Common use of Restrictive Provisions Clause in Contracts

Restrictive Provisions. (a) The Company is engaged in the conduct of a highly specialized business, the success of which is due to confidential and proprietary information and trade secrets. Further, in conducting its business, the Company will disclose to Employee confidential information, proprietary information and trade secrets concerning the Company's business. For and in consideration of the compensation and benefits set forth in this Agreement (including stock options), and as a material inducement to the Company to disclose confidential information, proprietary information and trade secrets to Employee and to enter into this Agreement to employ Employee, Employee hereby covenants and agrees as provided in the remainder of this Section 14. (b) During the term of this Agreement and for one (1) year after the date of termination of Employee's employment with the Company for any reason (the "Restricted Period"), Employee shall not, directly or indirectly (i) Solicit for employment or other retention, or hire or retain, directly or indirectly, any person who is an employee of the Company at the time of such solicitation, hiring or retention. (ii) Solicit any person or entity who is or was a customer, client or supplier of the Corporation for any business, transaction or other purpose in any way related, directly or indirectly, to the manufacture or sale of ice cream. (iii) Solicit, induce or encourage any customer, consultant, independent contractor or supplier of Company, or any other person or entity with which the Company does business, to cease, curtail or otherwise adversely modify its business relationship with the Company; (iv) Engage in (without limitation, as a principal, partner, director, officer, agent, employee, consultant, advisor or otherwise), directly or indirectly or be financially interested in, the business of manufacturing, marketing or selling ice cream in the United States or Canada. Nothing contained in this Section 14, however, shall prevent Employee from beneficially owning for investment purposes no more than five percent (5%) of any class of equity securities of a company whose securities are traded on a national securities exchange or NASDAQ. (c) Employee acknowledges that because the Company's business, and its customers, clients and suppliers, are geographically diverse, the restrictions contained in clause (b) hereof contain no limit as to geographic scope within the United States and Canada. (d) During the term of this Agreement and at all times thereafter, Employee shall not use for his personal benefit, or disclose, communicate or divulge to, or use for the direct or indirect benefit of any person, firm, association, corporation or other entity other than the Company, any material referred to in Section 13 above or any information regarding the business methods, business policies, finances, procedures, techniques, research or development projects or results, trade secrets, or other knowledge or processes of or developed by the Company or any subsidiary thereof or any predecessor of either, or any names of customers, clients or suppliers of the Company or any data on or relating to past, present or prospective customers, clients or suppliers of the Company or any other information relating to or dealing with the business operations or activities of Company or any subsidiary thereof or any predecessor of either, made known to Employee or learned or acquired by Employee while in the employ of Company. (e) Any and all writings and inventions made, developed or created by Employee (whether at the request or suggestion of the Company or otherwise, whether alone or in conjunction with others and whether during regular hours of work or otherwise), during the term of the Employee's employment by the Company which are directly or indirectly useful in or related to the ice cream business, shall be promptly and fully disclosed by Employee the Company, in writing, and shall be the Company's exclusive property as against Employee, and Employee shall promptly deliver to the Company all papers, drawings, models, data, and other material relating to any writing or invention made, developed or created by Employee as aforesaid. Employee hereby assigns and agrees to assign to the Company all of his rights to such writings and inventions and to all proprietary rights therein, based thereon or related thereto, including but not limited to applications for United States and foreign letters copyright and/or patent. Employee shall, at the Company's request and expense, execute such documents and provide such assistance as may be deemed necessary by the Company to apply for, defend or enforce any United States and/or foreign letters copyright and/or patent based on or related to such writings or inventions or to vest in the Company title to such writings or inventions. Employee shall not be entitled to any additional or special compensation or reimbursement regarding any and all such writings and inventions. The provisions of this paragraph shall be in addition to and shall not be deemed to diminish any rights which the Company may have at law. (f) Employee acknowledges that the restrictions contained in the foregoing subparagraphs (a) through (e) in view of the nature of the business in which Company is engaged, are reasonable and necessary in order to protect the legitimate interests of Company, and that any violation thereof would result in irreparable injuries to Company, and Employee therefore acknowledges that, in the event of his violation of any of these restrictions, Company shall be entitled to obtain from any court of competent jurisdiction preliminary and permanent injunctive relief as well as damages and an equitable accounting of all earnings, profits and other benefits arising from such violation, which rights shall be cumulative and in addition to any other rights or remedies to which Company may be entitled. (g) If the period of time, the area specified or the scope of activity restricted in paragraph (b) above should be adjudged unreasonable in any proceeding then the period of time shall be reduced by such number of months or the area shall be reduced by the elimination of such portion thereof or the scope of restricted activity shall be modified, or any or all of the foregoing so that such restrictions may be enforced in such area and for such time as is adjudged to be reasonable. If Employee violates any of the restrictions contained in the foregoing subparagraph (b), the restrictive period shall not run in favor of Employee from the time of the commencement of any such violation until such time as such violation shall be cured by Employee to the satisfaction of the Company. (h) The provisions of this Section 14 shall cease to apply if the Company fails to pay any installment of the Severance Payment and such failure continues for ten (10) days after Employee has given the Company written notice of such failure.

