Acknowledgements; Confidential Information; Competitive Activities; Non Solicitation. (a) The Executive acknowledges as follows: (i) The Company is in the payments industry and provides such services both nationally and internationally without limitation to any geographic area. (ii) Since the Company would suffer irreparable harm if the Executive left the Company's employ and solicited employees of the Company or otherwise interfered with business relationships of the Company, it is reasonable to protect the Company against such activities by the Executive for a limited period of time after the Executive leaves the Company. (iii) The covenants contained in Paragraphs 6(b), (c) and (d) below are reasonably necessary for the protection of the Company and are reasonably limited with respect to the activities they prohibit, their duration, their geographical scope and their effect on the Executive and the public. The purpose and effect of the covenants simply are to protect the Company for a limited period of time from unfair competition by the Executive. (b) For the purposes of this Agreement, all confidential or proprietary information concerning the business and affairs of the Company, including, without limitation, all trade secrets, know how and other information generally retained on a confidential basis by the Company concerning its designs, software codes and specifications, formulae, processes, inventions and discoveries, business plans, pricing, product plans and the identities of, and the nature of the Company's dealings with, its members, suppliers and customers, whether or not such information shall, in whole or in part, be subject to or capable of being protected by patent, copyright or trademark laws, shall constitute "Confidential Information." The Executive acknowledges that he will from time to time have access to and obtain knowledge of certain Confidential Information, and that improper use or revelation thereof by the Executive, during or after the termination of his employment by the Company, could cause serious injury to the business of the Company. Accordingly, the Executive agrees that he will forever keep secret and inviolate all Confidential Information which shall have come or shall hereafter come into his possession, and that he will not use the same for his own private benefit, or directly or indirectly for the benefit of others, and that he will not disclose such Confidential Information to any other person. If the Executive is legally compelled (by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process) to disclose any of the Confidential Information, he shall provide the Company with prompt prior written notice of such legal requirement so that the Company may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this section. In any event, the Executive may furnish only that portion of the Confidential Information which the Executive is advised by legal counsel is required, and he shall exercise his best efforts to obtain an order or assurance that confidential treatment will be accorded such Confidential Information as is disclosed. Notwithstanding anything contained herein which may be to the contrary, the term "Confidential Information" does not include any information which at the time of disclosure or thereafter is generally available to and known by the public, other than as a result of a disclosure directly or indirectly by the Executive. (c) In addition to the acknowledgments by the Executive set forth in Paragraph 6(a) above, the Executive acknowledges that the services provided for the Company are a significant factor in the creation of valuable, special and unique assets which are expected to provide the Company with a competitive advantage. Accordingly, the Executive agrees that during the Term of Employment, and thereafter for the duration of the Additional Pay Period or the Recalculated Additional Pay Period, as applicable, or in the event that the Executive is ineligible for Additional Pay pursuant to Paragraph 5(b)(v)(D) hereunder, for a period of six (6) months following the Executive's date of termination in the event the Executive's employment is terminated for Cause pursuant to Paragraph 5(a)(iii), or twelve (12) months following Executive's date of termination in the event the Executive's employment is terminated for any other reason and the Executive is ineligible for Additional Pay pursuant to Paragraph 5(b)(v)(D), the Executive (whether as an employee, officer, director, partner, proprietor, investor, associate, executive, consultant, adviser or otherwise) will not, either directly or indirectly, for the Executive or any third party, engage or invest in any business or activity which is directly or indirectly in competition with any business or activity engaged in by the Company, including, but not limited to, any credit, charge, chip or debit card business or processor. For purposes of the preceding sentence, the Executive shall be deemed to be engaged in any business which any person for whom he shall perform services is engaged. Notwithstanding the foregoing, nothing herein shall prohibit the Executive from having a beneficial ownership interest of less than 3% 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 listed on a national securities exchange or quoted on an inter-dealer quotation system. For the avoidance of doubt, the Company and Executive agree that Executive may perform services or engage in business or activities for a MasterCard Member, without violating the provisions of this Paragraph, provided that