Non-Solicitation and Non-Competition. a. Executive acknowledges and recognizes the highly competitive nature of the businesses of the Company Group and accordingly agrees as follows: (i) While Executive is performing services for the Company Group and for a period of one year following the date Executive ceases to perform services for the Company Group for any reason (the “Restricted Period”), Executive will not, whether on Executive’s own behalf or on behalf of or in conjunction with any person, firm, partnership, joint venture, association, corporation or other business organization, entity or enterprise whatsoever (“Person”) engaged in a Competitive Business, directly or indirectly solicit or assist in soliciting the business of any client or prospective client: (A) with whom Executive had personal contact or dealings on behalf of the Company Group during the one-year period preceding the Relevant Date (as defined below); (B) with whom employees reporting to Executive have had personal contact or dealings on behalf of the Company Group during the one-year period preceding the Relevant Date; or (C) for whom Executive had direct or indirect responsibility during the one-year period preceding the Relevant Date. For purposes of this Agreement, “Relevant Date” will mean (i) during the time Executive is performing services for the Company Group, the date on which such definition is being applied for purposes of interpreting this Section 8(a); and (ii) following any cessation of Executive’s service, the date of such cessation. (ii) During the Restricted Period, Executive will not directly or indirectly: (A) engage in any medical transcription processing services and dictation business, any medical speech recognition or natural language understanding technology, or other business that competes with the business of any member of the Company Group (including, without limitation, businesses which any member of the Company Group has specific plans to conduct in the future and as to which Executive is aware of such planning) (a “Competitive Business”) in any geographical area where any member of the Company Group manufactures, produces, sells, leases, rents, licenses or otherwise provides its products or services for a Competitive Business; provided, however, that it is expressly understood and agreed that where a Person or company is engaged in a Competitive Business, but has a department, division or business unit that is not engaged in a Competitive Business, Executive may take employment or provide services to such department, division or business unit and it shall not be construed as a violation of this Section 8(a), provided that Executive has no involvement with any portion of the business conducted by such Person or entity that is a Competitive Business; (B) enter the employ of, or render any services to, any Person (or any division or controlled or controlling affiliate of any Person) who or which engages in a Competitive Business; (C) acquire a financial interest in, or otherwise become actively involved with, any Competitive Business, directly or indirectly, as an individual, partner, shareholder, officer, director, principal, agent, trustee or consultant; or (D) interfere with, or attempt to interfere with, business relationships (whether formed before, on or after the date of this Agreement) between any member of the Company Group or any of their respective affiliates, customers, clients, suppliers or investors. (iii) Notwithstanding anything to the contrary in this Agreement, Executive may, directly or indirectly own, solely as an investment, securities of any Person engaged in the business of any member of the Company Group that are publicly traded on a national or regional stock exchange or on the over-the-counter market so long as Executive (i) is not a controlling person of, or a member of a group which controls, such person and (ii) does not, directly or indirectly, own 2% or more of any class of securities of such Person. (iv) During the Restricted Period, Executive will not, whether on Executive’s own behalf or on behalf of or in conjunction with any Person, directly or indirectly: (A) solicit or encourage any employee of any member of the Company Group to leave employment; or (B) hire any Person who was employed by any member of the Company Group as of the date of Executive’s cessation of service or who left the employment of any member of the Company Group during the one-year period preceding the Relevant Date. (v) During the Restricted Period, Executive will not, directly or indirectly, solicit or encourage to cease to work with any member of the Company Group any consultant then under contract with any member of the Company Group. b. It is expressly understood and agreed that although Executive and the Company consider the restrictions contained in this Section 7 to be reasonable, if a final judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.
Appears in 3 contracts
Sources: Employment Agreement (MedQuist Holdings Inc.), Employment Agreement (MedQuist Holdings Inc.), Employment Agreement (MedQuist Holdings Inc.)
Non-Solicitation and Non-Competition. a. Executive acknowledges covenants and recognizes agrees that, during the highly competitive nature period of the businesses of the Company Group and accordingly agrees as follows:
(i) While Executive is performing services for the Company Group his employment and for a period of one year following the date Executive ceases to perform services for the Company Group for any reason thirty-six (36) months after Executive's last day of employment with Soffe (the “"Restricted Period”"), Executive regardless of the manner or cause of his termination of employment with Soffe, he will not, whether for himself or on Executive’s own behalf of any Third Party, directly or indirectly:
(a) sell, market or distribute any Products (as hereafter defined) or seek to sell or solicit the opportunity to sell any Products (either on behalf of himself or directly or indirectly on behalf of or in conjunction association with any person, firm, partnership, joint venture, association, corporation or other business organization, entity or enterprise whatsoever (“Person”Third Party) engaged in a Competitive Business, directly or indirectly solicit or assist in soliciting the business of to any client or prospective client:
(A) with whom Executive had personal contact or dealings on behalf of the Company Group during Company's Customers (as defined below) anywhere in the one-year period preceding the Relevant Date Territory (as defined below);
(B) with whom employees reporting to Executive have had personal contact or dealings on behalf of the Company Group during the one-year period preceding the Relevant Date; or
(C) for whom Executive had direct or indirect responsibility during the one-year period preceding the Relevant Date. For purposes of this Agreement, “Relevant Date” will mean the term "Customer" shall be limited to customers or accounts that fall within any of the following categories:
(i) actual customers or accounts of the Company that Executive solicited, influenced, contacted, sold to, serviced or dealt with (collectively, "Solicited") at any time during the time Executive is performing services for last thirty-six (36) months of his employment with the Company Group, the date on which such definition is being applied for purposes of interpreting this Section 8(a); and (ii) following any cessation of Executive’s service, the date of such cessation.Company;
(ii) During in the Restricted Periodevent that the preceding subparagraph shall be determined by judicial action to be too broad, Executive will not directly the following shall be substituted in its place: actual customers or indirectly:
(A) engage in any medical transcription processing services and dictation business, any medical speech recognition or natural language understanding technology, or other business that competes with the business of any member accounts of the Company Group (including, without limitation, businesses which any member of the Company Group has specific plans to conduct in the future and as to which Executive is aware of such planning) (a “Competitive Business”) in any geographical area where any member of the Company Group manufactures, produces, sells, leases, rents, licenses or otherwise provides its products or services for a Competitive Business; provided, however, that it is expressly understood and agreed that where a Person or company is engaged in a Competitive Business, but has a department, division or business unit that is not engaged in a Competitive Business, Executive may take employment or provide services to such department, division or business unit and it shall not be construed as a violation of this Section 8(a), provided that Executive has no involvement with any portion of the business conducted by such Person or entity that is a Competitive Business;
(B) enter the employ ofsolicited, or render any services influenced, contacted, sold to, serviced or dealt with (collectively, "Solicited") at any Person time during the last twelve (or any division or controlled or controlling affiliate 12) months of any Person) who or which engages in a Competitive Businesshis employment with the Company;
(C) acquire a financial interest in, or otherwise become actively involved with, any Competitive Business, directly or indirectly, as an individual, partner, shareholder, officer, director, principal, agent, trustee or consultant; or
(D) interfere with, or attempt to interfere with, business relationships (whether formed before, on or after the date of this Agreement) between any member of the Company Group or any of their respective affiliates, customers, clients, suppliers or investors.
(iii) Notwithstanding anything to the contrary in this Agreement, Executive may, directly actual customers or indirectly own, solely as an investment, securities of any Person engaged in the business of any member accounts of the Company Group that are publicly traded on a national about whom Executive has had access to financial or regional stock exchange or on the over-the-counter market so long as Executive (i) is not a controlling person of, or a member of a group which controls, such person and (ii) does not, directly or indirectly, own 2% or more of any class of securities of such Person.other confidential information;
(iv) During actual customers or accounts of the Restricted Period, Company with whom Executive will not, whether communicated on Executive’s own behalf of the Company personally or in combination with others;
(v) actual customers or accounts of the Company for whom Executive played a significant role in the provision of goods on behalf of the Company; and/or
(vi) customers or accounts whom Executive knows to have been Solicited by or on behalf of or in conjunction with any Person, directly or indirectly:
(A) solicit or encourage any employee of any member of the Company Group during the twelve-month period prior to leave the termination of Executive's employment; or
(B) hire any Person who was employed by any member . Notwithstanding the foregoing, a person or entity shall not be deemed to be included within the definition of "Customer" unless such person or entity has purchased goods or supplies from the Company Group as of the date of Executive’s cessation of service or who left the employment of any member of the Company Group during the one-year period preceding ending on the Relevant Datelast day of Executive's employment with the Company.
(v) During the Restricted Period, Executive will not, directly or indirectly, solicit or encourage to cease to work with any member of the Company Group any consultant then under contract with any member of the Company Group.
b. It is expressly understood and agreed that although Executive and the Company consider the restrictions contained in this Section 7 to be reasonable, if a final judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.
Appears in 3 contracts
Sources: Employment Agreement (Delta Apparel Inc), Employment Agreement (Delta Apparel Inc), Employment Agreement (Delta Apparel Inc)
Non-Solicitation and Non-Competition. a. Executive acknowledges (a) During his employment with the Company and recognizes for a period of six months from the highly competitive nature date of the businesses Executive’s termination of employment hereunder for any reason, the Executive will not provide services, in any capacity, whether as an employee, consultant, independent contractor, owner, partner, shareholder, director, or otherwise, to any person or entity that provides products or services that compete with any present or planned business of the Company Group and accordingly agrees as follows:
any affiliate of the Company over which the Executive has or had during the six (6) months prior to the date of termination direct operating responsibility (an “Operational Affiliate”) (it being understood that, during the period of the Executive’s service on the Management Board of AXA, the Executive shall be considered to have direct operating responsibility over AXA and its controlled affiliates and that notwithstanding anything contained herein to the contrary, once he ceases to serve on the Management Board of AXA, he shall no longer be considered to have such direct operating responsibility solely by reason of his service on the Management Board of AXA); provided that, nothing herein shall prevent the Executive from being a passive owner of not more than 5% of the outstanding equity of any class of securities of an entity that is publicly traded and that owns or may acquire any corporation or business that competes with the Company or any of its affiliates. A “planned business” for purposes of the preceding sentence shall mean a business: (i) While that the Executive is performing services for aware that the Company Group or an Operational Affiliate plans to enter within six months after the date of the termination of his employment, (ii) that is material to the entity that plans to enter such business, and (iii) in which such entity has invested material resources (including time of senior management) in preparation for launch.
(b) For a period of one year following the date Executive ceases to perform services for termination of the Company Group Executive’s employment for any reason (reason, the “Restricted Period”), Executive will not, not solicit (whether on Executive’s own behalf directly or on his behalf of through his instruction to any other person or in conjunction with any person, firm, partnership, joint venture, association, corporation or other business organization, entity or enterprise whatsoever (“Person”entity) engaged in a Competitive Business, directly or indirectly solicit or assist in soliciting the business of any client customer or prospective client:
(A) with whom Executive had personal contact or dealings on behalf customer of the Company Group during or any Operational Affiliate for any purpose other than to obtain, maintain and/or service the one-year period preceding customer’s business for the Relevant Date (as defined below);Company or any of its affiliates.
(Bc) with whom For a period of one year following the termination of the Executive’s employment for any reason, the Executive agrees not to (whether directly or on his behalf through his instruction to any other person or entity) recruit, solicit or hire any employees reporting to Executive have had personal contact or dealings on behalf of the Company Group during the one-year period preceding the Relevant Date; or
(C) for whom Executive had direct or indirect responsibility during the one-year period preceding the Relevant Date. For purposes of this Agreement, “Relevant Date” will mean (i) during the time Executive is performing services any Operational Affiliate to work for the Company Group, the date on which such definition is being applied for purposes of interpreting this Section 8(a); and (ii) following any cessation of Executive’s service, the date of such cessation.
(ii) During the Restricted Period, Executive will not directly or indirectly:
(A) engage in any medical transcription processing services and dictation business, any medical speech recognition or natural language understanding technology, or other business that competes with the business of any member of the Company Group (including, without limitation, businesses which any member of the Company Group has specific plans to conduct in the future and as to which Executive is aware of such planning) (a “Competitive Business”) in any geographical area where any member of the Company Group manufactures, produces, sells, leases, rents, licenses or otherwise provides its products or services for a Competitive Business; provided, however, that it is expressly understood and agreed that where a Person or company is engaged in a Competitive Business, but has a department, division or business unit that is not engaged in a Competitive Business, Executive may take employment or provide services to such department, division or business unit and it shall not be construed as a violation of this Section 8(a), provided that Executive has no involvement with any portion of the business conducted by such Person or entity that is a Competitive Business;
(B) enter the employ of, or render any services to, any Person (or any division or controlled or controlling affiliate of any Person) who or which engages in a Competitive Business;
(C) acquire a financial interest in, or otherwise become actively involved with, any Competitive Business, directly or indirectly, as an individual, partner, shareholder, officer, director, principal, agent, trustee or consultant; or
(D) interfere with, or attempt to interfere with, business relationships (whether formed before, on or after the date of this Agreement) between any member of the Company Group or any of their respective affiliates, customers, clients, suppliers or investors.
