Non-Competition, Non-Solicitation and Non-Disparagement. (a) The Employee understands and recognizes that his services to the Company are special and unique and that in the course of performing the Services the Employee will have access to and knowledge of Confidential and Proprietary Information (as defined in Section 5) and the Employee agrees that, during the Term and for a period of six (6) months thereafter, he shall not in any manner, directly or indirectly, on behalf of himself or any person, firm, partnership, joint venture, corporation or other business entity ("Person"), enter into or engage in any business which is engaged in any business directly or indirectly competitive with the business of the Company, either as an individual for his own account, or as a partner, joint venturer, owner, executive, employee, independent contractor, principal, agent, consultant, salesperson, officer, director or shareholder of a Person in a business competitive with the Company within the geographic area of the Company's business, which is deemed by the parties hereto to be worldwide. The Employee acknowledges that, due to the unique nature of the Company's business and its business model, the loss of any of its clients or business flow, the replication of its business model or the improper use of its Confidential and Proprietary Information could create significant instability and cause substantial damage to the Company and its affiliates and therefore the Company has a strong legitimate business interest in protecting the continuity of its business interests and the restriction herein agreed to by the Employee narrowly and fairly serves such an important and critical business interest of the Company. For the purposes of the non-competition provisions of this Agreement, the Company shall be deemed to be actively engaged on the date hereof in the research, development and commercialization of drugs, therapeutics and vaccines for the treatment of conditions related to infectious diseases. Notwithstanding the foregoing, nothing contained in this Section 6(a) shall be deemed to prohibit the Employee from (i) acquiring or holding, solely for investment, publicly traded securities of any corporation, some or all of the activities of which are competitive with the business of the Company so long as such securities do not, in the aggregate, constitute more than four percent (4%) of any class or series of outstanding securities of such corporation. (b) During the Term and for a period of six (6) months thereafter, the Employee shall not, directly or indirectly, without the prior written consent of the Company: (i) solicit or induce any employee of the Company or any of its affiliates to leave the employ of the Company or any such subsidiary or affiliate; or hire for any purpose any employee of the Company or any subsidiary or affiliate or any employee who has left the employment of the Company or any subsidiary or affiliate within six (6) months of the termination of such employee's employment with the Company or any such subsidiary or affiliate or at any time in violation of such employee's non-competition agreement with the Company or any such subsidiary or affiliate; or (ii) solicit or accept employment or be retained by any Person who, at any time during the term of this Agreement, was an agent, client or customer of the Company or any of its subsidiaries or affiliates where his position will be related to the business of the Company or any such affiliate; or (iii) solicit or accept the business of any agent, client or customer of the Company or any of its subsidiaries or affiliates with respect to products, services or investments similar to those provided or supplied by the Company or any of its subsidiaries or affiliates. (c) The Company and the Employee each agree that both during the Term and at all times thereafter, neither party shall directly or indirectly disparage, whether or not true, the name or reputation of the other party or any of its subsidiaries or affiliates, including but not limited to, any officer, director, employee or shareholder of the Company or any of its subsidiaries or affiliates. (d) In the event that the Employee breaches any provisions of Section 5 or this Section 6 or there is a threatened breach, then, in addition to any other rights which the Company may have, the Company shall (i) be entitled, without the posting of a bond or other security, to injunctive relief to enforce the restrictions contained in such Sections and (ii) have the right to require the Employee to account for all compensation, profits, monies, accruals, increments and other benefits (collectively "Benefits") derived or received by the Employee as a result of any transaction constituting a breach of any of the provisions of Section 5 or this Section 6 and the Employee hereby agrees to account for such Benefits to the Company. The Employee agrees that in an action pursuant to this Section 6, that if the Company makes a prima facie showing that the Employee has violated or intends to violate any of the provisions of this Section 6, the Company need not prove either damage or irreparable injury in order to obtain injunctive relief. The Company and the Employee agree that any such action for injunctive or equitable relief shall be heard in the courts of the State of California, County of San Diego, or the United States District Court for the Southern District of California and each of the parties hereto agrees to accept service of process by registered or certified mail and to otherwise consent to the jurisdiction of such courts. (e) Each of the rights and remedies enumerated in Section 6(d) shall be independent of the others and shall be in addition to and not in lieu of any other rights and remedies available to the Company at law or in equity. The Employee hereby acknowledges and agrees that the covenant against competition provided for pursuant to Section 6(a) is reasonable with respect to it duration, geographic area and scope. If, at the time of enforcement of this Section 6, a court holds that the restrictions stated herein are unreasonable under the circumstances then existing, the Parties hereto agree that the maximum duration, scope or geographic area legally permissible under such circumstances will be substituted for the duration, scope or area state herein. If any of the covenants contained in this Section 6, or any part of any of them, is hereafter construed or adjudicated to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants or rights or remedies which shall be given full effect without regard to the invalid portions. No such holding of invalidity or unenforceability in one jurisdiction shall bar or in any way affect the Company's right to the relief provided in this Section 6 or otherwise in the courts of any other state or jurisdiction within the geographical scope of such covenants as to breaches of such covenants in such other respective states or jurisdictions, such covenants being, for this purpose, severable into diverse and independent covenants. (f) In the event that an actual proceeding is brought in equity to enforce the provisions of Section 5 or this Section 6, the Employee shall not urge as a defense that there is an adequate remedy at law nor shall the Company be prevented from seeking any other remedies which may be available. (g) The provisions of this Section 6 shall survive any termination of this Agreement.
Appears in 1 contract
Non-Competition, Non-Solicitation and Non-Disparagement. (a) The Employee Executive understands and recognizes that his services to the Company are special and unique and that in the course of performing such services the Services the Employee Executive will have access to and knowledge of Confidential and Proprietary Information (as defined in Section 5) and the Employee Executive agrees that, during the Term and for a period of six (6) 12 months thereafter, he shall not in any manner, directly or indirectly, on behalf of himself or any person, firm, partnership, joint venture, corporation or other business entity ("“Person"”), enter into or engage in any business which is engaged in any business activities directly or indirectly competitive with the business of Company in the CompanyBusiness (as defined below) (each, either as an individual for his own account, or as a partner, joint venturer, owner, executive, employee, independent contractor, principal, agent, consultant, salesperson, officer, director or shareholder of a Person in a business competitive with the Company “Restricted Activity”) within the geographic area of the Company's business’s Business, which is deemed by the parties hereto to be worldwide. The Employee Executive acknowledges that, due to the unique nature of the Company's business and its business modelBusiness, the loss of any of its the Company’s clients or business flow, the replication of its business model flow or the improper use of its Confidential and Proprietary Information could may create significant instability and cause substantial damage to the Company and its affiliates and therefore affiliates. Therefore, the Company has a strong legitimate business interest in protecting the continuity of its business interests and the restriction herein agreed to by the Employee Executive narrowly and fairly serves such an important and critical business interest of the Company. For the purposes of the non-competition provisions of this Agreement, “Business” means the Company shall be deemed to be actively engaged on the date hereof in the research, development and commercialization of drugs, therapeutics drugs and vaccines other biomedical technologies in which the Company is actively engaged (1) for the treatment treatment, detection or prevention of conditions related to infectious cancer and (2) for the treatment, detection or prevention of any other diseases, disorders, and conditions. Notwithstanding the foregoing, nothing contained in this Section 6(a) shall be deemed to prohibit the Employee Executive from (i) engaging in a Restricted Activity for or with respect to any subsidiary, division or affiliate or unit (each, a “Unit”) of a Person if that Unit is not engaged in any business which is competitive with the Business of the Company, irrespective of whether some other Unit of such Person engages in such competition (as long as the Executive does not engage in a Restricted Activity for such other Unit), or (ii) acquiring or holding, solely for investment, publicly traded securities of any corporation, some or all of the activities of which are competitive with the business Business of the Company so long as such securities do not, in the aggregate, constitute more than four percent (4%) % of any class or series of outstanding securities of such corporation.
(b) During the Term and for a period of six (6) months thereafter, the Employee shall not, directly or indirectly, without the prior written consent of the Company:
(i) solicit or induce any employee of the Company or any of its affiliates to leave the employ of the Company or any such subsidiary or affiliate; or hire for any purpose any employee of the Company or any subsidiary or affiliate or any employee who has left the employment of the Company or any subsidiary or affiliate within six (6) months of the termination of such employee's employment with the Company or any such subsidiary or affiliate or at any time in violation of such employee's non-competition agreement with the Company or any such subsidiary or affiliate; or
(ii) solicit or accept employment or be retained by any Person who, at any time during the term of this Agreement, was an agent, client or customer of the Company or any of its subsidiaries or affiliates where his position will be related to the business of the Company or any such affiliate; or
(iii) solicit or accept the business of any agent, client or customer of the Company or any of its subsidiaries or affiliates with respect to products, services or investments similar to those provided or supplied by the Company or any of its subsidiaries or affiliates.
