Restrictive Covenants. The Executive agrees that restrictions on his activities during and after his employment are necessary to protect the goodwill, Confidential Information and other legitimate interests of the Company and its Subsidiaries, and that the agreed restrictions set forth below will not deprive the Executive of the ability to earn a livelihood: (A) While the Executive is in the employment of the Company and, if the Executive is entitled to benefits under Section 6.1 hereof upon termination of employment, for a period of twenty-four (24) months after such termination of employment (the "Non-Competition Period"), the Executive shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer or otherwise, compete with the business of the Company or any of its Subsidiaries within a twenty (20) mile radius of any location where the Company operates a retail store at the date of termination of employment, or at which the Company has entered into a letter of intent or similar commitment for or entered into obligations relating to the opening of a retail store to be opened within the period of this covenant. Specifically, but without limiting the foregoing, the Executive agrees not to engage in any manner in any activity that is directly or indirectly competitive with the business of the Company or any of its Subsidiaries as conducted or which has been proposed by management within six months prior to termination of the Executive's employment. Restricted activity also includes without limitation accepting employment or a consulting position with any person who is, or at any time within twelve (12) months prior to termination of the Executive's employment has been, a licensee of the Company or any of its Subsidiaries. For the purposes of this Section 9, the business of the Company and its Subsidiaries shall mean retail operations for the sale of natural and organic foods, including groceries, meat, seafood, dairy and frozen products and produce, as well as natural vitamins, supplements, homeopathic remedies and body care products. (B) The Executive agrees that during the Non-Competition Period or in connection with any termination of employment pursuant to which the Executive is entitled to benefits under Section 6.1, the Executive will not, either directly or through any agent or employee, Solicit any employee of the Company or any of its Subsidiaries to terminate his or her relationship with the Company or any of its Subsidiaries or to apply for or accept employment with any enterprise competitive with the business of the Company, or Solicit any customer, supplier, licensee or vendor of the Company or any of its Subsidiaries to terminate or materially modify its relationship with them, or, in the case of a customer, to conduct with any person any business or activity which such customer conducts or could conduct with the Company or any of its Subsidiaries. (C) The Executive and the Company further agree that following any termination of the Executive's employment pursuant to which the Executive is entitled to benefits under Section 6.1, (i) the Executive shall not make statements or representations, otherwise communicate, directly or indirectly, in writing, orally, or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Company or any if its Subsidiaries or affiliates or their respective former or current officers, directors, employees, advisors, businesses or reputations, (ii) the Company shall instruct its Board members and senior management to not make statements or representations, otherwise communicate, directly, or indirectly, in writing, orally or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Executive or his reputation. The Executive and the Company further agree that, in the event the Executive's employment with the Company is terminated other than by the Company for Cause or as a result of the Executive's death, the Executive and the Company shall refer to the Executive's departure as a "resignation" in any press release or other external announcement or communication concerning the Executive's departure from the Company. Nothing in this paragraph is intended to undermine any obligations the Executive or the Company may have to comply with applicable law, or prohibit the Executive or the Company from providing truthful testimony or information pursuant to subpoena, court order, discovery demand or similar legal process, or truthfully responding to lawful inquiries by any governmental or regulatory entity. (D) The provisions of this Section 9 shall not be deemed to preclude the Executive from employment or engagement during the Non-Competition Period following termination of employment hereunder (i) in a business engaged in retail sales, provided such employment or engagement does not otherwise violate the provisions of this Section 9, or (ii) by a corporation, some of the activities of which are competitive with the business of the Company, if the Executive's activities do not relate to such competitive business, and nothing contained in this Section 9 shall be deemed to prohibit the Executive, during the Non-Competition Period following termination of employment hereunder, from acquiring or holding, solely as an investment, publicly traded securities of any competitor corporation so long as such securities do not, in the aggregate, constitute more than 3% of the outstanding voting securities of such corporation. (E) The Executive acknowledges that the Company and its Subsidiaries continually develop Confidential Information, that the Executive may develop Confidential Information for the Company or its Subsidiaries and that the Executive may learn of Confidential Information during the course of his employment under this Agreement. The Executive will comply with the policies and procedures of the Company and its Subsidiaries for protecting Confidential Information and shall never disclose to any person (except as required by applicable law or legal process or for the proper performance of his duties and responsibilities to the Company and its Subsidiaries, or in connection with any litigation between the Company and the Executive (provided that the Company shall be afforded a reasonable opportunity in each case to obtain a protective order)), or use for his own benefit or gain, any Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its Subsidiaries. The Executive understands that this restriction shall continue to apply after his employment terminates, regardless of the reason for such termination. All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the Company or its Subsidiaries and any copies, in whole or in part, thereof (the "Documents"), whether or not prepared by the Executive, shall be the sole and exclusive property of the Company and its Subsidiaries. The Executive shall safeguard all Documents and shall surrender to the Company at the time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive's possession or control. (F) Without limiting the foregoing, it is understood that the Company shall not be obligated to make any of the payments or to provide for any of the benefits specified in Sections 6.1 and 6.2 hereof, and shall be entitled to recoup the pro rata portion of any such payments and of the value of any such benefits previously provided to the Executive in the event of a material breach by the Executive of the provisions of this Section 9 (such pro ration to be determined as a fraction, the numerator of which is the number of days from such breach to the second anniversary of the date on which the Executive terminates employment and the denominator of which is 730), which breach continues without having been cured within 15 days after written notice to the Executive specifying the breach in reasonable detail. (G) The Executive and the Company agree that in the event the Executive seeks a reference from the Company in connection with any future or prospective employment, the Company's response to any such reference inquiry shall be limited to and consistent with the following: start and end dates of employment, position(s) held and last salary. For purposes of this Section 9, the following definitions shall apply:
Appears in 9 contracts
Sources: Severance Agreement (Wild Oats Markets Inc), Severance Agreement (Wild Oats Markets Inc), Severance Agreement (Wild Oats Markets Inc)
Restrictive Covenants. The Executive agrees Clawback If the Board or the Committee determines, in its sole discretion, that restrictions on his activities during and after his employment you violated or are necessary to protect the goodwill, Confidential Information and other legitimate interests violating any of the Company and its Subsidiaries, and that the agreed restrictions Restrictive Covenants set forth below under the section titled “Restrictive Covenants,” the Option will not deprive immediately terminate without regard to whether it is then Vested in whole or in part. In addition, the Executive Board or the Committee may, in its sole discretion, require from you payment or transfer to the Company of the ability to earn a livelihood:
(A) While Gain from the Executive is in Option, where the employment “Gain” consists of the Company and, if the Executive is entitled to benefits under Section 6.1 hereof upon termination greatest of employment, for a period of twenty-four (24) months after such termination of employment (the "Non-Competition Period"), the Executive shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer or otherwise, compete with the business of the Company or any of its Subsidiaries within a twenty (20) mile radius of any location where the Company operates a retail store at the date of termination of employment, or at which the Company has entered into a letter of intent or similar commitment for or entered into obligations relating to the opening of a retail store to be opened within the period of this covenant. Specifically, but without limiting the foregoing, the Executive agrees not to engage in any manner in any activity that is directly or indirectly competitive with the business of the Company or any of its Subsidiaries as conducted or which has been proposed by management within six months prior to termination of the Executive's employment. Restricted activity also includes without limitation accepting employment or a consulting position with any person who is, or at any time within twelve (12) months prior to termination of the Executive's employment has been, a licensee of the Company or any of its Subsidiaries. For the purposes of this Section 9, the business of the Company and its Subsidiaries shall mean retail operations for the sale of natural and organic foods, including groceries, meat, seafood, dairy and frozen products and produce, as well as natural vitamins, supplements, homeopathic remedies and body care products.
(B) The Executive agrees that during the Non-Competition Period or in connection with any termination of employment pursuant to which the Executive is entitled to benefits under Section 6.1, the Executive will not, either directly or through any agent or employee, Solicit any employee of the Company or any of its Subsidiaries to terminate his or her relationship with the Company or any of its Subsidiaries or to apply for or accept employment with any enterprise competitive with the business of the Company, or Solicit any customer, supplier, licensee or vendor of the Company or any of its Subsidiaries to terminate or materially modify its relationship with them, or, in the case of a customer, to conduct with any person any business or activity which such customer conducts or could conduct with the Company or any of its Subsidiaries.
(C) The Executive and the Company further agree that following any termination of the Executive's employment pursuant to which the Executive is entitled to benefits under Section 6.1, (i) the Executive shall not make statements or representationsvalue of the Option Shares on the date, otherwise communicatewithin the Recovery Measurement Period, directly or indirectly, in writing, orally, or otherwise, or take any action on which may, directly, or indirectly, disparage or be damaging you exercised the Option with respect to the Company or any if its Subsidiaries or affiliates or their respective former or current officers, directors, employees, advisors, businesses or reputationssuch Option Shares, (ii) the Company shall instruct value of the Option Shares received upon exercise during the Recovery Measurement Period, as determined on the date of the request by the Committee to pay or transfer, (iii) the gross (before tax) proceeds you received from any sale of the Option Shares during the Recovery Measurement Period, and (iv) if transferred without sale during the Recovery Measurement Period, the value of the Option Shares when so transferred. The Board or the Committee may determine the recoupment method in its Board members and senior management to not make statements or representations, otherwise communicate, directly, or indirectly, sole discretion for any portion of the Option transferred (where permitted) before being exercised. The “Recovery Measurement Period” means the 12 months before the date of the determination of violation. The provisions in writing, orally or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging this section are essential economic conditions to the Executive or his reputationCompany’s grant of the Option to you. The Executive and By acknowledging receipt of the grant of the Option hereunder, you agree that the Company further agree thatmay deduct from any amounts it owes you from time to time (such as any severance or other payments owed following a termination of employment, in as well as any other amounts owed to you by the event Company, as permitted by applicable law) to the Executive's employment extent of any amounts you owe the Company under this Restrictive Covenants Clawback section. You acknowledge that you would not be receiving the Option described herein but for your agreement to comply with the Company is terminated other than by Restrictive Covenants. Likewise, you acknowledge that you would be unjustly enriched if you violate the Restrictive Covenants, while being able to retain some or all of the Option Shares or the gain associated with them. Furthermore, you acknowledge and agree that the damages for your breach of the Restrictive Covenants are not subject to calculation and that the remedies set forth in this Restrictive Covenants Clawback section, therefore, will only reimburse the Company for Cause or as a result portion of the Executive's deathdamage done. For this reason, the Executive and the Company shall refer be entitled to recover from you any and all damages Company has suffered and, in addition, Company will be entitled to injunctive relief. The parties agree that the Executive's departure as a "resignation" in any press release or other external announcement or communication concerning forfeiture of the Executive's departure from the Company. Nothing Option and payments described in this paragraph section are expressly not Company’s exclusive or sole remedy. This remedy is intended in addition to undermine any obligations the Executive or other remedies that the Company may have available in law or equity with respect to comply with applicable breaches of the Restrictive Covenants below. It is also in addition to, and not in substitution for, any other clawback policies that may be adopted from time to time, including any required by Federal law, or prohibit such as under Section 304 of the Executive ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 or the ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇ Street Reform and Consumer Protection Act. Payment is due in cash or cash equivalents within 10 days after the Board or the Committee provides notice to you that it is enforcing this clawback. Payment will be calculated on a gross basis, without reduction for taxes or commissions. The Company from providing truthful testimony or information pursuant to subpoenamay, court orderbut is not required to, discovery demand or similar legal process, or truthfully responding to lawful inquiries by any governmental or regulatory entity.
(D) The provisions accept retransfer of shares in lieu of cash payments. Restrictive Covenants In consideration of the terms of this Section 9 shall not Option and your access to Proprietary Information (as defined below), you agree to the Restrictive Covenants set forth below. Confidential Information You have or will be deemed given access to preclude the Executive from employment or engagement during the Non-Competition Period following termination of employment hereunder and provided with sensitive, confidential, proprietary and/or trade secret information (icollectively, “Proprietary Information”) in a the course of your employment. Examples of Proprietary Information include inventions, new product or marketing plans, business engaged in retail salesstrategies and plans, provided such employment or engagement does not otherwise violate the provisions of this Section 9merger and acquisition targets, or (ii) by a corporationfinancial and pricing information, some software of the activities Company in various stages of which are competitive with the business development, including computer programs in source code and binary code form, software designs, specifications, programming aids (including “library subroutines” and productivity tools), programming languages, interfaces, visual displays, technical documentation, user manuals, data files and databases of the Company, if the Executive's activities do not relate to such competitive businessanalytical models, customer/client lists and information, and nothing contained in this Section 9 shall be deemed supplier and vendor lists and information. You agree not to prohibit disclose or use Proprietary Information, either during or after your employment with the ExecutiveCompany, during the Non-Competition Period following termination of employment hereunder, from acquiring except as necessary to perform your duties or holding, solely as an investment, publicly traded securities of any competitor corporation so long as such securities do not, in the aggregate, constitute more than 3% of the outstanding voting securities of such corporation.
(E) The Executive acknowledges that the Company and its Subsidiaries continually develop Confidential Information, that the Executive may develop Confidential Information for the Company or its Subsidiaries and that the Executive may learn of Confidential Information during the course of his employment under this Agreement. The Executive will comply with the policies and procedures of the Company and its Subsidiaries for protecting Confidential Information and shall never disclose to any person (except as required by applicable law or legal process or for the proper performance of his duties and responsibilities to the Company and its Subsidiaries, or consent in connection with any litigation between the Company and the Executive (provided that the Company shall be afforded a reasonable opportunity in each case to obtain a protective order)), or use for his own benefit or gain, any Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its Subsidiaries. The Executive understands that this restriction shall continue to apply after his employment terminates, regardless of the reason for such termination. All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the Company or its Subsidiaries and any copies, in whole or in part, thereof (the "Documents"), whether or not prepared by the Executive, shall be the sole and exclusive property of the Company and its Subsidiaries. The Executive shall safeguard all Documents and shall surrender to the Company at the time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive's possession or controlwriting.
(F) Without limiting the foregoing, it is understood that the Company shall not be obligated to make any of the payments or to provide for any of the benefits specified in Sections 6.1 and 6.2 hereof, and shall be entitled to recoup the pro rata portion of any such payments and of the value of any such benefits previously provided to the Executive in the event of a material breach by the Executive of the provisions of this Section 9 (such pro ration to be determined as a fraction, the numerator of which is the number of days from such breach to the second anniversary of the date on which the Executive terminates employment and the denominator of which is 730), which breach continues without having been cured within 15 days after written notice to the Executive specifying the breach in reasonable detail.
(G) The Executive and the Company agree that in the event the Executive seeks a reference from the Company in connection with any future or prospective employment, the Company's response to any such reference inquiry shall be limited to and consistent with the following: start and end dates of employment, position(s) held and last salary. For purposes of this Section 9, the following definitions shall apply:
Appears in 7 contracts
Sources: Executive Nqso Agreement (HMS Holdings Corp), Executive Nonqualified Stock Option Agreement (HMS Holdings Corp), Senior Vice President Nonqualified Stock Option Agreement (HMS Holdings Corp)
Restrictive Covenants. (a) The parties hereto agree that as used herein “Confidential Information” means all information which becomes known to the Executive as a consequence of his employment by the Company and includes, but is not limited to, information about the Company’s customers, methods of operation, prospective and executed contracts, trade secrets, business contacts, customer lists, and all technological, business, financial, accounting, statistical and personnel information regarding the Company. The parties hereto further agree and stipulate that this Confidential Information was developed by the Company at considerable expense, that this information is a valuable asset and part of the Company’s goodwill, that this information is vital to the Company’s success and is the sole property of the Company.
(b) The Executive recognizes and acknowledges that during his employment by the Company, the Executive has, or will, become familiar with the Company’s Confidential Information.
(c) The Executive recognizes and acknowledges that the Company is engaged in the business of, among other things, building satellite ground systems and equipment for command and control, integration and test, data processing and simulation (the “Business”). The Business is a highly competitive enterprise, so that any unauthorized disclosure or unauthorized use by the Executive of the Confidential Information protected under this Agreement, whether during his employment with the Company or after its termination, would cause immediate, substantial and irreparable injury to the Business and the goodwill of the Company.
(d) The Executive agrees that restrictions on his activities during and after upon termination of his employment are necessary with the Company for any reason, whether voluntary or involuntary or with or without Cause, he will surrender to protect the goodwill, Company every item and every document which is the Company’s property or will completely remove from the Executive’s personal property such Confidential Information in whatever form (e.g. cell phones, PDA’s, personal computers, etc.). All such documents and other legitimate interests Confidential Information are the sole and absolute property of the Company. At the written request of the Company, the Executive shall provide the designated representative of the Company and its Subsidiaries, and a certificate containing the following statement: “The Executive hereby certifies that he has notified the agreed restrictions set forth below will not deprive Company’s designated representative of all Confidential Information residing on any personal property of the Executive of the ability to earn a livelihood:
(A) While which the Executive is aware of after due review and inspection and has removed and destroyed (unless otherwise directed in writing by the Company) all Confidential Information from all personal property of the Executive.” Thereafter, in the event that the Executive becomes aware of any further Confidential Information on the Executive’s personal property, the Executive shall notify the Company in writing and again comply with the immediately preceding sentence.
(e) The Executive agrees that during his employment and following the termination of that employment for any reason, whether voluntary or involuntary or with or without Cause, he will not, on his own behalf or as a partner, officer, director, employee, agent, or consultant of any other person or entity, directly or indirectly, disclose the Company’s Confidential Information to any person or entity other than agents of the Company, and he will not use or aid others in obtaining or using any such Confidential Information. The Executive’s obligations under this Section 5.1(e) shall not be deemed violated in the event that (i) the Executive discloses any Confidential Information pursuant to order of a court of competent jurisdiction, provided the Executive has notified the Company of such potential legal order and provided the Company with the opportunity to challenge or limit the scope of the disclosure, or (ii) the information becomes generally available from a source other than the Company, any of its affiliates, or any of their employees when such source is not legally prohibited, to the best of the Executive’s knowledge, from making such information available.
(f) All inventions, prototypes, discoveries, improvements, innovations and the like (“Inventions”) and all works of original authorship or images that are fixed in any tangible medium of expression and all copies thereof (“Works”) which are designed, created or developed by the Executive, solely or in conjunction with others, in the course of performance of the Executive’s duties which relate to the Business, shall be made or conceived for the exclusive benefit of and shall be the exclusive property of the Company. The Executive shall immediately notify the Company upon the design, creation or development of all Inventions and Works. At any time thereafter, the Executive, at the request and expense of the Company, shall execute and deliver to the Company all documents or instruments which may be necessary to secure or perfect the Company’s title to or interest in the Inventions and Works, including but not limited to applications for letters of patent, and extensions, continuations or reissues thereof, applications for copyrights and documents or instruments of assignment or transfer. All Works are agreed and stipulated to be “works made for hire,” as that term is used and understood within the Copyright Act of 1976, as amended or any successor statute. To the extent any Works are not deemed to be works made for hire as defined above, and to the extent that title to or ownership of any Invention or Work and all other rights therein are not otherwise vested exclusively in the Company, the Executive shall, without further consideration but at the expense of the Company, assign and transfer to the Company the Executive’s entire right, title and interest (including copyrights and patents) in or to those Inventions and Works.
(g) The Executive agrees that during his employment with the Company and for a period commencing on the termination of such employment and ending (i) in the event the Executive’s employment is terminated in accordance with Section 2 by the Company without Cause, at the end of the Termination Coverage Period, or (ii) in the event the Executive’s employment terminates for any other reason (whether voluntarily or involuntarily), on the date one (1) year following such date of termination, he will not, on his own behalf or as a partner, officer, director, employee, agent, or consultant of any other person or entity, directly or indirectly, engage or attempt to engage in a business which competes against the Business of the Company andin any geographic area in which the Company engages in the Business. This subsection shall not be construed as precluding the Executive from working as an employee or consultant for a separate business unit of a competitor of the Company, if the separate business unit is not in competition with the Business.
(h) The Executive is entitled to benefits under Section 6.1 hereof upon termination of employment, agrees that during his employment and for a period of twenty-twenty four (24) months after such the termination of employment (the "Non-Competition Period")such employment, the Executive shall whether voluntary or involuntary or with or without Cause, he will not, on his own behalf or as a partner, officer, director, employee, agent, or consultant of any other person or entity, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer solicit or otherwise, compete with the business induce (or attempt to solicit or induce) any employees of the Company or any of its Subsidiaries within a twenty (20) mile radius of any location where the Company operates a retail store at the date of termination of employment, or at which the Company has entered into a letter of intent or similar commitment for or entered into obligations relating to the opening of a retail store to be opened within the period of this covenant. Specifically, but without limiting the foregoing, the Executive agrees not to engage in any manner in any activity that is directly or indirectly competitive with the business of the Company or any of its Subsidiaries as conducted or which has been proposed by management within six months prior to termination of the Executive's employment. Restricted activity also includes without limitation accepting employment or a consulting position with any person who is, or at any time within twelve (12) months prior to termination of the Executive's employment has been, a licensee of the Company or any of its Subsidiaries. For the purposes of this Section 9, the business of the Company and its Subsidiaries shall mean retail operations for the sale of natural and organic foods, including groceries, meat, seafood, dairy and frozen products and produce, as well as natural vitamins, supplements, homeopathic remedies and body care products.
(B) The Executive agrees that during the Non-Competition Period or in connection with any termination of employment pursuant to which the Executive is entitled to benefits under Section 6.1, the Executive will not, either directly or through any agent or employee, Solicit any employee of the Company or any of its Subsidiaries to terminate his or her relationship with the Company or any of its Subsidiaries or to apply for or accept employment with any enterprise competitive with the business of the Company, or Solicit any customer, supplier, licensee or vendor of the Company or any of its Subsidiaries to terminate or materially modify its relationship with them, or, in the case of a customer, to conduct with any person any business or activity which such customer conducts or could conduct with the Company or any of its Subsidiaries.
(C) The Executive and the Company further agree that following any termination of the Executive's employment pursuant to which the Executive is entitled to benefits under Section 6.1, (i) the Executive shall not make statements or representations, otherwise communicate, directly or indirectly, in writing, orally, or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Company or any if its Subsidiaries or affiliates or leave their respective former or current officers, directors, employees, advisors, businesses or reputations, (ii) the Company shall instruct its Board members and senior management to not make statements or representations, otherwise communicate, directly, or indirectly, in writing, orally or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Executive or his reputation. The Executive and the Company further agree that, in the event the Executive's employment with the Company is terminated and/or consider employment with any other than by the Company for Cause person or as a result of the Executive's death, the Executive and the Company shall refer to the Executive's departure as a "resignation" in any press release or other external announcement or communication concerning the Executive's departure from the Company. Nothing in this paragraph is intended to undermine any obligations the Executive or the Company may have to comply with applicable law, or prohibit the Executive or the Company from providing truthful testimony or information pursuant to subpoena, court order, discovery demand or similar legal process, or truthfully responding to lawful inquiries by any governmental or regulatory entity.
(D) The provisions of this Section 9 shall not be deemed to preclude the Executive from employment or engagement during the Non-Competition Period following termination of employment hereunder (i) in a business engaged in retail sales, provided such employment or engagement does not otherwise violate the provisions of this Section 9, or (ii) by a corporation, some of the activities of which are competitive with the business of the Company, if the Executive's activities do not relate to such competitive business, and nothing contained in this Section 9 shall be deemed to prohibit the Executive, during the Non-Competition Period following termination of employment hereunder, from acquiring or holding, solely as an investment, publicly traded securities of any competitor corporation so long as such securities do not, in the aggregate, constitute more than 3% of the outstanding voting securities of such corporation.
(E) The Executive acknowledges that the Company and its Subsidiaries continually develop Confidential Information, that the Executive may develop Confidential Information for the Company or its Subsidiaries and that the Executive may learn of Confidential Information during the course of his employment under this Agreement. The Executive will comply with the policies and procedures of the Company and its Subsidiaries for protecting Confidential Information and shall never disclose to any person (except as required by applicable law or legal process or for the proper performance of his duties and responsibilities to the Company and its Subsidiaries, or in connection with any litigation between the Company and the Executive (provided that the Company shall be afforded a reasonable opportunity in each case to obtain a protective order)), or use for his own benefit or gain, any Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its Subsidiaries. The Executive understands that this restriction shall continue to apply after his employment terminates, regardless of the reason for such termination. All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the Company or its Subsidiaries and any copies, in whole or in part, thereof (the "Documents"), whether or not prepared by the Executive, shall be the sole and exclusive property of the Company and its Subsidiaries. The Executive shall safeguard all Documents and shall surrender to the Company at the time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive's possession or control.
(F) Without limiting the foregoing, it is understood that the Company shall not be obligated to make any of the payments or to provide for any of the benefits specified in Sections 6.1 and 6.2 hereof, and shall be entitled to recoup the pro rata portion of any such payments and of the value of any such benefits previously provided to the Executive in the event of a material breach by the Executive of the provisions of this Section 9 (such pro ration to be determined as a fraction, the numerator of which is the number of days from such breach to the second anniversary of the date on which the Executive terminates employment and the denominator of which is 730), which breach continues without having been cured within 15 days after written notice to the Executive specifying the breach in reasonable detail.
(G) The Executive and the Company agree that in the event the Executive seeks a reference from the Company in connection with any future or prospective employment, the Company's response to any such reference inquiry shall be limited to and consistent with the following: start and end dates of employment, position(s) held and last salary. For purposes of this Section 9, the following definitions shall apply:
Appears in 5 contracts
Sources: Employment Agreement (Integral Systems Inc /Md/), Employment Agreement (Integral Systems Inc /Md/), Employment Agreement (Integral Systems Inc /Md/)
Restrictive Covenants. The Executive agrees A. You hereby agree that, during (i) the six (6)-month period following a termination of your employment with the Company that restrictions on his activities during and after his employment are necessary entitles you to protect the goodwill, Confidential Information and other legitimate interests receive severance benefits under this Agreement or a written agreement with or policy of the Company and its Subsidiaries, and that or (ii) the agreed restrictions set forth below will not deprive the Executive twelve (12)-month period following a termination of the ability to earn a livelihood:
(A) While the Executive is in the your employment of with the Company and, if the Executive is entitled that does not entitle you to receive such severance benefits under Section 6.1 hereof upon termination of employment, for a period of twenty-four (24) months after such termination of employment (the "Non-Competition Period"period referred to in either clause (i) or (ii), the Executive “Restricted Period”), you shall notnot undertake any employment or activity (including, directly but not limited to, consulting services) with a Competitor (as defined below) in any geographic area in which the Company or indirectlyany of its affiliates operate (the “Market Area”), whether as ownerwhere the loyal and complete fulfillment of the duties of the competitive employment or activity would call upon you to reveal, partner, investor, consultant, agent, employee, co-venturer to make judgments on or otherwise, compete with otherwise use or disclose any confidential business information or trade secrets of the business of the Company or any of its Subsidiaries within a twenty (20) mile radius of any location where affiliates to which you had access during your employment with the Company operates a retail store at the date of termination of employment, or at which the Company has entered into a letter of intent or similar commitment for or entered into obligations relating to the opening of a retail store to be opened within the period Company. For purposes of this covenant. SpecificallySection, but without limiting the foregoing, the Executive agrees not “Competitor” shall refer to engage in any manner in any activity health maintenance organization or insurance company that is directly provides managed health care or indirectly competitive with the business of related services similar to those provided by the Company or any of its Subsidiaries as conducted or which has been proposed by management within six months prior to affiliates.
B. In addition, you agree that, during the applicable Restricted Period following termination of your employment with the Executive's employment. Restricted activity also includes without limitation accepting employment or a consulting position with any person who isCompany, or at any time within twelve (12) months prior to termination of the Executive's employment has been, a licensee of the Company or any of its Subsidiaries. For the purposes of this Section 9, the business of the Company and its Subsidiaries you shall mean retail operations for the sale of natural and organic foods, including groceries, meat, seafood, dairy and frozen products and produce, as well as natural vitamins, supplements, homeopathic remedies and body care products.
(B) The Executive agrees that during the Non-Competition Period or in connection with any termination of employment pursuant to which the Executive is entitled to benefits under Section 6.1, the Executive will not, either directly or through indirectly, (i) solicit, interfere with, hire, offer to hire or induce any agent person, who is or employee, Solicit any was an employee of the Company or any of its Subsidiaries affiliates at the time of such solicitation, interference, hiring, offering to terminate his hire or inducement, to discontinue his/her relationship with the Company or any of its Subsidiaries affiliates or to apply for or accept employment with any enterprise competitive with the business of the Companyby, or Solicit enter into a business relationship with, you or any customerother entity or person or (ii) solicit, supplier, licensee interfere with or vendor otherwise contact any customer or client of the Company or any of its Subsidiaries affiliates.
C. It is hereby further agreed that if any court of competent jurisdiction shall determine that the restrictions imposed in this Section 13 are unreasonable (including, but not limited to, the definition of Market Area or Competitor or the time period during which this provision is applicable), the parties hereto hereby agree to terminate or materially modify its relationship with them, or, in any restrictions that such court would find to be reasonable under the case circumstances.
D. You also acknowledge that the services to be rendered by you to the Company are of a customerspecial and unique character, which gives this Agreement a peculiar value to conduct with any person any business or activity which such customer conducts or could conduct with the Company or any of its Subsidiaries.
(C) The Executive affiliates, the loss of which may not be reasonably or adequately compensated for by damages in an action at law, and the Company further agree that following a material breach or threatened breach by you of any termination of the Executive's employment pursuant to which the Executive is entitled to benefits under Section 6.1, (i) the Executive shall not make statements or representations, otherwise communicate, directly or indirectly, in writing, orally, or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Company or any if its Subsidiaries or affiliates or their respective former or current officers, directors, employees, advisors, businesses or reputations, (ii) the Company shall instruct its Board members and senior management to not make statements or representations, otherwise communicate, directly, or indirectly, in writing, orally or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Executive or his reputation. The Executive and the Company further agree that, in the event the Executive's employment with the Company is terminated other than by the Company for Cause or as a result of the Executive's death, the Executive and the Company shall refer to the Executive's departure as a "resignation" in any press release or other external announcement or communication concerning the Executive's departure from the Company. Nothing in this paragraph is intended to undermine any obligations the Executive or the Company may have to comply with applicable law, or prohibit the Executive or the Company from providing truthful testimony or information pursuant to subpoena, court order, discovery demand or similar legal process, or truthfully responding to lawful inquiries by any governmental or regulatory entity.
(D) The provisions of this Section 9 shall not be deemed to preclude the Executive from employment or engagement during the Non-Competition Period following termination of employment hereunder (i) in a business engaged in retail sales, provided such employment or engagement does not otherwise violate the provisions of this Section 9, or (ii) by a corporation, some of the activities of which are competitive with the business of the Company, if the Executive's activities do not relate to such competitive business, and nothing contained in this Section 9 shall be deemed to prohibit the Executive, during the Non-Competition Period following termination of employment hereunder, from acquiring or holding, solely as an investment, publicly traded securities of any competitor corporation so long as such securities do not, in the aggregate, constitute more than 3% of the outstanding voting securities of such corporation.
(E) The Executive acknowledges that the Company and its Subsidiaries continually develop Confidential Information, that the Executive may develop Confidential Information for the Company or its Subsidiaries and that the Executive may learn of Confidential Information during the course of his employment under this Agreement. The Executive 13 will comply with the policies and procedures of the Company and its Subsidiaries for protecting Confidential Information and shall never disclose to any person (except as required by applicable law or legal process or for the proper performance of his duties and responsibilities to the Company and its Subsidiaries, or in connection with any litigation between the Company and the Executive (provided that the Company shall be afforded a reasonable opportunity in each case to obtain a protective order)), or use for his own benefit or gain, any Confidential Information obtained by the Executive incident to his employment or other association with cause the Company or any of its Subsidiariesaffiliates irreparable injury. The Executive understands that this restriction shall continue to apply after his employment terminates, regardless of the reason for such termination. All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the Company or its Subsidiaries and any copies, in whole or in part, thereof (the "Documents"), whether or not prepared by the Executive, shall be the sole and exclusive property of the Company and its Subsidiaries. The Executive shall safeguard all Documents and shall surrender to the Company at the time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive's possession or control.
(F) Without limiting the foregoing, it is understood You therefore agree that the Company shall not may be obligated entitled, in addition to make the remedies set forth above in this Section 13 and any other right or remedy, to a temporary, preliminary and permanent injunction, without the necessity of proving the payments inadequacy of monetary damages or to provide for any of the benefits specified in Sections 6.1 and 6.2 hereof, and shall be entitled to recoup the pro rata portion posting of any such payments and of the value of bond or security, enjoining or restraining you from any such benefits previously provided to the Executive in the event of a material breach by the Executive of the provisions of this Section 9 (such pro ration to be determined as a fraction, the numerator of which is the number of days from such breach to the second anniversary of the date on which the Executive terminates employment and the denominator of which is 730), which breach continues without having been cured within 15 days after written notice to the Executive specifying the breach in reasonable detailviolation or threatened violations.
(G) The Executive and the Company agree that in the event the Executive seeks a reference from the Company in connection with any future or prospective employment, the Company's response to any such reference inquiry shall be limited to and consistent with the following: start and end dates of employment, position(s) held and last salary. For purposes of this Section 9, the following definitions shall apply:
Appears in 4 contracts
Sources: Employment Agreement, Promotion Agreement (Health Net Inc), Employment Agreement (Health Net Inc)
Restrictive Covenants. The Executive agrees that restrictions on his activities during (i) Following the Distribution Date, TM shall use commercially reasonable efforts to monitor the TM Employees and after his employment are necessary Former TM Employees to protect the goodwill, Confidential Information and other legitimate interests determine whether any such TM Employees or Former TM Employees have breached any of the Company restrictive covenants in the agreements evidencing the terms of their IAC Options and its SubsidiariesIAC Awards. As soon as practicable following TM’s reasonable belief that a TM Employee or Former TM Employee has breached any such covenant, TM shall provide IAC in writing with the name and address of such employee or former employee and a description of the breach that such employee or former employee is believed to have committed. Notwithstanding the foregoing or anything in any agreement evidencing the terms of any IAC Options and IAC Awards or otherwise to the contrary, it shall not be a violation of any IAC non-competition or non-solicitation of clients or customers covenant for a TM Employee to engage in acts on behalf of TM or a TM Entity that are otherwise prohibited by the terms of such non-competition or non-solicitation of clients or customers covenants and it shall not be a violation of any TM non-competition or non-solicitation of clients or customers covenant for an IAC Employee to engage in acts on behalf of IAC or an IAC Entity that are otherwise prohibited by the terms of such non-competition or non-solicitation of clients or customers covenants. In addition, following the Effective Time, the restrictive covenants (including without limitation any proprietary rights agreements or confidential information covenants) to which any TM Employee or Former TM Employee are party shall run in favor of TM (and, to the extent relating to IAC, shall run in favor of IAC to the same extent that they ran in favor of IAC immediately prior to the Effective Time; provided, that the agreed restrictions set forth below will not deprive the Executive of the ability to earn Effective Time shall be treated as a livelihood:
(A) While the Executive is in the employment of the Company and, if the Executive is entitled to benefits under Section 6.1 hereof upon termination of employment, for a period of twenty-four (24) months after such termination of employment from IAC for purposes of the duration of IAC’s ability to enforce the restrictive covenant) and the restrictive covenants to which any IAC Employee or Former IAC Employee are party shall run in favor of IAC. Any employment agreement between IAC and a TM Employee or Former TM Employee shall as of the Effective Time be assigned by IAC to TM and assumed by TM.
(ii) Following the "Non-Competition Period")Distribution Date, Interval shall use commercially reasonable efforts to monitor the Executive Interval Employees and Former Interval Employees to determine whether any such Interval Employees or Former Interval Employees have breached any of the restrictive covenants in the agreements evidencing the terms of their IAC Options and IAC Awards. As soon as practicable following Interval’s reasonable belief that an Interval Employee or Former Interval Employee has breached any such covenant, Interval shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer or otherwise, compete provide IAC in writing with the business name and address of such employee or former employee and a description of the Company breach that such employee or former employee is believed to have committed. Notwithstanding the foregoing or anything in any of its Subsidiaries within a twenty (20) mile radius agreement evidencing the terms of any location where the Company operates a retail store at the date of termination of employment, IAC Options and IAC Awards or at which the Company has entered into a letter of intent or similar commitment for or entered into obligations relating otherwise to the opening contrary, it shall not be a violation of a retail store to be opened within the period any IAC non-competition or non-solicitation of this covenant. Specifically, but without limiting the foregoing, the Executive agrees not clients or customers covenant for an Interval Employee to engage in acts on behalf of Interval or an Interval Entity that are otherwise prohibited by the terms of such non-competition or non-solicitation of clients or customers covenants and it shall not be a violation of any manner Interval non-competition or non-solicitation of clients or customers covenant for an IAC Employee to engage in acts on behalf of IAC or an IAC Entity that are otherwise prohibited by the terms of such non-competition or non-solicitation of clients or customers covenants. In addition, following the Effective Time, the restrictive covenants (including without limitation any activity proprietary rights agreements or confidential information covenants) to which any Interval Employee or Former Interval Employee are party shall run in favor of Interval (and, to the extent relating to IAC, shall run in favor of IAC to the same extent that is directly or indirectly competitive with they ran in favor of IAC immediately prior to the business Effective Time; provided, that the Effective Time shall be treated as a termination of employment from IAC for purposes of the Company duration of IAC’s ability to enforce the restrictive covenant) and the restrictive covenants to which any IAC Employee or any Former IAC Employee are party shall run in favor of its Subsidiaries IAC. Any employment agreement between IAC and an Interval Employee or Former Interval Employee shall as conducted or which has been proposed by management within six months prior to termination of the Executive's employment. Restricted activity also includes without limitation accepting employment or a consulting position with any person who is, or at any time within twelve (12) months prior Effective Time be assigned by IAC to termination of the Executive's employment has been, a licensee of the Company or any of its Subsidiaries. For the purposes of this Section 9, the business of the Company Interval and its Subsidiaries shall mean retail operations for the sale of natural and organic foods, including groceries, meat, seafood, dairy and frozen products and produce, as well as natural vitamins, supplements, homeopathic remedies and body care productsassumed by Interval.
(Biii) The Executive agrees Following the Distribution Date, HSN shall use commercially reasonable efforts to monitor the HSN Employees and Former HSN Employees to determine whether any such HSN Employees or Former HSN Employees have breached any of the restrictive covenants in the agreements evidencing the terms of their IAC Options and IAC Awards. As soon as practicable following HSN’s reasonable belief that during an HSN Employee or Former HSN Employee has breached any such covenant, HSN shall provide IAC in writing with the Nonname and address of such employee or former employee and a description of the breach that such employee or former employee is believed to have committed. Notwithstanding the foregoing or anything in any agreement evidencing the terms of any IAC Options and IAC Awards or otherwise to the contrary, it shall not be a violation of any IAC non-Competition Period competition or non-solicitation of clients or customers covenant for an HSN Employee to engage in connection with acts on behalf of HSN or an HSN Entity that are otherwise prohibited by the terms of such non-competition or non-solicitation of clients or customers covenants and it shall not be a violation of any HSN non-competition or non-solicitation of clients or customers covenant for an IAC Employee to engage in acts on behalf of IAC or an IAC Entity that are otherwise prohibited by the terms of such non-competition or non-solicitation of clients or customers covenants. In addition, following the Effective Time, the restrictive covenants (including without limitation any proprietary rights agreements or confidential information covenants) to which any HSN Employee or Former HSN Employee are party shall run in favor of HSN (and, to the extent relating to IAC, shall run in favor of IAC to the same extent that they ran in favor of IAC immediately prior to the Effective Time; provided, that the Effective Time shall be treated as a termination of employment pursuant from IAC for purposes of the duration of IAC’s ability to enforce the restrictive covenant) and the restrictive covenants to which the Executive is entitled to benefits under Section 6.1, the Executive will not, either directly any IAC Employee or through any agent Former IAC Employee are party shall run in favor of IAC. Any employment agreement between IAC and an HSN Employee or employee, Solicit any employee Former HSN Employee shall as of the Company or any of its Subsidiaries Effective Time be assigned by IAC to terminate his or her relationship with the Company or any of its Subsidiaries or to apply for or accept employment with any enterprise competitive with the business of the Company, or Solicit any customer, supplier, licensee or vendor of the Company or any of its Subsidiaries to terminate or materially modify its relationship with them, or, in the case of a customer, to conduct with any person any business or activity which such customer conducts or could conduct with the Company or any of its SubsidiariesHSN and assumed by HSN.
(Civ) The Executive Following the Distribution Date, Tree shall use commercially reasonable efforts to monitor the Tree Employees and Former Tree Employees to determine whether any such Tree Employees or Former Tree Employees have breached any of the restrictive covenants in the agreements evidencing the terms of their IAC Options and IAC Awards. As soon as practicable following Tree’s reasonable belief that a Tree Employee or Former Tree Employee has breached any such covenant, Tree shall provide IAC in writing with the name and address of such employee or former employee and the Company further agree that following any termination name and a description of the Executive's employment pursuant breach that such employee or former employee is believed to which have committed. Notwithstanding the Executive is entitled to benefits under Section 6.1, (i) foregoing or anything in any agreement evidencing the Executive shall not make statements terms of any IAC Options and IAC Awards or representations, otherwise communicate, directly or indirectly, in writing, orally, or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Company or any if its Subsidiaries or affiliates or their respective former or current officerscontrary, directors, employees, advisors, businesses or reputations, (ii) the Company shall instruct its Board members and senior management to not make statements or representations, otherwise communicate, directly, or indirectly, in writing, orally or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Executive or his reputation. The Executive and the Company further agree that, in the event the Executive's employment with the Company is terminated other than by the Company for Cause or as a result of the Executive's death, the Executive and the Company shall refer to the Executive's departure as a "resignation" in any press release or other external announcement or communication concerning the Executive's departure from the Company. Nothing in this paragraph is intended to undermine any obligations the Executive or the Company may have to comply with applicable law, or prohibit the Executive or the Company from providing truthful testimony or information pursuant to subpoena, court order, discovery demand or similar legal process, or truthfully responding to lawful inquiries by any governmental or regulatory entity.
(D) The provisions of this Section 9 it shall not be deemed a violation of any IAC non-competition or non-solicitation of clients or customers covenant for a Tree Employee to preclude engage in acts on behalf of Tree or a Tree Entity that are otherwise prohibited by the Executive from employment terms of such non-competition or engagement during non-solicitation of clients or customers covenants and it shall not be a violation of any Tree non-competition or non-solicitation of clients or customers covenant for an IAC Employee to engage in acts on behalf of IAC or an IAC Entity that are otherwise prohibited by the Nonterms of such non-Competition Period competition or non-solicitation of clients or customers covenants. In addition, following the Effective Time, the restrictive covenants (including without limitation any proprietary rights agreements or confidential information covenants) to which any Tree Employee or Former Tree Employee are party shall run in favor of Tree (and, to the extent relating to IAC, shall run in favor of IAC to the same extent that they ran in favor of IAC immediately prior to the Effective Time; provided, that the Effective Time shall be treated as a termination of employment hereunder (i) in a business engaged in retail sales, provided such employment or engagement does not otherwise violate the provisions of this Section 9, or (ii) by a corporation, some from IAC for purposes of the activities duration of IAC’s ability to enforce the restrictive covenant) and the restrictive covenants to which any IAC Employee or Former IAC Employee are competitive with the business party shall run in favor of IAC. Any employment agreement between IAC and a Tree Employee or Former Tree Employee shall as of the Company, if the Executive's activities do not relate Effective Time be assigned by IAC to such competitive business, Tree and nothing contained in this Section 9 shall be deemed to prohibit the Executive, during the Non-Competition Period following termination of employment hereunder, from acquiring or holding, solely as an investment, publicly traded securities of any competitor corporation so long as such securities do not, in the aggregate, constitute more than 3% of the outstanding voting securities of such corporationassumed by Tree.
(E) The Executive acknowledges that the Company and its Subsidiaries continually develop Confidential Information, that the Executive may develop Confidential Information for the Company or its Subsidiaries and that the Executive may learn of Confidential Information during the course of his employment under this Agreement. The Executive will comply with the policies and procedures of the Company and its Subsidiaries for protecting Confidential Information and shall never disclose to any person (except as required by applicable law or legal process or for the proper performance of his duties and responsibilities to the Company and its Subsidiaries, or in connection with any litigation between the Company and the Executive (provided that the Company shall be afforded a reasonable opportunity in each case to obtain a protective order)), or use for his own benefit or gain, any Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its Subsidiaries. The Executive understands that this restriction shall continue to apply after his employment terminates, regardless of the reason for such termination. All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the Company or its Subsidiaries and any copies, in whole or in part, thereof (the "Documents"), whether or not prepared by the Executive, shall be the sole and exclusive property of the Company and its Subsidiaries. The Executive shall safeguard all Documents and shall surrender to the Company at the time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive's possession or control.
(F) Without limiting the foregoing, it is understood that the Company shall not be obligated to make any of the payments or to provide for any of the benefits specified in Sections 6.1 and 6.2 hereof, and shall be entitled to recoup the pro rata portion of any such payments and of the value of any such benefits previously provided to the Executive in the event of a material breach by the Executive of the provisions of this Section 9 (such pro ration to be determined as a fraction, the numerator of which is the number of days from such breach to the second anniversary of the date on which the Executive terminates employment and the denominator of which is 730), which breach continues without having been cured within 15 days after written notice to the Executive specifying the breach in reasonable detail.
(G) The Executive and the Company agree that in the event the Executive seeks a reference from the Company in connection with any future or prospective employment, the Company's response to any such reference inquiry shall be limited to and consistent with the following: start and end dates of employment, position(s) held and last salary. For purposes of this Section 9, the following definitions shall apply:
Appears in 4 contracts
Sources: Employee Matters Agreement (Interval Leisure Group, Inc.), Employee Matters Agreement (HSN, Inc.), Employee Matters Agreement (Tree.com, Inc.)
Restrictive Covenants. The (a) Executive acknowledges and agrees that his position with the Company places him in a position of confidence and trust with respect to Proprietary Information. Executive consequently agrees that it is reasonable and necessary for the protection of the goodwill of the Business that Executive make the covenants contained herein. Accordingly, Executive agrees that, during the Term of this Agreement and for a period of twelve (12) months after the date of expiration or termination of Executive’s employment hereunder for any reason whatsoever, Executive will not, without the prior written consent of the Company and provided that the Company has not failed to make any payments to the Executive when due in accordance with the provisions of Section 6 hereof and otherwise comply with the terms and conditions of this Agreement, (i) employ, solicit or encourage to leave the employ of the Company, or to become employed by any person other than the Company, any employee of the Company, or any individual who was an employee of the Company during the one year prior to the termination or expiration of Executive’s employment, (ii) persuade or attempt to persuade any customer of the Company as of the date of the termination or expiration of Executive’s employment or during the one year prior to the termination or expiration of Executive’s employment to cease doing business with, or to reduce the amount of business it does with, the Company, or solicit the business of any of the Company’s customers as of the date of the termination or expiration during the one year prior to the termination or expiration of Executive’s employment hereunder with respect to any product or service which competes with the products and services of the Company as of the date of termination of Executive’s employment or (iii) compete with the Company as a consultant to, employee of, or equity participant in, any venture which competes with the Business within the United States of America. No provision of this Section 10 shall prohibit Executive from merely owning (i.e., having no participation or involvement in the management) no more than three percent (3%) of the outstanding equity securities of any actively traded public entity.
(b) Executive has carefully considered the nature and extent of the restrictions on his activities during upon him and after his employment the rights and remedies conferred upon the Company under Sections 10 and 11 of this Agreement and hereby acknowledges and agrees that the same are necessary reasonable in time and territory, are designed to avoid competition which otherwise would be unfair to the Company, do not stifle the inherent skill and experience of Executive, would not operate as a bar to Executive’s sole means of support, are required to protect the goodwill, Confidential Information and other legitimate interests of the Company and its Subsidiaries, and that the agreed restrictions set forth below will do not deprive the Executive of the ability to earn confer a livelihood:
(A) While the Executive is in the employment of benefit upon the Company and, if the Executive is entitled to benefits under Section 6.1 hereof upon termination of employment, for a period of twenty-four (24) months after such termination of employment (the "Non-Competition Period"), the Executive shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer or otherwise, compete with the business of the Company or any of its Subsidiaries within a twenty (20) mile radius of any location where the Company operates a retail store at the date of termination of employment, or at which the Company has entered into a letter of intent or similar commitment for or entered into obligations relating disproportionate to the opening of a retail store to be opened within the period of this covenant. Specifically, but without limiting the foregoing, the benefit otherwise afforded Executive agrees not to engage in any manner in any activity that is directly or indirectly competitive with the business of the Company or any of its Subsidiaries as conducted or which has been proposed by management within six months prior to termination of the Executive's employment. Restricted activity also includes without limitation accepting employment or a consulting position with any person who is, or at any time within twelve (12) months prior to termination of the Executive's employment has been, a licensee of the Company or any of its Subsidiaries. For the purposes of this Section 9, the business of the Company and its Subsidiaries shall mean retail operations for the sale of natural and organic foods, including groceries, meat, seafood, dairy and frozen products and produce, as well as natural vitamins, supplements, homeopathic remedies and body care products.
(B) The Executive agrees that during the Non-Competition Period or in connection with any termination of employment pursuant to which the Executive is entitled to benefits under Section 6.1, the Executive will not, either directly or through any agent or employee, Solicit any employee of the Company or any of its Subsidiaries to terminate his or her relationship with the Company or any of its Subsidiaries or to apply for or accept employment with any enterprise competitive with the business of the Company, or Solicit any customer, supplier, licensee or vendor of the Company or any of its Subsidiaries to terminate or materially modify its relationship with them, or, in the case of a customer, to conduct with any person any business or activity which such customer conducts or could conduct with the Company or any of its Subsidiaries.
(C) The Executive and the Company further agree that following any termination of the Executive's employment pursuant to which the Executive is entitled to benefits under Section 6.1, (i) the Executive shall not make statements or representations, otherwise communicate, directly or indirectly, in writing, orally, or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Company or any if its Subsidiaries or affiliates or their respective former or current officers, directors, employees, advisors, businesses or reputations, (ii) the Company shall instruct its Board members and senior management to not make statements or representations, otherwise communicate, directly, or indirectly, in writing, orally or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Executive or his reputation. The Executive and the Company further agree that, in the event the Executive's employment with the Company is terminated other than by the Company for Cause or as a result of the Executive's death, the Executive and the Company shall refer to the Executive's departure as a "resignation" in any press release or other external announcement or communication concerning the Executive's departure from the Company. Nothing in this paragraph is intended to undermine any obligations the Executive or the Company may have to comply with applicable law, or prohibit the Executive or the Company from providing truthful testimony or information pursuant to subpoena, court order, discovery demand or similar legal process, or truthfully responding to lawful inquiries by any governmental or regulatory entity.
(D) The provisions of this Section 9 shall not be deemed to preclude the Executive from employment or engagement during the Non-Competition Period following termination of employment hereunder (i) in a business engaged in retail sales, provided such employment or engagement does not otherwise violate the provisions of this Section 9, or (ii) by a corporation, some of the activities of which are competitive with the business of the Company, if the Executive's activities do not relate to such competitive business, and nothing contained in this Section 9 shall be deemed to prohibit the Executive, during the Non-Competition Period following termination of employment hereunder, from acquiring or holding, solely as an investment, publicly traded securities of any competitor corporation so long as such securities do not, in the aggregate, constitute more than 3% of the outstanding voting securities of such corporation.
(E) The Executive acknowledges that the Company and its Subsidiaries continually develop Confidential Information, that the Executive may develop Confidential Information for the Company or its Subsidiaries and that the Executive may learn of Confidential Information during the course of his employment under this Agreement. The Executive will comply with the policies and procedures of the Company and its Subsidiaries for protecting Confidential Information and shall never disclose to any person (except as required by applicable law or legal process or for the proper performance of his duties and responsibilities to the Company and its Subsidiaries, or in connection with any litigation between the Company and the Executive (provided that the Company shall be afforded a reasonable opportunity in each case to obtain a protective order)), or use for his own benefit or gain, any Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its Subsidiaries. The Executive understands that this restriction shall continue to apply after his employment terminates, regardless of the reason for such termination. All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the Company or its Subsidiaries and any copies, in whole or in part, thereof (the "Documents"), whether or not prepared by the Executive, shall be the sole and exclusive property of the Company and its Subsidiaries. The Executive shall safeguard all Documents and shall surrender to the Company at the time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive's possession or control.
(F) Without limiting the foregoing, it is understood that the Company shall not be obligated to make any of the payments or to provide for any of the benefits specified in Sections 6.1 and 6.2 hereof, and shall be entitled to recoup the pro rata portion of any such payments and of the value of any such benefits previously provided to the Executive in the event of a material breach by the Executive of the provisions of this Section 9 (such pro ration to be determined as a fraction, the numerator of which is the number of days from such breach to the second anniversary of the date on which the Executive terminates employment and the denominator of which is 730), which breach continues without having been cured within 15 days after written notice to the Executive specifying the breach in reasonable detail.
(G) The Executive and the Company agree that in the event the Executive seeks a reference from the Company in connection with any future or prospective employment, the Company's response to any such reference inquiry shall be limited to and consistent with the following: start and end dates of employment, position(s) held and last salary. For purposes of this Section 9, the following definitions shall apply:
Appears in 4 contracts
Sources: Employment Agreement (Castle Brands Inc), Employment Agreement (Castle Brands Inc), Employment Agreement (Castle Brands Inc)
Restrictive Covenants. The (a) COVENANT-NOT-TO-COMPETE. In consideration of Company's agreements contained herein and the payments to be made by it to Executive pursuant hereto, Executive agrees that restrictions on his activities during and after his employment are necessary to protect the goodwill, Confidential Information and other legitimate interests of the Company and its Subsidiaries, and that the agreed restrictions set forth below will not deprive the Executive of the ability to earn a livelihood:
(A) While the Executive is in the employment of the Company and, if the Executive is entitled to benefits under Section 6.1 hereof upon termination of employmentthat, for a period of twenty-four time equal to the time remaining in the Initial Term or any Renewal Term (24or if, but only if, a court or tribunal of final authority finds that this period is unenforceable because it is unreasonably long, then, if it would shorten the duration, for one (1) months after such year) following his termination of employment (and so long as Company is continuously not in default of its obligations to provide payments or employment-type benefits to Executive hereunder or under any other agreement, covenant, or obligation, he will not, without prior written consent of Company, consult with or act as an advisor to another company about activity which is a "Competing Business" of such company in the "Non-Competition Period")Restricted Territory, the as defined below. For purposes of this Agreement, Executive shall notbe deemed to be engaged in a "Competing Business" if, directly or indirectlyin any capacity, whether as ownerincluding but not limited to proprietor, shareholder, partner, investorofficer, consultant, agent, employee, co-venturer or otherwise, compete with the business of the Company or any of its Subsidiaries within a twenty (20) mile radius of any location where the Company operates a retail store at the date of termination of employment, or at which the Company has entered into a letter of intent or similar commitment for or entered into obligations relating to the opening of a retail store to be opened within the period of this covenant. Specifically, but without limiting the foregoing, the Executive agrees not to engage in any manner in any activity that is directly or indirectly competitive with the business of the Company or any of its Subsidiaries as conducted or which has been proposed by management within six months prior to termination of the Executive's employment. Restricted activity also includes without limitation accepting employment or a consulting position with any person who is, or at any time within twelve (12) months prior to termination of the Executive's employment has been, a licensee of the Company or any of its Subsidiaries. For the purposes of this Section 9, the business of the Company and its Subsidiaries shall mean retail operations for the sale of natural and organic foods, including groceries, meat, seafood, dairy and frozen products and produce, as well as natural vitamins, supplements, homeopathic remedies and body care products.
(B) The Executive agrees that during the Non-Competition Period or in connection with any termination of employment pursuant to which the Executive is entitled to benefits under Section 6.1, the Executive will not, either directly or through any agent director or employee, Solicit any employee of the Company he engages or any of its Subsidiaries to terminate his or her relationship with the Company or any of its Subsidiaries or to apply for or accept employment with any enterprise competitive with the business of the Company, or Solicit any customer, supplier, licensee or vendor of the Company or any of its Subsidiaries to terminate or materially modify its relationship with them, or, in the case of a customer, to conduct with any person any business or activity which such customer conducts or could conduct with the Company or any of its Subsidiaries.
(C) The Executive and the Company further agree that following any termination of the Executive's employment pursuant to which the Executive is entitled to benefits under Section 6.1, (i) the Executive shall not make statements or representations, otherwise communicateparticipates, directly or indirectly, in writingthe operation, orallyownership or management of the activity of any proprietorship, partnership, company or other business entity which activity is competitive with the then actual business in which Company is engaged on the date of, or otherwiseany business contemplated by the Company's business plan in effect on the date of notice of, or take any action which may, directly, or indirectly, disparage or be damaging to the Company or any if its Subsidiaries or affiliates or their respective former or current officers, directors, employees, advisors, businesses or reputations, (ii) the Company shall instruct its Board members and senior management to not make statements or representations, otherwise communicate, directly, or indirectly, in writing, orally or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Executive or his reputation. The Executive and the Company further agree that, in the event the Executive's employment with the Company is terminated other than by the Company for Cause or as a result termination of the Executive's death, the Executive and the Company shall refer to the Executive's departure as a "resignation" in any press release or other external announcement or communication concerning the Executive's departure from the Companyemployment. Nothing in this paragraph subparagraph is intended to undermine any obligations the Executive or the Company may have limit Executive's ability to comply with applicable law, or prohibit the Executive or the Company from providing truthful testimony or information pursuant to subpoena, court order, discovery demand or similar legal process, or truthfully responding to lawful inquiries by any governmental or regulatory entity.
(D) The provisions of this Section 9 shall not be deemed to preclude the Executive from employment or engagement during the Non-Competition Period following termination of employment hereunder (i) own equity in a business public company constituting less than five percent (5%) of the outstanding equity of such company, when Executive is not actively engaged in retail salesthe management thereof. If requested by Executive, provided such employment or engagement does not otherwise violate the provisions of this Section 9, or (ii) by Company shall furnish Executive with a corporation, some good-faith written description of the business or businesses in which Company is then actively engaged or which is contemplated by the Company's current business plan within 30 days after such request is made, and only those activities of so timely described in which Company is, in fact, actively engaged or which are so contemplated may be treated as activities which are competitive with the business of the Company, if the Executive's activities do not relate to such competitive business, and nothing contained in this Section 9 shall be deemed to prohibit the Executive, during the Non-Competition Period following termination of employment hereunder, from acquiring or holding, solely as an investment, publicly traded securities of any competitor corporation so long as such securities do not, in the aggregate, constitute more than 3% of the outstanding voting securities of such corporation.
(E) The Executive acknowledges that the Company and its Subsidiaries continually develop Confidential Information, that the Executive may develop Confidential Information for the Company or its Subsidiaries and that the Executive may learn of Confidential Information during the course of his employment under this Agreement. The Executive will comply with the policies and procedures of the Company and its Subsidiaries for protecting Confidential Information and shall never disclose to any person (except as required by applicable law or legal process or for the proper performance of his duties and responsibilities to the Company and its Subsidiaries, or in connection with any litigation between the Company and the Executive (provided that the Company shall be afforded a reasonable opportunity in each case to obtain a protective order)), or use for his own benefit or gain, any Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its Subsidiaries. The Executive understands that this restriction shall continue to apply after his employment terminates, regardless of the reason for such termination. All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the Company or its Subsidiaries and any copies, in whole or in part, thereof (the "Documents"), whether or not prepared by the Executive, shall be the sole and exclusive property of the Company and its Subsidiaries. The Executive shall safeguard all Documents and shall surrender to the Company at the time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive's possession or control.
(F) Without limiting the foregoing, it is understood that the Company shall not be obligated to make any of the payments or to provide for any of the benefits specified in Sections 6.1 and 6.2 hereof, and shall be entitled to recoup the pro rata portion of any such payments and of the value of any such benefits previously provided to the Executive in the event of a material breach by the Executive of the provisions of this Section 9 (such pro ration to be determined as a fraction, the numerator of which is the number of days from such breach to the second anniversary of the date on which the Executive terminates employment and the denominator of which is 730), which breach continues without having been cured within 15 days after written notice to the Executive specifying the breach in reasonable detail.
(G) The Executive and the Company agree that in the event the Executive seeks a reference from the Company in connection with any future or prospective employment, the Company's response to any such reference inquiry shall be limited to and consistent with the following: start and end dates of employment, position(s) held and last salary. For purposes of this Section 9, the following definitions shall apply:
Appears in 3 contracts
Sources: Employment Agreement (Insight Enterprises Inc), Employment Agreement (Insight Enterprises Inc), Employment Agreement (Insight Enterprises Inc)
Restrictive Covenants. The (a) Executive agrees that restrictions on acknowledges his activities during and after his employment are necessary to protect the goodwill, Confidential Information and other legitimate interests ongoing obligations under Section 5 of the Company Employment Agreement. Sections 5(e) and its Subsidiaries, 5(f) of the Employment Agreement are hereby incorporated by reference and that the agreed restrictions will apply to this Agreement as if set forth below will not deprive the Executive of the ability herein. The enforcement terms set forth therein shall apply to earn a livelihood:
(A) While the Executive is in the employment of the Company and, if the Executive is entitled to benefits under Section 6.1 hereof upon termination of employment, for a period of twenty-four (24) months after such termination of employment (the "Non-Competition Period"), the Executive shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer or otherwise, compete with the business of the Company or any of its Subsidiaries within a twenty (20) mile radius of any location where the Company operates a retail store at the date of termination of employment, or at which the Company has entered into a letter of intent or similar commitment for or entered into obligations relating to the opening of a retail store to be opened within the period of this covenant. Specifically, but without limiting the foregoing, the Executive agrees not to engage in any manner in any activity that is directly or indirectly competitive with the business of the Company or any of its Subsidiaries as conducted or which has been proposed by management within six months prior to termination of the Executive's employment. Restricted activity also includes without limitation accepting employment or a consulting position with any person who is, or at any time within twelve (12) months prior to termination of the Executive's employment has been, a licensee of the Company or any of its Subsidiaries. For the purposes of this Section 9, the business of the Company and its Subsidiaries shall mean retail operations for the sale of natural and organic foods, including groceries, meat, seafood, dairy and frozen products and produce, as well as natural vitamins, supplements, homeopathic remedies and body care products4.
(Bb) The Executive agrees that during the Non-Competition Period or in connection with any termination of employment pursuant to which the Executive is entitled to benefits under Section 6.1, the Executive will not, either directly or through any agent or employee, Solicit any employee of the Company or any of its Subsidiaries to terminate his or her relationship with the Company or any of its Subsidiaries or to apply for or accept employment with any enterprise competitive with the business of the Company, or Solicit any customer, supplier, licensee or vendor of the Company or any of its Subsidiaries to terminate or materially modify its relationship with them, or, in the case of a customer, to conduct with any person any business or activity which such customer conducts or could conduct with the Company or any of its Subsidiaries.
(C) The Executive and the Company further agree that following any termination of the Executive's employment pursuant to which the Executive is entitled to benefits under Section 6.1, (i) the Executive shall not make statements or representations, otherwise communicate, directly or indirectly, in writing, orally, or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Company or any if its Subsidiaries or affiliates or their respective former or current officers, directors, employees, advisors, businesses or reputations, (ii) the Company shall instruct its Board members and senior management to not make statements or representations, otherwise communicate, directly, or indirectly, in writing, orally or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Executive or his reputation. The Executive and the Company further agree that, in the event the Executive's employment with the Company is terminated other than by the Company for Cause or as a result of the Executive's death, the Executive and the Company shall refer to the Executive's departure as a "resignation" in any press release or other external announcement or communication concerning the Executive's departure from the Company. Nothing in this paragraph is intended to undermine any obligations the Executive or the Company may have to comply with applicable law, or prohibit the Executive or the Company from providing truthful testimony or information pursuant to subpoena, court order, discovery demand or similar legal process, or truthfully responding to lawful inquiries by any governmental or regulatory entity.
(D) The provisions of this Section 9 shall not be deemed to preclude the Executive from employment or engagement during the Non-Competition Period following termination of employment hereunder (i) in a business engaged in retail sales, provided such employment or engagement does not otherwise violate the provisions of this Section 9, or (ii) by a corporation, some of the activities of which are competitive with the business of the Company, if the Executive's activities do not relate to such competitive business, and nothing contained in this Section 9 shall be deemed to prohibit the Executive, during the Non-Competition Period following termination of employment hereunder, from acquiring or holding, solely as an investment, publicly traded securities of any competitor corporation so long as such securities do not, in the aggregate, constitute more than 3% of the outstanding voting securities of such corporation.
(E) The Executive acknowledges that the Company and its Subsidiaries continually develop Confidential Information, that the Executive may develop Confidential Information for the Company or its Subsidiaries and that the Executive may learn of Confidential Information during the course of his employment under this Agreement. The Executive will comply with the policies and procedures Company, he became become familiar with the trade secrets of the Company and its Subsidiaries for protecting with other Confidential Information and shall never disclose to any person (except as required by applicable law or legal process or for defined in the proper performance of his duties and responsibilities to Restrictive Covenant Agreement) concerning the Company and its Subsidiariespredecessors and that Executive’s services were of special, unique and extraordinary value to the Company. Therefore, Executive agrees that, during the period of one year immediately following the termination of Executive’s employment (the “Non-Competition Restricted Period”), Executive shall not directly or indirectly own any interest in, manage, control, participate in, consult with, render services for, be employed in an executive, managerial, administrative or other capacity by, or in connection any manner engage in, any business or entity competing with the Business (as defined in the Restrictive Covenant Agreement) in any litigation between country in which Executive had a material presence or the Company and conducts business during the Executive (provided that last two years of Executive’s employment or in which the Company has material plans to conduct business as of the termination of Executive’s employment. Nothing herein shall be afforded prohibit Executive from being a reasonable opportunity passive owner of not more than 2% of the outstanding stock of any class of a corporation which is publicly traded, so long as Executive has no active participation in each case the business of such corporation. In the event Executive breaches his fiduciary duty to obtain a protective order)), or use for his own benefit or gain, any Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its Subsidiaries. The Executive understands that this restriction shall continue to apply after his employment terminatesunlawfully takes, regardless of the reason for such termination. All documentsphysically or electronically, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the Company or its Subsidiaries and any copies, in whole or in part, thereof (the "Documents"), whether or not prepared by the Executive, shall be the sole and exclusive property of the Company and its Subsidiaries. The Executive shall safeguard all Documents and shall surrender belonging to the Company as reasonably determined by the Company, the Non-Competition Restricted Period as defined above shall be extended for one additional year, for a maximum period of two years immediately following his termination of employment from the Company. Further, in the event Executive breaches this Section 4(b), the Non-Competition Restricted Period shall extend for each day of Executive’s non-compliance, so as to give the Company the bargained for benefit of Executive’s non-competition covenants.
(c) If, at the time his employment terminatesof enforcement of this Section 4, a court shall hold that the duration, scope or at area restrictions stated herein are unreasonable under circumstances then existing, the parties agree that the maximum duration, scope or area reasonable under such earlier time circumstances shall be substituted for the stated duration, scope or times as area and that the Board or its designee may specifycourt shall be allowed to revise the restrictions contained herein to cover the maximum period, all Documents then in the Executive's possession or controlscope and area permitted by law.
(Fd) Without limiting the foregoing, it is understood Executive acknowledges that the Company shall not be obligated restrictions contained in this Section 4 are reasonable and that Executive has been provided an opportunity to make any of the payments or to provide for any of the benefits specified in Sections 6.1 and 6.2 hereof, and shall be entitled to recoup the pro rata portion of any such payments and of the value of any such benefits previously provided to the Executive in the event of a material breach by the Executive of review the provisions of this Section 9 (such pro ration to be determined as a fraction, the numerator of which is the number of days from such breach to the second anniversary of the date on which the Executive terminates employment and the denominator of which is 730), which breach continues without having been cured within 15 days after written notice to the Executive specifying the breach in reasonable detailAgreement with his legal counsel.
(G) The Executive and the Company agree that in the event the Executive seeks a reference from the Company in connection with any future or prospective employment, the Company's response to any such reference inquiry shall be limited to and consistent with the following: start and end dates of employment, position(s) held and last salary. For purposes of this Section 9, the following definitions shall apply:
Appears in 3 contracts
Sources: Employment Agreement (CG Oncology, Inc.), Employment Agreement (CG Oncology, Inc.), Employment Agreement (CG Oncology, Inc.)
Restrictive Covenants. The A. As an inducement for Company’s agreement to employ Executive, to provide Executive with trade secrets and other Confidential Information, and to enter into this Agreement, Executive hereby agrees that restrictions on his activities during and after his employment are necessary to protect the goodwill, Confidential Information and other legitimate interests of the Company and its SubsidiariesTerm, and that the agreed restrictions set forth below will not deprive the Executive of the ability to earn a livelihood:
(A) While the Executive is in the employment of the Company and, if the Executive is entitled to benefits under Section 6.1 hereof upon termination of employment, for a period of twenty-four (24) full calendar months after such (i) the expiration of the Term (as the same may be extended) or (ii) the termination of Executive’s employment with the Company for whatever reason or cause (the "Non-Competition Period"whichever may occur later), or for the maximum period of time permitted by law, whichever is less, Executive shall not, whether for profit or not, whether on his own behalf or on behalf of any person or firm in any capacity whatsoever, engage in the “Prohibited Activity” (as hereinafter defined) within the “Relevant Geographical Area” (as hereinafter defined). Serving as a partner, member, trustee, receiver, custodian, manager, stockholder, officer, director, owner, joint venturer, associate, employee, consultant, adviser or in any other capacity whatsoever with respect to any person or firm engaged in the Prohibited Activity within the Relevant Geographical Area shall be conclusively deemed engagement in the Prohibited Activity within the Relevant Geographical Area regardless of whether such service is for profit or whether such person or firm engages in the Prohibited Activity for profit . In this Agreement, the phrase “Prohibited Activity” shall mean, directly or indirectly: (i) soliciting the Company’s customers; or (ii) working independently or for any person or firm involved in any business engaged in by the Company and/or by any of its subsidiaries or affiliates during the Term, whether as ownerincluding, partnerwithout limitation, investorsteel fabrication. For purposes of this Agreement, consultant, agent, employee, co-venturer or otherwise, compete with the business phrase “Relevant Geographical Area” shall mean the area within political boundaries of the State of Texas and any and all other areas in which the Company or any of its Subsidiaries within a twenty (20) mile radius of any location where the Company operates a retail store at the date of termination of employment, or at which the Company has entered into a letter of intent or similar commitment for or entered into obligations relating to the opening of a retail store to be opened within the period of this covenant. Specifically, but without limiting the foregoing, the Executive agrees not to engage in any manner in any activity that is directly or indirectly competitive with the business of the Company or any of its Subsidiaries as conducted or which has been proposed by management within six months prior to termination of the Executive's employment. Restricted activity also includes without limitation accepting employment or a consulting position with any person who is, or at any time within twelve (12) months prior to termination of the Executive's employment has been, a licensee of the Company or any of its Subsidiaries. For the purposes of this Section 9, the business of the Company and its Subsidiaries shall mean retail operations for the sale of natural and organic foods, including groceries, meat, seafood, dairy and frozen products and produce, as well as natural vitamins, supplements, homeopathic remedies and body care products.
(B) The Executive agrees that during the Non-Competition Period or in connection with any termination of employment pursuant to which the Executive is entitled to benefits under Section 6.1, the Executive will not, either directly or through any agent or employee, Solicit any employee of the Company or any of its Subsidiaries to terminate his or her relationship with the Company or any of its Subsidiaries or to apply for or accept employment with any enterprise competitive with the business of the Company, or Solicit any customer, supplier, licensee or vendor of the Company or any of its Subsidiaries to terminate or materially modify its relationship with them, or, in the case of a customer, to conduct with any person any business or activity which such customer conducts or could conduct with the Company or any of its Subsidiaries.