(iii) Notwithstanding anything to the contrary in this Agreement, Executive may, directly or indirectly own, solely as an investment, securities of any Person engaged in the business of any member of the Company Group that are publicly traded on a national or regional stock exchange or on the over-the-counter market so long as Executive (i) is not a controlling person of, or a member of a group which controls, such person and (ii) does not, directly or indirectly, own 2% or more of any class of securities of such Person.
(iv) During the Restricted Period, Executive will not, whether on Executive’s own behalf or on behalf of or in conjunction with any Person, directly or indirectly:
(A) solicit or encourage any employee of any member of the Company Group to leave employment; or
(B) hire any Person who was employed by any member of the Company Group as of the date of Executive’s cessation of service or who left the employment of any member of the Company Group during the one-year period preceding the Relevant Date.
(v) During the Restricted Period, Executive will not, directly or indirectly, solicit or encourage to cease to work with any member of the Company Group any consultant then under contract with any member of the Company Group.
b. It is expressly understood and agreed that although Executive and the Company consider the restrictions contained in this Section 7 to be reasonable, if a final judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine person or indicate to be enforceable. Alternatively, if any court of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained hereinentity.
Appears in 3 contracts
Sources: Employment Agreement (Alliancebernstein Holding L.P.), Employment Agreement (Alliancebernstein Holding L.P.), Employment Agreement (Alliancebernstein L.P.)
Non-Solicitation and Non-Competition. a. Executive acknowledges (a) The Seller agrees that beginning on the date hereof and recognizes ending on the highly competitive nature second (2nd) anniversary of the businesses Closing Date, the Seller shall not, and shall not permit any of its Affiliates to solicit or hire any employee, consultant or independent contractor of the Company Group and accordingly agrees as follows:
(i) While Executive is performing services for the Company Group and for a period of one year following the date Executive ceases to perform services for the Company Group for any reason set forth on Schedule 6.12 (the “Restricted PeriodPersons”)) or encourage any such Restricted Person to leave the service or employment of the Company or an Affiliate of the Company; provided, Executive will that (i) solicitation or hiring of Restricted Persons through the use of general advertisements in publications which advertisements do not target Restricted Persons or search firms that have not been directed by the Seller or any of its Affiliates to contact Restricted Persons shall not be prohibited by this sentence and (ii) the foregoing restrictions shall not restrict Seller or its Affiliates from hiring any Restricted Person who has not been employed by the Company or any of its Affiliates for six (6) months at the time of such hiring.
(b) The Seller agrees that during the period beginning on the Closing Date and ending on the second (2nd) anniversary of the Closing Date, the Seller shall not, whether on Executive’s own behalf or on behalf and shall not permit any of or its Affiliates to, engage in conjunction with any person, firm, partnership, joint venture, association, corporation or other business organization, entity or enterprise whatsoever (“Person”) engaged in a Competitive Business, directly or indirectly solicit or assist others in soliciting engaging in any business whose primary business competes directly with the Business. Notwithstanding anything to the contrary, the foregoing shall not restrict or otherwise limit the ability of the Seller or any of its Affiliates to acquire an ownership, equity, or controlling interest in, or enter into any business relationship with, any business that at the time that the Seller or any of its Affiliates acquires such interest or enters into such relationship generates 15% or less of its revenues, on an annual basis, from a business that competes with the Business. For the avoidance of doubt, (i) the Seller and its Affiliates may design, manufacture and sell products or services which are predominately “build to print” to customer designs and (ii) the Seller acknowledges that no Owned Intellectual Property is or will be used in the business of the Seller or any client or prospective client:of its Affiliates (other than the business of the Company).
(Ac) The Seller agrees that beginning on the date hereof and ending on the second (2nd) anniversary of the Closing Date, the Seller shall not, and shall not permit any of its Affiliates to, knowingly take any action with whom Executive had personal contact the purpose of inducing any Person that is or dealings on behalf was a customer or supplier of the Company Group at any time during the onetwo-year period preceding the Relevant Date (as defined below);
(B) date hereof to cease doing business with whom employees reporting to Executive have had personal contact or dealings on behalf of the Company Group during or to materially reduce the one-year period preceding amount of business that it does with the Relevant Date; or
(C) for whom Executive had direct or indirect responsibility during the one-year period preceding the Relevant Date. For purposes of this Agreement, “Relevant Date” will mean (i) during the time Executive is performing services for the Company Group, the date on which such definition is being applied for purposes of interpreting this Section 8(a); and (ii) following any cessation of Executive’s service, the date of such cessationCompany.
(iid) During the Restricted Period, Executive will not directly or indirectly:
(A) engage in any medical transcription processing services and dictation business, any medical speech recognition or natural language understanding technology, or other business The Seller acknowledges that competes with the business of any member of the Company Group (including, without limitation, businesses which any member of the Company Group has specific plans to conduct in the future and as to which Executive is aware of such planning) (a “Competitive Business”) in any geographical area where any member of the Company Group manufactures, produces, sells, leases, rents, licenses or otherwise provides its products or services for a Competitive Business; provided, however, that it is expressly understood and agreed that where a Person or company is engaged in a Competitive Business, but has a department, division or business unit that is not engaged in a Competitive Business, Executive may take employment or provide services to such department, division or business unit and it shall not be construed as a violation of this Section 8(a), provided that Executive has no involvement with any portion of the business conducted by such Person or entity that is a Competitive Business;
(B) enter the employ of, or render any services to, any Person (or any division or controlled or controlling affiliate of any Person) who or which engages in a Competitive Business;
(C) acquire a financial interest in, or otherwise become actively involved with, any Competitive Business, directly or indirectly, as an individual, partner, shareholder, officer, director, principal, agent, trustee or consultant; or
(D) interfere with, or attempt to interfere with, business relationships (whether formed before, on or after the date of this Agreement) between any member of the Company Group or any of their respective affiliates, customers, clients, suppliers or investors.
(iii) Notwithstanding anything to the contrary in this Agreement, Executive may, directly or indirectly own, solely as an investment, securities of any Person engaged in the business of any member of the Company Group that are publicly traded on a national or regional stock exchange or on the over-the-counter market so long as Executive (i) is not a controlling person of, or a member of a group which controls, such person and (ii) does not, directly or indirectly, own 2% or more of any class of securities of such Person.
(iv) During the Restricted Period, Executive will not, whether on Executive’s own behalf or on behalf of or in conjunction with any Person, directly or indirectly:
(A) solicit or encourage any employee of any member of the Company Group to leave employment; or
(B) hire any Person who was employed by any member of the Company Group as of the date of Executive’s cessation of service or who left the employment of any member of the Company Group during the one-year period preceding the Relevant Date.
(v) During the Restricted Period, Executive will not, directly or indirectly, solicit or encourage to cease to work with any member of the Company Group any consultant then under contract with any member of the Company Group.
b. It is expressly understood and agreed that although Executive and the Company consider the restrictions contained in this Section 7 6.12 are reasonable and necessary to be reasonable, if protect the legitimate interests of the Buyer and constitute a final judicial determination is made material inducement to the Buyer to enter into this Agreement and consummate the transactions contemplated by a court of competent jurisdiction that the time or territory or any other restriction this Agreement. The covenants contained in this Agreement is an unenforceable restriction against Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time Section 6.12 and territory each provision hereof are severable and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, distinct covenants and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained hereinprovisions.
Appears in 2 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (Ducommun Inc /De/)
Non-Solicitation and Non-Competition. a. Executive acknowledges (a) For a period of five (5) years from and recognizes after the highly Closing Date, neither JMS nor Parent shall, directly or indirectly, (i) make known to any other person, firm, corporation or entity the names, addresses or any other information of any of The Acquired Business’ customers, employees, or vendors, nor will JMS or Parent, directly or indirectly, solicit, seek business from or contract with any firm, person, sole proprietorship, partnership, corporation or other entity which, at any time during the five (5) years preceding the Closing Date, was a customer, employee or vendor of The Acquired Business, or which had or planned to have a business relationship with The Acquired Business; or (ii) own, manage, operate, join, control, invest in or participate in or be employed by or give consultation or advice to or extend credit to or otherwise be connected in any manner, directly or indirectly, with any firm, person, corporation or enterprise which would be competitive nature with The Acquired Business in any area of Canada, South America and the United States of America in which The Acquired Business is conducted by JMS or Parent immediately prior to the Effective Time or in which the products related to The Acquired Business are or have been sold. With respect to clause (ii) above, nothing herein shall prohibit JMS or Parent from acquiring and holding not more than five percent (5%) of any outstanding class of securities of any company whose shares are publicly traded on any exchange or in any established over-the-counter market, or from continuing to operate the businesses of ▇▇▇ ▇▇▇▇ Industries, Inc. and ▇▇▇▇▇▇▇▇ Sign Group, Inc. in the Company Group and accordingly agrees as follows:
manner in which they have been operated prior to the Effective Time, provided that the operation of said businesses do not in any way violate the provisions of clause (i) While Executive above. JMS and Parent expressly agree that this Agreement is performing services a partial restraint on its business and activities and contains reasonable limitations as to time, geographical area and scope of activity to be restricted that do not impose a greater restraint than is necessary to protect the goodwill and business interests of The Acquired Business and Buyer.
(b) The period during which the agreement contained in subparagraph (a) hereof shall apply shall be extended by one day for the Company Group each day in which Buyer establishes one or more violations by JMS or Parent of any provision of such agreement, and Buyer shall be entitled to an injunction restraining JMS and Parent from further violations for a period of one year following the date Executive ceases to perform services for the Company Group for any reason five (the “Restricted Period”), Executive will not, whether on Executive’s own behalf or on behalf of or in conjunction with any person, firm, partnership, joint venture, association, corporation or other business organization, entity or enterprise whatsoever (“Person”5) engaged in a Competitive Business, directly or indirectly solicit or assist in soliciting the business of any client or prospective client:
(A) with whom Executive had personal contact or dealings on behalf of the Company Group during the one-year period preceding the Relevant Date (as defined below);
(B) with whom employees reporting to Executive have had personal contact or dealings on behalf of the Company Group during the one-year period preceding the Relevant Date; or
(C) for whom Executive had direct or indirect responsibility during the one-year period preceding the Relevant Date. For purposes of this Agreement, “Relevant Date” will mean (i) during the time Executive is performing services for the Company Group, the date on which such definition is being applied for purposes of interpreting this Section 8(a); and (ii) following any cessation of Executive’s service, years from the date of the final decree less only such cessationnumber of days subsequent to the date hereof as JMS and Parent have not violated such agreement. The burden shall be on JMS and Parent to establish the number of days, following the first established violation, on which violations have not occurred. The purpose of this provision is to prevent JMS and Parent from profiting from their own wrongs if JMS or Parent violates the agreement contained in subparagraph (a) hereof.
(iic) During the Restricted Period, Executive will not directly or indirectly:
(A) engage in any medical transcription processing services JMS and dictation business, any medical speech recognition or natural language understanding technology, or other business Parent acknowledge and recognize that competes with the business of any member of the Company Group (including, without limitation, businesses which any member of the Company Group has specific plans to conduct in the future and as to which Executive is aware of such planning) (a “Competitive Business”) in any geographical area where any member of the Company Group manufactures, produces, sells, leases, rents, licenses or otherwise provides its products or services for a Competitive Business; provided, however, that it is expressly understood and agreed that where a Person or company is engaged in a Competitive Business, but has a department, division or business unit that is not engaged in a Competitive Business, Executive may take employment or provide services to such department, division or business unit and it shall not be construed as a violation of this Section 8(a)6.2 by JMS or Parent may cause irreparable and substantial damage and harm to Buyer, provided could constitute a failure of consideration, and that Executive has no involvement with money damages will not provide a full remedy for Buyer for such violations. JMS and Parent agree that in the event of a breach of this Section 6.2, Buyer will be entitled, if it so elects, to institute and prosecute proceedings at law or in equity, to enforce the specific performance of this Section 6.2 by JMS and Parent, and to enjoin JMS and Parent from engaging in any portion activity in violation hereof. JMS and Parent hereby consent to service of process, in personam jurisdiction, subject matter jurisdiction and venue in the business conducted by such Person or entity Circuit Court of Shelby County, Alabama and in the United States District Court for the Northern District of Alabama. JMS and Parent further recognize that is a Competitive Business;
(B) enter the employ of, or render any services to, any Person (or any division or controlled or controlling affiliate material breach of any Person) who covenant, representation or which engages in a Competitive Business;
(C) acquire a financial interest in, or otherwise become actively involved with, warranty herein will authorize Buyer to withhold any Competitive Business, directly or indirectly, as an individual, partner, shareholder, officer, director, principal, agent, trustee or consultant; or
(D) interfere with, or attempt to interfere with, business relationships (whether formed before, on or after the date of this Agreement) between any member of the Company Group or any of their respective affiliates, customers, clients, suppliers or investors.