(c) The Company and the Employee each agree that both during the Term and at all times thereafter, neither party shall directly or indirectly disparage, whether or not true, the name or reputation of the other party or any of its subsidiaries or affiliates, including but not limited to, any officer, director, employee or shareholder of the Company or any of its subsidiaries or affiliates.
(d) In the event that the Employee breaches any provisions of Section 5 or this Section 6 or there is a threatened breach, then, in addition to any other rights which the Company may have, the Company shall (i) be entitled, without the posting of a bond or other security, to injunctive relief to enforce the restrictions contained in such Sections and (ii) have the right to require the Employee to account for all compensation, profits, monies, accruals, increments and other benefits (collectively "Benefits") derived or received by the Employee as a result of any transaction constituting a breach of any of the provisions of Section 5 or this Section 6 and the Employee hereby agrees to account for such Benefits to the Company. The Employee agrees that in an action pursuant to this Section 6, that if the Company makes a prima facie showing that the Employee has violated or intends to violate any of the provisions of this Section 6, the Company need not prove either damage or irreparable injury in order to obtain injunctive relief. The Company and the Employee agree that any such action for injunctive or equitable relief shall be heard in the courts of the State of California, County of San Diego, or the United States District Court for the Southern District of California and each of the parties hereto agrees to accept service of process by registered or certified mail and to otherwise consent to the jurisdiction of such courts.
(e) Each of the rights and remedies enumerated in Section 6(d) shall be independent of the others and shall be in addition to and not in lieu of any other rights and remedies available to the Company at law or in equity. The Employee hereby acknowledges and agrees that the covenant against competition provided for pursuant to Section 6(a) is reasonable with respect to it duration, geographic area and scope. If, at the time of enforcement of this Section 6, a court holds that the restrictions stated herein are unreasonable under the circumstances then existing, the Parties hereto agree that the maximum duration, scope or geographic area legally permissible under such circumstances will be substituted for the duration, scope or area state herein. If any of the covenants contained in this Section 6, or any part of any of them, is hereafter construed or adjudicated to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants or rights or remedies which shall be given full effect without regard to the invalid portions. No such holding of invalidity or unenforceability in one jurisdiction shall bar or in any way affect the Company's right to the relief provided in this Section 6 or otherwise in the courts of any other state or jurisdiction within the geographical scope of such covenants as to breaches of such covenants in such other respective states or jurisdictions, such covenants being, for this purpose, severable into diverse and independent covenants.
(f) In the event that an actual proceeding is brought in equity to enforce the provisions of Section 5 or this Section 6, the Employee shall not urge as a defense that there is an adequate remedy at law nor shall the Company be prevented from seeking any other remedies which may be available.
(g) The provisions of this Section 6 shall survive any termination of this Agreement.
Appears in 1 contract
Non-Competition, Non-Solicitation and Non-Disparagement. (a) The Employee understands and recognizes that his services to the Company are special and unique and that in the course of performing the Services such services the Employee will have access to and knowledge of Confidential and Proprietary Information (as defined in Section 5) and the Employee agrees that, during the Term and for a period of six twelve (612) months thereafter, he shall not in any manner, directly or indirectly, on behalf of himself or any person, firm, partnership, joint venture, corporation or other business entity ("“Person"”), enter into or engage in any business which is engaged in any business directly or indirectly competitive with the business of the Company, either as an individual for his own account, or as a partner, joint venturer, owner, executive, employee, independent contractor, principal, agent, consultant, salesperson, officer, director or shareholder of a Person in a business competitive with the Company within the geographic area of the Company's ’s business, which is deemed by the parties hereto to be worldwide. The Employee acknowledges that, due to the unique nature of the Company's business and its business model’s business, the loss of any of its clients or business flow, the replication of its business model flow or the improper use of its Confidential and Proprietary Information could create significant instability and cause substantial damage to the Company and its affiliates and therefore the Company has a strong legitimate business interest in protecting the continuity of its business interests and the restriction herein agreed to by the Employee narrowly and fairly serves such an important and critical business interest of the Company. For the purposes of the non-competition provisions of this Agreement, the Company shall be deemed to be actively engaged on the date hereof in the research, development and commercialization of drugs, therapeutics and vaccines drugs for the treatment of obesity and dermatologic conditions related and novel application drug delivery systems for presently marketed prescription and over-the-counter drugs and providing consulting services in connection therewith, and in the future in any other business in which it actually devotes substantive resources to infectious diseasesstudy, develop or pursue. Notwithstanding the foregoing, nothing contained in this Section 6(a) shall be deemed to prohibit the Employee from (i) acquiring or holding, solely for investment, publicly traded securities of any corporation, some or all of the activities of which are competitive with the business of the Company so long as such securities do not, in the aggregate, constitute more than four three percent (43%) of any class or series of outstanding securities of such corporation.
(b) During the Term and for a period of six (6) 18 months thereafter, the Employee shall not, directly or indirectly, without the prior written consent of the Company:
(i) solicit or induce any employee of the Company or any of its affiliates to leave the employ of the Company or any such subsidiary or affiliate; or hire for any purpose any employee of the Company or any subsidiary or affiliate or any employee who has left the employment of the Company or any subsidiary or affiliate within six (6) months one year of the termination of such employee's ’s employment with the Company or any such subsidiary or affiliate or at any time in violation of such employee's ’s non-competition agreement with the Company or any such subsidiary or affiliate; or
(ii) solicit or accept employment or be retained by any Person who, at any time during the term of this Agreement, was an agent, client or customer of the Company or any of its subsidiaries or affiliates where his position will be related to the business of the Company or any such affiliate; or
(iii) solicit or accept the business of any agent, client or customer of the Company or any of its subsidiaries or affiliates with respect to products, services or investments similar to those provided or supplied by the Company or any of its subsidiaries or affiliates.
(c) The Company and the Employee each agree that both during the Term and at all times thereafter, neither party shall directly or indirectly disparage, whether or not true, the name or reputation of the other party or any of its subsidiaries or affiliates, including but not limited to, any officer, director, employee or shareholder of the Company or any of its subsidiaries or affiliates.
(d) In the event that the Employee breaches any provisions of Section 5 or this Section 6 or there is a threatened breach, then, in addition to any other rights which the Company may have, the Company shall (i) be entitled, without the posting of a bond or other security, to injunctive relief to enforce the restrictions contained in such Sections and (ii) have the right to require the Employee to account for and pay over to the Company all compensation, profits, monies, accruals, increments and other benefits (collectively "“Benefits"”) derived or received by the Employee as a result of any transaction constituting a breach of any of the provisions of Section Sections 5 or this Section 6 and the Employee hereby agrees to account for and pay over such Benefits to the Company. The Employee agrees that in an action pursuant to this Section 6clause 6(d)(i), that if the Company makes a prima facie showing that the Employee has violated or apparently intends to violate any of the provisions of this Section 6, the Company need not prove either damage or irreparable injury in order to obtain injunctive relief. The Company and the Employee agree that any such action for injunctive or equitable relief shall be heard in the courts of the State of California, County of San Diego, or the United States District Court for the Southern District of California and each of the parties hereto agrees to accept service of process by registered or certified mail and to otherwise consent to the jurisdiction of such courts.
(e) Each of the rights and remedies enumerated in Section 6(d) shall be independent of the others and shall be in addition to and not in lieu of any other rights and remedies available to the Company at law or in equity. The Employee hereby acknowledges and agrees that the covenant against competition provided for pursuant to Section 6(a) is reasonable with respect to it duration, geographic area and scope. If, at the time of enforcement of this Section 6, a court holds that the restrictions stated herein are unreasonable under the circumstances then existing, the Parties hereto agree that the maximum duration, scope or geographic area legally permissible under such circumstances will be substituted for the duration, scope or area state herein. If any of the covenants contained in this Section 6, or any part of any of them, is hereafter construed or adjudicated to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants or rights or remedies which shall be given full effect without regard to the invalid portions. If any of the covenants contained in this Section 6 is held to be invalid or 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. No such holding of invalidity or unenforceability in one jurisdiction shall bar or in any way affect the Company's ’s right to the relief provided in this Section 6 or otherwise in the courts of any other state or jurisdiction within the geographical scope of such covenants as to breaches of such covenants in such other respective states or jurisdictions, such covenants being, for this purpose, severable into diverse and independent covenants.