(C) The Executive and the Company further agree that following any termination of the Executive's employment pursuant to which the Executive is entitled to benefits under Section 6.1, (i) the Executive shall not make statements or representations, otherwise communicate, directly or indirectly, in writing, orally, or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Company or any if its Subsidiaries subsidiaries or affiliates or their respective former or current officerstransact business; provided, directorshowever, employees, advisors, businesses or reputations, (ii) if the Company shall instruct its Board members and senior management to not make statements or representations, otherwise communicate, directly, or indirectly, in writing, orally or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Executive or his reputation. The Executive and the Company further agree that, in the event the Executive's employment with the Company is terminated other than by the Company for Cause or as a result of the Executive's death, the Executive and the Company shall refer to the Executive's departure as a "resignation" in any press release or other external announcement or communication concerning the Executive's departure from the Company. Nothing geographic area defined in this paragraph is intended to undermine Agreement Paragraph 10.A. exceeds the maximum geographic area permitted by law or for any obligations the Executive or the Company may have to comply with applicable law, or prohibit the Executive or the Company from providing truthful testimony or information pursuant to subpoena, court order, discovery demand or similar legal process, or truthfully responding to lawful inquiries by any governmental or regulatory entity.
(D) The provisions of this Section 9 shall not be deemed to preclude the Executive from employment or engagement during the Non-Competition Period following termination of employment hereunder (i) in a business engaged in retail sales, provided such employment or engagement other reason does not otherwise violate state a geographic area within which the provisions of this Section 9Paragraph 10 A. are enforceable, or (ii) by a corporation, some of the activities of which are competitive with the business of the Company, if the Executive's activities do not relate to such competitive business, and nothing contained in this Section 9 shall be deemed to prohibit the Executive, during the Non-Competition Period following termination of employment hereunder, from acquiring or holding, solely as an investment, publicly traded securities of any competitor corporation so long as such securities do not, in the aggregate, constitute more than 3% of the outstanding voting securities of such corporation.
(E) The Executive acknowledges that the Company and its Subsidiaries continually develop Confidential Information, that the Executive may develop Confidential Information for the Company or its Subsidiaries and that the Executive may learn of Confidential Information during the course of his employment under this Agreement. The Executive will comply with the policies and procedures of the Company and its Subsidiaries for protecting Confidential Information and shall never disclose to any person (except as required by applicable law or legal process or for the proper performance of his duties and responsibilities to the Company and its Subsidiaries, or in connection with any litigation between the Company and the Executive (provided that the Company shall be afforded a reasonable opportunity in each case to obtain a protective order)), or use for his own benefit or gain, any Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its Subsidiaries. The Executive understands that this restriction shall continue to apply after his employment terminates, regardless of the reason for such termination. All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the Company or its Subsidiaries and any copies, in whole or in part, thereof (the "Documents"), whether or not prepared by the Executive, shall be the sole and exclusive property of the Company and its Subsidiaries. The Executive shall safeguard all Documents and shall surrender to the Company at the time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive's possession or control.
(F) Without limiting the foregoing, it is understood that the Company shall not be obligated to make any of the payments or to provide for any of the benefits specified in Sections 6.1 and 6.2 hereof, and shall be entitled to recoup the pro rata portion of any such payments and of the value of any such benefits previously provided to the Executive in the event of a material breach by the Executive of the provisions of this Section 9 (Paragraph 10 A. shall apply within the maximum geographic area permitted by law in which such pro ration to be determined as a fraction, the numerator of which is the number of days from such breach to the second anniversary of the date on which the Executive terminates employment and the denominator of which is 730), which breach continues without having been cured within 15 days after written notice to the Executive specifying the breach in reasonable detailprovisions are enforceable.
(G) The Executive and the Company agree that in the event the Executive seeks a reference from the Company in connection with any future or prospective employment, the Company's response to any such reference inquiry shall be limited to and consistent with the following: start and end dates of employment, position(s) held and last salary. For purposes of this Section 9, the following definitions shall apply:
Appears in 3 contracts
Sources: Employment Agreement (Shumate Industries Inc), Employment Agreement (Shumate Industries Inc), Employment Agreement (Shumate Industries Inc)
Restrictive Covenants. The (a) Executive acknowledges and agrees that his position with the Company places him in a position of confidence and trust with respect to Proprietary Information. Executive consequently agrees that it is reasonable and necessary for the protection of the goodwill of the Business that Executive make the covenants contained herein. Accordingly, Executive agrees that, during the Term of this Agreement and for a period of eighteen (18) months after the date of expiration or termination of Executive’s employment hereunder for any reason whatsoever, Executive will not, without the prior written consent of the Company and provided that the Company has not failed to make any payments to the Executive when due in accordance with the provisions of Section 6 hereof and otherwise comply with the terms and conditions of this Agreement, (i) employ, solicit or encourage to leave the employ of the Company, or to become employed by any person other than the Company, any employee of the Company, or any individual who was an employee of the Company during the one year prior to the termination or expiration of Executive’s employment, (ii) persuade or attempt to persuade any customer of the Company as of the date of the termination or expiration of Executive’s employment, or during the one year prior to the termination or expiration of Executive’s employment, to cease doing business with, or to reduce the amount of business it does with, the Company, or solicit the business of any of the Company’s customers as of the date of the termination or expiration of Executive’s employment, or during the one year prior to the termination or expiration of Executive’s employment hereunder with respect to any product or service which competes with the products and services of the Company as of the date of termination of Executive’s employment or (iii) compete with the Company as a consultant to, employee of, or equity participant in, any venture which competes with the Business within the United States of America. No provision of this Section 10 shall prohibit Executive from merely owning (i.e., having no participation or involvement in the management) no more than three percent (3%) of the outstanding equity securities of any actively traded public entity. Notwithstanding anything contained herein to the contrary, in the event that Executive’s employment is terminated by Executive for Good Reason or by the Company or any successor without Cause in connection with, or during the twenty-four (24) month period following, a Change of Control, the provisions of Sections 10 and 22 of this Agreement shall not apply to Executive.
(b) Executive has carefully considered the nature and extent of the restrictions on his activities during upon him and after his employment the rights and remedies conferred upon the Company under Sections 10 and 11 of this Agreement and hereby acknowledges and agrees that the same are necessary reasonable in time and territory, are designed to avoid competition which otherwise would be unfair to the Company, do not stifle the inherent skill and experience of Executive, would not operate as a bar to Executive’s sole means of support, are required to protect the goodwill, Confidential Information and other legitimate interests of the Company and its Subsidiaries, and that the agreed restrictions set forth below will do not deprive the Executive of the ability to earn confer a livelihood:
(A) While the Executive is in the employment of benefit upon the Company and, if the Executive is entitled to benefits under Section 6.1 hereof upon termination of employment, for a period of twenty-four (24) months after such termination of employment (the "Non-Competition Period"), the Executive shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer or otherwise, compete with the business of the Company or any of its Subsidiaries within a twenty (20) mile radius of any location where the Company operates a retail store at the date of termination of employment, or at which the Company has entered into a letter of intent or similar commitment for or entered into obligations relating disproportionate to the opening of a retail store to be opened within the period of this covenant. Specifically, but without limiting the foregoing, the benefit otherwise afforded Executive agrees not to engage in any manner in any activity that is directly or indirectly competitive with the business of the Company or any of its Subsidiaries as conducted or which has been proposed by management within six months prior to termination of the Executive's employment. Restricted activity also includes without limitation accepting employment or a consulting position with any person who is, or at any time within twelve (12) months prior to termination of the Executive's employment has been, a licensee of the Company or any of its Subsidiaries. For the purposes of this Section 9, the business of the Company and its Subsidiaries shall mean retail operations for the sale of natural and organic foods, including groceries, meat, seafood, dairy and frozen products and produce, as well as natural vitamins, supplements, homeopathic remedies and body care products.
(B) The Executive agrees that during the Non-Competition Period or in connection with any termination of employment pursuant to which the Executive is entitled to benefits under Section 6.1, the Executive will not, either directly or through any agent or employee, Solicit any employee of the Company or any of its Subsidiaries to terminate his or her relationship with the Company or any of its Subsidiaries or to apply for or accept employment with any enterprise competitive with the business of the Company, or Solicit any customer, supplier, licensee or vendor of the Company or any of its Subsidiaries to terminate or materially modify its relationship with them, or, in the case of a customer, to conduct with any person any business or activity which such customer conducts or could conduct with the Company or any of its Subsidiaries.
(C) The Executive and the Company further agree that following any termination of the Executive's employment pursuant to which the Executive is entitled to benefits under Section 6.1, (i) the Executive shall not make statements or representations, otherwise communicate, directly or indirectly, in writing, orally, or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Company or any if its Subsidiaries or affiliates or their respective former or current officers, directors, employees, advisors, businesses or reputations, (ii) the Company shall instruct its Board members and senior management to not make statements or representations, otherwise communicate, directly, or indirectly, in writing, orally or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Executive or his reputation. The Executive and the Company further agree that, in the event the Executive's employment with the Company is terminated other than by the Company for Cause or as a result of the Executive's death, the Executive and the Company shall refer to the Executive's departure as a "resignation" in any press release or other external announcement or communication concerning the Executive's departure from the Company. Nothing in this paragraph is intended to undermine any obligations the Executive or the Company may have to comply with applicable law, or prohibit the Executive or the Company from providing truthful testimony or information pursuant to subpoena, court order, discovery demand or similar legal process, or truthfully responding to lawful inquiries by any governmental or regulatory entity.
(D) The provisions of this Section 9 shall not be deemed to preclude the Executive from employment or engagement during the Non-Competition Period following termination of employment hereunder (i) in a business engaged in retail sales, provided such employment or engagement does not otherwise violate the provisions of this Section 9, or (ii) by a corporation, some of the activities of which are competitive with the business of the Company, if the Executive's activities do not relate to such competitive business, and nothing contained in this Section 9 shall be deemed to prohibit the Executive, during the Non-Competition Period following termination of employment hereunder, from acquiring or holding, solely as an investment, publicly traded securities of any competitor corporation so long as such securities do not, in the aggregate, constitute more than 3% of the outstanding voting securities of such corporation.
(E) The Executive acknowledges that the Company and its Subsidiaries continually develop Confidential Information, that the Executive may develop Confidential Information for the Company or its Subsidiaries and that the Executive may learn of Confidential Information during the course of his employment under this Agreement. The Executive will comply with the policies and procedures of the Company and its Subsidiaries for protecting Confidential Information and shall never disclose to any person (except as required by applicable law or legal process or for the proper performance of his duties and responsibilities to the Company and its Subsidiaries, or in connection with any litigation between the Company and the Executive (provided that the Company shall be afforded a reasonable opportunity in each case to obtain a protective order)), or use for his own benefit or gain, any Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its Subsidiaries. The Executive understands that this restriction shall continue to apply after his employment terminates, regardless of the reason for such termination. All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the Company or its Subsidiaries and any copies, in whole or in part, thereof (the "Documents"), whether or not prepared by the Executive, shall be the sole and exclusive property of the Company and its Subsidiaries. The Executive shall safeguard all Documents and shall surrender to the Company at the time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive's possession or control.
(F) Without limiting the foregoing, it is understood that the Company shall not be obligated to make any of the payments or to provide for any of the benefits specified in Sections 6.1 and 6.2 hereof, and shall be entitled to recoup the pro rata portion of any such payments and of the value of any such benefits previously provided to the Executive in the event of a material breach by the Executive of the provisions of this Section 9 (such pro ration to be determined as a fraction, the numerator of which is the number of days from such breach to the second anniversary of the date on which the Executive terminates employment and the denominator of which is 730), which breach continues without having been cured within 15 days after written notice to the Executive specifying the breach in reasonable detail.
(G) The Executive and the Company agree that in the event the Executive seeks a reference from the Company in connection with any future or prospective employment, the Company's response to any such reference inquiry shall be limited to and consistent with the following: start and end dates of employment, position(s) held and last salary. For purposes of this Section 9, the following definitions shall apply:
Appears in 3 contracts
Sources: Employment Agreement (Castle Brands Inc), Employment Agreement (Castle Brands Inc), Employment Agreement (Castle Brands Inc)
Restrictive Covenants. The Executive has executed and delivered a Confidentiality, Non-Competition and Confirmatory Assignment Agreement prior to or contemporaneous with the date of this Agreement (together with any similar or successor agreements, referred to herein as the “Restrictive Covenants”), and Executive agrees that restrictions on his activities during and after his employment are necessary to protect that, as part of this Agreement, Executive shall comply with the goodwill, Confidential Information and other legitimate interests terms of the Company and its SubsidiariesRestrictive Covenants. Notwithstanding Section 10(iii) of this Agreement, and that the agreed restrictions set forth below will not deprive the if (a) Executive of the ability to earn a livelihood:
(A) While the Executive is in the terminates employment of the Company other than for Good Reason and, if the Executive thus, is not entitled to the payments and benefits under Section 6.1 hereof upon termination 10(ii) of employmentthis Agreement, for and (b)(i) Executive receives a period of twenty-four (24) months after such termination written offer of employment (the "Non-Competition Period"), the Executive shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer or otherwise, compete with the business of the Company or any of its Subsidiaries within a twenty (20) mile radius of any location where the Company operates a retail store at the date of termination of employment, or at which the Company has entered into a letter of intent or similar commitment for or entered into obligations relating to the opening of a retail store to be opened within the period of this covenant. Specifically, but without limiting the foregoing, the Executive agrees not to engage in any manner in any activity that is directly or indirectly competitive with the business of the Company or any of its Subsidiaries as conducted or which has been proposed by management within six months prior to termination of the Executive's employment. Restricted activity also includes without limitation accepting employment or a consulting position with any person who is, or at any time within twelve (12) months prior to termination of the Executive's employment has been, a licensee of the Company or any of its Subsidiaries. For the purposes of this Section 9, the business of the Company and its Subsidiaries shall mean retail operations for the sale of natural and organic foods, including groceries, meat, seafood, dairy and frozen products and produce, as well as natural vitamins, supplements, homeopathic remedies and body care products.
(B) The Executive agrees that during the Non-Competition Period or set forth in connection with any termination of employment pursuant to which the Executive is entitled to benefits under Section 6.1, the Executive will not, either directly or through any agent or employee, Solicit any employee 2(a) of the Company or any of its Subsidiaries to terminate his or her relationship with the Company or any of its Subsidiaries or to apply for or accept employment with any enterprise competitive with the business of the CompanyRestrictive Covenant, or Solicit any customer, supplier, licensee or vendor of the Company or any of its Subsidiaries to terminate or materially modify its relationship with them, or, in the case of a customer, to conduct with any person any business or activity which such customer conducts or could conduct with the Company or any of its Subsidiaries.
(C) The Executive and the Company further agree that following any termination of the Executive's employment pursuant to which the Executive is entitled to benefits under Section 6.1, (i) the Executive shall not make statements or representations, otherwise communicate, directly or indirectly, in writing, orally, or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Company or any if its Subsidiaries or affiliates or their respective former or current officers, directors, employees, advisors, businesses or reputations, (ii) Executive is not able to find suitable employment in Executive’s field in relation to Executive’s skills, position and base salary, which employment would not contravene Section 2(a) of the Company Restrictive Covenant, after a good faith effort by Executive to search for such employment, and (iii) the Corporation notifies Executive that it intends to enforce the non-compete provisions of such Section 2(a) against Executive, then the Corporation shall instruct its Board members and senior management pay to not make statements or representations, otherwise communicate, directly, or indirectly, in writing, orally or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging Executive an amount equal to the Executive or his reputation. The Executive and semi-monthly amount of Executive’s Base Salary for each semi-monthly payroll period beginning (A) on the Company further agree that, in the event the Executive's employment with the Company is terminated other than by the Company for Cause or as a result effective date of the Executive's deathwritten offer of employment referred to above or (B) during the period in which Executive is not able to find suitable employment, and ending on the Executive and earliest to occur of (I) the Company shall refer to the Executive's departure as a "resignation" in any press release or other external announcement or communication concerning the Executive's departure from the Company. Nothing in this paragraph is intended to undermine any obligations the Executive or the Company may have to comply with applicable law, or prohibit the Executive or the Company from providing truthful testimony or information pursuant to subpoena, court order, discovery demand or similar legal process, or truthfully responding to lawful inquiries by any governmental or regulatory entity.
(D) The provisions end of this Section 9 shall not be deemed to preclude the Executive from employment or engagement during the Non-Competition Period following termination of employment hereunder (i) set forth in a business engaged in retail sales, provided such employment or engagement does not otherwise violate the provisions of this Section 92(a), or (iiII) by a corporationthe date as of which Executive begins new employment with an employer, some which employment would not contravene Section 2(a) of the activities Restrictive Covenant. For the avoidance of which are competitive with doubt, the business non-competition and other provisions of the Company, if Restrictive Covenants in all events shall continue to apply until the Executive's activities do not relate to such competitive business, and nothing contained in this Section 9 shall be deemed to prohibit the Executive, during end of the Non-Competition Period following termination of employment hereunder, from acquiring or holding, solely as an investment, publicly traded securities of any competitor corporation so long as such securities do not, set forth in the aggregate, constitute more than 3% Section 2(a) of the outstanding voting securities of such corporation.
(E) The Executive acknowledges that the Company and its Subsidiaries continually develop Confidential Information, that the Executive may develop Confidential Information for the Company or its Subsidiaries and that the Executive may learn of Confidential Information during the course of his employment under this Agreement. The Executive will comply with the policies and procedures of the Company and its Subsidiaries for protecting Confidential Information and shall never disclose to any person (except as required by applicable law or legal process or for the proper performance of his duties and responsibilities to the Company and its Subsidiaries, or in connection with any litigation between the Company and the Executive (provided that the Company shall be afforded a reasonable opportunity in each case to obtain a protective order)), or use for his own benefit or gain, any Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its Subsidiaries. The Executive understands that this restriction shall continue to apply after his employment terminatesRestrictive Covenant, regardless of the reason for such termination. All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, Executive’s new employment with an employer that would not contravene Section 2(a) of the Company or its Subsidiaries and any copiesRestrictive Covenant, in whole or in part, thereof (the "Documents"), whether or not prepared by the Executive, shall be the sole and exclusive property subsequent termination of the Company and its Subsidiaries. The Executive shall safeguard all Documents and shall surrender to the Company at the time his employment terminatessuch employment, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive's possession or controlany other event.
(F) Without limiting the foregoing, it is understood that the Company shall not be obligated to make any of the payments or to provide for any of the benefits specified in Sections 6.1 and 6.2 hereof, and shall be entitled to recoup the pro rata portion of any such payments and of the value of any such benefits previously provided to the Executive in the event of a material breach by the Executive of the provisions of this Section 9 (such pro ration to be determined as a fraction, the numerator of which is the number of days from such breach to the second anniversary of the date on which the Executive terminates employment and the denominator of which is 730), which breach continues without having been cured within 15 days after written notice to the Executive specifying the breach in reasonable detail.
(G) The Executive and the Company agree that in the event the Executive seeks a reference from the Company in connection with any future or prospective employment, the Company's response to any such reference inquiry shall be limited to and consistent with the following: start and end dates of employment, position(s) held and last salary. For purposes of this Section 9, the following definitions shall apply:
Appears in 3 contracts
Sources: Employment Agreement (Ipg Photonics Corp), Employment Agreement (Ipg Photonics Corp), Employment Agreement (Ipg Photonics Corp)
Restrictive Covenants. (a) The parties hereto agree that as used herein “Confidential Information” means all information which becomes known to Executive as a consequence of his employment by the Company and includes, but is not limited to, information about the Company’s customers, methods of operation, prospective and executed contracts, trade secrets, business contacts, customer lists, and all technological, business, financial, accounting, statistical and personnel information regarding the Company. The parties hereto further agree and stipulate that this Confidential Information was developed by the Company at considerable expense, that this information is a valuable asset and part of the Company’s goodwill, that this information is vital to the Company’s success and is the sole property of the Company.
(b) Executive recognizes and acknowledges that during his employment by the Company, Executive has, or will, become familiar with the Company’s Confidential Information.
(c) Executive recognizes and acknowledges that the Company is engaged in the business of building satellite ground systems and equipment for command and control, integration and test, data processing and simulation (the “Business”). The Business is a highly competitive enterprise, so that any unauthorized disclosure or unauthorized use by Executive of the Confidential Information protected under this Agreement, whether during his employment with the Company or after its termination, would cause immediate, substantial and irreparable injury to the Business and the goodwill of the Company.
(d) Executive agrees that restrictions on his activities during and after upon termination of his employment are necessary with the Company for any reason, whether voluntary or involuntary or with or without Cause, he will surrender to protect the goodwill, Company every item and every document which is the Company’s property or will completely remove from Executive’s personal property such Confidential Information in whatever form (e.g. cell phones, PDA’s, personal computers, etc.). All such documents and other legitimate interests Confidential Information are the sole and absolute property of the Company. At the written request of the Company, Executive shall provide the designated representative of the Company a certificate containing the following statement: “Executive hereby certifies that he has notified the Company’s designated representative of all Confidential Information residing on any personal property of Executive to which Executive is aware of after due review and its Subsidiariesinspection and has removed and destroyed (unless otherwise directed in writing by the Company) all Confidential Information from all personal property of Executive.” Thereafter, in the event that Executive becomes aware of any further Confidential Information on Executive’s personal property, Executive shall notify the Company in writing and again comply with the immediately preceding sentence.
(e) Executive agrees that during his employment and following the termination of that employment for any reason, whether voluntary or involuntary or with or without Cause, he will not, on his own behalf or as a partner, officer, director, employee, agent, or consultant of any other person or entity, directly or indirectly, disclose the Company’s Confidential Information to any person or entity other than agents of the Company, and that the agreed restrictions set forth below he will not deprive use or aid others in obtaining or using any such Confidential Information. Executive’s obligations under this Section 5.1(e) shall not be deemed violated in the event that (i) Executive discloses any Confidential Information pursuant to order of a court of competent jurisdiction, provided Executive has notified the Company of such potential legal order and provided the Company with the opportunity to challenge or limit the scope of the ability disclosure, or (ii) the information becomes generally available from a source other than the Company, any of its affiliates, or any of their employees when such source is not legally prohibited, to earn a livelihood:the best of Executive’s knowledge, from making such information available.
(Af) While the Executive is All inventions, prototypes, discoveries, improvements, and innovations (“Inventions”) and all works of original authorship or images that are fixed in any tangible medium of expression and all copies thereof (“Works”) which are designed, created or developed by Executive, solely or in conjunction with others, in the course of performance of Executive’s duties which relate to the Business, shall be made or conceived for the exclusive benefit of and shall be the exclusive property of the Company. Executive shall immediately notify the Company upon the design, creation or development of all Inventions and Works. At any time thereafter, Executive, at the request and expense of the Company, shall execute and deliver to the Company all documents or instruments which may be necessary to secure or perfect the Company’s title to or interest in the Inventions and Works, including but not limited to applications for letters of patent, and extensions, continuations or reissues thereof, applications for copyrights and documents or instruments of assignment or transfer. All Works are agreed and stipulated to be “works made for hire,” as that term is used and understood within the Copyright Act of 1976, as amended or any successor statute. To the extent any Works are not deemed to be works made for hire as defined above, and to the extent that title to or ownership of any Invention or Work and all other rights therein are not otherwise vested exclusively in the Company, Executive shall, without further consideration but at the expense of the Company, assign and transfer to the Company Executive’s entire right, title and interest (including copyrights and patents) in or to those Inventions and Works.
(g) Executive agrees that during his employment with the Company and for a period commencing on the termination of such employment and ending twelve (12) months thereafter, he will not, on his own behalf or as a partner, officer, director, employee, agent, or consultant of any other person or entity, directly or indirectly, engage or attempt to engage in a business which competes against the Business of the Company andin any geographic area in which the Company engages in the Business. This subsection shall not be construed as precluding Executive from working as an employee or consultant for a separate business unit of a competitor of the Company, if the separate business unit is not in competition with the Business.
(h) Executive is entitled to benefits under Section 6.1 hereof upon termination of employment, agrees that during his employment and for a period of twenty-four (24) months after such the termination of employment (the "Non-Competition Period")such employment, the Executive shall whether voluntary or involuntary or with or without Cause, he will not, on his own behalf or as a partner, officer, director, employee, agent, or consultant of any other person or entity, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer solicit or otherwise, compete with the business induce (or attempt to solicit or induce) any employees of the Company or any of its Subsidiaries within a twenty (20) mile radius of any location where the Company operates a retail store at the date of termination of employment, or at which the Company has entered into a letter of intent or similar commitment for or entered into obligations relating to the opening of a retail store to be opened within the period of this covenant. Specifically, but without limiting the foregoing, the Executive agrees not to engage in any manner in any activity that is directly or indirectly competitive with the business of the Company or any of its Subsidiaries as conducted or which has been proposed by management within six months prior to termination of the Executive's employment. Restricted activity also includes without limitation accepting employment or a consulting position with any person who is, or at any time within twelve (12) months prior to termination of the Executive's employment has been, a licensee of the Company or any of its Subsidiaries. For the purposes of this Section 9, the business of the Company and its Subsidiaries shall mean retail operations for the sale of natural and organic foods, including groceries, meat, seafood, dairy and frozen products and produce, as well as natural vitamins, supplements, homeopathic remedies and body care products.
(B) The Executive agrees that during the Non-Competition Period or in connection with any termination of employment pursuant to which the Executive is entitled to benefits under Section 6.1, the Executive will not, either directly or through any agent or employee, Solicit any employee of the Company or any of its Subsidiaries to terminate his or her relationship with the Company or any of its Subsidiaries or to apply for or accept employment with any enterprise competitive with the business of the Company, or Solicit any customer, supplier, licensee or vendor of the Company or any of its Subsidiaries to terminate or materially modify its relationship with them, or, in the case of a customer, to conduct with any person any business or activity which such customer conducts or could conduct with the Company or any of its Subsidiaries.
(C) The Executive and the Company further agree that following any termination of the Executive's employment pursuant to which the Executive is entitled to benefits under Section 6.1, (i) the Executive shall not make statements or representations, otherwise communicate, directly or indirectly, in writing, orally, or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Company or any if its Subsidiaries or affiliates or leave their respective former or current officers, directors, employees, advisors, businesses or reputations, (ii) the Company shall instruct its Board members and senior management to not make statements or representations, otherwise communicate, directly, or indirectly, in writing, orally or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Executive or his reputation. The Executive and the Company further agree that, in the event the Executive's employment with the Company is terminated and/or consider employment with any other than by the Company for Cause person or as a result of the Executive's death, the Executive and the Company shall refer to the Executive's departure as a "resignation" in any press release or other external announcement or communication concerning the Executive's departure from the Company. Nothing in this paragraph is intended to undermine any obligations the Executive or the Company may have to comply with applicable law, or prohibit the Executive or the Company from providing truthful testimony or information pursuant to subpoena, court order, discovery demand or similar legal process, or truthfully responding to lawful inquiries by any governmental or regulatory entity.
(D) The provisions of this Section 9 shall not be deemed to preclude the Executive from employment or engagement during the Non-Competition Period following termination of employment hereunder (i) in a business engaged in retail sales, provided such employment or engagement does not otherwise violate the provisions of this Section 9, or (ii) by a corporation, some of the activities of which are competitive with the business of the Company, if the Executive's activities do not relate to such competitive business, and nothing contained in this Section 9 shall be deemed to prohibit the Executive, during the Non-Competition Period following termination of employment hereunder, from acquiring or holding, solely as an investment, publicly traded securities of any competitor corporation so long as such securities do not, in the aggregate, constitute more than 3% of the outstanding voting securities of such corporation.
(E) The Executive acknowledges that the Company and its Subsidiaries continually develop Confidential Information, that the Executive may develop Confidential Information for the Company or its Subsidiaries and that the Executive may learn of Confidential Information during the course of his employment under this Agreement. The Executive will comply with the policies and procedures of the Company and its Subsidiaries for protecting Confidential Information and shall never disclose to any person (except as required by applicable law or legal process or for the proper performance of his duties and responsibilities to the Company and its Subsidiaries, or in connection with any litigation between the Company and the Executive (provided that the Company shall be afforded a reasonable opportunity in each case to obtain a protective order)), or use for his own benefit or gain, any Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its Subsidiaries. The Executive understands that this restriction shall continue to apply after his employment terminates, regardless of the reason for such termination. All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the Company or its Subsidiaries and any copies, in whole or in part, thereof (the "Documents"), whether or not prepared by the Executive, shall be the sole and exclusive property of the Company and its Subsidiaries. The Executive shall safeguard all Documents and shall surrender to the Company at the time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive's possession or control.
(F) Without limiting the foregoing, it is understood that the Company shall not be obligated to make any of the payments or to provide for any of the benefits specified in Sections 6.1 and 6.2 hereof, and shall be entitled to recoup the pro rata portion of any such payments and of the value of any such benefits previously provided to the Executive in the event of a material breach by the Executive of the provisions of this Section 9 (such pro ration to be determined as a fraction, the numerator of which is the number of days from such breach to the second anniversary of the date on which the Executive terminates employment and the denominator of which is 730), which breach continues without having been cured within 15 days after written notice to the Executive specifying the breach in reasonable detail.
(G) The Executive and the Company agree that in the event the Executive seeks a reference from the Company in connection with any future or prospective employment, the Company's response to any such reference inquiry shall be limited to and consistent with the following: start and end dates of employment, position(s) held and last salary. For purposes of this Section 9, the following definitions shall apply:
Appears in 2 contracts
Sources: Employment Agreement (Integral Systems Inc /Md/), Employment Agreement (Integral Systems Inc /Md/)
Restrictive Covenants. (a) The services of the Executive are unique and extraordinary and essential to the business of the Company, especially since the Executive shall have access to the Company’s customer lists, trade secrets and other privileged and confidential information essential to the Company’s business. Therefore, the Executive agrees that restrictions on his activities during that, as a material inducement to, and after his employment are necessary a condition precedent to protect the goodwill, Confidential Information and other legitimate interests of the Company Company’s payment obligations hereunder and its Subsidiaries, and that the agreed restrictions set forth below will not deprive the Executive of the ability to earn a livelihood:
(A) While the Executive is in the employment of the Company andother covenants herein, if the Executive is entitled to benefits under Section 6.1 hereof upon termination term of employmentthe Executive’s employment hereunder shall expire or the Executive’s employment shall at any time terminate for any reason whatsoever, for a period of twenty-four (24) months after such termination of employment (the "Non-Competition Period")Cause or Without Cause, for Good Reason or without Good Reason, the Executive shall notwill not at any time within one (1) year after such expiration or termination (the “Restrictive Covenant Period”), without the prior written approval of the Company, directly or indirectly, whether individually or as ownera principal, officer, stockholder, equity participant, employee, partner, investorjoint venturer, consultantmember, agentmanager, employeedirector or agent of, co-venturer or otherwiselender, compete with consultant or independent contractor to, any Person, or in any other capacity, other than on behalf of or for the business benefit of the Company or any Company:
(i) anywhere in the United States of its Subsidiaries within a twenty (20) mile radius of any location where the Company operates a retail store at the date of termination of employmentAmerica, or at which the Company has entered into a letter of intent or similar commitment for or entered into obligations relating to the opening of a retail store to be opened within the period of this covenant. Specifically, but without limiting the foregoing, the Executive agrees not to engage in any manner in any activity that is directly or indirectly indirectly, engage or participate in a business which, as of such expiration or termination date, is similar to or competitive with the business of the Company as of the Termination Date, as described in the Company’s Securities and Exchange Commission (the “SEC”) filings (or, in the event that the Company is not subject to the SEC disclosure requirements, then as described on the Company’s website (the “Business”)), wherein Executive shall be performing the same or similar duties as he performed for the Company, or if Executive is likely to use or disclose confidential or proprietary information of the Company. For the sake of clarity, the Company’s Business is focused on stem-cell based therapies, including autologous hypoxic disc treatments and the use of brown adipose stem cells for treating metabolic disorders. Notwithstanding the foregoing, Executive may acquire, as a passive investor, up to five percent (5%) of the outstanding voting stock of any entity whose securities are listed on a stock exchange or NASDAQ;
(ii) cause, seek to persuade or solicit any director, officer, employee, customer, account, agent or supplier of, or consultant or independent contractor to, the Company or others with whom the Company has had a business relationship (collectively, “Business Associates”) to discontinue or materially modify the status, employment or other relationship of its Subsidiaries as conducted such Business Associate with the Company, or to become employed in any activity similar to or competitive with the Business of the Company;
(iii) cause, seek to persuade or solicit, any prospective customer, account, supplier or other Business Associate of the Company (which has been proposed by management within six months prior to termination at the date of cessation of the Executive's employment. Restricted activity also includes without limitation accepting ’s employment or a consulting position with any person who isthe Company was then, or at any time within twelve (12) months prior to termination the knowledge of the Executive's employment has been, actively being solicited by the Company) to determine not to enter into a licensee of the Company or any of its Subsidiaries. For the purposes of this Section 9, the business of the Company and its Subsidiaries shall mean retail operations for the sale of natural and organic foods, including groceries, meat, seafood, dairy and frozen products and produce, as well as natural vitamins, supplements, homeopathic remedies and body care products.
(B) The Executive agrees that during the Non-Competition Period or in connection with any termination of employment pursuant to which the Executive is entitled to benefits under Section 6.1, the Executive will not, either directly or through any agent or employee, Solicit any employee of the Company or any of its Subsidiaries to terminate his or her relationship with the Company or to materially modify its contemplated business relationship;
(iv) hire, retain, engage or associate in a business relationship with, directly or indirectly, any employee of its Subsidiaries the Company; or
(v) solicit from or cause or authorize to apply be solicited from, for or accept employment with on behalf of the Executive or any enterprise third party, any business which is similar to or competitive with the business Business of the Company, or Solicit enter into a similar or competitive business relationship with, (a) others who are, or were within one (l) year prior to the cessation of the Executive’s employment with the Company, customers, accounts or other Business Associates of the Company, or (b) any prospective customer, supplier, licensee account or vendor other Business Associate of the Company or any which at the date of its Subsidiaries to terminate or materially modify its relationship with them, or, in the case of a customersuch cessation was then, to conduct with any person any business or activity which such customer conducts or could conduct with the Executive’s knowledge, actively being solicited by the Company. The foregoing restrictions set forth in this Section 7 shall apply likewise during the Employment Period and all references to “Business” shall be deemed to refer to the then Business of the Company or any of its Subsidiariesduring the Employment Period.
(Cb) The Executive For purposes of this Section 7, the term “Company” shall mean and include the Company further agree that following and any termination and all Subsidiaries and Affiliates of the Executive's employment Company in existence from time to time.
(c) Executive acknowledges the benefits provided or made available to him pursuant to which the provisions of this Agreement, including, without limitation, the agreement on the part of the Company to employ the Executive is entitled to benefits under Section 6.1, during the Employment Period (i) the Executive shall not make statements or representations, otherwise communicate, directly or indirectly, in writing, orally, or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging subject to the Company or any if its Subsidiaries or affiliates or their respective former or current officers, directors, employees, advisors, businesses or reputations, (iiterms and conditions hereof) constitute sufficient consideration for the Company shall instruct its Board members and senior management to not make statements or representations, otherwise communicate, directly, or indirectly, restrictions contained in writing, orally or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Executive or his reputationthis Section 7 . The Executive also acknowledges and agrees that the covenants set forth in this Section 7 are reasonable and necessary in order to protect and maintain the proprietary and other legitimate business interests of the Company further agree that, in and that the event the Executive's employment with the Company is terminated other than by the Company for Cause or as a result of the Executive's death, enforcement thereof would not prevent the Executive and the Company shall refer to the Executive's departure as from earning a "resignation" in any press release or other external announcement or communication concerning the Executive's departure from the Company. Nothing in this paragraph is intended to undermine any obligations the Executive or the Company may have to comply with applicable law, or prohibit the Executive or the Company from providing truthful testimony or information pursuant to subpoena, court order, discovery demand or similar legal process, or truthfully responding to lawful inquiries by any governmental or regulatory entitylivelihood.
(Dd) The provisions of this Section 9 shall not be deemed to preclude the Company and Executive from employment or engagement during the Non-Competition Period following termination of employment hereunder agree (ia) in a business engaged in retail sales, provided such employment or engagement does not otherwise violate that the provisions of this Section 97 do not impose an undue hardship on Executive and are not injurious to the public, (b) that these provisions are necessary to protect the Business of Company, (c) that the nature of Executive’s responsibilities with Company under this Agreement provide and/or will provide Executive with access to Confidential Information, proprietary information, or (ii) by a corporation, some of the activities of which trade secrets that are competitive with the business of the valuable and confidential to Company, (d) that Company would not have entered into this Agreement with Executive if Executive did not agree to the Executive's activities do provisions of this Section 7, (e) that Company would not relate have provided the Cash Severance Amount or any other consideration outlined in this Agreement if Executive did not agree to such competitive businessthe provisions of this Section 7, (f) that the provisions of this Section 7 are reasonable in terms of length of time and scope, and nothing contained in (g) that adequate consideration supports the provisions of this Section 9 7. In the event that a court determines that any provision of this Section 7 are unreasonably broad or extensive, Executive agrees that such court should narrow such provision to the extent necessary to make it reasonable and enforce the provisions as narrowed. If such partial enforcement is not possible, the provision shall be deemed to prohibit the Executive, during the Non-Competition Period following termination of employment hereunder, severed from acquiring or holding, solely as an investment, publicly traded securities of any competitor corporation so long as such securities do not, in the aggregate, constitute more than 3% of the outstanding voting securities of such corporation.
(E) The Executive acknowledges that the Company and its Subsidiaries continually develop Confidential Information, that the Executive may develop Confidential Information for the Company or its Subsidiaries and that the Executive may learn of Confidential Information during the course of his employment under this Agreement. The Executive will comply with the policies Company reserves all rights to seek any and procedures of the Company all remedies and its Subsidiaries for protecting Confidential Information damages permitted under law including, but not limited to, injunctive relief, equitable relief, and shall never disclose to any person (except as required by applicable law or legal process or for the proper performance of his duties and responsibilities to the Company and its Subsidiaries, or in connection with any litigation between the Company and the Executive (provided that the Company shall be afforded a reasonable opportunity in each case to obtain a protective order)), or use for his own benefit or gain, any Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its Subsidiaries. The Executive understands that this restriction shall continue to apply after his employment terminates, regardless of the reason for such termination. All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the Company or its Subsidiaries and any copies, in whole or in part, thereof (the "Documents"), whether or not prepared by the Executive, shall be the sole and exclusive property of the Company and its Subsidiaries. The Executive shall safeguard all Documents and shall surrender to the Company at the time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive's possession or control.
(F) Without limiting the foregoing, it is understood that the Company shall not be obligated to make any of the payments or to provide compensatory damages for any breach of Executive’s obligations under this Section 7, without the benefits specified in Sections 6.1 and 6.2 hereof, and shall be entitled obligation to recoup the pro rata portion of post or provide any such payments and of the value of any such benefits previously provided to the Executive in bond. In the event of a material Executive breaches or threatens to breach by the Executive any of the provisions of this Section 9 (such pro ration to be determined 7, Company shall immediately cease payment of any Cash Severance Amount, or other amounts due under this Agreement, as a fraction, the numerator of which is the number of days from such breach to the second anniversary of the date on which the Executive terminates employment and the denominator of which is 730), which breach continues without having been cured within 15 days after written notice to the Executive specifying the breach in reasonable detailcase may be.
(G) The Executive and the Company agree that in the event the Executive seeks a reference from the Company in connection with any future or prospective employment, the Company's response to any such reference inquiry shall be limited to and consistent with the following: start and end dates of employment, position(s) held and last salary. For purposes of this Section 9, the following definitions shall apply:
Appears in 2 contracts
Sources: Executive Employment Agreement (BioRestorative Therapies, Inc.), Executive Employment Agreement (BioRestorative Therapies, Inc.)
Restrictive Covenants. The Executive agrees that restrictions on his activities during and after his employment are necessary to protect During the goodwill, Confidential Information and other legitimate interests of the Company and its Subsidiaries, and that the agreed restrictions set forth below will not deprive the Executive of the ability to earn a livelihood:
(A) While the Executive is in the employment of the Company and, if the Executive is entitled to benefits under Section 6.1 hereof upon termination of employment, for a period of twenty-four (24) months after such termination of employment (the "Non-Competition Period"), Employee agrees to be bound by each of the Executive shall following independent and divisible restrictions:
(1) Employee will not, directly within the Restricted Geographic Area, be employed by, work for, consult with, provide services to, or indirectlylend assistance to any Competing Organization in a Prohibited Capacity.
(2) Employee will not be employed by, whether work for, consult with, provide services to, or lend assistance to any Competing Organization in any capacity if it is likely that as ownerpart of such capacity, partnerEmployee would inevitably use and/or disclose any of Company’s trade secrets or other Confidential Information.
(3) Employee may be employed by, investorwork for, consultantconsult with, agentprovide services to, employee, co-venturer or otherwise, compete lend assistance to any Diversified Competing Organization provided that: i) the part of the Competing Organization’s diversified business with which Employee will be affiliated does not involve any Competing Products; ii) the Employee’s affiliation with the business Competing Organization does not involve any Competing Products; iii) Employee provides Company with a written description of Employee’s anticipated activities on behalf of the Competing Organization which includes, without limitation, an assurance satisfactory to Company or that Employee’s affiliation with the Competing Organization does not involve any Competing Products; iv) Employee’s affiliation with the Competing Organization would not likely cause Employee to inevitably use and/or disclose any of its Subsidiaries within Company’s trade secrets or other Confidential Information; and v) Employee’s affiliation with the Diversified Competing Organization does not constitute a twenty (20) mile radius of any location where the Company operates a retail store at the date of termination of employment, or at which the Company has entered into a letter of intent or similar commitment for or entered into obligations relating competitive disadvantage to the opening of Company.
(4) Employee will not be employed by, work for, consult with, provide services to or lend assistance to any Customers or Active Prospects in the Restricted Geographic Area in a retail store to be opened within the period of this covenant. Specifically, but without limiting the foregoing, the Executive agrees not to engage in capacity or role that involves any manner in any activity that Competing Products and is directly or indirectly competitive with the business of Company.
(5) Employee will not provide, sell, market, assist in the Company provision, selling or marketing of, or attempt to provide, sell or market any Competing Products to any of its Subsidiaries as conducted Company’s Customers located in the Restricted Geographic Area or which has been proposed by management within six months prior to termination of the Executive's employment. Restricted activity also includes without limitation accepting employment otherwise solicit or a consulting position communicate with any person who isof Company’s Customers located in the Restricted Geographic Area for the purpose of selling, marketing or providing, assisting in the provision, selling or marketing of, or attempting to sell, market or provide any Competing Products.
(6) Employee will not provide, sell, market, attempt to provide, sell or market, or assist any person or entity in the sale or provision of, any Competing Products to any of Company’s Customers with respect to whom, at any time within twelve (12) months prior to during the two years immediately preceding the termination of the Executive's Employee’s employment has beenwith Company, a licensee Employee had any sales or service contact on behalf of the Company Company, Employee had any business contact on behalf of Company, Employee had any sales or service responsibility (including without limitation any supervisory or managerial responsibility) on behalf of its Subsidiaries. For Company, or Employee had access to, or gained knowledge of, any Confidential Information concerning Company’s business with such customer, or otherwise solicit or communicate with any such customers for the purposes of this Section 9, the business of the Company and its Subsidiaries shall mean retail operations for the sale of natural and organic foods, including groceries, meat, seafood, dairy and frozen products and produce, as well as natural vitamins, supplements, homeopathic remedies and body care productsselling or providing any Competing Products.
(B7) The Executive agrees that during Employee will not provide, sell, market, attempt to provide, sell or market, or assist any person or entity in the Non-Competition Period sale or provision of, any Competing Products to any of Company’s Active Prospects, or otherwise solicit or communicate with any of Company’s Active Prospects for the purpose of selling or providing any Competing Products.
(8) Employee will not urge, induce or seek to induce any of Company’s independent contractors, subcontractors, distributors, brokers, consultants, sales representatives, customers, vendors, suppliers or any other person or entity with whom Company has a business relationship to terminate their relationship with, or representation of, Company or to cancel, withdraw, reduce, limit or in connection with any termination of employment pursuant to which manner modify any such person’s or entity’s business with, or representation of, Company.
(9) Employee will not solicit, recruit, hire, employ, engage or retain, or assist any Competing Organization in the Executive is entitled to benefits under Section 6.1solicitation, the Executive will notrecruitment, either directly hiring, employment, engagement or through any agent or employeeretention of, Solicit any employee of the Company or any of its Subsidiaries Company’s distributors, sales representatives, or consultants located in the Restricted Geographic Area, for any competitive purpose.
(10) Employee will not employ, engage in personal service or favor (whether or not compensated), solicit for employment, advise or recommend to terminate his any other person or her relationship with the Company entity that such person or entity employ, or solicit for employment, any of its Subsidiaries individual now or to apply for or accept employment with any enterprise competitive with the business of the hereafter employed by Company, or Solicit otherwise induce or entice any customersuch employee to leave his/her employment with Company to work for, supplierconsult with, licensee provide services to, or vendor of the Company or lend assistance to any of its Subsidiaries to terminate or materially modify its relationship with them, or, in the case of a customer, to conduct with any person any business or activity which such customer conducts or could conduct with the Company or any of its SubsidiariesCompeting Organization.
(C11) The Executive Employee will not make or publish any disparaging or derogatory statements about Company, its products, Parent and the Company further agree that following any termination of the Executive's employment pursuant to which the Executive is entitled to benefits under Section 6.1Affiliates, (i) the Executive shall not make statements or representationstogether with their past, otherwise communicate, directly or indirectly, in writing, orally, or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Company or any if its Subsidiaries or affiliates or their respective former or current present and future officers, directors, employees, advisorsattorneys and agents. Disparaging or derogatory statements include, businesses but are not limited to, negative statements regarding Company’s business or reputationsother practices; provided, however, nothing herein shall prohibit Employee from providing any information as may be compelled by law or legal process.
(ii12) Employee agrees that the Company shall instruct its Board members and senior management to not make statements or representations, otherwise communicate, directly, divisible covenants contained in this Agreement prohibit Employee from engaging in the restricted activities directly or indirectly, in writingwhether on Employee’s behalf or on behalf of or for the benefit of any other person or entity, orally or otherwiseincluding for Employee’s benefit, or take any action which may, directly, or indirectly, disparage or be damaging to the Executive or his reputation. The Executive and the Company further agree that, in the event the Executive's employment with the Company is terminated other than by the Company for Cause or as a result that all of the Executive's death, the Executive and the Company shall refer to the Executive's departure as covenants restrict Employee from engaging in activities for a "resignation" in any press release or other external announcement or communication concerning the Executive's departure from the Company. Nothing in this paragraph is intended to undermine any obligations the Executive or the Company may have to comply with applicable law, or prohibit the Executive or the Company from providing truthful testimony or information pursuant to subpoena, court order, discovery demand or similar legal process, or truthfully responding to lawful inquiries by any governmental or regulatory entitycompetitive purpose.
(D13) The provisions of this Section 9 shall not be deemed to preclude the Executive from employment or engagement during the Non-Competition Period following termination of employment hereunder (i) in a business engaged in retail sales, provided such employment or engagement does not otherwise violate the provisions of this Section 9, or (ii) by a corporation, some of the activities of which are competitive with the business of the Company, if the Executive's activities do not relate to such competitive business, and nothing contained in this Section 9 shall be deemed to prohibit the Executive, during the Non-Competition Period following termination of employment hereunder, from acquiring or holding, solely as an investment, publicly traded securities of any competitor corporation so long as such securities do not, in the aggregate, constitute more than 3% of the outstanding voting securities of such corporation.
(E) The Executive acknowledges that the Company and its Subsidiaries continually develop Confidential Information, that the Executive may develop Confidential Information for the Company or its Subsidiaries and that the Executive may learn of Confidential Information during the course of his employment under this Agreement. The Executive will comply with the policies and procedures of the Company and its Subsidiaries for protecting Confidential Information and shall never disclose to any person (except as required by applicable law or legal process or for the proper performance of his duties and responsibilities to the Company and its Subsidiaries, or in connection with any litigation between the Company and the Executive (provided that the Company shall be afforded a reasonable opportunity in each case to obtain a protective order)), or use for his own benefit or gain, any Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its Subsidiaries. The Executive understands that this restriction shall continue to apply after his employment terminates, regardless of the reason for such termination. All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the Company or its Subsidiaries and any copies, in whole or in part, thereof (the "Documents"), whether or not prepared by the Executive, shall be the sole and exclusive property of the Company and its Subsidiaries. The Executive shall safeguard all Documents and shall surrender to the Company at the time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive's possession or control.
(F) Without limiting the foregoing, it is understood that the Company shall not be obligated to make expire during any period in which Employee is in violation of any of the payments or to provide for any of the benefits specified in Sections 6.1 and 6.2 hereofrestrictive covenants set forth herein, and all restrictions shall automatically be entitled to recoup extended by the pro rata portion period Employee was in violation of any such payments and of the value of any such benefits previously provided to the Executive in the event of a material breach by the Executive of the provisions of this Section 9 (such pro ration to be determined as a fraction, the numerator of which is the number of days from such breach to the second anniversary of the date on which the Executive terminates employment and the denominator of which is 730), which breach continues without having been cured within 15 days after written notice to the Executive specifying the breach in reasonable detailrestrictions.
(G) The Executive and the Company agree that in the event the Executive seeks a reference from the Company in connection with any future or prospective employment, the Company's response to any such reference inquiry shall be limited to and consistent with the following: start and end dates of employment, position(s) held and last salary. For purposes of this Section 9, the following definitions shall apply:
Appears in 2 contracts
Sources: Confidentiality, Non Competition and Non Solicitation Employment Agreement, Confidentiality, Non Competition and Non Solicitation Employment Agreement (Zimmer Holdings Inc)
Restrictive Covenants. The Executive agrees A. Employee recognizes and acknowledges that restrictions on as a consequence of his activities during and after his employment are necessary duties hereunder, Employee will be provided access to protect the goodwill, Confidential Information and other legitimate interests or will come in contact with confidential information of or regard the Company and its Subsidiariesparent, Medley Credit Acceptance Corp., from time to time. Accordingly, Employee agrees that he will not, during or after the term of his engagement except with prior written consent of the Company, disclose any confidential information relating to the Company or its Parent. The provisions of this section shall not apply to information which Employee is required to disclose by law or by order a court of competent jurisdiction but only to the extent required by law or by order and when reasonably possible, only if Employee shall give the Company prior notice of such intended disclosure so that the agreed restrictions set forth below will Company has the opportunity to seek a protective order if it deems such appropriate
B. As used in this Agreement, "confidential information" shall mean and include studies, plans, reports, records, promotional materials, agreements, memoranda, documents, information related to Company activities, systems, finances, client lists, research data personnel data, financing sources. and such other related information not deprive of a public knowledge.
C. For so long as the Executive Employee is employed hereunder, Employee shall not engage either as principal, agent or consultant or through any corporation, firm or organization in which he is or may be an officer, director, employee, shareholder, partner, member or with which he is otherwise affiliated in any business for profit which is engaged in any activity or business similar to that of the ability Employer. Notwithstanding the foregoing, ▇▇▇ ▇▇▇▇▇▇▇ may continue to earn a livelihood:
(A) While run off the Executive is existing leases in the employment Clearlake Financial Corp. which exist as of the Company and, if the Executive is entitled to benefits under Section 6.1 hereof upon termination of employment, date hereof.
D. The Employee covenants and agrees that for a period of twenty-four two (242) months after such years from the date of his termination of employment (with the "Non-Competition Period")Company, either voluntary or involuntary that he will not directly or indirectly solicit or aid in the solicitation of any Company client who dealt with the Company during the period of time that the Employee was in the employ of the Company for the purpose of attempting to arrange the refinance of any unexpired lease procured by the Company. In addition, the Executive Company has the right for a period of up to six months to prohibit the Employee from soliciting any type of leasing business so long, as the Company continues to pay Employee his compensation during the period of restriction.
E. It is agreed by the Employee that should he violate the provisions of this section, the Company shall nothave the right to obtain an order from a court of competent jurisdiction enjoining him from violating any and all of the provisions of this section or of this Agreement and the Company's application for such a writ of injunction shall be deemed without prejudice to any all other rights, directly remedies or indirectlyactions which may accrue in favor of the Company as a result of the Employee's breach of this provision or of the terms of this Agreement. In the event the Company is required to institute any litigation commencing the terms and conditions of this section or of this Agreement, whether as ownerthe prevailing party shall be entitled to reimbursement of all reasonable attorney's fees and costs at both the trial and the appellate court level. The Employee further agrees that in the event of litigation venue shall only be proper in Dade County, partner, investor, consultant, agent, employee, co-venturer or otherwise, compete with Florida.
F. The enforceability of this section shall be dependent upon the business continuing existence and operation of the Company or any of its Subsidiaries within a twenty (20) mile radius of any location where the Company operates a retail store at the date of termination of employment, or at which the Company has entered into a letter of intent or similar commitment for or entered into obligations relating to the opening of a retail store to be opened within the period of this covenant. Specifically, but without limiting the foregoing, the Executive agrees not to engage in any manner in any activity that is directly or indirectly competitive with the business of the Company or any of its Subsidiaries as conducted or which has been proposed by management within six months prior to termination of the Executive's employment. Restricted activity also includes without limitation accepting employment or a consulting position with any person who is, or at any time within twelve (12) months prior to termination of the Executive's employment has been, a licensee of the Company or any of its Subsidiaries. For the purposes of this Section 9, the business of the Company and its Subsidiaries shall mean retail operations for the sale of natural and organic foods, including groceries, meat, seafood, dairy and frozen products and produce, as well as natural vitamins, supplements, homeopathic remedies and body care products.
(B) The Executive agrees that during the Non-Competition Period or in connection with any termination of employment pursuant to which the Executive is entitled to benefits under Section 6.1, the Executive will not, either directly or through any agent or employee, Solicit any employee of the Company or any of its Subsidiaries to terminate his or her relationship with the Company or any of its Subsidiaries or to apply for or accept employment with any enterprise competitive with the business of the Company, or Solicit any customer, supplier, licensee or vendor of the Company or any of its Subsidiaries to terminate or materially modify its relationship with them, or, Medley subsidiary remaining in the case of a customer, to conduct with any person any business or activity which such customer conducts or could conduct with the Company or any of its Subsidiariesequipment leasing business.
(C) The Executive and the Company further agree that following any termination of the Executive's employment pursuant to which the Executive is entitled to benefits under Section 6.1, (i) the Executive shall not make statements or representations, otherwise communicate, directly or indirectly, in writing, orally, or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Company or any if its Subsidiaries or affiliates or their respective former or current officers, directors, employees, advisors, businesses or reputations, (ii) the Company shall instruct its Board members and senior management to not make statements or representations, otherwise communicate, directly, or indirectly, in writing, orally or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Executive or his reputation. The Executive and the Company further agree that, in the event the Executive's employment with the Company is terminated other than by the Company for Cause or as a result of the Executive's death, the Executive and the Company shall refer to the Executive's departure as a "resignation" in any press release or other external announcement or communication concerning the Executive's departure from the Company. Nothing in this paragraph is intended to undermine any obligations the Executive or the Company may have to comply with applicable law, or prohibit the Executive or the Company from providing truthful testimony or information pursuant to subpoena, court order, discovery demand or similar legal process, or truthfully responding to lawful inquiries by any governmental or regulatory entity.
(D) The provisions of this Section 9 shall not be deemed to preclude the Executive from employment or engagement during the Non-Competition Period following termination of employment hereunder (i) in a business engaged in retail sales, provided such employment or engagement does not otherwise violate the provisions of this Section 9, or (ii) by a corporation, some of the activities of which are competitive with the business of the Company, if the Executive's activities do not relate to such competitive business, and nothing contained in this Section 9 shall be deemed to prohibit the Executive, during the Non-Competition Period following termination of employment hereunder, from acquiring or holding, solely as an investment, publicly traded securities of any competitor corporation so long as such securities do not, in the aggregate, constitute more than 3% of the outstanding voting securities of such corporation.
(E) The Executive acknowledges that the Company and its Subsidiaries continually develop Confidential Information, that the Executive may develop Confidential Information for the Company or its Subsidiaries and that the Executive may learn of Confidential Information during the course of his employment under this Agreement. The Executive will comply with the policies and procedures of the Company and its Subsidiaries for protecting Confidential Information and shall never disclose to any person (except as required by applicable law or legal process or for the proper performance of his duties and responsibilities to the Company and its Subsidiaries, or in connection with any litigation between the Company and the Executive (provided that the Company shall be afforded a reasonable opportunity in each case to obtain a protective order)), or use for his own benefit or gain, any Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its Subsidiaries. The Executive understands that this restriction shall continue to apply after his employment terminates, regardless of the reason for such termination. All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the Company or its Subsidiaries and any copies, in whole or in part, thereof (the "Documents"), whether or not prepared by the Executive, shall be the sole and exclusive property of the Company and its Subsidiaries. The Executive shall safeguard all Documents and shall surrender to the Company at the time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive's possession or control.
(F) Without limiting the foregoing, it is understood that the Company shall not be obligated to make any of the payments or to provide for any of the benefits specified in Sections 6.1 and 6.2 hereof, and shall be entitled to recoup the pro rata portion of any such payments and of the value of any such benefits previously provided to the Executive in the event of a material breach by the Executive of the provisions of this Section 9 (such pro ration to be determined as a fraction, the numerator of which is the number of days from such breach to the second anniversary of the date on which the Executive terminates employment and the denominator of which is 730), which breach continues without having been cured within 15 days after written notice to the Executive specifying the breach in reasonable detail.
(G) The Executive and the Company agree that in the event the Executive seeks a reference from the Company in connection with any future or prospective employment, the Company's response to any such reference inquiry shall be limited to and consistent with the following: start and end dates of employment, position(s) held and last salary. For purposes of this Section 9, the following definitions shall apply:
Appears in 2 contracts
Sources: Employment Agreement (Medley Credit Acceptance Corp), Employment Agreement (Medley Credit Acceptance Corp)
Restrictive Covenants. [The Executive following shall be applicable to Non-California and Non-Attorney Grantees] In consideration of receiving the RSUs hereunder, and as a term and condition of the Grantee’s employment with the Company, the Grantee agrees to adhere to, and be bound by, the following restrictions. The Grantee hereby acknowledges that the Grantee’s job responsibilities give the Grantee access to confidential and proprietary information belonging to the Company and/or its subsidiaries, and that this and other confidential information to which the Grantee has access would be of value, and provide an unfair advantage, to a competitor in competing against the Company or its subsidiaries in any of the markets in which the Company or its subsidiaries maintains schools, provides on-line education classes or otherwise conducts business. The Grantee further acknowledges that the following restrictions will not cause the Grantee undue hardship. Consequently, the Grantee agrees that the restrictions on his activities during below (the “Restrictive Covenants”) are reasonable and after his employment are necessary to protect the goodwill, Confidential Information and other Company’s and/or its subsidiaries’ legitimate interests of business interests. During the Grantee’s employment with the Company and/or any of its subsidiaries and its Subsidiaries, and that continuing thereafter for the agreed restrictions set forth below will not deprive the Executive of the ability to earn a livelihood:
(A) While the Executive is in the employment of the Company and, if the Executive is entitled to benefits under Section 6.1 hereof upon post-termination of employment, for a period of twenty-four (24) months after such termination of employment (the "Non-Competition Period")periods specified below, the Executive shall Grantee will not, in any way, directly or indirectly, either for the Grantee or any other person or entity, whether as owner, partner, investor, consultant, agent, employee, co-venturer paid or otherwise, compete unpaid:
(a) For months following Grantee’s voluntary resignation from Grantee’s employment with the business of the Company or any of its Subsidiaries within a twenty (20) mile radius of any location where Grantee’s termination from employment by the Company operates a retail store at the date of termination of employmentfor Cause, accept employment with, own, manage, operate, consult or at which the Company has entered into a letter of intent or similar commitment for or entered into obligations relating provide expert services to the opening of a retail store to be opened within the period of this covenant. Specifically, but without limiting the foregoing, the Executive agrees not to engage in any manner in any activity that is directly or indirectly competitive with the business of the Company or any of its Subsidiaries as conducted or which has been proposed by management within six months prior to termination of the Executive's employment. Restricted activity also includes without limitation accepting employment or a consulting position with any person who is, or at any time within twelve (12) months prior to termination of the Executive's employment has been, a licensee of the Company or any of its Subsidiaries. For the purposes of this Section 9, the business of the Company and its Subsidiaries shall mean retail operations for the sale of natural and organic foods, including groceries, meat, seafood, dairy and frozen products and produce, as well as natural vitamins, supplements, homeopathic remedies and body care products.
(B) The Executive agrees entity that during the Non-Competition Period or in connection with any termination of employment pursuant to which the Executive is entitled to benefits under Section 6.1, the Executive will not, either directly or through any agent or employee, Solicit any employee of the Company or any of its Subsidiaries to terminate his or her relationship competes with the Company or any of its Subsidiaries subsidiaries in any capacity that involves any responsibilities or activities involving or relating to apply for or accept employment with any enterprise competitive Competing Educational Service, as defined herein. “Competing Educational Service” means any educational service that competes with the business of the Company, or Solicit any customer, supplier, licensee or vendor of educational services provided by the Company or and/or any of its Subsidiaries subsidiaries, including but not limited to terminate or materially modify its relationship with them, or, coursework in the case areas of a customervisual communication and design technologies; information technology; business studies; culinary arts; and health education, to conduct with any person any business or activity which such customer conducts or could conduct with the Company or any education service. The Grantee hereby acknowledges that the following organizations, among others, provide Competing Educational Services and, should the Grantee accept employment with, own, manage, operate, consult or provide expert services to any of its Subsidiaries.
(C) The Executive and these organizations, it would inevitably require the Company further agree that following any termination use and/or disclosure of the Executive's employment pursuant to which the Executive is entitled to benefits under Section 6.1, (i) the Executive shall not make statements or representations, otherwise communicate, directly or indirectly, in writing, orally, or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging confidential information belonging to the Company or any if and/or its Subsidiaries or affiliates or subsidiaries and would provide such organizations with an unfair business advantage over the Company: American Public Education, Inc., Anthem Education, Apollo Education Group, Inc., Bridgepoint Education, Inc., Capella Education Company, Career Step, LLC, Corinthian Colleges, Inc., Delta Career Education Corporation, DeVry Education Group Inc., Education Management Corporation, EmbanetCompass, Grand Canyon Education Inc., ITT Educational Services Inc., ▇▇▇▇▇▇, Inc., Laureate Education, Inc., Learning Tree International Inc., Lincoln Education Services Corporation, National American University Holdings Inc., ▇▇▇▇ Education, LLC, ▇▇▇▇▇▇▇ Education Inc., Universal Technical Institute Inc. and each of their respective former or current officerssubsidiaries, directors, employees, advisors, businesses or reputations, (ii) affiliates and successors. The Grantee further acknowledges that the Company shall instruct and/or its Board members subsidiaries provide career-oriented education through physical campuses throughout the United States and senior management web-based virtual campuses throughout the world and, therefore, it is impracticable to not make statements or representationsidentify a limited, otherwise communicate, directly, or indirectly, in writing, orally or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to specific geographical scope for this Restrictive Covenant. For the Executive or his reputation. The Executive and the Company further agree thatavoidance of doubt, in the event the Executive's Grantee is involuntarily terminated from employment with the Company is terminated other than by the Company for Cause or as a result of the Executive's deathCause, the Executive and the Company shall refer Grantee will not be subject to the Executive's departure as a "resignation" in any press release or other external announcement or communication concerning the Executive's departure from the Company. Nothing in this paragraph is intended to undermine any obligations the Executive or the Company may have to comply with applicable law, or prohibit the Executive or the Company from providing truthful testimony or information pursuant to subpoena, court order, discovery demand or similar legal process, or truthfully responding to lawful inquiries by any governmental or regulatory entity.
(D) The provisions of post-termination noncompete restriction under this Section 9 shall not be deemed to preclude the Executive from employment or engagement during the Non-Competition Period following termination of employment hereunder (i) in a business engaged in retail sales, provided such employment or engagement does not otherwise violate the provisions of this Section 9, or (ii) by a corporation, some of the activities of which are competitive with the business of the Company, if the Executive's activities do not relate to such competitive business, and nothing contained in this Section 9 shall be deemed to prohibit the Executive, during the Non-Competition Period following termination of employment hereunder, from acquiring or holding, solely as an investment, publicly traded securities of any competitor corporation so long as such securities do not, in the aggregate, constitute more than 3% of the outstanding voting securities of such corporation28(a).
(E) The Executive acknowledges that the Company and its Subsidiaries continually develop Confidential Information, that the Executive may develop Confidential Information for the Company or its Subsidiaries and that the Executive may learn of Confidential Information during the course of his employment under this Agreement. The Executive will comply with the policies and procedures of the Company and its Subsidiaries for protecting Confidential Information and shall never disclose to any person (except as required by applicable law or legal process or for the proper performance of his duties and responsibilities to the Company and its Subsidiaries, or in connection with any litigation between the Company and the Executive (provided that the Company shall be afforded a reasonable opportunity in each case to obtain a protective order)), or use for his own benefit or gain, any Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its Subsidiaries. The Executive understands that this restriction shall continue to apply after his employment terminates, regardless of the reason for such termination. All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the Company or its Subsidiaries and any copies, in whole or in part, thereof (the "Documents"), whether or not prepared by the Executive, shall be the sole and exclusive property of the Company and its Subsidiaries. The Executive shall safeguard all Documents and shall surrender to the Company at the time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive's possession or control.
(F) Without limiting the foregoing, it is understood that the Company shall not be obligated to make any of the payments or to provide for any of the benefits specified in Sections 6.1 and 6.2 hereof, and shall be entitled to recoup the pro rata portion of any such payments and of the value of any such benefits previously provided to the Executive in the event of a material breach by the Executive of the provisions of this Section 9 (such pro ration to be determined as a fraction, the numerator of which is the number of days from such breach to the second anniversary of the date on which the Executive terminates employment and the denominator of which is 730), which breach continues without having been cured within 15 days after written notice to the Executive specifying the breach in reasonable detail.
(G) The Executive and the Company agree that in the event the Executive seeks a reference from the Company in connection with any future or prospective employment, the Company's response to any such reference inquiry shall be limited to and consistent with the following: start and end dates of employment, position(s) held and last salary. For purposes of this Section 9, the following definitions shall apply:
Appears in 2 contracts
Sources: Restricted Stock Unit Agreement (Career Education Corp), Restricted Stock Unit Agreement (Career Education Corp)
Restrictive Covenants. The Executive agrees Selling Members acknowledge and agree that restrictions on his activities during substantial and after his employment are necessary to protect valuable assets being transferred hereunder include the goodwillMaterial Agreements, Confidential Information Intellectual Property, business relationships and other legitimate interests associated goodwill of the Company and its SubsidiariesCompany, and that the agreed restrictions set forth below will not deprive the Executive of the ability to earn a livelihood:
(A) While the Executive is in the employment of relationships which the Company andhas with its employees and independent contractors (including as a result of this transaction) are significant business relationships necessary for Pubco to continue to operate the business being acquired hereunder. The Selling Members further acknowledge and agree that, if following the Executive is entitled to benefits under Section 6.1 hereof upon termination of employmentClosing, for a period of twenty-four (24) months after such termination of employment (the "Non-Competition Period"), the Executive shall notthey may, directly or indirectly, whether continue to have access to the aforesaid assets and relationships, as ownerwell as access to similar assets and relationships of Pubco and its subsidiaries, partner, investor, consultant, agent, employee, co-venturer or otherwise, compete with the business by virtue of the Company employment of one or more of the Selling Members with Pubco following the Closing. The Selling Members further acknowledge and agree that Pubco has a reasonable, necessary and legitimate business interest in protecting the aforesaid assets, relationships and businesses, and that the covenants set forth below are reasonable and necessary in order to protect these legitimate business interests. In addition, the Selling Members acknowledge and agree that monetary damages will not be an adequate remedy for any material breach of any of their covenants contained in this Section 5, and that irreparable injury may result to Pubco, or its successors in interest, in the event of any such material breach. Accordingly, each Selling Member severally agrees to the following restrictions which are specifically applicable to such Selling Member:
(a) Except for services provided on behalf of Pubco or its subsidiaries, Selling Members will refrain from Carrying on a Business, directly or indirectly, which provides any Business Services within the Restricted Territory (each as defined below). The restrictions contained in this Section 5.08(a) shall terminate on the last day of the three (3) year period following the Closing Date.
(b) Selling Member will not, directly or indirectly solicit, hire or retain the employment, consulting or other services of any employee of Pubco or any of its Subsidiaries within a twenty (20) mile radius of any location where the Company operates a retail store at the date of termination of employmentsubsidiaries, or at which the Company has entered into a letter of intent or similar commitment for or entered into obligations relating to the opening of a retail store to be opened within the period of this covenant. Specifically, but without limiting the foregoing, the Executive agrees not to engage in otherwise induce any manner in any activity that is directly or indirectly competitive with the business of the Company or any of its Subsidiaries as conducted or which has been proposed by management within six months prior to termination of the Executive's employment. Restricted activity also includes without limitation accepting employment or a consulting position with any person who is, or at any time within twelve (12) months prior to termination of the Executive's employment has been, a licensee of the Company or any of its Subsidiaries. For the purposes of this Section 9, the business of the Company and its Subsidiaries shall mean retail operations for the sale of natural and organic foods, including groceries, meat, seafood, dairy and frozen products and produce, as well as natural vitamins, supplements, homeopathic remedies and body care products.
(B) The Executive agrees that during the Non-Competition Period or in connection with any termination of employment pursuant to which the Executive is entitled to benefits under Section 6.1, the Executive will not, either directly or through any agent or employee, Solicit any such employee of the Company or any of its Subsidiaries to terminate his or her relationship relationship, or to breach an employment agreement with the Company Pubco or any of its Subsidiaries or to apply for or accept employment with any enterprise competitive with the business of the Company, or Solicit any customer, supplier, licensee or vendor of the Company or any of its Subsidiaries to terminate or materially modify its relationship with them, or, in the case of a customer, to conduct with any person any business or activity which such customer conducts or could conduct with the Company or any of its Subsidiaries.
(C) The Executive and the Company further agree that following any termination of the Executive's employment pursuant to which the Executive is entitled to benefits under Section 6.1, (i) the Executive shall not make statements or representations, otherwise communicate, directly or indirectly, in writing, orally, or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Company or any if its Subsidiaries or affiliates or their respective former or current officers, directors, employees, advisors, businesses or reputations, (ii) the Company shall instruct its Board members and senior management to not make statements or representations, otherwise communicate, directly, or indirectly, in writing, orally or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Executive or his reputationsubsidiaries. The Executive and the Company further agree that, in the event the Executive's employment with the Company is terminated other than by the Company for Cause or as a result of the Executive's death, the Executive and the Company shall refer to the Executive's departure as a "resignation" in any press release or other external announcement or communication concerning the Executive's departure from the Company. Nothing in this paragraph is intended to undermine any obligations the Executive or the Company may have to comply with applicable law, or prohibit the Executive or the Company from providing truthful testimony or information pursuant to subpoena, court order, discovery demand or similar legal process, or truthfully responding to lawful inquiries by any governmental or regulatory entity.
(D) The provisions of this Section 9 shall not be deemed to preclude the Executive from employment or engagement during the Non-Competition Period following termination of employment hereunder (i) in a business engaged in retail sales, provided such employment or engagement does not otherwise violate the provisions of this Section 9, or (ii) by a corporation, some of the activities of which are competitive with the business of the Company, if the Executive's activities do not relate to such competitive business, and nothing restrictions contained in this Section 9 5.08(b) shall be deemed to prohibit terminate on the Executive, during later of (A) the Non-Competition Period last day of the (3) year period following the Closing Date or (B) the last day of the three (3) year period following the effective date of the termination of such Selling Member’s employment hereunder, from acquiring with Pubco or holding, solely as an investment, publicly traded securities of any competitor corporation so long as such securities do not, subsidiary or their successors in the aggregate, constitute more than 3% of the outstanding voting securities of such corporationinterest.