(iii) Notwithstanding anything to the contrary in this Agreement, Executive may, directly or indirectly own, solely as an investment, securities of any Person engaged in the business of any member of the Company Group that are publicly traded on a national or regional stock exchange or on the over-the-counter market so long as Executive (i) is not a controlling person of, or a member of a group which controls, such person and (ii) does not, directly or indirectly, own 2% or more of any class of securities of such Person.
(iv) During the Restricted Period, Executive will not, whether on Executive’s own behalf or on behalf of or in conjunction with any Person, directly or indirectly:
(A) solicit or encourage any employee of any member of the Company Group to leave employment; or
(B) hire any Person who was employed by any member of the Company Group as of the date of Executive’s cessation of service or who left the employment of any member of the Company Group during the one-year period preceding the Relevant Date.
(v) During the Restricted Period, Executive will not, directly or indirectly, solicit or encourage to cease to work with any member of the Company Group any consultant then under contract with any member of the Company Group.
b. It is expressly understood and agreed that although Executive and the Company consider the restrictions contained in this Section 7 payments to be reasonable, if a final judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in pursuant to this Agreement is an unenforceable restriction against Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained hereinaccordance with Section 10.5.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Display Technologies Inc)
Non-Solicitation and Non-Competition. a. Executive acknowledges I acknowledge and recognizes agree that the highly competitive nature Company has invested substantial time, money and resources in the development of its Proprietary Information, including as it pertains to its customers, clients, and collaborators. I further acknowledge that during the course of my employment, I will have access to and may use and work with such Proprietary Information that pertains to the customers, clients, and collaborators of the businesses of Company, and I agree that any Proprietary Information associated with any customer, client, or collaborator belongs exclusively to the Company Group Company.
8.1 In order to protect the Company’s Proprietary Information and accordingly agrees as follows:
(i) While Executive is performing services for the Company Group good will, during my employment and for a period of either (i) one (1) year following the date Executive ceases to perform services for the Company Group termination of my employment for any reason or (ii) the period in which I receive payment of severance following the termination of my employment, whichever is longer, (the “Restricted Covenant Period”), Executive I agree and covenant that I will not, whether on Executive’s own behalf or on behalf of or in conjunction with any person, firm, partnership, joint venture, association, corporation or other business organization, entity or enterprise whatsoever (“Person”) engaged in a Competitive Business, not directly or indirectly solicit indirectly, and in any manner, contact, solicit, canvass, approach, entice or assist in soliciting attempt to persuade any existing or prospective vendor, service provider, customer, or client to (i) withdraw, curtail or cancel its business with the Company, or (ii) otherwise interfere with their relationship with the Company, for the purpose of competing with the business of the Company. For purposes of this Section 8, the term “existing” means any client or prospective client:
(A) party with whom Executive had personal contact or dealings Employee dealt on behalf of the Company Group or about whom Employee possessed confidential or Proprietary Information through Employee’s employment with the Company at any time during the one-Employment Period; the term “prospective” means any party with whom the Company was in active negotiations to establish a relationship with at any time during the three (3) year period immediately preceding the Relevant Date (as defined below);
(B) termination of Employee’s employment and with whom employees reporting Employee was involved in any manner in the attempt to Executive have had personal contact establish the relationship or dealings on behalf about whom Employee gained confidential or Proprietary Information; and the terms “service provider,” “vendor,” “client” or “customer” of the Company Group during the one-year period preceding the Relevant Date; or
(C) for whom Executive had direct or indirect responsibility during the one-year period preceding the Relevant Date. For purposes of this Agreement, “Relevant Date” will shall mean and refer to (i) each person or entity who has provided and/or received services or products from the Company during the time Executive is performing services for the Company GroupEmployment Period and Covenant Period, the date on which such definition is being applied for purposes of interpreting this Section 8(a); and (ii) following any cessation of Executive’s service, the date of such cessation.
(ii) During the Restricted Period, Executive will not directly each person or indirectly:
(A) engage in any medical transcription processing services and dictation business, any medical speech recognition or natural language understanding technology, or other business that competes with the business of any member of entity solicited by the Company Group (including, without limitation, businesses which any member of the Company Group has specific plans to conduct in the future and as to which Executive is aware of such planning) (a “Competitive Business”) in any geographical area where any member of the Company Group manufactures, produces, sells, leases, rents, licenses provide and/or receive services or otherwise provides its purchase products or services for a Competitive Business; provided, however, that it is expressly understood and agreed that where a Person or company is engaged in a Competitive Business, but has a department, division or business unit that is not engaged in a Competitive Business, Executive may take employment or provide services to such department, division or business unit and it shall not be construed as a violation of this Section 8(a), provided that Executive has no involvement with any portion of the business conducted by such Person or entity that is a Competitive Business;
(B) enter the employ of, or render any services to, any Person (or any division or controlled or controlling affiliate of any Person) who or which engages in a Competitive Business;
(C) acquire a financial interest in, or otherwise become actively involved with, any Competitive Business, directly or indirectly, as an individual, partner, shareholder, officer, director, principal, agent, trustee or consultant; or
(D) interfere with, or attempt to interfere with, business relationships (whether formed before, on or after the date of this Agreement) between any member of the Company Group or any of their respective affiliates, customers, clients, suppliers or investors.
(iii) Notwithstanding anything to the contrary in this Agreement, Executive may, directly or indirectly own, solely as an investment, securities of any Person engaged in the business of any member of the Company Group that are publicly traded on a national or regional stock exchange or on the over-the-counter market so long as Executive (i) is not a controlling person of, or a member of a group which controls, such person and (ii) does not, directly or indirectly, own 2% or more of any class of securities of such Person.
(iv) During the Restricted Period, Executive will not, whether on Executive’s own behalf or on behalf of or in conjunction with any Person, directly or indirectly:
(A) solicit or encourage any employee of any member of the Company Group to leave employment; or
(B) hire any Person who was employed by any member of the Company Group as of the date of Executive’s cessation of service or who left the employment of any member of the Company Group during the one-year period preceding the Relevant DateEmployment Period and Covenant Period.
(v) During the Restricted Period, Executive will not, directly or indirectly, solicit or encourage to cease to work with any member of the Company Group any consultant then under contract with any member of the Company Group.
b. It is expressly understood and agreed that although Executive and the Company consider the restrictions contained in this Section 7 to be reasonable, if a final judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.
Appears in 2 contracts
Sources: Employment Agreement (Columbia Care Inc.), Employment Agreement (Columbia Care Inc.)
Non-Solicitation and Non-Competition. a. Executive acknowledges and recognizes the highly competitive nature The receipt of the businesses of the Company Group and accordingly agrees as follows:
(i) While Executive is performing services for the Company Group and for a period of one year following the date Executive ceases to perform services for the Company Group for any reason (the “Restricted Period”), Executive will not, whether on Executive’s own behalf or on behalf of or in conjunction with any person, firm, partnership, joint venture, association, corporation severance or other business organization, entity or enterprise whatsoever (“Person”) engaged in a Competitive Business, directly or indirectly solicit or assist in soliciting the business of any client or prospective client:
(A) with whom benefits pursuant to Section 4 will be subject to Executive had personal contact or dealings on behalf of the Company Group agreeing that during the one-year period preceding the Relevant Date (as defined below);
(B) with whom employees reporting to Executive have had personal contact or dealings on behalf of the Company Group during the one-year period preceding the Relevant Date; or
(C) for whom Executive had direct or indirect responsibility during the one-year period preceding the Relevant Date. For purposes of this Agreement, “Relevant Date” will mean (i) during the time Executive is performing services for the Company Group, the date on which such definition is being applied for purposes of interpreting this Section 8(a); Agreement Term and (ii) following any cessation of Executive’s service, the date of such cessation.
(ii) During the Restricted Period, Executive will not directly or indirectly:
(A) engage in any medical transcription processing services and dictation business, any medical speech recognition or natural language understanding technology, or other business that competes with the business of any member of the Company Group (including, without limitation, businesses which any member of the Company Group has specific plans to conduct in the future and as to which Executive is aware of such planning) (a “Competitive Business”) in any geographical area where any member of the Company Group manufactures, produces, sells, leases, rents, licenses or otherwise provides its products or services for a Competitive Business; provided, however, that it is expressly understood and agreed that where a Person or company is engaged in a Competitive Business, but has a department, division or business unit that is not engaged in a Competitive Business, Executive may take employment or provide services to such department, division or business unit and it shall not be construed as a violation of this Section 8(a), provided that Executive has no involvement with any portion of the business conducted by such Person or entity that is a Competitive Business;
(B) enter the employ of, or render any services to, any Person (or any division or controlled or controlling affiliate of any Person) who or which engages in a Competitive Business;
(C) acquire a financial interest in, or otherwise become actively involved with, any Competitive Business, directly or indirectly, as an individual, partner, shareholder, officer, director, principal, agent, trustee or consultant; or
(D) interfere with, or attempt to interfere with, business relationships (whether formed before, on or after the date of this Agreement) between any member of the Company Group or any of their respective affiliates, customers, clients, suppliers or investors.
(iii) Notwithstanding anything to the contrary in this Agreement, Executive may, directly or indirectly own, solely as an investment, securities of any Person engaged in the business of any member of the Company Group that are publicly traded on a national or regional stock exchange or on the over-the-counter market so long as Executive (i) is not a controlling person of, or a member of a group which controls, such person and (ii) does not, directly or indirectly, own 2% or more of any class of securities of such Person.
(iv) During the Restricted Continuance Period, Executive will not, whether on Executive’s own behalf or on behalf without the prior consent of or in conjunction with any Person, directly or indirectly:
the Company (Ai) solicit or encourage any employee of the Company (other than Executive’s personal assistant) for employment other than at the Company, or (ii) directly or indirectly engage in any member business or activity in the same geographical market where a substantially similar business activity is being carried on by the Company, any subsidiary of the Company, or any business in which the Company Group to leave employment; or
(B) hire or any Person who was employed by any member subsidiary of the Company) has a material business (“Company Group Business”), including, but not limited to, representing or providing consulting services to any person or entity that is engaged in competition with a Company Business or that takes a position adverse to a Company Business. However, Executive’s ownership as a stockholder of an immaterial interest in a competing business which is publicly held will not constitute a breach of this Section 5(b). For purposes of this provision, a company or entity shall be considered to be competitive to the Company Business if any portion of its business, divisions, or product groups is engaged in or has taken concrete steps toward engaging in the business of providing development, sales, manufacturing services, software or installation and services for data networking, transport and backhaul products for communications service providers for use in wireline or wireless networks, either as being carried on or developed by the Company or its affiliates as of the date of the Executive’s cessation termination and during the Continuance Period. For the purposes of service or who left this paragraph, and to eliminate any uncertainty, it is further specifically agreed that the employment of any member of following entities shall be considered as being competitive with the Company Group Business, without limitation: small independent system integrators that engage or participate in a competitive business with the Company Business; private and public companies that engage or participate in a competitive business with the Company Business, including but not limited to, Adtran, Inc., Audiocodes, Cisco Systems, Inc., Eastern Research, Inc., Lucent Technologies, Inc., Natural Microsystems, RAD, Sycamore Networks, Telco Systems, Inc., Tellabs, Inc., Zhone Technologies, Inc. (or any of their subsidiaries or affiliates controlled by or under common control with the respective entity or any business, division, or product group thereof); and such other companies or entities as identified in the Company’s SEC 10Q and 10K filings as being competitive with the Company Business during the one-year period preceding Executive’s employment and within the Relevant DateContinuance Period.
(v) During the Restricted Period, Executive will not, directly or indirectly, solicit or encourage to cease to work with any member of the Company Group any consultant then under contract with any member of the Company Group.
b. It is expressly understood and agreed that although Executive and the Company consider the restrictions contained in this Section 7 to be reasonable, if a final judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.