(f) In the event that an actual proceeding is brought in equity to enforce the provisions of Section 5 or this Section 6, the Employee shall not urge as a defense that there is an adequate remedy at law nor shall the Company be prevented from seeking any other remedies which may be available. The Employee agrees that he shall not raise in any proceeding brought to enforce the provisions of Section 5 or this Section 6 that the covenants contained in such Sections limit his ability to earn a living.
(g) The provisions of this Section 6 shall survive any termination of this Agreement.
Appears in 1 contract
Sources: Employment Agreement (Manhattan Pharmaceuticals Inc)
Non-Competition, Non-Solicitation and Non-Disparagement. (a) The Employee Executive understands and recognizes that his services to the Company are special and unique and that in the course of performing such services the Services the Employee Executive will have access to and knowledge of Confidential and Proprietary Information (as defined in Section 5) and 6). As a result of such access, the Employee Executive agrees that, that during the Term and for a period of six (6) 6 months thereafter, he shall not in any manner, directly or indirectly, on behalf of himself or any person, firm, partnership, joint venture, corporation or other business entity ("“Person"”), enter into or engage in any business which that is engaged in any business directly or indirectly competitive with the business Business of the Company, either as an individual for his own account, or as a partner, joint venturer, owner, executive, employee, independent contractor, principal, agent, consultant, salesperson, officer, director or shareholder of a Person in a business competitive with the Company (again, with the exception of CorMedix, Inc. and Asphelia) within the geographic area of the Company's business’s Business (each, a “Restricted Activity”), which is deemed by the parties hereto to be worldwidein the United States and European Union. The Employee Executive acknowledges that, due to the unique nature of the Company's business and its business model’s business, the loss of any of its clients or business flow, the replication of its business model flow or the improper use of its Confidential and Proprietary Information could create significant instability and cause substantial damage to the Company and its affiliates and therefore the Company has a strong legitimate business interest in protecting the continuity of its business interests and the restriction herein agreed to by the Employee Executive narrowly and fairly serves such an important and critical business interest of the Company. For the purposes of the non-competition provisions of this Agreement, the “Business” of the Company and its affiliates shall be deemed to be actively engaged on mean the date hereof in following: the research, development and commercialization of drugs, therapeutics and vaccines novel prescription drugs for the specific disease treatment of conditions related to infectious diseaseshemorrhoids, anal fissures, and fecal incontinence. Notwithstanding the foregoing, nothing contained in this Section 6(a7(a) shall be deemed to prohibit the Employee Executive from (i) acquiring or holding, solely for investment, publicly traded securities of any corporation, some or all of the activities of which are competitive with the business of the Company so long as such securities do not, in the aggregate, constitute more than four five percent (45%) of any class or series of outstanding securities of such corporation, or (ii) engaging in a Restricted Activity for or with respect to any subsidiary, division or affiliate or unit (each, a “Unit”) of a Person if that Unit is not engaged in business which is directly competitive with the Business of the Company, irrespective of whether some other Unit of such Person engages in such competition (as long as the Executive does not engage in a Restricted Activity for such other Unit).
(b) During the Term and for a period of six (6) 6 months thereafter, the Employee Executive shall not, directly or indirectly, without the prior written consent of the Company:
(i) solicit or induce any employee of the Company or any of its affiliates to leave the employ of the Company or any such subsidiary or affiliate; or hire for any purpose any employee of the Company or any subsidiary or affiliate affiliate, or any employee who has left the employment of the Company or any subsidiary or affiliate affiliate, within six (6) months one year of the termination of such employee's ’s employment with the Company or any such subsidiary or affiliate or at any time if to hire such person would be in violation of such employee's ’s non-competition agreement with the Company or any such subsidiary or affiliate; or
(ii) solicit or accept employment or be retained by any Person who, at any time during the term of this Agreement, was an agent, client or customer of the Company or any of its subsidiaries or affiliates where his Executive’s position will be related to competitive with the business of the Company or any such affiliate; or
(iii) affiliate or solicit or accept the business of any agent, client or customer of the Company or any of its subsidiaries or affiliates with respect to products, services or investments similar to competitive with those provided or supplied by the Company or any of its subsidiaries or affiliatesCompany.
(c) The Company and the Employee Executive each agree that both during the Term and at all times thereafter, neither party shall directly or indirectly disparage, whether or not true, the name or reputation of the other party or any of its subsidiaries or affiliatesparty, including but not limited to, any officer, director, employee or shareholder of the Company or any of its subsidiaries or affiliatesCompany.
(d) In the event that the Employee Executive breaches any provisions of Section 5 6 or this Section 6 7 or there is a threatened breach, then, in addition to any other rights which the Company may have, the Company shall (i) be entitled, without the posting of a bond or other security, to seek injunctive relief to enforce the restrictions contained in such Sections and (ii) have the right to require the Employee Executive to account for and pay over to the Company all compensation, profits, monies, accruals, increments and other benefits (collectively "“Benefits"”) derived or received by the Employee Executive as a result of any transaction constituting a breach of any of the provisions of Section 5 Sections 6 or this Section 6 and the Employee hereby agrees to account for such Benefits to the Company. The Employee agrees that in an action pursuant to this Section 6, that if the Company makes a prima facie showing that the Employee has violated or intends to violate any of the provisions of this Section 6, the Company need not prove either damage or irreparable injury in order to obtain injunctive relief. The Company and the Employee agree that any such action for injunctive or equitable relief shall be heard in the courts of the State of California, County of San Diego, or the United States District Court for the Southern District of California and each of the parties hereto agrees to accept service of process by registered or certified mail and to otherwise consent to the jurisdiction of such courts7.
(e) Each of the rights and remedies enumerated in Section 6(d7(d) shall be independent of the others and shall be in addition to and not in lieu of any other rights and remedies available to the Company at law or in equity. The Employee hereby acknowledges and agrees that the covenant against competition provided for pursuant to Section 6(a7(a) is reasonable with respect to it duration, geographic area and scope. If, at the time of enforcement of this Section 67, a court holds that the restrictions stated herein are unreasonable under the circumstances then existing, the Parties hereto agree that the maximum duration, scope or geographic area legally permissible under such circumstances will be substituted for the duration, scope or area state herein. If any of the covenants contained in this Section 67, or any part of any of them, is hereafter construed or adjudicated to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants or rights or remedies which shall be given full effect without regard to the invalid portions. No such holding of invalidity or unenforceability in one jurisdiction shall bar or in any way affect the Company's ’s right to the relief provided in this Section 6 7 or otherwise in the courts of any other state or jurisdiction within the geographical scope of such covenants as to breaches of such covenants in such other respective states or jurisdictions, such covenants being, for this purpose, severable into diverse and independent covenants.
(f) In the event that an actual proceeding is brought in equity to enforce the provisions of Section 5 6 or this Section 67, the Employee Executive shall not urge as a defense that there is an adequate remedy at law nor shall the Company be prevented from seeking any other remedies which may be available. The Executive agrees that he shall not raise in any proceeding brought to enforce the provisions of Section 6 or this Section 7 that the covenants contained in such Sections limit his ability to earn a living.
(g) The provisions of this Section 6 7 shall survive any termination of this Agreement, unless the Executive’s employment hereunder is terminated as a result of the Company’s election not to extend the Term pursuant to Section 2.
Appears in 1 contract
Non-Competition, Non-Solicitation and Non-Disparagement. (a) The Employee Executive understands and recognizes that his services to the Company are special and unique and that in the course of performing such services the Services the Employee Executive will have access to and knowledge of Confidential and Proprietary Information (as defined in Section 56) and the Employee Executive agrees that, during the Term and for a period of six (6) 12 months thereafter, he shall not in any manner, directly or indirectly, on behalf of himself or any person, firm, partnership, joint venture, corporation or other business entity ("“Person"”), enter into or engage in any business which is engaged in any business directly or indirectly competitive with the business of Company in the CompanyBusiness (as defined below) (each, either as an individual for his own account, or as a partner, joint venturer, owner, executive, employee, independent contractor, principal, agent, consultant, salesperson, officer, director or shareholder of a Person in a business competitive with the Company “Restricted Activity”) within the geographic area of the Company's ’s business, which is deemed by the parties hereto to be worldwide. The Employee Executive acknowledges that, due to the unique nature of the Company's business and its business modelBusiness, the loss of any of its clients or business flow, the replication of its business model flow or the improper use of its Confidential and Proprietary Information could create significant instability and cause substantial damage to the Company and its affiliates and therefore the Company has a strong legitimate business interest in protecting the continuity of its business interests and the restriction herein agreed to by the Employee Executive narrowly and fairly serves such an important and critical business interest of the Company. For the purposes of the non-competition provisions of this Agreement, the Company shall be deemed to be actively engaged on “Business” means the date hereof in the research, development and commercialization of drugs, therapeutics drugs and vaccines other biomedical technologies in which the Company is actively engaged (1) for the treatment treatment, detection or prevention of dermatologic diseases, disorders, and conditions related to infectious and (2) the treatment, detection or prevention of any other diseases, disorders, and conditions. Notwithstanding the foregoing, nothing contained in this Section 6(a7(a) shall be deemed to prohibit the Employee Executive from (i) engaging in a Restricted Activity for or with respect to any subsidiary, division or affiliate or unit (each, a “Unit”) of a Person if that Unit is not engaged in any business which is competitive with the Business of the Company, irrespective of whether some other Unit of such Person engages in such competition (as long as the Executive does not engage in a Restricted Activity for such other Unit), or (ii) acquiring or holding, solely for investment, publicly traded securities of any corporation, some or all of the activities of which are competitive with the business of the Company so long as such securities do not, in the aggregate, constitute more than four percent (4%) % of any class or series of outstanding securities of such corporation.