(Ec) The Executive acknowledges that the Company and its Subsidiaries continually develop Confidential Information, that the Executive may develop Confidential Information for the Company or its Subsidiaries and that the Executive may learn of Confidential Information during the course of his employment under this Agreement. The Executive will comply with the policies and procedures of the Company and its Subsidiaries for protecting Confidential Information and shall never disclose to any person (except as required by applicable law or legal process or for the proper performance of his duties and responsibilities to the Company and its Subsidiaries, or following terms used in connection with any litigation between the Company and the Executive (provided that the Company shall be afforded a reasonable opportunity in each case to obtain a protective order)), or use for his own benefit or gain, any Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its Subsidiaries. The Executive understands that this restriction shall continue to apply after his employment terminates, regardless of the reason for such termination. All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the Company or its Subsidiaries and any copies, in whole or in part, thereof (the "Documents"), whether or not prepared by the Executive, shall be the sole and exclusive property of the Company and its Subsidiaries. The Executive shall safeguard all Documents and shall surrender to the Company at the time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive's possession or control.
(F) Without limiting the foregoing, it is understood that the Company shall not be obligated to make any of the payments or to provide for any of the benefits specified in Sections 6.1 and 6.2 hereof, and shall be entitled to recoup the pro rata portion of any such payments and of the value of any such benefits previously provided to the Executive in the event of a material breach by the Executive of the provisions of this Section 9 (such pro ration to be determined as a fraction, 5 shall have the numerator of which is the number of days from such breach to the second anniversary of the date on which the Executive terminates employment and the denominator of which is 730), which breach continues without having been cured within 15 days after written notice to the Executive specifying the breach in reasonable detail.
(G) The Executive and the Company agree that in the event the Executive seeks a reference from the Company in connection with any future or prospective employment, the Company's response to any such reference inquiry shall be limited to and consistent with the following: start and end dates of employment, position(s) held and last salary. For purposes of this Section 9, the following definitions shall applymeanings set forth below:
Appears in 2 contracts
Sources: Membership Interests Purchase Agreement (Marine Drive Mobile Corp.), Membership Interests Purchase Agreement (Marine Drive Mobile Corp.)
Restrictive Covenants. (a) The services of the Executive are unique and extraordinary and essential to the business of the Company, especially since the Executive shall have access to the Company's customer lists, trade secrets and other privileged and confidential information essential to the Company’s business. Therefore, the Executive agrees that restrictions on his activities during that, as a material inducement to, and after his employment are necessary a condition precedent to protect the goodwill, Confidential Information and other legitimate interests of the Company Company’s payment obligations hereunder and its Subsidiaries, and that the agreed restrictions set forth below will not deprive the Executive of the ability to earn a livelihood:
(A) While the Executive is in the employment of the Company andother covenants herein, if the Executive is entitled to benefits under Section 6.1 hereof upon termination term of employmentthe Executive’s employment hereunder shall expire or the Executive's employment shall at any time terminate for any reason whatsoever, for a period of twenty-four (24) months after such termination of employment (the "Non-Competition Period")Cause or Without Cause, for Good Reason or without Good Reason, the Executive shall notwill not at any time within one (1) year after such expiration or termination (the “Restrictive Covenant Period”), without the prior written approval of the Company, directly or indirectly, whether individually or as ownera principal, officer, stockholder, equity participant, employee, partner, investorjoint venturer, consultantmember, agentmanager, employeedirector or agent of, co-venturer or otherwiselender, compete with consultant or independent contractor to, any Person, or in any other capacity, other than on behalf of or for the business benefit of the Company or any Company:
(i) anywhere in the United States of its Subsidiaries within a twenty (20) mile radius of any location where the Company operates a retail store at the date of termination of employmentAmerica, or at which the Company has entered into a letter of intent or similar commitment for or entered into obligations relating to the opening of a retail store to be opened within the period of this covenant. Specifically, but without limiting the foregoing, the Executive agrees not to engage in any manner in any activity that is directly or indirectly indirectly, engage or participate in a business which, as of such expiration or termination date, is similar to or competitive with the business of the Company as of the Termination Date, as described in the Company's Securities and Exchange Commission (the “SEC”) filings (or, in the event that the Company is not subject to the SEC disclosure requirements, then as described on the Company's website (the “Business”)), wherein Executive shall be performing the same or similar duties as he performed for the Company, or if Executive is likely to use or disclose confidential or proprietary information of the Company. For the sake of clarity, the Company’s Business is focused on stem-cell based therapies, including autologous hypoxic disc treatments and the use of ▇▇▇▇▇ adipose stem cells for treating metabolic disorders. Notwithstanding the foregoing, Executive may acquire, as a passive investor, up to five percent (5%) of the outstanding voting stock of any entity whose securities are listed on a stock exchange or NASDAQ;
(ii) cause, seek to persuade or solicit any director, officer, employee, customer, account, agent or supplier of, or consultant or independent contractor to, the Company or others with whom the Company has had a business relationship (collectively, “Business Associates”) to discontinue or materially modify the status, employment or other relationship of its Subsidiaries as conducted such Business Associate with the Company, or to become employed in any activity similar to or competitive with the Business of the Company;
(iii) cause, seek to persuade or solicit, any prospective customer, account, supplier or other Business Associate of the Company (which has been proposed by management within six months prior to termination at the date of cessation of the Executive's employment. Restricted activity also includes without limitation accepting ’s employment or a consulting position with any person who isthe Company was then, or at any time within twelve (12) months prior to termination the knowledge of the Executive's employment has been, actively being solicited by the Company) to determine not to enter into a licensee of the Company or any of its Subsidiaries. For the purposes of this Section 9, the business of the Company and its Subsidiaries shall mean retail operations for the sale of natural and organic foods, including groceries, meat, seafood, dairy and frozen products and produce, as well as natural vitamins, supplements, homeopathic remedies and body care products.
(B) The Executive agrees that during the Non-Competition Period or in connection with any termination of employment pursuant to which the Executive is entitled to benefits under Section 6.1, the Executive will not, either directly or through any agent or employee, Solicit any employee of the Company or any of its Subsidiaries to terminate his or her relationship with the Company or to materially modify its contemplated business relationship;
(iv) hire, retain, engage or associate in a business relationship with, directly or indirectly, any employee of its Subsidiaries the Company; or
(v) solicit from or cause or authorize to apply be solicited from, for or accept employment with on behalf of the Executive or any enterprise third party, any business which is similar to or competitive with the business Business of the Company, or Solicit any customer, supplier, licensee enter into a similar or vendor of the Company or any of its Subsidiaries to terminate or materially modify its competitive business relationship with them, or, in the case of a customer, to conduct with any person any business or activity which such customer conducts or could conduct with the Company or any of its Subsidiaries.
(C) The Executive and the Company further agree that following any termination of the Executive's employment pursuant to which the Executive is entitled to benefits under Section 6.1with, (ia) the Executive shall not make statements or representations, otherwise communicate, directly or indirectly, in writing, orallyothers who are, or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging were within one (l) year prior to the Company or any if its Subsidiaries or affiliates or their respective former or current officers, directors, employees, advisors, businesses or reputations, (ii) the Company shall instruct its Board members and senior management to not make statements or representations, otherwise communicate, directly, or indirectly, in writing, orally or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Executive or his reputation. The Executive and the Company further agree that, in the event cessation of the Executive's employment with the Company is terminated Company, customers, accounts or other than by Business Associates of the Company, or (b) any prospective customer, account or other Business Associate of the Company for Cause or as a result which at the date of the Executive's deathsuch cessation was then, the Executive and the Company shall refer to the Executive's departure as a "resignation" in any press release or other external announcement or communication concerning the Executive's departure from knowledge, actively being solicited by the Company. Nothing The foregoing restrictions set forth in this paragraph is intended Section 7 shall apply likewise during the Employment Period and all references to undermine any obligations “Business” shall be deemed to refer to the Executive or then Business of the Company may have to comply with applicable law, or prohibit during the Executive or the Company from providing truthful testimony or information pursuant to subpoena, court order, discovery demand or similar legal process, or truthfully responding to lawful inquiries by any governmental or regulatory entityEmployment Period.
(Db) The For purposes of this Section 7, the term “Company” shall mean and include the Company and any and all Subsidiaries and Affiliates of the Company in existence from time to time.
(c) Executive acknowledges the benefits provided or made available to him pursuant to the provisions of this Agreement, including, without limitation, the agreement on the part of the Company to employ the Executive during the Employment Period (subject to the terms and conditions hereof) constitute sufficient consideration for the restrictions contained in this Section 9 shall 7 . The Executive also acknowledges and agrees that the covenants set forth in this Section 7 are reasonable and necessary in order to protect and maintain the proprietary and other legitimate business interests of the Company and that the enforcement thereof would not be deemed to preclude prevent the Executive from employment or engagement during the Non-Competition Period following termination of employment hereunder earning a livelihood.
(id) in a business engaged in retail sales, provided such employment or engagement does not otherwise violate Company and Executive agree (a) that the provisions of this Section 97 do not impose an undue hardship on Executive and are not injurious to the public, (b) that these provisions are necessary to protect the Business of Company, (c) that the nature of Executive’s responsibilities with Company under this Agreement provide and/or will provide Executive with access to Confidential Information, proprietary information, or (ii) by a corporation, some of the activities of which trade secrets that are competitive with the business of the valuable and confidential to Company, (d) that Company would not have entered into this Agreement with Executive if Executive did not agree to the Executive's activities do provisions of this Section 7, (e) that Company would not relate have provided the Cash Severance Amount or any other consideration outlined in this Agreement if Executive did not agree to such competitive businessthe provisions of this Section 7, (f) that the provisions of this Section 7 are reasonable in terms of length of time and scope, and nothing contained in (g) that adequate consideration supports the provisions of this Section 9 7. In the event that a court determines that any provision of this Section 7 are unreasonably broad or extensive, Executive agrees that such court should narrow such provision to the extent necessary to make it reasonable and enforce the provisions as narrowed. If such partial enforcement is not possible, the provision shall be deemed to prohibit the Executive, during the Non-Competition Period following termination of employment hereunder, severed from acquiring or holding, solely as an investment, publicly traded securities of any competitor corporation so long as such securities do not, in the aggregate, constitute more than 3% of the outstanding voting securities of such corporation.
(E) The Executive acknowledges that the Company and its Subsidiaries continually develop Confidential Information, that the Executive may develop Confidential Information for the Company or its Subsidiaries and that the Executive may learn of Confidential Information during the course of his employment under this Agreement. The Executive will comply with the policies Company reserves all rights to seek any and procedures of the Company all remedies and its Subsidiaries for protecting Confidential Information damages permitted under law including, but not limited to, injunctive relief, equitable relief, and shall never disclose to any person (except as required by applicable law or legal process or for the proper performance of his duties and responsibilities to the Company and its Subsidiaries, or in connection with any litigation between the Company and the Executive (provided that the Company shall be afforded a reasonable opportunity in each case to obtain a protective order)), or use for his own benefit or gain, any Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its Subsidiaries. The Executive understands that this restriction shall continue to apply after his employment terminates, regardless of the reason for such termination. All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the Company or its Subsidiaries and any copies, in whole or in part, thereof (the "Documents"), whether or not prepared by the Executive, shall be the sole and exclusive property of the Company and its Subsidiaries. The Executive shall safeguard all Documents and shall surrender to the Company at the time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive's possession or control.
(F) Without limiting the foregoing, it is understood that the Company shall not be obligated to make any of the payments or to provide compensatory damages for any breach of Executive’s obligations under this Section 7, without the benefits specified in Sections 6.1 and 6.2 hereof, and shall be entitled obligation to recoup the pro rata portion of post or provide any such payments and of the value of any such benefits previously provided to the Executive in bond. In the event of a material Executive breaches or threatens to breach by the Executive any of the provisions of this Section 9 (such pro ration to be determined 7, Company shall immediately cease payment of any Cash Severance Amount, or other amounts due under this Agreement, as a fraction, the numerator of which is the number of days from such breach to the second anniversary of the date on which the Executive terminates employment and the denominator of which is 730), which breach continues without having been cured within 15 days after written notice to the Executive specifying the breach in reasonable detailcase may be.
(G) The Executive and the Company agree that in the event the Executive seeks a reference from the Company in connection with any future or prospective employment, the Company's response to any such reference inquiry shall be limited to and consistent with the following: start and end dates of employment, position(s) held and last salary. For purposes of this Section 9, the following definitions shall apply:
Appears in 2 contracts
Sources: Executive Employment Agreement (BioRestorative Therapies, Inc.), Executive Employment Agreement (BioRestorative Therapies, Inc.)
Restrictive Covenants. The Executive agrees that restrictions on his activities during and after his employment are necessary to protect the goodwill, Confidential Information and other legitimate interests of the Company and its Subsidiaries, and that the agreed restrictions set forth below will not deprive the Executive of the ability to earn a livelihood:
(A) While Executive acknowledges that (1) Employer has separately bargained and paid additional consideration for the restrictive covenants herein; and (2) Employer will provide certain benefits to Executive is hereunder in the employment reliance on such covenants in view of the Company and, if the Executive is entitled to benefits under Section 6.1 hereof upon termination of employment, for a period of twenty-four (24) months after such termination of employment (the "Non-Competition Period"), the Executive shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer or otherwise, compete with the business unique and essential nature of the Company or any services Executive will perform on behalf of its Subsidiaries within a twenty (20) mile radius of any location where Employer and the Company operates a retail store at the date of termination of employment, or at which the Company has entered into a letter of intent or similar commitment for or entered into obligations relating to the opening of a retail store to be opened within the period of this covenant. Specifically, but without limiting the foregoing, the irreparable injury that would befall Employer should Executive agrees not to engage in any manner in any activity that is directly or indirectly competitive with the business of the Company or any of its Subsidiaries as conducted or which has been proposed by management within six months prior to termination of the Executive's employment. Restricted activity also includes without limitation accepting employment or a consulting position with any person who is, or at any time within twelve (12) months prior to termination of the Executive's employment has been, a licensee of the Company or any of its Subsidiaries. For the purposes of this Section 9, the business of the Company and its Subsidiaries shall mean retail operations for the sale of natural and organic foods, including groceries, meat, seafood, dairy and frozen products and produce, as well as natural vitamins, supplements, homeopathic remedies and body care productsbreach such covenants.
(B) The Executive agrees further acknowledges that during the Non-Competition Period or in connection with any termination of employment pursuant to which the Executive is entitled to benefits under Section 6.1, the Executive will not, either directly or through any agent or employee, Solicit any employee of the Company or any of its Subsidiaries to terminate his or her relationship with the Company or any of its Subsidiaries or to apply for or accept employment with any enterprise competitive with the business of the Company, or Solicit any customer, supplier, licensee or vendor of the Company or any of its Subsidiaries to terminate or materially modify its relationship with them, or, in the case services are of a customerspecial, unique and extraordinary character and that his position with Employer will place him in a position of confidence and trust with employees of Employer and its subsidiaries and affiliates and with Employer’s other constituencies and will allow him access to conduct with any person any business or activity which such customer conducts or could conduct with the Company or any of trade secrets and confidential information concerning Employer and its Subsidiariessubsidiaries and affiliates.
(C) The Executive further acknowledges that the type and the Company further agree that following any termination periods of the Executive's employment pursuant to which the Executive is entitled to benefits under Section 6.1, (i) the Executive shall not make statements or representations, otherwise communicate, directly or indirectly, in writing, orally, or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Company or any if its Subsidiaries or affiliates or their respective former or current officers, directors, employees, advisors, businesses or reputations, (ii) the Company shall instruct its Board members and senior management to not make statements or representations, otherwise communicate, directly, or indirectly, in writing, orally or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Executive or his reputation. The Executive and the Company further agree that, in the event the Executive's employment with the Company is terminated other than restrictions imposed by the Company for Cause or as a result of the Executive's death, the Executive and the Company shall refer to the Executive's departure as a "resignation" in any press release or other external announcement or communication concerning the Executive's departure from the Company. Nothing covenants in this paragraph is intended to undermine any obligations the Section 10 are fair and reasonable and that such restrictions will not prevent Executive or the Company may have to comply with applicable law, or prohibit the Executive or the Company from providing truthful testimony or information pursuant to subpoena, court order, discovery demand or similar legal process, or truthfully responding to lawful inquiries by any governmental or regulatory entityearning a livelihood.
(D) The provisions Having acknowledged the foregoing, Executive covenants and agrees with Employer as follows:
(1) For a period of this Section 9 one (1) year after the termination of Executive’s employment by Employer for any reason or for no reason, Executive shall not be deemed divulge or furnish any confidential information of Employer acquired by him while employed by Employer to preclude the Executive from employment any person, firm or engagement during the Non-Competition Period following termination of employment hereunder (i) in a business engaged in retail salescorporation, provided such employment other than to Employer or engagement does not otherwise violate the provisions of this Section 9upon its written request, or use any such confidential information (iiwhich shall at all times remain the property of Employer) by a corporation, some of the activities of which are competitive with the business of the Company, if the directly or indirectly for Executive's activities do not relate to such competitive business, and nothing contained in this Section 9 shall be deemed to prohibit the Executive, during the Non-Competition Period following termination of employment hereunder, from acquiring or holding, solely as an investment, publicly traded securities of any competitor corporation so long as such securities do not, in the aggregate, constitute more than 3% of the outstanding voting securities of such corporation.
(E) The Executive acknowledges that the Company and its Subsidiaries continually develop Confidential Information, that the Executive may develop Confidential Information for the Company or its Subsidiaries and that the Executive may learn of Confidential Information during the course of his employment under this Agreement. The Executive will comply with the policies and procedures of the Company and its Subsidiaries for protecting Confidential Information and shall never disclose to any person (except as required by applicable law or legal process ’ own benefit or for the proper performance benefit of his duties any person, firm or corporation other than Employer. For purposes hereof, the term “confidential information” means data and responsibilities to the Company and its Subsidiaries, or in connection with any litigation between the Company and the Executive (provided that the Company shall be afforded a reasonable opportunity in each case to obtain a protective order)), or use for his own benefit or gain, any Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its Subsidiaries. The Executive understands that this restriction shall continue to apply after his employment terminates, regardless of the reason for such termination. All documents, records, tapes and other media of every kind and description information relating to the business, present Banking Business (as hereinafter defined) which is or otherwise, has been disclosed to Executive or of the Company or its Subsidiaries and any copies, in whole or in part, thereof (the "Documents"), whether or not prepared by the Executive, shall be the sole and exclusive property of the Company and its Subsidiaries. The which Executive shall safeguard all Documents and shall surrender to the Company at the time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive's possession or control.
(F) Without limiting the foregoing, it is understood that the Company shall not be obligated to make any of the payments or to provide for any of the benefits specified in Sections 6.1 and 6.2 hereof, and shall be entitled to recoup the pro rata portion of any such payments and of the value of any such benefits previously provided to the Executive in the event of a material breach by the Executive of the provisions of this Section 9 (such pro ration to be determined became aware as a fraction, the numerator consequence of or through Executive’s relationship to Employer and which has value to Employer and is the number of days from such breach not generally known to the second anniversary of the date on which the Executive terminates employment and the denominator of which is 730), which breach continues without having been cured within 15 days after written notice to the Executive specifying the breach in reasonable detail.
(G) The Executive and the Company agree that in the event the Executive seeks a reference from the Company in connection with any future or prospective employment, the Company's response to any such reference inquiry shall be limited to and consistent with the following: start and end dates of employment, position(s) held and last salary. For purposes of this Section 9, the following definitions shall apply:its
Appears in 2 contracts
Sources: Executive Employment Agreement (Ameris Bancorp), Executive Employment Agreement (Ameris Bancorp)
Restrictive Covenants. The Executive agrees that restrictions on his activities during and after his employment are necessary to protect During the goodwill, Confidential Information and other legitimate interests of the Company and its Subsidiaries, and that the agreed restrictions set forth below will not deprive the Executive of the ability to earn a livelihood:
(A) While the Executive is in the employment of the Company and, if the Executive is entitled to benefits under Section 6.1 hereof upon termination of employment, for a period of twenty-four (24) months after such termination of employment (the "Non-Competition Period"), Employee agrees to be bound by each of the Executive shall following independent and divisible restrictions: Employee will not, directly within the Restricted Geographic Area, be employed by, work for, consult with, provide services to, or indirectlylend assistance to any Competing Organization in a Prohibited Capacity. Employee will not be employed by, whether work for, consult with, provide services to, or lend assistance to any Competing Organization in any capacity if it is likely that as ownerpart of such capacity, partnerEmployee would inevitably use and/or disclose any of Company’s trade secrets or other Confidential Information. Employee may be employed by, investorwork for, consultantconsult with, agentprovide services to, employee, co-venturer or otherwise, compete lend assistance to any Diversified Competing Organization provided that: i) the part of the Competing Organization’s diversified business with which Employee will be affiliated does not involve any Competing Products; ii) the Employee’s affiliation with the business Competing Organization does not involve any Competing Products; iii) Employee provides Company with a written description of Employee’s anticipated activities on behalf of the Competing Organization which includes, without limitation, an assurance satisfactory to Company or that Employee’s affiliation with the Competing Organization does not involve any Competing Products; iv) Employee’s affiliation with the Competing Organization would not likely cause Employee to inevitably use and/or disclose any of its Subsidiaries within Company’s trade secrets or other Confidential Information; and v) Employee’s affiliation with the Diversified Competing Organization does not constitute a twenty (20) mile radius of any location where the Company operates a retail store at the date of termination of employment, or at which the Company has entered into a letter of intent or similar commitment for or entered into obligations relating competitive disadvantage to the opening of Company. Employee will not be employed by, work for, consult with, provide services to or lend assistance to any Customers or Active Prospects in the Restricted Geographic Area in a retail store to be opened within the period of this covenant. Specifically, but without limiting the foregoing, the Executive agrees not to engage in capacity or role that involves any manner in any activity that Competing Products and is directly or indirectly competitive with the business of Company. Employee will not provide, sell, market, assist in the Company provision, selling or marketing of, or attempt to provide, sell or market any Competing Products to any of its Subsidiaries as conducted Company’s Customers located in the Restricted Geographic Area or which has been proposed by management within six months prior to termination of the Executive's employment. Restricted activity also includes without limitation accepting employment otherwise solicit or a consulting position communicate with any person who isof Company’s Customers located in the Restricted Geographic Area for the purpose of selling, marketing or providing, assisting in the provision, selling or marketing of, or attempting to sell, market or provide any Competing Products. Employee will not provide, sell, market, attempt to provide, sell or market, or assist any person or entity in the sale or provision of, any Competing Products to any of Company’s Customers with respect to whom, at any time within twelve (12) months prior to during the two years immediately preceding the termination of the Executive's Employee’s employment has beenwith Company, a licensee Employee had any sales or service contact on behalf of the Company Company, Employee had any business contact on behalf of Company, Employee had any sales or service responsibility (including without limitation any supervisory or managerial responsibility) on behalf of its Subsidiaries. For Company, or Employee had access to, or gained knowledge of, any Confidential Information concerning Company’s business with such customer, or otherwise solicit or communicate with any such customers for the purposes of this Section 9selling or providing any Competing Products. Employee will not provide, sell, market, attempt to provide, sell or market, or assist any person or entity in the business sale or provision of, any Competing Products to any of the Company and its Subsidiaries shall mean retail operations Company’s Active Prospects, or otherwise solicit or communicate with any of Company’s Active Prospects for the sale purpose of natural and organic foodsselling or providing any Competing Products. Employee will not urge, including groceriesinduce or seek to induce any of Company’s independent contractors, meatsubcontractors, seafooddistributors, dairy and frozen products and producebrokers, as well as natural vitaminsconsultants, supplementssales representatives, homeopathic remedies and body care products.
(B) The Executive agrees that during the Non-Competition Period customers, vendors, suppliers or any other person or entity with whom Company has a business relationship to terminate their relationship with, or representation of, Company or to cancel, withdraw, reduce, limit or in connection with any termination of employment pursuant to which manner modify any such person’s or entity’s business with, or representation of, Company. Employee will not solicit, recruit, hire, employ, engage or retain, or assist any Competing Organization in the Executive is entitled to benefits under Section 6.1solicitation, the Executive will notrecruitment, either directly hiring, employment, engagement or through any agent or employeeretention of, Solicit any employee of the Company or any of its Subsidiaries Company’s distributors, sales representatives, or consultants located in the Restricted Geographic Area, for any competitive purpose. Employee will not employ, engage in personal service or favor (whether or not compensated), solicit for employment, advise or recommend to terminate his any other person or her relationship with the Company entity that such person or entity employ, or solicit for employment, any of its Subsidiaries individual now or to apply for or accept employment with any enterprise competitive with the business of the hereafter employed by Company, or Solicit otherwise induce or entice any customersuch employee to leave his/her employment with Company to work for, supplierconsult with, licensee provide services to, or vendor lend assistance to any Competing Organization. Employee will not make or publish any disparaging or derogatory statements about Company, its products, Parent and any of the Company or any of its Subsidiaries to terminate or materially modify its relationship Affiliates, together with themtheir past, or, in the case of a customer, to conduct with any person any business or activity which such customer conducts or could conduct with the Company or any of its Subsidiaries.
(C) The Executive present and the Company further agree that following any termination of the Executive's employment pursuant to which the Executive is entitled to benefits under Section 6.1, (i) the Executive shall not make statements or representations, otherwise communicate, directly or indirectly, in writing, orally, or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Company or any if its Subsidiaries or affiliates or their respective former or current future officers, directors, employees, advisorsattorneys and agents. Disparaging or derogatory statements include, businesses but are not limited to, negative statements regarding Company’s business or reputationsother practices; provided, (ii) however, nothing herein shall prohibit Employee from providing any information as may be compelled by law or legal process. Employee agrees that the Company shall instruct its Board members and senior management to not make statements or representations, otherwise communicate, directly, divisible covenants contained in this Agreement prohibit Employee from engaging in the restricted activities directly or indirectly, whether on Employee’s behalf or on behalf of or for the benefit of any other person or entity, including for Employee’s benefit, and that all of the covenants restrict Employee from engaging in writing, orally or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Executive or his reputationactivities for a competitive purpose. The Executive and the Company further agree that, in the event the Executive's employment with the Company is terminated other than by the Company for Cause or as a result of the Executive's death, the Executive and the Company shall refer to the Executive's departure as a "resignation" in any press release or other external announcement or communication concerning the Executive's departure from the Company. Nothing in this paragraph is intended to undermine any obligations the Executive or the Company may have to comply with applicable law, or prohibit the Executive or the Company from providing truthful testimony or information pursuant to subpoena, court order, discovery demand or similar legal process, or truthfully responding to lawful inquiries by any governmental or regulatory entity.
(D) The provisions of this Section 9 shall not be deemed to preclude the Executive from employment or engagement during the Non-Competition Period following termination of employment hereunder (i) in a business engaged in retail sales, provided such employment or engagement does not otherwise violate the provisions of this Section 9, or (ii) by a corporation, some of the activities of which are competitive with the business of the Company, if the Executive's activities do not relate to such competitive business, and nothing contained in this Section 9 shall be deemed to prohibit the Executive, during the Non-Competition Period following termination of employment hereunder, from acquiring or holding, solely as an investment, publicly traded securities of any competitor corporation so long as such securities do not, in the aggregate, constitute more than 3% of the outstanding voting securities of such corporation.
(E) The Executive acknowledges that the Company and its Subsidiaries continually develop Confidential Information, that the Executive may develop Confidential Information for the Company or its Subsidiaries and that the Executive may learn of Confidential Information during the course of his employment under this Agreement. The Executive will comply with the policies and procedures of the Company and its Subsidiaries for protecting Confidential Information and shall never disclose to any person (except as required by applicable law or legal process or for the proper performance of his duties and responsibilities to the Company and its Subsidiaries, or in connection with any litigation between the Company and the Executive (provided that the Company shall be afforded a reasonable opportunity in each case to obtain a protective order)), or use for his own benefit or gain, any Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its Subsidiaries. The Executive understands that this restriction shall continue to apply after his employment terminates, regardless of the reason for such termination. All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the Company or its Subsidiaries and any copies, in whole or in part, thereof (the "Documents"), whether or not prepared by the Executive, shall be the sole and exclusive property of the Company and its Subsidiaries. The Executive shall safeguard all Documents and shall surrender to the Company at the time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive's possession or control.
(F) Without limiting the foregoing, it is understood that the Company shall not be obligated to make expire during any period in which Employee is in violation of any of the payments or to provide for any of the benefits specified in Sections 6.1 and 6.2 hereofrestrictive covenants set forth herein, and all restrictions shall automatically be entitled to recoup extended by the pro rata portion period Employee was in violation of any such payments and of the value of any such benefits previously provided to the Executive in the event of a material breach by the Executive of the provisions of this Section 9 (such pro ration to be determined as a fraction, the numerator of which is the number of days from such breach to the second anniversary of the date on which the Executive terminates employment and the denominator of which is 730), which breach continues without having been cured within 15 days after written notice to the Executive specifying the breach in reasonable detailrestrictions.
(G) The Executive and the Company agree that in the event the Executive seeks a reference from the Company in connection with any future or prospective employment, the Company's response to any such reference inquiry shall be limited to and consistent with the following: start and end dates of employment, position(s) held and last salary. For purposes of this Section 9, the following definitions shall apply:
Appears in 2 contracts
Sources: Executive Non Competition Agreement, Confidentiality, Non Competition and Non Solicitation Employment Agreement
Restrictive Covenants. The Executive Property Management Seller acknowledges and agrees that restrictions on his activities during and after his employment are necessary to protect the goodwill, Confidential Information and other legitimate interests of the Company and its Subsidiaries, and that the agreed restrictions set forth below will Property Management Buyer would not deprive the Executive of the ability to earn a livelihood:
(A) While the Executive is in the employment of the Company and, if the Executive is entitled to benefits under Section 6.1 hereof upon termination of employment, for a period of twenty-four (24) months after such termination of employment (the "Non-Competition Period"), the Executive shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer or otherwise, compete with the business of the Company or any of its Subsidiaries within a twenty (20) mile radius of any location where the Company operates a retail store at the date of termination of employment, or at which the Company has have entered into a letter of intent or similar commitment for or entered into obligations relating this Agreement to purchase the opening of a retail store to be opened within the period of this covenant. Specifically, Acquired Assets but without limiting the foregoing, the Executive agrees not to engage in any manner in any activity that is directly or indirectly competitive with the business of the Company or any of its Subsidiaries as conducted or which has been proposed by management within six months prior to termination of the Executive's employment. Restricted activity also includes without limitation accepting employment or a consulting position with any person who is, or at any time within twelve (12) months prior to termination of the Executive's employment has been, a licensee of the Company or any of its Subsidiaries. For the purposes of this Section 9, the business of the Company and its Subsidiaries shall mean retail operations for the sale of natural and organic foodsfollowing restrictive covenants, including groceries, meat, seafood, dairy and frozen products and produce, as well as natural vitamins, supplements, homeopathic remedies and body care products.
(B) The Executive agrees that during the Non-Competition Period or in connection with any termination of employment pursuant to which the Executive is entitled to benefits under Section 6.1, the Executive will not, either directly or through any agent or employee, Solicit any employee of the Company or any of its Subsidiaries to terminate his or her relationship with the Company or any of its Subsidiaries or to apply for or accept employment with any enterprise competitive with the business of the Company, or Solicit any customer, supplier, licensee or vendor of the Company or any of its Subsidiaries to terminate or materially modify its relationship with them, or, in the case of a customer, to conduct with any person any business or activity which such customer conducts or could conduct with the Company or any of its Subsidiaries.
(C) The Executive and the Company further agree that following any termination of the Executive's employment pursuant to which the Executive is entitled to benefits under Section 6.1, (i) the Executive shall not make statements or representations, otherwise communicate, directly or indirectly, in writing, orally, or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Company or any if its Subsidiaries or affiliates or their respective former or current officers, directors, employees, advisors, businesses or reputations, (ii) the Company shall instruct its Board members and senior management to not make statements or representations, otherwise communicate, directly, or indirectly, in writing, orally or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Executive or his reputation. The Executive and the Company further agree that, in the event the Executive's employment with the Company is terminated other than by the Company for Cause or as a result of the Executive's death, the Executive and the Company shall refer to the Executive's departure as a "resignation" in any press release or other external announcement or communication concerning the Executive's departure from the Company. Nothing in this paragraph is intended to undermine any obligations the Executive or the Company may have to comply with applicable law, or prohibit the Executive or the Company from providing truthful testimony or information pursuant to subpoena, court order, discovery demand or similar legal process, or truthfully responding to lawful inquiries by any governmental or regulatory entity.
(D) The provisions of this Section 9 shall not be deemed to preclude the Executive from employment or engagement during the Non-Competition Period following termination of employment hereunder (i) in a business engaged in retail sales, provided such employment or engagement does not otherwise violate the provisions of this Section 99.3 are supported by good and sufficient consideration, or that the Property Management Seller (iiincluding, but not limited to, officers, shareholders (and their spouses, if any), employees and agents thereof) by a corporation, some possesses information and expertise relating to the Business and the Acquired Assets that will enable them to injure Property Management Buyer and diminish the value of the activities of which are investment by Property Management Buyer in the Business and the Acquired Assets if the Property Management Seller should engage in any business that is competitive with the business Business conducted by Property Management Buyer. The Property Management Seller hereby represents and warrants that the Property Management Seller (including, but not limited to the officers and shareholders thereof, and their spouses) do not own a management company that operates within the restricted area (hereinafter defined) and they covenant hereby covenants and agrees to deliver to Property Management Buyer during the Due Diligence Period, non-disclosure and non-competition agreements, in a form acceptable to Property Management Buyer, executed by the Shareholders of Property Management Seller. This separate non-competition agreement shall provide (a) for a period of two (2) years after the Closing Date (the “Restriction Period”) Key Personnel shall not: within twenty-five (25) miles of the CompanyLocation, if the Executive's activities do not relate to such competitive business, and nothing contained in this Section 9 shall be deemed to prohibit the Executive, during the Non-Competition Period following termination of employment hereunder, from acquiring directly or holding, solely as an investmentowner, publicly traded securities of any competitor corporation so long as such securities do notofficer, in the aggregateemployee, constitute more than 3% of the outstanding voting securities of such corporation.
(E) The Executive acknowledges that the Company and its Subsidiaries continually develop Confidential Informationagent, that the Executive may develop Confidential Information for the Company or its Subsidiaries and that the Executive may learn of Confidential Information during the course of his employment under this Agreement. The Executive will comply with the policies and procedures of the Company and its Subsidiaries for protecting Confidential Information and shall never disclose to any person (except as required by applicable law or legal process or for the proper performance of his duties and responsibilities to the Company and its Subsidiaries, or in connection with any litigation between the Company and the Executive (provided that the Company shall be afforded a reasonable opportunity in each case to obtain a protective order)), or use for his own benefit or gain, any Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its Subsidiaries. The Executive understands that this restriction shall continue to apply after his employment terminates, regardless of the reason for such termination. All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, operate a management company either with the name “Island Beach Resort” or any similar name and/or design, or style of service similar that of the Company Business; (b) for a period of two (2) years after the Closing Date directly or its Subsidiaries and indirectly, as an owner, officer, employee, agent, or otherwise solicit for employment or employ any copiesemployees of the Business. If any provision of this Section 9.3 or Section 7. 1 is violated, in whole or in part, Property Management Buyer shall be entitled in addition to damages upon application to any court of proper jurisdiction, to seek a temporary restraining order, preliminary injunction or permanent injunction, to restrain and enjoin such violation without prejudice as to any other remedies Property Management Buyer may have at law or in equity and Property Management Seller hereby consents to the issuance thereof (by any court of competent jurisdiction. The Property Management Seller agrees that the "Documents")restrictions in this Section 9.3 or Section 7.1 are reasonable and necessary for the protection of Property Management Buyer’s business and goodwill and that Property Management Buyer will suffer irreparable injury, for which monetary damages alone may be inadequate, if Property Management Seller engages in the prohibited conduct. If Property Management Buyer seeks a temporary restraining order, preliminary injunction or permanent injunction, Property Management Buyer shall not be required to post any bond with respect thereto, or, if a bond is required, it may be posted without surety thereon and Property Management Seller waives any requirement for the securing or posting of any bond in connection with such remedy. If any provision of this Section 9.3 is held by any court of competent jurisdiction to be unenforceable, or unreasonable, as to time, geographic area or business limitation, the parties agree that such provisions shall be and are hereby reformed to the maximum time, geographic area or business limitation permitted by applicable law and the court in each case shall reduce the necessary terms to a permissible duration, burden or scope. The parties further agree that, in such event, the remaining restrictions contained herein shall be severable and shall remain in effect and shall be enforceable independently of each other. Upon any breach of the covenants contained in this Section 9.3 whether or not prepared by there is litigation, the Executive, restrictions as to duration contained therein shall be the sole and exclusive property of the Company and its Subsidiaries. The Executive shall safeguard all Documents and shall surrender deemed automatically extended for a period at least equal to the Company at the time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive's possession or control.
(F) Without limiting the foregoing, it is understood that the Company shall not be obligated to make any total period of the payments or to provide for any of the benefits specified in Sections 6.1 and 6.2 hereof, and shall be entitled to recoup the pro rata portion of any such payments and of the value of any such benefits previously provided to the Executive in the event of a material breach by the Executive of the provisions of this Section 9 (such pro ration to be determined as a fraction, the numerator of which is the number of days from such breach to the second anniversary of the date on which the Executive terminates employment and the denominator of which is 730), which breach continues without having been cured within 15 days after written notice to the Executive specifying the breach in reasonable detailor breaches.
(G) The Executive and the Company agree that in the event the Executive seeks a reference from the Company in connection with any future or prospective employment, the Company's response to any such reference inquiry shall be limited to and consistent with the following: start and end dates of employment, position(s) held and last salary. For purposes of this Section 9, the following definitions shall apply:
Appears in 2 contracts
Sources: Purchase Agreement, Purchase Agreement (Ark Restaurants Corp)
Restrictive Covenants. The (a) Executive agrees that restrictions on acknowledges his activities during and after his employment are necessary to protect the goodwill, Confidential Information and other legitimate interests ongoing obligations under Section 5 of the Company Employment Agreement. Sections 5(e) and its Subsidiaries, 5(f) of the Employment Agreement are hereby incorporated by reference and that the agreed restrictions will apply to this Agreement as if set forth below will not deprive the Executive of the ability herein. The enforcement terms set forth therein shall apply to earn a livelihood:
(A) While the Executive is in the employment of the Company and, if the Executive is entitled to benefits under Section 6.1 hereof upon termination of employment, for a period of twenty-four (24) months after such termination of employment (the "Non-Competition Period"), the Executive shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer or otherwise, compete with the business of the Company or any of its Subsidiaries within a twenty (20) mile radius of any location where the Company operates a retail store at the date of termination of employment, or at which the Company has entered into a letter of intent or similar commitment for or entered into obligations relating to the opening of a retail store to be opened within the period of this covenant. Specifically, but without limiting the foregoing, the Executive agrees not to engage in any manner in any activity that is directly or indirectly competitive with the business of the Company or any of its Subsidiaries as conducted or which has been proposed by management within six months prior to termination of the Executive's employment. Restricted activity also includes without limitation accepting employment or a consulting position with any person who is, or at any time within twelve (12) months prior to termination of the Executive's employment has been, a licensee of the Company or any of its Subsidiaries. For the purposes of this Section 9, the business of the Company and its Subsidiaries shall mean retail operations for the sale of natural and organic foods, including groceries, meat, seafood, dairy and frozen products and produce, as well as natural vitamins, supplements, homeopathic remedies and body care products4.
(Bb) The Executive agrees that during the Non-Competition Period or in connection with any termination of employment pursuant to which the Executive is entitled to benefits under Section 6.1, the Executive will not, either directly or through any agent or employee, Solicit any employee of the Company or any of its Subsidiaries to terminate his or her relationship with the Company or any of its Subsidiaries or to apply for or accept employment with any enterprise competitive with the business of the Company, or Solicit any customer, supplier, licensee or vendor of the Company or any of its Subsidiaries to terminate or materially modify its relationship with them, or, in the case of a customer, to conduct with any person any business or activity which such customer conducts or could conduct with the Company or any of its Subsidiaries.
(C) The Executive and the Company further agree that following any termination of the Executive's employment pursuant to which the Executive is entitled to benefits under Section 6.1, (i) the Executive shall not make statements or representations, otherwise communicate, directly or indirectly, in writing, orally, or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Company or any if its Subsidiaries or affiliates or their respective former or current officers, directors, employees, advisors, businesses or reputations, (ii) the Company shall instruct its Board members and senior management to not make statements or representations, otherwise communicate, directly, or indirectly, in writing, orally or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Executive or his reputation. The Executive and the Company further agree that, in the event the Executive's employment with the Company is terminated other than by the Company for Cause or as a result of the Executive's death, the Executive and the Company shall refer to the Executive's departure as a "resignation" in any press release or other external announcement or communication concerning the Executive's departure from the Company. Nothing in this paragraph is intended to undermine any obligations the Executive or the Company may have to comply with applicable law, or prohibit the Executive or the Company from providing truthful testimony or information pursuant to subpoena, court order, discovery demand or similar legal process, or truthfully responding to lawful inquiries by any governmental or regulatory entity.
(D) The provisions of this Section 9 shall not be deemed to preclude the Executive from employment or engagement during the Non-Competition Period following termination of employment hereunder (i) in a business engaged in retail sales, provided such employment or engagement does not otherwise violate the provisions of this Section 9, or (ii) by a corporation, some of the activities of which are competitive with the business of the Company, if the Executive's activities do not relate to such competitive business, and nothing contained in this Section 9 shall be deemed to prohibit the Executive, during the Non-Competition Period following termination of employment hereunder, from acquiring or holding, solely as an investment, publicly traded securities of any competitor corporation so long as such securities do not, in the aggregate, constitute more than 3% of the outstanding voting securities of such corporation.
(E) The Executive acknowledges that the Company and its Subsidiaries continually develop Confidential Information, that the Executive may develop Confidential Information for the Company or its Subsidiaries and that the Executive may learn of Confidential Information during the course of his employment under this Agreement. The Executive will comply with the policies and procedures Company, he became become familiar with the trade secrets of the Company and its Subsidiaries for protecting with other Confidential Information and shall never disclose to any person (except as required by applicable law or legal process or for defined in the proper performance of his duties and responsibilities to Restrictive Covenant Agreement) concerning the Company and its Subsidiariespredecessors and that Executive’s services were of special, unique and extraordinary value to the Company. Therefore, Executive agrees that, during the period of one year immediately following the termination of Executive’s employment (the “Non-Competition Restricted Period”), Executive shall not directly or indirectly own any interest in, manage, control, participate in, consult with, render services for, be employed in an executive, managerial, administrative or other capacity by, or in connection any manner engage in, any business or entity competing with the Business (as defined in the Restrictive Covenant Agreement) in any litigation between country in which Executive had a material presence or the Company and conducts business during the Executive (provided that last two years of Executive’s employment or in which the Company has material plans to conduct business as of the termination of Executive’s employment. Nothing herein shall be afforded prohibit Executive from being a reasonable opportunity passive owner of not more than 2% of the outstanding stock of any class of a corporation which is publicly traded, so long as Executive has no active participation in each case the business of such corporation. In the event Executive breaches his fiduciary duty to obtain a protective order)), or use for his own benefit or gain, any Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its Subsidiaries. The Executive understands that this restriction shall continue to apply after his employment terminatesunlawfully takes, regardless of the reason for such termination. All documentsphysically or electronically, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the Company or its Subsidiaries and any copies, in whole or in part, thereof (the "Documents"), whether or not prepared by the Executive, shall be the sole and exclusive property of the Company and its Subsidiaries. The Executive shall safeguard all Documents and shall surrender belonging to the Company as reasonably determined by the Company, the Non-Competition Restricted Period as defined above shall be extended for one additional year, for a maximum period of two years immediately following his termination of employment from the Company. Further, in the event Executive breaches this Section 4(b), the Non-Competition Restricted Period shall extend for each day of Executive’s non-compliance, so as to give the Company the bargained for benefit of Executive’s non-competition covenants.
(c) If, at the time his employment terminatesof enforcement of this Section 4, a court shall hold that the duration, scope or at area restrictions stated herein are unreasonable under circumstances then existing, the parties agree that the maximum duration, scope or area reasonable under such earlier time circumstances shall be substituted for the stated duration, scope or times as area and that the Board or its designee may specifycourt shall be allowed to revise the restrictions contained herein to cover the maximum period, all Documents then in the Executive's possession or controlscope and area permitted by law.
(Fd) Without limiting the foregoing, it is understood Executive acknowledges that the Company shall not be obligated restrictions contained in this Section 4 are reasonable and that Executive has been provided an opportunity to make any of the payments or to provide for any of the benefits specified in Sections 6.1 and 6.2 hereof, and shall be entitled to recoup the pro rata portion of any such payments and of the value of any such benefits previously provided to the Executive in the event of a material breach by the Executive of review the provisions of this Section 9 (such pro ration to be determined as a fraction, the numerator of which is the number of days from such breach to the second anniversary of the date on which the Executive terminates employment and the denominator of which is 730), which breach continues without having been cured within 15 days after written notice to the Executive specifying the breach in reasonable detail.
(G) The Executive and the Company agree that in the event the Executive seeks a reference from the Company in connection Agreement with any future or prospective employment, the Company's response to any such reference inquiry shall be limited to and consistent with the following: start and end dates of employment, position(s) held and last salaryhis legal counsel. For purposes of this Section 9, the following definitions shall apply:|US-DOCS\146309447.3||
Appears in 1 contract
Restrictive Covenants. The Executive agrees that restrictions on his activities during and after his employment are necessary to protect the goodwill, Confidential Information and other legitimate interests of the Company and its Subsidiaries, and that the agreed restrictions set forth below will not deprive the Executive of the ability to earn a livelihood:
(A) While Executive acknowledges that (1) Employer has separately bargained and paid additional consideration for the restrictive covenants herein; and (2) Employer will provide certain benefits to Executive is hereunder in the employment reliance on such covenants in view of the Company and, if the Executive is entitled to benefits under Section 6.1 hereof upon termination of employment, for a period of twenty-four (24) months after such termination of employment (the "Non-Competition Period"), the Executive shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer or otherwise, compete with the business unique and essential nature of the Company or any services Executive will perform on behalf of its Subsidiaries within a twenty (20) mile radius of any location where Employer and the Company operates a retail store at the date of termination of employment, or at which the Company has entered into a letter of intent or similar commitment for or entered into obligations relating to the opening of a retail store to be opened within the period of this covenant. Specifically, but without limiting the foregoing, the irreparable injury that would befall Employer should Executive agrees not to engage in any manner in any activity that is directly or indirectly competitive with the business of the Company or any of its Subsidiaries as conducted or which has been proposed by management within six months prior to termination of the Executive's employment. Restricted activity also includes without limitation accepting employment or a consulting position with any person who is, or at any time within twelve (12) months prior to termination of the Executive's employment has been, a licensee of the Company or any of its Subsidiaries. For the purposes of this Section 9, the business of the Company and its Subsidiaries shall mean retail operations for the sale of natural and organic foods, including groceries, meat, seafood, dairy and frozen products and produce, as well as natural vitamins, supplements, homeopathic remedies and body care productsbreach such covenants.
(B) The Executive agrees further acknowledges that during the Non-Competition Period or in connection with any termination of employment pursuant to which the Executive is entitled to benefits under Section 6.1, the Executive will not, either directly or through any agent or employee, Solicit any employee of the Company or any of its Subsidiaries to terminate his or her relationship with the Company or any of its Subsidiaries or to apply for or accept employment with any enterprise competitive with the business of the Company, or Solicit any customer, supplier, licensee or vendor of the Company or any of its Subsidiaries to terminate or materially modify its relationship with them, or, in the case services are of a customerspecial, unique and extraordinary character and that his position with Employer will place him in a position of confidence and trust with employees of Employer and its subsidiaries and affiliates and with Employer’s other constituencies and will allow him access to conduct with any person any business or activity which such customer conducts or could conduct with the Company or any of trade secrets and confidential information concerning Employer and its Subsidiariessubsidiaries and affiliates.
(C) The Executive further acknowledges that the type and the Company further agree that following any termination periods of the Executive's employment pursuant to which the Executive is entitled to benefits under Section 6.1, (i) the Executive shall not make statements or representations, otherwise communicate, directly or indirectly, in writing, orally, or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Company or any if its Subsidiaries or affiliates or their respective former or current officers, directors, employees, advisors, businesses or reputations, (ii) the Company shall instruct its Board members and senior management to not make statements or representations, otherwise communicate, directly, or indirectly, in writing, orally or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Executive or his reputation. The Executive and the Company further agree that, in the event the Executive's employment with the Company is terminated other than restrictions imposed by the Company for Cause or as a result of the Executive's death, the Executive and the Company shall refer to the Executive's departure as a "resignation" in any press release or other external announcement or communication concerning the Executive's departure from the Company. Nothing covenants in this paragraph is intended to undermine any obligations the Section 10 are fair and reasonable and that such restrictions will not prevent Executive or the Company may have to comply with applicable law, or prohibit the Executive or the Company from providing truthful testimony or information pursuant to subpoena, court order, discovery demand or similar legal process, or truthfully responding to lawful inquiries by any governmental or regulatory entityearning a livelihood.
(D) The provisions Having acknowledged the foregoing, Executive covenants and agrees with Employer as follows:
(1) For a period of this Section 9 two (2) years after the termination of Executive’s employment by Employer for any reason or for no reason, Executive shall not be deemed divulge or furnish any confidential information of Employer acquired by him while employed by Employer to preclude any person, firm or corporation, other than to Employer or upon its written request, or use any such confidential information (which shall at all times remain the Executive from employment property of Employer) directly or engagement during indirectly for Executive’ own benefit or for the Non-Competition Period following termination benefit of employment hereunder any person, firm or corporation other than Employer. For purposes hereof, the term “confidential information” means data and information relating to the Banking Business (ias hereinafter defined) in a business engaged in retail sales, provided such employment or engagement (which does not otherwise violate rise to the provisions status of this a Trade Secret, as such term is defined in Section 910-1-761 of the Official Code of Georgia Annotated) which is or has been disclosed to Executive or of which Executive became aware as a consequence of or through Executive’s relationship to Employer and which has value to Employer and is not generally known to its competitors. Without limiting the foregoing, “confidential information” shall include: (a) all items of information that could be classified as a Trade Secret pursuant to Georgia law; (b) the names, addresses and banking requirements of the customers of Employer or its subsidiaries and the nature and amount of business done with such customers; (c) the names and addresses of employees and other business contacts of Employer or its subsidiaries; (d) the particular names, methods and procedures utilized by Employer or its subsidiaries in the conduct and advertising of their business; (e) application, operating system, communication and other computer software and derivatives thereof, including, without limitation, sources and object codes, flow charts, coding sheets, routines, subrouting and related documentation and manuals of Employer or its subsidiaries; and (f) marketing techniques, purchasing information, pricing policies, loan policies, quoting procedures, financial information, customer data and other materials or information relating to Employer’s or its subsidiaries’ manner of doing business. Confidential information shall not include any data or information that has been voluntarily disclosed to the public by Employer (except where such public disclosure has been made by Executive without authorization) or that has been independently developed and disclosed by others, or (ii) by a corporation, some of that otherwise enters the activities of which are competitive with the business of the Company, if the Executive's activities do not relate to such competitive business, and nothing contained in this Section 9 shall be deemed to prohibit the Executive, during the Non-Competition Period following termination of employment hereunder, from acquiring or holding, solely as an investment, publicly traded securities of any competitor corporation so long as such securities do not, in the aggregate, constitute more than 3% of the outstanding voting securities of such corporationpublic domain through lawful means.
(E2) The Executive acknowledges hereby agrees that the Company and its Subsidiaries continually develop Confidential Information, that the Executive may develop Confidential Information for the Company he will not directly or its Subsidiaries and that the Executive may learn of Confidential Information during the course of his employment under this Agreement. The Executive will comply with the policies and procedures of the Company and its Subsidiaries for protecting Confidential Information and shall never indirectly disclose to any person (except as required by applicable law or legal process or for the proper performance of his duties and responsibilities to the Company and its Subsidiaries, or in connection with any litigation between the Company and the Executive (provided that the Company shall be afforded a reasonable opportunity in each case to obtain a protective order))anyone, or use or otherwise exploit for his own benefit or gain, for the benefit of anyone other than Employer and its subsidiaries any Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its Subsidiaries. The Executive understands that this restriction shall continue to apply after his employment terminates, regardless trade secrets (as defined in §10-1-761 of the reason Official Code of Georgia Annotated and applicable code sections for such termination. All documents, records, tapes and other media any states where Employer has business locations) of every kind and description relating to the business, present or otherwise, of the Company or its Subsidiaries and any copies, in whole or in part, thereof (the "Documents"), whether or not prepared by the Executive, shall be the sole and exclusive property of the Company and its Subsidiaries. The Executive shall safeguard all Documents and shall surrender to the Company at the time his employment terminates, or at such earlier time or times Employer for as the Board or its designee may specify, all Documents then in the Executive's possession or controllong as they remain trade secrets.
(F3) Without limiting the foregoingWhile Executive is employed by Employer and for a period of one (1) year after termination of Executive’s employment pursuant to Subsection 8(A), it is understood that the Company 8(C) or 8(E) hereof, Executive shall not be obligated (except on behalf of or with the prior written consent of Employer), on Executive’s own behalf or in the service or on behalf of others, solicit, divert or appropriate, or attempt to make solicit, divert or appropriate, directly or by assisting others, any Banking Business from any of the payments customers of Employer or to provide for any of the benefits specified in Sections 6.1 and 6.2 hereof, and shall be entitled to recoup the pro rata portion of any such payments and of the value of any such benefits previously provided to the Executive in the event of a material breach by the Executive of the provisions of this Section 9 (such pro ration to be determined as a fraction, the numerator of which is the number of days from such breach to the second anniversary of the date on which the Executive terminates employment and the denominator of which is 730), which breach continues without having been cured within 15 days after written notice to the Executive specifying the breach in reasonable detail.
(G) The Executive and the Company agree that in the event the Executive seeks a reference from the Company in connection with any future or prospective employment, the Company's response to any such reference inquiry shall be limited to and consistent with the following: start and end dates of employment, position(s) held and last salary. For purposes of this Section 9, the following definitions shall apply:its subsidiaries,
Appears in 1 contract
Restrictive Covenants. The (a) Executive acknowledges and agrees that his position with the Company places him in a position of confidence and trust with respect to Proprietary Information. Executive consequently agrees that it is reasonable and necessary for the protection of the goodwill of the Business that Executive make the covenants contained herein. Accordingly, Executive agrees that, during the Term of this Agreement and for a period of twelve (12) months after the date of expiration or termination of Executive's employment hereunder for any reason whatsoever, Executive will not, without the prior written consent of the Company and provided that the Company has not failed to make any payments to the Executive when due in accordance with the provisions of Section 6 hereof and otherwise comply with the terms and conditions of this Agreement, (i) employ, solicit or encourage to leave the employ of the Company, or to become employed by any person other than the Company, any employee of the Company, or any individual who was an employee of the Company during the one year prior to the termination or expiration of Executive's employment, (ii) persuade or attempt to persuade any customer of the Company as of the date of the termination or expiration of Executive's employment or during the one year prior to the termination or expiration of Executive's employment to cease doing business with, or to reduce the amount of business it does with, the Company, or solicit the business of any of the Company's customers as of the date of the termination or expiration during the one year prior to the termination or expiration of Executive's employment hereunder with respect to any product or service which competes with the products and services of the Company as of the date of termination of Executive's employment or (iii) compete with the Company as a consultant to, employee of, or equity participant in, any venture which competes with the Business within the United States of America. No provision of this Section 10 shall prohibit Executive from merely owning (i.e., having no participation or involvement in the management) no more than three percent (3%) of the outstanding equity securities of any actively traded public entity.
(b) Executive has carefully considered the nature and extent of the restrictions on his activities during upon him and after his employment the rights and remedies conferred upon the Company under Sections 10 and 11 of this Agreement and hereby acknowledges and agrees that the same are necessary reasonable in time and territory, are designed to avoid competition which otherwise would be unfair to the Company, do not stifle the inherent skill and experience of Executive, would not operate as a bar to Executive's sole means of support, are required to protect the goodwill, Confidential Information and other legitimate interests of the Company and its Subsidiaries, and that the agreed restrictions set forth below will do not deprive the Executive of the ability to earn confer a livelihood:
(A) While the Executive is in the employment of benefit upon the Company and, if the Executive is entitled to benefits under Section 6.1 hereof upon termination of employment, for a period of twenty-four (24) months after such termination of employment (the "Non-Competition Period"), the Executive shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer or otherwise, compete with the business of the Company or any of its Subsidiaries within a twenty (20) mile radius of any location where the Company operates a retail store at the date of termination of employment, or at which the Company has entered into a letter of intent or similar commitment for or entered into obligations relating disproportionate to the opening of a retail store to be opened within the period of this covenant. Specifically, but without limiting the foregoing, the benefit otherwise afforded Executive agrees not to engage in any manner in any activity that is directly or indirectly competitive with the business of the Company or any of its Subsidiaries as conducted or which has been proposed by management within six months prior to termination of the Executive's employment. Restricted activity also includes without limitation accepting employment or a consulting position with any person who is, or at any time within twelve (12) months prior to termination of the Executive's employment has been, a licensee of the Company or any of its Subsidiaries. For the purposes of this Section 9, the business of the Company and its Subsidiaries shall mean retail operations for the sale of natural and organic foods, including groceries, meat, seafood, dairy and frozen products and produce, as well as natural vitamins, supplements, homeopathic remedies and body care products.
(B) The Executive agrees that during the Non-Competition Period or in connection with any termination of employment pursuant to which the Executive is entitled to benefits under Section 6.1, the Executive will not, either directly or through any agent or employee, Solicit any employee of the Company or any of its Subsidiaries to terminate his or her relationship with the Company or any of its Subsidiaries or to apply for or accept employment with any enterprise competitive with the business of the Company, or Solicit any customer, supplier, licensee or vendor of the Company or any of its Subsidiaries to terminate or materially modify its relationship with them, or, in the case of a customer, to conduct with any person any business or activity which such customer conducts or could conduct with the Company or any of its Subsidiaries.
(C) The Executive and the Company further agree that following any termination of the Executive's employment pursuant to which the Executive is entitled to benefits under Section 6.1, (i) the Executive shall not make statements or representations, otherwise communicate, directly or indirectly, in writing, orally, or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Company or any if its Subsidiaries or affiliates or their respective former or current officers, directors, employees, advisors, businesses or reputations, (ii) the Company shall instruct its Board members and senior management to not make statements or representations, otherwise communicate, directly, or indirectly, in writing, orally or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Executive or his reputation. The Executive and the Company further agree that, in the event the Executive's employment with the Company is terminated other than by the Company for Cause or as a result of the Executive's death, the Executive and the Company shall refer to the Executive's departure as a "resignation" in any press release or other external announcement or communication concerning the Executive's departure from the Company. Nothing in this paragraph is intended to undermine any obligations the Executive or the Company may have to comply with applicable law, or prohibit the Executive or the Company from providing truthful testimony or information pursuant to subpoena, court order, discovery demand or similar legal process, or truthfully responding to lawful inquiries by any governmental or regulatory entity.
(D) The provisions of this Section 9 shall not be deemed to preclude the Executive from employment or engagement during the Non-Competition Period following termination of employment hereunder (i) in a business engaged in retail sales, provided such employment or engagement does not otherwise violate the provisions of this Section 9, or (ii) by a corporation, some of the activities of which are competitive with the business of the Company, if the Executive's activities do not relate to such competitive business, and nothing contained in this Section 9 shall be deemed to prohibit the Executive, during the Non-Competition Period following termination of employment hereunder, from acquiring or holding, solely as an investment, publicly traded securities of any competitor corporation so long as such securities do not, in the aggregate, constitute more than 3% of the outstanding voting securities of such corporation.
(E) The Executive acknowledges that the Company and its Subsidiaries continually develop Confidential Information, that the Executive may develop Confidential Information for the Company or its Subsidiaries and that the Executive may learn of Confidential Information during the course of his employment under this Agreement. The Executive will comply with the policies and procedures of the Company and its Subsidiaries for protecting Confidential Information and shall never disclose to any person (except as required by applicable law or legal process or for the proper performance of his duties and responsibilities to the Company and its Subsidiaries, or in connection with any litigation between the Company and the Executive (provided that the Company shall be afforded a reasonable opportunity in each case to obtain a protective order)), or use for his own benefit or gain, any Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its Subsidiaries. The Executive understands that this restriction shall continue to apply after his employment terminates, regardless of the reason for such termination. All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the Company or its Subsidiaries and any copies, in whole or in part, thereof (the "Documents"), whether or not prepared by the Executive, shall be the sole and exclusive property of the Company and its Subsidiaries. The Executive shall safeguard all Documents and shall surrender to the Company at the time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive's possession or control.
(F) Without limiting the foregoing, it is understood that the Company shall not be obligated to make any of the payments or to provide for any of the benefits specified in Sections 6.1 and 6.2 hereof, and shall be entitled to recoup the pro rata portion of any such payments and of the value of any such benefits previously provided to the Executive in the event of a material breach by the Executive of the provisions of this Section 9 (such pro ration to be determined as a fraction, the numerator of which is the number of days from such breach to the second anniversary of the date on which the Executive terminates employment and the denominator of which is 730), which breach continues without having been cured within 15 days after written notice to the Executive specifying the breach in reasonable detail.
(G) The Executive and the Company agree that in the event the Executive seeks a reference from the Company in connection with any future or prospective employment, the Company's response to any such reference inquiry shall be limited to and consistent with the following: start and end dates of employment, position(s) held and last salary. For purposes of this Section 9, the following definitions shall apply:
Appears in 1 contract
Restrictive Covenants. The (A) Executive agrees acknowledges that restrictions (i) the Company has separately bargained and paid additional consideration for the restrictive covenants herein; and (ii) the Company will provide certain benefits to Executive hereunder in reliance on such covenants in view of the unique and essential nature of the services Executive will perform on behalf of the Company and the irreparable injury that would befall the Company should Executive breach such covenants.
(B) Executive further acknowledges that his activities during services are of a special, unique and after extraordinary character and that his employment are necessary to protect position with the goodwill, Confidential Information Company will place him in a position of confidence and other legitimate interests trust with employees of the Company and its Subsidiaries, subsidiaries and with the Company's other constituencies and will allow him access to confidential information concerning the Company and its subsidiaries.
(C) Executive further acknowledges that the type and periods of restrictions imposed by the covenants in this Section 12 are fair and reasonable and that the agreed such restrictions set forth below will not deprive the prevent Executive of the ability to earn from earning a livelihood.
(D) Having acknowledged the foregoing, Executive covenants and agrees with the Company as follows:
(A1) While the Executive is in the employment of the Company and, if the Executive is entitled to benefits under Section 6.1 hereof upon termination of employment, employed by Employer and for a period of twenty-four two (242) months years after such termination of such employment for reasons other than those set forth in Subsection 10 (B) of this Agreement, Executive shall not divulge or furnish any trade secrets (as defined in (S)16-8- 13 of the "NonOfficial Code of Georgia Annotated) of Employer or any confidential information acquired by him while employed by Employer concerning the policies, plans, procedures or customers of Employer or any of its subsidiaries to any person, firm or corporation, other than Employer or upon its written request, or use any such trade secret or confidential information (which shall at all times remain the property of Employer) directly or indirectly for Executive's own benefit or for the benefit of any person, firm or corporation other than Employer.
(2) For a period of two (2) years after termination of Executive's employment by Employer for reasons other than those set forth in Subsection 10(B) of this Agreement, Executive shall not directly or indirectly provide banking or bank-Competition Period")related services to, or solicit the banking or bank-related business of, any customer of Employer or any of its subsidiaries at the time of such provision of services or solicitation which Executive served either alone or with others while employed by Employer in any city, town, borough, township, village or other place in which Executive performed services for Employer while employed by it, or assist any actual or potential competitor of Employer or any of its subsidiaries to provide banking or bank-related services to or solicit any such customer's banking or bank-related business in any such place.
(3) While Executive is employed by Employer and for a period of two (2) years after termination of Executive's employment by Employer for reasons other than those set forth in Subsection(B) of this Agreement, Executive shall not, directly or indirectly, whether as owner, partner, investor, consultantprincipal, agent, employeeor trustee, coor through the agency of any corporation, partnership, trade association, agent or agency, engage in any banking or bank-venturer related business or otherwise, compete venture which competes with the business of the Company Employer or any of its Subsidiaries subsidiaries as conducted during Executive's employment by Employer within a twenty (20) mile radius of any location where fifty (50) miles of Employer's main office or the Company operates a retail store at the date of termination of employment, or at which the Company has entered into a letter of intent or similar commitment for or entered into obligations relating to the opening of a retail store to be opened within the period of this covenant. Specifically, but without limiting the foregoing, the Executive agrees not to engage in any manner in any activity that is directly or indirectly competitive with the business of the Company main office or any of its Subsidiaries subsidiaries; provided, however, that this Subsection 12(C) shall not prohibit or otherwise restrict Executive from accepting employment with a bank holding company that has a banking subsidiary within any such 50-mile radius so long as conducted or which has been proposed by management within six months prior to termination the principal offices of the such holding company are outside any such 50- mile radius and Executive's employment. Restricted activity place of employment is also includes without limitation accepting employment or a consulting position with outside any person who is, or at any time within twelve such 50-mile radius.
(124) months prior to termination of the If Executive's employment has been, a licensee of the Company or any of its Subsidiaries. For the purposes by Employer is terminated for reasons other than those set forth in Subsection 10(B) of this Section 9Agreement, the business of the Company and its Subsidiaries shall mean retail operations for the sale of natural and organic foods, including groceries, meat, seafood, dairy and frozen products and produce, as well as natural vitamins, supplements, homeopathic remedies and body care products.
(B) The Executive agrees that during the Non-Competition Period or in connection with any termination of employment pursuant to which the Executive is entitled to benefits under Section 6.1, the Executive will notturn over immediately thereafter to Employer all business correspondence, either directly letters, papers, reports, customers' lists, financial statements, credit reports or through any agent other confidential information or employee, Solicit any employee documents of the Company Employer or any of its Subsidiaries to terminate his or her relationship with the Company or any of its Subsidiaries or to apply for or accept employment with any enterprise competitive with the business of the Company, or Solicit any customer, supplier, licensee or vendor of the Company or any of its Subsidiaries to terminate or materially modify its relationship with them, or, affiliates in the case possession or control of a customerExecutive, to conduct with any person any business or activity which such customer conducts or could conduct with the Company or any of its Subsidiaries.
(C) The Executive and the Company further agree that following any termination of the Executive's employment pursuant to which the Executive is entitled to benefits under Section 6.1, (i) the Executive shall not make statements or representations, otherwise communicate, directly or indirectly, in writing, orally, or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Company or any if its Subsidiaries or affiliates or their respective former or current officers, directors, employees, advisors, businesses or reputations, (ii) the Company shall instruct its Board members and senior management to not make statements or representations, otherwise communicate, directly, or indirectly, in writing, orally or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Executive or his reputation. The Executive and the Company further agree that, in the event the Executive's employment with the Company is terminated other than by the Company for Cause or as a result of the Executive's death, the Executive and the Company shall refer to the Executive's departure as a "resignation" in any press release or other external announcement or communication concerning the Executive's departure from the Company. Nothing in this paragraph is intended to undermine any obligations the Executive or the Company may have to comply with applicable law, or prohibit the Executive or the Company from providing truthful testimony or information pursuant to subpoena, court order, discovery demand or similar legal process, or truthfully responding to lawful inquiries by any governmental or regulatory entity.
(D) The provisions of this Section 9 shall not be deemed to preclude the Executive from employment or engagement during the Non-Competition Period following termination of employment hereunder (i) in a business engaged in retail sales, provided such employment or engagement does not otherwise violate the provisions of this Section 9, or (ii) by a corporation, some of the activities all of which writings are competitive with the business of the Company, if the Executive's activities do not relate to such competitive business, and nothing contained in this Section 9 shall be deemed to prohibit the Executive, during the Non-Competition Period following termination of employment hereunder, from acquiring or holding, solely as an investment, publicly traded securities of any competitor corporation so long as such securities do not, in the aggregate, constitute more than 3% of the outstanding voting securities of such corporation.
(E) The Executive acknowledges that the Company and its Subsidiaries continually develop Confidential Information, that the Executive may develop Confidential Information for the Company or its Subsidiaries and that the Executive may learn of Confidential Information during the course of his employment under this Agreement. The Executive will comply with the policies and procedures of the Company and its Subsidiaries for protecting Confidential Information and shall never disclose to any person (except as required by applicable law or legal process or for the proper performance of his duties and responsibilities to the Company and its Subsidiaries, or in connection with any litigation between the Company and the Executive (provided that the Company shall be afforded a reasonable opportunity in each case to obtain a protective order)), or use for his own benefit or gain, any Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its Subsidiaries. The Executive understands that this restriction shall continue to apply after his employment terminates, regardless of the reason for such termination. All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the Company or its Subsidiaries and any copies, in whole or in part, thereof (the "Documents"), whether or not prepared by the Executive, shall be the sole and exclusive property of Employer or its affiliates, as the Company and its Subsidiariescase may be. The If Executive's employment by Employer is terminated for reasons set forth in Subsection 10(B) of this Agreement, Executive shall safeguard all Documents have no obligations to Employer with respect to trade secrets, confidential information or non- competition under this Section 12. Executive acknowledges that irreparable loss and shall surrender injury would result to Employer upon the Company at the time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive's possession or control.
(F) Without limiting the foregoing, it is understood that the Company shall not be obligated to make breach of any of the payments covenants contained in this Section 12 and that damages arising out of such breach would be difficult to ascertain. Executive hereby agrees that, in addition to all other remedies provided at law or at equity, Employer may petition and obtain from a court of law or equity, without the necessity of proving actual damages and without posting bond or other security, both temporary and permanent injunctive relief to provide for prevent a breach by Executive of any of the benefits specified covenant contained in Sections 6.1 and 6.2 hereofthis Section 12, and shall be entitled to recoup the pro rata portion an equitable accounting of all earnings, profits and other benefits arising out of any such payments and of the value of any such benefits previously provided to the Executive in breach. In the event of a material breach by the Executive of that the provisions of this Section 9 (12 should ever be deemed to exceed the time, geographic or any other limitations permitted by applicable law, then such pro ration to provisions shall be determined as a fraction, the numerator of which is the number of days from such breach deemed reformed to the second anniversary of the date on which the Executive terminates employment and the denominator of which is 730), which breach continues without having been cured within 15 days after written notice to the Executive specifying the breach in reasonable detailmaximum extent permitted thereby.
(G) The Executive and the Company agree that in the event the Executive seeks a reference from the Company in connection with any future or prospective employment, the Company's response to any such reference inquiry shall be limited to and consistent with the following: start and end dates of employment, position(s) held and last salary. For purposes of this Section 9, the following definitions shall apply:
Appears in 1 contract
Restrictive Covenants. The (a) COVENANT-NOT-TO-COMPETE. In consideration of Company's agreements contained herein and the payments to be made by it to Executive pursuant hereto, Executive agrees that restrictions on his activities during and after his employment are necessary to protect the goodwill, Confidential Information and other legitimate interests of the Company and its Subsidiaries, and that the agreed restrictions set forth below will not deprive the Executive of the ability to earn a livelihood:
(A) While the Executive is in the employment of the Company and, if the Executive is entitled to benefits under Section 6.1 hereof upon termination of employmentthat, for a period of twenty-four time equal to the time remaining in the Initial Term or any Renewal Term (24or if, but only if, a court or tribunal of final authority finds that this period is unenforceable because it is unreasonably long, then, if it would shorten the duration, for one (1) months after such year) following his termination of employment (and so long as Company is continuously not in default of its obligations to provide payments or employment-type benefits to Executive hereunder or under any other agreement, covenant, or obligation, he will not, without prior written consent of Company, consult with or act as an advisor to another company about activity which is a "Competing Business" of such company in the "Non-Competition Period")Restricted Territory, the as defined below. For purposes of this Agreement, Executive shall notbe deemed to be engaged in a "Competing Business" if, directly or indirectlyin any capacity, whether as ownerincluding but not limited to proprietor, shareholder, partner, investorEXHIBIT 10.45 officer, consultant, agent, employee, co-venturer or otherwise, compete with the business of the Company or any of its Subsidiaries within a twenty (20) mile radius of any location where the Company operates a retail store at the date of termination of employment, or at which the Company has entered into a letter of intent or similar commitment for or entered into obligations relating to the opening of a retail store to be opened within the period of this covenant. Specifically, but without limiting the foregoing, the Executive agrees not to engage in any manner in any activity that is directly or indirectly competitive with the business of the Company or any of its Subsidiaries as conducted or which has been proposed by management within six months prior to termination of the Executive's employment. Restricted activity also includes without limitation accepting employment or a consulting position with any person who is, or at any time within twelve (12) months prior to termination of the Executive's employment has been, a licensee of the Company or any of its Subsidiaries. For the purposes of this Section 9, the business of the Company and its Subsidiaries shall mean retail operations for the sale of natural and organic foods, including groceries, meat, seafood, dairy and frozen products and produce, as well as natural vitamins, supplements, homeopathic remedies and body care products.