Executive may not perform services or engage in business or activities for a MasterCard Member that is party to a brand dedication agreement with VISA USA, VISA International, American Express, JCB, Discover, Diners Club, Xxxxx Xxxxxxx or any other competitor of the Company, the term of which is two years or more. (d) During the Term of Employment, and thereafter for the duration of the Additional Pay Period or the Recalculated Additional Pay Period, as applicable, or in the event that the Executive is ineligible for Additional Pay pursuant to Paragraph 5(b)(v)(D) for a period of twelve (12) months following Executive's date of termination, the Executive shall not himself, or by assisting any other person to, directly or indirectly, (a) solicit, induce, recruit or encourage any other employee, agent, consultant or representative to leave the service of the Company for any reason, or (b) induce any member, customer, supplier or other person with whom the Company engaged in business, or to the knowledge of the Executive planned or proposed to engage in business, to terminate any commercial relationship with the Company or cease to accept or issue its products. Nothing herein contained shall be deemed to prohibit the Executive from hiring any employee, agent, consultant or representative of the Company who responds to a general, written solicitation in any form of media directed at the public in general. (e) Notwithstanding the provisions of paragraphs 6(c) and 6(d) above, the Executive may at his election, reduce the Additional Pay Period to a period of not less than twelve (12) months by providing written notice to the Company of such election. In such case, the restrictions contained in Paragraphs 6(c) and 6(d) shall be in effect only for the duration of such reduced Additional Pay Period and the Company's obligation to continue to provide any further Additional Pay with respect to any period subsequent to such reduced Additional Pay Period under the terms of Paragraphs 5(b)(v)(D) or provide any further benefits under the terms of Paragraph 5(b)(v)(E) shall cease. In the event that the Company determines, in good faith, that the Executive has breached his obligations under Paragraphs 6(b), 6(c) or 6(d), the Company shall be under no obligation to provide any further Additional Pay or provide any further benefits otherwise due under Paragraphs 5(b)(v)(D) or (E) above, during the remainder of the Additional Pay Period. In the event of a judicial determination that the Executive has breached his obligations under Paragraphs 6(b), 6(c) or 6(d), in addition to any damages or other relief otherwise available to the Company, the Executive shall be obligated to reimburse the Company for any Additional Pay previously received from the Company. In addition, following a judicial determination, the prevailing party shall be entitled to be reimbursed by the nonprevailing party for reasonable legal fees and expenses incurred by the prevailing party in connection with the judicial proceeding seeking to enforce the provisions of Paragraph 6 hereof. (f) For the purposes of this Agreement, the period of restriction of confidentiality or proprietary information and competition is intended to limit disclosure and competition by the Executive to the maximum extent permitted by law. If it shall be finally determined by any court of competent jurisdiction ruling on this Agreement that the scope or duration of any limitation contained in this Agreement is too extensive to be legally enforceable, then the parties hereby agree that the provisions hereof shall be construed to be confined to such scope or duration (not greater than that provided for herein) as shall be legally enforceable, and the Executive hereby consents to the enforcement of such limitations as so modified. (g) The Executive acknowledges that any violation by him of the provisions of this Paragraph 6 would cause serious and irreparable damage to the Company. He further acknowledges that it might not be possible to measure such damage in money. Accordingly, the Executive agrees that, in the event of a breach or threatened breach by the Executive of the provisions of this Section, the Company may seek, in addition to any other rights or remedies, including money damages, an injunction or restraining order, without the need to post any bond or other security, prohibiting the Executive from doing or continuing to do any acts constituting such breach or threatened breach.
Appears in 1 contract
Acknowledgements; Confidential Information; Competitive Activities; Non Solicitation. (a) The Executive acknowledges as follows:
(i) The Company is in the payments industry and provides such services both nationally and internationally without limitation to any geographic area.
(ii) Since the Company would suffer irreparable harm if the Executive left the Company's employ and solicited employees of the Company or otherwise interfered with business relationships of the Company, it is reasonable to protect the Company against such activities by the Executive for a limited period of time after the Executive leaves the Company.
(iii) The covenants contained in Paragraphs 6(b7(b), (c) and (d) below are reasonably necessary for the protection of the Company and are reasonably limited with respect to the activities they prohibit, their duration, their geographical scope and their effect on the Executive and the public. The purpose and effect of the covenants simply are to protect the Company for a limited period of time from unfair competition by the Executive.
