Confidentiality, Non-Competition and Non-Solicitation Employee agrees, as a condition to Employee’s employment with the Company, to execute the Company’s standard form of Employee Non-Disclosure, Invention Release and Non-Competition Agreement attached hereto as Exhibit A.
Non-Competition; Non-Solicitation (a) In consideration of this Agreement, the Executive agrees that, for the period ending one year after the termination of the Executive's employment with the Company by the Company for Cause or by the Executive without Good Reason (the "Non-Competition Period"), the Executive will not, directly or indirectly (whether as a sole proprietor, partner or venturer, stockholder, director, officer, employee, consultant or in any other capacity as principal or agent or through any Person, subsidiary or employee acting as nominee or agent):
(i) conduct or engage in or be interested in or associated with any Person which conducts or engages in the Triarco Business within the United States;
(ii) take any action, directly or indirectly, to finance, guarantee or provide any other material assistance to any Person engaged in the Triarco Business;
(iii) solicit, contact or accept business of any client or counterparty whom the Company served or conducted business with or whose name became known to the Executive as a potential client or counterparty while in the employ of the Company or during the Non-Competition Period; or
(iv) influence or attempt to influence any Person that is a contracting party with the Company at any time during the Non-Competition Period to terminate any written or oral agreement with the Company.
(b) The Executive shall neither, either on the Executive's own account or in conjunction with or on behalf of any other Person, solicit or entice away from the Company any officer, employee or customer of the Company during the term hereof or the Non-Competition Period nor engage, hire, employ, or induce the employment of any such Person whether or not such officer, employee or customer would commit a breach of contract by reason of leaving service or transferring business.
(c) The restrictive provisions hereof shall not prohibit the Executive from (i) having an equity interest in the securities of any entity engaged in the Triarco Business or any business with respect to which the Executive obtained confidential or proprietary data or information, which entity's securities are listed on a nationally-recognized securities exchange or quotation system or traded in the over-the-counter market, to the extent that such interest does not exceed 5% of the outstanding equity interests of such entity, (ii) investing as a passive investor in an entity engaging in the Triarco Business that is not so listed or traded, so long as such interest does not exceed 5% of the outstanding equity interests of such entity or (iii) with the prior written consent of the Company, serving as a director or other advisor to any other Person.
(d) The Executive agrees that the covenants contained in this Section 10 are reasonable covenants under the circumstances, and further agrees that if in the opinion of a court of competent jurisdiction, such restraint is not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants which as to such court shall appear not reasonable and to enforce the remainder thereof as so amended.
Non-Solicitation; Non-Competition (a) In further consideration of the compensation to be paid to Executive hereunder, Executive acknowledges that in the course of his employment with the Company Group, he has and will continue to become familiar with the Company Group’s trade secrets and with other Confidential Information concerning the Company Group and that his services shall be of special, unique and extraordinary value to the Company Group. Therefore, Executive agrees that while an employee of the Company Group, Executive will not directly or indirectly compete against any member of the Company Group or directly or indirectly divert or attempt to divert any business from any member of the Company Group anywhere such company is doing business.
(b) Executive agrees that for the twelve (12) months following the termination of his employment, Executive will not, directly or indirectly, solicit for the purpose of providing, or otherwise provide, any products or services competitive with the products or services offered by (or planned to be offered by, assuming Executive was aware of those plans while employed by Company) the Company Group to any customer of the Company Group with whom/which Executive had contact on behalf of the Company Group during the twenty-four (24) months preceding the end of Executive’s employment with the Company.
(c) Executive agrees that for the twelve (12) months following the termination of his employment, Executive will not, directly or indirectly, solicit for the purpose of providing, or otherwise provide, any products or services competitive with the products or services offered by (or planned to be offered by, assuming Executive was aware of those plans while employed by Company) the Company Group to any customer of the Company Group about whom/which Executive acquired non-public information during the twenty-four (24) months preceding the end of Executive’s employment with the Company.
(d) Executive agrees that for the twelve (12) months following the termination of his employment, Executive will not request or advise any customer, supplier, licensee, licensor, landlord or other business relation of the Company Group with whom/which Executive had contact on behalf of the Company Group during the twenty-four (24) months preceding the termination of Executive’s employment with the Company to withdraw, curtail or cancel its business dealings with such member of the Company Group.