(B) The Executive agrees that during the Non-Competition Period or in connection with any termination of employment pursuant to which the Executive is entitled to benefits under Section 6.1, the Executive will not, either directly or through any agent director or employee, Solicit any employee of the Company he engages or any of its Subsidiaries to terminate his or her relationship with the Company or any of its Subsidiaries or to apply for or accept employment with any enterprise competitive with the business of the Company, or Solicit any customer, supplier, licensee or vendor of the Company or any of its Subsidiaries to terminate or materially modify its relationship with them, or, in the case of a customer, to conduct with any person any business or activity which such customer conducts or could conduct with the Company or any of its Subsidiaries.
(C) The Executive and the Company further agree that following any termination of the Executive's employment pursuant to which the Executive is entitled to benefits under Section 6.1, (i) the Executive shall not make statements or representations, otherwise communicateparticipates, directly or indirectly, in writingthe operation, orallyownership or management of the activity of any proprietorship, partnership, company or other business entity which activity is competitive with the then actual business in which Company is engaged on the date of, or otherwiseany business contemplated by the Company's business plan in effect on the date of notice of, or take any action which may, directly, or indirectly, disparage or be damaging to the Company or any if its Subsidiaries or affiliates or their respective former or current officers, directors, employees, advisors, businesses or reputations, (ii) the Company shall instruct its Board members and senior management to not make statements or representations, otherwise communicate, directly, or indirectly, in writing, orally or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Executive or his reputation. The Executive and the Company further agree that, in the event the Executive's employment with the Company is terminated other than by the Company for Cause or as a result termination of the Executive's death, the Executive and the Company shall refer to the Executive's departure as a "resignation" in any press release or other external announcement or communication concerning the Executive's departure from the Companyemployment. Nothing in this paragraph subparagraph is intended to undermine any obligations the Executive or the Company may have limit Executive's ability to comply with applicable law, or prohibit the Executive or the Company from providing truthful testimony or information pursuant to subpoena, court order, discovery demand or similar legal process, or truthfully responding to lawful inquiries by any governmental or regulatory entity.
(D) The provisions of this Section 9 shall not be deemed to preclude the Executive from employment or engagement during the Non-Competition Period following termination of employment hereunder (i) own equity in a business public company constituting less than five percent (5%) of the outstanding equity of such company, when Executive is not actively engaged in retail salesthe management thereof. If requested by Executive, provided such employment or engagement does not otherwise violate the provisions of this Section 9, or (ii) by Company shall furnish Executive with a corporation, some good-faith written description of the business or businesses in which Company is then actively engaged or which is contemplated by the Company's current business plan within 30 days after such request is made, and only those activities of so timely described in which Company is, in fact, actively engaged or which are so contemplated may be treated as activities which are competitive with the business of the Company, if the Executive's activities do not relate to such competitive business, and nothing contained in this Section 9 shall be deemed to prohibit the Executive, during the Non-Competition Period following termination of employment hereunder, from acquiring or holding, solely as an investment, publicly traded securities of any competitor corporation so long as such securities do not, in the aggregate, constitute more than 3% of the outstanding voting securities of such corporation.
(E) The Executive acknowledges that the Company and its Subsidiaries continually develop Confidential Information, that the Executive may develop Confidential Information for the Company or its Subsidiaries and that the Executive may learn of Confidential Information during the course of his employment under this Agreement. The Executive will comply with the policies and procedures of the Company and its Subsidiaries for protecting Confidential Information and shall never disclose to any person (except as required by applicable law or legal process or for the proper performance of his duties and responsibilities to the Company and its Subsidiaries, or in connection with any litigation between the Company and the Executive (provided that the Company shall be afforded a reasonable opportunity in each case to obtain a protective order)), or use for his own benefit or gain, any Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its Subsidiaries. The Executive understands that this restriction shall continue to apply after his employment terminates, regardless of the reason for such termination. All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the Company or its Subsidiaries and any copies, in whole or in part, thereof (the "Documents"), whether or not prepared by the Executive, shall be the sole and exclusive property of the Company and its Subsidiaries. The Executive shall safeguard all Documents and shall surrender to the Company at the time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive's possession or control.
(F) Without limiting the foregoing, it is understood that the Company shall not be obligated to make any of the payments or to provide for any of the benefits specified in Sections 6.1 and 6.2 hereof, and shall be entitled to recoup the pro rata portion of any such payments and of the value of any such benefits previously provided to the Executive in the event of a material breach by the Executive of the provisions of this Section 9 (such pro ration to be determined as a fraction, the numerator of which is the number of days from such breach to the second anniversary of the date on which the Executive terminates employment and the denominator of which is 730), which breach continues without having been cured within 15 days after written notice to the Executive specifying the breach in reasonable detail.
(G) The Executive and the Company agree that in the event the Executive seeks a reference from the Company in connection with any future or prospective employment, the Company's response to any such reference inquiry shall be limited to and consistent with the following: start and end dates of employment, position(s) held and last salary. For purposes of this Section 9, the following definitions shall apply:
Appears in 1 contract
Restrictive Covenants. The Executive 8.1. As an inducement for GBI’s agreement to employ Bettingen, to provide Bettingen with trade secrets and other Confidential Information, and to enter into this Agreement, Bettingen hereby agrees that restrictions on his activities during and after his employment are necessary to protect the goodwill, Confidential Information and other legitimate interests of the Company and its SubsidiariesTerm, and that the agreed restrictions set forth below will not deprive the Executive of the ability to earn a livelihood:
(A) While the Executive is in the employment of the Company and, if the Executive is entitled to benefits under Section 6.1 hereof upon termination of employment, for a period of twenty-four twelve (2412) full calendar months after such (i) the expiration of the Term (as the same may be extended) or (ii) the termination of Bettingen’s employment with GBI by resignation or for cause (whichever may occur later), or for the maximum period of time permitted by law, whichever is less, Bettingen shall not, whether for profit or not, whether on his own behalf or on behalf of any person or firm in any capacity whatsoever, engage in the "Non-Competition PeriodProhibited Activity" (as hereinafter defined) within the "Relevant Geographical Area" (as hereinafter defined). Serving as a partner, member, trustee, receiver, custodian, manager, stockholder, officer, director, owner, joint venturer, associate, employee, consultant, adviser or in any other capacity whatsoever with respect to any person or firm engaged in the Prohibited Activity within the Relevant Geographical Area shall be conclusively deemed engagement in the Prohibited Activity within the Relevant Geographical Area regardless of whether such service is for profit or whether such person or firm engages in the Prohibited Activity for profit . In this Agreement, the Executive phrase "Prohibited Activity" shall notmean, directly or indirectly: (i) soliciting GBI’s customers; or (ii) working independently or for any person or firm involved in any business engaged in by GBI and/or by any of its subsidiaries or affiliates during the Term, whether as ownerincluding, partnerwithout limitation, investorinvestment banking and stock trading. For purposes of this Agreement, consultant, agent, employee, co-venturer or otherwise, compete with the business phrase "Relevant Geographical Area" shall mean the area within political boundaries of the Company State of California and any and all other areas in which GBI or any of its Subsidiaries subsidiaries or affiliates transact business; provided, however, if the geographic area defined in this Agreement Section 8.1. exceeds the maximum geographic area permitted by law or for any other reason does not state a geographic area within a twenty (20) mile radius of any location where the Company operates a retail store at the date of termination of employment, or at which the Company has entered into a letter of intent or similar commitment for or entered into obligations relating to the opening of a retail store to be opened within the period of this covenant. Specifically, but without limiting the foregoing, the Executive agrees not to engage in any manner in any activity that is directly or indirectly competitive with the business of the Company or any of its Subsidiaries as conducted or which has been proposed by management within six months prior to termination of the Executive's employment. Restricted activity also includes without limitation accepting employment or a consulting position with any person who is, or at any time within twelve (12) months prior to termination of the Executive's employment has been, a licensee of the Company or any of its Subsidiaries. For the purposes of this Section 9, the business of the Company and its Subsidiaries shall mean retail operations for the sale of natural and organic foods, including groceries, meat, seafood, dairy and frozen products and produce, as well as natural vitamins, supplements, homeopathic remedies and body care products.
(B) The Executive agrees that during the Non-Competition Period or in connection with any termination of employment pursuant to which the Executive is entitled to benefits under Section 6.1, the Executive will not, either directly or through any agent or employee, Solicit any employee of the Company or any of its Subsidiaries to terminate his or her relationship with the Company or any of its Subsidiaries or to apply for or accept employment with any enterprise competitive with the business of the Company, or Solicit any customer, supplier, licensee or vendor of the Company or any of its Subsidiaries to terminate or materially modify its relationship with them, or, in the case of a customer, to conduct with any person any business or activity which such customer conducts or could conduct with the Company or any of its Subsidiaries.
(C) The Executive and the Company further agree that following any termination of the Executive's employment pursuant to which the Executive is entitled to benefits under Section 6.1, (i) the Executive shall not make statements or representations, otherwise communicate, directly or indirectly, in writing, orally, or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Company or any if its Subsidiaries or affiliates or their respective former or current officers, directors, employees, advisors, businesses or reputations, (ii) the Company shall instruct its Board members and senior management to not make statements or representations, otherwise communicate, directly, or indirectly, in writing, orally or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Executive or his reputation. The Executive and the Company further agree that, in the event the Executive's employment with the Company is terminated other than by the Company for Cause or as a result of the Executive's death, the Executive and the Company shall refer to the Executive's departure as a "resignation" in any press release or other external announcement or communication concerning the Executive's departure from the Company. Nothing in this paragraph is intended to undermine any obligations the Executive or the Company may have to comply with applicable law, or prohibit the Executive or the Company from providing truthful testimony or information pursuant to subpoena, court order, discovery demand or similar legal process, or truthfully responding to lawful inquiries by any governmental or regulatory entity.
(D) The provisions of this Section 9 shall not be deemed to preclude the Executive from employment or engagement during the Non-Competition Period following termination of employment hereunder (i) in a business engaged in retail salesParagraph 10 A. are enforceable, provided such employment or engagement does not otherwise violate then the provisions of this Section 9, or (ii) 8.1. shall apply within the maximum geographic area permitted by a corporation, some of the activities of law in which such provisions are competitive with the business of the Company, if the Executive's activities do not relate to such competitive business, and nothing contained in this Section 9 shall be deemed to prohibit the Executive, during the Non-Competition Period following termination of employment hereunder, from acquiring or holding, solely as an investment, publicly traded securities of any competitor corporation so long as such securities do not, in the aggregate, constitute more than 3% of the outstanding voting securities of such corporationenforceable.
(E) The Executive acknowledges that the Company and its Subsidiaries continually develop Confidential Information, that the Executive may develop Confidential Information for the Company or its Subsidiaries and that the Executive may learn of Confidential Information during the course of his employment under this Agreement. The Executive will comply with the policies and procedures of the Company and its Subsidiaries for protecting Confidential Information and shall never disclose to any person (except as required by applicable law or legal process or for the proper performance of his duties and responsibilities to the Company and its Subsidiaries, or in connection with any litigation between the Company and the Executive (provided that the Company shall be afforded a reasonable opportunity in each case to obtain a protective order)), or use for his own benefit or gain, any Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its Subsidiaries. The Executive understands that this restriction shall continue to apply after his employment terminates, regardless of the reason for such termination. All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the Company or its Subsidiaries and any copies, in whole or in part, thereof (the "Documents"), whether or not prepared by the Executive, shall be the sole and exclusive property of the Company and its Subsidiaries. The Executive shall safeguard all Documents and shall surrender to the Company at the time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive's possession or control.
(F) Without limiting the foregoing, it is understood that the Company shall not be obligated to make any of the payments or to provide for any of the benefits specified in Sections 6.1 and 6.2 hereof, and shall be entitled to recoup the pro rata portion of any such payments and of the value of any such benefits previously provided to the Executive in the event of a material breach by the Executive of the provisions of this Section 9 (such pro ration to be determined as a fraction, the numerator of which is the number of days from such breach to the second anniversary of the date on which the Executive terminates employment and the denominator of which is 730), which breach continues without having been cured within 15 days after written notice to the Executive specifying the breach in reasonable detail.
(G) The Executive and the Company agree that in the event the Executive seeks a reference from the Company in connection with any future or prospective employment, the Company's response to any such reference inquiry shall be limited to and consistent with the following: start and end dates of employment, position(s) held and last salary. For purposes of this Section 9, the following definitions shall apply:
Appears in 1 contract
Restrictive Covenants. The Executive 10.1 Employee agrees that restrictions on his activities he will not, either during and after his employment are necessary to protect the goodwill, Confidential Information and other legitimate interests of the Company and its Subsidiaries, and that the agreed restrictions set forth below will not deprive the Executive of the ability to earn a livelihood:
(A) While the Executive is in the employment of the Company and, if the Executive is entitled to benefits under Section 6.1 hereof upon termination of employment, for a period of twenty-four (24) months after such termination of employment (the "Non-Competition Period"), the Executive shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer or otherwise, compete with the business of the Company or any of its Subsidiaries within a twenty (20) mile radius of any location where the Company operates a retail store at the date of termination of employment, or at which the Company has entered into a letter of intent or similar commitment for or entered into obligations relating to the opening of a retail store to be opened within the period of this covenant. Specifically, but without limiting the foregoing, the Executive agrees not to engage in any manner in any activity that is directly or indirectly competitive with the business of the Company or any of its Subsidiaries as conducted or which has been proposed by management within six months prior to termination of the Executive's employment. Restricted activity also includes without limitation accepting employment or a consulting position with any person who is, or at any time within twelve (12) months prior to termination after cessation of such employment, impart or disclose any of the Executive's employment has beenConfidential Information to any person, a licensee of the Company firm or any of its Subsidiaries. For the purposes of this Section 9, the business of the Company and its Subsidiaries shall mean retail operations for the sale of natural and organic foods, including groceries, meat, seafood, dairy and frozen products and produce, as well as natural vitamins, supplements, homeopathic remedies and body care products.
(B) The Executive agrees that during the Non-Competition Period or in connection with any termination of employment pursuant to which the Executive is entitled to benefits under Section 6.1, the Executive will not, either directly or through any agent or employee, Solicit any employee of the Company or any of its Subsidiaries to terminate his or her relationship with the Company or any of its Subsidiaries or to apply for or accept employment with any enterprise competitive with the business of the corporation other than Company, or Solicit use any customerof such Confidential Information, supplierdirectly or indirectly for the Employee's own benefit or for the benefit of any person, licensee firm or vendor of the corporation other than Company or its affiliates. Employee's obligations under this Section 10.1 shall cease with respect to any of its Subsidiaries to terminate or materially modify its relationship with them, or, in the case of a customer, to conduct with any person any business or activity which such customer conducts or could conduct with the Company or any of its Subsidiaries.
(C) The Executive and the Company further agree that following any termination of the Executive's employment pursuant to which the Executive is entitled to benefits under Section 6.1, Confidential Information if such information (i) was already known to Employee at the Executive shall not make statements or representationstime of disclosure, otherwise communicate, directly or indirectly, in writing, orally, or otherwise, or take free of any action which may, directly, or indirectly, disparage or be damaging obligation to the Company or any if its Subsidiaries or affiliates or their respective former or current officers, directors, employees, advisors, businesses or reputations, (ii) the Company shall instruct its Board members and senior management to not make statements or representations, otherwise communicate, directly, or indirectly, in writing, orally or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Executive or his reputation. The Executive and the Company further agree that, in the event the Executive's employment with the Company is terminated other than by the Company for Cause or as a result of the Executive's death, the Executive and the Company shall refer to the Executive's departure as a "resignation" in any press release or other external announcement or communication concerning the Executive's departure from the Company. Nothing in this paragraph is intended to undermine any obligations the Executive or the Company may have to comply with applicable law, or prohibit the Executive or the Company from providing truthful testimony or information pursuant to subpoena, court order, discovery demand or similar legal process, or truthfully responding to lawful inquiries by any governmental or regulatory entity.
(D) The provisions of this Section 9 shall not be deemed to preclude the Executive from employment or engagement during the Non-Competition Period following termination of employment hereunder (i) in a business engaged in retail sales, provided such employment or engagement does not otherwise violate the provisions of this Section 9keep it confidential, or (ii) was subsequently disclosed to Employee without breach of this Agreement by a corporationthird person who rightfully received and disclosed it without breaching any confidentiality obligation to the Company. It is also understood by the parties that Employee may be required to disclose Confidential Information (a) pursuant to subpoena or other court process, some (b) at the express direction of any other authorized government agency or (c) otherwise 10 -10- as required by law or regulation. Disclosure of Confidential Information or any part thereof in such circumstances will not constitute a breach of the activities confidentiality provisions set forth in this Agreement, provided that Employee notifies Company in advance of any such disclosure and cooperates with Company in any efforts that Company may make to seek a protective order with respect to such disclosure.
10.2 In addition to the foregoing agreements relating to the Company's Confidential Information, during the term of this Agreement (including any renewals thereof) and during the term of the "Post-Employment Period" (as defined herein), Employee will not, without the Company's prior written consent, (i) solicit any of the employees of the Company for the purpose of hiring or retaining any such employees, (ii) hire or retain or cause to be hired or retained any of the employees of Company or (iii) become involved in any manner, including without limitation as an officer, director, employee, consultant, representative, partner, owner or shareholder (except as a holder of less than a two percent (2%) equity interest in a public entity) in any business located in the United States which are is in the business of inventing, developing, manufacturing, marketing, providing or selling products competitive with the business of the Company, if the Executive's activities do not relate to such competitive business, and nothing contained in this Section 9 shall be deemed to prohibit the Executive, during the Non-Competition Period following termination of employment hereunder, from acquiring or holding, solely as an investment, publicly traded securities of any competitor corporation so long as such securities do not, in the aggregate, constitute more than 3% of the outstanding voting securities of such corporation.
(E) The Executive acknowledges products that the Company has developed, manufactured, marketed, produced or sold, or is in the process of developing (and its Subsidiaries continually develop Confidential Information, that reasonably expect to bring to market within one (1) year after the Executive may develop Confidential Information for the Company or its Subsidiaries and that the Executive may learn of Confidential Information during the course of his employment under this Agreement. The Executive will comply with the policies and procedures expiration of the Company and its Subsidiaries for protecting Confidential Information and shall never disclose to any person (except as Post-Employment Period or longer if required by applicable law the U.S. Food and Drug Administration clearance or legal process or for the proper performance of his duties and responsibilities to the Company and its Subsidiaries, or in connection with any litigation between the Company and the Executive (provided that the Company shall be afforded a reasonable opportunity in each case to obtain a protective order)approval process), manufacturing, marketing, producing or use for his own benefit or gain, any Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its Subsidiaries. The Executive understands that this restriction shall continue to apply after his employment terminates, regardless of the reason for such termination. All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the Company or its Subsidiaries and any copies, in whole or in part, thereof (the "Documents"), whether or not prepared by the Executive, shall be the sole and exclusive property of the Company and its Subsidiaries. The Executive shall safeguard all Documents and shall surrender to the Company at the time his employment terminates, or at such earlier time or times selling as the Board or its designee may specify, all Documents then in the Executive's possession or control.
(F) Without limiting the foregoing, it is understood that the Company shall not be obligated to make any of the payments or to provide for any of the benefits specified in Sections 6.1 and 6.2 hereof, and shall be entitled to recoup the pro rata portion of any such payments and of the value of any such benefits previously provided to the Executive in the event of a material breach by the Executive of the provisions of this Section 9 (such pro ration to be determined as a fraction, the numerator of which is the number of days from such breach to the second anniversary of the date on which the Executive terminates that Employee's employment and the denominator of which is 730), which breach continues without having been cured within 15 days after written notice to the Executive specifying the breach in reasonable detail.
(G) The Executive and the Company agree that in the event the Executive seeks a reference from the Company in connection with any future or prospective employment, the Company's response to any such reference inquiry shall be limited to and consistent with the following: start and end dates of employment, position(s) held and last salaryterminates. For purposes of this Section 9Agreement, the following definitions shall apply:term "Post-
Appears in 1 contract
Sources: Employment Agreement (Orthopedic Biosystems LTD Inc)
Restrictive Covenants. The Executive agrees 14.1 Employee recognizes and acknowledges that restrictions on as a consequence of his activities during and after his employment are necessary duties hereunder, Employee will be provided access to protect the goodwill, Confidential Information and other legitimate interests or will come in contact with confidential information of or regarding the Company and its Subsidiariesparent, Finantra Capital, Inc., from time to time. Accordingly, Employee agrees that he will not, during or after the term of his employment except with prior written consent of the Company, disclose any confidential information relating to the Company or its Parent. The provisions of this section shall not apply to information which Employee is required to disclose bylaw or by order a court of competent jurisdiction, but only to the extent required by law or by order and when reasonably possible, only if Employee shall give the Company prior notice of such intended disclosure so that the company has the opportunity to seek a protective order if it deems such appropriate.
14.2 As used in this Agreement, "confidential information" shall mean and include studies, plans, reports, records, promotional materials, agreements, memoranda, documents, information related to Company activities, systems, finances, client lists, research data, personnel data, financing sources, and such other related information not of a public knowledge.
14.3 For so long as the Employee is employed hereunder, Employee shall not engage either as principal, agent or consultant, or through any corporation, firm or organization in which he is or may be an officer, director, employee, shareholder, partner, member or with which he is otherwise affiliated in any business for profit which is engaged in any activity or business similar to that the agreed restrictions set forth below will not deprive the Executive of the ability to earn a livelihood:Employer.
(A) While the Executive is in the employment of the Company and, if the Executive is entitled to benefits under Section 6.1 hereof upon termination of employment, 14.4 The Employee covenants and agrees that for a period of twenty-four two (242) months after such years from the date of his termination of employment (with the "Non-Competition Period")company, either voluntary or involuntary, that he will not directly or indirectly solicit or aid in the solicitation of any company client who has done business with the Company during the period of time that the Employee was in the employ of the Company. This provision shall apply to Broward and Dade Counties.
14.5 It is agreed by the Employee that should he violate the provisions of this section, the Executive Company shall nothave the right to obtain an Order from a court of competent jurisdiction enjoining him from violating any and all of the provisions of this section or of this Agreement and the Company's application for such a writ of injunction shall be deemed without prejudice to any and all other rights, directly remedies or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer or otherwise, compete with the business actions which may accrue in favor of the Company or any of its Subsidiaries within a twenty (20) mile radius of any location where the Company operates a retail store at the date of termination of employment, or at which the Company has entered into a letter of intent or similar commitment for or entered into obligations relating to the opening of a retail store to be opened within the period of this covenant. Specifically, but without limiting the foregoing, the Executive agrees not to engage in any manner in any activity that is directly or indirectly competitive with the business of the Company or any of its Subsidiaries as conducted or which has been proposed by management within six months prior to termination of the Executive's employment. Restricted activity also includes without limitation accepting employment or a consulting position with any person who is, or at any time within twelve (12) months prior to termination of the Executive's employment has been, a licensee of the Company or any of its Subsidiaries. For the purposes of this Section 9, the business of the Company and its Subsidiaries shall mean retail operations for the sale of natural and organic foods, including groceries, meat, seafood, dairy and frozen products and produce, as well as natural vitamins, supplements, homeopathic remedies and body care products.
(B) The Executive agrees that during the Non-Competition Period or in connection with any termination of employment pursuant to which the Executive is entitled to benefits under Section 6.1, the Executive will not, either directly or through any agent or employee, Solicit any employee of the Company or any of its Subsidiaries to terminate his or her relationship with the Company or any of its Subsidiaries or to apply for or accept employment with any enterprise competitive with the business of the Company, or Solicit any customer, supplier, licensee or vendor of the Company or any of its Subsidiaries to terminate or materially modify its relationship with them, or, in the case of a customer, to conduct with any person any business or activity which such customer conducts or could conduct with the Company or any of its Subsidiaries.
(C) The Executive and the Company further agree that following any termination of the Executive's employment pursuant to which the Executive is entitled to benefits under Section 6.1, (i) the Executive shall not make statements or representations, otherwise communicate, directly or indirectly, in writing, orally, or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Company or any if its Subsidiaries or affiliates or their respective former or current officers, directors, employees, advisors, businesses or reputations, (ii) the Company shall instruct its Board members and senior management to not make statements or representations, otherwise communicate, directly, or indirectly, in writing, orally or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Executive or his reputation. The Executive and the Company further agree that, in the event the Executive's employment with the Company is terminated other than by the Company for Cause or as a result of the ExecutiveEmployee's death, the Executive and the Company shall refer to the Executive's departure as a "resignation" in any press release or other external announcement or communication concerning the Executive's departure from the Company. Nothing in this paragraph is intended to undermine any obligations the Executive or the Company may have to comply with applicable law, or prohibit the Executive or the Company from providing truthful testimony or information pursuant to subpoena, court order, discovery demand or similar legal process, or truthfully responding to lawful inquiries by any governmental or regulatory entity.
(D) The provisions breach of this Section 9 shall not be deemed to preclude the Executive from employment provision or engagement during the Non-Competition Period following termination of employment hereunder (i) in a business engaged in retail sales, provided such employment or engagement does not otherwise violate the provisions of this Section 9, or (ii) by a corporation, some of the activities terms of which are competitive with the business of the Company, if the Executive's activities do not relate to such competitive business, and nothing contained in this Section 9 shall be deemed to prohibit the Executive, during the Non-Competition Period following termination of employment hereunder, from acquiring or holding, solely as an investment, publicly traded securities of any competitor corporation so long as such securities do not, in the aggregate, constitute more than 3% of the outstanding voting securities of such corporation.
(E) The Executive acknowledges that the Company and its Subsidiaries continually develop Confidential Information, that the Executive may develop Confidential Information for the Company or its Subsidiaries and that the Executive may learn of Confidential Information during the course of his employment under this Agreement. The Executive will comply with In the policies and procedures of event the Company and its Subsidiaries for protecting Confidential Information and shall never disclose is required to any person (except as required by applicable law or legal process or for the proper performance of his duties and responsibilities to the Company and its Subsidiaries, or in connection with institute any litigation between concerning the Company terms and conditions of this section or of this Agreement, the Executive (provided that the Company shall be afforded a reasonable opportunity in each case to obtain a protective order)), or use for his own benefit or gain, any Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its Subsidiaries. The Executive understands that this restriction shall continue to apply after his employment terminates, regardless of the reason for such termination. All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the Company or its Subsidiaries and any copies, in whole or in part, thereof (the "Documents"), whether or not prepared by the Executive, shall be the sole and exclusive property of the Company and its Subsidiaries. The Executive shall safeguard all Documents and shall surrender to the Company at the time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive's possession or control.
(F) Without limiting the foregoing, it is understood that the Company shall not be obligated to make any of the payments or to provide for any of the benefits specified in Sections 6.1 and 6.2 hereof, and prevailing party shall be entitled to recoup reimbursement of all reasonable attorney's fees and costs at both the pro rata portion of any such payments trial and of the value of any such benefits previously provided to the Executive appellate court level. The Employee further agrees that in the event of a material breach by the Executive of the provisions of this Section 9 (such pro ration to be determined as a fraction, the numerator of which is the number of days from such breach to the second anniversary of the date on which the Executive terminates employment and the denominator of which is 730), which breach continues without having been cured within 15 days after written notice to the Executive specifying the breach in reasonable detail.
(G) The Executive and the Company agree that in the event the Executive seeks a reference from the Company in connection with any future or prospective employment, the Company's response to any such reference inquiry litigation venue shall be limited to and consistent with the following: start and end dates of employmentonly be proper in Dade County, position(s) held and last salary. For purposes of this Section 9, the following definitions shall apply:Florida.
Appears in 1 contract
Restrictive Covenants. The (a) As an inducement to Olin to provide the payments and benefits to Executive hereunder, Executive acknowledges and agrees that, notwithstanding any provision to the contrary in any Other Arrangements, in the event of Executive’s Termination, Executive agrees that restrictions on his activities during and after his employment are necessary to protect comply with the goodwill, Confidential Information and other legitimate interests of the Company and its Subsidiaries, and that the agreed restrictions set forth below will in Sections 8(b) and (c) of this Agreement for a one-year period from the date of Termination (or, if earlier, until Executive attains age 65, if Executive would otherwise have been required by Olin policy to retire at age 65) (the “Restriction Period”); provided that if Executive’s employment is not deprive terminated by reason of a Termination (and Executive therefore is not entitled to receive the payments and benefits set forth in Sections 4 and 5 of this Agreement), then Executive need not comply with the restrictions set forth in Sections 8(b) and (c) of the ability to earn a livelihood:this Agreement.
(Ab) While Executive acknowledges and agrees that so long as ▇▇▇▇ complies with its obligations to provide the Executive is payments required under this Agreement, notwithstanding any provision to the contrary in the employment of the Company andany Other Arrangements, if the Executive is entitled to benefits under Section 6.1 hereof upon termination of employment, for a period of twenty-four (24) months after such termination of employment (the "Non-Competition Period"), the Executive shall notnot during the Restriction Period, directly or indirectly, whether as ownerfor Executive or for any other person, partnercorporation, investorpartnership, consultantsole proprietorship, agententity or business: (i) employ or attempt to employ or enter into any contractual arrangement with any employee or former employee of Olin, employee, co-venturer unless such employee or otherwise, compete with former employee has not been employed by Olin for a period in excess of six months or (ii) make known the business names and addresses of the Company customers of Olin or any of its Subsidiaries within a twenty (20) mile radius of any location where the Company operates a retail store at the date of termination of employment, or at which the Company has entered into a letter of intent or similar commitment for or entered into obligations information relating to the opening of a retail store to be opened within the period of this covenant. Specifically, but without limiting the foregoing, the Executive agrees not to engage in any manner to Olin’s trade or business relationships with such customers. Notwithstanding anything in any activity that is directly or indirectly competitive with this Agreement to the business contrary and for the avoidance of the Company or any of doubt, references in this Section 8(b) to “Olin” shall be deemed to refer to Olin and its Subsidiaries as conducted or which has been proposed by management within six months subsidiaries and affiliates prior to termination a Change in Control.
(c) During the Restriction Period, Executive shall not make any statement that intentionally disparages Olin or its business, services or products unless, in each case, in the context of a legal process (including without limitation, litigation between Olin and Executive), required governmental testimony or filings, any administrative or arbitral proceedings (including, without limitation, arbitration between Olin and Executive) or as otherwise required by law. Notwithstanding the Executive's employment. Restricted activity also includes without limitation accepting employment foregoing and subject to Section 8(d) of this Agreement, in no event shall Executive be prohibited from making truthful statements in response to questions from a prospective future employer.
(d) Executive acknowledges and agrees (whether or a consulting position with any person who isnot Executive is subject to the restrictions set forth in Sections 8(b) and (c) of this Agreement) not to disclose, either while in Olin’s employ or at any time within twelve (12) months prior thereafter, to termination any person not employed by Olin, or not engaged to render services to Olin, any confidential information obtained by Executive while in the employ of the Executive's employment has beenOlin, a licensee of the Company or any of its Subsidiaries. For the purposes of this Section 9including, without limitation, trade secrets, know-how, improvements, discoveries, designs, customer and supplier lists, business plans and strategies, forecasts, budgets, cost information, formulae, processes, manufacturing equipment, compositions, computer programs, data bases and tapes and films relating to the business of the Company Olin and its Subsidiaries subsidiaries and affiliates (including majority-owned companies of such subsidiaries and affiliates); provided, however, that this provision shall mean retail operations for not preclude Executive from disclosing information (i) known generally to the sale public (other than pursuant to Executive’s act or omission) or (ii) to the extent required by law or court order. Executive also agrees that upon leaving Olin’s employ Executive will not take with Executive, without the prior written consent of natural and organic foodsan officer authorized to act in the matter by the Board, including groceriesany drawing, meatblueprint, seafoodspecification or other document of Olin, dairy and frozen products and produceits subsidiaries or affiliates, as well as natural vitaminswhich is of a confidential nature relating to Olin, supplementsits subsidiaries or affiliates, homeopathic remedies and body care productsincluding, without limitation, relating to its or their methods of distribution, or any description of any formulae or secret processes.
(Be) The Executive acknowledges and agrees that during the Non-Competition Period or in connection with any termination of employment pursuant to which the Executive is entitled to benefits under Section 6.1, the Executive will not, either directly or through any agent or employee, Solicit any employee of the Company or any of its Subsidiaries to terminate his or her relationship with the Company or any of its Subsidiaries or to apply for or accept employment with any enterprise competitive with the business of the Company, or Solicit any customer, supplier, licensee or vendor of the Company or any of its Subsidiaries to terminate or materially modify its relationship with them, or, in the case of a customer, to conduct with any person any business or activity which such customer conducts or could conduct with the Company or any of its Subsidiaries.
(C) The Executive and the Company further agree that following any termination of the Executive's employment pursuant to which the Executive is entitled to benefits under Section 6.1, (i) the Executive shall restrictive covenants contained in this Section 8 are reasonably necessary to protect the legitimate business interests of Olin, and are not make statements or representationsoverbroad, otherwise communicate, directly or indirectly, in writing, orallyoverlong, or otherwiseunfair and are not the result of overreaching, duress or take coercion of any action which may, directly, or indirectly, disparage or be damaging to the Company or any if its Subsidiaries or affiliates or their respective former or current officers, directors, employees, advisors, businesses or reputationskind, (ii) the Company shall instruct its Board members Executive’s full, uninhibited and senior management to not make statements or representations, otherwise communicate, directly, or indirectly, in writing, orally or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Executive or his reputation. The Executive and the Company further agree that, in the event the Executive's employment with the Company is terminated other than by the Company for Cause or as a result faithful observance of each of the Executive's death, the Executive and the Company shall refer to the Executive's departure as a "resignation" in any press release or other external announcement or communication concerning the Executive's departure from the Company. Nothing in this paragraph is intended to undermine any obligations the Executive or the Company may have to comply with applicable law, or prohibit the Executive or the Company from providing truthful testimony or information pursuant to subpoena, court order, discovery demand or similar legal process, or truthfully responding to lawful inquiries by any governmental or regulatory entity.
(D) The provisions of this Section 9 shall not be deemed to preclude the Executive from employment or engagement during the Non-Competition Period following termination of employment hereunder (i) in a business engaged in retail sales, provided such employment or engagement does not otherwise violate the provisions of this Section 9, or (ii) by a corporation, some of the activities of which are competitive with the business of the Company, if the Executive's activities do not relate to such competitive business, and nothing covenants contained in this Section 9 8 will not cause Executive any undue hardship, financial or otherwise, and that enforcement of each of the covenants contained herein will not impair Executive’s ability to obtain employment commensurate with Executive’s abilities and on terms fully acceptable to Executive or otherwise to obtain income required for the comfortable support of Executive and Executive’s family and the satisfaction of the needs of Executive’s creditors and (iii) the restrictions contained in this Section 8 are intended to be, and shall be, for the benefit of and shall be deemed to prohibit the Executiveenforceable by, during the Non-Competition Period following termination of employment hereunder, from acquiring or holding, solely as an investment, publicly traded securities of any competitor corporation so long as such securities do not, in the aggregate, constitute more than 3% of the outstanding voting securities of such corporationOlin’s successors and permitted assigns.
(Ef) The Executive acknowledges and agrees that the Company and its Subsidiaries continually develop Confidential Information, that the Executive may develop Confidential Information for the Company or its Subsidiaries and that the Executive may learn of Confidential Information during the course of his employment under this Agreement. The Executive will comply with the policies and procedures of the Company and its Subsidiaries for protecting Confidential Information and shall never disclose to any person (except as required by applicable law or legal process or for the proper performance of his duties and responsibilities to the Company and its Subsidiaries, or in connection with any litigation between the Company and the Executive (provided that the Company shall be afforded a reasonable opportunity in each case to obtain a protective order)), or use for his own benefit or gain, any Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its Subsidiaries. The Executive understands that this restriction shall continue to apply after his employment terminates, regardless of the reason for such termination. All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the Company or its Subsidiaries and any copies, in whole or in part, thereof (the "Documents"), whether or not prepared by the Executive, shall be the sole and exclusive property of the Company and its Subsidiaries. The Executive shall safeguard all Documents and shall surrender to the Company at the time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive's possession or control.
(F) Without limiting the foregoing, it is understood that the Company shall not be obligated to make any of the payments or to provide for any of the benefits specified in Sections 6.1 and 6.2 hereof, and shall be entitled to recoup the pro rata portion of any such payments and of the value of any such benefits previously provided to the Executive in the event of a material breach by the Executive violation of the provisions of this Section 9 (8 would cause Olin irreparable damage and that if Executive breaches or threatens to breach such pro ration provisions, Olin shall be entitled, in addition to be determined as any other rights and remedies Olin may have at law or in equity, to obtain specific performance of such covenants through injunction or other equitable relief from a fractioncourt of competent jurisdiction, the numerator without proof of which is the number of days from such breach actual damages and without being required to the second anniversary of the date on which the Executive terminates employment and the denominator of which is 730), which breach continues without having been cured within 15 days after written notice to the Executive specifying the breach in reasonable detailpost bond.
(Gg) The Executive In the event that any arbitrator or court of competent jurisdiction shall finally hold that any provision of this Agreement (whether in whole or in part) is void or constitutes an unreasonable restriction against Executive, such provision shall not be rendered void but shall be deemed to be modified to the minimum extent necessary to make such provision enforceable for the longest duration and the Company agree that in greatest scope as such arbitrator or court may determine constitutes a reasonable restriction under the event the Executive seeks a reference from the Company in connection with any future or prospective employment, the Company's response to any such reference inquiry shall be limited to and consistent with the following: start and end dates of employment, position(s) held and last salary. For purposes of this Section 9, the following definitions shall apply:circumstances.
Appears in 1 contract
Restrictive Covenants. (a) The Corporation and Executive agrees acknowledge and agree that restrictions on his activities during Executive's Duties are of a special and after his employment are necessary unusual character which have a unique value to protect the goodwillCorporation, Confidential Information and other legitimate interests the loss of the Company and its Subsidiaries, and that the agreed restrictions set forth below will which cannot deprive the Executive of the ability to earn a livelihood:
(A) While the Executive is be adequately compensated by damages in the employment of the Company an action at law and, if the Executive is entitled to benefits under Section 6.1 hereof upon termination of employment, for a period of twenty-four (24) months after such termination of employment (the "Non-Competition Period"), the Executive shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer or otherwise, compete used in competition with the Corporation, could cause serious harm to the Corporation. Further, Executive and the Corporation also recognize and agree that the Corporation and Executive will be actively engaged in the Corporation's Business within the Business 5 Area. Further, Executive and the Corporation also recognize that an important part of Executive's Duties will be to develop good will for the Corporation through his personal contact with customers, agents and others having business relationships with the Corporation and that there is a danger that this goodwill, a proprietary asset of the Company or any of its Subsidiaries within a twenty (20) mile radius of any location where the Company operates a retail store at the date of termination of employmentCorporation, or at which the Company has entered into a letter of intent or similar commitment for or entered into obligations relating to the opening of a retail store to be opened within the period of this covenant. Specifically, but without limiting the foregoing, the may follow Executive agrees not to engage in any manner in any activity that is directly or indirectly competitive with the business of the Company or any of its Subsidiaries as conducted or which has been proposed by management within six months prior to termination of the Executive's employment. Restricted activity also includes without limitation accepting employment or a consulting position with any person who is, or at any time within twelve (12) months prior to termination of the Executive's employment has been, a licensee of the Company or any of its Subsidiaries. For the purposes of this Section 9, the business of the Company if and its Subsidiaries shall mean retail operations for the sale of natural and organic foods, including groceries, meat, seafood, dairy and frozen products and produce, as well as natural vitamins, supplements, homeopathic remedies and body care products.
(B) The Executive agrees that during the Non-Competition Period or in connection with any termination of employment pursuant to which the Executive is entitled to benefits under Section 6.1, the Executive will not, either directly or through any agent or employee, Solicit any employee of the Company or any of its Subsidiaries to terminate when his or her relationship with the Company or any Corporation is terminated. Accordingly, Executive covenants that, during the course of its Subsidiaries or to apply for or accept employment with any enterprise competitive with the business of the Company, or Solicit any customer, supplier, licensee or vendor of the Company or any of its Subsidiaries to terminate or materially modify its relationship with them, or, in the case of a customer, to conduct with any person any business or activity which such customer conducts or could conduct with the Company or any of its Subsidiaries.
(C) The Executive and the Company further agree that following any termination of the Executive's employment pursuant to which the Executive is entitled to benefits under Section 6.1this Agreement and for a period of six months thereafter, (i) the Executive shall not make statements not, within those areas in which Executive rendered services pursuant to this Agreement within two (2) years prior to the termination or representations, otherwise communicatecessation of Executive's employment with the Corporation, directly or indirectly:
(i) be engaged, on his own behalf or on behalf of others, in writing, orally, an executive capacity which involves duties and responsibilities identical or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging substantially similar to those of Executive under the Company or any if its Subsidiaries or affiliates or their respective former or current officers, directors, employees, advisors, businesses or reputations, terms and provisions of this Agreement or
(ii) solicit, divert or appropriate or attempt to solicit, divert or appropriate any oil and gas properties of the Company Corporation which were identified by Executive or under his supervision on behalf of the Corporation to or for any business which is engaged in the oil and gas business in a substantially similar manner and competing with the Corporation.
(b) Executive shall instruct its Board members and senior management to not make statements not, on his own behalf or representationson behalf of others, otherwise communicatesolicit, directlydivert or hire away, or indirectlyattempt to solicit, in writingdivert or hire away, orally any person employed by the Corporation, whether or not such employee is a full-time employee or a temporary employee of the Corporation and whether or not such employment is pursuant to a written agreement or is at will, at any time during the term of this Agreement and for a period of six months after Executive ceases to be employed by the Corporation for any reason whatsoever.
(c) Compliance with the restrictive covenants of this Agreement is a condition precedent to the Corporation's obligation to make any payments of any nature to Executive, whether under this Agreement or otherwise. Nothing in this Agreement shall be construed as prohibiting the Corporation from pursuing any other remedies available to it for a breach or threatened breach of Sections 8 and 9 of this Agreement. 6
(d) Executive agrees that the covenants and agreements contained in Sections 8 and 9 of this Agreement are of the essence of this Agreement and that each of such covenants is reasonable and necessary to protect and preserve the interests and business of the Corporation. Executive further agrees that each of such covenants is separate, distinct and severable, not only from the other of such covenants but also from the remaining provisions of this Agreement; that the unenforceability of any such covenant or take agreement shall not affect the validity or enforceability of any action which may, directly, other such covenant or indirectly, disparage agreements or be damaging to the Executive any other provision or his reputation. The Executive provisions of this Agreement; and the Company further agree that, in the event any court of competent jurisdiction determines, rules or holds that any such provision, covenant or agreement hereof is overly broad or against the Executive's employment with the Company is terminated other than by the Company for Cause or as a result public policy of the Executive's deathstate, the Executive then said court is specifically authorized to reform and the Company shall refer narrow said provision, covenant or agreement to the Executive's departure as a "resignation" in any press release or other external announcement or communication concerning the Executive's departure from the Company. Nothing in this paragraph is intended to undermine any obligations the Executive or the Company may have to comply with applicable law, or prohibit the Executive or the Company from providing truthful testimony or information pursuant to subpoena, court order, discovery demand or similar legal process, or truthfully responding to lawful inquiries by any governmental or regulatory entity.
(D) The provisions of this Section 9 shall not be deemed to preclude the Executive from employment or engagement during the Non-Competition Period following termination of employment hereunder (i) in a business engaged in retail sales, provided such employment or engagement does not otherwise violate the provisions of this Section 9, or (ii) by a corporation, some of the activities of which are competitive with the business of the Company, if the Executive's activities do not relate to such competitive business, and nothing contained in this Section 9 shall be deemed to prohibit the Executive, during the Non-Competition Period following termination of employment hereunder, from acquiring or holding, solely as an investment, publicly traded securities of any competitor corporation so long as such securities do not, in the aggregate, constitute more than 3% of the outstanding voting securities of such corporation.
(E) The Executive acknowledges that the Company and its Subsidiaries continually develop Confidential Information, that the Executive may develop Confidential Information for the Company or its Subsidiaries and that the Executive may learn of Confidential Information during the course of his employment under this Agreement. The Executive will comply with the policies and procedures of the Company and its Subsidiaries for protecting Confidential Information and shall never disclose to any person (except as required by applicable law or legal process or for the proper performance of his duties and responsibilities to the Company and its Subsidiaries, or in connection with any litigation between the Company and the Executive (provided that the Company shall be afforded a reasonable opportunity in each case to obtain a protective order)), or use for his own benefit or gain, any Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its Subsidiaries. The Executive understands that this restriction shall continue to apply after his employment terminates, regardless of the reason for such termination. All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the Company or its Subsidiaries and any copies, in whole or in part, thereof (the "Documents"), whether or not prepared by the Executive, shall be the sole and exclusive property of the Company and its Subsidiaries. The Executive shall safeguard all Documents and shall surrender to the Company at the time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive's possession or control.
(F) Without limiting the foregoing, it is understood that the Company shall not be obligated extent necessary to make any of the payments said reformed and narrowed provision, covenant or to provide for any of the benefits specified in Sections 6.1 agreement valid and 6.2 hereof, and shall be entitled to recoup the pro rata portion of any such payments and of the value of any such benefits previously provided to the Executive in the event of a material breach by the Executive of the provisions of this Section 9 (such pro ration to be determined as a fraction, the numerator of which is the number of days from such breach to the second anniversary of the date on which the Executive terminates employment and the denominator of which is 730), which breach continues without having been cured within 15 days after written notice to the Executive specifying the breach in reasonable detailenforceable.
(G) The Executive and the Company agree that in the event the Executive seeks a reference from the Company in connection with any future or prospective employment, the Company's response to any such reference inquiry shall be limited to and consistent with the following: start and end dates of employment, position(s) held and last salary. For purposes of this Section 9, the following definitions shall apply:
Appears in 1 contract
Sources: Executive Employment Agreement (Middle Bay Oil Co Inc)
Restrictive Covenants. The Contemporaneously herewith, Executive shall execute and deliver to the Corporation the attached Confidentiality, Non-Competition and Confirmatory Assignment Agreement (the “RCA,” and together with any similar or successor agreements and obligations, referred to herein as the “Restrictive Covenants”), and Executive agrees that restrictions on his activities during and after his employment are necessary to protect that, as part of this Agreement, Executive shall comply with the goodwill, Confidential Information and other legitimate interests terms of the Company Restrictive Covenants. Executive acknowledges and its Subsidiariesagrees that (i) Executive received this Agreement and the RCA at least ten (10) business days before the commencement of Executive’s employment with the Corporation; and (ii) Executive has been advised by the Corporation that Executive has the right to consult with counsel prior to signing this Agreement and the RCA. Notwithstanding Section 10(iii) of this Agreement, and that the agreed restrictions set forth below will not deprive the if (a) Executive of the ability to earn a livelihood:
(A) While the Executive is in the terminates employment of the Company other than for Good Reason and, if the Executive thus, is not entitled to the payments and benefits under Section 6.1 hereof upon termination 10(ii) of employmentthis Agreement, for and (b)(i) Executive receives a period of twenty-four (24) months after such termination written offer of employment (the "Non-Competition Period"), the Executive shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer or otherwise, compete with the business of the Company or any of its Subsidiaries within a twenty (20) mile radius of any location where the Company operates a retail store at the date of termination of employment, or at which the Company has entered into a letter of intent or similar commitment for or entered into obligations relating to the opening of a retail store to be opened within the period of this covenant. Specifically, but without limiting the foregoing, the Executive agrees not to engage in any manner in any activity that is directly or indirectly competitive with the business of the Company or any of its Subsidiaries as conducted or which has been proposed by management within six months prior to termination of the Executive's employment. Restricted activity also includes without limitation accepting employment or a consulting position with any person who is, or at any time within twelve (12) months prior to termination of the Executive's employment has been, a licensee of the Company or any of its Subsidiaries. For the purposes of this Section 9, the business of the Company and its Subsidiaries shall mean retail operations for the sale of natural and organic foods, including groceries, meat, seafood, dairy and frozen products and produce, as well as natural vitamins, supplements, homeopathic remedies and body care products.
(B) The Executive agrees that during the Non-Competition Period or set forth in connection with any termination of employment pursuant to which the Executive is entitled to benefits under Section 6.1, the Executive will not, either directly or through any agent or employee, Solicit any employee 2(a) of the Company or any of its Subsidiaries to terminate his or her relationship with the Company or any of its Subsidiaries or to apply for or accept employment with any enterprise competitive with the business of the CompanyRCA, or Solicit any customer, supplier, licensee or vendor of the Company or any of its Subsidiaries to terminate or materially modify its relationship with them, or, in the case of a customer, to conduct with any person any business or activity which such customer conducts or could conduct with the Company or any of its Subsidiaries.
(C) The Executive and the Company further agree that following any termination of the Executive's employment pursuant to which the Executive is entitled to benefits under Section 6.1, (i) the Executive shall not make statements or representations, otherwise communicate, directly or indirectly, in writing, orally, or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Company or any if its Subsidiaries or affiliates or their respective former or current officers, directors, employees, advisors, businesses or reputations, (ii) Executive is not able to find suitable employment in Executive’s field in relation to Executive’s skills, position and base salary, which employment would not contravene Section 2(a) of the Company RCA, after a good faith effort by Executive to search for such employment, and (iii) the Corporation notifies Executive that it intends to enforce the non-compete provisions of such Section 2(a) against Executive, then the Corporation shall instruct its Board members and senior management pay to not make statements or representations, otherwise communicate, directly, or indirectly, in writing, orally or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging Executive an amount equal to the Executive or his reputation. The Executive and semi-monthly amount of Executive’s Base Salary for each semi-monthly payroll period beginning (A) on the Company further agree that, in the event the Executive's employment with the Company is terminated other than by the Company for Cause or as a result effective date of the Executive's deathwritten offer of employment referred to above or (B) during the period in which Executive is not able to find suitable employment, and ending on the Executive and earliest to occur of (I) the Company shall refer to the Executive's departure as a "resignation" in any press release or other external announcement or communication concerning the Executive's departure from the Company. Nothing in this paragraph is intended to undermine any obligations the Executive or the Company may have to comply with applicable law, or prohibit the Executive or the Company from providing truthful testimony or information pursuant to subpoena, court order, discovery demand or similar legal process, or truthfully responding to lawful inquiries by any governmental or regulatory entity.
(D) The provisions end of this Section 9 shall not be deemed to preclude the Executive from employment or engagement during the Non-Competition Period following termination of employment hereunder (i) set forth in a business engaged in retail sales, provided such employment or engagement does not otherwise violate the provisions of this Section 92(a), or (iiII) by a corporationthe date as of which Executive begins new employment with an employer, some which employment would not contravene Section 2(a) of the activities RCA. For the avoidance of which are competitive with doubt, the business non-competition and other provisions of the Company, if RCA in all events shall continue to apply until the Executive's activities do not relate to such competitive business, and nothing contained in this Section 9 shall be deemed to prohibit the Executive, during end of the Non-Competition Period following termination of employment hereunder, from acquiring or holding, solely as an investment, publicly traded securities of any competitor corporation so long as such securities do not, set forth in the aggregate, constitute more than 3% Section 2(a) of the outstanding voting securities of such corporation.
(E) The Executive acknowledges that the Company and its Subsidiaries continually develop Confidential Information, that the Executive may develop Confidential Information for the Company or its Subsidiaries and that the Executive may learn of Confidential Information during the course of his employment under this Agreement. The Executive will comply with the policies and procedures of the Company and its Subsidiaries for protecting Confidential Information and shall never disclose to any person (except as required by applicable law or legal process or for the proper performance of his duties and responsibilities to the Company and its Subsidiaries, or in connection with any litigation between the Company and the Executive (provided that the Company shall be afforded a reasonable opportunity in each case to obtain a protective order)), or use for his own benefit or gain, any Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its Subsidiaries. The Executive understands that this restriction shall continue to apply after his employment terminatesRCA, regardless of the reason for such termination. All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, Executive’s new employment with an employer that would not contravene Section 2(a) of the Company or its Subsidiaries and any copiesRCA, in whole or in part, thereof (the "Documents"), whether or not prepared by the Executive, shall be the sole and exclusive property subsequent termination of the Company and its Subsidiaries. The Executive shall safeguard all Documents and shall surrender to the Company at the time his employment terminatessuch employment, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive's possession or controlany other event.
(F) Without limiting the foregoing, it is understood that the Company shall not be obligated to make any of the payments or to provide for any of the benefits specified in Sections 6.1 and 6.2 hereof, and shall be entitled to recoup the pro rata portion of any such payments and of the value of any such benefits previously provided to the Executive in the event of a material breach by the Executive of the provisions of this Section 9 (such pro ration to be determined as a fraction, the numerator of which is the number of days from such breach to the second anniversary of the date on which the Executive terminates employment and the denominator of which is 730), which breach continues without having been cured within 15 days after written notice to the Executive specifying the breach in reasonable detail.
(G) The Executive and the Company agree that in the event the Executive seeks a reference from the Company in connection with any future or prospective employment, the Company's response to any such reference inquiry shall be limited to and consistent with the following: start and end dates of employment, position(s) held and last salary. For purposes of this Section 9, the following definitions shall apply:
Appears in 1 contract
Restrictive Covenants. The (a) Executive acknowledges and agrees that his position with the Company places him in a position of confidence and trust with respect to Proprietary Information. Executive consequently agrees that it is reasonable and necessary for the protection of the goodwill of the Business that Executive make the covenants contained herein. Accordingly, Executive agrees that, during the Term of this Agreement and for a period of twelve (12) months after the date of expiration or termination of Executive’s employment hereunder for any reason whatsoever, Executive will not, without the prior written consent of the Company and provided that the Company has not failed to make any payments to the Executive when due in accordance with the provisions of Section 6 hereof and otherwise comply with the terms and conditions of this Agreement, (i) employ, solicit or encourage to leave the employ of the Company, or to become employed by any person other than the Company, any employee of the Company, (ii) persuade or attempt to persuade any customer of the Company as of the date of the termination or expiration of Executive’s employment, to cease doing business with, or to reduce the amount of business it does with, the Company, or solicit the business of any of the Company’s customers as of the date of the termination or expiration of Executive’s employment, with respect to any product or service which competes with the products and services of the Company as of the date of termination of Executive’s employment or (iii) compete with the Company as a consultant to, employee of, or equity participant in, any venture which competes with the Business within the United States of America. No provision of this Section 10 shall prohibit Executive from merely owning (i.e., having no participation or involvement in the management) no more than three percent (3%) of the outstanding equity securities of any actively traded public entity. Notwithstanding anything contained herein to the contrary, in the event that Executive’s employment is terminated by Executive for Good Reason or by the Company or any successor without Cause in connection with, or during the twenty-four (24) month period following, a Change of Control, the provisions of Sections 10 and 22 of this Agreement shall not apply to Executive.
(b) Executive has carefully considered the nature and extent of the restrictions on his activities during upon him and after his employment the rights and remedies conferred upon the Company under Sections 10 and 11 of this Agreement and hereby acknowledges and agrees that the same are necessary reasonable in time and territory, are designed to avoid competition which otherwise would be unfair to the Company, do not stifle the inherent skill and experience of Executive, would not operate as a bar to Executive’s sole means of support, are required to protect the goodwill, Confidential Information and other legitimate interests of the Company and its Subsidiaries, and that the agreed restrictions set forth below will do not deprive the Executive of the ability to earn confer a livelihood:
(A) While the Executive is in the employment of benefit upon the Company and, if the Executive is entitled to benefits under Section 6.1 hereof upon termination of employment, for a period of twenty-four (24) months after such termination of employment (the "Non-Competition Period"), the Executive shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer or otherwise, compete with the business of the Company or any of its Subsidiaries within a twenty (20) mile radius of any location where the Company operates a retail store at the date of termination of employment, or at which the Company has entered into a letter of intent or similar commitment for or entered into obligations relating disproportionate to the opening of a retail store to be opened within the period of this covenant. Specifically, but without limiting the foregoing, the benefit otherwise afforded Executive agrees not to engage in any manner in any activity that is directly or indirectly competitive with the business of the Company or any of its Subsidiaries as conducted or which has been proposed by management within six months prior to termination of the Executive's employment. Restricted activity also includes without limitation accepting employment or a consulting position with any person who is, or at any time within twelve (12) months prior to termination of the Executive's employment has been, a licensee of the Company or any of its Subsidiaries. For the purposes of this Section 9, the business of the Company and its Subsidiaries shall mean retail operations for the sale of natural and organic foods, including groceries, meat, seafood, dairy and frozen products and produce, as well as natural vitamins, supplements, homeopathic remedies and body care products.
(B) The Executive agrees that during the Non-Competition Period or in connection with any termination of employment pursuant to which the Executive is entitled to benefits under Section 6.1, the Executive will not, either directly or through any agent or employee, Solicit any employee of the Company or any of its Subsidiaries to terminate his or her relationship with the Company or any of its Subsidiaries or to apply for or accept employment with any enterprise competitive with the business of the Company, or Solicit any customer, supplier, licensee or vendor of the Company or any of its Subsidiaries to terminate or materially modify its relationship with them, or, in the case of a customer, to conduct with any person any business or activity which such customer conducts or could conduct with the Company or any of its Subsidiaries.
(C) The Executive and the Company further agree that following any termination of the Executive's employment pursuant to which the Executive is entitled to benefits under Section 6.1, (i) the Executive shall not make statements or representations, otherwise communicate, directly or indirectly, in writing, orally, or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Company or any if its Subsidiaries or affiliates or their respective former or current officers, directors, employees, advisors, businesses or reputations, (ii) the Company shall instruct its Board members and senior management to not make statements or representations, otherwise communicate, directly, or indirectly, in writing, orally or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Executive or his reputation. The Executive and the Company further agree that, in the event the Executive's employment with the Company is terminated other than by the Company for Cause or as a result of the Executive's death, the Executive and the Company shall refer to the Executive's departure as a "resignation" in any press release or other external announcement or communication concerning the Executive's departure from the Company. Nothing in this paragraph is intended to undermine any obligations the Executive or the Company may have to comply with applicable law, or prohibit the Executive or the Company from providing truthful testimony or information pursuant to subpoena, court order, discovery demand or similar legal process, or truthfully responding to lawful inquiries by any governmental or regulatory entity.
(D) The provisions of this Section 9 shall not be deemed to preclude the Executive from employment or engagement during the Non-Competition Period following termination of employment hereunder (i) in a business engaged in retail sales, provided such employment or engagement does not otherwise violate the provisions of this Section 9, or (ii) by a corporation, some of the activities of which are competitive with the business of the Company, if the Executive's activities do not relate to such competitive business, and nothing contained in this Section 9 shall be deemed to prohibit the Executive, during the Non-Competition Period following termination of employment hereunder, from acquiring or holding, solely as an investment, publicly traded securities of any competitor corporation so long as such securities do not, in the aggregate, constitute more than 3% of the outstanding voting securities of such corporation.
(E) The Executive acknowledges that the Company and its Subsidiaries continually develop Confidential Information, that the Executive may develop Confidential Information for the Company or its Subsidiaries and that the Executive may learn of Confidential Information during the course of his employment under this Agreement. The Executive will comply with the policies and procedures of the Company and its Subsidiaries for protecting Confidential Information and shall never disclose to any person (except as required by applicable law or legal process or for the proper performance of his duties and responsibilities to the Company and its Subsidiaries, or in connection with any litigation between the Company and the Executive (provided that the Company shall be afforded a reasonable opportunity in each case to obtain a protective order)), or use for his own benefit or gain, any Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its Subsidiaries. The Executive understands that this restriction shall continue to apply after his employment terminates, regardless of the reason for such termination. All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the Company or its Subsidiaries and any copies, in whole or in part, thereof (the "Documents"), whether or not prepared by the Executive, shall be the sole and exclusive property of the Company and its Subsidiaries. The Executive shall safeguard all Documents and shall surrender to the Company at the time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive's possession or control.
(F) Without limiting the foregoing, it is understood that the Company shall not be obligated to make any of the payments or to provide for any of the benefits specified in Sections 6.1 and 6.2 hereof, and shall be entitled to recoup the pro rata portion of any such payments and of the value of any such benefits previously provided to the Executive in the event of a material breach by the Executive of the provisions of this Section 9 (such pro ration to be determined as a fraction, the numerator of which is the number of days from such breach to the second anniversary of the date on which the Executive terminates employment and the denominator of which is 730), which breach continues without having been cured within 15 days after written notice to the Executive specifying the breach in reasonable detail.
(G) The Executive and the Company agree that in the event the Executive seeks a reference from the Company in connection with any future or prospective employment, the Company's response to any such reference inquiry shall be limited to and consistent with the following: start and end dates of employment, position(s) held and last salary. For purposes of this Section 9, the following definitions shall apply:
Appears in 1 contract
Restrictive Covenants. The Executive In consideration for the Restricted Stock Units, Grantee agrees that restrictions during the period commencing on his activities during the date hereof and after his employment are necessary to protect ending on the goodwillsettlement date, Confidential Information and other legitimate interests of the Company and its Subsidiaries, and that the agreed restrictions set forth below will Grantee shall not deprive the Executive of the ability to earn a livelihood:
(A) While the Executive is in the employment of the Company and, if the Executive is entitled to benefits under Section 6.1 hereof upon termination of employment, for a period of twenty-four (24) months after such termination of employment (the "Non-Competition Period"), the Executive shall not, directly or indirectly, whether either as owner, partner, investor, consultanta principal, agent, employee, co-venturer employer, consultant, partner, shareholder of a closely held corporation or otherwiseshareholder in excess of five (5%) percent of a publicly traded corporation, compete corporate officer or director, or in any other individual or representative capacity, engage or otherwise participate in any manner or fashion in any business that is in competition in any manner whatsoever with the business mortgage and real estate services businesses of the Company or any of its Subsidiaries within a twenty (20) mile radius of any location where the Company operates a retail store at the date of termination of employment, or at other business in which the Company has entered into a letter of intent is engaged or similar commitment for or entered into obligations relating to the opening of a retail store to be opened within the period of this covenant. Specifically, but without limiting the foregoing, the Executive agrees not to engage in any manner in any activity that which is directly or indirectly competitive with the business part of the Company’s Developing Business, within states in which the Company is engaged in such business or any Developing Business. In addition, from and after the date hereof until the later of its Subsidiaries as conducted (i) the settlement date or which has been proposed by management within six months prior to termination of (ii) the Executive's employment. Restricted activity also includes without limitation accepting employment or a consulting position with any person who is, or at any time within twelve (12) months prior to month period immediately following Grantee’s termination of employment with the Executive's employment has beenCompany or its subsidiaries for any reason , a licensee Grantee covenants and agrees not to directly or indirectly, solicit or induce any officer, director, employee, agent, independent contractor or consultant or client of the Company or any of its Subsidiaries. For the purposes of this Section 9, the business of the Company and its Subsidiaries shall mean retail operations for the sale of natural and organic foods, including groceries, meat, seafood, dairy and frozen products and produce, as well as natural vitamins, supplements, homeopathic remedies and body care products.
(B) The Executive agrees that during the Non-Competition Period or in connection with any termination of employment pursuant to which the Executive is entitled to benefits under Section 6.1, the Executive will not, either directly or through any agent or employee, Solicit any employee of the Company or any of its Subsidiaries to terminate his his, her or its employment or other relationship with the Company, or otherwise encourage any such person or entity to leave or sever his, her or its employment or other relationship with the Company for any reason. Further, from and after the date hereof until the later of (i) the settlement date or any (ii) the twelve (12) month period immediately following Grantee’s termination of its Subsidiaries or to apply for or accept employment with the Company or its subsidiaries for any enterprise competitive reason, Grantee agrees that Grantee shall not make any disparaging or defamatory comments regarding the Company or its directors, officers, executives or employees, or, after termination of Grantee’s employment relationship with the business Company, make any such comments concerning any aspect of the termination of their relationship. The obligations of Grantee under this subparagraph shall not apply to disclosures required by applicable law, regulation or order of any court or governmental agency, provided Grantee shall promptly notify the Company in writing of any such obligation. The Grantee further covenants and agrees that these restrictive covenants are reasonable as to duration, terms and geographical area and that the same protect the legitimate interests of the Company, or Solicit impose no undue hardship on Grantee, are not injurious to the public, and that any customer, supplier, licensee or vendor violation of the Company or these restrictive covenants shall be specifically enforceable in any of its Subsidiaries to terminate or materially modify its relationship court with them, or, jurisdiction in the case of a customer, to conduct with any person any business or activity which such customer conducts or could conduct with the Company or any of its Subsidiariesmatter.
(C) The Executive and the Company further agree that following any termination of the Executive's employment pursuant to which the Executive is entitled to benefits under Section 6.1, (i) the Executive shall not make statements or representations, otherwise communicate, directly or indirectly, in writing, orally, or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Company or any if its Subsidiaries or affiliates or their respective former or current officers, directors, employees, advisors, businesses or reputations, (ii) the Company shall instruct its Board members and senior management to not make statements or representations, otherwise communicate, directly, or indirectly, in writing, orally or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Executive or his reputation. The Executive and the Company further agree that, in the event the Executive's employment with the Company is terminated other than by the Company for Cause or as a result of the Executive's death, the Executive and the Company shall refer to the Executive's departure as a "resignation" in any press release or other external announcement or communication concerning the Executive's departure from the Company. Nothing in this paragraph is intended to undermine any obligations the Executive or the Company may have to comply with applicable law, or prohibit the Executive or the Company from providing truthful testimony or information pursuant to subpoena, court order, discovery demand or similar legal process, or truthfully responding to lawful inquiries by any governmental or regulatory entity.
(D) The provisions of this Section 9 shall not be deemed to preclude the Executive from employment or engagement during the Non-Competition Period following termination of employment hereunder (i) in a business engaged in retail sales, provided such employment or engagement does not otherwise violate the provisions of this Section 9, or (ii) by a corporation, some of the activities of which are competitive with the business of the Company, if the Executive's activities do not relate to such competitive business, and nothing contained in this Section 9 shall be deemed to prohibit the Executive, during the Non-Competition Period following termination of employment hereunder, from acquiring or holding, solely as an investment, publicly traded securities of any competitor corporation so long as such securities do not, in the aggregate, constitute more than 3% of the outstanding voting securities of such corporation.
(E) The Executive acknowledges that the Company and its Subsidiaries continually develop Confidential Information, that the Executive may develop Confidential Information for the Company or its Subsidiaries and that the Executive may learn of Confidential Information during the course of his employment under this Agreement. The Executive will comply with the policies and procedures of the Company and its Subsidiaries for protecting Confidential Information and shall never disclose to any person (except as required by applicable law or legal process or for the proper performance of his duties and responsibilities to the Company and its Subsidiaries, or in connection with any litigation between the Company and the Executive (provided that the Company shall be afforded a reasonable opportunity in each case to obtain a protective order)), or use for his own benefit or gain, any Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its Subsidiaries. The Executive understands that this restriction shall continue to apply after his employment terminates, regardless of the reason for such termination. All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the Company or its Subsidiaries and any copies, in whole or in part, thereof (the "Documents"), whether or not prepared by the Executive, shall be the sole and exclusive property of the Company and its Subsidiaries. The Executive shall safeguard all Documents and shall surrender to the Company at the time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive's possession or control.
(F) Without limiting the foregoing, it is understood that the Company shall not be obligated to make any of the payments or to provide for any of the benefits specified in Sections 6.1 and 6.2 hereof, and shall be entitled to recoup the pro rata portion of any such payments and of the value of any such benefits previously provided to the Executive in the event of a material breach by the Executive of the provisions of this Section 9 (such pro ration to be determined as a fraction, the numerator of which is the number of days from such breach to the second anniversary of the date on which the Executive terminates employment and the denominator of which is 730), which breach continues without having been cured within 15 days after written notice to the Executive specifying the breach in reasonable detail.
(G) The Executive and the Company agree that in the event the Executive seeks a reference from the Company in connection with any future or prospective employment, the Company's response to any such reference inquiry shall be limited to and consistent with the following: start and end dates of employment, position(s) held and last salary. For purposes of this Section 9, the following definitions shall apply:
Appears in 1 contract
Sources: Restricted Stock Unit Agreement (Nationstar Mortgage Holdings Inc.)
Restrictive Covenants. (a) The Executive agrees Executive’s right to receive any unpaid compensation or benefits due pursuant to Sections 2 and 3 hereof that restrictions on his activities during and after his employment are necessary to protect the goodwillremain unpaid to, Confidential Information and other legitimate interests of the Company and its Subsidiariesor unrealized by, and that the agreed restrictions set forth below will not deprive the Executive of the ability shall be subject to earn a livelihood:
(A) While the Executive is in the employment of the Company and, forfeiture if the Executive is entitled to benefits under not in compliance with Section 6.1 hereof upon termination of employment, for a period of twenty-four (24) months after such termination of employment (the "Non-Competition Period"), the Executive shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer or otherwise, compete with the business 10 of the Company or any of Employment Agreement, which Section 10 shall survive in its Subsidiaries within a twenty entirety in accordance with its terms as modified herein:
(20b) mile radius of any location where the Company operates a retail store at the date of termination of employment, or at which the Company has entered into a letter of intent or similar commitment for or entered into obligations relating to the opening of a retail store to be opened within the period of this covenant. Specifically, but without limiting the foregoing, the Executive agrees not to engage in any manner in any activity that is directly or indirectly competitive with the business Section 10(a) of the Company or any of its Subsidiaries Employment Agreement (as conducted or which has been proposed by management within six months prior to termination of the Executive's employment. Restricted activity also includes without limitation accepting employment or a consulting position with any person who is, or at any time within twelve (12incorporated herein) months prior to termination of the Executive's employment has been, a licensee of the Company or any of its Subsidiaries. For the purposes of this Section 9, the business of the Company and its Subsidiaries shall mean retail operations for the sale of natural and organic foods, including groceries, meat, seafood, dairy and frozen products and produce, is modified as well as natural vitamins, supplements, homeopathic remedies and body care products.follows:
(B) The Executive agrees that during the Non-Competition Period or in connection with any termination of employment pursuant to which the Executive is entitled to benefits under Section 6.1, the Executive will not, either directly or through any agent or employee, Solicit any employee of the Company or any of its Subsidiaries to terminate his or her relationship with the Company or any of its Subsidiaries or to apply for or accept employment with any enterprise competitive with the business of the Company, or Solicit any customer, supplier, licensee or vendor of the Company or any of its Subsidiaries to terminate or materially modify its relationship with them, or, in the case of a customer, to conduct with any person any business or activity which such customer conducts or could conduct with the Company or any of its Subsidiaries.
(C) The Executive and the Company further agree that following any termination of the Executive's employment pursuant to which the Executive is entitled to benefits under Section 6.1, (i) the Executive shall not make statements or representations, otherwise communicate, directly or indirectly, in writing, orally, or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Company or any if its Subsidiaries or affiliates or their respective former or current officers, directors, employees, advisors, businesses or reputations, (ii) the Company shall instruct its Board members and senior management to not make statements or representations, otherwise communicate, directly, or indirectly, in writing, orally or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging Any reference to the Executive or his reputation. The Executive Patent and the Company further agree that, in the event the Executive's employment with the Company is terminated other than by the Company for Cause or as a result of the Executive's death, the Executive and the Company Confidence Agreement shall refer to the Executive's departure Confidentiality Agreement as a "resignation" defined in Section 7 hereof.