(b) During the Term and for a period of six (6) months thereafter, the Employee shall not, directly or indirectly, without the prior written consent of the Company:
(i) solicit or induce any employee of the Company or any of its affiliates to leave the employ of the Company or any such subsidiary or affiliate; or hire for any purpose any employee of the Company or any subsidiary or affiliate or any employee who has left the employment of the Company or any subsidiary or affiliate within six (6) months of the termination of such employee's employment with the Company or any such subsidiary or affiliate or at any time in violation of such employee's non-competition agreement with the Company or any such subsidiary or affiliate; or
(ii) solicit or accept employment or be retained by any Person who, at any time during the term of this Agreement, was an agent, client or customer of the Company or any of its subsidiaries or affiliates where his position will be related to the business of the Company or any such affiliate; or
(iii) solicit or accept the business of any agent, client or customer of the Company or any of its subsidiaries or affiliates with respect to products, services or investments similar to those provided or supplied by the Company or any of its subsidiaries or affiliates.
(c) The Company and the Employee each agree that both during the Term and at all times thereafter, neither party shall directly or indirectly disparage, whether or not true, the name or reputation of the other party or any of its subsidiaries or affiliates, including but not limited to, any officer, director, employee or shareholder of the Company or any of its subsidiaries or affiliates.
(d) In the event that the Employee breaches any provisions of Section 5 or this Section 6 or there is a threatened breach, then, in addition to any other rights which the Company may have, the Company shall (i) be entitled, without the posting of a bond or other security, to injunctive relief to enforce the restrictions contained in such Sections and (ii) have the right to require the Employee to account for all compensation, profits, monies, accruals, increments and other benefits (collectively "Benefits") derived or received by the Employee as a result of any transaction constituting a breach of any of the provisions of Section 5 or this Section 6 and the Employee hereby agrees to account for such Benefits to the Company. The Employee agrees that in an action pursuant to this Section 6, that if the Company makes a prima facie showing that the Employee has violated or intends to violate any of the provisions of this Section 6, the Company need not prove either damage or irreparable injury in order to obtain injunctive relief. The Company and the Employee agree that any such action for injunctive or equitable relief shall be heard in the courts of the State of California, County of San Diego, or the United States District Court for the Southern District of California and each of the parties hereto agrees to accept service of process by registered or certified mail and to otherwise consent to the jurisdiction of such courts.
(e) Each of the rights and remedies enumerated in Section 6(d) shall be independent of the others and shall be in addition to and not in lieu of any other rights and remedies available to the Company at law or in equity. The Employee hereby acknowledges and agrees that the covenant against competition provided for pursuant to Section 6(a) is reasonable with respect to it duration, geographic area and scope. If, at the time of enforcement of this Section 6, a court holds that the restrictions stated herein are unreasonable under the circumstances then existing, the Parties hereto agree that the maximum duration, scope or geographic area legally permissible under such circumstances will be substituted for the duration, scope or area state herein. If any of the covenants contained in this Section 6, or any part of any of them, is hereafter construed or adjudicated to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants or rights or remedies which shall be given full effect without regard to the invalid portions. No such holding of invalidity or unenforceability in one jurisdiction shall bar or in any way affect the Company's right to the relief provided in this Section 6 or otherwise in the courts of any other state or jurisdiction within the geographical scope of such covenants as to breaches of such covenants in such other respective states or jurisdictions, such covenants being, for this purpose, severable into diverse and independent covenants.
(f) In the event that an actual proceeding is brought in equity to enforce the provisions of Section 5 or this Section 6, the Employee shall not urge as a defense that there is an adequate remedy at law nor shall the Company be prevented from seeking any other remedies which may be available.
(g) The provisions of this Section 6 shall survive any termination of this Agreement.
Appears in 1 contract
Sources: Employment Agreement (Manhattan Pharmaceuticals Inc)
Non-Competition, Non-Solicitation and Non-Disparagement. (a) The Employee Executive understands and recognizes that his services to the Company are special and unique and that in the course of performing such services the Services the Employee Executive will have access to and knowledge of Confidential and Proprietary Information (as defined in Section 5) and the Employee Executive agrees that, during the Term and for a period of six twelve (612) months thereafter, he shall not in any manner, directly or indirectly, on behalf of himself or any person, firm, partnership, joint venture, corporation or other business entity ("“Person"”), enter into or engage in be employed by any business which that is engaged in any business directly or indirectly competitive with the business of the Company, either as an individual for his own account, or as a partner, joint venturer, owner, executive, employee, independent contractor, principal, agent, consultant, salesperson, officer, director or shareholder of a Person in a business competitive with the Company within the geographic area of the Company's ’s business, which is deemed by the parties hereto to be worldwide. The Employee Executive acknowledges that, due to the unique nature of the Company's business and its business model’s business, the loss of any of its clients or business flow, the replication of its business model flow or the improper use of its Confidential and Proprietary Information could create significant instability and cause substantial damage to the Company and its affiliates and therefore the Company has a strong legitimate business interest in protecting the continuity of its business interests and the restriction herein agreed to by the Employee Executive narrowly and fairly serves such an important and critical business interest of the Company. For the purposes of the non-competition provisions of this Agreement, the Company shall be deemed to be actively engaged on the date hereof in the researchdevelopment of novel application oral drug delivery systems for presently marketed prescription and over-the-counter drugs where such drug is a small molecule, development non-biologic, and commercialization providing consulting services in connection therewith, and in the future in any other business in which it actually devotes substantive resources to study, develop or pursue. For the sake of drugsclarity, therapeutics and vaccines the Executive will not be in breach of this paragraph 6(a) if, during the twelve (12) months following the termination of his employment with the Company, he becomes employed by or consults to a Person whose primary business is outside the area of novel application oral drug delivery systems for use with small molecule, non-biologic pharmaceuticals – provided that the treatment Executive’s work for said Person during the twelve (12) months following the termination of conditions related his employment does not relate to infectious diseasesnovel application oral drug delivery systems for use with small molecule, non-biologic pharmaceuticals. Notwithstanding the foregoing, nothing contained in this Section 6(a) shall be deemed to prohibit the Employee Executive from (i) acquiring or holding, solely for investment, publicly traded securities of any corporation, some or all of the activities of which are competitive with the business of the Company so long as such securities do not, in the aggregate, constitute more than four percent (4%) 4.9% of any class or series of outstanding securities of such corporation.
(b) During the Term and for a period of six twelve (612) months thereafter, the Employee Executive shall not, directly or indirectly, without the prior written consent of the Company:
(i) solicit or induce any employee of the Company or any of its affiliates to leave the employ of the Company or any such subsidiary or affiliate; or hire for any purpose any employee of the Company or any subsidiary or affiliate or any employee who has left the employment of the Company or any subsidiary or affiliate within six (6) months one year of the termination of such employee's ’s employment with the Company or any such subsidiary or affiliate or at any time in violation of such employee's ’s non-competition agreement with the Company or any such subsidiary or affiliate; or
(ii) solicit or accept employment or be retained by any Person who, at any time during the term of this Agreement, was who is an agent, client or customer of the Company or any of its subsidiaries or affiliates where his position will be related to the business of the Company or any such affiliate; or
(iii) solicit or accept the business of any agent, client or customer of the Company or any of its subsidiaries or affiliates with respect to products, services or investments similar to those provided or supplied by the Company or any of its subsidiaries or affiliates.
(c) The Company Executive and the Employee each Company mutually agree that both during the Term and at all times thereafter, neither party they shall not directly or indirectly disparage, whether or not true, the name or reputation of the other party Executive, Company or any of its subsidiaries or affiliates, including but not limited to, any officer, director, employee or shareholder of the Company or any of its subsidiaries or affiliates.