Restrictive Provisions. As further consideration for the obligations assumed by the Corporation under this Agreement, Executive agrees to the following restrictions: (a) The Company Executive will not, during the period he is engaged employed by the Corporation and for a period of two (2) years following the Termination Date, engage in Competitive Activity directly or indirectly with the conduct of a highly specialized business, the success of which is due to confidential and proprietary information and trade secrets. Further, in conducting its business, the Company will disclose to Employee confidential information, proprietary information and trade secrets concerning the Company's business. For and in consideration business of the compensation and benefits set forth in this Agreement (including stock options), and as a material inducement to the Company to disclose confidential information, proprietary information and trade secrets to Employee and to enter into this Agreement to employ Employee, Employee hereby covenants and agrees as provided in the remainder of this Section 14Corporation or any Subsidiary. (b) During The Executive shall not, during the term of this Agreement and for one (1) year after the date of termination of Employee's employment with the Company for thereafter, make any reason (the "Restricted Period"), Employee shall not, directly or indirectly (i) Solicit for employment or other retention, or hire or retain, directly or indirectly, any person who is an employee of the Company at the time of such solicitation, hiring or retention. (ii) Solicit any person or entity who is or was a customer, client or supplier of the Corporation for any business, transaction or other purpose in any way related, directly or indirectly, disparaging comments which may be harmful to the manufacture or sale of ice cream. (iii) Solicit, induce or encourage any customer, consultant, independent contractor or supplier of Company, Corporation's reputation or any other person Unauthorized Disclosure. This covenant has no temporal, geographical or entity with which the Company does business, to cease, curtail or otherwise adversely modify its business relationship with the Company; (iv) Engage in (without limitation, as a principal, partner, director, officer, agent, employee, consultant, advisor or otherwise), directly or indirectly or be financially interested in, the business of manufacturing, marketing or selling ice cream in the United States or Canada. Nothing contained in this Section 14, however, shall prevent Employee from beneficially owning for investment purposes no more than five percent (5%) of any class of equity securities of a company whose securities are traded on a national securities exchange or NASDAQterritorial restriction. (c) Employee acknowledges that because Executive will not during the Company's businessperiod he is employed by the Corporation and for a period of two (2) years (the "No Call Period") following termination, and its customers, clients and suppliers, are geographically diversesolicit any of the employees of the Corporation or any Subsidiary to leave the employ of the Corporation or the Subsidiary or to become an employee of any other person. If during the No Call Period any employee of the Corporation or any Subsidiary becomes an employee of a person or firm which employs the Executive, the restrictions contained Executive shall be irrefutably deemed to have solicited such employee in clause (b) hereof contain no limit as to geographic scope within contravention of the United States and Canadarestriction in this Section 10(c). (d) During The Executive shall deliver to the Corporation or its designee at the termination of the Executive's employment all correspondence, memoranda, notes, records, plans, customer lists, and other documents and all copies thereof, made, composed or received by the Executive, solely or jointly with others, that are in the Executive's possession, custody, or control at termination and that are related in any manner to the past, present, or anticipated business of the Corporation, its Subsidiaries. In this regard, the Executive hereby grants and conveys to the Corporation all right, title and interest in and to, including without limitation, the right to possess, print, copy, and sell or otherwise dispose of, any reports, records, papers, summaries, photographs, drawings or other documents, and writings, and copies, abstracts or summaries thereof, that may be prepared by the Executive or under the Executive's direction or that may come into the Executive's possession in any way during the term of this Agreement and at all times thereafterthe Executive's employment, Employee shall not use for his personal benefit, or disclose, communicate or divulge to, or use for with the direct or indirect benefit of Corporation that relate in any person, firm, association, corporation or other entity other than manner to the Company, any material referred to in Section 13 above or any information regarding the business methods, business policies, finances, procedures, techniques, research or development projects or results, trade secrets, or other knowledge or processes of or developed by the Company or any subsidiary thereof