conduct and for which the Company has, one-year period immediately prior to the time of such termination, expended substantial resources (the “Designated Industry”),
(ii) divert to any competitor of the Company any customer of the Company, or
(iii) solicit any employee, consultant or independent contractor of the Company to change its relationship with the Company, or hire or offer employment to, or a consulting or independent contractor relationship with, any person to whom Employee actually knows the Company has offered employmentClosing Date; provided, however, that this provision does nothing herein shall prohibit the Company from (x) distributing or selling products (including hardware) as part of a Bundled Solution), (y) distributing or selling products that are not apply in competition with the Business (as conducted on the date hereof) or (z) soliciting in connection with the activities contemplated by clause (x) or clause (y) any person or entity that purchased the Company’s asset tracking software or services (whether alone or in connection with hardware) at any time on or prior to any employeethe Closing Date.
(b) For a period of five (5) years following the Closing, consultant the Company shall not, and shall cause its Persons who act at the request of or independent contractor otherwise to the benefit of the Company who responds to in connection with the recruitment, retention or hiring of employees not to, solicit or recruit any Business Group Employees. The foregoing shall not prohibit (i) a general solicitation for an advertised position provided to the public of general advertising or similar methods of solicitation not specifically directed at Business Group Employees or (ii) the Company from soliciting, recruiting or hiring any Business Group Employee who has not otherwise engaged in conduct prohibited ceased to be employed or retained by this Section 6the Buyer (or who never becomes a Transferred Employee).
6.2 Employee agrees to be bound by (c) The Company acknowledges that since the Business involves technology that is used in products sold throughout the world, Buyer shall receive non-competition protection for the activities as defined in Section 5.4(a) worldwide.
(d) If, at the time of enforcement of any of the provisions of this Section 6 in consideration for the Company’s employment of Employee, payment of the compensation and benefits provided under Section 3 and Section 4 above and the covenants and agreements set forth herein. The provisions of this Section 6 shall apply during the term of Employee’s employment with the Company and for 5.4 a period of two (2) years following termination of Employee’s employment with the Company for any reason, whether such termination is at the initiative of Employee or the Company or before or after expiration of the Term. The parties agree court holds that the provisions of this Section 6 shall survive any termination of this Agreementrestrictions stated herein are unreasonable under the circumstances then existing or are otherwise illegal, Employee will continue to be bound by the provisions of this Section 6 until their expiration and Employee shall not be entitled to any compensation from the Company with respect thereto except as provided under this Agreement.
6.3 Employee acknowledges that the provisions of this Section 6 are essential to protect the business and goodwill of the Company. If at any time the provisions of this Section 6 shall be determined to be invalid or unenforceable in any respect by reason of being vague or unreasonable as to areaits duration, duration definition of geographic area or scope of activity, or any other reason, the parties hereto agree that the maximum period, scope or geographical area reasonable or otherwise enforceable under such circumstances shall be substituted for the stated period, scope or area.
(e) The Company acknowledges that: (i) the covenants and the restrictions contained in this Section 6 are necessary, fundamental, and required for the protection of the goodwill of the Business purchased by Buyer; (ii) such covenants relate to matters which are of a special, unique, and extraordinary character that gives each of such covenants a special, unique, and extraordinary value; and (iii) a breach of any of such covenants may result in irreparable harm and damages to Buyer which cannot be adequately compensated by a monetary award. Accordingly, it is expressly agreed that in addition to all other remedies available at law or in equity, Buyer shall be considered divisible and entitled to seek the immediate remedy of a temporary restraining order, preliminary injunction, or such other form of injunctive or equitable relief as may be used by any court of competent jurisdiction to restrain or enjoin any of the parties hereto from breaching any such covenant or provision or to specifically enforce the provisions hereof.
(f) Notwithstanding anything herein to the contrary, in the event the Company or one or more of its business units is acquired (including by merger, operation of law or otherwise) directly or indirectly by any Person or group of Persons (such an acquiring Person, a “Successor”), nothing in this Agreement shall become and be immediately amended prohibit any Successor from continuing to only operate (including to expand) any business operated by such area, duration and scope Successor on or prior to the date such Successor acquired the Company (or any of activity as shall be determined to be reasonable and enforceable by its business unit(s)); provided that such Successor may not use the court Company Retained IP Rights or other body having jurisdiction over the matter; and Employee agrees that Intellectual Property rights associated with the Qtanium family of products otherwise in violation of this Section 6 as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included herein5.4.