(d) In the event that the Employee Executive breaches any provisions of Section 5 or this Section 6 or there is a threatened breach, then, in addition to any other rights which the Company may have, the Company shall (i) be entitled, without the posting of a bond or other security, to injunctive relief to enforce the restrictions contained in such Sections and (ii) have the right to require the Employee Executive to account for and pay over to the Company all compensation, profits, monies, accruals, increments and other benefits (collectively "“Benefits"”) derived or received by the Employee Executive as a result of any transaction constituting a breach of any of the provisions of Section Sections 5 or this Section 6 and the Employee Executive hereby agrees to account for and pay over such Benefits to the Company. The Employee agrees that in an action pursuant to this Section 6, that if the Company makes a prima facie showing that the Employee has violated or intends to violate any of the provisions of this Section 6, the Company need not prove either damage or irreparable injury in order to obtain injunctive relief. The Company and the Employee agree that any such action for injunctive or equitable relief shall be heard in the courts of the State of California, County of San Diego, or the United States District Court for the Southern District of California and each of the parties hereto agrees to accept service of process by registered or certified mail and to otherwise consent to the jurisdiction of such courts.
(e) Each of the rights and remedies enumerated in Section 6(d) shall be independent of the others and shall be in addition to and not in lieu of any other rights and remedies available to the Company at law or in equity. The Employee hereby acknowledges and agrees that the covenant against competition provided for pursuant to Section 6(a) is reasonable with respect to it duration, geographic area and scope. If, at the time of enforcement of this Section 6, a court holds that the restrictions stated herein are unreasonable under the circumstances then existing, the Parties hereto agree that the maximum duration, scope or geographic area legally permissible under such circumstances will be substituted for the duration, scope or area state herein. If any of the covenants contained in this Section 6, or any part of any of them, is hereafter construed or adjudicated to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants or rights or remedies which shall be given full effect without regard to the invalid portions. If any of the covenants contained in this Section 6 is held to be invalid or 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. No such holding of invalidity or unenforceability in one jurisdiction shall bar or in any way affect the Company's ’s right to the relief provided in this Section 6 or otherwise in the courts of any other state or jurisdiction within the geographical scope of such covenants as to breaches of such covenants in such other respective states or jurisdictions, such covenants being, for this purpose, severable into diverse and independent covenants.
(f) In the event that an actual proceeding is brought in equity to enforce the provisions of Section 5 or this Section 6, the Employee Executive shall not urge as a defense that there is an adequate remedy at law nor shall the Company be prevented from seeking any other remedies which may be available. The Executive agrees that he shall not raise in any proceeding brought to enforce the provisions of Section 5 or this Section 6 that the covenants contained in such Sections limit his ability to earn a living.
(g) The provisions of this Section 6 shall survive any termination of this Agreement.
Appears in 1 contract
Non-Competition, Non-Solicitation and Non-Disparagement. (a) The Employee understands and recognizes that his services to the Company are special and unique and that in the course of performing the Services such services the Employee will have access to and knowledge of Confidential and Proprietary Information (as defined in Section 5) and the Employee agrees that, during the Term and for a period of six three (63) months thereafter, he shall not in any manner, directly or indirectly, on behalf of himself or any person, firm, partnership, joint venture, corporation or other business entity ("PersonPERSON"), enter into or engage in any business which is engaged in any business directly or indirectly competitive with the business of the Company, either as an individual for his own account, or as a partner, joint venturer, owner, executiveEmployee, employee, independent contractor, principal, agent, consultant, salesperson, officer, director or shareholder of a Person in a business competitive with the Company within the geographic area of the Company's business, which is deemed by the parties hereto to be worldwide. Notwithstanding the foregoing, if Employee's employment is terminated under Section 8(c) or 8(d) of this Agreement or if Employees employment is terminated by the Company without Cause (as defined herein), the preceding shall not apply and such restrictions on Employee's shall not exist. The Employee acknowledges that, due to the unique nature of the Company's business and its business modelbusiness, the loss of any of its clients or business flow, the replication of its business model flow or the improper use of its Confidential and Proprietary Information could create significant instability and cause substantial damage to the Company and its affiliates and therefore the Company has a strong legitimate business interest in protecting the continuity of its business interests and the restriction herein agreed to by the Employee narrowly and fairly serves such an important and critical business interest of the Company. For the purposes of the non-competition provisions of this Agreement, the Company shall be deemed to be actively engaged on the date hereof in the researchacquisition, development and commercialization of drugspharmaceutical drug candidates and providing consulting services in connection therewith, therapeutics and vaccines for in the treatment of conditions related future in any other business in which it actually devotes substantive resources to infectious diseasesstudy, develop or pursue. Notwithstanding the foregoing, nothing contained in this Section 6(a) shall be deemed to prohibit the Employee from (i) acquiring or holding, solely for investment, publicly traded securities of any corporation, some or all of the activities of which are competitive with the business of the Company so long as such securities do not, in the aggregate, constitute more than four three percent (43%) of any class or series of outstanding securities of such corporation.
(b) During the Term and for a period of six (6) 12 months thereafter, the Employee shall not, directly or indirectly, without the prior written consent of the Company:
(i) solicit or induce any employee of the Company or any of its affiliates to leave the employ of the Company or any such subsidiary or affiliate; or hire for any purpose any employee of the Company or any subsidiary or affiliate or any employee who has left the employment of the Company or any subsidiary or affiliate within six (6) months one year of the termination of such employee's employment with the Company or any such subsidiary or affiliate or at any time in violation of such employee's non-competition agreement with the Company or any such subsidiary or affiliate; or
(ii) solicit or accept employment or be retained by any Person who, at any time during the term of this Agreement, was an agent, client or customer of the Company or any of its subsidiaries or affiliates where his position will be related to the business of the Company or any such affiliate; or
or (iii) solicit or accept the business of any agent, client or customer of the Company or any of its subsidiaries or affiliates with respect to products, services or investments similar to those provided or supplied by the Company or any of its subsidiaries affiliates; or
(iv) solicit a license of technology, including but not limited to, patents or affiliatespatent applications relating to such technology, relating to a pharmaceutical product candidate from any party (A) from which the Company or its affiliates license such technology or (B) any party with which the Company or any of its affiliates has within the six months prior to the end of the Term been negotiating to obtain a license of such technology; provided, however, that this provision shall not be construed to prohibit Employee from soliciting a party from which the Company licenses technology or is negotiating to license technology to license to the Employee (or a future employer or affiliate of Employee) an unrelated technology.
(c) The Company and the Employee each agree that both during the Term and at all times thereafter, neither party shall directly or indirectly disparage, whether or not true, the name or reputation of the other party or any of its subsidiaries or affiliates, including but not limited to, any officer, director, employee or shareholder of the Company or any of its subsidiaries or affiliates.
(d) In the event that the Employee breaches any provisions of Section 5 or this Section 6 or there is a threatened breach, then, in addition to any other rights which the Company may have, the Company shall (i) be entitled, without the posting of a bond or other security, to injunctive relief to enforce the restrictions contained in such Sections and (ii) have the right to require the Employee to account for and pay over to the Company all compensation, profits, monies, accruals, increments and other benefits (collectively "BenefitsBENEFITS") derived or received by the Employee as a result of any transaction constituting a breach of any of the provisions of Section Sections 5 or this Section 6 and the Employee hereby agrees to account for and pay over such Benefits to the Company. The Employee agrees that in an action pursuant to this Section 6, that if the Company makes a prima facie showing that the Employee has violated or intends to violate any of the provisions of this Section 6, the Company need not prove either damage or irreparable injury in order to obtain injunctive relief. The Company and the Employee agree that any such action for injunctive or equitable relief shall be heard in the courts of the State of California, County of San Diego, or the United States District Court for the Southern District of California and each of the parties hereto agrees to accept service of process by registered or certified mail and to otherwise consent to the jurisdiction of such courts.
(e) Each of the rights and remedies enumerated in Section 6(d) shall be independent of the others and shall be in addition to and not in lieu of any other rights and remedies available to the Company at law or in equity. The Employee hereby acknowledges and agrees that the covenant against competition provided for pursuant to Section 6(a) is reasonable with respect to it duration, geographic area and scope. If, at the time of enforcement of this Section 6, a court holds that the restrictions stated herein are unreasonable under the circumstances then existing, the Parties hereto agree that the maximum duration, scope or geographic area legally permissible under such circumstances will be substituted for the duration, scope or area state herein. If any of the covenants contained in this Section 6, or any part of any of them, is hereafter construed or adjudicated to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants or rights or remedies which shall be given full effect without regard to the invalid portions. If any of the covenants contained in this Section 6 is held to be invalid or 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. No such holding of invalidity or unenforceability in one jurisdiction shall bar or in any way affect the Company's right to the relief provided in this Section 6 or otherwise in the courts of any other state or jurisdiction within the geographical scope of such covenants as to breaches of such covenants in such other respective states or jurisdictions, such covenants being, for this purpose, severable into diverse and independent covenants.