(b) For the purposes of this Agreement, all confidential or proprietary information concerning the business and affairs of the Company, including, without limitation, all trade secrets, know how and other information generally retained on a confidential basis by the Company concerning its designs, software codes and specifications, formulae, processes, inventions and discoveries, business plans, pricing, product plans and the identities of, and the nature of the Company's dealings with, its members, suppliers and customers, whether or not such information shall, in whole or in part, be subject to or capable of being protected by patent, copyright or trademark laws, shall constitute "Company Confidential Information." The Executive acknowledges that he will from time to time have access to and obtain knowledge of certain Company Confidential Information, and that improper use or revelation thereof by the Executive, during or after the termination of his employment by the Company, could cause serious injury to the business of the Company. Accordingly, the Executive agrees that he will forever keep secret and inviolate all Company Confidential Information which shall have come or shall hereafter come into his possession, and that he will not use the same for his own private benefit, or directly or indirectly for the benefit of others, and that he will not disclose such Company Confidential Information to any other person. If the Executive is legally compelled (by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process) to disclose any of the Company Confidential Information, he shall provide the Company with prompt prior written notice of such legal requirement so that the Company may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this sectionParagraph. In any event, the Executive may furnish only that portion of the Company Confidential Information which the Executive is advised by legal counsel is required, and he shall exercise his best efforts to obtain an order or assurance that confidential treatment will be accorded such Company Confidential Information as is disclosed. Notwithstanding anything contained herein which may be to the contrary, the term "Company Confidential Information" does not include any information which at the time of disclosure or thereafter is generally available to and known by the public, other than then as a result of a disclosure directly or indirectly by the Executive.
(c) In addition to the acknowledgments by the Executive set forth in Paragraph 6(a7(a) above, the Executive acknowledges that the services provided for the Company are a significant factor in the creation of valuable, special and unique assets which are expected to provide the Company with a competitive advantage. Accordingly, the Executive agrees that during the Term of EmploymentTerm, and thereafter for the duration of the Additional Pay Change-in-Control Payment Period or the Recalculated Additional Pay Change-in-Control Payment Period, as applicable, or in the event that the Executive is ineligible for Additional Pay pursuant to Paragraph 5(b)(v)(D) hereunder, for a period of six (6) months following the Executive's date of termination in the event the Executive's employment is terminated for Cause pursuant to Paragraph 5(a)(iii), or twelve (12) months following Executive's date of termination in the event the Executive's employment is terminated for any other reason and the Executive is ineligible for Additional Pay pursuant to Paragraph 5(b)(v)(D), the Executive (whether as an employee, officer, director, partner, proprietor, investor, associate, executive, consultant, adviser or otherwise) will not, either directly or indirectly, for the Executive or any third party, engage or invest in any business or activity which is directly or indirectly in competition with any business or activity engaged in by the Company, including, but not limited to, any credit, charge, chip or debit card business or processor. For purposes of the preceding sentence, the Executive shall be deemed to be engaged in any business which any person for whom he shall perform services is engaged. Notwithstanding the foregoing, nothing herein shall prohibit the Executive from having a beneficial ownership interest of less than 3% 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 listed on a national securities exchange or quoted on an inter-dealer quotation system. For the avoidance of doubt, the Company and Executive agree that Executive may perform services or engage in business or activities for a MasterCard Member, without violating the provisions of this Paragraph, provided that Executive may not perform services or engage in business or activities for a MasterCard Member that is party to a brand dedication agreement with VISA USA, VISA International, American Express, JCB, Discover, Diners Club, Xxxxx Xxxxxxx or any other competitor of the Company, the term of which is two years or more.
(d) During the Term of EmploymentTerm, and thereafter for the duration of the Additional Pay Change-in-Control Payment Period or the Recalculated Additional Pay Change-in-Control Payment Period, as applicable, or in the event that the Executive is ineligible for Additional Pay pursuant to Paragraph 5(b)(v)(D) for a period of twelve (12) months following Executive's date of termination, the Executive shall not himself, or by assisting any other person to, directly or indirectly, (a) solicit, induce, recruit or encourage any other employee, agent, consultant or representative to leave the service of the Company for any reason, or (b) induce any member, customer, supplier or other person with whom the Company engaged in business, or to the knowledge of the Executive planned or proposed to engage in business, to terminate any commercial relationship with the Company or cease to accept or issue its products. Nothing herein contained shall be deemed to prohibit the Executive from hiring any employee, agent, consultant or representative of the Company who responds to a general, written solicitation in any form of media directed at the public in general.