Appears in 2 contracts
Sources: Change of Control Severance Agreement (Carrier Access Corp), Change of Control Severance Agreement (Carrier Access Corp)
Non-Solicitation and Non-Competition. a. Executive acknowledges agrees, to the extent permitted by applicable law, that in the event the Executive receives severance pay or other benefits pursuant to Sections 3(a) and recognizes (b) above, for the highly competitive nature twelve (12) consecutive month period immediately following the date of the businesses Executive’s termination, Executive, as a condition to receipt of severance pay and benefits under Sections 3(a) and (b), will not (i) either directly or indirectly, solicit, induce, attempt to hire, recruit, encourage or take away any employee of the Company Group and accordingly agrees as follows:
(ior any affiliate of the Company) While or cause an employee to leave his employment either for Executive is performing services for the Company Group and for a period of one year following the date Executive ceases to perform services for the Company Group or for any reason other entity or person, (the “Restricted Period”), ii) for Executive will not, whether on Executive’s own behalf or on behalf of any other person or in conjunction entity, directly or indirectly, whether for compensation or not, solicit, divert, or appropriate, for purposes of competing with the Company (or any personaffiliate of the Company) any customers or clients of the Company (or any affiliate of the Company) or any prospective customers or clients with respect to which the Company (or an affiliate of the Company) has developed or made a sales presentation (or similar offering of products or services) during the twelve (12) month period prior to Executive’s termination, firm, partnership, joint venture, association, corporation or other business organization, entity or enterprise whatsoever (“Person”iii) engaged in a Competitive Businesswithout the express written consent of the Company, directly or indirectly solicit engage in, enter the employ, have any ownership interest in, or assist participate in soliciting the business any entity that as of any client or prospective client:
(A) with whom Executive had personal contact or dealings on behalf of the Company Group during the one-year period preceding the Relevant Date (as defined below);
(B) with whom employees reporting to Executive have had personal contact or dealings on behalf of the Company Group during the one-year period preceding the Relevant Date; or
(C) for whom Executive had direct or indirect responsibility during the one-year period preceding the Relevant Date. For purposes of this Agreement, “Relevant Date” will mean (i) during the time Executive is performing services for the Company Group, the date on which such definition is being applied for purposes of interpreting this Section 8(a); and (ii) following any cessation of Executive’s service, the date of such cessation.
(ii) During involuntary termination, engages in the Restricted Perioddesign, Executive will not directly development, manufacture, production, marketing, sale or indirectly:
(A) engage in servicing of any medical transcription processing services and dictation business, product or the provision of any medical speech recognition or natural language understanding technology, or other business service that competes with the business of any member of service offered by the Company Group (including, without limitation, businesses which or any member of product sold by the Company Group has specific plans to conduct in or under development by the future and as to which Executive is aware of such planning) (a “Competitive Business”) in any geographical area where any member of the Company Group manufactures, produces, sells, leases, rents, licenses or otherwise provides its products or services for a Competitive BusinessCompany; provided, however, that it is expressly understood and agreed that where a Person or company is engaged in a Competitive Business, but has a department, division or business unit that is not engaged in a Competitive Business, Executive may take employment or provide services to such department, division or business unit and it shall ownership of less than one percent (1%) of the outstanding stock of any publicly traded corporation will not be construed as a violation deemed to be violative of the restrictive covenant set forth in this paragraph. In the event Executive violates the provisions of this paragraph, all severance pay and other benefits pursuant to Section 8(a), provided that Executive has no involvement with any portion 3 shall cease immediately. Notwithstanding the provisions of the business conducted by such Person or entity that is preceding paragraph, if Executive becomes a Competitive Business;
(B) enter permanent resident of the employ of, or render any services to, any Person (or any division or controlled or controlling affiliate state of any Person) who or which engages in California and remains a Competitive Business;
(C) acquire a financial interest in, or otherwise become actively involved with, any Competitive Business, directly or indirectly, as an individual, partner, shareholder, officer, director, principal, agent, trustee or consultant; or
(D) interfere with, or attempt to interfere with, business relationships (whether formed before, on or after resident through the date of this Agreement) between any member termination, in lieu of the Company Group or any of their respective affiliatescovenants in the above paragraph, customersExecutive agrees, clients, suppliers or investors.
(iii) Notwithstanding anything to the contrary in this Agreementextent permitted by applicable law, Executive may, directly or indirectly own, solely as an investment, securities of any Person engaged that in the business of any member of event the Company Group that are publicly traded on a national Executive receives severance pay or regional stock exchange or on the over-the-counter market so long as Executive (iother benefits pursuant to Sections 3(a) is not a controlling person of, or a member of a group which controls, such person and (iib) does notabove, directly or indirectly, own 2% or more of any class of securities of such Person.
for the twelve (iv12) During the Restricted Period, Executive will not, whether on Executive’s own behalf or on behalf of or in conjunction with any Person, directly or indirectly:
(A) solicit or encourage any employee of any member of the Company Group to leave employment; or
(B) hire any Person who was employed by any member of the Company Group as of consecutive month period immediately following the date of Executive’s cessation termination, Executive, as a condition to receipt of service or who left the employment of any member of the Company Group during the one-year period preceding the Relevant Date.
severance pay and benefits under Sections 3(a) and (v) During the Restricted Periodb), Executive will not, not directly or indirectly, solicit or encourage to cease to work with solicit, induce, recruit, any member employee of the Company Group to leave his employment either for Executive or for any consultant then under contract with any member of other entity or person. In the Company Group.
b. It is expressly understood event Executive violates the provision in the preceding sentence, all severance pay and agreed that although Executive and the Company consider the restrictions other benefits pursuant to Section 3 shall cease immediately. The covenants contained in this Section 7 4(b) hereof shall be construed as a series of separate covenants, one for each country, province, state, city or other political subdivision in which the Company currently engages in its business or, during the term of this Agreement, becomes engaged in its business. Except for geographic coverage, each such separate covenant shall be deemed identical in terms to be reasonable, if a final judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction covenant contained in this Section 4(b). If, in any judicial proceeding, a court refuses to enforce any of such separate covenants (or any part thereof), then such unenforceable covenant (or such part) shall be eliminated from this Agreement is an unenforceable restriction against Executive, to the extent necessary to permit the remaining separate covenants (or portions thereof) to be enforced. In the event that the provisions of this Agreement shall not be rendered void but Section 4(b) are deemed to exceed the time, geographic or scope limitations permitted by applicable law, then such provisions shall be deemed amended reformed to apply the maximum time, geographic or scope limitations, as to such maximum time and territory and to such maximum extent as such court the case may judicially determine or indicate to be enforceable. Alternativelybe, if any court of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained hereinpermitted by applicable law.
Appears in 2 contracts
Sources: Severance and Change of Control Agreement (Netsuite Inc), Severance and Change of Control Agreement (Netsuite Inc)
Non-Solicitation and Non-Competition. a. Executive acknowledges and recognizes the highly competitive nature The receipt of the businesses of the Company Group and accordingly agrees as follows:
(i) While Executive is performing services for the Company Group and for a period of one year following the date Executive ceases to perform services for the Company Group for any reason (the “Restricted Period”), Executive will not, whether on Executive’s own behalf or on behalf of or in conjunction with any person, firm, partnership, joint venture, association, corporation severance or other business organization, entity or enterprise whatsoever (“Person”) engaged in a Competitive Business, directly or indirectly solicit or assist in soliciting the business of any client or prospective client:
(A) with whom benefits pursuant to Section 4 will be subject to Executive had personal contact or dealings on behalf of the Company Group agreeing that during the one-year period preceding the Relevant Date (as defined below);
(B) with whom employees reporting to Executive have had personal contact or dealings on behalf of the Company Group during the one-year period preceding the Relevant Date; or
(C) for whom Executive had direct or indirect responsibility during the one-year period preceding the Relevant Date. For purposes of this Agreement, “Relevant Date” will mean (i) during the time Executive is performing services for the Company Group, the date on which such definition is being applied for purposes of interpreting this Section 8(a); Agreement Term and (ii) following any cessation of Executive’s service, the date of such cessation.
(ii) During the Restricted Period, Executive will not directly or indirectly:
(A) engage in any medical transcription processing services and dictation business, any medical speech recognition or natural language understanding technology, or other business that competes with the business of any member of the Company Group (including, without limitation, businesses which any member of the Company Group has specific plans to conduct in the future and as to which Executive is aware of such planning) (a “Competitive Business”) in any geographical area where any member of the Company Group manufactures, produces, sells, leases, rents, licenses or otherwise provides its products or services for a Competitive Business; provided, however, that it is expressly understood and agreed that where a Person or company is engaged in a Competitive Business, but has a department, division or business unit that is not engaged in a Competitive Business, Executive may take employment or provide services to such department, division or business unit and it shall not be construed as a violation of this Section 8(a), provided that Executive has no involvement with any portion of the business conducted by such Person or entity that is a Competitive Business;
(B) enter the employ of, or render any services to, any Person (or any division or controlled or controlling affiliate of any Person) who or which engages in a Competitive Business;
(C) acquire a financial interest in, or otherwise become actively involved with, any Competitive Business, directly or indirectly, as an individual, partner, shareholder, officer, director, principal, agent, trustee or consultant; or
(D) interfere with, or attempt to interfere with, business relationships (whether formed before, on or after the date of this Agreement) between any member of the Company Group or any of their respective affiliates, customers, clients, suppliers or investors.
(iii) Notwithstanding anything to the contrary in this Agreement, Executive may, directly or indirectly own, solely as an investment, securities of any Person engaged in the business of any member of the Company Group that are publicly traded on a national or regional stock exchange or on the over-the-counter market so long as Executive (i) is not a controlling person of, or a member of a group which controls, such person and (ii) does not, directly or indirectly, own 2% or more of any class of securities of such Person.
(iv) During the Restricted Continuance Period, Executive will not, whether on Executive’s own behalf or on behalf without the prior consent of or in conjunction with any Person, directly or indirectly:
the Company (Ai) solicit or encourage any employee of the Company (other than Executive’s personal assistant) for employment other than at the Company, or (ii) directly or indirectly engage in any member business or activity in the same geographical market where a substantially similar business activity is being carried on by the Company, any subsidiary of the Company, or any business in which the Company Group to leave employment; or
(B) hire or any Person who was employed by any member subsidiary of the Company) has a material business (“Company Group Business”), including, but not limited to, representing or providing consulting services to any person or entity that is engaged in competition with a Company Business or that takes a position adverse to a Company Business, However, Executive’s ownership as a stockholder of an immaterial interest in a competing business which is publicly held will not constitute a breach of this Section 5(b). For purposes of this provision, a company or entity shall be considered to be competitive to the Company Business if any portion of its business, divisions, or product groups is engaged in or has taken concrete steps toward engaging in the business of providing development, sales, manufacturing services, software or installation and services for data networking, transport and backhaul products for communications service providers for use in wireline or wireless networks, either as being carried on or developed by the Company or its affiliates as of the date of the Executive’s cessation termination and during the Continuance Period. For the purposes of service or who left this paragraph, and to eliminate any uncertainty, it is further specifically agreed that the employment of any member of following entities shall be considered as being competitive with the Company Group Business, without limitation: small independent system integrators that engage or participate in a competitive business with the Company Business; private and public companies that engage or participate in a competitive business with the Company Business, including but not limited to, Adtran, Inc., Audiocodes, Cisco Systems, Inc., Eastern Research, Inc., Lucent Technologies, Inc., Natural Microsystems, RAD, Sycamore Networks, Telco Systems, Inc., Tellabs, Inc., Zhone Technologies, Inc. (or any of their subsidiaries or affiliates controlled by or under common control with the respective entity or any business, division, or product group thereof); and such other companies or entities as identified in the Company’s SEC 1OQ and 10K filings as being competitive with the Company Business during the one-year period preceding Executive’s employment and within the Relevant DateContinuance Period.
(v) During the Restricted Period, Executive will not, directly or indirectly, solicit or encourage to cease to work with any member of the Company Group any consultant then under contract with any member of the Company Group.
b. It is expressly understood and agreed that although Executive and the Company consider the restrictions contained in this Section 7 to be reasonable, if a final judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.
Appears in 1 contract
Sources: Change of Control Severance Agreement (Carrier Access Corp)
Non-Solicitation and Non-Competition. a. Executive acknowledges and recognizes the highly competitive nature (a) In consideration of the businesses of the Company Group payments and accordingly agrees as follows:
(i) While Executive is performing services for the Company Group and for a period of one year following the date Executive ceases to perform services for the Company Group for any reason (the “Restricted Period”), Executive will not, whether on Executive’s own behalf or on behalf of or in conjunction with any person, firm, partnership, joint venture, association, corporation or other business organization, entity or enterprise whatsoever (“Person”) engaged in a Competitive Business, directly or indirectly solicit or assist in soliciting the business of any client or prospective client:
(A) with whom Executive had personal contact or dealings on behalf of the Company Group during the one-year period preceding the Relevant Date (as defined below);
(B) with whom employees reporting to Executive have had personal contact or dealings on behalf of the Company Group during the one-year period preceding the Relevant Date; or
(C) for whom Executive had direct or indirect responsibility during the one-year period preceding the Relevant Date. For purposes of promises provided under this Agreement, “Relevant Date” will mean (i) during the time sufficiency of which is expressly acknowledged, Executive is performing services agrees that for the Company Group12-month period following the Termination Date he shall not, without the date on which such definition is being applied for purposes of interpreting this Section 8(a); and (ii) following any cessation of Executive’s service, the date of such cessation.