(ii) Anything to the contrary notwithstanding in this Agreement or in the Confidentiality Agreement, the provisions of the Confidentiality Agreement and Section 10(a) of the Employment Agreement shall not apply (A) to any press release disclosure or use of Proprietary Information (as defined in the Confidentiality Agreement) or other external announcement or communication concerning information to the Executive's departure from the Company. Nothing in this paragraph is intended to undermine any obligations the Executive or the Company may have extent necessary to comply with applicable lawthe Executive’s duty to render services or assistance under Section 6 hereof, (B) as required by law or prohibit by any court, arbitrator, mediator or administrative or legislative body (including any committee thereof) with actual or apparent jurisdiction to order the Executive to disclose or make accessible any information or (C) to the Company from providing truthful testimony or information pursuant to subpoenadisclosure of the tax treatment and tax structure, court ordereach as defined in Treasury Regulations Section 1.6011-4, discovery demand or similar legal process, or truthfully responding to lawful inquiries by any governmental or regulatory entityof the matters provided for herein.
(Diii) The provisions of this Section 9 10(c) of the Employment Agreement shall apply for 12 months following the Termination Date. In addition, anything to the contrary notwithstanding, it shall not be deemed to preclude be a violation of Section 10(c) of the Employment Agreement (as incorporated herein) for the Executive from employment or engagement during the Non-Competition Period following termination of employment hereunder (i) in to provide a business engaged in retail sales, provided personal reference for any Company employee setting forth her personal views about such employment or engagement does not otherwise violate the provisions of this Section 9, or (ii) by a corporation, some of the activities of which are competitive with the business of the Company, if the Executive's activities do not relate to such competitive business, and nothing contained in this Section 9 shall be deemed to prohibit the Executive, during the Non-Competition Period following termination of employment hereunder, from acquiring or holding, solely as an investment, publicly traded securities of any competitor corporation employee so long as such securities do notpersonal reference is not provided with respect to a position at a potential employer with which the Executive is affiliated in any manner. In addition, in the aggregate, Company acknowledges that its employees may join a company or other entity with which the Executive is affiliated and that such event shall not constitute more than 3% a violation of Section 10(c) of the outstanding voting securities of such corporation.
(E) The Executive acknowledges that the Company and its Subsidiaries continually develop Confidential Information, that Employment Agreement if the Executive may develop Confidential Information for was not involved in (A) the Company or its Subsidiaries and that the Executive may learn of Confidential Information during the course of his employment under this Agreement. The Executive will comply with the policies and procedures hiring of the Company and its Subsidiaries for protecting Confidential Information and shall never disclose to any person employee, (except B) identifying such employee as required by applicable law a potential recruit or legal process or for the proper performance of his duties and responsibilities to the Company and its Subsidiaries, or in connection with any litigation between the Company and the Executive (provided that the Company shall be afforded a reasonable opportunity in each case to obtain a protective order)), or use for his own benefit or gain, any Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its Subsidiaries. The Executive understands that this restriction shall continue to apply after his employment terminates, regardless of the reason for such termination. All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the Company or its Subsidiaries and any copies, in whole or in part, thereof (the "Documents"), whether or not prepared by the Executive, shall be the sole and exclusive property of the Company and its Subsidiaries. The Executive shall safeguard all Documents and shall surrender to the Company at the time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then C) otherwise assisting in the Executive's possession or controlrecruitment of such employee.
(F) Without limiting the foregoing, it is understood that the Company shall not be obligated to make any of the payments or to provide for any of the benefits specified in Sections 6.1 and 6.2 hereof, and shall be entitled to recoup the pro rata portion of any such payments and of the value of any such benefits previously provided to the Executive in the event of a material breach by the Executive of the provisions of this Section 9 (such pro ration to be determined as a fraction, the numerator of which is the number of days from such breach to the second anniversary of the date on which the Executive terminates employment and the denominator of which is 730), which breach continues without having been cured within 15 days after written notice to the Executive specifying the breach in reasonable detail.
(G) The Executive and the Company agree that in the event the Executive seeks a reference from the Company in connection with any future or prospective employment, the Company's response to any such reference inquiry shall be limited to and consistent with the following: start and end dates of employment, position(s) held and last salary. For purposes of this Section 9, the following definitions shall apply:
Appears in 1 contract
Restrictive Covenants. The (a) Executive acknowledges and agrees that his position with the Company places him in a position of confidence and trust with respect to Proprietary Information. Executive consequently agrees that it is reasonable and necessary for the protection of the goodwill of the Business that Executive make the covenants contained herein. Accordingly, Executive agrees that, during the Term of this Agreement and for a period of six (6) months after the date of expiration or twelve (12) months after the date of termination of Executive’s employment hereunder for any reason whatsoever, Executive will not, without the prior written consent of the Company and provided that the Company has not failed to make any payments to the Executive when due in accordance with the provisions of Sections 3 or 6 hereof and otherwise comply with the terms and conditions of this Agreement, (i) employ, solicit or encourage to leave the employ of the Company, or to become employed by any person other than the Company, any employee of the Company, or any individual who was an employee of the Company during the one year prior to the termination or expiration of Executive’s employment, (ii) persuade or attempt to persuade any customer of the Company as of the date of the termination or expiration of Executive’s employment or during the one year prior to the termination or expiration of Executive’s employment to cease doing business with, or to reduce the amount of business it does with, the Company, or solicit the business of any of the Company’s customers as of the date of the termination or expiration during the one year prior to the termination or expiration of Executive’s employment hereunder with respect to any product or service which competes with the products and services of the Company as of the date of termination of Executive’s employment or (iii) compete with the Company as a consultant to, employee of, or equity participant in, any venture which competes with the Business within the United States of America. No provision of this Section 10 shall prohibit Executive from merely owning (i.e., having no participation or involvement in the management) no more than three percent (3%) of the outstanding equity securities of any actively traded public entity.
(b) Executive has carefully considered the nature and extent of the restrictions on his activities during upon him and after his employment the rights and remedies conferred upon the Company under Sections 10 and 11 of this Agreement and hereby acknowledges and agrees that the same are necessary reasonable in time and territory, are designed to avoid competition which otherwise would be unfair to the Company, are required to protect the goodwill, Confidential Information and other legitimate interests of the Company and its Subsidiaries, and that the agreed restrictions set forth below will do not deprive the Executive of the ability to earn confer a livelihood:
(A) While the Executive is in the employment of benefit upon the Company and, if the Executive is entitled to benefits under Section 6.1 hereof upon termination of employment, for a period of twenty-four (24) months after such termination of employment (the "Non-Competition Period"), the Executive shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer or otherwise, compete with the business of the Company or any of its Subsidiaries within a twenty (20) mile radius of any location where the Company operates a retail store at the date of termination of employment, or at which the Company has entered into a letter of intent or similar commitment for or entered into obligations relating disproportionate to the opening of a retail store to be opened within the period of this covenant. Specifically, but without limiting the foregoing, the benefit otherwise afforded Executive agrees not to engage in any manner in any activity that is directly or indirectly competitive with the business of the Company or any of its Subsidiaries as conducted or which has been proposed by management within six months prior to termination of the Executive's employment. Restricted activity also includes without limitation accepting employment or a consulting position with any person who is, or at any time within twelve (12) months prior to termination of the Executive's employment has been, a licensee of the Company or any of its Subsidiaries. For the purposes of this Section 9, the business of the Company and its Subsidiaries shall mean retail operations for the sale of natural and organic foods, including groceries, meat, seafood, dairy and frozen products and produce, as well as natural vitamins, supplements, homeopathic remedies and body care products.
(B) The Executive agrees that during the Non-Competition Period or in connection with any termination of employment pursuant to which the Executive is entitled to benefits under Section 6.1, the Executive will not, either directly or through any agent or employee, Solicit any employee of the Company or any of its Subsidiaries to terminate his or her relationship with the Company or any of its Subsidiaries or to apply for or accept employment with any enterprise competitive with the business of the Company, or Solicit any customer, supplier, licensee or vendor of the Company or any of its Subsidiaries to terminate or materially modify its relationship with them, or, in the case of a customer, to conduct with any person any business or activity which such customer conducts or could conduct with the Company or any of its Subsidiaries.
(C) The Executive and the Company further agree that following any termination of the Executive's employment pursuant to which the Executive is entitled to benefits under Section 6.1, (i) the Executive shall not make statements or representations, otherwise communicate, directly or indirectly, in writing, orally, or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Company or any if its Subsidiaries or affiliates or their respective former or current officers, directors, employees, advisors, businesses or reputations, (ii) the Company shall instruct its Board members and senior management to not make statements or representations, otherwise communicate, directly, or indirectly, in writing, orally or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Executive or his reputation. The Executive and the Company further agree that, in the event the Executive's employment with the Company is terminated other than by the Company for Cause or as a result of the Executive's death, the Executive and the Company shall refer to the Executive's departure as a "resignation" in any press release or other external announcement or communication concerning the Executive's departure from the Company. Nothing in this paragraph is intended to undermine any obligations the Executive or the Company may have to comply with applicable law, or prohibit the Executive or the Company from providing truthful testimony or information pursuant to subpoena, court order, discovery demand or similar legal process, or truthfully responding to lawful inquiries by any governmental or regulatory entity.
(D) The provisions of this Section 9 shall not be deemed to preclude the Executive from employment or engagement during the Non-Competition Period following termination of employment hereunder (i) in a business engaged in retail sales, provided such employment or engagement does not otherwise violate the provisions of this Section 9, or (ii) by a corporation, some of the activities of which are competitive with the business of the Company, if the Executive's activities do not relate to such competitive business, and nothing contained in this Section 9 shall be deemed to prohibit the Executive, during the Non-Competition Period following termination of employment hereunder, from acquiring or holding, solely as an investment, publicly traded securities of any competitor corporation so long as such securities do not, in the aggregate, constitute more than 3% of the outstanding voting securities of such corporation.
(E) The Executive acknowledges that the Company and its Subsidiaries continually develop Confidential Information, that the Executive may develop Confidential Information for the Company or its Subsidiaries and that the Executive may learn of Confidential Information during the course of his employment under this Agreement. The Executive will comply with the policies and procedures of the Company and its Subsidiaries for protecting Confidential Information and shall never disclose to any person (except as required by applicable law or legal process or for the proper performance of his duties and responsibilities to the Company and its Subsidiaries, or in connection with any litigation between the Company and the Executive (provided that the Company shall be afforded a reasonable opportunity in each case to obtain a protective order)), or use for his own benefit or gain, any Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its Subsidiaries. The Executive understands that this restriction shall continue to apply after his employment terminates, regardless of the reason for such termination. All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the Company or its Subsidiaries and any copies, in whole or in part, thereof (the "Documents"), whether or not prepared by the Executive, shall be the sole and exclusive property of the Company and its Subsidiaries. The Executive shall safeguard all Documents and shall surrender to the Company at the time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive's possession or control.
(F) Without limiting the foregoing, it is understood that the Company shall not be obligated to make any of the payments or to provide for any of the benefits specified in Sections 6.1 and 6.2 hereof, and shall be entitled to recoup the pro rata portion of any such payments and of the value of any such benefits previously provided to the Executive in the event of a material breach by the Executive of the provisions of this Section 9 (such pro ration to be determined as a fraction, the numerator of which is the number of days from such breach to the second anniversary of the date on which the Executive terminates employment and the denominator of which is 730), which breach continues without having been cured within 15 days after written notice to the Executive specifying the breach in reasonable detail.
(G) The Executive and the Company agree that in the event the Executive seeks a reference from the Company in connection with any future or prospective employment, the Company's response to any such reference inquiry shall be limited to and consistent with the following: start and end dates of employment, position(s) held and last salary. For purposes of this Section 9, the following definitions shall apply:
Appears in 1 contract
Restrictive Covenants. The Executive agrees that restrictions on his activities during and after his employment are necessary to protect the goodwill, Confidential Information and other legitimate interests of the Company and its Subsidiaries, and that the agreed restrictions set forth below will not deprive the Executive of the ability to earn a livelihood:
(A) While Executive acknowledges that (1) Employer has separately bargained and paid additional consideration for the restrictive covenants herein; and (2) Employer will provide certain benefits to Executive is hereunder in the employment reliance on such covenants in view of the Company and, if the Executive is entitled to benefits under Section 6.1 hereof upon termination of employment, for a period of twenty-four (24) months after such termination of employment (the "Non-Competition Period"), the Executive shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer or otherwise, compete with the business unique and essential nature of the Company or any services Executive will perform on behalf of its Subsidiaries within a twenty (20) mile radius of any location where Employer and the Company operates a retail store at the date of termination of employment, or at which the Company has entered into a letter of intent or similar commitment for or entered into obligations relating to the opening of a retail store to be opened within the period of this covenant. Specifically, but without limiting the foregoing, the irreparable injury that would befall Employer should Executive agrees not to engage in any manner in any activity that is directly or indirectly competitive with the business of the Company or any of its Subsidiaries as conducted or which has been proposed by management within six months prior to termination of the Executive's employment. Restricted activity also includes without limitation accepting employment or a consulting position with any person who is, or at any time within twelve (12) months prior to termination of the Executive's employment has been, a licensee of the Company or any of its Subsidiaries. For the purposes of this Section 9, the business of the Company and its Subsidiaries shall mean retail operations for the sale of natural and organic foods, including groceries, meat, seafood, dairy and frozen products and produce, as well as natural vitamins, supplements, homeopathic remedies and body care productsbreach such covenants.
(B) The Executive agrees further acknowledges that during the Non-Competition Period or in connection with any termination of employment pursuant to which the Executive is entitled to benefits under Section 6.1, the Executive will not, either directly or through any agent or employee, Solicit any employee of the Company or any of its Subsidiaries to terminate his or her relationship with the Company or any of its Subsidiaries or to apply for or accept employment with any enterprise competitive with the business of the Company, or Solicit any customer, supplier, licensee or vendor of the Company or any of its Subsidiaries to terminate or materially modify its relationship with them, or, in the case services are of a customerspecial, unique and extraordinary character and that his position with Employer will place him in a position of confidence and trust with employees of Employer and its subsidiaries and affiliates and with Employer’s other constituencies and will allow him access to conduct with any person any business or activity which such customer conducts or could conduct with the Company or any of trade secrets and confidential information concerning Employer and its Subsidiariessubsidiaries and affiliates.
(C) The Executive further acknowledges that the type and the Company further agree that following any termination periods of the Executive's employment pursuant to which the Executive is entitled to benefits under Section 6.1, (i) the Executive shall not make statements or representations, otherwise communicate, directly or indirectly, in writing, orally, or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Company or any if its Subsidiaries or affiliates or their respective former or current officers, directors, employees, advisors, businesses or reputations, (ii) the Company shall instruct its Board members and senior management to not make statements or representations, otherwise communicate, directly, or indirectly, in writing, orally or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Executive or his reputation. The Executive and the Company further agree that, in the event the Executive's employment with the Company is terminated other than restrictions imposed by the Company for Cause or as a result of the Executive's death, the Executive and the Company shall refer to the Executive's departure as a "resignation" in any press release or other external announcement or communication concerning the Executive's departure from the Company. Nothing covenants in this paragraph is intended to undermine any obligations the Section 10 are fair and reasonable and that such restrictions will not prevent Executive or the Company may have to comply with applicable law, or prohibit the Executive or the Company from providing truthful testimony or information pursuant to subpoena, court order, discovery demand or similar legal process, or truthfully responding to lawful inquiries by any governmental or regulatory entityearning a livelihood.
(D) The provisions Having acknowledged the foregoing, Executive covenants and agrees with Employer as follows:
(1) For a period of this Section 9 two (2) years after the termination of Executive’s employment by Employer for any reason or for no reason, Executive shall not be deemed divulge or furnish any confidential information of Employer acquired by him while employed by Employer to preclude any person, firm or corporation, other than to Employer or upon its written request, or use any such confidential information (which shall at all times remain the Executive from employment property of Employer) directly or engagement during indirectly for Executive’ own benefit or for the Non-Competition Period following termination benefit of employment hereunder any person, firm or corporation other than Employer. For purposes hereof, the term “confidential information” means data and information relating to the Banking Business (ias hereinafter defined) in a business engaged in retail sales, provided such employment or engagement (which does not otherwise violate rise to the provisions status of this a Trade Secret, as such term is defined in Section 910-1-761 of the Official Code of Georgia Annotated) which is or has been disclosed to Executive or of which Executive became aware as a consequence of or through Executive’s relationship to Employer and which has value to Employer and is not generally known to its competitors. Without limiting the foregoing, “confidential information” shall include: (a) all items of information that could be classified as a Trade Secret pursuant to Georgia law; (b) the names, addresses and banking requirements of the customers of Employer or its subsidiaries and the nature and amount of business done with such customers; (c) the names and addresses of employees and other business contacts of Employer or its subsidiaries; (d) the particular names, methods and procedures utilized by Employer or its subsidiaries in the conduct and advertising of their business; (e) application, operating system, communication and other computer software and derivatives thereof, including, without limitation, sources and object codes, flow charts, coding sheets, routines, subrouting and related documentation and manuals of Employer or its subsidiaries; and (f) marketing techniques, purchasing information, pricing policies, loan policies, quoting procedures, financial information, customer data and other materials or information relating to Employer’s or its subsidiaries’ manner of doing business. Confidential information shall not include any data or information that has been voluntarily disclosed to the public by Employer (except where such public disclosure has been made by Executive without authorization) or that has been independently developed and disclosed by others, or (ii) by a corporation, some of that otherwise enters the activities of which are competitive with the business of the Company, if the Executive's activities do not relate to such competitive business, and nothing contained in this Section 9 shall be deemed to prohibit the Executive, during the Non-Competition Period following termination of employment hereunder, from acquiring or holding, solely as an investment, publicly traded securities of any competitor corporation so long as such securities do not, in the aggregate, constitute more than 3% of the outstanding voting securities of such corporationpublic domain through lawful means.
(E2) The Executive acknowledges hereby agrees that the Company and its Subsidiaries continually develop Confidential Information, that the Executive may develop Confidential Information for the Company he will not directly or its Subsidiaries and that the Executive may learn of Confidential Information during the course of his employment under this Agreement. The Executive will comply with the policies and procedures of the Company and its Subsidiaries for protecting Confidential Information and shall never indirectly disclose to any person (except as required by applicable law or legal process or for the proper performance of his duties and responsibilities to the Company and its Subsidiaries, or in connection with any litigation between the Company and the Executive (provided that the Company shall be afforded a reasonable opportunity in each case to obtain a protective order))anyone, or use or otherwise exploit for his own benefit or gain, for the benefit of anyone other than Employer and its subsidiaries any Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its Subsidiaries. The Executive understands that this restriction shall continue to apply after his employment terminates, regardless trade secrets (as defined in §10-1-761 of the reason Official Code of Georgia Annotated and applicable code sections for such termination. All documents, records, tapes and other media any states where Employer has business locations) of every kind and description relating to the business, present or otherwise, of the Company or its Subsidiaries and any copies, in whole or in part, thereof (the "Documents"), whether or not prepared by the Executive, shall be the sole and exclusive property of the Company and its Subsidiaries. The Executive shall safeguard all Documents and shall surrender to the Company at the time his employment terminates, or at such earlier time or times Employer for as the Board or its designee may specify, all Documents then in the Executive's possession or controllong as they remain trade secrets.
(F3) Without limiting the foregoingWhile Executive is employed by Employer and for a period of one (1) year after termination of Executive’s employment pursuant to Subsection 8(A), it is understood that the Company 8(C) or 8(E) hereof, Executive shall not be obligated (except on behalf of or with the prior written consent of Employer), on Executive’s own behalf or in the service or on behalf of others, solicit, divert or appropriate, or attempt to make solicit, divert or appropriate, directly or by assisting others, any Banking Business from any of the payments customers of Employer or to provide its subsidiaries, including actively sought prospective customers, with whom Executive has or had material contact during the last two (2) years of Executive’s employment, for any purposes of providing products or services that are competitive with those provided by Employer or its subsidiaries. The term “Banking Business” shall mean the benefits specified in Sections 6.1 business conducted by Employer and 6.2 hereofits subsidiaries, and shall be entitled to recoup the pro rata portion of any such payments and of the value of any such benefits previously provided to the Executive in the event of a material breach by the Executive of the provisions of this Section 9 (such pro ration to be determined as a fraction, the numerator of which is the number business of days from such breach to banking, including the second anniversary solicitation of the date on which the Executive terminates employment time and demand deposits and the denominator making of which is 730)residential, which breach continues without having been cured within 15 days after written notice to the Executive specifying the breach in reasonable detailconsumer, commercial and corporate loans.
(G) The Executive and the Company agree that in the event the Executive seeks a reference from the Company in connection with any future or prospective employment, the Company's response to any such reference inquiry shall be limited to and consistent with the following: start and end dates of employment, position(s) held and last salary. For purposes of this Section 9, the following definitions shall apply:
Appears in 1 contract
Restrictive Covenants. The Executive In consideration of the granting of Shares pursuant to this Agreement and the Plan, the Grantee hereby agrees that restrictions on his activities during to the following terms and after his employment are necessary conditions:
A. In order to better protect the goodwill, Confidential Information and other legitimate interests goodwill of the Company and its Subsidiariesto prevent the disclosure of the Company’s trade secrets and confidential information and thereby help ensure the long-term success of the business, and that the agreed restrictions set forth below Grantee, without prior written consent of the Company, will not deprive the Executive of the ability to earn engage in any activity or provide any services, whether as a livelihood:
(A) While the Executive is in the employment of the Company anddirector, if the Executive is entitled to benefits under Section 6.1 hereof upon termination of employmentmanager, supervisor, employee, adviser, consultant or otherwise, for a period of twenty-four one (241) months after such year following the date of the Grantee’s termination of employment (the "Non-Competition Period"), the Executive shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer or otherwise, compete Employment with the business Company, in connection with the development, advertising, promotion, or sale of any service which is the same as or similar to or competitive with any services of the Company or any (including both existing services as well as services known to the Grantee, as a consequence of its Subsidiaries within a twenty (20) mile radius of any location where the Company operates a retail store at Grantee’s Employment with the date of termination of employmentCompany, or at to be in development):
i. with respect to which the Company has entered into a letter of intent or similar commitment for or entered into obligations relating to the opening of a retail store to be opened within the period of this covenant. Specifically, but without limiting the foregoing, the Executive agrees not to engage in any manner in any activity that is directly or indirectly competitive with the business of the Company or any of its Subsidiaries as conducted or which Grantee’s work has been proposed by management within six months prior to termination of the Executive's employment. Restricted activity also includes without limitation accepting employment or a consulting position with any person who is, or directly concerned at any time within twelve during the one (121) months prior to year preceding termination of Employment with the Executive's employment has beenCompany; or
ii. with respect to which during that period of time the Grantee, as a licensee consequence of the Company Grantee’s job performance and duties, acquired knowledge of trade secrets or any of its Subsidiaries. For the purposes of this Section 9, the business of the Company and its Subsidiaries shall mean retail operations for the sale of natural and organic foods, including groceries, meat, seafood, dairy and frozen products and produce, as well as natural vitamins, supplements, homeopathic remedies and body care products.
(B) The Executive agrees that during the Non-Competition Period or in connection with any termination of employment pursuant to which the Executive is entitled to benefits under Section 6.1, the Executive will not, either directly or through any agent or employee, Solicit any employee of the Company or any of its Subsidiaries to terminate his or her relationship with the Company or any of its Subsidiaries or to apply for or accept employment with any enterprise competitive with the business other confidential information of the Company, or Solicit any customer, supplier, licensee or vendor of the Company or any of its Subsidiaries to terminate or materially modify its relationship with them, or, in the case of a customer, to conduct with any person any business or activity which such customer conducts or could conduct with the Company or any of its Subsidiaries.
(C) The Executive and the Company further agree that following any termination of the Executive's employment pursuant to which the Executive is entitled to benefits under Section 6.1, (i) the Executive shall not make statements or representations, otherwise communicate, directly or indirectly, in writing, orally, or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Company or any if its Subsidiaries or affiliates or their respective former or current officers, directors, employees, advisors, businesses or reputations, (ii) the Company shall instruct its Board members and senior management to not make statements or representations, otherwise communicate, directly, or indirectly, in writing, orally or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Executive or his reputation. The Executive and the Company further agree that, in the event the Executive's employment with the Company is terminated other than by the Company for Cause or as a result of the Executive's death, the Executive and the Company shall refer to the Executive's departure as a "resignation" in any press release or other external announcement or communication concerning the Executive's departure from the Company. Nothing in this paragraph is intended to undermine any obligations the Executive or the Company may have to comply with applicable law, or prohibit the Executive or the Company from providing truthful testimony or information pursuant to subpoena, court order, discovery demand or similar legal process, or truthfully responding to lawful inquiries by any governmental or regulatory entity.
(D) The provisions of this Section 9 shall not be deemed to preclude the Executive from employment or engagement during the Non-Competition Period following termination of employment hereunder (i) in a business engaged in retail sales, provided such employment or engagement does not otherwise violate the provisions of this Section 9, or (ii) by a corporation, some of the activities of which are competitive with the business of the Company, if the Executive's activities do not relate to such competitive business, and nothing contained in this Section 9 shall be deemed to prohibit the Executive, during the Non-Competition Period following termination of employment hereunder, from acquiring or holding, solely as an investment, publicly traded securities of any competitor corporation so long as such securities do not, in the aggregate, constitute more than 3% of the outstanding voting securities of such corporation.
(E) The Executive acknowledges that the Company and its Subsidiaries continually develop Confidential Information, that the Executive may develop Confidential Information for the Company or its Subsidiaries and that the Executive may learn of Confidential Information during the course of his employment under this Agreement. The Executive will comply with the policies and procedures of the Company and its Subsidiaries for protecting Confidential Information and shall never disclose to any person (except as required by applicable law or legal process or for the proper performance of his duties and responsibilities to the Company and its Subsidiaries, or in connection with any litigation between the Company and the Executive (provided that the Company shall be afforded a reasonable opportunity in each case to obtain a protective order)), or use for his own benefit or gain, any Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its Subsidiaries. The Executive understands that this restriction shall continue to apply after his employment terminates, regardless of the reason for such termination. All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the Company or its Subsidiaries and any copies, in whole or in part, thereof (the "Documents"), whether or not prepared by the Executive, shall be the sole and exclusive property of the Company and its Subsidiaries. The Executive shall safeguard all Documents and shall surrender to the Company at the time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive's possession or control.
(F) Without limiting the foregoing, it is understood that the Company shall not be obligated to make any of the payments or to provide for any of the benefits specified in Sections 6.1 and 6.2 hereof, and shall be entitled to recoup the pro rata portion of any such payments and of the value of any such benefits previously provided to the Executive in the event of a material breach by the Executive of the provisions of this Section 9 (such pro ration to be determined as a fraction, the numerator of which is the number of days from such breach to the second anniversary of the date on which the Executive terminates employment and the denominator of which is 730), which breach continues without having been cured within 15 days after written notice to the Executive specifying the breach in reasonable detail.
(G) The Executive and the Company agree that in the event the Executive seeks a reference from the Company in connection with any future or prospective employment, the Company's response to any such reference inquiry shall be limited to and consistent with the following: start and end dates of employment, position(s) held and last salary. For purposes of this Section 97, it shall be conclusively presumed that Grantee has knowledge of information that Grantee was directly exposed to through actual receipt or review of memos or documents containing such information, or through actual attendance at meetings at which such information was discussed or disclosed.
B. The provisions of this Section 7 are not in lieu of, but are in addition to the continuing obligation of the Grantee (which Grantee hereby acknowledges) to not use or disclose the Company’s trade secrets and confidential information known to the Grantee until any particular trade secret or confidential information becomes generally known (through no fault of the Grantee), whereupon the restriction on use and disclosure shall cease as of that time. Information regarding services in development, in test marketing or being marketed or promoted in a discrete geographic region, which information the Company is considering for broader use, shall not be deemed generally known until such broader use is actually commercially implemented.
C. By acceptance of any Shares granted under this Agreement and the terms of the Plan, the following definitions Grantee acknowledges that if Grantee does not comply with Section 7.A or 7.B, the Company will be entitled to injunctive relief to compel such compliance. The Grantee acknowledges that the harm caused to the Company by Grantee’s breach or anticipated breach of Section 7.A or 7.B is by its nature irreparable because, among other things, it is not readily susceptible of proof as to the monetary harm that would ensue. The Grantee consents that any interim or final equitable relief entered by a court of competent jurisdiction shall, at the request of the Company, be entered on consent and enforced by any court having jurisdiction over the Grantee, without prejudice, to any right either party may have to appeal from the proceedings which resulted in any grant of such relief.
D. If any of the provisions contained in this Section 7 shall apply:for any reason, whether by application of existing law or law which may develop after the Grantee’s acceptance of an offer of the granting of Shares, be determined by a court of competent jurisdiction to be overly broad as to scope of activity, duration, or territory, the Grantee agrees to join the Company in requesting such court to construe such provision by limiting or reducing it so as to be enforceable to the maximum extent compatible with then applicable law. If any one or more of the terms, provisions, covenants, or restrictions of this Section 7 shall be determined by a court of competent jurisdiction to be invalid, void or unenforceable, then the remainder of the terms, provisions, covenants and restrictions of this Section 7 shall remain in full force and effect and shall in no way be affected, impaired or invalidated.
Appears in 1 contract
Sources: Performance Based Restricted Stock Award Agreement (West Corp)
Restrictive Covenants. The (a) Executive acknowledges and agrees that Employer will suffer great loss and damage if, during Executive’s employment or at any time subsequent to such employment, Executive were to improperly use or disclose Confidential Information or goodwill of Employer, or if Executive were to use Executive’s contacts and relationships with any customer, potential customer, or referral source of Employer, and therefore agrees that Executive must comply with the restrictive covenants hereinafter set forth; it being understood at the execution of this Agreement that the parties acknowledge and agree such restrictions on his activities during protect legitimate protectable interests of Employer, with respect to its trade secrets, customers, and after his employment referral sources, are reasonable and necessary to protect the goodwillsuch interests, Confidential Information and other legitimate interests of the Company and its Subsidiariesare compatible with their respective rights, and that the agreed restrictions set forth below will do not deprive the impair or prevent Executive of the ability to earn from earning a livelihood:living.
(Ab) While During Executive’s employment with Employer and for the Executive is in the employment of the Company and, if the Executive is entitled to benefits under Section 6.1 hereof upon termination of employment, for a continuous period of twenty-four eighteen (2418) months after such termination employment terminates (irrespective of whether the Term or any extension thereof expires, the employment (term is non-renewed by either party, or employment is terminated by Executive or Employer and regardless of the "Non-Competition Period"reason for termination), the Executive shall not, not directly or indirectly, for any reason or purpose whatsoever (other than on Employer’s behalf in performing Executive’s required duties for Employer), whether for Executive’s own benefit, or for the benefit or on behalf of, or in conjunction with, any other corporation, partnership, proprietorship, or other form of business entity, and whether as owneran employee (in any executive, managerial, officer, exempt or sales position), partner, investorprincipal, officer, director, consultant, agent, employee, co-venturer stockholder or otherwise:
(i) contact, compete with call on, solicit the business of, sell any goods or services of the Company a type then provided by Employer or any of Employer’s subsidiaries and/or affiliates to Employer’s current customer base and/or prospects to whom Employer or any of Employer’s subsidiaries and/or affiliates is engaged in proposing its Subsidiaries within a twenty services to;
(20ii) mile radius of solicit or encourage any location where the Company operates a retail store at the date of termination of employmentdirector, officer, or at which the Company has entered into a letter other employee or sales agent of intent Employer or similar commitment for any of Employer’s subsidiaries and/or affiliates to discontinue that individual’s status of employment with Employer or entered into obligations relating to the opening any of a retail store to be opened within the period of this covenant. SpecificallyEmployer’s subsidiaries and/or affiliates, but without limiting the foregoing, the Executive agrees not or encourage or entice such individual to engage in any manner or participate in any activity or employment in competition with Employer; and
(iii) engage in or be interested as a partner, trustee, director, officer, employee, shareholder, option holder, consultant or other direct or indirect participant or beneficiary in any company or entity that is directly or indirectly competitive with the business of the Company or any of its Subsidiaries as conducted or which has been proposed by management within six months prior to termination of the Executive's employment. Restricted activity also includes without limitation accepting employment or a consulting position with any person who is, or at any time within twelve (12) months prior to termination of the Executive's employment has been, a licensee of the Company or any of its Subsidiaries. For the purposes of this Section 9, the business of the Company and its Subsidiaries shall mean retail operations for the sale of natural and organic foods, including groceries, meat, seafood, dairy and frozen products and produce, as well as natural vitamins, supplements, homeopathic remedies and body care products.
(B) The Executive agrees that during the Non-Competition Period or in connection with any termination of employment pursuant to which the Executive is entitled to benefits under Section 6.1, the Executive will not, either directly or through any agent or employee, Solicit any employee of the Company or any of its Subsidiaries to terminate his or her relationship with the Company or any of its Subsidiaries or to apply for or accept employment with any enterprise competitive with the business of the Company, or Solicit any customer, supplier, licensee or vendor of the Company or any of its Subsidiaries to terminate or materially modify its relationship with them, or, in the case of a customer, to conduct with any person any business or activity which such customer conducts or could conduct with the Company or any of its Subsidiaries.
(C) The Executive and the Company further agree that following any termination of the Executive's employment pursuant to which the Executive is entitled to benefits under Section 6.1, (i) the Executive shall not make statements or representations, otherwise communicateengaged, directly or indirectly, in writingany business that is competitive with any service or product offered by Employer or any of Employer’s direct or indirect affiliates or operating companies in any county where Employer or any of Employer’s direct or indirect affiliates is offering its services and/or products at the time of such termination of employment. Notwithstanding the foregoing, orallythe ownership for investment purposes as a passive investor of stock constituting not more than 5% of the outstanding stock of a company shall not be prohibited under this Section 8(b)(iii).
(c) It is the intention of the parties to restrict Executive’s activities only to the extent necessary for the protection of Employer’s legitimate business interests. To the extent that any covenant set forth in this Section 8, or otherwisein Section 7 of this Agreement, shall be determined to be invalid or unenforceable in any respect or to any extent, the covenant shall not be rendered invalid, but instead shall be automatically amended for such lesser term or to such lesser extent, or take any action which mayin such other degree, directly, as may grant the Employer or indirectly, disparage or be damaging other party seeking enforcement the maximum protection and restrictions on Executive’s activities permitted by applicable law in such circumstances.
(d) Executive acknowledges and agrees that (i) the separate and distinct promises in this Agreement are reasonable and necessary in order to protect the Company or any if its Subsidiaries or affiliates or their respective former or current officers, directors, employees, advisors, businesses or reputationslegitimate business interests described above, (ii) any violation would result in irreparable injury to Employer, and (iii) the Company shall instruct its Board members and senior management to enforcement of a remedy by way of injunction or otherwise would not make statements or representations, otherwise communicate, directly, or indirectly, in writing, orally or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Executive or his reputation. The Executive and the Company further agree that, in the event the Executive's employment with the Company is terminated other than by the Company for Cause or as a result of the Executive's death, the Executive and the Company shall refer to the Executive's departure as a "resignation" in any press release or other external announcement or communication concerning the Executive's departure from the Company. Nothing in this paragraph is intended to undermine any obligations the Executive or the Company may have to comply with applicable law, or prohibit the Executive or the Company from providing truthful testimony or information pursuant to subpoena, court order, discovery demand or similar legal process, or truthfully responding to lawful inquiries by any governmental or regulatory entity.
(D) The provisions of this Section 9 shall not be deemed to preclude the prevent Executive from employment or engagement during the Non-Competition Period following termination of employment hereunder (i) in earning a business engaged in retail sales, provided such employment or engagement does not otherwise violate the provisions of this Section 9, or (ii) by a corporation, some of the activities of which are competitive with the business of the Company, if the Executive's activities do not relate to such competitive business, and nothing contained in this Section 9 shall be deemed to prohibit the Executive, during the Non-Competition Period following termination of employment hereunder, from acquiring or holding, solely as an investment, publicly traded securities of any competitor corporation so long as such securities do not, in the aggregate, constitute more than 3% of the outstanding voting securities of such corporationliving.
(E) The Executive acknowledges that the Company and its Subsidiaries continually develop Confidential Information, that the Executive may develop Confidential Information for the Company or its Subsidiaries and that the Executive may learn of Confidential Information during the course of his employment under this Agreement. The Executive will comply with the policies and procedures of the Company and its Subsidiaries for protecting Confidential Information and shall never disclose to any person (except as required by applicable law or legal process or for the proper performance of his duties and responsibilities to the Company and its Subsidiaries, or in connection with any litigation between the Company and the Executive (provided that the Company shall be afforded a reasonable opportunity in each case to obtain a protective order)), or use for his own benefit or gain, any Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its Subsidiaries. The Executive understands that this restriction shall continue to apply after his employment terminates, regardless of the reason for such termination. All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the Company or its Subsidiaries and any copies, in whole or in part, thereof (the "Documents"), whether or not prepared by the Executive, shall be the sole and exclusive property of the Company and its Subsidiaries. The Executive shall safeguard all Documents and shall surrender to the Company at the time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive's possession or control.
(F) Without limiting the foregoing, it is understood that the Company shall not be obligated to make any of the payments or to provide for any of the benefits specified in Sections 6.1 and 6.2 hereof, and shall be entitled to recoup the pro rata portion of any such payments and of the value of any such benefits previously provided to the Executive in the event of a material breach by the Executive of the provisions of this Section 9 (such pro ration to be determined as a fraction, the numerator of which is the number of days from such breach to the second anniversary of the date on which the Executive terminates employment and the denominator of which is 730), which breach continues without having been cured within 15 days after written notice to the Executive specifying the breach in reasonable detail.
(G) The Executive and the Company agree that in the event the Executive seeks a reference from the Company in connection with any future or prospective employment, the Company's response to any such reference inquiry shall be limited to and consistent with the following: start and end dates of employment, position(s) held and last salary. For purposes of this Section 9, the following definitions shall apply:
Appears in 1 contract
Restrictive Covenants. The As a material inducement to United Therapeutics to employ Executive and to disclose United Therapeutics’ Confidential Information to Executive, Executive agrees that restrictions on his activities during and after his employment are necessary to protect the goodwill, Confidential Information and other legitimate interests of the Company and its Subsidiaries, and that the agreed restrictions set forth below will not deprive the Executive of the ability to earn a livelihoodas follows:
(Aa) While the Executive is in the employment of the Company and, if the Executive is entitled to benefits under Section 6.1 hereof upon termination of employment, employed by United Therapeutics and for a period of twenty-four one (241) months after such year following the termination of Executive’s employment (with United Therapeutics by either party, with or without cause, Executive will not accept employment from, nor render services for, in any capacity whatsoever within the "Non-Competition Period")United States, the Executive shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer or otherwise, compete with the business of the Company or any of its Subsidiaries within a twenty (20) mile radius of any location where the Company operates a retail store at the date of termination of employmentCompeting Organization, or at which the Company has entered into a letter of intent or similar commitment for or entered into obligations relating to the opening of a retail store to be opened within the period of this covenant. Specifically, but without limiting the foregoing, the Executive agrees not to otherwise engage in any manner business activity in which it would be useful or helpful to Executive or others with whom he is associated, for Executive to use or disclose any Confidential Information of United Therapeutics, except that Executive may accept employment with a large Competing Organization whose business is diversified and which has separate and distinct operating divisions, and which as to part of its business is not a Competing Organization, provided that, prior to Executive’s acceptance of such employment, United Therapeutics shall receive separate written assurances satisfactory, in its sole discretion, to United Therapeutics from such Competing Organization and from Executive, that Executive will not be employed by such Competing Organization in a division which, in any activity aspect of its operation, develops, produces, markets or sells a Competing Product and that is directly Executive will not have any responsibilities with respect to which it would be useful or indirectly competitive helpful to Executive or others within said Competing Organization for Executive to use or disclose any Confidential Information of United Therapeutics.
(b) While employed by United Therapeutics and for a period of one (1) year following the termination of Executive’s employment with United Therapeutics by either party, with or without cause, Executive will not accept employment from, or render services to, any Competing Organization in connection with the business development, manufacture, marketing, sale, merchandising, leasing, licensing, servicing or promotion of any Competing Product to any customer or potential customer of United Therapeutics with which Executive dealt personally or with respect to which Executive rendered services during his or her employment with United Therapeutics.
(c) While employed by United Therapeutics and for a period of one (1) year following the Company or any of its Subsidiaries as conducted or which has been proposed by management within six months prior to termination of the Executive's employment. Restricted activity also includes ’s employment with United Therapeutics by either party, with or without limitation accepting employment cause, Executive will not hire, attempt to hire, assist in hiring, or a consulting position with cause to be hired by another person or organization, any person who is, or was an employee of United Therapeutics at any time within twelve (12) months prior to termination after Executive first had contact with another person or organization, whether such contact was initiated by Executive or such other person or organization, concerning the possible employment of the Executive's employment has beenExecutive or others employed by United Therapeutics at that time by any person or organization other than United Therapeutics. In addition, a licensee of the Company or any of its Subsidiaries. For the purposes of this Section 9, the business of the Company and its Subsidiaries shall mean retail operations for the sale of natural and organic foodssame period, including groceries, meat, seafood, dairy and frozen products and produce, as well as natural vitamins, supplements, homeopathic remedies and body care products.
(B) The Executive agrees that during the Non-Competition Period or in connection with any termination of employment pursuant to which the Executive is entitled to benefits under Section 6.1, the Executive will not, either directly or through any agent or employee, Solicit any employee of the Company or any of its Subsidiaries to terminate his or her relationship with the Company or any of its Subsidiaries or to apply for or accept employment with any enterprise competitive with the business of the Company, or Solicit any customer, supplier, licensee or vendor of the Company or any of its Subsidiaries to terminate or materially modify its relationship with them, or, in the case of a customer, to conduct with any person any business or activity which such customer conducts or could conduct with the Company or any of its Subsidiaries.
(C) The Executive and the Company further agree that following any termination of the Executive's employment pursuant to which the Executive is entitled to benefits under Section 6.1, (i) the Executive shall not make statements or representations, otherwise communicate, directly or indirectly, in writing, orallyidentify, or otherwisefurnish any information about, any other employee of United Therapeutics to any other person or take any action which may, directly, organization for the purpose of assisting or indirectly, disparage or be damaging to facilitating the Company or any if its Subsidiaries or affiliates or their respective former or current officers, directors, employees, advisors, businesses or reputations, (ii) the Company shall instruct its Board members and senior management to not make statements or representations, otherwise communicate, directly, or indirectly, in writing, orally or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Executive or his reputation. The Executive and the Company further agree that, in the event the Executive's employment with the Company is terminated other than by the Company for Cause or as a result of the Executive's death, the Executive and the Company shall refer to the Executive's departure as a "resignation" in any press release or other external announcement or communication concerning the Executive's departure from the Company. Nothing in this paragraph is intended to undermine any obligations the Executive or the Company may have to comply with applicable law, or prohibit the Executive or the Company from providing truthful testimony or information pursuant to subpoena, court order, discovery demand or similar legal process, or truthfully responding to lawful inquiries by any governmental or regulatory entity.
(D) The provisions of this Section 9 shall not be deemed to preclude the Executive from employment or engagement during the Non-Competition Period following termination of employment hereunder (i) in a business engaged in retail sales, provided such employment or engagement does not otherwise violate the provisions of this Section 9, or (ii) by a corporation, some of the activities of which are competitive with the business of the Company, if the Executive's activities do not relate to such competitive business, and nothing contained in this Section 9 shall be deemed to prohibit the Executive, during the Non-Competition Period following termination of employment hereunder, from acquiring or holding, solely as an investment, publicly traded securities of any competitor corporation so long as such securities do not, in the aggregate, constitute more than 3% of the outstanding voting securities hiring efforts of such corporationother person or organization.
(E) The Executive acknowledges that the Company and its Subsidiaries continually develop Confidential Information, that the Executive may develop Confidential Information for the Company or its Subsidiaries and that the Executive may learn of Confidential Information during the course of his employment under this Agreement. The Executive will comply with the policies and procedures of the Company and its Subsidiaries for protecting Confidential Information and shall never disclose to any person (except as required by applicable law or legal process or for the proper performance of his duties and responsibilities to the Company and its Subsidiaries, or in connection with any litigation between the Company and the Executive (provided that the Company shall be afforded a reasonable opportunity in each case to obtain a protective order)), or use for his own benefit or gain, any Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its Subsidiaries. The Executive understands that this restriction shall continue to apply after his employment terminates, regardless of the reason for such termination. All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the Company or its Subsidiaries and any copies, in whole or in part, thereof (the "Documents"), whether or not prepared by the Executive, shall be the sole and exclusive property of the Company and its Subsidiaries. The Executive shall safeguard all Documents and shall surrender to the Company at the time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive's possession or control.
(F) Without limiting the foregoing, it is understood that the Company shall not be obligated to make any of the payments or to provide for any of the benefits specified in Sections 6.1 and 6.2 hereof, and shall be entitled to recoup the pro rata portion of any such payments and of the value of any such benefits previously provided to the Executive in the event of a material breach by the Executive of the provisions of this Section 9 (such pro ration to be determined as a fraction, the numerator of which is the number of days from such breach to the second anniversary of the date on which the Executive terminates employment and the denominator of which is 730), which breach continues without having been cured within 15 days after written notice to the Executive specifying the breach in reasonable detail.
(G) The Executive and the Company agree that in the event the Executive seeks a reference from the Company in connection with any future or prospective employment, the Company's response to any such reference inquiry shall be limited to and consistent with the following: start and end dates of employment, position(s) held and last salary. For purposes of this Section 9, the following definitions shall apply:
Appears in 1 contract
Restrictive Covenants. The (a) As an inducement to Olin to provide the payments and benefits to Executive hereunder, Executive acknowledges and agrees that, notwithstanding any provision to the contrary in any Other Arrangements, in the event of Executive’s Termination, Executive agrees that restrictions on his activities during and after his employment are necessary to protect comply with the goodwill, Confidential Information and other legitimate interests of the Company and its Subsidiaries, and that the agreed restrictions set forth below will in Sections 8(b) and (c) of this Agreement for a one-year period from the date of Termination (or, if earlier, until Executive attains age 65, if Executive would otherwise have been required by Olin policy to retire at age 65) (the “Restriction Period”); provided that if Executive’s employment is not deprive terminated by reason of a Termination (and Executive therefore is not entitled to receive the payments and benefits set forth in Sections 4 and 5 of this Agreement), then Executive need not comply with the restrictions set forth in Sections 8(b) and (c) of the ability to earn a livelihood:this Agreement.
(Ab) While Executive acknowledges and agrees that so long as ▇▇▇▇ complies with its obligations to provide the Executive is payments required under this Agreement, notwithstanding any provision to the contrary in the employment of the Company andany Other Arrangements, if the Executive is entitled to benefits under Section 6.1 hereof upon termination of employment, for a period of twenty-four (24) months after such termination of employment (the "Non-Competition Period"), the Executive shall notnot during the Restriction Period, directly or indirectly, whether as ownerfor Executive or for any other person, partnercorporation, investorpartnership, consultantsole proprietorship, agententity or business: (i) employ or attempt to employ or enter into any contractual arrangement with any employee or former employee of Olin, employee, co-venturer unless such employee or otherwise, compete with former employee has not been employed by Olin for a period in excess of six months or (ii) make known the business names and addresses of the Company customers of Olin or any of its Subsidiaries within a twenty (20) mile radius of any location where the Company operates a retail store at the date of termination of employment, or at which the Company has entered into a letter of intent or similar commitment for or entered into obligations information relating to the opening of a retail store to be opened within the period of this covenant. Specifically, but without limiting the foregoing, the Executive agrees not to engage in any manner to Olin’s trade or business relationships with such customers. Notwithstanding anything in any activity that is directly or indirectly competitive with this Agreement to the business contrary and for the avoidance of the Company or any of doubt, references in this Section 8(b) to “Olin” shall be deemed to refer to Olin and its Subsidiaries as conducted or which has been proposed by management within six months subsidiaries and affiliates prior to termination a Change in Control.
(c) During the Restriction Period, Executive shall not make any statement that intentionally disparages Olin or its business, services or products unless, in each case, in the context of a legal process (including without limitation, litigation between Olin and Executive), required governmental testimony or filings, any administrative or arbitral proceedings (including, without limitation, arbitration between Olin and Executive) or as otherwise required by law. Notwithstanding the Executive's employment. Restricted activity also includes without limitation accepting employment foregoing and subject to Section 8(d) of this Agreement, in no event shall Executive be prohibited from making truthful statements in response to questions from a prospective future employer.
(d) Executive acknowledges and agrees (whether or a consulting position with any person who isnot Executive is subject to the restrictions set forth in Sections 8(b) and (c) of this Agreement) not to disclose, either while in Olin’s employ or at any time within twelve (12) months prior thereafter, to termination any person not employed by Olin, or not engaged to render services to Olin, any confidential information obtained by Executive while in the employ of the Executive's employment has beenOlin, a licensee of the Company or any of its Subsidiaries. For the purposes of this Section 9including, without limitation, trade secrets, know-how, improvements, discoveries, designs, customer and supplier lists, business plans and strategies, forecasts, budgets, cost information, formulae, processes, manufacturing equipment, compositions, computer programs, data bases and tapes and films relating to the business of the Company Olin and its Subsidiaries subsidiaries and affiliates (including majority-owned companies of such subsidiaries and affiliates); provided, however, that this provision shall mean retail operations for not preclude Executive from disclosing information (i) known generally to the sale public (other than pursuant to Executive’s act or omission) or (ii) to the extent required by law or court order. Executive also agrees that upon leaving Olin’s employ Executive will not take with Executive, without the prior written consent of natural and organic foodsan officer authorized to act in the matter by the Board, including groceriesany drawing, meatblueprint, seafoodspecification or other document of Olin, dairy and frozen products and produceits subsidiaries or affiliates, as well as natural vitaminswhich is of a confidential nature relating to Olin, supplementsits subsidiaries or affiliates, homeopathic remedies and body care productsincluding, without limitation, relating to its or their methods of distribution, or any description of any formulae or secret processes.
(Be) The Executive acknowledges and agrees that during the Non-Competition Period or in connection with any termination of employment pursuant to which the Executive is entitled to benefits under Section 6.1, the Executive will not, either directly or through any agent or employee, Solicit any employee of the Company or any of its Subsidiaries to terminate his or her relationship with the Company or any of its Subsidiaries or to apply for or accept employment with any enterprise competitive with the business of the Company, or Solicit any customer, supplier, licensee or vendor of the Company or any of its Subsidiaries to terminate or materially modify its relationship with them, or, in the case of a customer, to conduct with any person any business or activity which such customer conducts or could conduct with the Company or any of its Subsidiaries.
(C) The Executive and the Company further agree that following any termination of the Executive's employment pursuant to which the Executive is entitled to benefits under Section 6.1, (i) the Executive shall restrictive covenants contained in this Section 8 are reasonably necessary to protect the legitimate business interests of Olin, and are not make statements or representationsoverbroad, otherwise communicate, directly or indirectly, in writing, orallyoverlong, or otherwiseunfair and are not the result of overreaching, duress or take coercion of any action which may, directly, or indirectly, disparage or be damaging to the Company or any if its Subsidiaries or affiliates or their respective former or current officers, directors, employees, advisors, businesses or reputationskind, (ii) the Company shall instruct its Board members Executive’s full, uninhibited and senior management to not make statements or representations, otherwise communicate, directly, or indirectly, in writing, orally or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Executive or his reputation. The Executive and the Company further agree that, in the event the Executive's employment with the Company is terminated other than by the Company for Cause or as a result faithful observance of each of the Executive's death, the Executive and the Company shall refer to the Executive's departure as a "resignation" in any press release or other external announcement or communication concerning the Executive's departure from the Company. Nothing in this paragraph is intended to undermine any obligations the Executive or the Company may have to comply with applicable law, or prohibit the Executive or the Company from providing truthful testimony or information pursuant to subpoena, court order, discovery demand or similar legal process, or truthfully responding to lawful inquiries by any governmental or regulatory entity.
(D) The provisions of this Section 9 shall not be deemed to preclude the Executive from employment or engagement during the Non-Competition Period following termination of employment hereunder (i) in a business engaged in retail sales, provided such employment or engagement does not otherwise violate the provisions of this Section 9, or (ii) by a corporation, some of the activities of which are competitive with the business of the Company, if the Executive's activities do not relate to such competitive business, and nothing covenants contained in this Section 9 shall be deemed to prohibit the Executive, during the Non-Competition Period following termination of employment hereunder, from acquiring or holding, solely as an investment, publicly traded securities of any competitor corporation so long as such securities do not, in the aggregate, constitute more than 3% of the outstanding voting securities of such corporation.
(E) The Executive acknowledges that the Company and its Subsidiaries continually develop Confidential Information, that the Executive may develop Confidential Information for the Company or its Subsidiaries and that the Executive may learn of Confidential Information during the course of his employment under this Agreement. The Executive will comply with the policies and procedures of the Company and its Subsidiaries for protecting Confidential Information and shall never disclose to any person (except as required by applicable law or legal process or for the proper performance of his duties and responsibilities to the Company and its Subsidiaries, or in connection with any litigation between the Company and the Executive (provided that the Company shall be afforded a reasonable opportunity in each case to obtain a protective order)), or use for his own benefit or gain, any Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its Subsidiaries. The Executive understands that this restriction shall continue to apply after his employment terminates, regardless of the reason for such termination. All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the Company or its Subsidiaries and any copies, in whole or in part, thereof (the "Documents"), whether or not prepared by the Executive, shall be the sole and exclusive property of the Company and its Subsidiaries. The Executive shall safeguard all Documents and shall surrender to the Company at the time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive's possession or control.
(F) Without limiting the foregoing, it is understood that the Company shall not be obligated to make any of the payments or to provide for any of the benefits specified in Sections 6.1 and 6.2 hereof, and shall be entitled to recoup the pro rata portion of any such payments and of the value of any such benefits previously provided to the Executive in the event of a material breach by the Executive of the provisions of this Section 9 (such pro ration to be determined as a fraction, the numerator of which is the number of days from such breach to the second anniversary of the date on which the Executive terminates employment and the denominator of which is 730), which breach continues without having been cured within 15 days after written notice to the Executive specifying the breach in reasonable detail.
(G) The Executive and the Company agree that in the event the Executive seeks a reference from the Company in connection with any future or prospective employment, the Company's response to any such reference inquiry shall be limited to and consistent with the following: start and end dates of employment, position(s) held and last salary. For purposes of this Section 9, the following definitions shall apply:this
Appears in 1 contract
Restrictive Covenants. (a) The Executive agrees that restrictions on his activities during services of the Employee are unique and after his employment are necessary extraordinary and essential to protect the goodwillbusiness of the Company, Confidential Information especially since the Employee shall have access to the Company’s customer lists, producer lists, trade secrets and other legitimate interests of privileged and confidential information essential to the Company and its SubsidiariesCompany’s business. Therefore, and that the agreed restrictions set forth below will not deprive the Executive of the ability to earn a livelihood:
(A) While the Executive is in the employment of the Company andEmployee agrees that, if her employment shall at any time terminate during the Executive is entitled to benefits under Section 6.1 hereof upon termination of employmentTerm for any reason whatsoever, for a period of twenty-four with or without Cause (24as hereinafter defined) months after such termination of employment and with or without Good Reason (the "Non-Competition Period"as hereinafter defined), the Executive shall notEmployee will not at any time during the Restrictive Covenant Period (as hereinafter defined), without the prior written consent of the Company, directly or indirectly, whether individually or as ownera principal, officer, employee, partner, investorshareholder, consultantmember, agentmanager, employeedirector, co-venturer or otherwise, compete with the business of the Company or any of its Subsidiaries within a twenty (20) mile radius of any location where the Company operates a retail store at the date of termination of employmentagent of, or at consultant or independent contractor to, any person, corporation, limited liability company, partnership, limited partnership or other entity (collectively, “Person”):
(i) within any state in which the Company has entered into a letter of intent or similar commitment for or entered into obligations relating license to operate on the opening of a retail store date on which the Employee ceases to be opened within employed by the period Company (the “Cessation Date”) (the “Territory”), engage or participate in a business which, as of this covenant. Specificallythe Cessation Date, but without limiting the foregoing, the Executive agrees not to engage in any manner in any activity that is directly or indirectly competitive with the business in which the Company is then engaged (“Competitive Business”) (it being understood and agreed that, without limiting the generality of the Company or any of its Subsidiaries as conducted or which has been proposed by management within six months prior to termination of the Executive's employment. Restricted activity also foregoing, Heritage, Ocean Harbor, US Coastal, United Insurance Holdings, TypTap and HCI are currently engaged in a Competitive Business and “Competitive Business” includes without limitation accepting employment or a consulting position with any person who is, or at any time within twelve (12) months prior to termination of the Executive's employment has been, a licensee of the Company or any of its Subsidiaries. For the purposes of this Section 9, the business of a Coastline Homeowner’s Insurance Provider (as defined below) and/or the Company and its Subsidiaries shall mean retail operations provision of automobile insurance for the sale ridesharing industry), and shall not make any investments in any such Competitive Business, except that the foregoing shall not restrict the Employee from (A) acquiring up to one percent (1%) of natural and organic foodsthe outstanding voting stock of any Competitive Business whose securities are listed on a stock exchange, including groceries, meat, seafood, dairy and frozen products and produce, as well as natural vitamins, supplements, homeopathic remedies and body care products.
Nasdaq or (B) The Executive agrees that during the Non-Competition Period engaging or participating in connection with any termination of employment pursuant to which the Executive is entitled to benefits under Section 6.1, the Executive will not, either directly or through any agent or employee, Solicit any employee of the Company or any of its Subsidiaries to terminate his or her relationship with the Company or any of its Subsidiaries or to apply for or accept employment with any enterprise competitive with the business of a Person which is not a Coastline Homeowner’s Insurance Provider. For purposes hereof, the Company, or Solicit any customer, supplier, licensee or vendor of the Company or any of its Subsidiaries to terminate or materially modify its relationship with them, or, in the case of term “Coastline Homeowner’s Insurance Provider” means a customer, to conduct with any person any business or activity which such customer conducts or could conduct with the Company or any of its Subsidiaries.
(C) The Executive and the Company further agree that following any termination of the Executive's employment pursuant to which the Executive is entitled to benefits under Section 6.1, (i) the Executive shall not make statements or representations, otherwise communicatePerson which, directly or indirectly, in writing, orally, or otherwise, or take any action derives at least twenty-five percent (25%) of its gross premiums written for personal property insurance from policies as to which may, directly, or indirectly, disparage or be damaging to the Company or any if its Subsidiaries or affiliates or their respective former or current officers, directors, employees, advisors, businesses or reputations, insured premises are located (iiI) the Company shall instruct its Board members and senior management to not make statements or representations, otherwise communicate, directly, or indirectly, in writing, orally or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Executive or his reputation. The Executive and the Company further agree that, in the event the Executive's employment with the Company is terminated other than by the Company for Cause or as a result within two (2) miles of the Executive's death, the Executive and the Company shall refer to the Executive's departure as a "resignation" in any press release or other external announcement or communication concerning the Executive's departure from the Company. Nothing in this paragraph is intended to undermine any obligations the Executive or the Company may have to comply with applicable law, or prohibit the Executive or the Company from providing truthful testimony or information pursuant to subpoena, court order, discovery demand or similar legal process, or truthfully responding to lawful inquiries by any governmental or regulatory entity.
nearest coastline and/or (D) The provisions of this Section 9 shall not be deemed to preclude the Executive from employment or engagement during the Non-Competition Period following termination of employment hereunder (iII) in a business engaged in retail salesareas, provided such employment or engagement does not otherwise violate the provisions of this Section 9as Long Island and Cape Cod, or (ii) typically avoided by a corporation, some of the activities of which are competitive with the business of the Company, if the Executive's activities do not relate to such competitive carriers that focus on preferred/standard business, and nothing contained in this Section 9 shall be deemed such as State Farm Insurance, due to prohibit the Executive, during the Non-Competition Period following termination of employment hereunder, from acquiring or holding, solely as an investment, publicly traded securities of any competitor corporation so long as such securities do not, in the aggregate, constitute more than 3% of the outstanding voting securities of such corporation.
(E) The Executive acknowledges that the Company and its Subsidiaries continually develop Confidential Information, that the Executive may develop Confidential Information for the Company or its Subsidiaries and that the Executive may learn of Confidential Information during the course of his employment under this Agreement. The Executive will comply with the policies and procedures of the Company and its Subsidiaries for protecting Confidential Information and shall never disclose to any person (except as required by applicable law or legal process or for the proper performance of his duties and responsibilities to the Company and its Subsidiaries, or in connection with any litigation between the Company and the Executive (provided that the Company shall be afforded a reasonable opportunity in each case to obtain a protective order)), or use for his own benefit or gain, any Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its Subsidiaries. The Executive understands that this restriction shall continue to apply after his employment terminates, regardless of the reason for such termination. All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the Company or its Subsidiaries and any copies, in whole or in part, thereof (the "Documents"), whether or not prepared by the Executive, shall be the sole and exclusive property of the Company and its Subsidiaries. The Executive shall safeguard all Documents and shall surrender to the Company at the time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive's possession or control.
(F) Without limiting the foregoing, it is understood that the Company shall not be obligated to make any of the payments or to provide for any of the benefits specified in Sections 6.1 and 6.2 hereof, and shall be entitled to recoup the pro rata portion of any such payments and of the value of any such benefits previously provided to the Executive in the event of a material breach by the Executive of the provisions of this Section 9 (such pro ration to be determined as a fraction, the numerator of which is the number of days from such breach to the second anniversary of the date on which the Executive terminates employment and the denominator of which is 730), which breach continues without having been cured within 15 days after written notice to the Executive specifying the breach in reasonable detail.
(G) The Executive and the Company agree that in the event the Executive seeks a reference from the Company in connection with any future or prospective employment, the Company's response to any such reference inquiry shall be limited to and consistent with the following: start and end dates of employment, position(s) held and last salary. For purposes of this Section 9, the following definitions shall apply:hurricane exposure;
Appears in 1 contract
Restrictive Covenants. The Executive agrees that restrictions on his activities during and after his employment are necessary to protect the goodwill, Confidential Information and other legitimate interests of the Company and its Subsidiaries, and that the agreed restrictions set forth below will not deprive the Executive of the ability to earn a livelihood:
(A) While the Executive is in the employment of the Company and, if the Executive is entitled to benefits under Section 6.1 hereof upon termination of employment, for a period of twenty-four (24) months after such termination of employment (the "“Non-Competition Period"”), the Executive shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer or otherwise, compete with the business of the Company or any of its Subsidiaries within a twenty (20) mile radius of any location where the Company operates a retail store at the date of termination of employment, or at which the Company has entered into a letter of intent or similar commitment for or entered into obligations relating to the opening of a retail store to be opened within the period of this covenant. Specifically, but without limiting the foregoing, the Executive agrees not to engage in any manner in any activity that is directly or indirectly competitive with the business of the Company or any of its Subsidiaries as conducted or which has been proposed by management within six months prior to termination of the Executive's ’s employment. Restricted activity also includes without limitation accepting employment or a consulting position with any person who is, or at any time within twelve (12) months prior to termination of the Executive's ’s employment has been, a licensee of the Company or any of its Subsidiaries. For the purposes of this Section 9, the business of the Company and its Subsidiaries shall mean retail operations for the sale of natural and organic foods, including groceries, meat, seafood, dairy and frozen products and produce, as well as natural vitamins, supplements, homeopathic remedies and body care products.
(B) The Executive agrees that during the Non-Competition Period or in connection with any termination of employment pursuant to which the Executive is entitled to benefits under Section 6.1, the Executive will not, either directly or through any agent or employee, Solicit any employee of the Company or any of its Subsidiaries to terminate his or her relationship with the Company or any of its Subsidiaries or to apply for or accept employment with any enterprise competitive with the business of the Company, or Solicit any customer, supplier, licensee or vendor of the Company or any of its Subsidiaries to terminate or materially modify its relationship with them, or, in the case of a customer, to conduct with any person any business or activity which such customer conducts or could conduct with the Company or any of its Subsidiaries.
(C) The Executive and the Company further agree that following any termination of the Executive's ’s employment pursuant to which the Executive is entitled to benefits under Section 6.1, (i) the Executive shall not make statements or representations, otherwise communicate, directly or indirectly, in writing, orally, or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Company or any if its Subsidiaries or affiliates or their respective former or current officers, directors, employees, advisors, businesses or reputations, (ii) the Company shall instruct its Board members and senior management to not make statements or representations, otherwise communicate, directly, or indirectly, in writing, orally or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Executive or his reputation. The Executive and the Company further agree that, in the event the Executive's ’s employment with the Company is terminated other than by the Company for Cause or as a result of the Executive's ’s death, the Executive and the Company shall refer to the Executive's ’s departure as a "“resignation" ” in any press release or other external announcement or communication concerning the Executive's ’s departure from the Company. Nothing in this paragraph is intended to undermine any obligations the Executive or the Company may have to comply with applicable law, or prohibit the Executive or the Company from providing truthful testimony or information pursuant to subpoena, court order, discovery demand or similar legal process, or truthfully responding to lawful inquiries by any governmental or regulatory entity.
(D) The provisions of this Section 9 shall not be deemed to preclude the Executive from employment or engagement during the Non-Competition Period following termination of employment hereunder (i) in a business engaged in retail sales, provided such employment or engagement does not otherwise violate the provisions of this Section 9, or (ii) by a corporation, some of the activities of which are competitive with the business of the Company, if the Executive's ’s activities do not relate to such competitive business, and nothing contained in this Section 9 shall be deemed to prohibit the Executive, during the Non-Competition Period following termination of employment hereunder, from acquiring or holding, solely as an investment, publicly traded securities of any competitor corporation so long as such securities do not, in the aggregate, constitute more than 3% of the outstanding voting securities of such corporation.
(E) The Executive acknowledges that the Company and its Subsidiaries continually develop Confidential Information, that the Executive may develop Confidential Information for the Company or its Subsidiaries and that the Executive may learn of Confidential Information during the course of his employment under this Agreement. The Executive will comply with the policies and procedures of the Company and its Subsidiaries for protecting Confidential Information and shall never disclose to any person (except as required by applicable law or legal process or for the proper performance of his duties and responsibilities to the Company and its Subsidiaries, or in connection with any litigation between the Company and the Executive (provided that the Company shall be afforded a reasonable opportunity in each case to obtain a protective order)), or use for his own benefit or gain, any Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its Subsidiaries. The Executive understands that this restriction shall continue to apply after his employment terminates, regardless of the reason for such termination. All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the Company or its Subsidiaries and any copies, in whole or in part, thereof (the "“Documents"”), whether or not prepared by the Executive, shall be the sole and exclusive property of the Company and its Subsidiaries. The Executive shall safeguard all Documents and shall surrender to the Company at the time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive's ’s possession or control.
(F) Without limiting the foregoing, it is understood that the Company shall not be obligated to make any of the payments or to provide for any of the benefits specified in Sections 6.1 and 6.2 hereof, and shall be entitled to recoup the pro rata portion of any such payments and of the value of any such benefits previously provided to the Executive in the event of a material breach by the Executive of the provisions of this Section 9 (such pro ration to be determined as a fraction, the numerator of which is the number of days from such breach to the second anniversary of the date on which the Executive terminates employment and the denominator of which is 730), which breach continues without having been cured within 15 days after written notice to the Executive specifying the breach in reasonable detail.
(G) The Executive and the Company agree that in the event the Executive seeks a reference from the Company in connection with any future or prospective employment, the Company's ’s response to any such reference inquiry shall be limited to and consistent with the following: start and end dates of employment, position(s) held and last salary. For purposes of this Section 9, the following definitions shall apply:
Appears in 1 contract
Restrictive Covenants. The Executive agrees Indenture does not limit other unsecured debt. It does limit certain liens and Sale-Leaseback Transactions with respect to certain property which is: (a) real property or a manufacturing plant, processing plant, warehouse, or office building, having a value in excess of a specified amount; (b) property capable of producing oil or gas in commercial quantities, located in the United States; or (c) property that restrictions is of material importance to the Company’s consolidated business. The Indenture also requires that such properties be sold at a fair value to certain of the Company’s subsidiaries or otherwise limits the use of proceeds from the sale of such properties to such subsidiaries. The limitations are subject to a number of important qualifications and exceptions. Once a year the Company must report to the Trustee on his activities during compliance with the limitations. [If applicable, insert] As contemplated by Section 4.04(4)(ii) of the Indenture, the Company or any Restricted Subsidiary shall be permitted to enter into a Sale-Leaseback Transaction if, upon receiving the proceeds from such Sale-Leaseback Transaction, within 180 days after it is consummated, it applies or commits to apply an amount equal to the greater of the fair market value of the property, at the time of such Transaction, as determined by the Board of Directors, or the proceeds to the redemption of Securities of this Series pursuant to, at the redemption price referred to in and after his employment are necessary to protect in accordance with the goodwillprovisions of, Confidential Information paragraph 5 hereof and applicable at the time of redemption, or the retirement of other legitimate interests Long-Term Debt of the Company and its Subsidiariesor a Restricted Subsidiary; provided, however, that the Company may not redeem any Securities of this Series before from the proceeds of, or in anticipation of, a Sale-Leaseback Transaction having an interest cost of % per annum or less. [If applicable, insert] As contemplated by Section 4.05(2) of the Indenture, the Company or any Restricted Subsidiary shall be permitted to sell or transfer title to Restricted Property to an Unrestricted Subsidiary, if it applies or commits to apply an amount equal to the fair market value of such Property at the time of such sale or transfer, as determined by the Board of Directors, within 18 months after the effective date of the transaction, to the redemption of Securities of this Series pursuant to, at the redemption price referred to in, and that in accordance with the agreed restrictions set forth below will not deprive provisions of, paragraph 5 hereof and applicable at the Executive time of redemption, or the ability to earn a livelihood:
(A) While the Executive is in the employment retirement of other Long-Term Debt of the Company andor a Restricted Subsidiary; provided, if however, that the Executive Company may not so redeem any Securities of this Series before from the proceeds of, or in anticipation of, any such sale or transfer of Restricted Property to an Unrestricted Subsidiary to the extent the transaction is entitled to benefits under Section 6.1 hereof upon termination of employment, for a period of twenty-four (24) months after such termination of employment (the "Non-Competition Period"), the Executive shall notfinanced, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer by money borrowed at an interest cost of % per annum or otherwise, compete with the business of the Company or any of its Subsidiaries within a twenty (20) mile radius of any location where the Company operates a retail store at the date of termination of employment, or at which the Company has entered into a letter of intent or similar commitment for or entered into obligations relating to the opening of a retail store to be opened within the period of this covenant. Specifically, but without limiting the foregoing, the Executive agrees not to engage in any manner in any activity that is directly or indirectly competitive with the business of the Company or any of its Subsidiaries as conducted or which has been proposed by management within six months prior to termination of the Executive's employment. Restricted activity also includes without limitation accepting employment or a consulting position with any person who is, or at any time within twelve (12) months prior to termination of the Executive's employment has been, a licensee of the Company or any of its Subsidiaries. For the purposes of this Section 9, the business of the Company and its Subsidiaries shall mean retail operations for the sale of natural and organic foods, including groceries, meat, seafood, dairy and frozen products and produce, as well as natural vitamins, supplements, homeopathic remedies and body care productsless.
(B) The Executive agrees that during the Non-Competition Period or in connection with any termination of employment pursuant to which the Executive is entitled to benefits under Section 6.1, the Executive will not, either directly or through any agent or employee, Solicit any employee of the Company or any of its Subsidiaries to terminate his or her relationship with the Company or any of its Subsidiaries or to apply for or accept employment with any enterprise competitive with the business of the Company, or Solicit any customer, supplier, licensee or vendor of the Company or any of its Subsidiaries to terminate or materially modify its relationship with them, or, in the case of a customer, to conduct with any person any business or activity which such customer conducts or could conduct with the Company or any of its Subsidiaries.