(e) Notwithstanding the provisions of paragraphs 6(c7(c) and 6(d7(d) above, the Executive may at his election, reduce the Additional Pay Period payment period (thereby reducing the total payments required) under Paragraph 3 above to a period of not less than twelve (12) months by providing written notice to the Company of such election. In such case, the restrictions contained in Paragraphs 6(c7(c) and 6(d7(d) shall be in effect only for the duration of such reduced Additional Pay Period payment period and the Company's obligation to continue to provide any further Additional Pay payments with respect to any period subsequent to such reduced Additional Pay Period payment period under the terms of Paragraphs 5(b)(v)(D) Paragraph 3 or provide any further benefits under the terms of Paragraph 5(b)(v)(E) 5 shall cease. In the event that the Company determines, in good faith, that the Executive has breached his obligations under Paragraphs 6(b7(b), 6(c7(c) or 6(d7(d), the Company shall be under no obligation to provide any further Additional Pay payments under the terms of Paragraph 3 or provide any further benefits otherwise due under Paragraphs 5(b)(v)(D) or (E) 5 above, during the remainder of the Additional Pay Periodpayment period. In the event of a judicial determination that the Executive has breached his obligations under Paragraphs 6(b7(b), 6(c7(c) or 6(d7(d), in addition to any damages or other relief otherwise available to the Company, the Executive shall be obligated to reimburse the Company for any Additional Pay payments previously received from the Company. In addition, following a judicial determination, the prevailing party shall be entitled to be reimbursed by the nonprevailing non-prevailing party for reasonable legal fees and expenses incurred by the prevailing party in connection with the judicial proceeding seeking to enforce the provisions of Paragraph 6 7 hereof.
(f) For the purposes of this Agreement, the period of restriction of confidentiality or proprietary information and competition is intended to limit disclosure and competition by the Executive to the maximum extent permitted by law. If it shall be finally determined by any court of competent jurisdiction ruling on this Agreement that the scope or duration of any limitation contained in this Agreement is too extensive to be legally enforceable, then the parties hereby agree that the provisions hereof shall be construed to be confined to such scope or duration (not greater than that provided for herein) as shall be legally enforceable, and the Executive hereby consents to the enforcement of such limitations as so modified.
(g) The Executive acknowledges that any violation by him of the provisions of this Paragraph 6 7 would cause serious and irreparable damage to the Company. He further acknowledges that it might not be possible to measure such damage in money. Accordingly, the Executive agrees that, in the event of a breach or threatened breach by the Executive of the provisions of this SectionParagraph, the Company may seek, in addition to any other rights or remedies, including money damages, an injunction or restraining order, without the need to post any bond or other security, prohibiting the Executive from doing or continuing to do any acts constituting such breach or threatened breach.
Appears in 1 contract
Acknowledgements; Confidential Information; Competitive Activities; Non Solicitation. (a) 6.1 The Executive acknowledges as follows:
(i) 6.1.1 The Company is in the payments industry and provides such services both nationally and internationally without limitation to any geographic area.
(ii) 6.1.2 Since the Company would suffer irreparable harm if the Executive left the Company's employ and solicited employees of the Company or otherwise interfered with business relationships of the Company, it is reasonable to protect the Company against such activities by the Executive for a limited period of time after the Executive leaves the Company.
(iii) 6.1.3 The covenants contained in Paragraphs 6(b)6.2, (c) 6.3 and (d) 6.4 below are reasonably necessary for the protection of the Company and are reasonably limited with respect to the activities they prohibit, their duration, their geographical scope and their effect on the Executive and the public. The purpose and effect of the covenants simply are to protect the Company for a limited period of time from unfair competition by the Executive.
(b) 6.2 For the purposes of this Agreement, all confidential or proprietary information concerning the business and affairs of the Company, including, without limitation, all trade secrets, know how and other information generally retained on a confidential basis by the Company concerning its designs, software codes and specifications, formulae, processes, inventions and discoveries, business plans, pricing, product plans and the identities of, and the nature of the Company's dealings with, its members, suppliers and customers, whether or not such information shall, in whole or in part, be subject to or capable of being protected by patent, copyright or trademark laws, shall constitute "Confidential Information." The Executive acknowledges that he will from time to time have access to and obtain knowledge of certain Confidential Information, and that improper use or revelation thereof by the Executive, during or after the termination of his employment by the Company, could cause serious injury to the business of the Company. Accordingly, the Executive agrees that that, unless otherwise required by law, he will forever keep secret and inviolate all Confidential Information which shall have come or shall hereafter come into his possession, and that he will not use the same for his own private benefit, or directly or indirectly for the benefit of others, and that he will not disclose such Confidential Information to any other person. If the Executive is legally compelled (by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process) to disclose any of the Confidential Information, he shall provide the Company with prompt prior written notice of such legal requirement so that the Company may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this section. In any event, the Executive may furnish only that portion of the Confidential Information which the Executive is advised by legal counsel is required, and he shall exercise his best efforts to obtain an order or assurance that confidential treatment will be accorded such Confidential Information as is disclosed. Notwithstanding anything contained herein which may be to the contrary, the term "Confidential Information" does not include any information which at the time of disclosure or thereafter is generally available to and known by the public, other than as a result of a disclosure directly or indirectly by the Executive.