(ii) During the Restricted Period, Executive will not directly or indirectly:
(A) engage in any medical transcription processing services and dictation business, any medical speech recognition or natural language understanding technology, or other business that competes with the business of any member prior written consent of the Company Group (including, without limitation, businesses which any member of the Company Group has specific plans to conduct in the future and as to which Executive is aware of such planning) (a “Competitive Business”) in any geographical area where any member of the Company Group manufactures, produces, sells, leases, rents, licenses or otherwise provides its products or services for a Competitive Business; provided, however, that it is expressly understood and agreed that where a Person or company is engaged in a Competitive Business, but has a department, division or business unit that is not engaged in a Competitive Business, Executive may take employment or provide services to such department, division or business unit and it shall not be construed as a violation of this Section 8(a), provided that Executive has no involvement with any portion of the business conducted by such Person or entity that is a Competitive Business;
(B) enter the employ of, or render any services to, any Person (or any division or controlled or controlling affiliate of any Person) who or which engages in a Competitive Business;
(C) acquire a financial interest in, or otherwise become actively involved with, any Competitive BusinessCompany, directly or indirectly, as an individual(i) induce, partner, shareholder, officer, director, principal, agent, trustee entice or consultant; or
solicit (D) interfere with, or attempt to interfere withinduce, business relationships (whether formed before, on entice or after the date of this Agreementsolicit) between any member person who is an employee of the Company Group or any of their respective affiliatesits Affiliates or Ventures to leave the employment of the Company or any of its Affiliates or Ventures, customers, clients, suppliers (ii) solicit or investors.
(iii) Notwithstanding anything attempt to the contrary in this Agreement, Executive may, directly or indirectly own, solely as an investment, securities of any Person engaged in solicit the business of any member acquisition prospect of the Company Group that are publicly traded on a national or regional stock exchange any of its Affiliates or on Ventures with whom Executive had any actual contact while employed by the over-the-counter market so long as Executive (i) is not a controlling person ofCompany or any of its Affiliates, or a member (iii) hire, engage, employ or assist any third party in hiring, engaging or employing any person who is at such time (or was at any time within six (6) months prior to the date of a group which controlssuch employment or engagement) employed or engaged by the Company or any of its Affiliates or Ventures as an employee, agent, representative, consultant or independent contractor to perform any work or render any service similar or related to that provided by such person and (iito the Company or any of its Affiliates or Ventures. The provisions of this subparagraph 11(a) does notshall not prohibit Executive from speaking with persons who respond to general advertisements or who contact a business with which Executive is affiliated through an independent recruiting firm that has not been directed to solicit interest from any person who is an employee of the Company, directly any of its Affiliates or indirectly, own 2% or more of any class of securities of such PersonVentures.
(ivb) During In consideration of the Restricted Periodpayments and promises provided under this Agreement, the sufficiency of which is expressly acknowledged, Executive agrees that for the 12-month period following the Termination Date he will notnot perform any act, whether on Executive’s own behalf engage in any conduct or on behalf course of action or in conjunction with make or publish any Personadverse or untrue or misleading statement which has or may reasonably have the effect of demeaning the name or business reputation of the Company, directly the Releasees, an Affiliate or indirectly:a Venture or which adversely affects or may reasonably be expected to adversely affect the best interests (economic or otherwise) of the Company, the Releasees, an Affiliate or a Venture.
(Ad) solicit The restrictions contained in subparagraph 11(c) above are geographically limited to areas or encourage any employee of any member of territories where the Company Group or an Affiliate or a Venture engages (or has definite plans to leave employment; or
(Bengage) hire any Person who was employed by any member in operations or the marketing of its products or services on the Company Group as of the date of Executive’s cessation of service or who left the employment of any member of the Company Group during the one-year period preceding the Relevant Termination Date.
(ve) During Executive acknowledges that he has received valuable consideration from the Restricted PeriodCompany as provided in this Agreement for the covenants and undertakings set forth in Paragraphs 8, Executive will not9, directly or indirectly10 and 11, solicit or encourage that the consideration provided by the Company gives rise to cease to work with any member an interest of the Company Group any consultant then and its Affiliates and Ventures in restraining Executive from engaging in the conduct described in Paragraphs 8, 9, 10 and 11 of this Agreement and that the restrictive covenants and undertakings are designed to enforce Executive’s consideration or return promises under contract this Agreement. Additionally, Executive acknowledges that the restrictive covenants contain limitations as to time, geographical area, and scope of activity to be restrained that are reasonable and do not impose a greater restraint than is necessary to protect the Company’s relationship with any member its customers, goodwill or other legitimate business interests of the Company Group.
b. It is expressly understood and agreed that although Executive its Affiliates and the Company consider the restrictions contained in this Section 7 to be reasonableVentures, if a final judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against Executiveincluding, but not limited to, the Company’s and its Affiliates’ and Ventures’ need to protect their Confidential Information. The Company may notify any person or entity employing or contracting with Executive or evidencing an intention of employing or contracting with Executive of the existence and provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained hereinAgreement.
Appears in 1 contract
Non-Solicitation and Non-Competition. a. In further consideration of the compensation to be paid to Executive hereunder, Executive acknowledges and recognizes that during the highly competitive nature course of the businesses of Executive’s employment with the Company Group and accordingly its Affiliates Executive has and shall become familiar with the Company’s (and its Affiliates) trade secrets and with other Confidential Information concerning the Company and its Affiliates and that Executive’s services have been and shall be of special, unique and extraordinary value to the Company and its Affiliates, and, therefore, Executive agrees as followsthat:
(ia) While Executive is performing services for from the Company Group date of this Agreement and for a period of one year during the eighteen (18) months’ following the date Executive ceases to perform services for the Company Group termination of Executive’s employment for any reason (the “Restricted Period”)reason, Executive will not, whether on Executive’s own behalf or on behalf of or in conjunction with any person, firm, partnership, joint venture, association, corporation or other business organization, entity or enterprise whatsoever (“Person”) engaged in a Competitive Business, shall not directly or indirectly solicit or induce, attempt to solicit or induce or assist in any person soliciting the business of or inducing any client or prospective client:
(A) with whom Executive had personal contact or dealings on behalf employee of the Company Group or any of its Affiliates to leave the employ of the Company or such Affiliate, or in any way interfere with the relationship between the Company or such Affiliate and any employee thereof; provided, however, that the foregoing shall not apply to (i) general solicitations for employment, including through search firms, that are not specifically directed at employees of the Company or any of its Affiliates, (ii) hiring any person who responds solely as a result of such general solicitations or contacts Executive on his or her own initiative without any direct or indirect solicitation or encouragement from Executive’s representatives and (iii) hiring any person whose employment with the Company or any of its Affiliates has ceased prior to any discussions with Executive with respect to prospective employment;
(b) from the date of this Agreement and during the one-year period preceding Restriction Period, without the Relevant Date prior written consent of the Company, Executive shall not, engage in, directly or indirectly, anywhere in the Restricted Area (as defined below);, any business or enterprise which distributes, provides, renders or sells products or services which compete with the business of Parent, the Company or any of its Affiliates (collectively, the “Restricted Business”); except that if a court or arbitrator finds that such definition of Restricted Business not necessary to protect legitimate business interests of the Company, the Restricted Business shall be defined to mean any business or enterprise which distributes, provides, renders or sells products or services which compete with the business of designing and distributing original equipment manufacturer, military or aftermarket suspension and related products or performing vehicle upfitting services; and
(Bc) from the date of this Agreement and during the Restriction Period, Executive shall not in any way, directly or indirectly, for the purpose of engaging in any business that competes with whom employees reporting the Restricted Business, call upon, solicit, advise, or otherwise do, or attempt to Executive have had personal contact do, business with any customers, vendors or dealings on behalf suppliers that were customers, vendors or suppliers of the Parent, the Company Group during or any of its Affiliates (including its predecessors) within one year prior to the one-year period preceding Executive’s termination date any individual Executive was either involved with (directly or indirectly) or about which Executive received Confidential Information (but in each case only as such solicitation or other contact relates to the Relevant DateRestricted Business), or induce or attempt to induce any such customer, vendor or supplier not to do business with the Parent, the Company or any of its Affiliates; orand
(Cd) for whom Executive had direct shall not make any negative or indirect responsibility during disparaging statements or communications about the one-year period preceding Company or any of its Affiliates, or any of their respective directors, officers, employees or stockholders. Nothing in this Agreement prohibits, limits or restricts, or shall be construed to prohibit, limit or restrict, the Relevant DateExecutive from making disclosures required by the Securities Exchange Commission. For purposes of this Agreement, the term “Relevant Dateengage in” will mean (ior variations thereof) during the time Executive is performing services for the Company Groupmeans to own an interest in, the date on which such definition is being applied for purposes of interpreting this Section 8(a); and (ii) following any cessation of Executive’s servicemanage, the date of such cessation.
(ii) During the Restricted Periodoperate, Executive will not directly join, control, lend money to, or indirectly:
(A) engage render financial or other assistance to, or participate in any medical transcription processing services and dictation businessor be connected with, either as an officer, employee, partner, member, stockholder, director, consultant and/or similar service provider capacity, any medical speech recognition or natural language understanding technology, or other business person that competes with the business of any member of the Company Group (including, without limitation, businesses which any member of the Company Group has specific plans to conduct Restricted Business either directly or through an affiliate anywhere in the future and as to which Executive is aware of such planning) (a “Competitive Business”) in any geographical area where any member of the Company Group manufactures, produces, sells, leases, rents, licenses or otherwise provides its products or services for a Competitive Businessworld; provided, however, that it is expressly understood and agreed that where a Person or company is engaged in a Competitive Businessthat, but has a department, division or business unit that is not engaged in a Competitive Business, Executive may take employment or provide services to such department, division or business unit and it shall not be construed as a violation of this Section 8(a), provided that Executive has no involvement with any portion of for the business conducted by such Person or entity that is a Competitive Business;
(B) enter the employ of, or render any services to, any Person (or any division or controlled or controlling affiliate of any Person) who or which engages in a Competitive Business;
(C) acquire a financial interest in, or otherwise become actively involved with, any Competitive Business, directly or indirectly, as an individual, partner, shareholder, officer, director, principal, agent, trustee or consultant; or
(D) interfere with, or attempt to interfere with, business relationships (whether formed before, on or after the date purposes of this Agreement) between any member , ownership of voting securities having no more than five percent of the Company Group or any of their respective affiliates, customers, clients, suppliers or investors.
(iii) Notwithstanding anything to the contrary in this Agreement, Executive may, directly or indirectly own, solely as an investment, securities outstanding voting power of any Person engaged in the business of any member of the Company Group such person that are publicly listed on any national securities exchange or traded on actively in a national or regional stock exchange or on the over-the-counter market shall not be deemed to be in violation of this Agreement so long as Executive (i) is not a controlling person of, has no other connection or a member of a group which controls, relationship with such person and (ii) does not, directly or indirectly, own 2% or more of any class of securities of such Personperson.
(iv) During the Restricted Period, Executive will not, whether on Executive’s own behalf or on behalf of or in conjunction with any Person, directly or indirectly:
(A) solicit or encourage any employee of any member of the Company Group to leave employment; or
(B) hire any Person who was employed by any member of the Company Group as of the date of Executive’s cessation of service or who left the employment of any member of the Company Group during the one-year period preceding the Relevant Date.
(v) During the Restricted Period, Executive will not, directly or indirectly, solicit or encourage to cease to work with any member of the Company Group any consultant then under contract with any member of the Company Group.
b. It is expressly understood and agreed that although Executive and the Company consider the restrictions contained in this Section 7 to be reasonable, if a final judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.
Appears in 1 contract
Non-Solicitation and Non-Competition. a. Executive acknowledges and recognizes the highly competitive nature (a) In consideration of the businesses of the Company Group payments and accordingly agrees as follows:
(i) While Executive is performing services for the Company Group and for a period of one year following the date Executive ceases to perform services for the Company Group for any reason (the “Restricted Period”), Executive will not, whether on Executive’s own behalf or on behalf of or in conjunction with any person, firm, partnership, joint venture, association, corporation or other business organization, entity or enterprise whatsoever (“Person”) engaged in a Competitive Business, directly or indirectly solicit or assist in soliciting the business of any client or prospective client:
(A) with whom Executive had personal contact or dealings on behalf of the Company Group during the one-year period preceding the Relevant Date (as defined below);
(B) with whom employees reporting to Executive have had personal contact or dealings on behalf of the Company Group during the one-year period preceding the Relevant Date; or
(C) for whom Executive had direct or indirect responsibility during the one-year period preceding the Relevant Date. For purposes of promises provided under this Agreement, “Relevant Date” will mean (i) during the time sufficiency of which is expressly acknowledged, Executive is performing services agrees that for the Company Group12-month period following the Retirement Date he shall not, without the date on which such definition is being applied for purposes of interpreting this Section 8(a); and (ii) following any cessation of Executive’s service, the date of such cessation.