(C) The Executive and the Company further agree that following any termination of the Executive's employment pursuant to which the Executive is entitled to benefits under Section 6.1, (i) the Executive shall not make statements or representations, otherwise communicate, directly or indirectly, in writing, orally, or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Company or any if its Subsidiaries or affiliates or their respective former or current officers, directors, employees, advisors, businesses or reputations, (ii) the Company shall instruct its Board members and senior management to not make statements or representations, otherwise communicate, directly, or indirectly, in writing, orally or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Executive or his reputation. The Executive and the Company further agree that, in the event the Executive's employment with the Company is terminated other than by the Company for Cause or as a result of the Executive's death, the Executive and the Company shall refer to the Executive's departure as a "resignation" in any press release or other external announcement or communication concerning the Executive's departure from the Company. Nothing in this paragraph is intended to undermine any obligations the Executive or the Company may have to comply with applicable law, or prohibit the Executive or the Company from providing truthful testimony or information pursuant to subpoena, court order, discovery demand or similar legal process, or truthfully responding to lawful inquiries by any governmental or regulatory entity.
(D) The provisions of this Section 9 shall not be deemed to preclude the Executive from employment or engagement during the Non-Competition Period following termination of employment hereunder (i) in a business engaged in retail sales, provided such employment or engagement does not otherwise violate the provisions of this Section 9, or (ii) by a corporation, some of the activities of which are competitive with the business of the Company, if the Executive's activities do not relate to such competitive business, and nothing contained in this Section 9 shall be deemed to prohibit the Executive, during the Non-Competition Period following termination of employment hereunder, from acquiring or holding, solely as an investment, publicly traded securities of any competitor corporation so long as such securities do not, in the aggregate, constitute more than 3% of the outstanding voting securities of such corporation.
(E) The Executive acknowledges that the Company and its Subsidiaries continually develop Confidential Information, that the Executive may develop Confidential Information for the Company or its Subsidiaries and that the Executive may learn of Confidential Information during the course of his employment under this Agreement. The Executive will comply with the policies and procedures of the Company and its Subsidiaries for protecting Confidential Information and shall never disclose to any person (except as required by applicable law or legal process or for the proper performance of his duties and responsibilities to the Company and its Subsidiaries, or in connection with any litigation between the Company and the Executive (provided that the Company shall be afforded a reasonable opportunity in each case to obtain a protective order)), or use for his own benefit or gain, any Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its Subsidiaries. The Executive understands that this restriction shall continue to apply after his employment terminates, regardless of the reason for such termination. All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the Company or its Subsidiaries and any copies, in whole or in part, thereof (the "Documents"), whether or not prepared by the Executive, shall be the sole and exclusive property of the Company and its Subsidiaries. The Executive shall safeguard all Documents and shall surrender to the Company at the time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive's possession or control.
(F) Without limiting the foregoing, it is understood that the Company shall not be obligated to make any of the payments or to provide for any of the benefits specified in Sections 6.1 and 6.2 hereof, and shall be entitled to recoup the pro rata portion of any such payments and of the value of any such benefits previously provided to the Executive in the event of a material breach by the Executive of the provisions of this Section 9 (such pro ration to be determined as a fraction, the numerator of which is the number of days from such breach to the second anniversary of the date on which the Executive terminates employment and the denominator of which is 730), which breach continues without having been cured within 15 days after written notice to the Executive specifying the breach in reasonable detail.
(G) The Executive and the Company agree that in the event the Executive seeks a reference from the Company in connection with any future or prospective employment, the Company's response to any such reference inquiry shall be limited to and consistent with the following: start and end dates of employment, position(s) held and last salary. For purposes of this Section 9, the following definitions shall apply:
Appears in 1 contract
Sources: Indenture (Cabot Corp)
Restrictive Covenants. The Executive Seller agrees that restrictions on his activities during and after his employment are necessary to protect that, notwithstanding the goodwillterms of any non- competition, Confidential Information and non-solicitation or other legitimate interests of the Company restrictive covenant obligation between Seller and its SubsidiariesAffiliates and any Business Employee, such Business Employee shall be permitted to provide services to Purchaser and its Affiliates (including the Transferred Entities) following the Closing, and that the agreed restrictions set forth below Seller will not deprive seek to enforce the Executive terms of any such restrictive covenant following the ability Closing with respect to earn such Business Employee's services to Purchaser or its Affiliates, in each case, to the extent exclusively related to the Business. To the extent assignable under applicable Law, Seller hereby assigns all such restrictive covenants, in each case, to the extent exclusively related to the Business, to Purchaser and its applicable Affiliates, and Purchaser and its Affiliates have the right, but not the obligation, to enforce such restrictive covenants. (o) Contingent Workers. During the period prior to the Closing, upon Purchaser's reasonable request, Seller shall use commercially reasonable efforts to (i) make introductions and coordinate discussions between Purchaser and individual natural person independent contractors who provide services exclusively related to the Business and who are engaged by Seller or its Affiliates and (ii) provide to Purchaser contact information for third-party service providers providing contingent personnel exclusively dedicated to the Business and reasonably cooperate in identifying and transferring such contingent work force to the extent related to the Business and requested by Purchaser. (p) No Third-Party Rights. Without limiting Section 9.5, this Section 5.6 will not create any third-party beneficiary rights, express or implied, and will not be enforceable by any Transferred Business Employee or any other current or former employee, any spouse, dependent or beneficiary of any current or former employee, or any other Person who is not a livelihood:
(A) While party to this Agreement. This Section 5.6 will not be deemed to be an establishment of or amendment to any Seller Benefit Plan, Transferred Entity Benefit Plan, or any other compensation or benefit plan, program, contract, policy, arrangement or agreement. No term of this Agreement will be deemed to create any Contract with any Transferred Business Employee or any other employee or to give any such Person the Executive is right to be retained in the employment of the Company and, if the Executive is entitled to benefits under Section 6.1 hereof upon termination of employment, for a period of twenty-four (24) months after such termination of employment (the "Non-Competition Period"), the Executive shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer or otherwise, compete with the business of the Company Seller or any of its Subsidiaries within a twenty (20) mile radius Affiliates, or, after the Closing, Purchaser or any of its Affiliates, or to any location where the Company operates a retail store at the date of termination particular term or condition of employment, or at which the Company has entered into a letter of intent or similar commitment for or entered into obligations relating to the opening of a retail store to be opened within the period of this covenant. Specifically, but without limiting the foregoing, the Executive agrees not to engage in any manner in any activity that is directly or indirectly competitive interfere with the business rights of the Company Seller or any of its Subsidiaries as conducted or which has been proposed by management within six months prior to termination of the Executive's employment. Restricted activity also includes without limitation accepting employment or a consulting position with any person who is, or at any time within twelve (12) months prior to termination of the Executive's employment has been, a licensee of the Company or any of its Subsidiaries. For the purposes of this Section 9, the business of the Company and its Subsidiaries shall mean retail operations for the sale of natural and organic foods, including groceries, meat, seafood, dairy and frozen products and produce, as well as natural vitamins, supplements, homeopathic remedies and body care products.
(B) The Executive agrees that during the Non-Competition Period or in connection with any termination of employment pursuant to which the Executive is entitled to benefits under Section 6.1, the Executive will not, either directly or through any agent or employee, Solicit any employee of the Company or any of its Subsidiaries to terminate his or her relationship with the Company or any of its Subsidiaries or to apply for or accept employment with any enterprise competitive with the business of the Company, or Solicit any customer, supplier, licensee or vendor of the Company or any of its Subsidiaries to terminate or materially modify its relationship with them, Affiliates or, in after the case of a customer, to conduct with any person any business or activity which such customer conducts or could conduct with the Company or any of its Subsidiaries.
(C) The Executive and the Company further agree that following any termination of the Executive's employment pursuant to which the Executive is entitled to benefits under Section 6.1, (i) the Executive shall not make statements or representations, otherwise communicate, directly or indirectly, in writing, orally, or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Company or any if its Subsidiaries or affiliates or their respective former or current officers, directors, employees, advisors, businesses or reputations, (ii) the Company shall instruct its Board members and senior management to not make statements or representations, otherwise communicate, directly, or indirectly, in writing, orally or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Executive or his reputation. The Executive and the Company further agree that, in the event the Executive's employment with the Company is terminated other than by the Company for Cause or as a result of the Executive's death, the Executive and the Company shall refer to the Executive's departure as a "resignation" in any press release or other external announcement or communication concerning the Executive's departure from the Company. Nothing in this paragraph is intended to undermine any obligations the Executive or the Company may have to comply with applicable law, or prohibit the Executive or the Company from providing truthful testimony or information pursuant to subpoena, court order, discovery demand or similar legal process, or truthfully responding to lawful inquiries by any governmental or regulatory entity.
(D) The provisions of this Section 9 shall not be deemed to preclude the Executive from employment or engagement during the Non-Competition Period following termination of employment hereunder (i) in a business engaged in retail sales, provided such employment or engagement does not otherwise violate the provisions of this Section 9, or (ii) by a corporation, some of the activities of which are competitive with the business of the Company, if the Executive's activities do not relate to such competitive business, and nothing contained in this Section 9 shall be deemed to prohibit the Executive, during the Non-Competition Period following termination of employment hereunder, from acquiring or holding, solely as an investment, publicly traded securities of any competitor corporation so long as such securities do not, in the aggregate, constitute more than 3% of the outstanding voting securities of such corporation.
(E) The Executive acknowledges that the Company and its Subsidiaries continually develop Confidential Information, that the Executive may develop Confidential Information for the Company or its Subsidiaries and that the Executive may learn of Confidential Information during the course of his employment under this Agreement. The Executive will comply with the policies and procedures of the Company and its Subsidiaries for protecting Confidential Information and shall never disclose to any person (except as required by applicable law or legal process or for the proper performance of his duties and responsibilities to the Company and its Subsidiaries, or in connection with any litigation between the Company and the Executive (provided that the Company shall be afforded a reasonable opportunity in each case to obtain a protective order)), or use for his own benefit or gain, any Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its Subsidiaries. The Executive understands that this restriction shall continue to apply after his employment terminates, regardless of the reason for such termination. All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the Company or its Subsidiaries and any copies, in whole or in part, thereof (the "Documents"), whether or not prepared by the Executive, shall be the sole and exclusive property of the Company and its Subsidiaries. The Executive shall safeguard all Documents and shall surrender to the Company at the time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive's possession or control.
(F) Without limiting the foregoing, it is understood that the Company shall not be obligated to make any of the payments or to provide for any of the benefits specified in Sections 6.1 and 6.2 hereof, and shall be entitled to recoup the pro rata portion of any such payments and of the value of any such benefits previously provided to the Executive in the event of a material breach by the Executive of the provisions of this Section 9 (such pro ration to be determined as a fraction, the numerator of which is the number of days from such breach to the second anniversary of the date on which the Executive terminates employment and the denominator of which is 730), which breach continues without having been cured within 15 days after written notice to the Executive specifying the breach in reasonable detail.
(G) The Executive and the Company agree that in the event the Executive seeks a reference from the Company in connection with any future or prospective employment, the Company's response to any such reference inquiry shall be limited to and consistent with the following: start and end dates of employment, position(s) held and last salary. For purposes of this Section 9, the following definitions shall apply:Closing,
Appears in 1 contract
Restrictive Covenants. The A. As an inducement for Company's agreement to employ Executive, to provide Executive with trade secrets and other Confidential Information, and to enter into this Agreement, Executive hereby agrees that restrictions on his activities during and after his employment are necessary to protect the goodwill, Confidential Information and other legitimate interests of the Company and its SubsidiariesTerm, and that the agreed restrictions set forth below will not deprive the Executive of the ability to earn a livelihood:
(A) While the Executive is in the employment of the Company and, if the Executive is entitled to benefits under Section 6.1 hereof upon termination of employment, for a period of twenty-four (24) full calendar months after such (i) the expiration of the Term (as the same may be extended) or (ii) the termination of Executive' s employment with the Company for whatever reason or cause (the "Non-Competition Period"whichever may occur later), or for the maximum period of time permitted by law, whichever is less, Executive shall not, whether for profit or not, whether on his own behalf or on behalf of any person or firm in any capacity whatsoever, engage in the "Prohibited Activity" (as hereinafter defined) within the "Relevant Geographical Area" (as hereinafter defined). Serving as a partner, member, trustee, receiver, custodian, manager, stockholder, officer, director, owner, joint venturer, associate, employee, consultant, adviser or in any other capacity whatsoever with respect to any person or firm engaged in the Prohibited Activity within the Relevant Geographical Area shall be conclusively deemed engagement in the Prohibited Activity within the Relevant Geographical Area regardless of whether such service is for profit or whether such person or firm engages in the Prohibited Activity for profit. In this Agreement, the phrase "Prohibited Activity" shall mean, directly or indirectly:
B. soliciting the Company's customers; or (ii) working independently or for any person or firm involved in any business engaged in by the Company and/or by any of its subsidiaries or affiliates during the Term, whether as ownerincluding, partnerwithout limitation, investoroilfield products and services that clean, consultantmaintain or repair drilling rigs or related service company. For purposes of this Agreement, agent, employee, co-venturer or otherwise, compete with the business phrase "Relevant Geographical Area" shall mean the area within political boundaries of the State of Texas and any and all other areas in which the Company or any of its Subsidiaries subsidiaries or affiliates transact business; provided, however, if the geographic area defined in this Agreement Paragraph 10.A. exceeds the maximum geographic area permitted by law or for any other reason does not state a geographic area within a twenty (20) mile radius of any location where the Company operates a retail store at the date of termination of employment, or at which the Company has entered into a letter provisions of intent or similar commitment for or entered into obligations relating to this Paragraph 10.A. are enforceable, then the opening provisions of a retail store to be opened this Paragraph 10.A. shall apply within the period of maximum geographic area permitted by law in which such provisions are enforceable. As an inducement for Company' s agreement to employ Executive, to provide Executive with trade secrets and other Confidential Information, and to enter into this covenant. SpecificallyAgreement, but without limiting the foregoing, the Executive agrees not to engage in any manner in any activity that is directly or indirectly competitive with the business of the Company or any of its Subsidiaries as conducted or which has been proposed by management within six months prior to termination of the Executive's employment. Restricted activity also includes without limitation accepting employment or a consulting position with any person who is, or at any time within twelve (12) months prior to termination of the Executive's employment has been, a licensee of the Company or any of its Subsidiaries. For the purposes of this Section 9, the business of the Company and its Subsidiaries shall mean retail operations for the sale of natural and organic foods, including groceries, meat, seafood, dairy and frozen products and produce, as well as natural vitamins, supplements, homeopathic remedies and body care products.
(B) The Executive hereby agrees that during the NonTerm, and for a period of twenty-Competition Period or in connection with any termination of employment pursuant to which the Executive is entitled to benefits under Section 6.1, the Executive will not, either directly or through any agent or employee, Solicit any employee of the Company or any of its Subsidiaries to terminate his or her relationship with the Company or any of its Subsidiaries or to apply for or accept employment with any enterprise competitive with the business of the Company, or Solicit any customer, supplier, licensee or vendor of the Company or any of its Subsidiaries to terminate or materially modify its relationship with them, or, in the case of a customer, to conduct with any person any business or activity which such customer conducts or could conduct with the Company or any of its Subsidiaries.
four (C24) The Executive and the Company further agree that following any termination of the Executive's employment pursuant to which the Executive is entitled to benefits under Section 6.1, full calendar months after: (i) the Executive shall not make statements expiration of the Term (as the same may be extended) or representations, otherwise communicate, directly or indirectly, in writing, orally, or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Company or any if its Subsidiaries or affiliates or their respective former or current officers, directors, employees, advisors, businesses or reputations, (ii) the Company shall instruct its Board members and senior management to not make statements or representations, otherwise communicate, directly, or indirectly, in writing, orally or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Executive or his reputation. The Executive and the Company further agree that, in the event the termination of Executive's employment with the Company for whatever reason or cause (whichever may occur later), or for the maximum period of time permitted by law, whichever is terminated less, Executive shall not induce or attempt to influence or persuade any employee of Company or any of its affiliates to terminate his employment with the Company (or with the applicable affiliate).
C. In addition to all other than remedies at law and in equity which the Company might have for Executive's breach of the covenants set forth in this Paragraph 10, the Parties agree that in the event of any breach or attempted or threatened breach of any such covenant, the Company shall also have the right to obtain a temporary restraining order, temporary injunction and permanent injunction against Executive prohibiting such breach or attempted or threatened breach, merely by proving the existence of such breach, or attempted or threatened breach (by a preponderance of the evidence) and without the necessity of proving either inadequacy of legal remedy or irreparable harm.
D. Executive's covenants set forth in this Paragraph 10 are independent and severable from every other provision of this Agreement; and the breach of any other provision of this Agreement by the Company for Cause or as a result of the Executive's death, the any other agreement between Executive and the Company shall refer to not affect the Executive's departure as a "resignation" in any press release or other external announcement or communication concerning the Executive's departure from the Company. Nothing in this paragraph is intended to undermine any obligations the Executive or the Company may have to comply with applicable law, or prohibit the Executive or the Company from providing truthful testimony or information pursuant to subpoena, court order, discovery demand or similar legal process, or truthfully responding to lawful inquiries by any governmental or regulatory entity.
(D) The provisions of this Section 9 shall not be deemed to preclude the Executive from employment or engagement during the Non-Competition Period following termination of employment hereunder (i) in a business engaged in retail sales, provided such employment or engagement does not otherwise violate the provisions of this Section 9, or (ii) by a corporation, some of the activities of which are competitive with the business of the Company, if the Executive's activities do not relate to such competitive business, and nothing contained in this Section 9 shall be deemed to prohibit the Executive, during the Non-Competition Period following termination of employment hereunder, from acquiring or holding, solely as an investment, publicly traded securities of any competitor corporation so long as such securities do not, in the aggregate, constitute more than 3% of the outstanding voting securities of such corporation.
(E) The Executive acknowledges that the Company and its Subsidiaries continually develop Confidential Information, that the Executive may develop Confidential Information for the Company or its Subsidiaries and that the Executive may learn of Confidential Information during the course of his employment under this Agreement. The Executive will comply with the policies and procedures of the Company and its Subsidiaries for protecting Confidential Information and shall never disclose to any person (except as required by applicable law or legal process or for the proper performance of his duties and responsibilities to the Company and its Subsidiaries, or in connection with any litigation between the Company and the Executive (provided that the Company shall be afforded a reasonable opportunity in each case to obtain a protective order)), or use for his own benefit or gain, any Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its Subsidiaries. The Executive understands that this restriction shall continue to apply after his employment terminates, regardless of the reason for such termination. All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the Company or its Subsidiaries and any copies, in whole or in part, thereof (the "Documents"), whether or not prepared by the Executive, shall be the sole and exclusive property of the Company and its Subsidiaries. The Executive shall safeguard all Documents and shall surrender to the Company at the time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive's possession or control.
(F) Without limiting the foregoing, it is understood that the Company shall not be obligated to make any of the payments or to provide for any of the benefits specified in Sections 6.1 and 6.2 hereof, and shall be entitled to recoup the pro rata portion of any such payments and of the value of any such benefits previously provided to the Executive in the event of a material breach by the Executive validity of the provisions of this Section 9 (such pro ration Paragraph 10 or constitute a defense of Executive in any suit or action brought by the Company to be determined as a fraction, enforce the numerator provisions of which is the number of days this Paragraph 10 or to seek any relief from such Executive's breach to the second anniversary thereof.
E. Each of the date on which Parties agree and stipulate that: (i) the Executive terminates employment agreements and covenants not to compete contained in this Paragraph 10 are fair and reasonable in light of all of the denominator facts and circumstances of which is 730), which breach continues without having been cured within 15 days after written notice to the Executive specifying the breach in reasonable detail.
(G) The relationship between Executive and the Company agree that in Company; (ii) the event the Executive seeks a reference from consideration provided by the Company in connection with any future or prospective employment, is not illusory; and (iii) the consideration given by the Company under this Agreement gives rise to the Company's response interest in restraining and prohibiting Executive from engaging in the Prohibited Activity within the Relevant Geographical Area as provided under this Paragraph 10 and the covenants not to any engage in the Prohibited Activity within the Relevant Geographical Area pursuant to this Paragraph 10 are designed to enforce such reference inquiry shall be limited to and consistent with the following: start and end dates of employment, position(s) held and last salary. For purposes of this Section 9, the following definitions shall apply:consideration.
Appears in 1 contract
Restrictive Covenants. The In consideration of the benefits under this Agreement, Executive has executed and delivered a Confidentiality, Non-Competitive and Confirmatory Assignment Agreement, dated the date of this Agreement (together with any similar or successor agreements, referred to herein as the “Restrictive Covenants”) and Executive agrees that restrictions on his activities during and after his employment are necessary to protect that, as part of this Agreement, Executive shall comply with the goodwill, Confidential Information and other legitimate interests terms of the Company and its SubsidiariesRestrictive Covenants. Notwithstanding Section 10(iii) of this Agreement, and that the agreed restrictions set forth below will not deprive the if (a) Executive of the ability to earn a livelihood:
(A) While the Executive is in the employment of the Company terminates service other than for Good Reason and, if the Executive thus, is not entitled to the payments and benefits under Section 6.1 hereof upon termination 10(ii) of employmentthis Agreement, for and (b) (i) Executive receives a period of twenty-four (24) months after such termination written offer of employment (the "Non-Competition Period"), the Executive shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer or otherwise, compete with the business of the Company or any of its Subsidiaries within a twenty (20) mile radius of any location where the Company operates a retail store at the date of termination of employment, or at which the Company has entered into a letter of intent or similar commitment for or entered into obligations relating to the opening of a retail store to be opened within the period of this covenant. Specifically, but without limiting the foregoing, the Executive agrees not to engage in any manner in any activity that is directly or indirectly competitive with the business of the Company or any of its Subsidiaries as conducted or which has been proposed by management within six months prior to termination of the Executive's employment. Restricted activity also includes without limitation accepting employment or a consulting position with any person who is, or at any time within twelve (12) months prior to termination of the Executive's employment has been, a licensee of the Company or any of its Subsidiaries. For the purposes of this Section 9, the business of the Company and its Subsidiaries shall mean retail operations for the sale of natural and organic foods, including groceries, meat, seafood, dairy and frozen products and produce, as well as natural vitamins, supplements, homeopathic remedies and body care products.
(B) The Executive agrees that during the Non-Competition Period or set forth in connection with any termination of employment pursuant to which the Executive is entitled to benefits under Section 6.1, the Executive will not, either directly or through any agent or employee, Solicit any employee 2(a) of the Company or any of its Subsidiaries to terminate his or her relationship with the Company or any of its Subsidiaries or to apply for or accept employment with any enterprise competitive with the business of the CompanyRestrictive Covenant, or Solicit any customer, supplier, licensee or vendor of the Company or any of its Subsidiaries to terminate or materially modify its relationship with them, or, in the case of a customer, to conduct with any person any business or activity which such customer conducts or could conduct with the Company or any of its Subsidiaries.
(C) The Executive and the Company further agree that following any termination of the Executive's employment pursuant to which the Executive is entitled to benefits under Section 6.1, (i) the Executive shall not make statements or representations, otherwise communicate, directly or indirectly, in writing, orally, or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Company or any if its Subsidiaries or affiliates or their respective former or current officers, directors, employees, advisors, businesses or reputations, (ii) Executive is not able to find suitable employment in his field in relation to his skills, position and base salary, which employment would not contravene Section 2(a) of the Restrictive Covenant, after a good faith effort by Executive to search for such employment, and (iii) the Company notifies Executive that it intends to enforce the non-compete provisions of such Section 2(a) against Executive, then the Company shall instruct its Board members and senior management pay to not make statements or representations, otherwise communicate, directly, or indirectly, in writing, orally or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging Executive an amount equal to the Executive or his reputation. The Executive and the Company further agree that, in the event the Executive's employment with the Company is terminated other than by the Company for Cause or as a result semi-monthly amount of the Executive's deathExecutives’ Base Salary for each semi-monthly payroll period beginning (A) on the effective date of the written offer of employment referred to above or (B) during the period in which Executive is not able to find suitable employment, and ending on the Executive and earliest to occur of (I) the Company shall refer to the Executive's departure as a "resignation" in any press release or other external announcement or communication concerning the Executive's departure from the Company. Nothing in this paragraph is intended to undermine any obligations the Executive or the Company may have to comply with applicable law, or prohibit the Executive or the Company from providing truthful testimony or information pursuant to subpoena, court order, discovery demand or similar legal process, or truthfully responding to lawful inquiries by any governmental or regulatory entity.
(D) The provisions end of this Section 9 shall not be deemed to preclude the Executive from employment or engagement during the Non-Competition Period following termination of employment hereunder (i) set forth in a business engaged in retail sales, provided such employment or engagement does not otherwise violate the provisions of this Section 92(a), or (iiII) by a corporationthe date as of which Executive begins new employment with an employer, some which employment would not contravene Section 2(a) of the activities Restrictive Covenant. For the avoidance of which are competitive with doubt, the business non-competition and other provision of the Company, if Restrictive Covenants in all events shall continue to apply until the Executive's activities do not relate to such competitive business, and nothing contained in this Section 9 shall be deemed to prohibit the Executive, during end of the Non-Competition Period following termination of employment hereunder, from acquiring or holding, solely as an investment, publicly traded securities of any competitor corporation so long as such securities do not, set forth in the aggregate, constitute more than 3% Section 2(a) of the outstanding voting securities of such corporation.
(E) The Executive acknowledges that the Company and its Subsidiaries continually develop Confidential Information, that the Executive may develop Confidential Information for the Company or its Subsidiaries and that the Executive may learn of Confidential Information during the course of his employment under this Agreement. The Executive will comply with the policies and procedures of the Company and its Subsidiaries for protecting Confidential Information and shall never disclose to any person (except as required by applicable law or legal process or for the proper performance of his duties and responsibilities to the Company and its Subsidiaries, or in connection with any litigation between the Company and the Executive (provided that the Company shall be afforded a reasonable opportunity in each case to obtain a protective order)), or use for his own benefit or gain, any Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its Subsidiaries. The Executive understands that this restriction shall continue to apply after his employment terminatesRestrictive Covenant, regardless of the reason for such termination. All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, Executive’s new employment with an employer that would not contravene Section 2(a) of the Company or its Subsidiaries and any copies, in whole or in part, thereof (the "Documents"), whether or not prepared by the Executive, shall be the sole and exclusive property of the Company and its Subsidiaries. The Executive shall safeguard all Documents and shall surrender to the Company at the time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive's possession or control.
(F) Without limiting the foregoing, it is understood that the Company shall not be obligated to make any of the payments or to provide for any of the benefits specified in Sections 6.1 and 6.2 hereof, and shall be entitled to recoup the pro rata portion of any such payments and of the value of any such benefits previously provided to the Executive in the event of a material breach by the Executive of the provisions of this Section 9 (such pro ration to be determined as a fractionRestrictive Covenant, the numerator subsequent termination of which is the number of days from such breach to the second anniversary of the date on which the Executive terminates employment and the denominator of which is 730), which breach continues without having been cured within 15 days after written notice to the Executive specifying the breach in reasonable detailor any other event.
(G) The Executive and the Company agree that in the event the Executive seeks a reference from the Company in connection with any future or prospective employment, the Company's response to any such reference inquiry shall be limited to and consistent with the following: start and end dates of employment, position(s) held and last salary. For purposes of this Section 9, the following definitions shall apply:
Appears in 1 contract
Restrictive Covenants. The (a) Executive understands and agrees that restrictions on his activities during Executive’s employment creates a relationship of confidence and after his employment are necessary trust between Executive and the Company with respect to protect the goodwill, all Confidential Information and other legitimate interests of (as defined below). At all times, both during Executive’s employment with the Company and after its Subsidiariestermination, Executive shall keep in confidence and trust all such Confidential Information, and that shall not use or disclose any such Confidential Information without the agreed restrictions set forth below will not deprive the Executive of the ability to earn a livelihood:
(A) While the Executive is in the employment of the Company and, if the Executive is entitled to benefits under Section 6.1 hereof upon termination of employment, for a period of twenty-four (24) months after such termination of employment (the "Non-Competition Period"), the Executive shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer or otherwise, compete with the business of the Company or any of its Subsidiaries within a twenty (20) mile radius of any location where the Company operates a retail store at the date of termination of employment, or at which the Company has entered into a letter of intent or similar commitment for or entered into obligations relating to the opening of a retail store to be opened within the period of this covenant. Specifically, but without limiting the foregoing, the Executive agrees not to engage in any manner in any activity that is directly or indirectly competitive with the business of the Company or any of its Subsidiaries as conducted or which has been proposed by management within six months prior to termination of the Executive's employment. Restricted activity also includes without limitation accepting employment or a consulting position with any person who is, or at any time within twelve (12) months prior to termination of the Executive's employment has been, a licensee of the Company or any of its Subsidiaries. For the purposes of this Section 9, the business of the Company and its Subsidiaries shall mean retail operations for the sale of natural and organic foods, including groceries, meat, seafood, dairy and frozen products and produce, as well as natural vitamins, supplements, homeopathic remedies and body care products.
(B) The Executive agrees that during the Non-Competition Period or in connection with any termination of employment pursuant to which the Executive is entitled to benefits under Section 6.1, the Executive will not, either directly or through any agent or employee, Solicit any employee of the Company or any of its Subsidiaries to terminate his or her relationship with the Company or any of its Subsidiaries or to apply for or accept employment with any enterprise competitive with the business written consent of the Company, or Solicit any customer, supplier, licensee or vendor of the Company or any of its Subsidiaries to terminate or materially modify its relationship with them, or, except as may be necessary in the case ordinary course of a customer, performing Executive’s duties to conduct with any person any business or activity which such customer conducts or could conduct with the Company or any of its Subsidiaries.
(C) The Executive and the Company further agree that following any termination of the Executive's employment pursuant to which the Executive is entitled to benefits under Section 6.1, (i) the Executive shall not make statements or representations, otherwise communicate, directly or indirectly, in writing, orally, or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Company or any if its Subsidiaries or affiliates or their respective former or current officers, directors, employees, advisors, businesses or reputations, (ii) the Company shall instruct its Board members and senior management to not make statements or representations, otherwise communicate, directly, or indirectly, in writing, orally or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Executive or his reputation. The Executive and the Company further agree that, in the event the Executive's employment with the Company is terminated other than by the Company for Cause or as a result of the Executive's death, the Executive and the Company shall refer to the Executive's departure as a "resignation" in any press release or other external announcement or communication concerning the Executive's departure from the Company. Nothing in this paragraph is intended to undermine any obligations the Executive or the Company may have to comply with applicable law, or prohibit the Executive or the Company from providing truthful testimony or information pursuant to subpoena, court order, discovery demand or similar legal process, or truthfully responding to lawful inquiries by any governmental or regulatory entity.
(D) The provisions of this Section 9 shall not be deemed to preclude the Executive from employment or engagement during the Non-Competition Period following termination of employment hereunder (i) in a business engaged in retail sales, provided such employment or engagement does not otherwise violate the provisions of this Section 9, or (ii) by a corporation, some of the activities of which are competitive with the business of the Company, if the Executive's activities do not relate to such competitive business, and nothing contained in this Section 9 Agreement shall be deemed construed to prohibit the Executive, during the Non-Competition Period following termination of employment hereunder, from acquiring or holding, solely as an investment, publicly traded securities of any competitor corporation so long as such securities do not, in the aggregate, constitute more than 3% of the outstanding voting securities of such corporation.
(E) The Executive acknowledges that the Company and its Subsidiaries continually develop Confidential Information, that the Executive may develop Confidential Information for the Company or its Subsidiaries and that the Executive may learn prevent disclosure of Confidential Information during the course of his employment under this Agreement. The Executive will comply with the policies and procedures of the Company and its Subsidiaries for protecting Confidential Information and shall never disclose to any person (except as may be required by applicable law or legal process regulation, or for pursuant to the proper performance valid order of his duties and responsibilities a court of competent jurisdiction or an authorized government agency. Upon receipt of any such order, Executive shall promptly provide written notice to the Company of any such order, and its Subsidiaries, or in connection shall consult with any litigation between and assist the Company and the Executive (provided that the Company shall be afforded a reasonable opportunity in each case to obtain seeking a protective order)), order or use request for his own benefit or gain, other appropriate remedy. Notwithstanding any Confidential Information obtained by the Executive incident to his employment or other association with the Company or any provision of its Subsidiaries. The Executive understands that this restriction shall continue to apply after his employment terminates, regardless of the reason for such termination. All documents, records, tapes and other media of every kind and description relating Agreement to the businesscontrary, present or otherwise, the provisions of the Company or its Subsidiaries and any copies, in whole or in part, thereof (the "Documents"), whether or this Agreement are not prepared by the Executive, shall be the sole and exclusive property of the Company and its Subsidiaries. The Executive shall safeguard all Documents and shall surrender to the Company at the time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive's possession or control.
(F) Without limiting the foregoing, it is understood that the Company shall not be obligated to make any of the payments or to provide for any of the benefits specified in Sections 6.1 and 6.2 hereofintended to, and shall be entitled interpreted in a manner that does not, limit or restrict Executive from exercising any legally protected whistleblower rights (including pursuant to recoup Rule 21F under the pro rata portion Securities Exchange Act of any 1934). As used in this Agreement, “Confidential Information” means information belonging to the Company that is of value to the Company in the course of conducting its business and the disclosure of which could result in a competitive or other disadvantage to the Company. Confidential Information includes, without limitation, financial information, reports, and forecasts; inventions, improvements and other intellectual property; trade secrets; know-how; designs, processes or formulae; software; market or sales information or plans; customer lists; and business plans, prospects and opportunities (such payments and as possible acquisitions or dispositions of businesses or facilities) which have been discussed or considered by the management or Board of the value of any such benefits previously provided to the Company. Confidential Information includes information developed by Executive in the event course of a material breach Executive’s employment by the Company, as well as other information to which Executive of the provisions of this Section 9 (such pro ration to be determined as a fraction, the numerator of which is the number of days from such breach to the second anniversary of the date on which the Executive terminates employment and the denominator of which is 730), which breach continues without having been cured within 15 days after written notice to the Executive specifying the breach in reasonable detail.
(G) The Executive and the Company agree that in the event the Executive seeks a reference from the Company may have access in connection with any future or prospective Executive’s employment. Confidential Information also includes the confidential information of others with which the Company has a relationship. Notwithstanding the foregoing, Confidential Information does not include information in the Company's response public domain, unless due to any such reference inquiry shall be limited to and consistent with the following: start and end dates breach of employment, position(s) held and last salary. For purposes of Executive’s duties under this Section 9, the following definitions shall apply:8.
Appears in 1 contract
Sources: Employment Agreement (United Technologies Corp /De/)
Restrictive Covenants. The As further and essential consideration for the benefits to the Executive under this Separation Agreement, Executive agrees that restrictions on his activities during and after his employment are necessary to protect the goodwill, Confidential Information and other legitimate interests of the Company and its Subsidiaries, and that the agreed restrictions set forth below will not deprive the Executive of the ability to earn a livelihood:
(A) While the Executive is in the employment of the Company and, if the Executive is entitled to benefits under Section 6.1 hereof upon termination of employment, for a period of twenty-four twelve (2412) months after such termination following the last date Executive holds the position of employment Director on the Companies’ Boards of Directors or from the last date Executive holds an official position with the Companies (the "Non-Competition Period"whichever occurs last), the Executive shall will not, for any reason whatsoever, directly or indirectly, whether as an employee, agent, consultant, independent contractor, owner, partner, investor, consultant, agent, employee, co-venturer or otherwise, compete alone or in association with others:
a) solicit or enter into any relationship to provide products or services to any current or potential customer of the Companies with whom the Executive actually had personal contact during the last twelve (12) months of the Executive’s employment with the business Companies, for the purpose of the Company providing any product or any of its Subsidiaries within a twenty (20) mile radius of any location where the Company operates a retail store at the date of termination of employment, or at which the Company has entered into a letter of intent or similar commitment for or entered into obligations relating to the opening of a retail store to be opened within the period of this covenant. Specifically, but without limiting the foregoing, the Executive agrees not to engage in any manner in any activity service that is directly or indirectly competitive with the business of the Companies;
b) utilize any information or data which belongs to or pertains to the Companies or its business or interest and which is not publicly available to persons not employed by the Companies (“Company Proprietary Information”), while the Executive is working for himself or any of its Subsidiaries as conducted or which has been proposed by management within six months prior to termination a competitor of the Executive's employment. Restricted activity also includes without limitation accepting employment or a consulting position Companies in competition with any person who is, or at any time within twelve (12) months prior to termination of the Executive's employment has been, a licensee of the Company or any of its Subsidiaries. For the purposes of this Section 9, Companies in the business of subscriber management services or other services currently provided by or being developed by the Companies Company Proprietary Information includes, but is not limited to, financial information relating to the Companies operations including the manner in which it prices and discounts its Subsidiaries shall mean retail operations for the sale of natural and organic foods, including groceries, meat, seafood, dairy and frozen products and produceservices, customer and prospective customer lists, supplier lists, proposals and methods of operation, as well as natural vitaminsinformation relating to the employees of the company, supplementswhich includes information relating to positions, homeopathic remedies titles, skill sets, compensation and body care products.quality of work. The covenant contained in this subparagraph is in addition to and not in lieu of any other agreements the Executive has signed regarding confidential information of the Companies; or
(Bc) employ, solicit for employment, or advise or recommend to any other person that such person employ or solicit for employment, any person employed by the Companies. Executive agrees that the Companies areas of business are international, and that it is reasonable to restrict the Executive’s competition as described above to protect the Companies legitimate business needs. In the event that Executive violates any of the terms of this paragraph, the Companies may withhold and/or recover any of the economic benefits paid or provided or agreed to be paid or provided to Executive pursuant to paragraph 2 or 3 above, without waiving their right to pursue any other legal or equitable remedies, and the Executive’s entitlement to such benefits shall cease and be forfeited. The restrictions contained herein are in addition to those restrictions contained within any separate nondisclosure, trade secrets, or non-solicitation agreements that the Executive has signed. The Executive agrees that during the Non-Competition Period or in connection with any termination of employment pursuant to which the Executive is entitled to benefits under Section 6.1, the Executive will not, either directly or through any agent or employee, Solicit any employee of the Company or any of its Subsidiaries to terminate his or her relationship with the Company or any of its Subsidiaries or to apply for or accept employment with any enterprise competitive with the business of the Company, or Solicit any customer, supplier, licensee or vendor of the Company or any of its Subsidiaries to terminate or materially modify its relationship with them, or, in the case of a customer, to conduct with any person any business or activity which such customer conducts or could conduct with the Company or any of its Subsidiaries.
(C) The Executive and the Company further agree that following any termination of the Executive's employment pursuant to which the Executive is entitled to benefits under Section 6.1, (i) the Executive shall not make statements or representations, otherwise communicate, directly or indirectly, in writing, orally, or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Company or any if its Subsidiaries or affiliates or their respective former or current officers, directors, employees, advisors, businesses or reputations, (ii) the Company shall instruct its Board members and senior management to not make statements or representations, otherwise communicate, directly, or indirectly, in writing, orally or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Executive or his reputation. The Executive and the Company further agree that, in the event the Executive's employment with the Company is terminated other than by the Company for Cause or as a result of the Executive's death, the Executive and the Company shall refer to the Executive's departure as a "resignation" in any press release or other external announcement or communication concerning the Executive's departure from the Company. Nothing in this paragraph is intended to undermine any obligations the Executive or the Company may have to comply with applicable law, or prohibit the Executive or the Company from providing truthful testimony or information pursuant to subpoena, court order, discovery demand or similar legal process, or truthfully responding to lawful inquiries by any governmental or regulatory entity.
(D) The provisions of this Section 9 shall not be deemed to preclude the Executive from employment or engagement during the Non-Competition Period following termination of employment hereunder (i) in a business engaged in retail sales, provided such employment or engagement does not otherwise violate the provisions of this Section 9any such agreements are cumulative in their effect, or (ii) by a corporation, some of the activities of which are competitive with the business of the Company, if the Executive's activities do not relate to such competitive businessshall remain fully enforceable, and nothing contained in are not merged into this Section 9 shall be deemed to prohibit the Executive, during the Non-Competition Period following termination of employment hereunder, from acquiring or holding, solely as an investment, publicly traded securities of any competitor corporation so long as such securities do not, in the aggregate, constitute more than 3% of the outstanding voting securities of such corporationdocument.
(E) The Executive acknowledges that the Company and its Subsidiaries continually develop Confidential Information, that the Executive may develop Confidential Information for the Company or its Subsidiaries and that the Executive may learn of Confidential Information during the course of his employment under this Agreement. The Executive will comply with the policies and procedures of the Company and its Subsidiaries for protecting Confidential Information and shall never disclose to any person (except as required by applicable law or legal process or for the proper performance of his duties and responsibilities to the Company and its Subsidiaries, or in connection with any litigation between the Company and the Executive (provided that the Company shall be afforded a reasonable opportunity in each case to obtain a protective order)), or use for his own benefit or gain, any Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its Subsidiaries. The Executive understands that this restriction shall continue to apply after his employment terminates, regardless of the reason for such termination. All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the Company or its Subsidiaries and any copies, in whole or in part, thereof (the "Documents"), whether or not prepared by the Executive, shall be the sole and exclusive property of the Company and its Subsidiaries. The Executive shall safeguard all Documents and shall surrender to the Company at the time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive's possession or control.
(F) Without limiting the foregoing, it is understood that the Company shall not be obligated to make any of the payments or to provide for any of the benefits specified in Sections 6.1 and 6.2 hereof, and shall be entitled to recoup the pro rata portion of any such payments and of the value of any such benefits previously provided to the Executive in the event of a material breach by the Executive of the provisions of this Section 9 (such pro ration to be determined as a fraction, the numerator of which is the number of days from such breach to the second anniversary of the date on which the Executive terminates employment and the denominator of which is 730), which breach continues without having been cured within 15 days after written notice to the Executive specifying the breach in reasonable detail.
(G) The Executive and the Company agree that in the event the Executive seeks a reference from the Company in connection with any future or prospective employment, the Company's response to any such reference inquiry shall be limited to and consistent with the following: start and end dates of employment, position(s) held and last salary. For purposes of this Section 9, the following definitions shall apply:
Appears in 1 contract
Sources: Separation and Release Agreement (CSG Systems International Inc)
Restrictive Covenants. The (a) Executive acknowledges and agrees that Employer will suffer great loss and damage if, during Executive's employment or at any time subsequent to such employment, Executive were to improperly use or disclose Confidential Information or goodwill of Employer, or if Executive were to use Executive's contracts and relationships with any client, potential client, customer, or referral source of Employer, and therefore agrees that Executive must comply with the restrictive covenants hereinafter set forth; it being understood at the execution of this Agreement that the parties acknowledge and agree such restrictions on his activities during protect legitimate protectable interests of Employer, with respect to its trade secrets, customers, and after his employment referral sources, are reasonable and necessary to protect such interests, are comparable with their respective rights, and do not impair or prevent Executive from earning a living.
(b) During Executive's employment with Employer and for the goodwillcontinuous period of one (1) year after such employment terminates (whether the Term or any extension thereof expires, Confidential Information the employment term is non-renewed by either party, or employment is terminated by Executive or Employer and other legitimate interests regardless of the Company and its Subsidiaries, and that the agreed restrictions set forth below will not deprive the Executive of the ability to earn a livelihood:
(A) While the Executive is in the employment of the Company and, if the Executive is entitled to benefits under Section 6.1 hereof upon termination of employment, reason for a period of twenty-four (24) months after such termination of employment (the "Non-Competition Period"termination), the Executive shall not, not directly or indirectly, for any reason or purpose whatsoever (other than on Employer's own behalf in performing Executive's required duties for Employer), whether for Executive's own benefit, or for the benefit or on behalf of, or in conjunction with, any other corporation, partnership, proprietorship, or other form of business entity, and whether as owneran employee (in any executive, managerial, officer, exempt or sales position), partner, investorprincipal, officer, director, consultant, agent, employee, co-venturer stockholder or otherwise:
(i) contact, compete with call on, solicit the business of, sell any goods or services of a type then provided by Employer to, or attempt to take away from Employer, any client or customer of the Company Employer or any business of its Subsidiaries within a twenty (20) mile radius of any location where the Company operates a retail store at the date of termination of employment, or at which the Company has entered into a letter of intent or similar commitment for or entered into obligations relating to the opening such customer of a retail store type then provided by Employer to be opened within the period of this covenant. Specifically, but without limiting the foregoing, the Executive agrees not to such customer;
(ii) engage in any manner (or own any interest) in any part of a business then engaged in by Employer, anywhere within any metropolitan area of the continental United States or any other country where Employer then is marketing and/or selling its goods or services (the mere ownership of less than two percent (2%) of the shares of any publicly traded corporation shall not be considered a violation of this provision); or
(iii) solicit or encourage any director, officer, or other employee of Employer to discontinue that individual's status or employment with Employer, or such individual to engage or participate in any activity that is directly or indirectly competitive employment in competition with the business of the Company or any of its Subsidiaries as conducted or which has been proposed by management within six months prior to termination of the Executive's employment. Restricted activity also includes without limitation accepting employment or a consulting position with any person who is, or at any time within twelve (12) months prior to termination of the Executive's employment has been, a licensee of the Company or any of its Subsidiaries. For the purposes of this Section 9, the business of the Company and its Subsidiaries shall mean retail operations for the sale of natural and organic foods, including groceries, meat, seafood, dairy and frozen products and produce, as well as natural vitamins, supplements, homeopathic remedies and body care productsEmployer.
(Bc) The Executive agrees It is the intention of the parties to restrict Executive's activities only to the extent necessary for the protection of Employer's legitimate business interests. To the extent that during the Non-Competition Period any covenant set forth in this Section 8, or in connection with Section 7 of this Agreement, shall be determined to be invalid or unenforceable in any termination of employment pursuant respect or to which the Executive is entitled to benefits under Section 6.1any extent, the Executive will not, either directly or through any agent or employee, Solicit any employee of the Company or any of its Subsidiaries to terminate his or her relationship with the Company or any of its Subsidiaries or to apply for or accept employment with any enterprise competitive with the business of the Company, or Solicit any customer, supplier, licensee or vendor of the Company or any of its Subsidiaries to terminate or materially modify its relationship with them, or, in the case of a customer, to conduct with any person any business or activity which such customer conducts or could conduct with the Company or any of its Subsidiaries.
(C) The Executive and the Company further agree that following any termination of the Executive's employment pursuant to which the Executive is entitled to benefits under Section 6.1, (i) the Executive shall not make statements or representations, otherwise communicate, directly or indirectly, in writing, orally, or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Company or any if its Subsidiaries or affiliates or their respective former or current officers, directors, employees, advisors, businesses or reputations, (ii) the Company shall instruct its Board members and senior management to not make statements or representations, otherwise communicate, directly, or indirectly, in writing, orally or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Executive or his reputation. The Executive and the Company further agree that, in the event the Executive's employment with the Company is terminated other than by the Company for Cause or as a result of the Executive's death, the Executive and the Company shall refer to the Executive's departure as a "resignation" in any press release or other external announcement or communication concerning the Executive's departure from the Company. Nothing in this paragraph is intended to undermine any obligations the Executive or the Company may have to comply with applicable law, or prohibit the Executive or the Company from providing truthful testimony or information pursuant to subpoena, court order, discovery demand or similar legal process, or truthfully responding to lawful inquiries by any governmental or regulatory entity.
(D) The provisions of this Section 9 covenant shall not be deemed rendered invalid, but instead shall be automatically amended for such lesser term or to preclude the Executive from employment or engagement during the Non-Competition Period following termination of employment hereunder (i) in a business engaged in retail sales, provided such employment or engagement does not otherwise violate the provisions of this Section 9lesser extent, or (ii) by a corporationin such other degree, some of as may grant the activities of which are competitive with Employer or other party seeking enforcement the business of the Company, if the maximum protection and restrictions on Executive's activities do not relate to such competitive business, and nothing contained in this Section 9 shall be deemed to prohibit the Executive, during the Non-Competition Period following termination of employment hereunder, from acquiring or holding, solely as an investment, publicly traded securities of any competitor corporation so long as such securities do not, in the aggregate, constitute more than 3% of the outstanding voting securities of such corporation.
(E) The Executive acknowledges that the Company and its Subsidiaries continually develop Confidential Information, that the Executive may develop Confidential Information for the Company or its Subsidiaries and that the Executive may learn of Confidential Information during the course of his employment under this Agreement. The Executive will comply with the policies and procedures of the Company and its Subsidiaries for protecting Confidential Information and shall never disclose to any person (except as required permitted by applicable law or legal process or for in such circumstances. Executive acknowledges and agrees that (a) the proper performance of his duties separate and responsibilities distinct promises in this Agreement are reasonable and necessary in order to protect the Company and its Subsidiarieslegitimate business interests described above, or (b) any violation would result in connection with any litigation between the Company and the Executive (provided that the Company shall be afforded a reasonable opportunity in each case irreparable injury to obtain a protective order)), or use for his own benefit or gain, any Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its Subsidiaries. The Executive understands that this restriction shall continue to apply after his employment terminates, regardless of the reason for such termination. All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the Company or its Subsidiaries and any copies, in whole or in part, thereof (the "Documents"), whether or not prepared by the Executive, shall be the sole and exclusive property of the Company and its Subsidiaries. The Executive shall safeguard all Documents and shall surrender to the Company at the time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive's possession or control.
(F) Without limiting the foregoing, it is understood that the Company shall not be obligated to make any of the payments or to provide for any of the benefits specified in Sections 6.1 and 6.2 hereofEmployer, and shall be entitled to recoup (c) the pro rata portion of any such payments and of the value of any such benefits previously provided to the Executive in the event enforcement of a material breach remedy by the way of injunction or otherwise would not prevent Executive of the provisions of this Section 9 (such pro ration to be determined as from earning a fraction, the numerator of which is the number of days from such breach to the second anniversary of the date on which the Executive terminates employment and the denominator of which is 730), which breach continues without having been cured within 15 days after written notice to the Executive specifying the breach in reasonable detailliving.
(G) The Executive and the Company agree that in the event the Executive seeks a reference from the Company in connection with any future or prospective employment, the Company's response to any such reference inquiry shall be limited to and consistent with the following: start and end dates of employment, position(s) held and last salary. For purposes of this Section 9, the following definitions shall apply:
Appears in 1 contract
Restrictive Covenants. The Executive In consideration of the granting of RSUs pursuant to this Agreement and the Plan, the Grantee hereby agrees that restrictions on his activities during to the following terms and after his employment are necessary conditions:
A. In order to better protect the goodwill, Confidential Information and other legitimate interests goodwill of the Company and its Subsidiariesto prevent the disclosure of the Company’s trade secrets and confidential information and thereby help ensure the long-term success of the business, and that the agreed restrictions set forth below Grantee, without prior written consent of the Company, will not deprive the Executive of the ability to earn engage in any activity or provide any services, whether as a livelihood:
(A) While the Executive is in the employment of the Company anddirector, if the Executive is entitled to benefits under Section 6.1 hereof upon termination of employmentmanager, supervisor, employee, adviser, consultant or otherwise, for a period of twenty-four one (241) months after such year following the date of the Grantee’s termination of employment (the "Non-Competition Period"), the Executive shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer or otherwise, compete Employment with the business Company, in connection with the development, advertising, promotion, or sale of any service which is the same as or similar to or competitive with any services of the Company or any (including both existing services as well as services known to the Grantee, as a consequence of its Subsidiaries within a twenty (20) mile radius of any location where the Company operates a retail store at Grantee’s Employment with the date of termination of employmentCompany, or at to be in development):
i. with respect to which the Company has entered into a letter of intent or similar commitment for or entered into obligations relating to the opening of a retail store to be opened within the period of this covenant. Specifically, but without limiting the foregoing, the Executive agrees not to engage in any manner in any activity that is directly or indirectly competitive with the business of the Company or any of its Subsidiaries as conducted or which Grantee’s work has been proposed by management within six months prior to termination of the Executive's employment. Restricted activity also includes without limitation accepting employment or a consulting position with any person who is, or directly concerned at any time within twelve during the one (121) months prior to year preceding termination of Employment with the Executive's employment has beenCompany; or
ii. with respect to which during that period of time the Grantee, as a licensee consequence of the Company Grantee’s job performance and duties, acquired knowledge of trade secrets or any of its Subsidiaries. For the purposes of this Section 9, the business of the Company and its Subsidiaries shall mean retail operations for the sale of natural and organic foods, including groceries, meat, seafood, dairy and frozen products and produce, as well as natural vitamins, supplements, homeopathic remedies and body care products.
(B) The Executive agrees that during the Non-Competition Period or in connection with any termination of employment pursuant to which the Executive is entitled to benefits under Section 6.1, the Executive will not, either directly or through any agent or employee, Solicit any employee of the Company or any of its Subsidiaries to terminate his or her relationship with the Company or any of its Subsidiaries or to apply for or accept employment with any enterprise competitive with the business other confidential information of the Company, or Solicit any customer, supplier, licensee or vendor of the Company or any of its Subsidiaries to terminate or materially modify its relationship with them, or, in the case of a customer, to conduct with any person any business or activity which such customer conducts or could conduct with the Company or any of its Subsidiaries.
(C) The Executive and the Company further agree that following any termination of the Executive's employment pursuant to which the Executive is entitled to benefits under Section 6.1, (i) the Executive shall not make statements or representations, otherwise communicate, directly or indirectly, in writing, orally, or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Company or any if its Subsidiaries or affiliates or their respective former or current officers, directors, employees, advisors, businesses or reputations, (ii) the Company shall instruct its Board members and senior management to not make statements or representations, otherwise communicate, directly, or indirectly, in writing, orally or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Executive or his reputation. The Executive and the Company further agree that, in the event the Executive's employment with the Company is terminated other than by the Company for Cause or as a result of the Executive's death, the Executive and the Company shall refer to the Executive's departure as a "resignation" in any press release or other external announcement or communication concerning the Executive's departure from the Company. Nothing in this paragraph is intended to undermine any obligations the Executive or the Company may have to comply with applicable law, or prohibit the Executive or the Company from providing truthful testimony or information pursuant to subpoena, court order, discovery demand or similar legal process, or truthfully responding to lawful inquiries by any governmental or regulatory entity.
(D) The provisions of this Section 9 shall not be deemed to preclude the Executive from employment or engagement during the Non-Competition Period following termination of employment hereunder (i) in a business engaged in retail sales, provided such employment or engagement does not otherwise violate the provisions of this Section 9, or (ii) by a corporation, some of the activities of which are competitive with the business of the Company, if the Executive's activities do not relate to such competitive business, and nothing contained in this Section 9 shall be deemed to prohibit the Executive, during the Non-Competition Period following termination of employment hereunder, from acquiring or holding, solely as an investment, publicly traded securities of any competitor corporation so long as such securities do not, in the aggregate, constitute more than 3% of the outstanding voting securities of such corporation.
(E) The Executive acknowledges that the Company and its Subsidiaries continually develop Confidential Information, that the Executive may develop Confidential Information for the Company or its Subsidiaries and that the Executive may learn of Confidential Information during the course of his employment under this Agreement. The Executive will comply with the policies and procedures of the Company and its Subsidiaries for protecting Confidential Information and shall never disclose to any person (except as required by applicable law or legal process or for the proper performance of his duties and responsibilities to the Company and its Subsidiaries, or in connection with any litigation between the Company and the Executive (provided that the Company shall be afforded a reasonable opportunity in each case to obtain a protective order)), or use for his own benefit or gain, any Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its Subsidiaries. The Executive understands that this restriction shall continue to apply after his employment terminates, regardless of the reason for such termination. All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the Company or its Subsidiaries and any copies, in whole or in part, thereof (the "Documents"), whether or not prepared by the Executive, shall be the sole and exclusive property of the Company and its Subsidiaries. The Executive shall safeguard all Documents and shall surrender to the Company at the time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive's possession or control.
(F) Without limiting the foregoing, it is understood that the Company shall not be obligated to make any of the payments or to provide for any of the benefits specified in Sections 6.1 and 6.2 hereof, and shall be entitled to recoup the pro rata portion of any such payments and of the value of any such benefits previously provided to the Executive in the event of a material breach by the Executive of the provisions of this Section 9 (such pro ration to be determined as a fraction, the numerator of which is the number of days from such breach to the second anniversary of the date on which the Executive terminates employment and the denominator of which is 730), which breach continues without having been cured within 15 days after written notice to the Executive specifying the breach in reasonable detail.
(G) The Executive and the Company agree that in the event the Executive seeks a reference from the Company in connection with any future or prospective employment, the Company's response to any such reference inquiry shall be limited to and consistent with the following: start and end dates of employment, position(s) held and last salary. For purposes of this Section 98, it shall be conclusively presumed that Grantee has knowledge of information that Grantee was directly exposed to through actual receipt or review of memos or documents containing such information, or through actual attendance at meetings at which such information was discussed or disclosed.
B. The provisions of this Section 8 are not in lieu of, but are in addition to the continuing obligation of the Grantee (which Grantee hereby acknowledges) to not use or disclose the Company’s trade secrets and confidential information known to the Grantee until any particular trade secret or confidential information becomes generally known (through no fault of the Grantee), whereupon the restriction on use and disclosure shall cease as of that time. Information regarding services in development, in test marketing or being marketed or promoted in a discrete geographic region, which information the Company is considering for broader use, shall not be deemed generally known until such broader use is actually commercially implemented.
C. By acceptance of any RSUs granted under this Agreement and the terms of the Plan, the following definitions Grantee acknowledges that if Grantee does not comply with Section 8.A or 8.B, the Company will be entitled to injunctive relief to compel such compliance. The Grantee acknowledges that the harm caused to the Company by Grantee’s breach or anticipated breach of Section 8.A or 8.B is by its nature irreparable because, among other things, it is not readily susceptible of proof as to the monetary harm that would ensue. The Grantee consents that any interim or final equitable relief entered by a court of competent jurisdiction shall, at the request of the Company, be entered on consent and enforced by any court having jurisdiction over the Grantee, without prejudice, to any right either party may have to appeal from the proceedings which resulted in any grant of such relief.
D. If any of the provisions contained in this Section 8 shall apply:for any reason, whether by application of existing law or law which may develop after the Grantee’s acceptance of an offer of the granting of RSUs, be determined by a court of competent jurisdiction to be overly broad as to scope of activity, duration, or territory, the Grantee agrees to join the Company in requesting such court to construe such provision by limiting or reducing it so as to be enforceable to the maximum extent compatible with then applicable law. If any one or more of the terms, provisions, covenants, or restrictions of this Section 8 shall be determined by a court of competent jurisdiction to be invalid, void or unenforceable, then the remainder of the terms, provisions, covenants and restrictions of this Section 8 shall remain in full force and effect and shall in no way be affected, impaired or invalidated.
Appears in 1 contract
Sources: Performance Based Restricted Stock Unit Award Agreement (West Corp)
Restrictive Covenants. The (a) Executive acknowledges and agrees that his position with the Company places him in a position of confidence and trust with respect to Proprietary Information. Executive consequently agrees that it is reasonable and necessary for the protection of the goodwill of the Business that Executive make the covenants contained herein. Accordingly, Executive agrees that, during the Term of this Agreement and for a period of twelve (12) months after the date of expiration or termination of Executive’s employment hereunder for any reason whatsoever, Executive will not, without the prior written consent of the Company and provided that the Company has not failed to make any payments to the Executive when due in accordance with the provisions of Section 6 hereof and otherwise comply with the terms and conditions of this Agreement, (i) employ, solicit or encourage to leave the employ of the Company, or to become employed by any person other than the Company, any employee of the Company, or any individual who was an employee of the Company during the one year prior to the termination or expiration of Executive’s employment, (ii) persuade or attempt to persuade any customer of the Company as of the date of the termination or expiration of Executive’s employment or during the one year prior to the termination or expiration of Executive's employment to cease doing business with, or to reduce the amount of business it does with, the Company, or solicit the business of any of the Company’s customers as of the date of the termination or expiration during the one year prior to the termination or expiration of Executive's employment hereunder with respect to any product or service which competes with the products and services of the Company as of the date of termination of Executive’s employment or (iii) compete with the Company as a consultant to, employee of, or equity participant in, any venture which competes with the Business within the United States of America. No provision of this Section 10 shall prohibit Executive from merely owning (i.e., having no participation or involvement in the management) no more than three percent (3%) of the outstanding equity securities of any actively traded public entity.
(b) Executive has carefully considered the nature and extent of the restrictions on his activities during upon him and after his employment the rights and remedies conferred upon the Company under Sections 10 and 11 of this Agreement and hereby acknowledges and agrees that the same are necessary reasonable in time and territory, are designed to avoid competition which otherwise would be unfair to the Company, do not stifle the inherent skill and experience of Executive, would not operate as a bar to Executive’s sole means of support, are required to protect the goodwill, Confidential Information and other legitimate interests of the Company and its Subsidiaries, and that the agreed restrictions set forth below will do not deprive the Executive of the ability to earn confer a livelihood:
(A) While the Executive is in the employment of benefit upon the Company and, if the Executive is entitled to benefits under Section 6.1 hereof upon termination of employment, for a period of twenty-four (24) months after such termination of employment (the "Non-Competition Period"), the Executive shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer or otherwise, compete with the business of the Company or any of its Subsidiaries within a twenty (20) mile radius of any location where the Company operates a retail store at the date of termination of employment, or at which the Company has entered into a letter of intent or similar commitment for or entered into obligations relating disproportionate to the opening of a retail store to be opened within the period of this covenant. Specifically, but without limiting the foregoing, the benefit otherwise afforded Executive agrees not to engage in any manner in any activity that is directly or indirectly competitive with the business of the Company or any of its Subsidiaries as conducted or which has been proposed by management within six months prior to termination of the Executive's employment. Restricted activity also includes without limitation accepting employment or a consulting position with any person who is, or at any time within twelve (12) months prior to termination of the Executive's employment has been, a licensee of the Company or any of its Subsidiaries. For the purposes of this Section 9, the business of the Company and its Subsidiaries shall mean retail operations for the sale of natural and organic foods, including groceries, meat, seafood, dairy and frozen products and produce, as well as natural vitamins, supplements, homeopathic remedies and body care products.
(B) The Executive agrees that during the Non-Competition Period or in connection with any termination of employment pursuant to which the Executive is entitled to benefits under Section 6.1, the Executive will not, either directly or through any agent or employee, Solicit any employee of the Company or any of its Subsidiaries to terminate his or her relationship with the Company or any of its Subsidiaries or to apply for or accept employment with any enterprise competitive with the business of the Company, or Solicit any customer, supplier, licensee or vendor of the Company or any of its Subsidiaries to terminate or materially modify its relationship with them, or, in the case of a customer, to conduct with any person any business or activity which such customer conducts or could conduct with the Company or any of its Subsidiaries.
(C) The Executive and the Company further agree that following any termination of the Executive's employment pursuant to which the Executive is entitled to benefits under Section 6.1, (i) the Executive shall not make statements or representations, otherwise communicate, directly or indirectly, in writing, orally, or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Company or any if its Subsidiaries or affiliates or their respective former or current officers, directors, employees, advisors, businesses or reputations, (ii) the Company shall instruct its Board members and senior management to not make statements or representations, otherwise communicate, directly, or indirectly, in writing, orally or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Executive or his reputation. The Executive and the Company further agree that, in the event the Executive's employment with the Company is terminated other than by the Company for Cause or as a result of the Executive's death, the Executive and the Company shall refer to the Executive's departure as a "resignation" in any press release or other external announcement or communication concerning the Executive's departure from the Company. Nothing in this paragraph is intended to undermine any obligations the Executive or the Company may have to comply with applicable law, or prohibit the Executive or the Company from providing truthful testimony or information pursuant to subpoena, court order, discovery demand or similar legal process, or truthfully responding to lawful inquiries by any governmental or regulatory entity.
(D) The provisions of this Section 9 shall not be deemed to preclude the Executive from employment or engagement during the Non-Competition Period following termination of employment hereunder (i) in a business engaged in retail sales, provided such employment or engagement does not otherwise violate the provisions of this Section 9, or (ii) by a corporation, some of the activities of which are competitive with the business of the Company, if the Executive's activities do not relate to such competitive business, and nothing contained in this Section 9 shall be deemed to prohibit the Executive, during the Non-Competition Period following termination of employment hereunder, from acquiring or holding, solely as an investment, publicly traded securities of any competitor corporation so long as such securities do not, in the aggregate, constitute more than 3% of the outstanding voting securities of such corporation.
(E) The Executive acknowledges that the Company and its Subsidiaries continually develop Confidential Information, that the Executive may develop Confidential Information for the Company or its Subsidiaries and that the Executive may learn of Confidential Information during the course of his employment under this Agreement. The Executive will comply with the policies and procedures of the Company and its Subsidiaries for protecting Confidential Information and shall never disclose to any person (except as required by applicable law or legal process or for the proper performance of his duties and responsibilities to the Company and its Subsidiaries, or in connection with any litigation between the Company and the Executive (provided that the Company shall be afforded a reasonable opportunity in each case to obtain a protective order)), or use for his own benefit or gain, any Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its Subsidiaries. The Executive understands that this restriction shall continue to apply after his employment terminates, regardless of the reason for such termination. All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the Company or its Subsidiaries and any copies, in whole or in part, thereof (the "Documents"), whether or not prepared by the Executive, shall be the sole and exclusive property of the Company and its Subsidiaries. The Executive shall safeguard all Documents and shall surrender to the Company at the time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive's possession or control.
(F) Without limiting the foregoing, it is understood that the Company shall not be obligated to make any of the payments or to provide for any of the benefits specified in Sections 6.1 and 6.2 hereof, and shall be entitled to recoup the pro rata portion of any such payments and of the value of any such benefits previously provided to the Executive in the event of a material breach by the Executive of the provisions of this Section 9 (such pro ration to be determined as a fraction, the numerator of which is the number of days from such breach to the second anniversary of the date on which the Executive terminates employment and the denominator of which is 730), which breach continues without having been cured within 15 days after written notice to the Executive specifying the breach in reasonable detail.
(G) The Executive and the Company agree that in the event the Executive seeks a reference from the Company in connection with any future or prospective employment, the Company's response to any such reference inquiry shall be limited to and consistent with the following: start and end dates of employment, position(s) held and last salary. For purposes of this Section 9, the following definitions shall apply:
Appears in 1 contract
Restrictive Covenants. The (a) Executive agrees that restrictions agrees, from the Effective Date through the Severance Termination Date, to make known Executive’s availability for employment involving services of a nature substantially similar and of a comparable stature to those performed by Executive on his activities during and after his employment are necessary to protect the goodwill, Confidential Information and other legitimate interests behalf of the Company in a manner customary for executives holding positions substantially similar and its Subsidiaries, and that of a comparable stature to Executive’s position with the agreed restrictions set forth below will not deprive Company. Executive agrees to keep the Executive Chairman of the ability to earn a livelihood:
Board (Aor his designee) While the Executive is in the apprised of Executive’s employment of the Company status during such period and, if requested, Executive will provide appropriate supporting documentation with respect to the salary, bonuses or other compensation earned by and benefits made available to Executive is entitled to benefits under in respect of such employment. In the event Executive secures employment as described in this Section 6.1 hereof upon termination of employment, for a period of twenty-four (24) months after such termination of employment (the "Non-Competition Period"4(a), the Company shall be entitled to (i) deduct from the amounts payable to Executive pursuant to Sections 2(a) and 2(b) above any salary, bonuses or other compensation paid to Executive in connection with such employment and (ii) terminate Executive’s participation in (and shall not be required to pay Executive any sums in respect of) any employee benefit plans and programs described in Section 2(e) that are substantially similar to any employee benefit plans and programs in which Executive participates in connection with such new or existing employment. Executive agrees promptly to repay to the Company any amounts paid to Executive by the Company pursuant to Sections 2(a) and 2(b) which the Company was entitled to deduct from such amounts pursuant to this Section 4(a).
(b) Executive agrees, as a condition to the performance by the Company of its obligations hereunder, particularly its obligations under Section 2 above, that from the Effective Date through the first anniversary of the Effective Date, Executive shall not, without the prior written consent of the Board, directly or indirectly through any other person, firm or corporation:
(i) Engage, participate, own or make any financial investments in, or become employed by or render (whether or not for compensation) any consulting, advisory or other services to or for the benefit of, any person, firm or corporation, that directly or indirectly, whether engages primarily in, the development of adult retirement communities and/or active adult communities; provided, however, that it shall not be a violation of this Agreement for Executive (x) to have beneficial ownership of less than 1% of the outstanding amount of any class of securities of any enterprise (but without otherwise participating in the activities of such enterprise) if such securities are registered under Section 12 of the Securities Exchange Act of 1934, as owneramended (the “Exchange Act”) or quoted on an inter-dealer quotation system or (y) to have beneficial ownership of less than 20% of the outstanding amount of any class of securities of any enterprise (but without otherwise participating in the activities or otherwise having influence or control of such enterprise) if such securities are not registered under Section 12 of the Exchange Act or quoted on an inter-dealer quotation system;
(ii) Solicit, partnerraid, investorentice or induce any person, consultantfirm or corporation that is or, agentat any time during the term of Executive’s employment, employeewas, co-venturer or otherwise, compete with the business a customer of the Company or any of its Subsidiaries within a twenty (20) mile radius of any location where the Company operates a retail store at the date of termination of employment, subsidiary or at which the Company has entered into a letter of intent or similar commitment for or entered into obligations relating to the opening of a retail store to be opened within the period of this covenant. Specifically, but without limiting the foregoing, the Executive agrees not to engage in any manner in any activity that is directly or indirectly competitive with the business affiliate of the Company (collectively, the “Avatar Entities”) to become a customer of any other person, firm or corporation, and Executive shall not approach any such person, firm or corporation for such purpose or authorize or knowingly approve the taking of its Subsidiaries as conducted such actions by any other person; or
(iii) Solicit, raid, entice or which has been proposed by management within six months prior to termination of the Executive's employment. Restricted activity also includes without limitation accepting employment or a consulting position with induce any person who isthat is or, or at any time within twelve (12) months prior to termination during the term of Executive’s employment, was, an employee of any of the Executive's employment has beenAvatar Entities to become employed by any person, a licensee of the Company firm or any of its Subsidiaries. For the purposes of this Section 9corporation, the business of the Company and its Subsidiaries shall mean retail operations for the sale of natural and organic foods, including groceries, meat, seafood, dairy and frozen products and produce, as well as natural vitamins, supplements, homeopathic remedies and body care products.
(B) The Executive agrees that during the Non-Competition Period or in connection with any termination of employment pursuant to which the Executive is entitled to benefits under Section 6.1, the Executive will not, either directly or through any agent or employee, Solicit any employee of the Company or any of its Subsidiaries to terminate his or her relationship with the Company or any of its Subsidiaries or to apply for or accept employment with any enterprise competitive with the business of the Company, or Solicit any customer, supplier, licensee or vendor of the Company or any of its Subsidiaries to terminate or materially modify its relationship with them, or, in the case of a customer, to conduct with any person any business or activity which such customer conducts or could conduct with the Company or any of its Subsidiaries.
(C) The Executive and the Company further agree that following any termination of the Executive's employment pursuant to which the Executive is entitled to benefits under Section 6.1, (i) the Executive shall not make statements approach any such employee for such purpose or representations, otherwise communicate, directly authorize or indirectly, in writing, orally, or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to knowingly approve the Company or any if its Subsidiaries or affiliates or their respective former or current officers, directors, employees, advisors, businesses or reputations, (ii) the Company shall instruct its Board members and senior management to not make statements or representations, otherwise communicate, directly, or indirectly, in writing, orally or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Executive or his reputation. The Executive and the Company further agree that, in the event the Executive's employment with the Company is terminated other than by the Company for Cause or as a result taking of the Executive's death, the Executive and the Company shall refer to the Executive's departure as a "resignation" in any press release or other external announcement or communication concerning the Executive's departure from the Company. Nothing in this paragraph is intended to undermine any obligations the Executive or the Company may have to comply with applicable law, or prohibit the Executive or the Company from providing truthful testimony or information pursuant to subpoena, court order, discovery demand or similar legal process, or truthfully responding to lawful inquiries such actions by any governmental or regulatory entityother person.