Appears in 1 contract
Non-Competition and Non-Solicitation. 6.1 Employee agrees that he will notDuring the Term and for a period of six (6) months following the expiration or termination of this Agreement:
(ia) anywhere the Consultant shall not in the United States or in any country in which the Company does shall then be doing business, including but not limited to Williston Basin and the Rocky Mountain Region, engage, directly or indirectly, alone or as a shareholder (other than as a holder of less than ten percent (10%) of enter the common stock of any publicly traded corporation), partner, officer, director, employee, consultant or advisoremploy of, or otherwise in render any way participate in or become associated withservices to, any other business organization that is engaged person, firm or becomes corporation engaged in any business that is competitive with the same or substantially identical business of the CompanyCompany or of any of its subsidiaries or affiliates; he shall not engage in such business on his own account; and he shall not become interested in any such business, directly or indirectly, as an individual, partner, shareholder, director, officer, principal, agent, employee, trustee, consultant, or is directly competitive with, any business activity that the Company is conducting at the time of Employee’s termination other relationship or has notified Employee that it proposes to conduct and for which the Company has, prior to the time of such termination, expended substantial resources (the “Designated Industry”),
(ii) divert to any competitor of the Company any customer of the Company, or
(iii) solicit any employee, consultant or independent contractor of the Company to change its relationship with the Company, or hire or offer employment to, or a consulting or independent contractor relationship with, any person to whom Employee actually knows the Company has offered employmentcapacity; provided, however, that nothing contained in this Section 7 shall be deemed to prohibit the Consultant from acquiring, solely as an investment, shares of capital stock of any public corporation; (b) neither the Consultant nor any Affiliate of the Consultant shall solicit or utilize, or assist any person in any way to solicit or utilize, the services, directly or indirectly, of any of the Company's directors, consultants, members of the Board of Scientific and Medical Advisors, officers or employees (collectively, "Associates of the Company"). This non-solicitation and non-utilization provision does shall not apply to any employee, consultant or independent contractor Associates of the Company who responds to a general solicitation for an advertised position provided Employee has not otherwise engaged in conduct prohibited by this Section 6have previously terminated their relationship with the Company.
6.2 Employee agrees 7.1 If the Consultant commits a breach, or threatens to be bound by commit a breach, of any of the provisions of this Section 6 in consideration for the Company’s employment of Employee7, payment of the compensation and benefits provided under Section 3 and Section 4 above and the covenants and agreements set forth herein. The provisions of this Section 6 shall apply during the term of Employee’s employment with the Company shall have the following rights and for a period of two (2) years following termination of Employee’s employment with the Company for any reason, whether such termination is at the initiative of Employee or the Company or before or after expiration of the Term. remedies:
7.1.1 The parties agree that right and remedy to have the provisions of this Section 6 Agreement specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach shall survive cause irreparable injury to the Company and that money damages shall not provide an adequate remedy to the Company.
7.1.2 The right and remedy to require the Consultant to account for and pay over to the Company all compensation, profits, monies, accruals, increments or other benefits (collectively "Benefits") derived or received by the Consultant as the result of any termination transactions constituting a breach of this Agreement, Employee will continue to be bound by any of the provisions of this Section 6 until their expiration the preceding paragraph, and Employee shall not be entitled the Consultant hereby agrees to any compensation from the Company with respect thereto except as provided under this Agreement.
6.3 Employee acknowledges that the provisions of this Section 6 are essential account for and pay over such Benefits to protect the business and goodwill of the Company. If at any time Each of the provisions of this Section 6 rights and remedies enumerated above shall be determined to be invalid or unenforceable by reason independent of being vague or unreasonable as to areathe other, duration or scope of activity, this Section 6 and shall be considered divisible severally enforceable, and shall become all of such rights and be immediately amended to only such area, duration and scope of activity as remedies shall be determined in addition to, and not in lieu of, any other rights and remedies available to be reasonable and enforceable by the court Company under law or other body having jurisdiction over the matter; and Employee agrees that this Section 6 as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included hereinin equity.
Appears in 1 contract