or any predecessor of either, or any names of customers, clients or suppliers of the Company or any data on or relating to past, present or prospective customers, clients or suppliers anticipated business of the Company or any other information relating to or dealing with the business operations or activities of Company or any subsidiary thereof or any predecessor of either, made known to Employee or learned or acquired by Employee while in the employ of CompanyCorporation. (e) Any and all writings and inventions madeExecutive acknowledges that, developed or created by Employee (whether at while the request or suggestion of the Company or otherwise, whether alone or in conjunction with others and whether during regular hours of work or otherwise), during the term of the Employee's employment damages that may be suffered by the Company which are directly Corporation in the event of a violation of this Section 10 would likely be substantial, they would be difficult to estimate or indirectly useful calculate. Executive therefore agrees that, in or related addition to any without limitation of other remedies that may be available to the ice cream business, shall be promptly and fully disclosed by Employee the CompanyCorporation upon Executive's breach of this Section 10, in writingthe event Executive breaches this Section 10, notwithstanding any other provision of this Agreement: (a) the Corporation may recover as liquidated damages, and not as a penalty, any Severance Benefits previously paid to Executive hereunder; (b) the Corporation will have no obligation to pay Executive any Severance Benefits hereunder; and (c) the provisions of Section 4 shall be the Company's exclusive property as against Employee, and Employee shall promptly deliver to the Company all papers, drawings, models, data, and other material relating no longer apply to any writing or invention madeStock Options; provided, developed or created by Employee as aforesaid. Employee hereby assigns and agrees to assign to however, that the Company all of his rights to such writings and inventions and to all proprietary rights therein, based thereon or related thereto, including but not limited to applications for United States and foreign letters copyright and/or patent. Employee shall, at the Company's request and expense, execute such documents and provide such assistance as may be deemed necessary by the Company to apply for, defend or enforce any United States and/or foreign letters copyright and/or patent based on or related to such writings or inventions or to vest in the Company title to such writings or inventions. Employee shall not be entitled to any additional or special compensation or reimbursement regarding any and all such writings and inventions. The provisions of this paragraph shall be in addition to and Section 10(e) shall not be deemed impair the right of the Executive to diminish receive any rights qualified or nonqualified retirement plan benefits to which he is entitled on the Company may have at lawTermination Date. (f) Employee acknowledges that Despite the restrictions prior provisions of this Section 10, if any covenant or agreement contained in the foregoing subparagraphs (a) through (e) in view of the nature of the business in which Company therein, or any part thereof, is engaged, are reasonable and necessary in order to protect the legitimate interests of Company, and that any violation thereof would result in irreparable injuries to Company, and Employee therefore acknowledges that, in the event of his violation of any of these restrictions, Company shall be entitled to obtain from any held by an arbitrator or court of competent jurisdiction preliminary and permanent injunctive relief as well as damages and an equitable accounting to be unenforceable because of all earningsthe duration of such provision or the geographic area covered thereby, profits and other benefits arising from the tribunal making such violationdetermination shall have the power to reduce the duration or geographic area of such provision and, which rights in its reduced form, such provision shall be cumulative and in addition to any other rights or remedies to which Company may be entitledenforceable. (g) If the period of time, the area specified or the scope of activity restricted in paragraph (b) above should be adjudged unreasonable in any proceeding then the period of time shall be reduced by such number of months or the area shall be reduced by the elimination of such portion thereof or the scope of restricted activity shall be modified, or any or all of the foregoing so that such restrictions may be enforced in such area and for such time as is adjudged to be reasonable. If Employee violates any of the restrictions contained in the foregoing subparagraph (b), the restrictive period shall not run in favor of Employee from the time of the commencement of any such violation until such time as such violation shall be cured by Employee to the satisfaction of the Company. (h) The provisions of this Section 14 shall cease to apply if the Company fails to pay any installment of the Severance Payment and such failure continues for ten (10) days after Employee has given the Company written notice of such failure.