(c) 6.3 In addition to the acknowledgments by the Executive set forth in Paragraph 6(a) 6.1 above, the Executive acknowledges that the services provided for the Company are a significant factor in the creation of valuable, special and unique assets which are expected to provide the Company with a competitive advantage. Accordingly, the Executive agrees that during the Term of Employment, and thereafter for the duration of the Additional Pay Period or the Recalculated Additional Pay Period, as applicable, or in the event that the Executive is ineligible for Additional Pay pursuant to Paragraph 5(b)(v)(D5.2.5(d) hereunder, for a period of six (6) months following the Executive's date of termination in the event the Executive's employment is terminated for Cause pursuant to Paragraph 5(a)(iii), or twelve (12) months following Executive's date of termination in the event the Executive's employment is terminated for any other reason and the Executive is ineligible for Additional Pay pursuant to Paragraph 5(b)(v)(D)termination, the Executive (whether as an employee, officer, director, partner, proprietor, investor, associate, executive, consultant, adviser or otherwise) will not, either directly or indirectly, for the Executive or any third party, engage or invest in any business or activity which is directly or indirectly in competition with any business or activity engaged in by the CompanyCompany or business or activity in which the Company planned or proposed, to the knowledge of the Executive, to become engaged including, but not limited to, any credit, charge, chip or debit card business or processor. For purposes of the preceding sentence, the Executive shall be deemed to be engaged in any business which any person for whom he shall perform services is engaged. Notwithstanding the foregoing, nothing herein shall prohibit the Executive from having a beneficial ownership interest of less than 3% 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 listed on a national securities exchange or quoted on an inter-dealer quotation system. For the avoidance of doubt, the Company and Executive agree that Executive may perform services or engage in business or activities for a MasterCard Member, without violating the provisions of this Paragraph, provided that Executive may not perform services or engage in business or activities for a MasterCard Member that is party to a brand dedication agreement with respect to a significant portion of its card portfolio with VISA USA, VISA International, American Express, JCB, Discover, Diners Club, Xxxxx Xxxxxxx or any other competitor of the Company, the term of which is two years or more.
(d) 6.4 During the Term of Employment, and thereafter for the duration of the Additional Pay Period or the Recalculated Additional Pay Period, as applicable, or in the event that the Executive is ineligible for Additional Pay pursuant to Paragraph 5(b)(v)(D5.2.5(d) for a period of twelve (12) months following Executive's date of termination, the Executive shall not himself, or by assisting any other person to, directly or indirectly, (a) solicit, induce, recruit or encourage any other employee, agent, consultant or representative to leave the service of the Company for any reason, or (b) induce any member, customer, supplier or other person with whom the Company engaged in business, or to the knowledge of the Executive planned or proposed to engage in business, to terminate any commercial relationship with the Company or cease to accept or issue its products. Nothing herein contained shall be deemed to prohibit the Executive from hiring any employee, agent, consultant or representative of the Company who responds to a general, written solicitation in any form of media directed at the public in general.