(f) In the event that an actual proceeding is brought in equity to enforce the provisions of Section 5 or this Section 6, the Employee shall not urge as a defense that there is an adequate remedy at law nor shall the Company be prevented from seeking any other remedies which may be available. The Employee agrees that he shall not raise in any proceeding brought to enforce the provisions of Section 5 or this Section 6 that the covenants contained in such Sections limit his ability to earn a living.
(g) The provisions of this Section 6 shall survive any termination of this Agreement.
Appears in 1 contract
Non-Competition, Non-Solicitation and Non-Disparagement. (a) The Employee Executive understands and recognizes that his services to the Company are special and unique and that in the course of performing such services the Services the Employee Executive will have access to and knowledge of Confidential and Proprietary Information (as defined in Section 56) and the Employee Executive agrees that, during the Term and for a period of six twelve (612) months thereafterthereafter (subject to the provisions of Section 10(e) hereof), he shall not without the consent of the Company in any manner, directly or indirectly, on behalf of himself or any person, firm, partnership, joint venture, corporation or other business entity ("“Person"”), enter into or engage in any business which is engaged in any business directly or indirectly competitive with the business of the Company’s Business (as defined below), either as an individual for his own account, or as a partner, joint venturer, owner, executive, employee, independent contractor, principal, agent, consultant, salesperson, officer, director or shareholder of a Person in a business competitive with the Company within the geographic area of the Company's business’s Business, which is deemed by the parties hereto to be worldwide. The Employee Executive acknowledges that, due to the unique nature of the Company's business ’s Business, and its business model, the loss of any of its clients or business flow, importance to the replication of its business model or the improper use Company’s Business of its Confidential and Proprietary Information Information, a violation of this Section 7(a) could create significant instability and cause substantial damage to the Company and its affiliates and therefore and, therefore, the Company has a strong legitimate business interest in protecting the continuity of its business interests and the restriction herein agreed to by the Employee Executive narrowly and fairly serves such an important and critical business interest of the Company. For the purposes of the non-competition provisions of this Agreement, the Company “Company’s Business” shall mean the business or businesses set forth on the attached Schedule 7(a), which shall be deemed amended from time to be actively engaged on time upon the date hereof in mutual written agreement of the parties, but which will automatically include the research, development and commercialization of drugs, therapeutics and vaccines for any technologies that are licensed or otherwise acquired by the treatment of conditions related to infectious diseasesCompany. Notwithstanding the foregoing, nothing contained in this Section 6(a7(a) shall be deemed to prohibit the Employee Executive from (i) acquiring or holding, solely for investment, publicly traded securities of any corporation, some or all of the activities of which are competitive with the business of the Company so long as such securities do not, in the aggregate, constitute more than four three percent (43%) of any class or series of outstanding securities of such corporation.
(b) During the Term and for a period of six (6) months thereafter, the Employee shall not, directly or indirectly, without the prior written consent of the Company:
(i) solicit or induce any employee of the Company or any of its affiliates to leave the employ of the Company or any such subsidiary or affiliate; or hire for any purpose any employee of the Company or any subsidiary or affiliate or any employee who has left the employment of the Company or any subsidiary or affiliate within six (6) months of the termination of such employee's employment with the Company or any such subsidiary or affiliate or at any time in violation of such employee's non-competition agreement with the Company or any such subsidiary or affiliate; or
(ii) solicit or accept employment or be retained by any Person who, at any time during the term of this Agreement, was an agent, client or customer of the Company or any of its subsidiaries or affiliates where his position will be related to the business of the Company or any such affiliate; or
(iii) solicit or accept the business of any agent, client or customer of the Company or any of its subsidiaries or affiliates with respect to products, services or investments similar to those provided or supplied by the Company or any of its subsidiaries or affiliates.
(c) The Company and the Employee each agree that both during the Term and at all times thereafter, neither party shall directly or indirectly disparage, whether or not true, the name or reputation of the other party or any of its subsidiaries or affiliates, including but not limited to, any officer, director, employee or shareholder of the Company or any of its subsidiaries or affiliates.
(d) In the event that the Employee breaches any provisions of Section 5 or this Section 6 or there is a threatened breach, then, in addition to any other rights which the Company may have, the Company shall (i) be entitled, without the posting of a bond or other security, to injunctive relief to enforce the restrictions contained in such Sections and (ii) have the right to require the Employee to account for all compensation, profits, monies, accruals, increments and other benefits (collectively "Benefits") derived or received by the Employee as a result of any transaction constituting a breach of any of the provisions of Section 5 or this Section 6 and the Employee hereby agrees to account for such Benefits to the Company. The Employee agrees that in an action pursuant to this Section 6, that if the Company makes a prima facie showing that the Employee has violated or intends to violate any of the provisions of this Section 6, the Company need not prove either damage or irreparable injury in order to obtain injunctive relief. The Company and the Employee agree that any such action for injunctive or equitable relief shall be heard in the courts of the State of California, County of San Diego, or the United States District Court for the Southern District of California and each of the parties hereto agrees to accept service of process by registered or certified mail and to otherwise consent to the jurisdiction of such courts.
(e) Each of the rights and remedies enumerated in Section 6(d) shall be independent of the others and shall be in addition to and not in lieu of any other rights and remedies available to the Company at law or in equity. The Employee hereby acknowledges and agrees that the covenant against competition provided for pursuant to Section 6(a) is reasonable with respect to it duration, geographic area and scope. If, at the time of enforcement of this Section 6, a court holds that the restrictions stated herein are unreasonable under the circumstances then existing, the Parties hereto agree that the maximum duration, scope or geographic area legally permissible under such circumstances will be substituted for the duration, scope or area state herein. If any of the covenants contained in this Section 6, or any part of any of them, is hereafter construed or adjudicated to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants or rights or remedies which shall be given full effect without regard to the invalid portions. No such holding of invalidity or unenforceability in one jurisdiction shall bar or in any way affect the Company's right to the relief provided in this Section 6 or otherwise in the courts of any other state or jurisdiction within the geographical scope of such covenants as to breaches of such covenants in such other respective states or jurisdictions, such covenants being, for this purpose, severable into diverse and independent covenants.
(f) In the event that an actual proceeding is brought in equity to enforce the provisions of Section 5 or this Section 6, the Employee shall not urge as a defense that there is an adequate remedy at law nor shall the Company be prevented from seeking any other remedies which may be available.
(g) The provisions of this Section 6 shall survive any termination of this Agreement.
Appears in 1 contract
Non-Competition, Non-Solicitation and Non-Disparagement. (a) The Employee Executive understands and recognizes that his services to the Company are special and unique and that in the course of performing such services the Services the Employee Executive will have access to and knowledge of Confidential and Proprietary Information (as defined in Section 56) and the Employee Executive agrees that, during the Term and for a period of six eighteen (618) months thereafter, he shall not in any manner, directly or indirectly, on behalf of himself or any person, firm, partnership, joint venture, corporation or other business entity ("“Person"”), enter into or engage in any business which is engaged in any business directly or indirectly competitive with the business of the Company, either as an individual for his own account, or as a partner, joint venturer, owner, executive, employee, independent contractor, principal, agent, consultant, salesperson, officer, director or shareholder of a Person in a business competitive with the Company within the geographic area of the Company's ’s business, which is deemed by the parties hereto to be worldwide. The Employee Company acknowledges the need for the Executive to be employed in his profession and will consider whether there is a specific conflict. The Executive acknowledges that, due to the unique nature of the Company's business and its business model’s business, the loss of any of its clients or business flow, the replication of its business model flow or the improper use of its Confidential and Proprietary Information could create significant instability and cause substantial damage to the Company and its affiliates and therefore the Company has a strong legitimate business interest in protecting the continuity of its business interests and the restriction herein agreed to by the Employee Executive narrowly and fairly serves such an important and critical business interest of the Company. For the purposes of the non-competition provisions of this Agreement, the Company shall be deemed to be actively engaged on the date hereof in the researchdevelopment of novel application drug delivery systems for presently marketed prescription and over-the-counter drugs and providing consulting services in connection therewith, development and commercialization of drugsin the future in any other business in which it actually devotes substantive resources to study, therapeutics and vaccines for the treatment of conditions related to infectious diseasesdevelop or pursue. Notwithstanding the foregoing, nothing contained in this Section 6(a) shall be deemed to prohibit the Employee Executive from (i) acquiring or holding, solely for investment, publicly traded securities of any corporation, some or all of the activities of which are competitive with the business of the Company so long as such securities do not, in the aggregate, constitute more than four three percent (43%) of any class or series of outstanding securities of such corporation.