(e) Executive agrees that for the twelve (12) months following the termination of his employment, Executive will not directly or indirectly recruit or solicit any employee of the Company Group for employment or encourage any employee of the Company Group to leave such member of the Company Group’s employ. An employee shall be deemed covered by this clause (e) while employed by the Company Group and for a period of twelve (12) months thereafter.
(f) In addition, Executive agrees that for the twelve (12) months following the termination of his employment, Executive will not provide, in any capacity, Restricted Services to any business located in the United States or Germany which provides services or products competitive with those sold or provided by any member of the Company Group during the twenty-four (24) months preceding the end of Executive’s employment with the Company. The term “Restricted Services” shall mean services similar to those which Executive provided any member of the Company Group during the twenty-four (24) months preceding Executive’s termination of employment, for whatever reason, and which would involve use or disclosure of the Company’s Confidential Information.
Non Competition Non Solicitation and Confidentiality The Company and Executive acknowledge and agree that while Executive is employed pursuant to this Agreement, the Company will give Executive access to Confidential Information of the Company and its Affiliates to which Executive did not have access prior to signing this Agreement and which Executive may need and use during such employment, the receipt of which is hereby acknowledged by Executive; Executive will be provided under this Agreement (i) specialized training on how to perform his duties and (ii) contact with the Company’s and its Affiliates’ customers and potential customers. In consideration of all of the foregoing, the Company and Executive agree as follows:
Confidentiality Non Solicitation a. All books, records, information and data pertaining to the business of the other party including, but not limited to, the names of the clients (including Dealer Members) of Dealer, a Fund or Distributor ("Confidential Information") that are exchanged or received in connection with this Agreement shall be kept confidential and shall not be used except to the extent necessary to perform each party's obligations under this Agreement. "Confidential Information" shall also include any nonpublic personal information (as defined by Regulation S-P or FTC Regulation 313) regarding Dealer's prospective investors, Dealer Members and other Fund investors or prospective investors, marketing materials and other similar data or information not generally known to the public. "Confidential Information" shall not be voluntarily disclosed to any other person or entity, except (i) if such information is already publicly available except to the extent that such public availability is due to breach of this Agreement by the disclosing party; (ii) as may be required solely for the purpose of carrying out a party's duties and responsibilities under this Agreement; (iii) as required by order or demand of a court or other governmental or regulatory body or as otherwise required by law; (iv) as may be required to be disclosed to a party's attorneys, accountants, regulatory examiners or insurers for legitimate business purposes; or (v) with the express prior written permission of the other party. Each party will limit the disclosure of the other party's Confidential Information to those of its employees and agents with a need to know such Confidential Information for purposes of providing the services set forth in this Agreement. Each party will use reasonable care to prevent its employees and agents from violating the foregoing restrictions.
b. The Distributor agrees to provide to Dealer copies of any communications contemporaneously with their distribution to Dealer Members including, but not limited to, account statements, monthly and/or quarterly investor materials, and any other investor materials, that a Fund, the Distributor, or any of their respective affiliates provide to Dealer Members relating to a Fund within a time period that has been mutually agreed upon by the Distributor and Dealer. Dealer and Distributor agree to work together in good faith to (i) respond in a prompt manner to inquiries of customers of Dealer (including Dealer Members) as communicated by Dealer and (ii) organize informal forums on an as-needed basis for discussing material events relating to the Funds with Dealer Members.
c. Notwithstanding any other provision of this Agreement, each party (and each of its employees, representatives or other agents) may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the Funds and all materials of any kind (including opinions or other tax analyses) that are provided to such party relating to such tax treatment or tax structure; provided, however, that the foregoing does not constitute an authorization to disclose information identifying the Funds or their members, BlackRock Advisors, LLC, or any parties to transactions engaged in by the foregoing or (except to the extent relating to such tax structure or tax treatment) any non-public commercial or financial information.
d. On written request or on the expiration or termination of this Agreement, each party will return to the other party or destroy all Confidential Information in its possession or control, provided that each party may retain a single archival copy of any document or information that such party is obligated to maintain pursuant to record keeping requirements to which it is subject under applicable laws, rules or regulations, but for only so long as such records are required to be maintained and each party may retain any information contained in computer back-up tapes or similar media made in the ordinary course.