(e) 6.5 Notwithstanding the provisions of paragraphs 6(c) 6.3 and 6(d) 6.4 above, the Executive may at his election, reduce the Additional Pay Period to a period of not less than twelve (12) months by providing written notice to the Company of such election. In such case, the restrictions contained in Paragraphs 6(c) 6.3 and 6(d) 6.4 shall be in effect only for the duration of such reduced Additional Pay Period and the Company's obligation to continue to provide any further Additional Pay with respect to any period subsequent to such reduced Additional Pay Period under the terms of Paragraphs 5(b)(v)(D5.2.5(d) or provide any further benefits under the terms of Paragraph 5(b)(v)(E5.2.5(e) shall cease. In the event that the Company determines, in good faith, that the Executive has breached his obligations under Paragraphs 6(b)6.2, 6(c) 6.3 or 6(d)6.4, the Company shall be under no obligation to provide any further Additional Pay or provide any further benefits otherwise due under Paragraphs 5(b)(v)(D5.2.5(d) or (Ee) above, during the remainder of the Additional Pay Period. In the event of a judicial determination that the Executive has breached his obligations under Paragraphs 6(b)6.2, 6(c) 6.3 or 6(d)6.4, in addition to any damages or other relief otherwise available to the Company, the Executive shall be obligated to reimburse the Company for any Additional Pay previously received from the Company. In addition, following a judicial determination, the prevailing party shall be entitled to be reimbursed by the nonprevailing non-prevailing party for reasonable legal fees and expenses incurred by the prevailing party in connection with the judicial proceeding seeking to enforce the provisions of Paragraph 6 hereof.
(f) 6.6 For the purposes of this Agreement, the period of restriction of confidentiality or proprietary information and competition is intended to limit disclosure and competition by the Executive to the maximum extent permitted by law. If it shall be finally determined by any court of competent jurisdiction ruling on this Agreement that the scope or duration of any limitation contained in this Agreement is too extensive to be legally enforceable, then the parties hereby agree that the provisions hereof shall be construed to be confined to such scope or duration (not greater than that provided for herein) as shall be legally enforceable, and the Executive hereby consents to the enforcement of such limitations as so modified.
(g) 6.7 The Executive acknowledges that any violation by him of the provisions of this Paragraph 6 would cause serious and irreparable damage to the Company. He further acknowledges that it might not be possible to measure such damage in money. Accordingly, the Executive agrees that, in the event of a breach or threatened breach by the Executive of the provisions of this Section, the Company may seek, in addition to any other rights or remedies, including money damages, an injunction or restraining order, without the need to post any bond or other security, prohibiting the Executive from doing or continuing to do any acts constituting such breach or threatened breach.
Appears in 1 contract
Acknowledgements; Confidential Information; Competitive Activities; Non Solicitation. (a) 7.1 The Executive acknowledges as follows:
(i) 7.1.1 The Company is in the payments industry and provides such services both nationally and internationally without limitation to any geographic area.
(ii) 7.1.2 Since the Company would suffer irreparable harm if the Executive left the Company's employ and solicited employees of the Company or otherwise interfered with business relationships of the Company, it is reasonable to protect the Company against such activities by the Executive for a limited period of time after the Executive leaves the Company.
(iii) 7.1.3 The covenants contained in Paragraphs 6(b)7.2, (c) 7.3 and (d) 7.4 below are reasonably necessary for the protection of the Company and are reasonably limited with respect to the activities they prohibit, their duration, their geographical scope and their effect on the Executive and the public. The purpose and effect of the covenants simply are to protect the Company for a limited period of time from unfair competition by the Executive.
(b) 7.2 For the purposes of this Agreement, all confidential or proprietary information concerning the business and affairs of the Company, including, without limitation, all trade secrets, know how and other information generally retained on a confidential basis by the Company concerning its designs, software codes and specifications, formulae, processes, inventions and discoveries, business plans, pricing, product plans and the identities of, and the nature of the Company's dealings with, its members, suppliers and customers, whether or not such information shall, in whole or in part, be subject to or capable of being protected by patent, copyright or trademark laws, shall constitute "Company Confidential Information." The Executive acknowledges that he will from time to time have access to and obtain knowledge of certain Company Confidential Information, and that improper use or revelation thereof by the Executive, during or after the termination of his employment by the Company, could cause serious injury to the business of the Company. Accordingly, the Executive agrees that that, unless otherwise required by law, he will forever keep secret and inviolate all Company Confidential Information which shall have come or shall hereafter come into his possession, and that he will not use the same for his own private benefit, or directly or indirectly for the benefit of others, and that he will not disclose such Company Confidential Information to any other person. If the Executive is legally compelled (by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process) to disclose any of the Company Confidential Information, he shall provide the Company with prompt prior written notice of such legal requirement so that the Company may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this sectionParagraph. In any event, the Executive may furnish only that portion of the Company Confidential Information which the Executive is advised by legal counsel is required, and he shall exercise his best efforts to obtain an order or assurance that confidential treatment will be accorded such Company Confidential Information as is disclosed. Notwithstanding anything contained herein which may be to the contrary, the term "Company Confidential Information" does not include any information which at the time of disclosure or thereafter is generally available to and known by the public, other than then as a result of a disclosure directly or indirectly by the Executive.