(b) During the Term and for a period of six (6) 18 months thereafter, the Employee Executive shall not, directly or indirectly, without the prior written consent of the Company, which will not be unreasonably withheld:
(i) solicit or induce any employee of the Company or any of its affiliates to leave the employ of the Company or any such subsidiary or affiliate; or hire for any purpose any employee of the Company or any subsidiary or affiliate or any employee who has left the employment of the Company or any subsidiary or affiliate within six (6) months one year of the termination of such employee's ’s employment with the Company or any such subsidiary or affiliate or at any time in violation of such employee's ’s non-competition agreement with the Company or any such subsidiary or affiliate; or
(ii) solicit or accept employment or be retained by any Person who, at any time during the term of this Agreement, was an agent, client or customer of the Company or any of its subsidiaries or affiliates where his position will be related to the business of the Company or any such affiliate; or
(iii) solicit or accept the business of any agent, client or customer of the Company or any of its subsidiaries or affiliates with respect to products, services or investments similar to those provided or supplied by the Company or any of its subsidiaries or affiliates.
(c) The Company and the Employee Executive each agree that both during the Term and at all times thereafter, neither party shall directly or indirectly disparage, whether or not true, the name or reputation of the other party or any of its subsidiaries or affiliates, including but not limited to, any officer, director, employee or shareholder of the Company or any of its subsidiaries or affiliates.
(d) In the event that the Employee Executive breaches any provisions of Section 5 or this Section 6 or there is a threatened breach, then, in addition to any other rights which the Company may have, the Company shall (i) be entitled, without the posting of a bond or other security, to injunctive relief to enforce the restrictions contained in such Sections and (ii) have the right to require the Employee Executive to account for and pay over to the Company all compensation, profits, monies, accruals, increments and other benefits (collectively "“Benefits"”) derived or received by the Employee Executive as a result of any transaction constituting a breach of any of the provisions of Section Sections 5 or this Section 6 and the Employee Executive hereby agrees to account for and pay over such Benefits to the Company. The Employee agrees that in an action pursuant to this Section 6, that if the Company makes a prima facie showing that the Employee has violated or intends to violate any of the provisions of this Section 6, the Company need not prove either damage or irreparable injury in order to obtain injunctive relief. The Company and the Employee agree that any such action for injunctive or equitable relief shall be heard in the courts of the State of California, County of San Diego, or the United States District Court for the Southern District of California and each of the parties hereto agrees to accept service of process by registered or certified mail and to otherwise consent to the jurisdiction of such courts.
(e) Each of the rights and remedies enumerated in Section 6(d) shall be independent of the others and shall be in addition to and not in lieu of any other rights and remedies available to the Company at law or in equity. The Employee hereby acknowledges and agrees that the covenant against competition provided for pursuant to Section 6(a) is reasonable with respect to it duration, geographic area and scope. If, at the time of enforcement of this Section 6, a court holds that the restrictions stated herein are unreasonable under the circumstances then existing, the Parties hereto agree that the maximum duration, scope or geographic area legally permissible under such circumstances will be substituted for the duration, scope or area state herein. If any of the covenants contained in this Section 6, or any part of any of them, is hereafter construed or adjudicated to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants or rights or remedies which shall be given full effect without regard to the invalid portions. If any of the covenants contained in this Section 6 is held to be invalid or 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. No such holding of invalidity or unenforceability in one jurisdiction shall bar or in any way affect the Company's ’s right to the relief provided in this Section 6 or otherwise in the courts of any other state or jurisdiction within the geographical scope of such covenants as to breaches of such covenants in such other respective states or jurisdictions, such covenants being, for this purpose, severable into diverse and independent covenants.
(f) In the event that an actual proceeding is brought in equity to enforce the provisions of Section 5 or this Section 6, the Employee Executive shall not urge as a defense that there is an adequate remedy at law nor shall the Company be prevented from seeking any other remedies which may be available. The Executive agrees that he shall not raise in any proceeding brought to enforce the provisions of Section 5 or this Section 6 that the covenants contained in such Sections limit his ability to earn a living.
(g) The provisions of this Section 6 shall survive any termination of this Agreement.
Appears in 1 contract
Sources: Employment Agreement (Manhattan Pharmaceuticals Inc)
Non-Competition, Non-Solicitation and Non-Disparagement. (a) The Employee Executive understands and recognizes that his services to the Company are special and unique and that in the course of performing such services the Services the Employee Executive will have access to and knowledge of Confidential and Proprietary Information (as defined in Section 5) and the Employee Executive agrees that, during the Term and for a period of six eighteen (618) months thereafter, he shall not in any manner, directly or indirectly, on behalf of himself or any person, firm, partnership, joint venture, corporation or other business entity ("“Person"”), enter into or engage in be employed by any business which that is engaged in any business directly or indirectly competitive with the business of the Company, either as an individual for his own account, or as a partner, joint venturer, owner, executive, employee, independent contractor, principal, agent, consultant, salesperson, officer, director or shareholder of a Person in a business competitive with the Company within the geographic area of the Company's ’s business, which is deemed by the parties hereto to be worldwide. The Employee Executive acknowledges that, due to the unique nature of the Company's business and its business model’s business, the loss of any of its clients or business flow, the replication of its business model flow or the improper use of its Confidential and Proprietary Information could create significant instability and cause substantial damage to the Company and its affiliates and therefore the Company has a strong legitimate business interest in protecting the continuity of its business interests and the restriction herein agreed to by the Employee Executive narrowly and fairly serves such an important and critical business interest of the Company. For the purposes of the non-competition provisions of this Agreement, the Company shall be deemed to be actively engaged on the date hereof in the researchdevelopment of novel application oral drug delivery systems for presently marketed prescription and over-the-counter drugs where such drug is a small molecule, development non-biologic, and commercialization providing consulting services in connection therewith, and in the future in any other business in which it actually devotes substantive resources to study, develop or pursue. For the sake of drugsclarity, therapeutics and vaccines the Executive will not be in breach of this paragraph 6(a) if, during the eighteen (18) months following the termination of his employment with the Company, he becomes employed by or consults to a Person whose primary business is outside the area of novel oral drug delivery systems for use with small molecule, non-biologic pharmaceuticals – provided that the treatment Executive’s work for said Person during the eighteen (18) months following the termination of conditions related his employment does not relate to infectious diseasesnovel oral drug delivery systems for use with small molecule, non-biologic pharmaceuticals. Notwithstanding the foregoing, nothing contained in this Section 6(a) shall be deemed to prohibit the Employee Executive from (i) acquiring or holding, solely for investment, publicly traded securities of any corporation, some or all of the activities of which are competitive with the business of the Company so long as such securities do not, in the aggregate, constitute more than four percent (4%) 4.9% of any class or series of outstanding securities of such corporation.
(b) During the Term and for a period of six eighteen (618) months thereafter, the Employee Executive shall not, directly or indirectly, without the prior written consent of the Company:
(i) solicit or induce any employee of the Company or any of its affiliates to leave the employ of the Company or any such subsidiary or affiliate; or hire for any purpose any employee of the Company or any subsidiary or affiliate or any employee who has left the employment of the Company or any subsidiary or affiliate within six (6) months one year of the termination of such employee's ’s employment with the Company or any such subsidiary or affiliate or at any time in violation of such employee's ’s non-competition agreement with the Company or any such subsidiary or affiliate; or
(ii) solicit or accept employment or be retained by any Person who, at any time during the term of this Agreement, was an agent, client or customer of the Company or any of its subsidiaries or affiliates where his position will be related to the business of the Company or any such affiliate; or
(iii) solicit or accept the business of any agent, client or customer of the Company or any of its subsidiaries or affiliates with respect to products, services or investments similar to those provided or supplied by the Company or any of its subsidiaries or affiliates.
(c) The Company Executive and the Employee each Company mutually agree that both during the Term and at all times thereafter, neither party they shall not directly or indirectly disparage, whether or not true, the name or reputation of the other party Executive, Company or any of its subsidiaries or affiliates, including but not limited to, any officer, director, employee or shareholder of the Company or any of its subsidiaries or affiliates.