(ii) During the Restricted Period, Executive will not directly or indirectly:
(A) engage in any medical transcription processing services and dictation business, any medical speech recognition or natural language understanding technology, or other business that competes with the business of any member prior written consent of the Company Group (including, without limitation, businesses which any member of the Company Group has specific plans to conduct in the future and as to which Executive is aware of such planning) (a “Competitive Business”) in any geographical area where any member of the Company Group manufactures, produces, sells, leases, rents, licenses or otherwise provides its products or services for a Competitive Business; provided, however, that it is expressly understood and agreed that where a Person or company is engaged in a Competitive Business, but has a department, division or business unit that is not engaged in a Competitive Business, Executive may take employment or provide services to such department, division or business unit and it shall not be construed as a violation of this Section 8(a), provided that Executive has no involvement with any portion of the business conducted by such Person or entity that is a Competitive Business;
(B) enter the employ of, or render any services to, any Person (or any division or controlled or controlling affiliate of any Person) who or which engages in a Competitive Business;
(C) acquire a financial interest in, or otherwise become actively involved with, any Competitive BusinessCompany, directly or indirectly, as an individual(i) induce, partner, shareholder, officer, director, principal, agent, trustee entice or consultant; or
solicit (D) interfere with, or attempt to interfere withinduce, business relationships (whether formed before, on entice or after the date of this Agreementsolicit) between any member person who is an employee of the Company Group or any of their respective affiliatesits Affiliates or Ventures to leave the employment of the Company or any of its Affiliates or Ventures, customers, clients, suppliers (ii) solicit or investors.
(iii) Notwithstanding anything attempt to the contrary in this Agreement, Executive may, directly or indirectly own, solely as an investment, securities of any Person engaged in solicit the business of any member acquisition prospect of the Company Group that are publicly traded on a national or regional stock exchange any of its Affiliates or on Ventures with whom Executive had any actual contact while employed by the over-the-counter market so long as Executive (i) is not a controlling person ofCompany or any of its Affiliates, or a member (iii) hire, engage, employ or assist any third party in hiring, engaging or employing any person who is at such time (or was at any time within six (6) months prior to the date of a group which controlssuch employment or engagement) employed or engaged by the Company or any of its Affiliates or Ventures as an employee, agent, representative, consultant or independent contractor to perform any work or render any service similar or related to that provided by such person to the Company or any of its Affiliates or Ventures. The provisions of this subparagraph 11(a) shall not prohibit Executive from speaking with persons who respond to general advertisements or who contact a business with which Executive is affiliated through an independent recruiting firm that has not been directed to solicit interest from any person who is an employee of the Company, any of its Affiliates or Ventures.
(b) In consideration of the payments and (ii) does promises provided under this Agreement, the sufficiency of which is expressly acknowledged, Executive agrees that for the 12-month period following the Retirement Date he shall not, without the prior written consent of the Company (which consent may be granted or withheld in the Company’s sole discretion), acting alone or in conjunction with others, either directly or indirectly, own 2% engage in any business that is in competition with the Company, an Affiliate or more Venture or accept employment with or render services to such business in a role in which Executive would perform the same or substantially similar activities or services as those performed by him for the Company during the last year of any class of securities of such Personhis employment. Executive understands and agrees that the foregoing covenant is not intended to restrict him from performing work in roles that are not directly competitive with the Company and/or that are not the same or substantially similar to the activities or services that he performed for the Company.
(ivc) During In consideration of the Restricted Periodpayments and promises provided under this Agreement, the sufficiency of which is expressly acknowledged, Executive agrees that for the 12-month period following the Retirement Date he will notnot perform any act, whether on Executive’s own behalf engage in any conduct or on behalf course of action or in conjunction with make or publish any Personadverse or untrue or misleading statement which has or may reasonably have the effect of demeaning the name or business reputation of the Company, directly the Releasees, an Affiliate or indirectly:a Venture or which adversely affects or may reasonably be expected to adversely affect the best interests (economic or otherwise) of the Company, the Releasees, an Affiliate or a Venture.
(Ad) solicit The restrictions contained in subparagraph 11(b) above are geographically limited to areas or encourage any employee of any member of territories where the Company Group or an Affiliate or a Venture engages (or has definite plans to leave employment; or
(Bengage) hire any Person who was employed by any member in operations or the marketing of its products or services on the Company Group as of the date of Executive’s cessation of service or who left the employment of any member of the Company Group during the one-year period preceding the Relevant Retirement Date.
(ve) During Executive acknowledges that he has received valuable consideration from the Restricted PeriodCompany as provided in this Agreement for the covenants and undertakings set forth in Paragraphs 8, Executive will not9, directly or indirectly10 and 11, solicit or encourage that the consideration provided by the Company gives rise to cease to work with any member an interest of the Company Group any consultant then and its Affiliates and Ventures in restraining Executive from engaging in the conduct described in Paragraphs 8, 9, 10 and 11 of this Agreement and that the restrictive covenants and undertakings are designed to enforce Executive’s consideration or return promises under contract this Agreement. Additionally, Executive acknowledges that the restrictive covenants contain limitations as to time, geographical area, and scope of activity to be restrained that are reasonable and do not impose a greater restraint than is necessary to protect the Company’s relationship with any member its customers, goodwill or other legitimate business interests of the Company Group.
b. It is expressly understood and agreed that although Executive its Affiliates and the Company consider the restrictions contained in this Section 7 to be reasonableVentures, if a final judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against Executiveincluding, but not limited to, the Company’s and its Affiliates’ and Ventures’ need to protect their Confidential Information. The Company may notify any person or entity employing or contracting with Executive or evidencing an intention of employing or contracting with Executive of the existence and provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained hereinAgreement.
Appears in 1 contract
Non-Solicitation and Non-Competition. a. Executive acknowledges and recognizes the highly competitive nature (a) In consideration of the businesses of the Company Group payments and accordingly agrees as follows:
(i) While Executive is performing services for the Company Group and for a period of one year following the date Executive ceases to perform services for the Company Group for any reason (the “Restricted Period”), Executive will not, whether on Executive’s own behalf or on behalf of or in conjunction with any person, firm, partnership, joint venture, association, corporation or other business organization, entity or enterprise whatsoever (“Person”) engaged in a Competitive Business, directly or indirectly solicit or assist in soliciting the business of any client or prospective client:
(A) with whom Executive had personal contact or dealings on behalf of the Company Group during the one-year period preceding the Relevant Date (as defined below);
(B) with whom employees reporting to Executive have had personal contact or dealings on behalf of the Company Group during the one-year period preceding the Relevant Date; or
(C) for whom Executive had direct or indirect responsibility during the one-year period preceding the Relevant Date. For purposes of promises provided under this Agreement, “Relevant Date” will mean (i) during the time sufficiency of which is expressly acknowledged, Executive is performing services agrees that for the Company Group12-month period following the Termination Date he shall not, without the date on which such definition is being applied for purposes of interpreting this Section 8(a); and (ii) following any cessation of Executive’s service, the date of such cessation.
(ii) During the Restricted Period, Executive will not directly or indirectly:
(A) engage in any medical transcription processing services and dictation business, any medical speech recognition or natural language understanding technology, or other business that competes with the business of any member prior written consent of the Company Group (including, without limitation, businesses which any member of the Company Group has specific plans to conduct in the future and as to which Executive is aware of such planning) (a “Competitive Business”) in any geographical area where any member of the Company Group manufactures, produces, sells, leases, rents, licenses or otherwise provides its products or services for a Competitive Business; provided, however, that it is expressly understood and agreed that where a Person or company is engaged in a Competitive Business, but has a department, division or business unit that is not engaged in a Competitive Business, Executive may take employment or provide services to such department, division or business unit and it shall not be construed as a violation of this Section 8(a), provided that Executive has no involvement with any portion of the business conducted by such Person or entity that is a Competitive Business;
(B) enter the employ of, or render any services to, any Person (or any division or controlled or controlling affiliate of any Person) who or which engages in a Competitive Business;
(C) acquire a financial interest in, or otherwise become actively involved with, any Competitive BusinessCompany, directly or indirectly, as an individual(i) induce, partner, shareholder, officer, director, principal, agent, trustee entice or consultant; or
solicit (D) interfere with, or attempt to interfere withinduce, business relationships (whether formed before, on entice or after the date of this Agreementsolicit) between any member person who is an employee of the Company Group or any of their respective affiliatesits Affiliates or Ventures to leave the employment of the Company or any of its Affiliates or Ventures, customers, clients, suppliers (ii) solicit or investors.
(iii) Notwithstanding anything attempt to the contrary in this Agreement, Executive may, directly or indirectly own, solely as an investment, securities of any Person engaged in solicit the business of any member acquisition prospect of the Company Group that are publicly traded on a national or regional stock exchange any of its Affiliates or on Ventures with whom Executive had any actual contact while employed by the over-the-counter market so long as Executive (i) is not a controlling person ofCompany or any of its Affiliates, or a member (iii) hire, engage, employ or assist any third party in hiring, engaging or employing any person who is at such time (or was at any time within six (6) months prior to the date of a group which controlssuch employment or engagement) employed or engaged by the Company or any of its Affiliates or Ventures as an employee, agent, representative, consultant or independent contractor to perform any work or render any service similar or related to that provided by such person to the Company or any of its Affiliates or Ventures. The provisions of this subparagraph 11(a) shall not prohibit Executive from speaking with persons who respond to general advertisements or who contact a business with which Executive is affiliated through an independent recruiting firm that has not been directed to solicit interest from any person who is an employee of the Company, any of its Affiliates or Ventures.
(b) In consideration of the payments and (ii) does promises provided under this Agreement, the sufficiency of which is expressly acknowledged, Executive agrees that for the 12-month period following the Termination Date he shall not, without the prior written consent of the Company (which consent may be granted or withheld in the Company’s sole discretion), acting alone or in conjunction with others, either directly or indirectly, own 2% engage in any business that is in competition with the Company, an Affiliate or more Venture or accept employment with or render services to such business in a role in which Executive would perform the same or substantially similar activities or services as those performed by him for the Company during the last year of any class of securities of such Personhis employment. Executive understands and agrees that the foregoing covenant is not intended to restrict him from performing work in roles that are not directly competitive with the Company and/or that are not the same or substantially similar to the activities or services that he performed for the Company.
(ivc) During In consideration of the Restricted Periodpayments and promises provided under this Agreement, the sufficiency of which is expressly acknowledged, Executive agrees that for the 12-month period following the Termination Date he will notnot perform any act, whether on Executive’s own behalf engage in any conduct or on behalf course of action or in conjunction with make or publish any Personadverse or untrue or misleading statement which has or may reasonably have the effect of demeaning the name or business reputation of the Company, directly the Releasees, an Affiliate or indirectly:a Venture or which adversely affects or may reasonably be expected to adversely affect the best interests (economic or otherwise) of the Company, the Releasees, an Affiliate or a Venture.
(Ad) solicit The restrictions contained in subparagraph 11(b) above are geographically limited to areas or encourage any employee of any member of territories where the Company Group or an Affiliate or a Venture engages (or has definite plans to leave employment; or
(Bengage) hire any Person who was employed by any member in operations or the marketing of its products or services on the Company Group as of the date of Executive’s cessation of service or who left the employment of any member of the Company Group during the one-year period preceding the Relevant Termination Date.
(ve) During Executive acknowledges that he has received valuable consideration from the Restricted PeriodCompany as provided in this Agreement for the covenants and undertakings set forth in Paragraphs 8, Executive will not9, directly or indirectly10 and 11, solicit or encourage that the consideration provided by the Company gives rise to cease to work with any member an interest of the Company Group any consultant then and its Affiliates and Ventures in restraining Executive from engaging in the conduct described in Paragraphs 8, 9, 10 and 11 of this Agreement and that the restrictive covenants and undertakings are designed to enforce Executive’s consideration or return promises under contract this Agreement. Additionally, Executive acknowledges that the restrictive covenants contain limitations as to time, geographical area, and scope of activity to be restrained that are reasonable and do not impose a greater restraint than is necessary to protect the Company’s relationship with any member its customers, goodwill or other legitimate business interests of the Company Group.
b. It is expressly understood and agreed that although Executive its Affiliates and the Company consider the restrictions contained in this Section 7 to be reasonableVentures, if a final judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against Executiveincluding, but not limited to, the Company’s and its Affiliates’ and Ventures’ need to protect their Confidential Information. The Company may notify any person or entity employing or contracting with Executive or evidencing an intention of employing or contracting with Executive of the existence and provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained hereinAgreement.