(D) The provisions of this Section 9 shall not be deemed to preclude the Executive from employment or engagement during the Non-Competition Period following termination of employment hereunder (i) in a business engaged in retail sales, provided such employment or engagement does not otherwise violate the provisions of this Section 9, or (ii) by a corporation, some of the activities of which are competitive with the business of the Company, if the Executive's activities do not relate to such competitive business, and nothing contained in this Section 9 shall be deemed to prohibit the Executive, during the Non-Competition Period following termination of employment hereunder, from acquiring or holding, solely as an investment, publicly traded securities of any competitor corporation so long as such securities do not, in the aggregate, constitute more than 3% of the outstanding voting securities of such corporation.
(E) The Executive acknowledges that the Company and its Subsidiaries continually develop Confidential Information, that the Executive may develop Confidential Information for the Company or its Subsidiaries and that the Executive may learn of Confidential Information during the course of his employment under this Agreement. The Executive will comply with the policies and procedures of the Company and its Subsidiaries for protecting Confidential Information and shall never disclose to any person (except as required by applicable law or legal process or for the proper performance of his duties and responsibilities to the Company and its Subsidiaries, or in connection with any litigation between the Company and the Executive (provided that the Company shall be afforded a reasonable opportunity in each case to obtain a protective order)), or use for his own benefit or gain, any Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its Subsidiaries. The Executive understands that this restriction shall continue to apply after his employment terminates, regardless of the reason for such termination. All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the Company or its Subsidiaries and any copies, in whole or in part, thereof (the "Documents"), whether or not prepared by the Executive, shall be the sole and exclusive property of the Company and its Subsidiaries. The Executive shall safeguard all Documents and shall surrender to the Company at the time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive's possession or control.
(F) Without limiting the foregoing, it is understood that the Company shall not be obligated to make any of the payments or to provide for any of the benefits specified in Sections 6.1 and 6.2 hereof, and shall be entitled to recoup the pro rata portion of any such payments and of the value of any such benefits previously provided to the Executive in the event of a material breach by the Executive of the provisions of this Section 9 (such pro ration to be determined as a fraction, the numerator of which is the number of days from such breach to the second anniversary of the date on which the Executive terminates employment and the denominator of which is 730), which breach continues without having been cured within 15 days after written notice to the Executive specifying the breach in reasonable detail.
(G) The Executive and the Company agree that in the event the Executive seeks a reference from the Company in connection with any future or prospective employment, the Company's response to any such reference inquiry shall be limited to and consistent with the following: start and end dates of employment, position(s) held and last salary. For purposes of this Section 9, the following definitions shall apply:
Appears in 1 contract
Restrictive Covenants. The Executive agrees that restrictions on his activities during and after his employment are necessary to protect the goodwill, Confidential Information and other legitimate interests of the Company and its Subsidiaries, and that the agreed restrictions set forth below will not deprive the Executive of the ability to earn a livelihood:
(A) While Executive acknowledges that (1) Employer has separately bargained and paid additional consideration for the restrictive covenants herein; and (2) Employer will provide certain benefits to Executive is hereunder in the employment reliance on such covenants in view of the Company and, if the Executive is entitled to benefits under Section 6.1 hereof upon termination of employment, for a period of twenty-four (24) months after such termination of employment (the "Non-Competition Period"), the Executive shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer or otherwise, compete with the business unique and essential nature of the Company or any services Executive will perform on behalf of its Subsidiaries within a twenty (20) mile radius of any location where Employer and the Company operates a retail store at the date of termination of employment, or at which the Company has entered into a letter of intent or similar commitment for or entered into obligations relating to the opening of a retail store to be opened within the period of this covenant. Specifically, but without limiting the foregoing, the irreparable injury that would befall Employer should Executive agrees not to engage in any manner in any activity that is directly or indirectly competitive with the business of the Company or any of its Subsidiaries as conducted or which has been proposed by management within six months prior to termination of the Executive's employment. Restricted activity also includes without limitation accepting employment or a consulting position with any person who is, or at any time within twelve (12) months prior to termination of the Executive's employment has been, a licensee of the Company or any of its Subsidiaries. For the purposes of this Section 9, the business of the Company and its Subsidiaries shall mean retail operations for the sale of natural and organic foods, including groceries, meat, seafood, dairy and frozen products and produce, as well as natural vitamins, supplements, homeopathic remedies and body care productsbreach such covenants.
(B) The Executive agrees further acknowledges that during the Non-Competition Period or in connection with any termination of employment pursuant to which the Executive is entitled to benefits under Section 6.1, the Executive will not, either directly or through any agent or employee, Solicit any employee of the Company or any of its Subsidiaries to terminate his or her relationship with the Company or any of its Subsidiaries or to apply for or accept employment with any enterprise competitive with the business of the Company, or Solicit any customer, supplier, licensee or vendor of the Company or any of its Subsidiaries to terminate or materially modify its relationship with them, or, in the case services are of a customerspecial, unique and extraordinary character and that his position with Employer will place him in a position of confidence and trust with employees of Employer and its subsidiaries and affiliates and with Employer’s other constituencies and will allow him access to conduct with any person any business or activity which such customer conducts or could conduct with the Company or any of trade secrets and confidential information concerning Employer and its Subsidiariessubsidiaries and affiliates.
(C) The Executive further acknowledges that the type and the Company further agree that following any termination periods of the Executive's employment pursuant to which the Executive is entitled to benefits under Section 6.1, (i) the Executive shall not make statements or representations, otherwise communicate, directly or indirectly, in writing, orally, or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Company or any if its Subsidiaries or affiliates or their respective former or current officers, directors, employees, advisors, businesses or reputations, (ii) the Company shall instruct its Board members and senior management to not make statements or representations, otherwise communicate, directly, or indirectly, in writing, orally or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Executive or his reputation. The Executive and the Company further agree that, in the event the Executive's employment with the Company is terminated other than restrictions imposed by the Company for Cause or as a result of the Executive's death, the Executive and the Company shall refer to the Executive's departure as a "resignation" in any press release or other external announcement or communication concerning the Executive's departure from the Company. Nothing covenants in this paragraph is intended to undermine any obligations the Section 10 are fair and reasonable and that such restrictions will not prevent Executive or the Company may have to comply with applicable law, or prohibit the Executive or the Company from providing truthful testimony or information pursuant to subpoena, court order, discovery demand or similar legal process, or truthfully responding to lawful inquiries by any governmental or regulatory entityearning a livelihood.
(D) The provisions Having acknowledged the foregoing, Executive covenants and agrees with Employer as follows:
(1) For a period of this Section 9 two (2) years after the termination of Executive’s employment by Employer for any reason or for no reason, Executive shall not be deemed divulge or furnish any confidential information of Employer acquired by him while employed by Employer to preclude any person, firm or corporation, other than to Employer or upon its written request, or use any such confidential information (which shall at all times remain the Executive from employment property of Employer) directly or engagement during indirectly for Executive’ own benefit or for the Non-Competition Period following termination benefit of employment hereunder any person, firm or corporation other than Employer. For purposes hereof, the term “confidential information” means data and information relating to the Banking Business (ias hereinafter defined) in a business engaged in retail sales, provided such employment or engagement (which does not otherwise violate rise to the provisions status of this a Trade Secret, as such term is defined in Section 910-1-761 of the Official Code of Georgia Annotated) which is or has been disclosed to Executive or of which Executive became aware as a consequence of or through Executive’s relationship to Employer and which has value to Employer and is not generally known to its competitors. Without limiting the foregoing, “confidential information” shall include: (a) all items of information that could be classified as a Trade Secret pursuant to Georgia law; (b) the names, addresses and banking requirements of the customers of Employer or its subsidiaries and the nature and amount of business done with such customers; (c) the names and addresses of employees and other business contacts of Employer or its subsidiaries; (d) the particular names, methods and procedures utilized by Employer or its subsidiaries in the conduct and advertising of their business; (e) application, operating system, communication and other computer software and derivatives thereof, including, without limitation, sources and object codes, flow charts, coding sheets, routines, subrouting and related documentation and manuals of Employer or its subsidiaries; and (f) marketing techniques, purchasing information, pricing policies, loan policies, quoting procedures, financial information, customer data and other materials or information relating to Employer’s or its subsidiaries’ manner of doing business. Confidential information shall not include any data or information that has been voluntarily disclosed to the public by Employer (except where such public disclosure has been made by Executive without authorization) or that has been independently developed and disclosed by others, or (ii) by a corporation, some of that otherwise enters the activities of which are competitive with the business of the Company, if the Executive's activities do not relate to such competitive business, and nothing contained in this Section 9 shall be deemed to prohibit the Executive, during the Non-Competition Period following termination of employment hereunder, from acquiring or holding, solely as an investment, publicly traded securities of any competitor corporation so long as such securities do not, in the aggregate, constitute more than 3% of the outstanding voting securities of such corporationpublic domain through lawful means.
(E2) The Executive acknowledges hereby agrees that the Company and its Subsidiaries continually develop Confidential Information, that the Executive may develop Confidential Information for the Company he will not directly or its Subsidiaries and that the Executive may learn of Confidential Information during the course of his employment under this Agreement. The Executive will comply with the policies and procedures of the Company and its Subsidiaries for protecting Confidential Information and shall never indirectly disclose to any person (except as required by applicable law or legal process or for the proper performance of his duties and responsibilities to the Company and its Subsidiaries, or in connection with any litigation between the Company and the Executive (provided that the Company shall be afforded a reasonable opportunity in each case to obtain a protective order))anyone, or use or otherwise exploit for his own benefit or gain, for the benefit of anyone other than Employer and its subsidiaries any Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its Subsidiaries. The Executive understands that this restriction shall continue to apply after his employment terminates, regardless trade secrets (as defined in §10-1-761 of the reason Official Code of Georgia Annotated) of Employer for such termination. All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the Company or its Subsidiaries and any copies, in whole or in part, thereof (the "Documents"), whether or not prepared by the Executive, shall be the sole and exclusive property of the Company and its Subsidiaries. The Executive shall safeguard all Documents and shall surrender to the Company at the time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive's possession or controllong as they remain trade secrets.
(F3) Without limiting the foregoingWhile Executive is employed by Employer and for a period of one (1) year after termination of Executive’s employment pursuant to Subsection 8(A), it is understood that the Company 8(C) or 8(E) hereof, Executive shall not be obligated to make any (except on behalf of or with the payments prior written consent of Employer), on Executive’s own behalf or to provide for any of the benefits specified in Sections 6.1 and 6.2 hereof, and shall be entitled to recoup the pro rata portion of any such payments and of the value of any such benefits previously provided to the Executive in the event service or on behalf of a material breach others, solicit, divert or appropriate, or attempt to solicit, divert or appropriate, directly or by the Executive of the provisions of this Section 9 (such pro ration to be determined as a fraction, the numerator of which is the number of days from such breach to the second anniversary of the date on which the Executive terminates employment and the denominator of which is 730), which breach continues without having been cured within 15 days after written notice to the Executive specifying the breach in reasonable detail.
(G) The Executive and the Company agree that in the event the Executive seeks a reference from the Company in connection with any future or prospective employment, the Company's response to any such reference inquiry shall be limited to and consistent with the following: start and end dates of employment, position(s) held and last salary. For purposes of this Section 9, the following definitions shall apply:assisting
Appears in 1 contract
Restrictive Covenants. (a) The Corporation and Executive agrees acknowledge and agree that restrictions on his activities during Executive's Duties are of a special and after his employment are necessary unusual character which have a unique value to protect the goodwillCorporation, Confidential Information and other legitimate interests the loss of the Company and its Subsidiaries, and that the agreed restrictions set forth below will which cannot deprive the Executive of the ability to earn a livelihood:
(A) While the Executive is be adequately compensated by damages in the employment of the Company an action at law and, if the Executive is entitled to benefits under Section 6.1 hereof upon termination of employment, for a period of twenty-four (24) months after such termination of employment (the "Non-Competition Period"), the Executive shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer or otherwise, compete used in competition with the Corporation, could cause serious harm to the Corporation. Further, Executive and the Corporation also recognize and agree that the Corporation and Executive will be actively engaged in the Corporation's Business within the Business Area. Further, Executive and the Corporation also recognize that an important part of Executive's Duties will be to develop good will for the Corporation through his personal contact with customers, agents and others having business relationships with the Corporation and that there is a danger that this goodwill, a proprietary asset of the Company or any of its Subsidiaries within a twenty (20) mile radius of any location where the Company operates a retail store at the date of termination of employmentCorporation, or at which the Company has entered into a letter of intent or similar commitment for or entered into obligations relating to the opening of a retail store to be opened within the period of this covenant. Specifically, but without limiting the foregoing, the may follow Executive agrees not to engage in any manner in any activity that is directly or indirectly competitive with the business of the Company or any of its Subsidiaries as conducted or which has been proposed by management within six months prior to termination of the Executive's employment. Restricted activity also includes without limitation accepting employment or a consulting position with any person who is, or at any time within twelve (12) months prior to termination of the Executive's employment has been, a licensee of the Company or any of its Subsidiaries. For the purposes of this Section 9, the business of the Company if and its Subsidiaries shall mean retail operations for the sale of natural and organic foods, including groceries, meat, seafood, dairy and frozen products and produce, as well as natural vitamins, supplements, homeopathic remedies and body care products.
(B) The Executive agrees that during the Non-Competition Period or in connection with any termination of employment pursuant to which the Executive is entitled to benefits under Section 6.1, the Executive will not, either directly or through any agent or employee, Solicit any employee of the Company or any of its Subsidiaries to terminate when his or her relationship with the Company or any Corporation is terminated. Accordingly, Executive covenants that, during the course of its Subsidiaries or to apply for or accept employment with any enterprise competitive with the business of the Company, or Solicit any customer, supplier, licensee or vendor of the Company or any of its Subsidiaries to terminate or materially modify its relationship with them, or, in the case of a customer, to conduct with any person any business or activity which such customer conducts or could conduct with the Company or any of its Subsidiaries.
(C) The Executive and the Company further agree that following any termination of the Executive's employment pursuant to which the Executive is entitled to benefits under Section 6.1this Agreement and for a period of six months thereafter, (i) the Executive shall not make statements not, within those areas in which Executive rendered services pursuant to this Agreement within two (2) years prior to the termination or representations, otherwise communicatecessation of Executive's employment with the Corporation, directly or indirectly:
(i) be engaged, on his own behalf or on behalf of others, in writing, orally, an executive capacity which involves duties and responsibilities identical or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging substantially similar to those of Executive under the Company or any if its Subsidiaries or affiliates or their respective former or current officers, directors, employees, advisors, businesses or reputations, terms and provisions of this Agreement or
(ii) solicit, divert or appropriate or attempt to solicit, divert or appropriate any oil and gas properties of the Company Corporation which were identified by Executive or under his supervision on behalf of the Corporation to or for any business which is engaged in the oil and gas business in a substantially similar manner and competing with the Corporation.
(b) Executive shall instruct its Board members and senior management to not make statements not, on his own behalf or representationson behalf of others, otherwise communicatesolicit, directlydivert or hire away, or indirectlyattempt to solicit, in writingdivert or hire away, orally any person employed by the Corporation, whether or not such employee is a full-time employee or a temporary employee of the Corporation and whether or not such employment is pursuant to a written agreement or is at will, at any time during the term of this Agreement and for a period of six months after Executive ceases to be employed by the Corporation for any reason whatsoever.
(c) Compliance with the restrictive covenants of this Agreement is a condition precedent to the Corporation's obligation to make any payments of any nature to Executive, whether under this Agreement or otherwise. Nothing in this Agreement shall be construed as prohibiting the Corporation from pursuing any other remedies available to it for a breach or threatened breach of Sections 8 and 9 of this Agreement.
(d) Executive agrees that the covenants and agreements contained in Sections 8 and 9 of this Agreement are of the essence of this Agreement and that each of such covenants is reasonable and necessary to protect and preserve the interests and business of the Corporation. Executive further agrees that each of such covenants is separate, distinct and severable, not only from the other of such covenants but also from the remaining provisions of this Agreement; that the unenforceability of any such covenant or take agreement shall not affect the validity or enforceability of any action which may, directly, other such covenant or indirectly, disparage agreements or be damaging to the Executive any other provision or his reputation. The Executive provisions of this Agreement; and the Company further agree that, in the event any court of competent jurisdiction determines, rules or holds that any such provision, covenant or agreement hereof is overly broad or against the Executive's employment with the Company is terminated other than by the Company for Cause or as a result public policy of the Executive's deathstate, the Executive then said court is specifically authorized to reform and the Company shall refer narrow said provision, covenant or agreement to the Executive's departure as a "resignation" in any press release or other external announcement or communication concerning the Executive's departure from the Company. Nothing in this paragraph is intended to undermine any obligations the Executive or the Company may have to comply with applicable law, or prohibit the Executive or the Company from providing truthful testimony or information pursuant to subpoena, court order, discovery demand or similar legal process, or truthfully responding to lawful inquiries by any governmental or regulatory entity.
(D) The provisions of this Section 9 shall not be deemed to preclude the Executive from employment or engagement during the Non-Competition Period following termination of employment hereunder (i) in a business engaged in retail sales, provided such employment or engagement does not otherwise violate the provisions of this Section 9, or (ii) by a corporation, some of the activities of which are competitive with the business of the Company, if the Executive's activities do not relate to such competitive business, and nothing contained in this Section 9 shall be deemed to prohibit the Executive, during the Non-Competition Period following termination of employment hereunder, from acquiring or holding, solely as an investment, publicly traded securities of any competitor corporation so long as such securities do not, in the aggregate, constitute more than 3% of the outstanding voting securities of such corporation.
(E) The Executive acknowledges that the Company and its Subsidiaries continually develop Confidential Information, that the Executive may develop Confidential Information for the Company or its Subsidiaries and that the Executive may learn of Confidential Information during the course of his employment under this Agreement. The Executive will comply with the policies and procedures of the Company and its Subsidiaries for protecting Confidential Information and shall never disclose to any person (except as required by applicable law or legal process or for the proper performance of his duties and responsibilities to the Company and its Subsidiaries, or in connection with any litigation between the Company and the Executive (provided that the Company shall be afforded a reasonable opportunity in each case to obtain a protective order)), or use for his own benefit or gain, any Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its Subsidiaries. The Executive understands that this restriction shall continue to apply after his employment terminates, regardless of the reason for such termination. All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the Company or its Subsidiaries and any copies, in whole or in part, thereof (the "Documents"), whether or not prepared by the Executive, shall be the sole and exclusive property of the Company and its Subsidiaries. The Executive shall safeguard all Documents and shall surrender to the Company at the time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive's possession or control.
(F) Without limiting the foregoing, it is understood that the Company shall not be obligated extent necessary to make any of the payments said reformed and narrowed provision, covenant or to provide for any of the benefits specified in Sections 6.1 agreement valid and 6.2 hereof, and shall be entitled to recoup the pro rata portion of any such payments and of the value of any such benefits previously provided to the Executive in the event of a material breach by the Executive of the provisions of this Section 9 (such pro ration to be determined as a fraction, the numerator of which is the number of days from such breach to the second anniversary of the date on which the Executive terminates employment and the denominator of which is 730), which breach continues without having been cured within 15 days after written notice to the Executive specifying the breach in reasonable detailenforceable.
(G) The Executive and the Company agree that in the event the Executive seeks a reference from the Company in connection with any future or prospective employment, the Company's response to any such reference inquiry shall be limited to and consistent with the following: start and end dates of employment, position(s) held and last salary. For purposes of this Section 9, the following definitions shall apply:
Appears in 1 contract
Sources: Executive Employment Agreement (Middle Bay Oil Co Inc)
Restrictive Covenants. The (a) Executive acknowledges and agrees that his position with the Company places him in a position of confidence and trust with respect to Proprietary Information. Executive consequently agrees that it is reasonable and necessary for the protection of the goodwill of the Business that Executive make the covenants contained herein. Accordingly, Executive agrees that, during the Term of this Agreement and for a period of twelve (12) months after the date of expiration or termination of Executive’s employment hereunder for any reason whatsoever, Executive will not, without the prior written consent of the Company and provided that the Company has not failed to make any payments to the Executive when due in accordance with the provisions of Section 6 hereof and otherwise comply with the terms and conditions of this Agreement, (i) employ, solicit or encourage to leave the employ of the Company, or to become employed by any person other than the Company, any employee of the Company, or any individual who was an employee of the Company during the one year prior to the termination or expiration of Executive’s employment, (ii) persuade or attempt to persuade any customer of the Company as of the date of the termination or expiration of Executive’s employment, or during the one year prior to the termination or expiration of Executive’s employment, to cease doing business with, or to reduce the amount of business it does with, the Company, or solicit the business of any of the Company’s customers as of the date of the termination or expiration of Executive’s employment, or during the one year prior to the termination or expiration of Executive’s employment hereunder with respect to any product or service which competes with the products and services of the Company as of the date of termination of Executive’s employment or (iii) compete with the Company as a consultant to, employee of, or equity participant in, any venture which competes with the Business within the United States of America. No provision of this Section 10 shall prohibit Executive from merely owning (i.e., having no participation or involvement in the management) no more than three percent (3%) of the outstanding equity securities of any actively traded public entity. Notwithstanding anything contained herein to the contrary, in the event that Executive’s employment is terminated by Executive for Good Reason or by the Company or any successor without Cause in connection with, or during the twenty-four (24) month period following, a Change of Control, the provisions of Sections 10 and 22 of this Agreement shall not apply to Executive.
(b) Executive has carefully considered the nature and extent of the restrictions on his activities during upon him and after his employment the rights and remedies conferred upon the Company under Sections 10 and 11 of this Agreement and hereby acknowledges and agrees that the same are necessary reasonable in time and territory, are designed to avoid competition which otherwise would be unfair to the Company, do not stifle the inherent skill and experience of Executive, would not operate as a bar to Executive’s sole means of support, are required to protect the goodwill, Confidential Information and other legitimate interests of the Company and its Subsidiaries, and that the agreed restrictions set forth below will do not deprive the Executive of the ability to earn confer a livelihood:
(A) While the Executive is in the employment of benefit upon the Company and, if the Executive is entitled to benefits under Section 6.1 hereof upon termination of employment, for a period of twenty-four (24) months after such termination of employment (the "Non-Competition Period"), the Executive shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer or otherwise, compete with the business of the Company or any of its Subsidiaries within a twenty (20) mile radius of any location where the Company operates a retail store at the date of termination of employment, or at which the Company has entered into a letter of intent or similar commitment for or entered into obligations relating disproportionate to the opening of a retail store to be opened within the period of this covenant. Specifically, but without limiting the foregoing, the benefit otherwise afforded Executive agrees not to engage in any manner in any activity that is directly or indirectly competitive with the business of the Company or any of its Subsidiaries as conducted or which has been proposed by management within six months prior to termination of the Executive's employment. Restricted activity also includes without limitation accepting employment or a consulting position with any person who is, or at any time within twelve (12) months prior to termination of the Executive's employment has been, a licensee of the Company or any of its Subsidiaries. For the purposes of this Section 9, the business of the Company and its Subsidiaries shall mean retail operations for the sale of natural and organic foods, including groceries, meat, seafood, dairy and frozen products and produce, as well as natural vitamins, supplements, homeopathic remedies and body care products.
(B) The Executive agrees that during the Non-Competition Period or in connection with any termination of employment pursuant to which the Executive is entitled to benefits under Section 6.1, the Executive will not, either directly or through any agent or employee, Solicit any employee of the Company or any of its Subsidiaries to terminate his or her relationship with the Company or any of its Subsidiaries or to apply for or accept employment with any enterprise competitive with the business of the Company, or Solicit any customer, supplier, licensee or vendor of the Company or any of its Subsidiaries to terminate or materially modify its relationship with them, or, in the case of a customer, to conduct with any person any business or activity which such customer conducts or could conduct with the Company or any of its Subsidiaries.
(C) The Executive and the Company further agree that following any termination of the Executive's employment pursuant to which the Executive is entitled to benefits under Section 6.1, (i) the Executive shall not make statements or representations, otherwise communicate, directly or indirectly, in writing, orally, or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Company or any if its Subsidiaries or affiliates or their respective former or current officers, directors, employees, advisors, businesses or reputations, (ii) the Company shall instruct its Board members and senior management to not make statements or representations, otherwise communicate, directly, or indirectly, in writing, orally or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Executive or his reputation. The Executive and the Company further agree that, in the event the Executive's employment with the Company is terminated other than by the Company for Cause or as a result of the Executive's death, the Executive and the Company shall refer to the Executive's departure as a "resignation" in any press release or other external announcement or communication concerning the Executive's departure from the Company. Nothing in this paragraph is intended to undermine any obligations the Executive or the Company may have to comply with applicable law, or prohibit the Executive or the Company from providing truthful testimony or information pursuant to subpoena, court order, discovery demand or similar legal process, or truthfully responding to lawful inquiries by any governmental or regulatory entity.
(D) The provisions of this Section 9 shall not be deemed to preclude the Executive from employment or engagement during the Non-Competition Period following termination of employment hereunder (i) in a business engaged in retail sales, provided such employment or engagement does not otherwise violate the provisions of this Section 9, or (ii) by a corporation, some of the activities of which are competitive with the business of the Company, if the Executive's activities do not relate to such competitive business, and nothing contained in this Section 9 shall be deemed to prohibit the Executive, during the Non-Competition Period following termination of employment hereunder, from acquiring or holding, solely as an investment, publicly traded securities of any competitor corporation so long as such securities do not, in the aggregate, constitute more than 3% of the outstanding voting securities of such corporation.
(E) The Executive acknowledges that the Company and its Subsidiaries continually develop Confidential Information, that the Executive may develop Confidential Information for the Company or its Subsidiaries and that the Executive may learn of Confidential Information during the course of his employment under this Agreement. The Executive will comply with the policies and procedures of the Company and its Subsidiaries for protecting Confidential Information and shall never disclose to any person (except as required by applicable law or legal process or for the proper performance of his duties and responsibilities to the Company and its Subsidiaries, or in connection with any litigation between the Company and the Executive (provided that the Company shall be afforded a reasonable opportunity in each case to obtain a protective order)), or use for his own benefit or gain, any Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its Subsidiaries. The Executive understands that this restriction shall continue to apply after his employment terminates, regardless of the reason for such termination. All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the Company or its Subsidiaries and any copies, in whole or in part, thereof (the "Documents"), whether or not prepared by the Executive, shall be the sole and exclusive property of the Company and its Subsidiaries. The Executive shall safeguard all Documents and shall surrender to the Company at the time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive's possession or control.
(F) Without limiting the foregoing, it is understood that the Company shall not be obligated to make any of the payments or to provide for any of the benefits specified in Sections 6.1 and 6.2 hereof, and shall be entitled to recoup the pro rata portion of any such payments and of the value of any such benefits previously provided to the Executive in the event of a material breach by the Executive of the provisions of this Section 9 (such pro ration to be determined as a fraction, the numerator of which is the number of days from such breach to the second anniversary of the date on which the Executive terminates employment and the denominator of which is 730), which breach continues without having been cured within 15 days after written notice to the Executive specifying the breach in reasonable detail.
(G) The Executive and the Company agree that in the event the Executive seeks a reference from the Company in connection with any future or prospective employment, the Company's response to any such reference inquiry shall be limited to and consistent with the following: start and end dates of employment, position(s) held and last salary. For purposes of this Section 9, the following definitions shall apply:
Appears in 1 contract
Restrictive Covenants. The (a) Executive acknowledges and agrees that his position with the Company places him in a position of confidence and trust with respect to Proprietary Information. Executive consequently agrees that it is reasonable and necessary for the protection of the goodwill of the Business that Executive make the covenants contained herein. Accordingly, Executive agrees that, during the Term of this Agreement and for a period of twelve (12) months after the date of expiration or termination of Executive’s employment hereunder for any reason whatsoever, Executive will not, without the prior written consent of the Company and provided that the Company has not failed to make any payments to the Executive when due in accordance with the provisions of Section 6 and otherwise comply with the terms and conditions of this Agreement, (i) employ, solicit or encourage to leave the employ of the Company, or to become employed by any person other than the Company, any employee of the Company, or any individual who was an employee of the Company during the one year prior to the termination or expiration of Executive’s employment, (ii) persuade or attempt to persuade any customer of the Company as of the date of the termination or expiration of Executive’s employment or during the one year prior to the termination or expiration of Executive’s employment to cease doing business with, or to reduce the amount of business it does with, the Company, or solicit the business of any of the Company’s customers as of the date of the termination or expiration during the one year prior to the termination or expiration of Executive’s employment hereunder with respect to any product or service which competes with the products and services of the Company as of the date of termination of Executive’s employment or (iii) compete with the Company as a consultant to, employee of, or equity participant in, any venture which competes with the Business within the United States of America. No provision of this Section 10 shall prohibit Executive from merely owning (i.e., having no participation or involvement in the management) no more than three percent (3%) of the outstanding equity securities of any actively traded public entity.
(b) Executive has carefully considered the nature and extent of the restrictions on his activities during upon him and after his employment the rights and remedies conferred upon the Company under Sections 10 and 11 of this Agreement and hereby acknowledges and agrees that the same are necessary reasonable in time and territory, are designed to avoid competition which otherwise would be unfair to the Company, do not stifle the inherent skill and experience of Executive, would not operate as a bar to Executive’s sole means of support, are required to protect the goodwill, Confidential Information and other legitimate interests of the Company and its Subsidiaries, and that the agreed restrictions set forth below will do not deprive the Executive of the ability to earn confer a livelihood:
(A) While the Executive is in the employment of benefit upon the Company and, if the Executive is entitled to benefits under Section 6.1 hereof upon termination of employment, for a period of twenty-four (24) months after such termination of employment (the "Non-Competition Period"), the Executive shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer or otherwise, compete with the business of the Company or any of its Subsidiaries within a twenty (20) mile radius of any location where the Company operates a retail store at the date of termination of employment, or at which the Company has entered into a letter of intent or similar commitment for or entered into obligations relating disproportionate to the opening of a retail store to be opened within the period of this covenant. Specifically, but without limiting the foregoing, the benefit otherwise afforded Executive agrees not to engage in any manner in any activity that is directly or indirectly competitive with the business of the Company or any of its Subsidiaries as conducted or which has been proposed by management within six months prior to termination of the Executive's employment. Restricted activity also includes without limitation accepting employment or a consulting position with any person who is, or at any time within twelve (12) months prior to termination of the Executive's employment has been, a licensee of the Company or any of its Subsidiaries. For the purposes of this Section 9, the business of the Company and its Subsidiaries shall mean retail operations for the sale of natural and organic foods, including groceries, meat, seafood, dairy and frozen products and produce, as well as natural vitamins, supplements, homeopathic remedies and body care products.
(B) The Executive agrees that during the Non-Competition Period or in connection with any termination of employment pursuant to which the Executive is entitled to benefits under Section 6.1, the Executive will not, either directly or through any agent or employee, Solicit any employee of the Company or any of its Subsidiaries to terminate his or her relationship with the Company or any of its Subsidiaries or to apply for or accept employment with any enterprise competitive with the business of the Company, or Solicit any customer, supplier, licensee or vendor of the Company or any of its Subsidiaries to terminate or materially modify its relationship with them, or, in the case of a customer, to conduct with any person any business or activity which such customer conducts or could conduct with the Company or any of its Subsidiaries.
(C) The Executive and the Company further agree that following any termination of the Executive's employment pursuant to which the Executive is entitled to benefits under Section 6.1, (i) the Executive shall not make statements or representations, otherwise communicate, directly or indirectly, in writing, orally, or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Company or any if its Subsidiaries or affiliates or their respective former or current officers, directors, employees, advisors, businesses or reputations, (ii) the Company shall instruct its Board members and senior management to not make statements or representations, otherwise communicate, directly, or indirectly, in writing, orally or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Executive or his reputation. The Executive and the Company further agree that, in the event the Executive's employment with the Company is terminated other than by the Company for Cause or as a result of the Executive's death, the Executive and the Company shall refer to the Executive's departure as a "resignation" in any press release or other external announcement or communication concerning the Executive's departure from the Company. Nothing in this paragraph is intended to undermine any obligations the Executive or the Company may have to comply with applicable law, or prohibit the Executive or the Company from providing truthful testimony or information pursuant to subpoena, court order, discovery demand or similar legal process, or truthfully responding to lawful inquiries by any governmental or regulatory entity.
(D) The provisions of this Section 9 shall not be deemed to preclude the Executive from employment or engagement during the Non-Competition Period following termination of employment hereunder (i) in a business engaged in retail sales, provided such employment or engagement does not otherwise violate the provisions of this Section 9, or (ii) by a corporation, some of the activities of which are competitive with the business of the Company, if the Executive's activities do not relate to such competitive business, and nothing contained in this Section 9 shall be deemed to prohibit the Executive, during the Non-Competition Period following termination of employment hereunder, from acquiring or holding, solely as an investment, publicly traded securities of any competitor corporation so long as such securities do not, in the aggregate, constitute more than 3% of the outstanding voting securities of such corporation.
(E) The Executive acknowledges that the Company and its Subsidiaries continually develop Confidential Information, that the Executive may develop Confidential Information for the Company or its Subsidiaries and that the Executive may learn of Confidential Information during the course of his employment under this Agreement. The Executive will comply with the policies and procedures of the Company and its Subsidiaries for protecting Confidential Information and shall never disclose to any person (except as required by applicable law or legal process or for the proper performance of his duties and responsibilities to the Company and its Subsidiaries, or in connection with any litigation between the Company and the Executive (provided that the Company shall be afforded a reasonable opportunity in each case to obtain a protective order)), or use for his own benefit or gain, any Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its Subsidiaries. The Executive understands that this restriction shall continue to apply after his employment terminates, regardless of the reason for such termination. All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the Company or its Subsidiaries and any copies, in whole or in part, thereof (the "Documents"), whether or not prepared by the Executive, shall be the sole and exclusive property of the Company and its Subsidiaries. The Executive shall safeguard all Documents and shall surrender to the Company at the time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive's possession or control.
(F) Without limiting the foregoing, it is understood that the Company shall not be obligated to make any of the payments or to provide for any of the benefits specified in Sections 6.1 and 6.2 hereof, and shall be entitled to recoup the pro rata portion of any such payments and of the value of any such benefits previously provided to the Executive in the event of a material breach by the Executive of the provisions of this Section 9 (such pro ration to be determined as a fraction, the numerator of which is the number of days from such breach to the second anniversary of the date on which the Executive terminates employment and the denominator of which is 730), which breach continues without having been cured within 15 days after written notice to the Executive specifying the breach in reasonable detail.
(G) The Executive and the Company agree that in the event the Executive seeks a reference from the Company in connection with any future or prospective employment, the Company's response to any such reference inquiry shall be limited to and consistent with the following: start and end dates of employment, position(s) held and last salary. For purposes of this Section 9, the following definitions shall apply:
Appears in 1 contract
Restrictive Covenants. The Executive agrees that restrictions on his activities during and after his employment are necessary to protect the goodwill, Confidential Information and other legitimate interests of the Company and its Subsidiaries, and that the agreed restrictions set forth below will not deprive the Executive of the ability to earn a livelihood:
(Aa) While the Executive is in the employment of the Company and, if the Executive is entitled to benefits under Section 6.1 hereof upon termination of employment, for For a period of twenty-four two (242) months after such termination of employment (years from the "Non-Competition Period")Closing Date, the Executive shall notneither Seller nor Seller Parent shall, directly or indirectly, whether as ownerfor Seller or Seller Parent or on behalf of or in conjunction with any other Person, partneremploy or solicit the employment of any New Employee; provided, investorhowever, consultant, agent, employee, cothat the foregoing shall not apply (i) to responses to or follow-venturer up hiring in respect of general solicitations or otherwise, compete advertisements for job positions not specifically directed to New Employees or (ii) to any New Employee who is terminated by Buyer after the Closing Date or terminates his or her employment with the business of the Company Buyer without any solicitation directly or indirectly from Seller or any of Seller’s Affiliates.
(b) Without limiting Section 10.10, following the Closing Date, neither Seller, Seller Parent nor any of their respective Affiliates shall (i) use any Confidential Information in direct or indirect competition with the Business, or (ii) disclose, provide or otherwise make directly available to any sales employee or sales representative of Seller, Seller Parent or any of their respective Affiliates any Confidential Information that was not previously disclosed, provided or otherwise made available to such sales employee or sales representative by Seller, Seller Parent or any of their respective Affiliates
(c) The Parties agree that the foregoing covenants in this Section 8.12 impose a reasonable restraint on Seller in light of the activities and operations of the Business and Buyer and its Subsidiaries within a twenty (20) mile radius of any location where the Company operates a retail store at Affiliates on the date of termination of employment, or at which the Company has entered into a letter of intent or similar commitment for or entered into obligations relating to the opening of a retail store to be opened within the period execution of this covenant. Specifically, but without limiting the foregoing, the Executive agrees not to engage in any manner in any activity that is directly or indirectly competitive with the business of the Company or any of its Subsidiaries as conducted or which has been proposed by management within six months prior to termination of the Executive's employment. Restricted activity also includes without limitation accepting employment or a consulting position with any person who is, or at any time within twelve (12) months prior to termination of the Executive's employment has been, a licensee of the Company or any of its Subsidiaries. For the purposes of this Section 9, the business of the Company and its Subsidiaries shall mean retail operations for the sale of natural and organic foods, including groceries, meat, seafood, dairy and frozen products and produce, as well as natural vitamins, supplements, homeopathic remedies and body care productsAgreement.
(Bd) The Executive agrees that during the Non-Competition Period or in connection with any termination of employment pursuant to which the Executive is entitled to benefits under Section 6.1, the Executive will not, either directly or through any agent or employee, Solicit any employee of the Company or any of its Subsidiaries to terminate his or her relationship with the Company or any of its Subsidiaries or to apply for or accept employment with any enterprise competitive with the business of the Company, or Solicit any customer, supplier, licensee or vendor of the Company or any of its Subsidiaries to terminate or materially modify its relationship with them, or, in the case of a customer, to conduct with any person any business or activity which such customer conducts or could conduct with the Company or any of its Subsidiaries.
(C) The Executive Seller and the Company further Seller Parent acknowledge and agree that following any termination of the Executive's employment pursuant to which the Executive is entitled to benefits under Section 6.1, (i) the Executive shall provisions of Sections 8.10 and 8.12 are reasonable and necessary to protect the legitimate business interests of Buyer, (ii) any breach by Seller or Seller Parent of any of its covenants contained in any of Sections 8.10 and 8.12 would result in irreparable injury to Buyer, the exact amount of which may be difficult, if not make statements impossible, to ascertain or representationsestimate, otherwise communicateand (iii) the remedies at law for any such breach may not be reasonable or adequate compensation to Buyer for such breach. Accordingly, notwithstanding any other provision of this Agreement, if Seller or Seller Parent, directly or indirectly, in writing, orally, or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Company or any if its Subsidiaries or affiliates or their respective former or current officers, directors, employees, advisors, businesses or reputations, (ii) the Company shall instruct its Board members and senior management to not make statements or representations, otherwise communicate, directly, or indirectly, in writing, orally or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Executive or his reputation. The Executive and the Company further agree that, in the event the Executive's employment with the Company is terminated other than by the Company for Cause or as a result of the Executive's death, the Executive and the Company shall refer to the Executive's departure as a "resignation" in any press release or other external announcement or communication concerning the Executive's departure from the Company. Nothing in this paragraph is intended to undermine any obligations the Executive or the Company may have to comply with applicable law, or prohibit the Executive or the Company from providing truthful testimony or information pursuant to subpoena, court order, discovery demand or similar legal process, or truthfully responding to lawful inquiries by any governmental or regulatory entity.
(D) The provisions of this Section 9 shall not be deemed to preclude the Executive from employment or engagement during the Non-Competition Period following termination of employment hereunder (i) in a business engaged in retail sales, provided such employment or engagement does not otherwise violate the provisions of this Section 9, or (ii) by a corporation, some of the activities of which are competitive with the business of the Company, if the Executive's activities do not relate to such competitive business, and nothing contained in this Section 9 shall be deemed to prohibit the Executive, during the Non-Competition Period following termination of employment hereunder, from acquiring or holding, solely as an investment, publicly traded securities of any competitor corporation so long as such securities do not, in the aggregate, constitute more than 3% of the outstanding voting securities of such corporation.
(E) The Executive acknowledges that the Company and its Subsidiaries continually develop Confidential Information, that the Executive may develop Confidential Information for the Company or its Subsidiaries and that the Executive may learn of Confidential Information during the course of his employment under this Agreement. The Executive will comply with the policies and procedures of the Company and its Subsidiaries for protecting Confidential Information and shall never disclose to any person (except as required by applicable law or legal process or for the proper performance of his duties and responsibilities to the Company and its Subsidiaries, or in connection with any litigation between the Company and the Executive (provided that the Company shall be afforded a reasonable opportunity in each case to obtain a protective order)), or use for his own benefit or gain, any Confidential Information obtained by the Executive incident to his employment or other association with the Company or breaches any of its Subsidiaries. The Executive understands that this restriction shall continue to apply after his employment terminatescovenants or obligations under any of Sections 8.10 or 8.12, regardless of the reason for such termination. All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the Company or its Subsidiaries and any copiesthen, in whole addition to any other remedy which may be available to Buyer at law or in partequity, thereof (the "Documents"), whether or not prepared by the Executive, shall be the sole and exclusive property of the Company and its Subsidiaries. The Executive shall safeguard all Documents and shall surrender to the Company at the time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive's possession or control.
(F) Without limiting the foregoing, it is understood that the Company shall not be obligated to make any of the payments or to provide for any of the benefits specified in Sections 6.1 and 6.2 hereof, and Buyer shall be entitled to recoup seek injunctive relief against the pro rata portion breaching Party, without posting bond or other security, and without the necessity of any such payments and of the value of any such benefits previously provided to the Executive in the event of a material breach by the Executive of the provisions of this Section 9 (such pro ration to be determined as a fraction, the numerator of which is the number of days from such breach to the second anniversary of the date on which the Executive terminates employment and the denominator of which is 730), which breach continues without having been cured within 15 days after written notice to the Executive specifying the breach in reasonable detailproving actual or threatened damage or harm.
(G) The Executive and the Company agree that in the event the Executive seeks a reference from the Company in connection with any future or prospective employment, the Company's response to any such reference inquiry shall be limited to and consistent with the following: start and end dates of employment, position(s) held and last salary. For purposes of this Section 9, the following definitions shall apply:
Appears in 1 contract
Sources: Asset Purchase Agreement (Lawson Products Inc/New/De/)
Restrictive Covenants. The Executive agrees To assure that restrictions on his activities during Buyer and after his employment are necessary to protect the goodwill, Confidential Information and other legitimate interests Acquired Entities will realize the benefits of the Company Transactions, Seller hereby agrees with Buyer and its Subsidiaries, and that the agreed restrictions set forth below will each Acquired Entity not deprive the Executive of the ability to earn a livelihoodto:
(Aa) While From the Executive is in Completion Date until three years after the employment of the Company and, if the Executive is entitled to benefits under Section 6.1 hereof upon termination of employment, for a period of twenty-four (24) months after such termination of employment (the "Non-Competition Period"), the Executive shall notCompletion Date, directly or indirectly, whether alone or as owner, a partner, investorjoint venturer, officer, director, member, employee, consultant, agent, employeeindependent contractor or Equity Interest holder of, co-venturer or otherwiselender to, compete with any Person or business, engage in the business Relevant Business anywhere in the European Union.
(b) From the Completion Date until three years after the Completion Date, directly or indirectly (A) induce any Person that is a customer of the Company Buyer, any Acquired Entity, or any of its Subsidiaries within a twenty (20) mile radius of their Affiliates to enter into any location where the Company operates a retail store at the date of termination of employment, Contract with or at which the Company has entered into a letter of intent or similar commitment for or entered into obligations relating to the opening of a retail store to be opened within the period of this covenant. Specifically, but without limiting the foregoing, the Executive agrees not to engage in otherwise patronize any manner in any activity that is business directly or indirectly competitive in competition with the business of the Company Relevant Business conducted by Buyer, any Acquired Entity, or any of its Subsidiaries as conducted or which has been proposed by management within six months prior to termination of the Executive's employment. Restricted activity also includes without limitation accepting employment or a consulting position with any person who istheir Affiliates; (B) canvass, solicit, or at accept from any time within twelve (12) months prior to termination Person who is a customer of the Executive's employment has beenBuyer, a licensee of the Company any Acquired Entity, or any of its Subsidiaries. For the purposes their Affiliates, any such Relevant Business; or (C) request or advise any Person who is a customer, vendor, or lessor of this Section 9Buyer, the any Acquired Entity or any of their Affiliates, to withdraw, curtail, or cancel any such customer's, vendor's, or lessor's business of the Company and its Subsidiaries shall mean retail operations for the sale of natural and organic foods, including groceries, meat, seafood, dairy and frozen products and produce, as well as natural vitamins, supplements, homeopathic remedies and body care productswith such Person.
(Bc) The Executive agrees that during From the Non-Competition Period or in connection with any termination of employment pursuant to which Completion Date until three years after the Executive is entitled to benefits under Section 6.1, the Executive will not, either directly or through any agent or employee, Solicit any employee of the Company or any of its Subsidiaries to terminate his or her relationship with the Company or any of its Subsidiaries or to apply for or accept employment with any enterprise competitive with the business of the Company, or Solicit any customer, supplier, licensee or vendor of the Company or any of its Subsidiaries to terminate or materially modify its relationship with them, or, in the case of a customer, to conduct with any person any business or activity which such customer conducts or could conduct with the Company or any of its Subsidiaries.
(C) The Executive and the Company further agree that following any termination of the Executive's employment pursuant to which the Executive is entitled to benefits under Section 6.1, (i) the Executive shall not make statements or representations, otherwise communicateCompletion Date, directly or indirectly, in writingsolicit for employment or other similar relationship with Seller, orallyits Affiliates or anyone else, any employee or independent contractor of Buyer, any Acquired Entity, or otherwiseany of their Affiliates, or take any action which mayperson who was an employee or independent contractor of Buyer, directlyany Acquired Entity, or indirectlyany of their Affiliates, disparage or be damaging within the six-month period immediately preceding such solicitation of employment; except that this prohibition shall not apply to any employees who have officially retired from their employment prior to any solicitation. Seller agrees and acknowledges that the Company or any if its Subsidiaries or affiliates or their respective former or current officers, directors, employees, advisors, businesses or reputations, (ii) the Company shall instruct its Board members restrictions in this Section 4.5 are reasonable in scope and senior management duration and are necessary to not make statements or representations, otherwise communicate, directly, or indirectly, in writing, orally or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Executive or his reputation. The Executive protect Buyer and the Company further agree that, in Acquired Entities after the event the Executive's employment with the Company is terminated other than by the Company for Cause or as a result of the Executive's death, the Executive and the Company shall refer to the Executive's departure as a "resignation" in Completion. If any press release or other external announcement or communication concerning the Executive's departure from the Company. Nothing in this paragraph is intended to undermine any obligations the Executive or the Company may have to comply with applicable law, or prohibit the Executive or the Company from providing truthful testimony or information pursuant to subpoena, court order, discovery demand or similar legal process, or truthfully responding to lawful inquiries by any governmental or regulatory entity.
(D) The provisions provision of this Section 9 shall 4.5, as applied to any Party or to any circumstance, is adjudged by a Governmental Body, arbitrator, or mediator not to be deemed enforceable in accordance with its terms, the same will in no way affect any other circumstance or the enforceability of the remainder of this Agreement. If any such provision, or any part thereof, is held not to preclude be enforceable in accordance with its terms because of the Executive from employment duration of such provision, the area covered thereby, or engagement during the Non-Competition Period following termination scope of employment hereunder (i) the activities covered, the Parties agree that the Governmental Body, arbitrator, or mediator making such determination will have the power to reduce the duration, area, and/or scope of activities of such provision, and/or to delete specific words or phrases, and in a business engaged its reduced form, such provision will then be enforceable in retail salesaccordance with its terms and will be enforced. The Parties agree and acknowledge that the breach of this Section 4.5 will cause irreparable Damage to Buyer and the Acquired Entities and upon breach of any provision of this Section 4.5, provided such employment or engagement does not otherwise violate Buyer and/or any Acquired Entity will be entitled, without prejudice to the provisions of this Section 95.4, to injunctive relief, specific performance, or (ii) by a corporationother equitable relief without bond or other security; provided, some of the activities of which are competitive with the business of the Company, if the Executive's activities do not relate to such competitive business, and nothing contained in this Section 9 shall be deemed to prohibit the Executive, during the Non-Competition Period following termination of employment hereunder, from acquiring or holding, solely as an investment, publicly traded securities of any competitor corporation so long as such securities do not, in the aggregate, constitute more than 3% of the outstanding voting securities of such corporation.
(E) The Executive acknowledges that the Company and its Subsidiaries continually develop Confidential Informationhowever, that the Executive foregoing remedies will in no way limit any other remedies which Buyer and/or any Acquired Entity may develop Confidential Information for the Company or its Subsidiaries and that the Executive may learn of Confidential Information during the course of his employment under this Agreementhave. The Executive will comply with the policies and procedures of the Company and its Subsidiaries for protecting Confidential Information and shall never disclose In addition to all such rights, if Seller should breach any person (except as required by applicable law or legal process or for the proper performance of his duties and responsibilities to the Company and its Subsidiaries, or in connection with any litigation between the Company and the Executive (provided that the Company shall be afforded a reasonable opportunity in each case to obtain a protective order)), or use for his own benefit or gain, any Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its Subsidiaries. The Executive understands that this restriction shall continue to apply after his employment terminates, regardless of the reason for such termination. All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the Company or its Subsidiaries and any copies, in whole or in part, thereof (the "Documents"), whether or not prepared by the Executive, shall be the sole and exclusive property of the Company and its Subsidiaries. The Executive shall safeguard all Documents and shall surrender to the Company at the time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive's possession or control.
(F) Without limiting the foregoing, it is understood that the Company shall not be obligated to make any of the payments or to provide for any of the benefits specified in Sections 6.1 and 6.2 hereof, and shall be entitled to recoup the pro rata portion of any such payments and of the value of any such benefits previously provided to the Executive in the event of a material breach by the Executive of the provisions of this Section 9 (4.5, Seller shall pay Buyer the sum of Euros 10,000 for each day that any such pro ration to be determined as a fraction, the numerator of which is the number of days from such breach to the second anniversary of the date on which the Executive terminates employment and the denominator of which is 730), which breach continues without having been cured within 15 days after written notice to the Executive specifying the breach in reasonable detailbeing cured.
(G) The Executive and the Company agree that in the event the Executive seeks a reference from the Company in connection with any future or prospective employment, the Company's response to any such reference inquiry shall be limited to and consistent with the following: start and end dates of employment, position(s) held and last salary. For purposes of this Section 9, the following definitions shall apply:
Appears in 1 contract
Sources: Share Transfer Agreement (Prime Medical Services Inc /Tx/)
Restrictive Covenants. The (a) Executive hereby acknowledges and recognizes that during the term of employment by the Corporation, Executive will be privy to trade secrets and confidential proprietary information critical to the Corporation's business and Executive further acknowledges and recognizes that the Corporation would find it extremely difficult or impossible to replace Executive and accordingly Executive agrees that restrictions on his activities during and after his employment are necessary to protect the goodwillthat, Confidential Information and other legitimate interests in consideration of the Company premises contained herein and, the consideration to be received by the Executive hereunder, Executive will not, from the date hereof through the end of the Term of this Agreement and its Subsidiariesfor a one year period thereafter, and (i) directly or indirectly engage in, represent in any way, or be connected with, any business or activity (such business or activity being hereinafter called a "Competing Business"), in competition with the Corporation or any Subsidiary in any location throughout the world, at the time of Executive's termination of employment with the Corporation, whether such engagement shall be as an officer, director, owner, employee, partner, affiliate or other participant in any Competing Business, (ii) assist others in engaging in any Competing Business in the manner described in the foregoing clause (i) of this Paragraph 8(a) or (iii) induce other employees of any of the Companies to terminate such employee's employment with any of the Companies, or engage in any Competing Business. In the event that termination of Executive is without cause under Paragraph 6(b), then the restrictions specified above shall be applicable for the period of time Executive continues to receive compensation from the Corporation pursuant to this Agreement, but in no event for less than six months from the date of such termination without cause.
(b) Executive understands that the agreed restrictions set forth below will not deprive the Executive of the contained in Paragraph 8(a) may limit Executive's ability to earn a livelihoodlivelihood in a business similar to the businesses of any of the Companies, but Executive nevertheless believes that Executive will receive sufficient consideration hereunder and as an employee of the Corporation and as otherwise provided hereunder clearly to justify such restrictions which, in any event (given Executive's education, skills and ability), Executive does not believe would prevent Executive from earning a living.
(c) Executive represents and warrants that:
(i) Executive is familiar with the covenants not to compete as set forth in Paragraph 8(a) of this Agreement; (ii) Executive has had the opportunity to discuss the provisions of the covenants as set forth this Section 8 with Executive's personal attorney and has concluded that such provisions (including, without limitation, the right of equitable relief and the length of time provided for herein) are fair, reasonable and just under the circumstances; (iii) Executive is fully aware of the obligations, limitations and liabilities included in the covenants as set forth in Paragraph 8(a) of this Agreement; (iv) the scope of activities covered as set forth in Paragraph 8(a) of this Agreement is substantially similar to those activities to be performed by Executive pursuant to this Agreement; (v) the duration of covenants as set forth in Paragraph 8(a) of this Agreement have been agreed upon as a reasonable restriction, giving consideration to the following factors: (A) While Executive and the Executive is Corporation reasonably anticipate that this Agreement, although terminable in the employment of the Company and, if the Executive is entitled to benefits under accordance with Section 6.1 hereof upon termination of employment, for a period of twenty-four (24) months after such termination of employment (the "Non-Competition Period"), the Executive shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer 6 or otherwise, compete may continue in effect for sufficient duration to allow Executive to attain superior bargaining strength and an ability for unfair competition with respect to the business customers of the Company or any of its Subsidiaries within a twenty (20) mile radius of any location where the Company operates a retail store at the date of termination of employment, or at which the Company has entered into a letter of intent or similar commitment for or entered into obligations relating to the opening of a retail store to be opened within the period of this covenant. Specifically, but without limiting the foregoing, the Executive agrees not to engage in any manner in any activity that is directly or indirectly competitive with the business of the Company or any of its Subsidiaries as conducted or which has been proposed by management within six months prior to termination of the Executive's employment. Restricted activity also includes without limitation accepting employment or a consulting position with any person who is, or at any time within twelve (12) months prior to termination of the Executive's employment has been, a licensee of the Company or any of its Subsidiaries. For the purposes of this Section 9, the business of the Company Companies and its Subsidiaries shall mean retail operations for the sale of natural and organic foods, including groceries, meat, seafood, dairy and frozen products and produce, as well as natural vitamins, supplements, homeopathic remedies and body care products.
(B) The Executive agrees that during the Non-Competition Period or in connection with any termination of employment pursuant to which the Executive is entitled to benefits under Section 6.1, the Executive will not, either directly or through any agent or employee, Solicit any employee duration of the Company or any covenants as set forth in Paragraph 8(a) of its Subsidiaries this Agreement is a reasonably necessary period to terminate his or her relationship allow the Companies to restore the Companies' position of equivalent bargaining strength and fair competition with the Company or any of its Subsidiaries or respect to apply for or accept employment with any enterprise competitive with the business of the Company, or Solicit any customer, supplier, licensee or vendor of the Company or any of its Subsidiaries to terminate or materially modify its relationship with them, or, in the case of a customer, to conduct with any person any business or activity which such customer conducts or could conduct with the Company or any of its Subsidiaries.
customers; (C) The Executive and the Company further agree that following any termination of the Executive's employment pursuant to which the Executive is entitled to benefits under Section 6.1, (ivi) the Executive shall not make statements or geographical territory covered hereby has been agreed upon as a reasonable geographical restriction; and (vii) the Corporation is relying upon the representations, otherwise communicate, directly or indirectly, in writing, orally, or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Company or any if its Subsidiaries or affiliates or their respective former or current officers, directors, employees, advisors, businesses or reputations, (ii) the Company shall instruct its Board members warranties and senior management to not make statements or representations, otherwise communicate, directly, or indirectly, in writing, orally or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the covenants of Executive or his reputation. The Executive and the Company further agree that, in the event the Executive's employment with the Company is terminated other than by the Company for Cause or as a result of the Executive's death, the Executive and the Company shall refer to the Executive's departure as a "resignation" in any press release or other external announcement or communication concerning the Executive's departure from the Company. Nothing in this paragraph is intended to undermine any obligations the Executive or the Company may have to comply with applicable law, or prohibit the Executive or the Company from providing truthful testimony or information pursuant to subpoena, court order, discovery demand or similar legal process, or truthfully responding to lawful inquiries by any governmental or regulatory entity.
(D) The provisions of this Section 9 shall not be deemed to preclude the Executive from employment or engagement during the Non-Competition Period following termination of employment hereunder (i) in a business engaged in retail sales, provided such employment or engagement does not otherwise violate the provisions of this Section 9, or (ii) by a corporation, some of the activities of which are competitive with the business of the Company, if the Executive's activities do not relate to such competitive business, and nothing contained in this Section 9 shall be deemed to prohibit 8 in entering into this Agreement and, without such representations, warranties and covenants, the Executive, during the Non-Competition Period following termination of employment hereunder, from acquiring or holding, solely as an investment, publicly traded securities of any competitor corporation so long as such securities do not, in the aggregate, constitute more than 3% of the outstanding voting securities of such corporation.
(E) The Executive acknowledges that the Company and its Subsidiaries continually develop Confidential Information, that the Executive may develop Confidential Information for the Company or its Subsidiaries and that the Executive may learn of Confidential Information during the course of his employment under Corporation would not enter into this Agreement. The Executive will comply with the policies and procedures of the Company and its Subsidiaries for protecting Confidential Information and shall never disclose to any person (except as required by applicable law or legal process or for the proper performance of his duties and responsibilities to the Company and its Subsidiaries, or in connection with any litigation between the Company and the Executive (provided that the Company shall be afforded a reasonable opportunity in each case to obtain a protective order)), or use for his own benefit or gain, any Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its Subsidiaries. The Executive understands that this restriction shall continue to apply after his employment terminates, regardless of the reason for such termination. All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the Company or its Subsidiaries and any copies, in whole or in part, thereof (the "Documents"), whether or not prepared by the Executive, shall be the sole and exclusive property of the Company and its Subsidiaries. The Executive shall safeguard all Documents and shall surrender to the Company at the time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive's possession or control.
(F) Without limiting the foregoing, it is understood that the Company shall not be obligated to make any of the payments or to provide for any of the benefits specified in Sections 6.1 and 6.2 hereof, and shall be entitled to recoup the pro rata portion of any such payments and of the value of any such benefits previously provided to the Executive in the event of a material breach by the Executive of the provisions of this Section 9 (such pro ration to be determined as a fraction, the numerator of which is the number of days from such breach to the second anniversary of the date on which the Executive terminates employment and the denominator of which is 730), which breach continues without having been cured within 15 days after written notice to the Executive specifying the breach in reasonable detail.
(G) The Executive and the Company agree that in the event the Executive seeks a reference from the Company in connection with any future or prospective employment, the Company's response to any such reference inquiry shall be limited to and consistent with the following: start and end dates of employment, position(s) held and last salary. For purposes of this Section 9, the following definitions shall apply:
Appears in 1 contract
Sources: Executive Employment Agreement (Alcohol Sensors International LTD)
Restrictive Covenants. The Executive agrees that restrictions on his activities during and after his employment are necessary to protect the goodwill, Confidential Information and other legitimate interests of the Company and its Subsidiaries, and that the agreed restrictions set forth below will not deprive the Executive of the ability to earn a livelihood:
(A) While Executive acknowledges that (1) Employer has separately bargained and paid additional consideration for the restrictive covenants herein; and (2) Employer will provide certain benefits to Executive is hereunder in the employment reliance on such covenants in view of the Company and, if the Executive is entitled to benefits under Section 6.1 hereof upon termination of employment, for a period of twenty-four (24) months after such termination of employment (the "Non-Competition Period"), the Executive shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer or otherwise, compete with the business unique and essential nature of the Company or any services Executive will perform on behalf of its Subsidiaries within a twenty (20) mile radius of any location where Employer and the Company operates a retail store at the date of termination of employment, or at which the Company has entered into a letter of intent or similar commitment for or entered into obligations relating to the opening of a retail store to be opened within the period of this covenant. Specifically, but without limiting the foregoing, the irreparable injury that would befall Employer should Executive agrees not to engage in any manner in any activity that is directly or indirectly competitive with the business of the Company or any of its Subsidiaries as conducted or which has been proposed by management within six months prior to termination of the Executive's employment. Restricted activity also includes without limitation accepting employment or a consulting position with any person who is, or at any time within twelve (12) months prior to termination of the Executive's employment has been, a licensee of the Company or any of its Subsidiaries. For the purposes of this Section 9, the business of the Company and its Subsidiaries shall mean retail operations for the sale of natural and organic foods, including groceries, meat, seafood, dairy and frozen products and produce, as well as natural vitamins, supplements, homeopathic remedies and body care productsbreach such covenants.
(B) The Executive agrees further acknowledges that during the Non-Competition Period or in connection with any termination of employment pursuant to which the Executive is entitled to benefits under Section 6.1, the Executive will not, either directly or through any agent or employee, Solicit any employee of the Company or any of its Subsidiaries to terminate his or her relationship with the Company or any of its Subsidiaries or to apply for or accept employment with any enterprise competitive with the business of the Company, or Solicit any customer, supplier, licensee or vendor of the Company or any of its Subsidiaries to terminate or materially modify its relationship with them, or, in the case services are of a customerspecial, unique and extraordinary character and that his position with Employer will place him in a position of confidence and trust with employees of Employer and its subsidiaries and affiliates and with Employer’s other constituencies and will allow him access to conduct with any person any business or activity which such customer conducts or could conduct with the Company or any of trade secrets and confidential information concerning Employer and its Subsidiariessubsidiaries and affiliates.
(C) The Executive further acknowledges that the type and the Company further agree that following any termination periods of the Executive's employment pursuant to which the Executive is entitled to benefits under Section 6.1, (i) the Executive shall not make statements or representations, otherwise communicate, directly or indirectly, in writing, orally, or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Company or any if its Subsidiaries or affiliates or their respective former or current officers, directors, employees, advisors, businesses or reputations, (ii) the Company shall instruct its Board members and senior management to not make statements or representations, otherwise communicate, directly, or indirectly, in writing, orally or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Executive or his reputation. The Executive and the Company further agree that, in the event the Executive's employment with the Company is terminated other than restrictions imposed by the Company for Cause or as a result of the Executive's death, the Executive and the Company shall refer to the Executive's departure as a "resignation" in any press release or other external announcement or communication concerning the Executive's departure from the Company. Nothing covenants in this paragraph is intended to undermine any obligations the Section 10 are fair and reasonable and that such restrictions will not prevent Executive or the Company may have to comply with applicable law, or prohibit the Executive or the Company from providing truthful testimony or information pursuant to subpoena, court order, discovery demand or similar legal process, or truthfully responding to lawful inquiries by any governmental or regulatory entityearning a livelihood.
(D) The provisions Having acknowledged the foregoing, Executive covenants and agrees with Employer as follows:
(1) For a period of this Section 9 two (2) years after the termination of Executive’s employment by Employer for any reason or for no reason, Executive shall not be deemed divulge or furnish any confidential information of Employer acquired by him while employed by Employer to preclude any person, firm or corporation, other than to Employer or upon its written request, or use any such confidential information (which shall at all times remain the Executive from employment property of Employer) directly or engagement during indirectly for Executive’ own benefit or for the Non-Competition Period following termination benefit of employment hereunder any person, firm or corporation other than Employer. For purposes hereof, the term “confidential information” means data and information relating to the Banking Business (ias hereinafter defined) in a business engaged in retail sales, provided such employment or engagement (which does not otherwise violate rise to the provisions status of this a Trade Secret, as such term is defined in Section 910-1-761 of the Official Code of Georgia Annotated) which is or has been disclosed to Executive or of which Executive became aware as a consequence of or through Executive’s relationship to Employer and which has value to Employer and is not generally known to its competitors. Without limiting the foregoing, “confidential information” shall include: (a) all items of information that could be classified as a Trade Secret pursuant to Georgia law; (b) the names, addresses and banking requirements of the customers of Employer or its subsidiaries and the nature and amount of business done with such customers; (c) the names and addresses of employees and other business contacts of Employer or its subsidiaries; (d) the particular names, methods and procedures utilized by Employer or its subsidiaries in the conduct and advertising of their business; (e) application, operating system, communication and other computer software and derivatives thereof, including, without limitation, sources and object codes, flow charts, coding sheets, routines, subrouting and related documentation and manuals of Employer or its subsidiaries; and (f) marketing techniques, purchasing information, pricing policies, loan policies, quoting procedures, financial information, customer data and other materials or information relating to Employer’s or its subsidiaries’ manner of doing business. Confidential information shall not include any data or information that has been voluntarily disclosed to the public by Employer (except where such public disclosure has been made by Executive without authorization) or that has been independently developed and disclosed by others, or (ii) by a corporation, some of that otherwise enters the activities of which are competitive with the business of the Company, if the Executive's activities do not relate to such competitive business, and nothing contained in this Section 9 shall be deemed to prohibit the Executive, during the Non-Competition Period following termination of employment hereunder, from acquiring or holding, solely as an investment, publicly traded securities of any competitor corporation so long as such securities do not, in the aggregate, constitute more than 3% of the outstanding voting securities of such corporationpublic domain through lawful means.
(E2) The Executive acknowledges hereby agrees that the Company and its Subsidiaries continually develop Confidential Information, that the Executive may develop Confidential Information for the Company he will not directly or its Subsidiaries and that the Executive may learn of Confidential Information during the course of his employment under this Agreement. The Executive will comply with the policies and procedures of the Company and its Subsidiaries for protecting Confidential Information and shall never indirectly disclose to any person (except as required by applicable law or legal process or for the proper performance of his duties and responsibilities to the Company and its Subsidiaries, or in connection with any litigation between the Company and the Executive (provided that the Company shall be afforded a reasonable opportunity in each case to obtain a protective order))anyone, or use or otherwise exploit for his own benefit or gain, for the benefit of anyone other than Employer and its subsidiaries any Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its Subsidiaries. The Executive understands that this restriction shall continue to apply after his employment terminates, regardless trade secrets (as defined in §10-1-761 of the reason Official Code of Georgia Annotated and applicable code sections for such termination. All documents, records, tapes and other media any states where Employer has business locations) of every kind and description relating to the business, present or otherwise, of the Company or its Subsidiaries and any copies, in whole or in part, thereof (the "Documents"), whether or not prepared by the Executive, shall be the sole and exclusive property of the Company and its Subsidiaries. The Executive shall safeguard all Documents and shall surrender to the Company at the time his employment terminates, or at such earlier time or times Employer for as the Board or its designee may specify, all Documents then in the Executive's possession or controllong as they remain trade secrets.
(F3) Without limiting the foregoing, it While Executive is understood that the Company shall not be obligated employed by Employer and for a period of one (1) year after termination of Executive’s employment pursuant to make any of the payments or to provide for any of the benefits specified in Sections 6.1 and 6.2 hereof, and shall be entitled to recoup the pro rata portion of any such payments and of the value of any such benefits previously provided to the Executive in the event of a material breach by the Executive of the provisions of this Section 9 (such pro ration to be determined as a fraction, the numerator of which is the number of days from such breach to the second anniversary of the date on which the Executive terminates employment and the denominator of which is 730Subsection 8(A), which breach continues without having been cured within 15 days after written notice to the Executive specifying the breach in reasonable detail.
(G) The Executive and the Company agree that in the event the Executive seeks a reference from the Company in connection with any future or prospective employment, the Company's response to any such reference inquiry shall be limited to and consistent with the following: start and end dates of employment, position(s) held and last salary. For purposes of this Section 9, the following definitions shall apply:8(C)
Appears in 1 contract
Restrictive Covenants. The (a) Non-Solicitation; No-Hire. Executive covenants and agrees that restrictions on his activities during and after his employment are necessary to protect the goodwill, Confidential Information and other legitimate interests of the Company and its Subsidiaries, and that the agreed restrictions set forth below will not deprive the Executive of the ability to earn a livelihood:
(A) While the Executive is in the employment of the Company and, if the Executive is entitled to benefits under Section 6.1 hereof upon termination of employment, for a period of twenty-four (24) months after such termination of employment (the "Non-Competition Period")Termination Date, the Executive shall not, will not directly or indirectly: (i) call on or solicit customers, whether as owner, partner, investor, consultant, agent, employee, co-venturer suppliers or otherwise, compete with the business accounts of the Company for the purpose of soliciting, selling and/or providing, to any such customer, suppliers or account, any of its Subsidiaries within a twenty products or services in competition with any products or services then-being sold by the Company; (20ii) mile radius of any location where the Company operates a retail store at the date of termination of employmentsolicit, or at which accept the Company has entered into a letter services of intent or similar commitment for or entered into obligations relating to the opening of a retail store to be opened within the period of this covenant. Specifically, but without limiting the foregoing, the Executive agrees not to engage in any manner in any activity that is directly or indirectly competitive with the business of the Company or any of its Subsidiaries as conducted or which has been proposed by management within six months prior to termination of the Executive's employment. Restricted activity also includes without limitation accepting employment or a consulting position with any person who is, or at any time within twelve (12) months prior to termination is an employee of the Executive's employment has been, a licensee of the Company or any of its Subsidiaries. For the purposes of this Section 9, the business of the Company and its Subsidiaries shall mean retail operations for the sale of natural and organic foods, including groceries, meat, seafood, dairy and frozen products and produce, as well as natural vitamins, supplements, homeopathic remedies and body care products.
Company; (Biii) The Executive agrees that during the Non-Competition Period or in connection with any termination of employment pursuant to which the Executive is entitled to benefits under Section 6.1, the Executive will not, either directly or through any agent or employee, Solicit solicit any employee of the Company or any of its Subsidiaries to terminate his or her relationship employment with the Company Company; or (iv) agree to hire any of its Subsidiaries or to apply for or accept employment with any enterprise competitive with the business of the Company, or Solicit any customer, supplier, licensee or vendor employee of the Company into employment with Executive or any of its Subsidiaries to terminate other person or materially modify its relationship with them, or, in the case of a customer, to conduct with any person any business or activity which such customer conducts or could conduct with the Company or any of its Subsidiaries.
(C) The Executive and the Company further agree that following any termination of the Executive's employment pursuant to which the Executive is entitled to benefits under Section 6.1, (i) the Executive shall not make statements or representations, otherwise communicate, directly or indirectly, in writing, orally, or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Company or any if its Subsidiaries or affiliates or their respective former or current officers, directors, employees, advisors, businesses or reputations, (ii) the Company shall instruct its Board members and senior management to not make statements or representations, otherwise communicate, directly, or indirectly, in writing, orally or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Executive or his reputation. The Executive and the Company further agree that, in the event the Executive's employment with the Company is terminated other than by the Company for Cause or as a result of the Executive's death, the Executive and the Company shall refer to the Executive's departure as a "resignation" in any press release or other external announcement or communication concerning the Executive's departure from the Company. Nothing in this paragraph is intended to undermine any obligations the Executive or the Company may have to comply with applicable law, or prohibit the Executive or the Company from providing truthful testimony or information pursuant to subpoena, court order, discovery demand or similar legal process, or truthfully responding to lawful inquiries by any governmental or regulatory entity.
(Db) The provisions of this Section 9 shall not be deemed to preclude the Executive from employment or engagement during the Non-Competition Period following termination Interference with Business Relationships. For a period of employment hereunder twenty-four (i24) months after the Termination Date, Executive will not interact with any person or entity with which the Company has a business relationship as of the Termination Date, if such interaction is with the intent of affecting such relationship or potential relationship in a business engaged in retail sales, provided such employment or engagement does not otherwise violate the provisions of this Section 9, or (ii) by a corporation, some of the activities of which are competitive with the business of manner adverse to the Company, if the Executive's activities do not relate to such competitive business, and nothing contained in this Section 9 shall be deemed to prohibit the Executive, during the Non-Competition Period following termination of employment hereunder, from acquiring or holding, solely as an investment, publicly traded securities of any competitor corporation so long as such securities do not, in the aggregate, constitute more than 3% of the outstanding voting securities of such corporation.