(d) In the event that the Employee Executive breaches any provisions of Section 5 or this Section 6 or there is a threatened breach, then, in addition to any other rights which the Company may have, the Company shall (i) be entitled, without the posting of a bond or other security, to injunctive relief to enforce the restrictions contained in such Sections and (ii) have the right to require the Employee Executive to account for and pay over to the Company all compensation, profits, monies, accruals, increments and other benefits (collectively "“Benefits"”) derived or received by the Employee Executive as a result of any transaction constituting a breach of any of the provisions of Section Sections 5 or this Section 6 and the Employee Executive hereby agrees to account for and pay over such Benefits to the Company. The Employee agrees that in an action pursuant to this Section 6, that if the Company makes a prima facie showing that the Employee has violated or intends to violate any of the provisions of this Section 6, the Company need not prove either damage or irreparable injury in order to obtain injunctive relief. The Company and the Employee agree that any such action for injunctive or equitable relief shall be heard in the courts of the State of California, County of San Diego, or the United States District Court for the Southern District of California and each of the parties hereto agrees to accept service of process by registered or certified mail and to otherwise consent to the jurisdiction of such courts.
(e) Each of the rights and remedies enumerated in Section 6(d) shall be independent of the others and shall be in addition to and not in lieu of any other rights and remedies available to the Company at law or in equity. The Employee hereby acknowledges and agrees that the covenant against competition provided for pursuant to Section 6(a) is reasonable with respect to it duration, geographic area and scope. If, at the time of enforcement of this Section 6, a court holds that the restrictions stated herein are unreasonable under the circumstances then existing, the Parties hereto agree that the maximum duration, scope or geographic area legally permissible under such circumstances will be substituted for the duration, scope or area state herein. If any of the covenants contained in this Section 6, or any part of any of them, is hereafter construed or adjudicated to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants or rights or remedies which shall be given full effect without regard to the invalid portions. If any of the covenants contained in this Section 6 is held to be invalid or 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. No such holding of invalidity or unenforceability in one jurisdiction shall bar or in any way affect the Company's ’s right to the relief provided in this Section 6 or otherwise in the courts of any other state or jurisdiction within the geographical scope of such covenants as to breaches of such covenants in such other respective states or jurisdictions, such covenants being, for this purpose, severable into diverse and independent covenants.
(f) In the event that an actual proceeding is brought in equity to enforce the provisions of Section 5 or this Section 6, the Employee Executive shall not urge as a defense that there is an adequate remedy at law nor shall the Company be prevented from seeking any other remedies which may be available. The Executive agrees that he shall not raise in any proceeding brought to enforce the provisions of Section 5 or this Section 6 that the covenants contained in such Sections limit his ability to earn a living.
(g) The provisions of this Section 6 shall survive any termination of this Agreement.
Appears in 1 contract
Non-Competition, Non-Solicitation and Non-Disparagement. (a) The Employee Executive understands and recognizes that his services to the Company are special and unique and that in the course of performing such services the Services the Employee Executive will have access to and knowledge of Confidential and Proprietary Information (as defined in Section 5) and the Employee Executive agrees that, during the Term and for a period of six (6) 12 months thereafter, he shall not in any manner, directly or indirectly, on behalf of himself or any person, firm, partnership, joint venture, corporation or other business entity ("“Person"”), enter into or engage in any business which is engaged in any business directly or indirectly competitive with the business of Company in the CompanyBusiness (as defined below) (each, either as an individual for his own account, or as a partner, joint venturer, owner, executive, employee, independent contractor, principal, agent, consultant, salesperson, officer, director or shareholder of a Person in a business competitive with the Company “Restricted Activity”) within the geographic area of the Company's ’s business, which is deemed by the parties hereto to be worldwide. The Employee Executive acknowledges that, due to the unique nature of the Company's business and its business modelBusiness, the loss of any of its clients or business flow, the replication of its business model flow or the improper use of its Confidential and Proprietary Information could create significant instability and cause substantial damage to the Company and its affiliates and therefore the Company has a strong legitimate business interest in protecting the continuity of its business interests and the restriction herein agreed to by the Employee Executive narrowly and fairly serves such an important and critical business interest of the Company. For the purposes of the non-competition provisions of this Agreement, the Company shall be deemed to be actively engaged on “Business” means the date hereof in the research, development and commercialization of drugs, therapeutics drugs and vaccines other biomedical technologies in which the Company is actively engaged (1) for the treatment treatment, detection or prevention of dermatologic diseases, disorders, and conditions related to infectious and (2) the treatment, detection or prevention of any other diseases, disorders, and conditions. Notwithstanding the foregoing, nothing contained in this Section 6(a) shall be deemed to prohibit the Employee Executive from (i) engaging in a Restricted Activity for or with respect to any subsidiary, division or affiliate or unit (each, a “Unit”) of a Person if that Unit is not engaged in any business which is competitive with the Business of the Company, irrespective of whether some other Unit of such Person engages in such competition (as long as the Executive does not engage in a Restricted Activity for such other Unit), or (ii) acquiring or holding, solely for investment, publicly traded securities of any corporation, some or all of the activities of which are competitive with the business of the Company so long as such securities do not, in the aggregate, constitute more than four percent (4%) % of any class or series of outstanding securities of such corporation.
(b) During the Term and for a period of six (6) months thereafter, the Employee shall not, directly or indirectly, without the prior written consent of the Company:
(i) solicit or induce any employee of the Company or any of its affiliates to leave the employ of the Company or any such subsidiary or affiliate; or hire for any purpose any employee of the Company or any subsidiary or affiliate or any employee who has left the employment of the Company or any subsidiary or affiliate within six (6) months of the termination of such employee's employment with the Company or any such subsidiary or affiliate or at any time in violation of such employee's non-competition agreement with the Company or any such subsidiary or affiliate; or
(ii) solicit or accept employment or be retained by any Person who, at any time during the term of this Agreement, was an agent, client or customer of the Company or any of its subsidiaries or affiliates where his position will be related to the business of the Company or any such affiliate; or
(iii) solicit or accept the business of any agent, client or customer of the Company or any of its subsidiaries or affiliates with respect to products, services or investments similar to those provided or supplied by the Company or any of its subsidiaries or affiliates.
(c) The Company and the Employee each agree that both during the Term and at all times thereafter, neither party shall directly or indirectly disparage, whether or not true, the name or reputation of the other party or any of its subsidiaries or affiliates, including but not limited to, any officer, director, employee or shareholder of the Company or any of its subsidiaries or affiliates.
(d) In the event that the Employee breaches any provisions of Section 5 or this Section 6 or there is a threatened breach, then, in addition to any other rights which the Company may have, the Company shall (i) be entitled, without the posting of a bond or other security, to injunctive relief to enforce the restrictions contained in such Sections and (ii) have the right to require the Employee to account for all compensation, profits, monies, accruals, increments and other benefits (collectively "Benefits") derived or received by the Employee as a result of any transaction constituting a breach of any of the provisions of Section 5 or this Section 6 and the Employee hereby agrees to account for such Benefits to the Company. The Employee agrees that in an action pursuant to this Section 6, that if the Company makes a prima facie showing that the Employee has violated or intends to violate any of the provisions of this Section 6, the Company need not prove either damage or irreparable injury in order to obtain injunctive relief. The Company and the Employee agree that any such action for injunctive or equitable relief shall be heard in the courts of the State of California, County of San Diego, or the United States District Court for the Southern District of California and each of the parties hereto agrees to accept service of process by registered or certified mail and to otherwise consent to the jurisdiction of such courts.
(e) Each of the rights and remedies enumerated in Section 6(d) shall be independent of the others and shall be in addition to and not in lieu of any other rights and remedies available to the Company at law or in equity. The Employee hereby acknowledges and agrees that the covenant against competition provided for pursuant to Section 6(a) is reasonable with respect to it duration, geographic area and scope. If, at the time of enforcement of this Section 6, a court holds that the restrictions stated herein are unreasonable under the circumstances then existing, the Parties hereto agree that the maximum duration, scope or geographic area legally permissible under such circumstances will be substituted for the duration, scope or area state herein. If any of the covenants contained in this Section 6, or any part of any of them, is hereafter construed or adjudicated to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants or rights or remedies which shall be given full effect without regard to the invalid portions. No such holding of invalidity or unenforceability in one jurisdiction shall bar or in any way affect the Company's right to the relief provided in this Section 6 or otherwise in the courts of any other state or jurisdiction within the geographical scope of such covenants as to breaches of such covenants in such other respective states or jurisdictions, such covenants being, for this purpose, severable into diverse and independent covenants.
(f) In the event that an actual proceeding is brought in equity to enforce the provisions of Section 5 or this Section 6, the Employee shall not urge as a defense that there is an adequate remedy at law nor shall the Company be prevented from seeking any other remedies which may be available.
(g) The provisions of this Section 6 shall survive any termination of this Agreement.
Appears in 1 contract
Sources: Employment Agreement (Manhattan Pharmaceuticals Inc)