Appears in 1 contract
Non-Solicitation and Non-Competition. a. Executive acknowledges (1) You acknowledge that the pharmaceutical and recognizes the over-the-counter drug industries are highly competitive nature businesses. You are a key executive of Draxis, and as a result of your senior position, you confirm that you have acquired extensive background in and knowledge of the businesses of Company's business and the pharmaceutical and over-the-counter drug industries in which the Company Group and accordingly agrees as follows:
(i) While Executive is performing services for operates. You further acknowledge that the Company Group develops and markets its products on a North American basis. Accordingly, you agree that in the course of your employment with Draxis, and thereafter for a period of one (1) year following the date Executive ceases (or if such period is held to perform services be excessive by a court of competent jurisdiction then for the Company Group for any reason a period of six (the “Restricted Period”), Executive will 6) months) you shall not, without the prior written authorization of the Chief Executive Officer of Draxis whether on Executive’s own behalf as principal, as agent, or on behalf of as an employee of, or in conjunction partnership, or association with any personother Person, firm, partnership, joint venture, association, corporation or other business organization, entity or enterprise in any manner whatsoever (“Person”) engaged in a Competitive Business, directly or indirectly solicit or assist in soliciting the business of any client or prospective client:
(A) with whom Executive had personal contact or dealings on behalf of the Company Group during the one-year period preceding the Relevant Date (as defined below);
(B) with whom employees reporting to Executive have had personal contact or dealings on behalf of the Company Group during the one-year period preceding the Relevant Date; or
(C) for whom Executive had direct or indirect responsibility during the one-year period preceding the Relevant Date. For purposes of this Agreement, “Relevant Date” will mean (i) during the time Executive is performing services for the Company Group, the date on which such definition is being applied for purposes of interpreting this Section 8(a); and (ii) following any cessation of Executive’s service, the date of such cessation.
(ii) During the Restricted Period, Executive will not directly or indirectly:
(Ai) become employed by or associated or affiliated with any Competitor of the Company in North America in a function dealing with a product or service, which during the twelve-month period immediately prior to the termination of this Agreement and your employment hereunder, for any reason, competed directly with a product or service of the Company;
(ii) seek to employ or encourage others to employ or otherwise engage employees, agents or subcontractors of the Company (who are employees, agents or subcontractors on the date this Agreement terminated) or seek to in any medical transcription processing services and dictation business, way disrupt their business relationship with the Company;
(iii) obtain by any medical speech recognition or natural language understanding technology, or other business that competes with means whatsoever the business of any member Person who at the time of the Company Group (includingtermination of this Agreement and your employment hereunder, without limitation, businesses which any member was a customer of the Company Group has specific plans Company, if to conduct in the future and as to which Executive is aware of obtain such planning) (a “Competitive Business”) in any geographical area where any member of the Company Group manufactures, produces, sells, leases, rents, licenses or otherwise provides its products or services for a Competitive Business; provided, however, that it is expressly understood and agreed that where a Person or company is engaged business may result in a Competitive Business, but has a department, division or reduction of that Person's business unit that is not engaged in a Competitive Business, Executive may take employment or provide services to such department, division or business unit and it shall not be construed as a violation of this Section 8(a), provided that Executive has no involvement with any portion of the business conducted by such Person or entity that is a Competitive BusinessCompany;
(B) enter the employ of, or render any services to, any Person (or any division or controlled or controlling affiliate of any Person) who or which engages in a Competitive Business;
(C) acquire a financial interest in, or otherwise become actively involved with, any Competitive Business, directly or indirectly, as an individual, partner, shareholder, officer, director, principal, agent, trustee or consultant; or
(D) interfere with, or attempt to interfere with, business relationships (whether formed before, on or after the date of this Agreement) between any member of the Company Group or any of their respective affiliates, customers, clients, suppliers or investors.
(iii) Notwithstanding anything to the contrary in this Agreement, Executive may, directly or indirectly own, solely as an investment, securities of any Person engaged in the business of any member of the Company Group that are publicly traded on a national or regional stock exchange or on the over-the-counter market so long as Executive (i) is not a controlling person of, or a member of a group which controls, such person and (ii) does not, directly or indirectly, own 2% or more of any class of securities of such Person.
(iv) During approach any Person who at the Restricted Period, Executive will not, whether on Executive’s own behalf or on behalf time of or in conjunction with any Person, directly or indirectly:
(A) solicit or encourage any employee the termination of any member this Agreement and your employment hereunder was a customer of the Company Group to leave employment; or
(B) hire any with the intention of soliciting or enticing the business of that Person who was employed by any member of away from the Company Group as of the date of Executive’s cessation of service or who left the employment of any member of the Company Group during the one-year period preceding the Relevant DateCompany.
(v) During the Restricted Period, Executive will not, directly or indirectly, solicit or encourage to cease to work with any member of the Company Group any consultant then under contract with any member of the Company Group.
b. It is expressly understood and agreed that although Executive and the Company consider the restrictions contained in this Section 7 to be reasonable, if a final judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.
Appears in 1 contract
Non-Solicitation and Non-Competition. a. Executive acknowledges (a) Seller agrees that during the period beginning on the date hereof and recognizes ending on the highly competitive nature fifth anniversary of the businesses of date hereof (the Company Group and accordingly agrees as follows:
"Non-Solicitation Period"), Seller shall not directly or indirectly (i) While Executive is performing services for the Company Group and for a period of one year following the date Executive ceases induce or attempt to perform services for the Company Group for induce any reason (the “Restricted Period”)officer, Executive will notemployee, whether on Executive’s own behalf salesperson, representative or on behalf of or in conjunction with any person, firm, partnership, joint venture, association, corporation or other business organization, entity or enterprise whatsoever (“Person”) engaged in a Competitive Business, directly or indirectly solicit or assist in soliciting the business of any client or prospective client:
(A) with whom Executive had personal contact or dealings on behalf agent of the Company Group during Company, its Subsidiaries or its Affiliates (an "Employee") to leave the one-year period preceding the Relevant Date (as defined below);
(B) with whom employees reporting to Executive have had personal contact or dealings on behalf employ of the Company Group during the one-year period preceding the Relevant Date; or
(C) for whom Executive had direct Company, its Subsidiaries or indirect responsibility during the one-year period preceding the Relevant Date. For purposes of this Agreementits Affiliates, “Relevant Date” will mean (i) during the time Executive is performing services for the Company Group, the date on which such definition is being applied for purposes of interpreting this Section 8(a); and (ii) following hire any cessation of Executive’s service, Employee or any Person who was an Employee during the one year period prior to the date hereof or during the Non-Solicitation Period, except such Persons whose employment with the Company, its Subsidiaries or its Affiliates was terminated by the Company (other than for cause) at least one year prior to date of such cessationhiring, or (iii) in any other way interfere with the relationship between the Company, its Subsidiaries or its Affiliates, on the one hand, and any Employee, customer, supplier, or potential customer or supplier of the Company, its Subsidiaries or its Affiliates, on the other hand.
(iib) During Seller agrees that during the Restricted Period, Executive will not directly or indirectly:
(A) engage in any medical transcription processing services period beginning on the date hereof and dictation business, any medical speech recognition or natural language understanding technology, or other business that competes with ending on the business of any member fifth anniversary of the Company Group date hereof (includingthe "Non-Compete Period"), Seller shall not, without limitation, businesses which any member the prior written consent of the Company Group has specific plans to conduct in the future and as to which Executive is aware of such planning) (a “Competitive Business”) in any geographical area where any member of the Company Group manufactures, produces, sells, leases, rents, licenses or otherwise provides its products or services for a Competitive Business; provided, however, that it is expressly understood and agreed that where a Person or company is engaged in a Competitive Business, but has a department, division or business unit that is not engaged in a Competitive Business, Executive may take employment or provide services to such department, division or business unit and it shall not be construed as a violation of this Section 8(a), provided that Executive has no involvement with any portion of the business conducted by such Person or entity that is a Competitive Business;
(B) enter the employ of, or render any services to, any Person (or any division or controlled or controlling affiliate of any Person) who or which engages in a Competitive Business;
(C) acquire a financial interest in, or otherwise become actively involved with, any Competitive BusinessCompany, directly or indirectly, anywhere in the world (the "Territory") (i) form, acquire, finance, operate, control or otherwise become associated with an enterprise which is substantially the same as, or competitive with, the business of the Company or any of its Subsidiaries, as an individualconducted or proposed to be conducted (a "Competing Business") or (ii) for the purpose of conducting or engaging in a Competing Business, partnercall upon, shareholdersolicit, officer, director, principal, agent, trustee advise or consultant; or
(D) interfere withotherwise do, or attempt to interfere withdo, business relationships with any clients, suppliers, customers or accounts of the Company, its Subsidiaries or its Affiliates.
(whether formed beforec) Seller acknowledges and agree that any materials developed by, on the Company or after any of its employees, Affiliates or representatives (i) are the date property of the Company and (ii) are confidential, shall be maintained as confidential by Seller and shall not be disclosed to any other Person. In the event Seller is required by law to disclose any such confidential information or materials, Seller shall promptly notify the Company in writing, which notification shall include the nature of the legal requirement and the extent of the required disclosure, and shall cooperate with the Company to obtain a protective order and otherwise preserve the confidentiality of such information or materials consistent with applicable law. Information or materials subject to the confidentiality obligations in this Section 3(c) does not include any information or materials which (x) at the time of disclosure is generally available to or known by the public (other than as a result of its disclosure in breach of this Agreement) between any member of or (y) becomes available on a non-confidential basis from a Person who is not known to be bound by a confidentiality agreement or who is not otherwise prohibited from transmitting the Company Group information or any of their respective affiliates, customers, clients, suppliers or investorsmaterials.
(iiid) Notwithstanding anything to the contrary in this Agreement, Executive may, directly or indirectly own, solely as an investment, securities of any Person engaged in the business of any member of the Company Group Seller agrees that are publicly traded on a national or regional stock exchange or on the over-the-counter market so long as Executive (i) is not a controlling person ofthe covenants set forth in Section 3(a) and/or 3(b) are reasonable in temporal and geographical scope and in all other respects, or a member of a group which controls, such person and (ii) does notthe covenants contained herein have been made in order to satisfy the conditions under, directly or indirectlyand to induce Parent and Subco to enter into, own 2% or more of any class of securities of such Personthe Arrangement Agreement.
(ive) During The Company and Seller intend that the Restricted Periodcovenants of Section 3(b) shall be deemed to be a series of separate covenants, Executive will notone for each county or province of each and every state, whether on Executive’s own behalf territory or on behalf jurisdiction of or in conjunction with any Person, directly or indirectly:
(A) solicit or encourage any employee of any member each country within the Territory and one for each month of the Company Group to leave employment; or
(B) hire any Person who was employed by any member of the Company Group as of the date of Executive’s cessation of service or who left the employment of any member of the Company Group during the oneNon-year period preceding the Relevant DateCompete Period.
(vf) During If, at the Restricted Periodtime of enforcement of Section 3(a) and 3(b), Executive will nota court shall hold that the duration or scope stated herein are unreasonable under circumstances then existing, directly the parties agree that the maximum duration or indirectly, solicit scope under such circumstances shall be substituted for the stated duration or encourage scope and that the court shall be allowed to cease revise the restrictions contained herein to work with any member of cover the Company Group any consultant then under contract with any member of the Company Groupmaximum period and scope permitted by law.
b. It is expressly understood (g) Seller recognizes and agreed affirms that although Executive in the event of its breach of any provision of Section 3(a) or 3(b), money damages would be inadequate and the Company consider would have adequate remedy at law. Accordingly, Seller agrees that in the restrictions contained in this Section 7 to be reasonable, if event of a final judicial determination is made by breach or a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability threatened breach of any of the provisions of Section 3(a) or 3(b), the Company, in addition and supplementary to other restrictions contained hereinrights and remedies existing in its favor, may apply to any court of law or equity of competent jurisdiction for specific performance and/or injunctive or other relief in order to enforce or prevent any violations of the provisions hereof (without posting a bond or other security). In addition, in the event of a breach or violation of Section 3(a) or 3(b), the Non-Solicitation Period or the Non-Compete Period, respectively, shall be tolled until such breach or violation has ceased.