(Ec) The Executive acknowledges that the Company foregoing non-solicitation and its Subsidiaries continually develop Confidential Informationnon-interference restrictions placed upon Executive are necessary and reasonable, and that it has been made clear to Executive that Executive’s compliance with Section 4 of this Agreement is a material condition to the benefits provided to Executive pursuant to Section 17. Executive further acknowledges and agrees that, if Executive breaches any of the requirements of subsections (a) or (b) of this Section 4, the Executive may develop Confidential Information for shall forfeit the Company or its Subsidiaries unpaid portion of the salary continuance described in Section 2(a) and that the Executive may learn of Confidential Information restricted periods set forth therein shall be tolled during the course time of his employment under this Agreement. The Executive will comply with the policies and procedures of the Company and its Subsidiaries for protecting Confidential Information and shall never disclose to any person (except as required by applicable law or legal process or for the proper performance of his duties and responsibilities to the Company and its Subsidiaries, or in connection with any litigation between the Company and the Executive (provided that the Company shall be afforded a reasonable opportunity in each case to obtain a protective order)), or use for his own benefit or gain, any Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its Subsidiaries. The Executive understands that this restriction shall continue to apply after his employment terminates, regardless of the reason for such termination. All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the Company or its Subsidiaries and any copies, in whole or in part, thereof (the "Documents"), whether or not prepared by the Executive, shall be the sole and exclusive property of the Company and its Subsidiaries. The Executive shall safeguard all Documents and shall surrender to the Company at the time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive's possession or controlbreach.
(Fd) Without limiting the foregoing, it is understood Executive and Company acknowledge and agree that the Company shall not be obligated to make any of the payments or to provide for any of the benefits specified Restrictive Covenants set forth in Sections 6.1 paragraphs (a), (b) and 6.2 hereof, and shall be entitled to recoup the pro rata portion of any such payments and of the value of any such benefits previously provided to the Executive in the event of a material breach by the Executive of the provisions (c) of this Section 9 (such pro ration to shall be determined as a fraction, the numerator of which is the number of days from such breach applicable and enforceable only to the second anniversary extent necessary to protect Company from unfair competition, misappropriation of its trade secrets, as that term is defined by the date on which the California Uniform Trade Secrets Act, Civ. Code. § 3426 et seq., and for any other lawful purpose. Company and Executive terminates employment acknowledge and the denominator of which is 730), which breach continues without having been cured within 15 days after written notice to the Executive specifying the breach in reasonable detail.
(G) The Executive and the Company agree that in the event the Executive seeks a reference from the Company in connection with court of competent jurisdiction finds any future part of such Restrictive Covenants to be invalid, void or prospective employmentunenforceable, the Company's response court may modify such Restrictive Covenant(s) to any the extent necessary, and such reference inquiry Restrictive Covenant(s) shall be limited to and consistent with the following: start and end dates of employment, position(s) held and last salary. For purposes of this Section 9, the following definitions shall apply:enforceable as so modified.
Appears in 1 contract
Sources: Separation Agreement
Restrictive Covenants. The (A) Executive agrees recognizes and acknowledges that restrictions on his activities during the Company, Broker Dealer Subsidiary and after his employment are necessary their subsidiaries, through the expenditure of considerable time and money, have developed and will continue to protect develop in the goodwillfuture information concerning customers, Confidential Information clients, marketing, business and other legitimate interests operational methods of the Company Company, Broker Dealer Subsidiary and its Subsidiariestheir subsidiaries and their customers or clients, contracts, financial or other data, technical data or any other confidential or proprietary information possessed, owned or used by the Company, Broker Dealer Subsidiary and their subsidiaries, and that the agreed restrictions set forth below will not deprive the Executive same are confidential and proprietary, and are "confidential information" of the ability to earn a livelihood:
(A) While the Executive is in the Company, Broker Dealer Subsidiary and their subsidiaries. In consideration of her continued employment of by the Company andhereunder, if the Executive is entitled to benefits under Section 6.1 hereof upon termination of employmentagrees that she will not, during or for a period of twenty-four (24) months one year after such termination of employment (the "Non-Competition Period"), the Executive shall notemployment, directly or indirectly, whether make any disclosure of confidential information now or hereafter possessed by the Company, Broker Dealer Subsidiary, and/or any of their current or future, direct or indirect subsidiaries (collectively, the "Group"), to any person, partnership, corporation or entity either during or after the term hereunder, except to employees of the Group and to others within or without the Group, as ownerExecutive may deem necessary in order to conduct the Group's business and except as may be required pursuant to any court order, partnerjudgment or decision from any court of competent jurisdiction. The foregoing shall not apply to information which is in the public domain on the date hereof; which, investorafter it is disclosed to Executive by the Group, consultantis published or becomes part of the public domain through no fault of Executive; which is known to Executive prior to disclosure thereof to her by the Group as evidenced by her written records; or, agentafter Executive is no longer employed by the Group, employee, co-venturer which is thereafter disclosed to Executive in good faith by a third party which is not under any obligation of confidence or secrecy to the Group with respect to such information at the time of disclosure to her. The provisions of this Section 6 shall continue in full force and effect notwithstanding termination of Executive's employment under this Agreement or otherwise, compete with the business of .
(B) Executive agrees that if the Company or any has made and is continuing to make all required payments to her upon and after termination of its Subsidiaries within her employment, then for a twenty (20) mile radius of any location where the Company operates a retail store at period commencing on the date of termination of employmentExecutive's employment pursuant to this Agreement and ending twelve (12) months thereafter, Executive shall neither directly and/or indirectly solicit or at which the Company has entered into a letter of intent or similar commitment for or entered into obligations relating to the opening of a retail store to be opened within the period of this covenant. Specifically, but without limiting the foregoing, the Executive agrees not to engage in hire any manner in any activity that is directly or indirectly competitive with the business then current employee of the Company or and/or Broker Dealer Subsidiary nor any of its Subsidiaries as conducted or which has been proposed by management within six months prior to termination of their respective direct and/or indirect subsidiaries (collectively, the Executive's employment. Restricted activity also includes without limitation accepting employment or a consulting position "Applicable Entities"), nor (b) solicit any business with any person who is, or at any time prior (within twelve (12) months prior to termination of termination) or then current customer and/or client of the Executive's employment has beenApplicable Entities, unless Executive had a licensee of the Company or any of its Subsidiaries. For the purposes of this Section 9, the business of the Company and its Subsidiaries shall mean retail operations for the sale of natural and organic foods, including groceries, meat, seafood, dairy and frozen products and produce, as well as natural vitamins, supplements, homeopathic remedies and body care products.
(B) The Executive agrees that during the Nonpre-Competition Period or in connection with any termination of employment pursuant to which the Executive is entitled to benefits under Section 6.1, the Executive will not, either directly or through any agent or employee, Solicit any employee of the Company or any of its Subsidiaries to terminate his or her existing relationship with the Company or any of its Subsidiaries or to apply for or accept employment with any enterprise competitive with the business of the Company, or Solicit any customer, supplier, licensee or vendor of the Company or any of its Subsidiaries to terminate or materially modify its relationship with them, or, in the case of a customer, to conduct with any person any business or activity which such customer conducts or could conduct with the Company or any of its Subsidiaries.
(C) The Executive acknowledges that the restrictive covenants (the "Restrictive Covenants") contained in her Section 6 are a condition of her continued employment and the Company further agree are reasonable and valid in geographical and temporal scope and in all other respects. If any court determines that following any termination of the Executive's employment pursuant to which Restrictive Covenants, or any part of any of the Executive Restrictive Covenants, is entitled to benefits under Section 6.1invalid or unenforceable, (i) the Executive remainder of the Restrictive Covenants and parts thereof shall not make statements thereby be affected and shall be given full effect, without regard to the invalid portion. If any court determines that any of the Restrictive Covenants, or representationsany part thereof, otherwise communicateis invalid or unenforceable because of the geographic or temporal scope of such provision, directly such court shall have the power to reduce the geographic or indirectlytemporal scope of such provision, as the case may be, and, in writingits reduced form, orally, or otherwise, or take any action which may, directly, or indirectly, disparage or such provision shall then be damaging to the Company or any if its Subsidiaries or affiliates or their respective former or current officers, directors, employees, advisors, businesses or reputations, (ii) the Company shall instruct its Board members and senior management to not make statements or representations, otherwise communicate, directly, or indirectly, in writing, orally or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Executive or his reputation. The Executive and the Company further agree that, in the event the Executive's employment with the Company is terminated other than by the Company for Cause or as a result of the Executive's death, the Executive and the Company shall refer to the Executive's departure as a "resignation" in any press release or other external announcement or communication concerning the Executive's departure from the Company. Nothing in this paragraph is intended to undermine any obligations the Executive or the Company may have to comply with applicable law, or prohibit the Executive or the Company from providing truthful testimony or information pursuant to subpoena, court order, discovery demand or similar legal process, or truthfully responding to lawful inquiries by any governmental or regulatory entityenforceable.
(D) The provisions of this Section 9 shall not be deemed to preclude the If Executive from employment or engagement during the Non-Competition Period following termination of employment hereunder (i) in a business engaged in retail sales, provided such employment or engagement does not otherwise violate the provisions of this Section 9breaches, or (ii) by a corporationthreatens to breach, some any of the activities of which are competitive with the business of Restrictive Covenants, the Company, if the Executive's activities do in addition to and not relate to such competitive business, and nothing contained in this Section 9 shall be deemed to prohibit the Executive, during the Non-Competition Period following termination of employment hereunder, from acquiring or holding, solely as an investment, publicly traded securities lieu of any competitor corporation so long as such securities do not, in the aggregate, constitute more than 3% of the outstanding voting securities of such corporation.
(E) The Executive acknowledges that the Company other rights and its Subsidiaries continually develop Confidential Information, that the Executive remedies it may develop Confidential Information for the Company or its Subsidiaries and that the Executive may learn of Confidential Information during the course of his employment under this Agreement. The Executive will comply with the policies and procedures of the Company and its Subsidiaries for protecting Confidential Information and shall never disclose to any person (except as required by applicable have at law or legal process in equity, shall have the right to injunctive relief; it being acknowledged and agreed to by Executive that any such breach or for the proper performance of his duties threatened breach would cause irreparable and responsibilities continuing injury to the Company and its Subsidiaries, or in connection with any litigation between the Company and the Executive (provided that the Company shall be afforded a reasonable opportunity in each case to obtain a protective order)), or use for his own benefit or gain, any Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its Subsidiaries. The Executive understands that this restriction shall continue to apply after his employment terminates, regardless of the reason for such termination. All documents, records, tapes and other media of every kind and description relating money damages would not provide an adequate remedy to the business, present or otherwise, of the Company or its Subsidiaries and any copies, in whole or in part, thereof (the "Documents"), whether or not prepared by the Executive, shall be the sole and exclusive property of the Company and its Subsidiaries. The Executive shall safeguard all Documents and shall surrender to the Company at the time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive's possession or controlCompany.
(F) Without limiting the foregoing, it is understood that the Company shall not be obligated to make any of the payments or to provide for any of the benefits specified in Sections 6.1 and 6.2 hereof, and shall be entitled to recoup the pro rata portion of any such payments and of the value of any such benefits previously provided to the Executive in the event of a material breach by the Executive of the provisions of this Section 9 (such pro ration to be determined as a fraction, the numerator of which is the number of days from such breach to the second anniversary of the date on which the Executive terminates employment and the denominator of which is 730), which breach continues without having been cured within 15 days after written notice to the Executive specifying the breach in reasonable detail.
(G) The Executive and the Company agree that in the event the Executive seeks a reference from the Company in connection with any future or prospective employment, the Company's response to any such reference inquiry shall be limited to and consistent with the following: start and end dates of employment, position(s) held and last salary. For purposes of this Section 9, the following definitions shall apply:
Appears in 1 contract
Sources: Employment Agreement (First Montauk Financial Corp)
Restrictive Covenants. The (a) Executive agrees acknowledges that restrictions (i) Employer has separately bargained and paid additional consideration for the restrictive covenants herein; and (ii) Employer will provide certain benefits to Executive hereunder in reliance on such covenants in view of the unique and essential nature of the services Executive will perform on behalf of Employer and the irreparable injury that would befall Employer should Executive breach such covenants.
(b) Executive further acknowledges that his activities during services are of a special, unique and after extraordinary character and that his employment are necessary position with Employer will place him in a position of confidence and trust with customers and employees of Employer and its subsidiaries and affiliates and with Employer’s other constituencies and will allow him access to protect the goodwill, Trade Secrets and Confidential Information and other legitimate interests of the Company (each as defined in Section 10(e) hereof) concerning Employer and its Subsidiaries, subsidiaries and affiliates.
(c) Executive further acknowledges that the types and periods of restrictions imposed by the covenants in this Section 10 are fair and reasonable and that the agreed such restrictions set forth below will not deprive the prevent Executive of the ability to earn from earning a livelihood.
(d) Having acknowledged the foregoing, Executive covenants and agrees with Employer as follows:
(Ai) While the Executive is employed by Employer and continuing thereafter, Executive shall not disclose or use any Confidential Information or Trade Secret of Employer for so long as such information remains Confidential Information or a Trade Secret, as applicable, for any purpose other than as may be necessary and appropriate in the ordinary course of performing Executive’s duties to Employer during the period of Executive’s employment of the Company and, if the with Employer.
(ii) While Executive is entitled to benefits under Section 6.1 hereof upon termination of employment, employed by Employer and for a period of twenty-four two (242) months years after such termination of Executive’s employment (the "Non-Competition Period"pursuant to Section 8(a), the 8(c) or 8(d) hereof, Executive shall not, directly not (except on behalf of or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer or otherwise, compete with the business prior written consent of Employer), on Executive’s own behalf or in the Company service or on behalf of others, solicit or attempt to solicit any customer of Employer or its Subsidiaries subsidiaries, including actively sought prospective customers, with whom Executive had Material Contact (as defined in Section 10(e) hereof) during Executive’s employment, for the purpose of providing products or services that are Competitive (as defined in Section 10(e) hereof) with those offered or provided by Employer or its subsidiaries or, in the event of Executive’s termination, Competitive with those offered or provided by Employer or its subsidiaries within a twenty two (202) mile radius of any location where years prior to the Company operates a retail store at the date of termination of Executive’s employment, or at which the Company has entered into a letter of intent or similar commitment for or entered into obligations relating to the opening of a retail store to be opened within the period of this covenant. Specifically, but without limiting the foregoing, the Executive agrees not to engage in any manner in any activity that is directly or indirectly competitive with the business of the Company or any of its Subsidiaries as conducted or which has been proposed by management within six months prior to termination of the Executive's employment. Restricted activity also includes without limitation accepting employment or a consulting position with any person who is, or at any time within twelve (12) months prior to termination of the Executive's employment has been, a licensee of the Company or any of its Subsidiaries. For the purposes of this Section 9, the business of the Company and its Subsidiaries shall mean retail operations for the sale of natural and organic foods, including groceries, meat, seafood, dairy and frozen products and produce, as well as natural vitamins, supplements, homeopathic remedies and body care products.
(Biii) The While Executive agrees that during the Non-Competition Period or in connection with any is employed by Employer and for a period of two (2) years after termination of Executive’s employment pursuant to which the Section 8(a), 8(c) or 8(d) hereof, Executive is entitled to benefits under Section 6.1, the Executive will shall not, either directly or through any agent indirectly, on his own behalf or employeein the service or on behalf of others, Solicit any employee of perform duties and responsibilities that are the Company same as or any of its Subsidiaries substantially similar to terminate his or her relationship with the Company or any of its Subsidiaries or to apply those Executive performs for or accept employment with any enterprise competitive with the business of the Company, or Solicit any customer, supplier, licensee or vendor of the Company or any of its Subsidiaries to terminate or materially modify its relationship with them, Employer or, in the case event of a customerExecutive’s termination, performed for Employer within two (2) years prior to conduct with any person the termination of Executive’s employment, for any business which is the same as or activity which such customer conducts or could conduct with essentially the Company or any of same as the business conducted by Employer and its Subsidiariessubsidiaries within the Restricted Territory (as defined in Section 10(e) hereof).
(Civ) The While Executive is employed by Employer and the Company further agree that following any for a period of two (2) years after termination of the Executive's ’s employment pursuant to which Section 8(a), 8(c) or 8(d) hereof, Executive will not on Executive’s own behalf or in the Executive is entitled service or on behalf of others, solicit or recruit or attempt to benefits under Section 6.1, (i) the Executive shall not make statements solicit or representations, otherwise communicaterecruit, directly or indirectlyby assisting others, any employee of Employer or its subsidiaries, whether or not such employee is a full-time employee or a temporary employee of Employer or its subsidiaries, whether or not such employment is pursuant to a written agreement and whether or not such employment is for a determined period or is at will, to cease working for Employer.
(v) If Executive’s employment is terminated pursuant to Section 8(a), 8(c) or 8(d) hereof and Executive subsequently engages in any conduct or takes any action prohibited under any of Sections 10(d)(ii)-(iv) hereof, then, in writingaddition to any other remedies available to Employer hereunder, orallyEmployer may immediately terminate and shall not be required to continue on behalf of Executive or his dependents and beneficiaries any compensation provided for herein (including, without limitation, Base Compensation and any Annual Bonus) and any employee benefit, retirement and compensation plans and other prerequisites provided in Section 5 hereof other than those benefits that Employer may be required to maintain for Executive under applicable federal or otherwisestate law.
(vi) If Executive’s employment is terminated pursuant to Section 8(b) hereof, then Executive may thereafter engage in any conduct or take any action which mayof the type described under Sections 10(d)(ii)-(iv); provided, directlyhowever, or indirectly, disparage or be damaging to the Company or that if Executive shall engage in any if its Subsidiaries or affiliates or their respective former or current officers, directors, employees, advisors, businesses or reputations, (ii) the Company shall instruct its Board members and senior management to not make statements or representations, otherwise communicate, directly, or indirectly, in writing, orally or otherwise, such conduct or take any action which maysuch action, directly, or indirectly, disparage or then Employer may immediately terminate and shall not be damaging required to the continue on behalf of Executive or his reputation. The Executive dependents and the Company further agree thatbeneficiaries any compensation provided for herein (including, without limitation, Base Compensation, any Annual Bonus and any payments pursuant to Section 9(b) hereof) and any employee benefit, retirement and compensation plans and other perquisites provided in the event the Executive's employment with the Company is terminated Section 5 hereof other than by the Company those benefits that Employer may be required to maintain for Cause Executive under applicable federal or as a result of the Executive's death, the Executive and the Company shall refer to the Executive's departure as a "resignation" in any press release or other external announcement or communication concerning the Executive's departure from the Company. Nothing in this paragraph is intended to undermine any obligations the Executive or the Company may have to comply with applicable state law, or prohibit the Executive or the Company from providing truthful testimony or information pursuant to subpoena, court order, discovery demand or similar legal process, or truthfully responding to lawful inquiries by any governmental or regulatory entity.
(Dvii) The provisions of this Section 9 shall not be deemed If Executive’s employment by Employer is terminated for any reason or for no reason, Executive will turn over immediately thereafter to preclude the Executive from employment Employer all business correspondence, letters, papers, reports, customer lists, financial statements, credit reports or engagement during the Non-Competition Period following termination of employment hereunder (i) in a business engaged in retail sales, provided such employment or engagement does not otherwise violate the provisions of this Section 9, or (ii) by a corporation, some of the activities of which are competitive with the business of the Company, if the Executive's activities do not relate to such competitive business, and nothing contained in this Section 9 shall be deemed to prohibit the Executive, during the Non-Competition Period following termination of employment hereunder, from acquiring or holding, solely as an investment, publicly traded securities of any competitor corporation so long as such securities do not, in the aggregate, constitute more than 3% of the outstanding voting securities of such corporation.
(E) The Executive acknowledges that the Company and its Subsidiaries continually develop other Confidential Information, that data or documents of Employer in the Executive may develop Confidential Information for the Company possession or its Subsidiaries control of Executive, all of which writings are and that the Executive may learn of Confidential Information during the course of his employment under this Agreement. The Executive will comply with the policies and procedures of the Company and its Subsidiaries for protecting Confidential Information and shall never disclose to any person (except as required by applicable law or legal process or for the proper performance of his duties and responsibilities to the Company and its Subsidiaries, or in connection with any litigation between the Company and the Executive (provided that the Company shall be afforded a reasonable opportunity in each case to obtain a protective order)), or use for his own benefit or gain, any Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its Subsidiaries. The Executive understands that this restriction shall continue to apply after his employment terminates, regardless of the reason for such termination. All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the Company or its Subsidiaries and any copies, in whole or in part, thereof (the "Documents"), whether or not prepared by the Executive, shall be the sole and exclusive property of the Company and its Subsidiaries. The Executive shall safeguard all Documents and shall surrender to the Company at the time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive's possession or controlEmployer.
(Fe) Without limiting the foregoing, it is understood that the Company shall not be obligated to make any of the payments or to provide for any of the benefits specified in Sections 6.1 and 6.2 hereof, and shall be entitled to recoup the pro rata portion of any such payments and of the value of any such benefits previously provided to the Executive in the event of a material breach by the Executive of the provisions of this Section 9 (such pro ration to be determined as a fraction, the numerator of which is the number of days from such breach to the second anniversary of the date on which the Executive terminates employment and the denominator of which is 730), which breach continues without having been cured within 15 days after written notice to the Executive specifying the breach in reasonable detail.
(G) The Executive and the Company agree that in the event the Executive seeks a reference from the Company in connection with any future or prospective employment, the Company's response to any such reference inquiry shall be limited to and consistent with the following: start and end dates of employment, position(s) held and last salary. For purposes of this Section 910, the following definitions terms shall applybe defined as set forth below:
Appears in 1 contract
Restrictive Covenants. The Executive agrees that restrictions on his activities during and after his employment are necessary to protect the goodwill, Confidential Information and other legitimate interests (a) In further consideration of the compensation to be paid to Executive hereunder and any equity compensation to be made available to Executive pursuant to Parent’s incentive equity plans, Executive acknowledges that in the course of Executive’s employment with the Company Executive has become, and will continue to become, familiar with Parent’s and its Subsidiaries, ’ trade secrets and with other Confidential Information concerning Parent and its Subsidiaries and that Executive’s services are and will continue to be of special, unique and extraordinary value to Parent and its Subsidiaries. Therefore, Executive agrees that, during the agreed restrictions set forth below Employment Period and during the 12 month period immediately following the termination of the Employment Period for any reason whatsoever (the “Nonsolicitation Period”), Executive will not deprive the Executive of the ability to earn a livelihood:
(A) While the Executive is in the employment of the Company and, if the Executive is entitled to benefits under Section 6.1 hereof upon termination of employment, for a period of twenty-four (24) months after such termination of employment (the "Non-Competition Period"), the Executive shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer or otherwise, compete with the business of the Company for Executive or any of its Subsidiaries within a twenty other person or entity, (201) mile radius of any location where the Company operates a retail store at the date of termination of employment, induce or at which the Company has entered into a letter of intent or similar commitment for or entered into obligations relating attempt to the opening of a retail store to be opened within the period of this covenant. Specifically, but without limiting the foregoing, the Executive agrees not to engage in any manner in any activity that is directly or indirectly competitive with the business of the Company or any of its Subsidiaries as conducted or which has been proposed by management within six months prior to termination of the Executive's employment. Restricted activity also includes without limitation accepting employment or a consulting position with any person who is, or at any time within twelve (12) months prior to termination of the Executive's employment has been, a licensee of the Company or any of its Subsidiaries. For the purposes of this Section 9, the business of the Company and its Subsidiaries shall mean retail operations for the sale of natural and organic foods, including groceries, meat, seafood, dairy and frozen products and produce, as well as natural vitamins, supplements, homeopathic remedies and body care products.
(B) The Executive agrees that during the Non-Competition Period or in connection with any termination of employment pursuant to which the Executive is entitled to benefits under Section 6.1, the Executive will not, either directly or through any agent or employee, Solicit induce any employee of the Company Parent or any of its Subsidiaries to terminate his leave the employ of Parent or her relationship any of its Subsidiaries, or in any way interfere with the Company relationship between Parent or any of its Subsidiaries, on the one hand, and any employee thereof, on the other, (2) hire any person who is (or in the case of a former employee, was an employee of Parent or any of its Subsidiaries at any time during the 180 day period prior to any attempted hiring by Executive) an employee of Parent or any of its Subsidiaries, (3) induce or attempt to induce any supplier, licensee, licensor, customer or other material business relation of Parent or any of its Subsidiaries to cease doing business with Parent or such Subsidiary, or in any way interfere with the relationship between any such supplier, licensee, licensor, customer or material business relation and Parent or such Subsidiary of Parent, as the case may be (including, without limitation, making any negative statements or communications about Parent or any of its Subsidiaries) (provided that Executive shall not be considered to have breached his obligations under the foregoing clause (3) as a result of any representatives of any of Executive’s successor employers encouraging customers of Parent or its Subsidiaries to do business with any such successor employer so long as Executive has no direct involvement in any such customer solicitation (including without limitation, by disclosing or otherwise misusing any trade secrets or Confidential Information of Parent and its Subsidiaries)), or (4) participate in any Competitive Activity. “Competitive Activity” means directly or indirectly owning any interest in, managing, controlling, participating in, being employed by, consulting with or rendering services for any company or business (i) with over $250,000,000 in revenue during the immediately preceding 12-month period from the sale of software and associated services which competes directly or indirectly with the businesses of Parent or any of its Subsidiaries or (ii) actively developing products to apply for compete directly or accept employment with any enterprise competitive indirectly with the business businesses of the Company, or Solicit any customer, supplier, licensee or vendor of the Company or any of its Subsidiaries to terminate or materially modify its relationship with them, or, in the case of a customer, to conduct with any person any business or activity which such customer conducts or could conduct with the Company Parent or any of its Subsidiaries.
(C) The Executive and ; provided, that the Company further agree that following any termination passive ownership of not more than 2% of the Executive's employment pursuant to outstanding equity securities of any class of a corporation which the Executive is entitled to benefits under Section 6.1, (i) the Executive shall not make statements or representations, otherwise communicate, directly or indirectly, in writing, orally, or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Company or any if its Subsidiaries or affiliates or their respective former or current officers, directors, employees, advisors, businesses or reputations, (ii) the Company shall instruct its Board members and senior management to not make statements or representations, otherwise communicate, directly, or indirectly, in writing, orally or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Executive or his reputation. The Executive and the Company further agree that, in the event the Executive's employment with the Company is terminated other than by the Company for Cause or as a result of the Executive's death, the Executive and the Company shall refer to the Executive's departure as a "resignation" in any press release or other external announcement or communication concerning the Executive's departure from the Company. Nothing in this paragraph is intended to undermine any obligations the Executive or the Company may have to comply with applicable law, or prohibit the Executive or the Company from providing truthful testimony or information pursuant to subpoena, court order, discovery demand or similar legal process, or truthfully responding to lawful inquiries by any governmental or regulatory entity.
(D) The provisions of this Section 9 shall publicly traded will not be deemed to preclude be a Competitive Activity, so long as Executive has no active participation in the business of such corporation. Executive from employment or engagement during agrees that the Non-Competition Period following termination of employment hereunder (iaforementioned covenant contained in this Section 7(a) is reasonable with respect to its duration, geographical area and scope. Notwithstanding anything to the contrary contained in a business engaged in retail salesthis Section 7(a), provided such employment or engagement does not otherwise violate the provisions of this Section 9, or (ii7(a) by a corporation, some of the activities of which are competitive with the business of the Company, if the Executive's activities do shall not relate to such competitive business, and nothing contained in this Section 9 shall be deemed to prohibit the Executive, during the Non-Competition Period following termination of employment hereunder, from acquiring or holding, solely as an investment, publicly traded securities of any competitor corporation so long as such securities do not, in the aggregate, constitute more than 3% of the outstanding voting securities of such corporation.
(E) The Executive acknowledges that the Company and its Subsidiaries continually develop Confidential Information, that the Executive may develop Confidential Information for the Company or its Subsidiaries and that the Executive may learn of Confidential Information during the course of his employment under this Agreement. The Executive will comply with the policies and procedures of the Company and its Subsidiaries for protecting Confidential Information and shall never disclose apply to any person (except as required activity conducted by applicable law or legal process or for Executive following the proper performance of his duties and responsibilities to the Company and its Subsidiaries, or in connection with any litigation between the Company and the Executive (provided that the Company shall be afforded a reasonable opportunity in each case to obtain a protective order)), or use for his own benefit or gain, any Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its Subsidiaries. The Executive understands that this restriction shall continue to apply after his employment terminates, regardless of the reason for such termination. All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the Company or its Subsidiaries and any copies, in whole or in part, thereof (the "Documents"), whether or not prepared by the Executive, shall be the sole and exclusive property of the Company and its Subsidiaries. The Executive shall safeguard all Documents and shall surrender to the Company at the time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive's possession or control.
(F) Without limiting the foregoing, it is understood that the Company shall not be obligated to make any of the payments or to provide Employment Period for any of the benefits specified in Sections 6.1 and 6.2 hereofbusiness affiliated with or otherwise controlled by Golden Gate Capital or ▇▇▇▇ Industries, and shall be entitled to recoup the pro rata portion of any such payments and of the value of any such benefits previously provided to the Executive in the event of a material breach Inc. or investment funds managed by the Executive of the provisions of this Section 9 (such pro ration to be determined as a fractionGolden Gate Capital or ▇▇▇▇ Industries, the numerator of which is the number of days from such breach to the second anniversary of the date on which the Executive terminates employment and the denominator of which is 730), which breach continues without having been cured within 15 days after written notice to the Executive specifying the breach in reasonable detail.
(G) The Executive and the Company agree that in the event the Executive seeks a reference from the Company in connection with any future or prospective employment, the Company's response to any such reference inquiry shall be limited to and consistent with the following: start and end dates of employment, position(s) held and last salary. For purposes of this Section 9, the following definitions shall apply:Inc.
Appears in 1 contract
Sources: Employment Agreement (Infor, Inc.)
Restrictive Covenants. The Executive In consideration for the Restricted Stock Units, Grantee agrees that restrictions during the period commencing on his activities during the date hereof and after his employment are necessary to protect ending on the goodwillsettlement date, Confidential Information and other legitimate interests of the Company and its Subsidiaries, and that the agreed restrictions set forth below will Grantee shall not deprive the Executive of the ability to earn a livelihood:
(A) While the Executive is in the employment of the Company and, if the Executive is entitled to benefits under Section 6.1 hereof upon termination of employment, for a period of twenty-four (24) months after such termination of employment (the "Non-Competition Period"), the Executive shall not, directly or indirectly, whether either as owner, partner, investor, consultanta principal, agent, employee, co-venturer employer, consultant, partner, shareholder of a closely held corporation or otherwiseshareholder in excess of five (5%) percent of a publicly traded corporation, compete corporate officer or director, or in any other individual or representative capacity, engage or otherwise participate in any manner or fashion in any business that is in competition in any manner whatsoever with the business mortgage and real estate services businesses of the Company or any of its Subsidiaries within a twenty (20) mile radius of any location where the Company operates a retail store at the date of termination of employment, or at other business in which the Company has entered into a letter is engaged or which is part of intent the Company’s Developing Business, within states in which the Company is engaged in such business or similar commitment for or entered into obligations relating to Developing Business. In addition, from and after the opening of a retail store to be opened within date hereof until the period of this covenant. Specificallysettlement date, but without limiting the foregoing, the Executive Grantee covenants and agrees not to engage in any manner in any activity that is directly or indirectly competitive with the business indirectly, solicit or induce any officer, director, employee, agent, independent contractor or consultant or client of the Company to terminate his, her or any of its Subsidiaries as conducted or which has been proposed by management within six months prior to termination of the Executive's employment. Restricted activity also includes without limitation accepting employment or a consulting position other relationship with any person who isthe Company, or at otherwise encourage any time within twelve (12) months prior such person or entity to termination of the Executive's leave or sever his, her or its employment has been, a licensee of the Company or any of its Subsidiaries. For the purposes of this Section 9, the business of the Company and its Subsidiaries shall mean retail operations for the sale of natural and organic foods, including groceries, meat, seafood, dairy and frozen products and produce, as well as natural vitamins, supplements, homeopathic remedies and body care products.
(B) The Executive agrees that during the Non-Competition Period or in connection with any termination of employment pursuant to which the Executive is entitled to benefits under Section 6.1, the Executive will not, either directly or through any agent or employee, Solicit any employee of the Company or any of its Subsidiaries to terminate his or her other relationship with the Company for any reason. Further, from and after the date hereof until the settlement date, Grantee agrees that Grantee shall not make any disparaging or any defamatory comments regarding the Company or its directors, officers, executives or employees, or, after termination of its Subsidiaries or to apply for or accept Grantee’s employment with any enterprise competitive relationship with the business Company, make any such comments concerning any aspect of the termination of their relationship. The obligations of Grantee under this subparagraph shall not apply to disclosures required by applicable law, regulation or order of any court or governmental agency, provided Grantee shall promptly notify the Company in writing of any such obligation. The Grantee further covenants and agrees that these restrictive covenants are reasonable as to duration, terms and geographical area and that the same protect the legitimate interests of the Company, or Solicit impose no undue hardship on Grantee, are not injurious to the public, and that any customer, supplier, licensee or vendor violation of the Company or these restrictive covenants shall be specifically enforceable in any of its Subsidiaries to terminate or materially modify its relationship court with them, or, jurisdiction in the case of a customer, to conduct with any person any business or activity which such customer conducts or could conduct with the Company or any of its Subsidiariesmatter.
(C) The Executive and the Company further agree that following any termination of the Executive's employment pursuant to which the Executive is entitled to benefits under Section 6.1, (i) the Executive shall not make statements or representations, otherwise communicate, directly or indirectly, in writing, orally, or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Company or any if its Subsidiaries or affiliates or their respective former or current officers, directors, employees, advisors, businesses or reputations, (ii) the Company shall instruct its Board members and senior management to not make statements or representations, otherwise communicate, directly, or indirectly, in writing, orally or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Executive or his reputation. The Executive and the Company further agree that, in the event the Executive's employment with the Company is terminated other than by the Company for Cause or as a result of the Executive's death, the Executive and the Company shall refer to the Executive's departure as a "resignation" in any press release or other external announcement or communication concerning the Executive's departure from the Company. Nothing in this paragraph is intended to undermine any obligations the Executive or the Company may have to comply with applicable law, or prohibit the Executive or the Company from providing truthful testimony or information pursuant to subpoena, court order, discovery demand or similar legal process, or truthfully responding to lawful inquiries by any governmental or regulatory entity.
(D) The provisions of this Section 9 shall not be deemed to preclude the Executive from employment or engagement during the Non-Competition Period following termination of employment hereunder (i) in a business engaged in retail sales, provided such employment or engagement does not otherwise violate the provisions of this Section 9, or (ii) by a corporation, some of the activities of which are competitive with the business of the Company, if the Executive's activities do not relate to such competitive business, and nothing contained in this Section 9 shall be deemed to prohibit the Executive, during the Non-Competition Period following termination of employment hereunder, from acquiring or holding, solely as an investment, publicly traded securities of any competitor corporation so long as such securities do not, in the aggregate, constitute more than 3% of the outstanding voting securities of such corporation.
(E) The Executive acknowledges that the Company and its Subsidiaries continually develop Confidential Information, that the Executive may develop Confidential Information for the Company or its Subsidiaries and that the Executive may learn of Confidential Information during the course of his employment under this Agreement. The Executive will comply with the policies and procedures of the Company and its Subsidiaries for protecting Confidential Information and shall never disclose to any person (except as required by applicable law or legal process or for the proper performance of his duties and responsibilities to the Company and its Subsidiaries, or in connection with any litigation between the Company and the Executive (provided that the Company shall be afforded a reasonable opportunity in each case to obtain a protective order)), or use for his own benefit or gain, any Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its Subsidiaries. The Executive understands that this restriction shall continue to apply after his employment terminates, regardless of the reason for such termination. All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the Company or its Subsidiaries and any copies, in whole or in part, thereof (the "Documents"), whether or not prepared by the Executive, shall be the sole and exclusive property of the Company and its Subsidiaries. The Executive shall safeguard all Documents and shall surrender to the Company at the time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive's possession or control.
(F) Without limiting the foregoing, it is understood that the Company shall not be obligated to make any of the payments or to provide for any of the benefits specified in Sections 6.1 and 6.2 hereof, and shall be entitled to recoup the pro rata portion of any such payments and of the value of any such benefits previously provided to the Executive in the event of a material breach by the Executive of the provisions of this Section 9 (such pro ration to be determined as a fraction, the numerator of which is the number of days from such breach to the second anniversary of the date on which the Executive terminates employment and the denominator of which is 730), which breach continues without having been cured within 15 days after written notice to the Executive specifying the breach in reasonable detail.
(G) The Executive and the Company agree that in the event the Executive seeks a reference from the Company in connection with any future or prospective employment, the Company's response to any such reference inquiry shall be limited to and consistent with the following: start and end dates of employment, position(s) held and last salary. For purposes of this Section 9, the following definitions shall apply:
Appears in 1 contract
Sources: Restricted Stock Unit Agreement (Nationstar Mortgage Holdings Inc.)
Restrictive Covenants. The (a) Executive agrees acknowledges that restrictions (i) Employer has separately bargained and paid additional consideration for the restrictive covenants herein; and (ii) Employer will provide certain benefits to Executive hereunder in reliance on his activities during such covenants in view of the unique and after his employment essential nature of the services Executive will perform on behalf of Employer and the irreparable injury that would befall Employer should Executive breach such covenants.
(b) Executive further acknowledges that Executive’s services are necessary of a special, unique and extraordinary character and that Executive’s position with Employer will place Executive in a position of confidence and trust with customers and employees of Employer and its subsidiaries and with Employer’s other constituencies and will allow Executive access to protect the goodwill, Trade Secrets and Confidential Information and other legitimate interests of the Company (each as defined in Section 10(e) hereof) concerning Employer and its Subsidiaries, subsidiaries.
(c) Executive further acknowledges that the types and periods of restrictions imposed by the covenants in this Section 10 are fair and reasonable and that the agreed such restrictions set forth below will not deprive the prevent Executive of the ability to earn from earning a livelihood.
(d) Having acknowledged the foregoing, Executive covenants and agrees with Employer as follows:
(Ai) While the Executive is employed by Employer and continuing thereafter, Executive shall not disclose or use any Confidential Information or Trade Secret of Employer for so long as such information remains Confidential Information or a Trade Secret, as applicable, for any purpose other than as may be necessary and appropriate in the ordinary course of performing Executive’s duties to Employer during the period of Executive’s employment of the Company and, if the with Employer.
(ii) While Executive is entitled to benefits under Section 6.1 hereof upon termination of employment, employed by Employer and for a period of twenty-four two (242) months years after such termination of Executive’s employment pursuant to Section 8(a), 8(c) or 8(e) hereof, Executive shall not (except on behalf of or with the prior written consent of Employer), on Executive’s own behalf or in the service or on behalf of others, solicit or attempt to solicit any customer of Employer or its subsidiaries, including actively sought prospective customers, with whom Executive had Material Contact (as defined in Section 10(e) hereof) during Executive’s employment (the "Non-Competition Period"including Executive’s prior employment with Coastal and Coastal Bank), for the Executive shall notpurpose of providing products or services that are Competitive (as defined in Section 10(e) hereof) with those offered or provided by Employer or its subsidiaries, directly in the event of Executive’s termination, Competitive with those offered or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer provided by Employer or otherwise, compete with its subsidiaries within two (2) years prior to the business of the Company or any of its Subsidiaries within a twenty (20) mile radius of any location where the Company operates a retail store at the date of termination of Executive’s employment, or at which the Company has entered into a letter of intent or similar commitment for or entered into obligations relating to the opening of a retail store to be opened within the period of this covenant. Specifically, but without limiting the foregoing, the Executive agrees not to engage in any manner in any activity that is directly or indirectly competitive with the business of the Company or any of its Subsidiaries as conducted or which has been proposed by management within six months prior to termination of the Executive's employment. Restricted activity also includes without limitation accepting employment or a consulting position with any person who is, or at any time within twelve (12) months prior to termination of the Executive's employment has been, a licensee of the Company or any of its Subsidiaries. For the purposes of this Section 9, the business of the Company and its Subsidiaries shall mean retail operations for the sale of natural and organic foods, including groceries, meat, seafood, dairy and frozen products and produce, as well as natural vitamins, supplements, homeopathic remedies and body care products.
(Biii) The While Executive agrees that during the Non-Competition Period or in connection with any is employed by Employer and for a period of two (2) years after termination of Executive’s employment pursuant to which the Section 8(a), 8(c) or 8(e) hereof, Executive is entitled to benefits under Section 6.1, the Executive will shall not, either directly or through any agent indirectly, on Executive’s own behalf or employeein the service or on behalf of others, Solicit any employee of perform within the Company Restricted Territory (as defined in Section 10(e) hereof) duties and responsibilities that are the same as or any of its Subsidiaries substantially similar to terminate his or her relationship with the Company or any of its Subsidiaries or to apply those Executive performs for or accept employment with any enterprise competitive with the business of the Company, or Solicit any customer, supplier, licensee or vendor of the Company or any of its Subsidiaries to terminate or materially modify its relationship with them, Employer or, in the case event of a customerExecutive’s termination, performed for Employer within two (2) years prior to conduct with any person the termination of Executive’s employment, for any business which is the same as or activity which such customer conducts or could conduct with essentially the Company or any of same as the business conducted by Employer and its Subsidiariessubsidiaries.
(Civ) The While Executive is employed by Employer and the Company further agree that following any for a period of two (2) years after termination of the Executive's ’s employment pursuant to which Section 8(a), 8(c) or 8(e) hereof, Executive will not on Executive’s own behalf or in the Executive is entitled service or on behalf of others, solicit or recruit or attempt to benefits under Section 6.1, (i) the Executive shall not make statements solicit or representations, otherwise communicaterecruit, directly or indirectlyby assisting others, any employee of Employer or its subsidiaries, whether or not such employee is a full-time employee or a temporary employee of Employer or its subsidiaries, whether or not such employment is pursuant to a written agreement and whether or not such employment is for a determined period or is at will, to cease working for Employer.
(v) If Executive’s employment is terminated pursuant to Section 8(a), 8(c) or 8(e) hereof and Executive subsequently engages in any conduct or takes any action prohibited under any of Sections 10(d)(ii)-(iv) hereof, then, in writingaddition to any other remedies available to Employer hereunder, orallyEmployer may immediately terminate, and shall not be required to continue on behalf of Executive or otherwiseExecutive’s dependents and beneficiaries, any compensation provided for herein and any employee benefit, retirement and compensation plans and other prerequisites provided in Section 5 hereof other than those benefits that Employer may be required to maintain for Executive under applicable federal or state law.
(vi) If Executive’s employment is terminated pursuant to Section 8(b) or Section 8(d) hereof, then Executive may thereafter engage in any conduct or take any action which mayof the type described under Sections 10(d)(ii)-(iv); provided, directlyhowever, or indirectly, disparage or be damaging to the Company or that if Executive shall at any if its Subsidiaries or affiliates or their respective former or current officers, directors, employees, advisors, businesses or reputations, (ii) the Company shall instruct its Board members and senior management to not make statements or representations, otherwise communicate, directly, or indirectly, time engage in writing, orally or otherwise, any such conduct or take any action which maysuch action, directlythen Employer may immediately terminate, or indirectly, disparage or and shall not be damaging required to the continue on behalf of Executive or his reputation. The Executive Executive’s dependents and the Company further agree thatbeneficiaries, any compensation provided for herein (including any payments pursuant to Section 9(b) hereof) and any employee benefit, retirement and compensation plans and other perquisites provided in the event the Executive's employment with the Company is terminated Section 5 hereof other than by the Company those benefits that Employer may be required to maintain for Cause Executive under applicable federal or as a result of the Executive's death, the Executive and the Company shall refer to the Executive's departure as a "resignation" in any press release or other external announcement or communication concerning the Executive's departure from the Company. Nothing in this paragraph is intended to undermine any obligations the Executive or the Company may have to comply with applicable state law, or prohibit the Executive or the Company from providing truthful testimony or information pursuant to subpoena, court order, discovery demand or similar legal process, or truthfully responding to lawful inquiries by any governmental or regulatory entity.
(Dvii) The provisions of this Section 9 shall not be deemed If Executive’s employment by Employer is terminated for any reason or for no reason, Executive will turn over immediately thereafter to preclude the Executive from employment Employer all business correspondence, letters, papers, reports, customer lists, financial statements, credit reports or engagement during the Non-Competition Period following termination of employment hereunder (i) in a business engaged in retail sales, provided such employment or engagement does not otherwise violate the provisions of this Section 9, or (ii) by a corporation, some of the activities of which are competitive with the business of the Company, if the Executive's activities do not relate to such competitive business, and nothing contained in this Section 9 shall be deemed to prohibit the Executive, during the Non-Competition Period following termination of employment hereunder, from acquiring or holding, solely as an investment, publicly traded securities of any competitor corporation so long as such securities do not, in the aggregate, constitute more than 3% of the outstanding voting securities of such corporation.
(E) The Executive acknowledges that the Company and its Subsidiaries continually develop other Confidential Information, that data or documents of Employer in the Executive may develop Confidential Information for the Company possession or its Subsidiaries control of Executive, all of which writings are and that the Executive may learn of Confidential Information during the course of his employment under this Agreement. The Executive will comply with the policies and procedures of the Company and its Subsidiaries for protecting Confidential Information and shall never disclose to any person (except as required by applicable law or legal process or for the proper performance of his duties and responsibilities to the Company and its Subsidiaries, or in connection with any litigation between the Company and the Executive (provided that the Company shall be afforded a reasonable opportunity in each case to obtain a protective order)), or use for his own benefit or gain, any Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its Subsidiaries. The Executive understands that this restriction shall continue to apply after his employment terminates, regardless of the reason for such termination. All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the Company or its Subsidiaries and any copies, in whole or in part, thereof (the "Documents"), whether or not prepared by the Executive, shall be the sole and exclusive property of the Company and its Subsidiaries. The Executive shall safeguard all Documents and shall surrender to the Company at the time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive's possession or controlEmployer.
(Fe) Without limiting the foregoing, it is understood that the Company shall not be obligated to make any of the payments or to provide for any of the benefits specified in Sections 6.1 and 6.2 hereof, and shall be entitled to recoup the pro rata portion of any such payments and of the value of any such benefits previously provided to the Executive in the event of a material breach by the Executive of the provisions of this Section 9 (such pro ration to be determined as a fraction, the numerator of which is the number of days from such breach to the second anniversary of the date on which the Executive terminates employment and the denominator of which is 730), which breach continues without having been cured within 15 days after written notice to the Executive specifying the breach in reasonable detail.
(G) The Executive and the Company agree that in the event the Executive seeks a reference from the Company in connection with any future or prospective employment, the Company's response to any such reference inquiry shall be limited to and consistent with the following: start and end dates of employment, position(s) held and last salary. For purposes of this Section 910, the following definitions terms shall applybe defined as set forth below:
Appears in 1 contract
Restrictive Covenants. (a) The Executive hereby acknowledges and agrees that restrictions on his activities the Executive remains bound by the restrictive covenants and other agreements set forth in Sections 8 and 9 of the Employment Agreement and that the Non-Compete Period as defined in Section 8 of the Employment Agreement shall continue through the end of the Severance Period consistent with Section 8(b)(i) of the Employment Agreement. Nothing herein shall in any way limit or restrict enforcement of the Company’s and its affiliates’ rights pursuant to Sections 8 and 9 of the Employment Agreement. [***] In addition, the Executive acknowledges and agrees that the Executive is subject to the confidentiality obligations set forth in Section 8(a) of the Employment Agreement during and after his employment are necessary to protect the goodwillNon- Compete Period, Confidential Information except as otherwise required by law or judicial process. The Company acknowledges and other legitimate interests of the Company and its Subsidiaries, and agrees that the agreed restrictions set forth below will not deprive the Executive of the ability to earn a livelihood:
(A) While the Executive is currently permitted to provide services to the following entities so long as such services are not in the employment breach of the Company and, if obligations of Section 8 of the Executive is entitled Employment Agreement and may continue to benefits under Section 6.1 hereof upon termination of employment, for a period of twenty-four (24) months after such termination of employment (do so during the "Non-Competition Period")Compete Period so long as such services do not otherwise breach the provisions of Section 8 of the Employment Agreement or this Section 11: Novum Pharma, LLC and its affiliated entities, Novos Growth, LLC and its affiliated entities, Champion Investments, LLC, ▇▇▇▇▇▇▇ Pharma, LLC and its affiliated entities, ▇▇▇▇▇▇▇▇▇ Pharma, LLC, Beaver-Visitec International, Vault Pharma and Bright Path Pharmaceuticals.
(b) Pursuant to Section 9(f) of the Employment Agreement, on or prior to the Separation Date, the Executive shall notdeliver to the Company all laptops provided by the Company and/or its affiliates, directly memoranda, books, papers, letters, and other data, and all copies of the same, which were made by the Executive or indirectlyotherwise came into the Executive’s possession or under the Executive’s control at any time prior to the Separation Date, whether as owner, partner, investor, consultant, agent, employee, co-venturer or otherwise, compete with and which in any way relate to the business of any member of the Company Group as conducted or as planned to be conducted on the Separation Date. The Executive may retain the Executive’s laptop, provided that the Executive removes all confidential information of any member of the Company Group from such laptop no later than the end of the Consulting Period.
(c) The Executive hereby agrees not to make any disparaging or derogatory statements concerning the Company and/or any of its Subsidiaries within a twenty (20) mile radius of any location where the affiliates. The Company operates a retail store at the date of termination of employment, or at which the Company has entered into a letter of intent or similar commitment for or entered into obligations relating hereby agrees to the opening of a retail store to be opened within the period of this covenant. Specifically, but without limiting the foregoing, the Executive agrees instruct its officers and directors not to engage make any disparaging or derogatory statements concerning the Executive. These non-disparagement obligations shall not in any manner in any activity that is directly or indirectly competitive with the business of the Company or any of its Subsidiaries as conducted or which has been proposed by management within six months prior to termination of way affect the Executive's employment. Restricted activity also includes without limitation accepting employment ’s or a consulting position with any person who is, the Company’s obligation or at any time within twelve (12) months prior to termination of the Executive's employment has been, a licensee of the Company or any of its Subsidiaries. For the purposes of this Section 9, the business of the Company and its Subsidiaries shall mean retail operations for the sale of natural and organic foods, including groceries, meat, seafood, dairy and frozen products and produce, as well as natural vitamins, supplements, homeopathic remedies and body care products.
(B) The Executive agrees that during the Non-Competition Period or rights in connection with any termination of employment pursuant to which the Executive is entitled to benefits under Section 6.1, the Executive will not, either directly or through any agent or employee, Solicit any employee of the Company or any of its Subsidiaries to terminate his or her relationship with the Company or any of its Subsidiaries or to apply for or accept employment with any enterprise competitive with the business of the Company, or Solicit any customer, supplier, licensee or vendor of the Company or any of its Subsidiaries to terminate or materially modify its relationship with them, or, in the case of a customer, to conduct with any person any business or activity which such customer conducts or could conduct with the Company or any of its Subsidiaries.
(C) The Executive and the Company further agree that following any termination of the Executive's employment pursuant to which the Executive is entitled to benefits under Section 6.1, (i) the Executive shall not make statements or representations, otherwise communicate, directly or indirectly, in writing, orally, or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Company or any if its Subsidiaries or affiliates or their respective former or current officers, directors, employees, advisors, businesses or reputations, (ii) the Company shall instruct its Board members and senior management to not make statements or representations, otherwise communicate, directly, or indirectly, in writing, orally or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Executive or his reputationlegal proceeding. The Executive and the Company further agree that, in the event the Executive's employment with the Company is terminated other than by the Company for Cause or as a result of the Executive's death, the Executive and the Company shall refer to the Executive's departure as a "resignation" in any press release or other external announcement or communication concerning the Executive's departure from the Company. Nothing in this paragraph is intended to undermine any ’s non-disparagement obligations the Executive or the Company may have to comply with applicable law, or prohibit the Executive or the Company from providing truthful testimony or information pursuant to subpoena, court order, discovery demand or similar legal process, or truthfully responding to lawful inquiries by any governmental or regulatory entity.
(D) The provisions of this Section 9 shall not be deemed to preclude the Executive from employment or engagement during the Non-Competition Period following termination of employment hereunder (i) in a business engaged in retail sales, provided such employment or engagement does not otherwise violate the provisions of this Section 9, or (ii) by a corporation, some of the activities of which are competitive with the business of the Company, if the Executive's activities do not relate to such competitive business, and nothing contained in this Section 9 shall be deemed to prohibit the Executive, during the Non-Competition Period following termination of employment hereunder, from acquiring or holding, solely as an investment, publicly traded securities of any competitor corporation so long as such securities do not, in the aggregate, constitute more than 3% of the outstanding voting securities of such corporation.
(E) The Executive acknowledges that the Company null and its Subsidiaries continually develop Confidential Information, that the Executive may develop Confidential Information for the Company or its Subsidiaries and that the Executive may learn of Confidential Information during the course of his employment under this Agreement. The Executive will comply with the policies and procedures of the Company and its Subsidiaries for protecting Confidential Information and shall never disclose to any person (except as required by applicable law or legal process or for the proper performance of his duties and responsibilities to the Company and its Subsidiaries, or in connection with any litigation between the Company and the Executive (provided that the Company shall be afforded a reasonable opportunity in each case to obtain a protective order)), or use for his own benefit or gain, any Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its Subsidiaries. The Executive understands that this restriction shall continue to apply after his employment terminates, regardless of the reason for such termination. All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the Company or its Subsidiaries and any copies, in whole or in part, thereof (the "Documents"), whether or not prepared by the Executive, shall be the sole and exclusive property of the Company and its Subsidiaries. The Executive shall safeguard all Documents and shall surrender to the Company at the time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive's possession or control.
(F) Without limiting the foregoing, it is understood that the Company shall not be obligated to make any of the payments or to provide for any of the benefits specified in Sections 6.1 and 6.2 hereof, and shall be entitled to recoup the pro rata portion of any such payments and of the value of any such benefits previously provided to the Executive in the event of a material breach by the Executive of the provisions of this Section 9 (such pro ration to be determined as a fraction, the numerator of which is the number of days from such breach to the second anniversary of the date on which the Executive terminates employment and the denominator of which is 730), which breach continues without having been cured within 15 days after written notice to the Executive specifying the breach in reasonable detail.
(G) The Executive and the Company agree that void in the event the Executive seeks a reference breaches its obligations under this Release or under Sections 8 or 9 of the Employment Agreement. The Executive’s non-disparagement obligations shall be null and void in the event the Company breaches its obligations under this Release. The Company shall provide the Executive an opportunity to review and provide input prior to the Company’s publication of any press release disclosing the Executive’s separation from the Company in connection with any future or prospective employment, the Company's response to any such reference inquiry shall be limited to and consistent with the following: start and end dates of employment, position(s.
(d) held and last salary. For purposes of this Section 9, the following definitions shall apply:[***]
(e) [***]
Appears in 1 contract
Restrictive Covenants. The Executive agrees that restrictions on his activities during and after his employment are necessary to protect For a period of twelve (12) months following the goodwill, Confidential Information and other legitimate interests date of any termination of the Company and its SubsidiariesExecutive’s employment which entitles him to severance benefits under Part Three of this Agreement, and that the agreed restrictions set forth below will not deprive the Executive shall comply with each of the ability to earn a livelihoodfollowing restrictive covenants:
(A) While the Executive is in the employment shall not encourage or solicit any of the Company and, if Corporation’s employees to leave the Executive is entitled to benefits under Section 6.1 hereof upon termination of employment, Corporation’s employ for a period of twenty-four (24) months after such termination of any reason or interfere in any other manner with employment (the "Non-Competition Period"), the Executive shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer or otherwise, compete with the business of the Company or any of its Subsidiaries within a twenty (20) mile radius of any location where the Company operates a retail store relationships at the date of termination of employment, or at which time existing between the Company has entered into a letter of intent or similar commitment for or entered into obligations relating to the opening of a retail store to be opened within the period of this covenant. Specifically, but without limiting the foregoing, the Executive agrees not to engage in any manner in any activity that is directly or indirectly competitive with the business of the Company or any of its Subsidiaries as conducted or which has been proposed by management within six months prior to termination of the Executive's employment. Restricted activity also includes without limitation accepting employment or a consulting position with any person who is, or at any time within twelve (12) months prior to termination of the Executive's employment has been, a licensee of the Company or any of its Subsidiaries. For the purposes of this Section 9, the business of the Company Corporation and its Subsidiaries shall mean retail operations for the sale of natural and organic foods, including groceries, meat, seafood, dairy and frozen products and produce, as well as natural vitamins, supplements, homeopathic remedies and body care productsemployees.
(B) The Executive agrees that during the Non-Competition Period shall not render any services or otherwise provide any advice or assistance to any Competing Business, whether as an employee, consultant, partner, principal, agent, representative, equity holder or in connection any other capacity, without the express prior written consent of the Corporation; provided, however, that such restriction shall not apply to any passive investment representing an interest of less than one percent (1%) of an outstanding class of publicly-traded securities of any corporation or other enterprise which may otherwise be designated hereunder as a Competing Business at the time of such investment. A Competing Business shall mean the six (6) companies designated by the Corporation on attached Schedule I to this Agreement. The Corporation may revise Schedule I at any time, and from time to time, by adding names to, or subtracting names from, such list; provided, however, that the Corporation must comply with the following requirements in making any changes to Schedule I:
(i) absent the Executive’s express written consent, any such change to Schedule I must be made at least sixty (60) days before termination of Executive’s employment for any reason;
(ii) any change must be made in writing and either personally delivered to the Executive or sent to the Executive’s last known address by certified mail, return receipt requested; and
(iii) the Corporation can never include more than six (6) companies or entities on Schedule I. (Thus, if Schedule I lists six (6) companies or entities and the Corporation adds one or more companies or entities to Schedule I, then the Corporation must delete a like number.) Notwithstanding the foregoing, a change in the list of Competing Businesses shall automatically be deemed to occur from time to time to the extent the Corporation designates one or more entities (other than those listed at that time on Schedule I) as its principal competitors in any public filings made by the Corporation, pursuant to which the Executive is entitled to benefits under Section 6.1, the Executive will not, either directly or through any agent or employee, Solicit any employee periodic reporting requirements of the Company or any of its Subsidiaries Exchange Act, more than sixty (60) days prior to terminate his or her relationship with the Company or any of its Subsidiaries or to apply for or accept employment with any enterprise competitive with the business of the Company, or Solicit any customer, supplier, licensee or vendor of the Company or any of its Subsidiaries to terminate or materially modify its relationship with them, or, in the case of a customer, to conduct with any person any business or activity which such customer conducts or could conduct with the Company or any of its Subsidiaries.
(C) The Executive and the Company further agree that following any termination of the Executive's employment pursuant to which ’s employment; provided, however, that not more than six (6) entities in total designated by the Executive is entitled to benefits under Section 6.1, (i) Corporation shall comprise the Executive shall not make statements or representations, otherwise communicate, directly or indirectly, in writing, orally, or otherwise, or take class of Competing Businesses at any action which may, directly, or indirectly, disparage or be damaging to the Company or any if its Subsidiaries or affiliates or their respective former or current officers, directors, employees, advisors, businesses or reputations, (ii) the Company shall instruct its Board members and senior management to not make statements or representations, otherwise communicate, directly, or indirectly, in writing, orally or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Executive or his reputationtime hereunder. The Executive hereby agrees that the restrictive covenants set forth in this Part Four serve as substantial consideration for the severance benefits payable to him under Paragraphs 13 and the Company further agree that, 14 of this Agreement and that such severance benefits do not represent wages for past services and those benefits would not otherwise be payable to him in the event the Executive's employment with the Company is terminated other than by the Company for Cause or as a result absence of the Executive's death, the Executive and the Company shall refer to the Executive's departure as a "resignation" in any press release or other external announcement or communication concerning the Executive's departure from the Company. Nothing in this paragraph is intended to undermine any obligations the Executive or the Company may have his agreement to comply with applicable lawthese Part Four covenants. Accordingly, or prohibit should the Executive or the Company from providing truthful testimony or information pursuant fail to subpoena, court order, discovery demand or similar legal process, or truthfully responding to lawful inquiries by any governmental or regulatory entity.
(D) The provisions of this Section 9 shall not be deemed to preclude the Executive from employment or engagement during the Non-Competition Period following termination of employment hereunder (i) in a business engaged in retail sales, provided such employment or engagement does not otherwise violate the provisions of this Section 9, or (ii) by a corporation, some of the activities of which are competitive with the business of the Company, if the Executive's activities do not relate to such competitive business, and nothing contained in this Section 9 shall be deemed to prohibit the Executive, during the Non-Competition Period following termination of employment hereunder, from acquiring or holding, solely as an investment, publicly traded securities of any competitor corporation so long as such securities do not, in the aggregate, constitute more than 3% of the outstanding voting securities of such corporation.
(E) The Executive acknowledges that the Company and its Subsidiaries continually develop Confidential Information, that the Executive may develop Confidential Information for the Company or its Subsidiaries and that the Executive may learn of Confidential Information during the course of his employment under this Agreement. The Executive will comply with the policies and procedures of the Company and its Subsidiaries for protecting Confidential Information and shall never disclose to any person (except as required by applicable law or legal process or for the proper performance of his duties and responsibilities to the Company and its Subsidiaries, or in connection with any litigation between the Company and the Executive (provided that the Company shall be afforded a reasonable opportunity in each case to obtain a protective order)), or use for his own benefit or gain, any Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its Subsidiaries. The Executive understands that this restriction shall continue to apply after his employment terminates, regardless of the reason for such termination. All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the Company or its Subsidiaries and any copies, in whole or in part, thereof (the "Documents"), whether or not prepared by the Executive, shall be the sole and exclusive property of the Company and its Subsidiaries. The Executive shall safeguard all Documents and shall surrender to the Company at the time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive's possession or control.
(F) Without limiting the foregoing, it is understood that the Company shall not be obligated to make any of the payments restrictive covenants set forth in this Part Four, then Executive shall cease to have any further right or entitlement to provide for any severance benefits to which Executive may become entitled under Paragraphs 13 and 14 of the benefits specified in Sections 6.1 and 6.2 hereofthis Agreement, and those benefits shall be entitled to recoup the pro rata portion of any such payments and of the value of any such benefits previously provided to the Executive in the event of a material breach by the Executive of the provisions of this Section 9 (such pro ration to be determined as a fraction, the numerator of which is the number of days from such breach to the second anniversary of the date on which the Executive terminates employment and the denominator of which is 730), which breach continues without having been cured within 15 days after written notice to the Executive specifying the breach in reasonable detailimmediately cease.
(G) The Executive and the Company agree that in the event the Executive seeks a reference from the Company in connection with any future or prospective employment, the Company's response to any such reference inquiry shall be limited to and consistent with the following: start and end dates of employment, position(s) held and last salary. For purposes of this Section 9, the following definitions shall apply:
Appears in 1 contract
Restrictive Covenants. The Executive agrees that restrictions on his activities during and after his employment are necessary to protect the goodwill, Confidential Information and other legitimate interests of the Company and its Subsidiaries, and that the agreed restrictions set forth below will not deprive the Executive of the ability to earn a livelihood:
(A) While Executive acknowledges that (1) Employer has separately bargained and paid additional consideration for the restrictive covenants herein; and (2) Employer will provide certain benefits to Executive is hereunder in the employment reliance on such covenants in view of the Company and, if the Executive is entitled to benefits under Section 6.1 hereof upon termination of employment, for a period of twenty-four (24) months after such termination of employment (the "Non-Competition Period"), the Executive shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer or otherwise, compete with the business unique and essential nature of the Company or any services Executive will perform on behalf of its Subsidiaries within a twenty (20) mile radius of any location where Employer and the Company operates a retail store at the date of termination of employment, or at which the Company has entered into a letter of intent or similar commitment for or entered into obligations relating to the opening of a retail store to be opened within the period of this covenant. Specifically, but without limiting the foregoing, the irreparable injury that would befall Employer should Executive agrees not to engage in any manner in any activity that is directly or indirectly competitive with the business of the Company or any of its Subsidiaries as conducted or which has been proposed by management within six months prior to termination of the Executive's employment. Restricted activity also includes without limitation accepting employment or a consulting position with any person who is, or at any time within twelve (12) months prior to termination of the Executive's employment has been, a licensee of the Company or any of its Subsidiaries. For the purposes of this Section 9, the business of the Company and its Subsidiaries shall mean retail operations for the sale of natural and organic foods, including groceries, meat, seafood, dairy and frozen products and produce, as well as natural vitamins, supplements, homeopathic remedies and body care productsbreach such covenants.
(B) The Executive agrees further acknowledges that during the Non-Competition Period or in connection with any termination of employment pursuant to which the Executive is entitled to benefits under Section 6.1, the Executive will not, either directly or through any agent or employee, Solicit any employee of the Company or any of its Subsidiaries to terminate his or her relationship with the Company or any of its Subsidiaries or to apply for or accept employment with any enterprise competitive with the business of the Company, or Solicit any customer, supplier, licensee or vendor of the Company or any of its Subsidiaries to terminate or materially modify its relationship with them, or, in the case services are of a customerspecial, unique and extraordinary character and that his position with Employer will place him in a position of confidence and trust with employees of Employer and its subsidiaries and affiliates and with Employer’s other constituencies and will allow him access to conduct with any person any business or activity which such customer conducts or could conduct with the Company or any of trade secrets and confidential information concerning Employer and its Subsidiariessubsidiaries and affiliates.
(C) The Executive further acknowledges that the type and the Company further agree that following any termination periods of the Executive's employment pursuant to which the Executive is entitled to benefits under Section 6.1, (i) the Executive shall not make statements or representations, otherwise communicate, directly or indirectly, in writing, orally, or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Company or any if its Subsidiaries or affiliates or their respective former or current officers, directors, employees, advisors, businesses or reputations, (ii) the Company shall instruct its Board members and senior management to not make statements or representations, otherwise communicate, directly, or indirectly, in writing, orally or otherwise, or take any action which may, directly, or indirectly, disparage or be damaging to the Executive or his reputation. The Executive and the Company further agree that, in the event the Executive's employment with the Company is terminated other than restrictions imposed by the Company for Cause or as a result of the Executive's death, the Executive and the Company shall refer to the Executive's departure as a "resignation" in any press release or other external announcement or communication concerning the Executive's departure from the Company. Nothing covenants in this paragraph is intended to undermine any obligations the Section 10 are fair and reasonable and that such restrictions will not prevent Executive or the Company may have to comply with applicable law, or prohibit the Executive or the Company from providing truthful testimony or information pursuant to subpoena, court order, discovery demand or similar legal process, or truthfully responding to lawful inquiries by any governmental or regulatory entityearning a livelihood.
(D) The provisions Having acknowledged the foregoing, Executive covenants and agrees with Employer as follows:
(1) For a period of this Section 9 two (2) years after the termination of Executive’s employment by Employer for any reason or for no reason, Executive shall not be deemed divulge or furnish any confidential information of Employer acquired by him while employed by Employer to preclude any person, firm or corporation, other than to Employer or upon its written request, or use any such confidential information (which shall at all times remain the Executive from employment property of Employer) directly or engagement during indirectly for Executive’ own benefit or for the Non-Competition Period following termination benefit of employment hereunder any person, firm or corporation other than Employer. For purposes hereof, the term “confidential information” means data and information relating to the Banking Business (ias hereinafter defined) in a business engaged in retail sales, provided such employment or engagement (which does not otherwise violate rise to the provisions status of this a Trade Secret, as such term is defined in Section 910-1-761 of the Official Code of Georgia Annotated) which is or has been disclosed to Executive or of which Executive became aware as a consequence of or through Executive’s relationship to Employer and which has value to Employer and is not generally known to its competitors. Without limiting the foregoing, “confidential information” shall include: (a) all items of information that could be classified as a Trade Secret pursuant to Georgia law; (b) the names, addresses and banking requirements of the customers of Employer or its subsidiaries and the nature and amount of business done with such customers; (c) the names and addresses of employees and other business contacts of Employer or its subsidiaries; (d) the particular names, methods and procedures utilized by Employer or its subsidiaries in the conduct and advertising of their business; (e) application, operating system, communication and other computer software and derivatives thereof, including, without limitation, sources and object codes, flow charts, coding sheets, routines, subrouting and related documentation and manuals of Employer or its subsidiaries; and (f) marketing techniques, purchasing information, pricing policies, loan policies, quoting procedures, financial information, customer data and other materials or information relating to Employer’s or its subsidiaries’ manner of doing business. Confidential information shall not include any data or information that has been voluntarily disclosed to the public by Employer (except where such public disclosure has been made by Executive without authorization) or that has been independently developed and disclosed by others, or (ii) by a corporation, some of that otherwise enters the activities of which are competitive with the business of the Company, if the Executive's activities do not relate to such competitive business, and nothing contained in this Section 9 shall be deemed to prohibit the Executive, during the Non-Competition Period following termination of employment hereunder, from acquiring or holding, solely as an investment, publicly traded securities of any competitor corporation so long as such securities do not, in the aggregate, constitute more than 3% of the outstanding voting securities of such corporationpublic domain through lawful means.
(E2) The Executive acknowledges hereby agrees that the Company and its Subsidiaries continually develop Confidential Information, that the Executive may develop Confidential Information for the Company he will not directly or its Subsidiaries and that the Executive may learn of Confidential Information during the course of his employment under this Agreement. The Executive will comply with the policies and procedures of the Company and its Subsidiaries for protecting Confidential Information and shall never indirectly disclose to any person (except as required by applicable law or legal process or for the proper performance of his duties and responsibilities to the Company and its Subsidiaries, or in connection with any litigation between the Company and the Executive (provided that the Company shall be afforded a reasonable opportunity in each case to obtain a protective order))anyone, or use or otherwise exploit for his own benefit or gain, for the benefit of anyone other than Employer and its subsidiaries any Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its Subsidiaries. The Executive understands that this restriction shall continue to apply after his employment terminates, regardless trade secrets (as defined in §10-1-761 of the reason Official Code of Georgia Annotated and applicable code sections for such termination. All documents, records, tapes and other media any states where Employer has business locations) of every kind and description relating to the business, present or otherwise, of the Company or its Subsidiaries and any copies, in whole or in part, thereof (the "Documents"), whether or not prepared by the Executive, shall be the sole and exclusive property of the Company and its Subsidiaries. The Executive shall safeguard all Documents and shall surrender to the Company at the time his employment terminates, or at such earlier time or times Employer for as the Board or its designee may specify, all Documents then in the Executive's possession or controllong as they remain trade secrets.
(F3) Without limiting the foregoingWhile Executive is employed by Employer and for a period of one (1) year after termination of Executive’s employment pursuant to Subsection 8(A), it is understood that the Company 8(C) or 8(D) hereof, Executive shall not be obligated (except on behalf of or with the prior written consent of Employer), on Executive’s own behalf or in the service or on behalf of others, solicit, divert or appropriate, or attempt to make solicit, divert or appropriate, directly or by assisting others, any Banking Business from any of the payments customers of Employer or to provide its subsidiaries, including actively sought prospective customers, with whom Executive has or had material contact during the last two (2) years of Executive’s employment, for any purposes of providing products or services that are competitive with those provided by Employer or its subsidiaries. The term “Banking Business” shall mean the benefits specified in Sections 6.1 business conducted by Employer and 6.2 hereofits subsidiaries, and shall be entitled to recoup the pro rata portion of any such payments and of the value of any such benefits previously provided to the Executive in the event of a material breach by the Executive of the provisions of this Section 9 (such pro ration to be determined as a fraction, the numerator of which is the number business of days from such breach to banking, including the second anniversary solicitation of the date on which the Executive terminates employment time and demand deposits and the denominator making of which is 730)residential, which breach continues without having been cured within 15 days after written notice to the Executive specifying the breach in reasonable detailconsumer, commercial and corporate loans.
(G) The Executive and the Company agree that in the event the Executive seeks a reference from the Company in connection with any future or prospective employment, the Company's response to any such reference inquiry shall be limited to and consistent with the following: start and end dates of employment, position(s) held and last salary. For purposes of this Section 9, the following definitions shall apply:
Appears in 1 contract