Appears in 1 contract
Sources: Arrangement Agreement (International Absorbents Inc)
Non-Solicitation and Non-Competition. a. In further consideration of the compensation to be paid to Executive hereunder, Executive acknowledges and recognizes that during the highly competitive nature course of the businesses of Executive’s employment with the Company Group and accordingly its Affiliates Executive has and shall become familiar with the Company’s (and its Affiliates) trade secrets and with other Confidential Information concerning the Company and its Affiliates and that Executive’s services have been and shall be of special, unique and extraordinary value to the Company and its Affiliates, and, therefore, Executive agrees as followsthat:
(ia) While Executive is performing services for from the Company Group date of this Agreement and for a period of one year during the eighteen (18) months’ following the date Executive ceases to perform services for the Company Group termination of Executive’s employment for any reason (the “Restricted Period”)reason, Executive will not, whether on Executive’s own behalf or on behalf of or in conjunction with any person, firm, partnership, joint venture, association, corporation or other business organization, entity or enterprise whatsoever (“Person”) engaged in a Competitive Business, shall not directly or indirectly solicit or induce, attempt to solicit or induce or assist in any person soliciting the business of or inducing any client or prospective client:
(A) with whom Executive had personal contact or dealings on behalf employee of the Company Group or any of its Affiliates to leave the employ of the Company or such Affiliate, or in any way interfere with the relationship between the Company or such Affiliate and any employee thereof; provided, however, that the foregoing shall not apply to (i) general solicitations for employment, including through search firms, that are not specifically directed at employees of the Company or any of its Affiliates, (ii) hiring any person who responds solely as a result of such general solicitations or contacts Executive on his or her own initiative without any direct or indirect solicitation or encouragement from Executive’s representatives and (iii) hiring any person whose employment with the Company or any of its Affiliates has ceased prior to any discussions with Executive with respect to prospective employment;
(b) from the date of this Agreement and during the one-year period preceding Restriction Period, without the Relevant Date prior written consent of the Company, Executive shall not, engage in, directly or indirectly, anywhere in the Restricted Area (as defined below);, any business or enterprise which distributes, provides, renders or sells products or services which compete with the business of Parent, the Company or any of its Affiliates (collectively, the “Restricted Business”); except that if a court or arbitrator finds that such definition of Restricted Business not necessary to protect legitimate business interests of the Company, the Restricted Business shall be defined to mean any business or enterprise which distributes, provides, renders or sells products or services which compete with the business of designing and distributing original equipment manufacturer, military or aftermarket suspension and related products; and
(Bc) from the date of this Agreement and during the Restriction Period, Executive shall not in any way, directly or indirectly, for the purpose of engaging in any business that competes with whom employees reporting the Restricted Business, call upon, solicit, advise, or otherwise do, or attempt to Executive have had personal contact do, business with any customers, vendors or dealings on behalf suppliers that were customers, vendors or suppliers of the Parent, the Company Group during or any of its Affiliates (including its predecessors) within one year prior to the one-year period preceding Executive’s termination date any individual Executive was either involved with (directly or indirectly) or about which Executive received Confidential Information (but in each case only as such solicitation or other contact relates to the Relevant DateRestricted Business), or induce or attempt to induce any such customer, vendor or supplier not to do business with the Parent, the Company or any of its Affiliates; orand
(Cd) for whom Executive had direct shall not make any negative or indirect responsibility during disparaging statements or communications about the one-year period preceding Company or any of its Affiliates, or any of their respective directors, officers, employees or stockholders. Nothing in this Agreement prohibits, limits or restricts, or shall be construed to prohibit, limit or restrict, the Relevant DateExecutive from making disclosures required by the SEC. For purposes of this Agreement, the term “Relevant Dateengage in” will mean (ior variations thereof) during the time Executive is performing services for the Company Groupmeans to own an interest in, the date on which such definition is being applied for purposes of interpreting this Section 8(a); and (ii) following any cessation of Executive’s servicemanage, the date of such cessation.
(ii) During the Restricted Periodoperate, Executive will not directly join, control, lend money to, or indirectly:
(A) engage render financial or other assistance to, or participate in any medical transcription processing services and dictation businessor be connected with, either as an officer, employee, partner, member, stockholder, director, consultant and/or similar service provider capacity, any medical speech recognition or natural language understanding technology, or other business person that competes with the business of any member of the Company Group (including, without limitation, businesses which any member of the Company Group has specific plans to conduct Restricted Business either directly or through an affiliate anywhere in the future and as to which Executive is aware of such planning) (a “Competitive Business”) in any geographical area where any member of the Company Group manufactures, produces, sells, leases, rents, licenses or otherwise provides its products or services for a Competitive Businessworld; provided, however, that it is expressly understood and agreed that where a Person or company is engaged in a Competitive Businessthat, but has a department, division or business unit that is not engaged in a Competitive Business, Executive may take employment or provide services to such department, division or business unit and it shall not be construed as a violation of this Section 8(a), provided that Executive has no involvement with any portion of for the business conducted by such Person or entity that is a Competitive Business;
(B) enter the employ of, or render any services to, any Person (or any division or controlled or controlling affiliate of any Person) who or which engages in a Competitive Business;
(C) acquire a financial interest in, or otherwise become actively involved with, any Competitive Business, directly or indirectly, as an individual, partner, shareholder, officer, director, principal, agent, trustee or consultant; or
(D) interfere with, or attempt to interfere with, business relationships (whether formed before, on or after the date purposes of this Agreement) between any member , ownership of voting securities having no more than five percent of the Company Group or any of their respective affiliates, customers, clients, suppliers or investors.
(iii) Notwithstanding anything to the contrary in this Agreement, Executive may, directly or indirectly own, solely as an investment, securities outstanding voting power of any Person engaged in the business of any member of the Company Group such person that are publicly listed on any national securities exchange or traded on actively in a national or regional stock exchange or on the over-the-counter market shall not be deemed to be in violation of this Agreement so long as Executive (i) is not a controlling person of, has no other connection or a member of a group which controls, relationship with such person and (ii) does not, directly or indirectly, own 2% or more of any class of securities of such Personperson.
(iv) During the Restricted Period, Executive will not, whether on Executive’s own behalf or on behalf of or in conjunction with any Person, directly or indirectly:
(A) solicit or encourage any employee of any member of the Company Group to leave employment; or
(B) hire any Person who was employed by any member of the Company Group as of the date of Executive’s cessation of service or who left the employment of any member of the Company Group during the one-year period preceding the Relevant Date.
(v) During the Restricted Period, Executive will not, directly or indirectly, solicit or encourage to cease to work with any member of the Company Group any consultant then under contract with any member of the Company Group.
b. It is expressly understood and agreed that although Executive and the Company consider the restrictions contained in this Section 7 to be reasonable, if a final judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.
Appears in 1 contract
Non-Solicitation and Non-Competition. a. In further consideration of the compensation to be paid to Executive hereunder, Executive acknowledges and recognizes that during the highly competitive nature course of the businesses of Executive’s employment with the Company Group and accordingly its Affiliates, Executive has and shall become familiar with the Company’s (and its Affiliates) trade secrets and with other Confidential Information concerning the Company and its Affiliates and, that Executive’s services have been and shall be of special, unique and extraordinary value to the Company and its Affiliates, and, therefore, Executive agrees as followsthat:
(ia) While Executive is performing services for from the Company Group date of this Agreement and for a period of one year during the eighteen (18) months’ following the date Executive ceases to perform services for the Company Group termination of Executive’s employment for any reason (the “Restricted Period”)reason, Executive will not, whether on Executive’s own behalf or on behalf of or in conjunction with any person, firm, partnership, joint venture, association, corporation or other business organization, entity or enterprise whatsoever (“Person”) engaged in a Competitive Business, shall not directly or indirectly solicit or induce, attempt to solicit or induce or assist in any person soliciting the business of or inducing any client or prospective client:
(A) with whom Executive had personal contact or dealings on behalf employee of the Company Group or any of its Affiliates to leave the employ of the Company or such Affiliate, or in any way interfere with the relationship between the Company or such Affiliate and any employee thereof; provided, however, that the foregoing shall not apply to (i) general solicitations for employment, including through search firms, that are not specifically directed at employees of the Company or any of its Affiliates, (ii) hiring any person who responds solely as a result of such general solicitations or contacts Executive on his or her own initiative without any direct or indirect solicitation or encouragement from Executive’s representatives and (iii) hiring any person whose employment with the Company or any of its Affiliates has ceased prior to any discussions with Executive with respect to prospective employment;
(b) from the date of this Agreement and during the one-year period preceding Restriction Period, without the Relevant Date prior written consent of the Company, Executive shall not, engage in, directly or indirectly, anywhere in the Restricted Area (as defined below);, any business or enterprise that is engaged in the same or similar business as the business of Parent, the Company or any of its Affiliates (collectively, the “Restricted Business”); provided, however, that if a court or arbitrator finds that such definition of Restricted Business not necessary to protect legitimate business interests of the Company, the Restricted Business shall be defined to mean any business or enterprise which distributes, provides, renders or sells products or services which compete with the business of designing and distributing original equipment manufacturer, military or aftermarket suspension and related products; provided further, however, that none of the foregoing shall restrict Executive from providing legal services to any person, business, or enterprise or otherwise engaging in the practice of law; and
(Bc) from the date of this Agreement and during the Restriction Period, Executive shall not in any way, directly or indirectly, for the purpose of engaging in any business that competes with whom employees reporting the Restricted Business, call upon, solicit, advise, or otherwise do, or attempt to do, business with any customers, vendors or suppliers that were customers, vendors or suppliers of the Parent, the Company or any of its Affiliates (including its predecessors) within one year prior to the Executive’s termination date any individual Executive have had personal was either involved with (directly or indirectly) or about which Executive received Confidential Information (but in each case only as such solicitation or other contact relates to the Restricted Business), or dealings on behalf induce or attempt to induce any such customer, vendor or supplier not to do business with the Parent, the Company or any of its Affiliates; provided, however, that none of the foregoing shall restrict Executive from providing legal services to any person, business, or enterprise or otherwise engaging in the practice of law; and
(d) Neither Executive nor the directors and senior executive officers of the Company Group during shall make any defamatory or disparaging statements or communications about the one-year period preceding Company or any of its Affiliates, or any of their respective directors, officers, employees or stockholders. Nothing in this Agreement prohibits, limits or restricts, or shall be construed to prohibit, limit or restrict, the Relevant Date; or
(C) for whom Executive had direct from making disclosures required by the SEC or indirect responsibility during otherwise from exercising protected rights to the one-year period preceding extent that such rights cannot be waived by agreement or from complying with any applicable law or regulation or a valid order of a court of competent jurisdiction or an authorized government agency, provided that such compliance does not exceed that required by the Relevant Datelaw, regulation or order. For purposes of this Agreement, the term “Relevant Dateengage in” will mean (ior variations thereof) during the time Executive is performing services for the Company Groupmeans to own an interest in, the date on which such definition is being applied for purposes of interpreting this Section 8(a); and (ii) following any cessation of Executive’s servicemanage, the date of such cessation.
(ii) During the Restricted Periodoperate, Executive will not directly join, control, lend money to, or indirectly:
(A) engage render financial or other assistance to, or participate in any medical transcription processing services and dictation businessor be connected with, either as an officer, employee, partner, member, stockholder, director, consultant and/or similar service provider capacity, any medical speech recognition or natural language understanding technology, or other business person that competes with the business of any member of the Company Group (including, without limitation, businesses which any member of the Company Group has specific plans to conduct Restricted Business either directly or through an affiliate anywhere in the future and as to which Executive is aware of such planning) (a “Competitive Business”) in any geographical area where any member of the Company Group manufactures, produces, sells, leases, rents, licenses or otherwise provides its products or services for a Competitive Businessworld; provided, however, that it is expressly understood and agreed that where a Person or company is engaged in a Competitive Businessthat, but has a department, division or business unit that is not engaged in a Competitive Business, Executive may take employment or provide services to such department, division or business unit and it shall not be construed as a violation of this Section 8(a), provided that Executive has no involvement with any portion of for the business conducted by such Person or entity that is a Competitive Business;
(B) enter the employ of, or render any services to, any Person (or any division or controlled or controlling affiliate of any Person) who or which engages in a Competitive Business;
(C) acquire a financial interest in, or otherwise become actively involved with, any Competitive Business, directly or indirectly, as an individual, partner, shareholder, officer, director, principal, agent, trustee or consultant; or
(D) interfere with, or attempt to interfere with, business relationships (whether formed before, on or after the date purposes of this Agreement) between any member , ownership of voting securities having no more than five percent of the Company Group or any of their respective affiliates, customers, clients, suppliers or investors.
(iii) Notwithstanding anything to the contrary in this Agreement, Executive may, directly or indirectly own, solely as an investment, securities outstanding voting power of any Person engaged in the business of any member of the Company Group such person that are publicly listed on any national securities exchange or traded on actively in a national or regional stock exchange or on the over-the-counter market shall not be deemed to be in violation of this Agreement so long as Executive (i) is not a controlling person of, has no other connection or a member of a group which controls, relationship with such person and (ii) does not, directly or indirectly, own 2% or more of any class of securities of such Personperson.
(iv) During the Restricted Period, Executive will not, whether on Executive’s own behalf or on behalf of or in conjunction with any Person, directly or indirectly:
(A) solicit or encourage any employee of any member of the Company Group to leave employment; or
(B) hire any Person who was employed by any member of the Company Group as of the date of Executive’s cessation of service or who left the employment of any member of the Company Group during the one-year period preceding the Relevant Date.
(v) During the Restricted Period, Executive will not, directly or indirectly, solicit or encourage to cease to work with any member of the Company Group any consultant then under contract with any member of the Company Group.
b. It is expressly understood and agreed that although Executive and the Company consider the restrictions contained in this Section 7 to be reasonable, if a final judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.
Appears in 1 contract