(c) 7.3 In addition to the acknowledgments by the Executive set forth in Paragraph 6(a) 7.1 above, the Executive acknowledges that the services provided for the Company are a significant factor in the creation of valuable, special and unique assets which are expected to provide the Company with a competitive advantage. Accordingly, the Executive agrees that during the Term of EmploymentTerm, and thereafter for the duration of the Additional Pay Change-in-Control Payment Period or the Recalculated Additional Pay Change-in-Control Payment Period, as applicable, or in the event that the Executive is ineligible for Additional Pay pursuant to Paragraph 5(b)(v)(D) hereunder, for a period of six (6) months following the Executive's date of termination in the event the Executive's employment is terminated for Cause pursuant to Paragraph 5(a)(iii), or twelve (12) months following Executive's date of termination in the event the Executive's employment is terminated for any other reason and the Executive is ineligible for Additional Pay pursuant to Paragraph 5(b)(v)(D), the Executive (whether as an employee, officer, director, partner, proprietor, investor, associate, executive, consultant, adviser or otherwise) will not, either directly or indirectly, for the Executive or any third party, engage or invest in any business or activity which is directly or indirectly in competition with any business or activity engaged in by the CompanyCompany or business or activity in which the Company planned or proposed, to the knowledge of the Executive, to become engaged, including, but not limited to, any credit, charge, chip or debit card business or processor. For purposes of the preceding sentence, the Executive shall be deemed to be engaged in any business which any person for whom he shall perform services is engaged. Notwithstanding the foregoing, nothing herein shall prohibit the Executive from having a beneficial ownership interest of less than 3% 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 listed on a national securities exchange or quoted on an inter-dealer quotation system. For the avoidance of doubt, the Company and Executive agree that Executive may perform services or engage in business or activities for a MasterCard Member, without violating the provisions of this Paragraph, provided that Executive may not perform services or engage in business or activities for a MasterCard Member that is party to a brand dedication agreement with VISA USA, VISA International, American Express, JCB, Discover, Diners Club, Xxxxx Xxxxxxx or any other competitor of the Company, the term of which is two years or more.
(d) 7.4 During the Term of EmploymentTerm, and thereafter for the duration of the Additional Pay Change-in-Control Payment Period or the Recalculated Additional Pay Change-in-Control Payment Period, as applicable, or in the event that the Executive is ineligible for Additional Pay pursuant to Paragraph 5(b)(v)(D) for a period of twelve (12) months following Executive's date of termination, the Executive shall not himself, or by assisting any other person to, directly or indirectly, (a) solicit, induce, recruit or encourage any other employee, agent, consultant or representative to leave the service of the Company for any reason, or (b) induce any member, customer, supplier or other person with whom the Company engaged in business, or to the knowledge of the Executive planned or proposed to engage in business, to terminate any commercial relationship with the Company or cease to accept or issue its products. Nothing herein contained shall be deemed to prohibit the Executive from hiring any employee, agent, consultant or representative of the Company who responds to a general, written solicitation in any form of media directed at the public in general.
(e) 7.5 Notwithstanding the provisions of paragraphs 6(c) 7.3 and 6(d) 7.4 above, the Executive may at his election, reduce the Additional Pay Period payment period (thereby reducing the total payments required) under Paragraph 3 above to a period of not less than twelve (12) months by providing written notice to the Company of such election. In such case, the restrictions contained in Paragraphs 6(c) 7.3 and 6(d) 7.4 shall be in effect only for the duration of such reduced Additional Pay Period payment period and the Company's obligation to continue to provide any further Additional Pay payments with respect to any period subsequent to such reduced Additional Pay Period payment period under the terms of Paragraphs 5(b)(v)(D) Paragraph 3 or provide any further benefits under the terms of Paragraph 5(b)(v)(E) 5 shall cease. In the event that the Company determines, in good faith, that the Executive has breached his obligations under Paragraphs 6(b)7.2, 6(c) 7.3 or 6(d)7.4, the Company shall be under no obligation to provide any further Additional Pay payments under the terms of Paragraph 3 or provide any further benefits otherwise due under Paragraphs 5(b)(v)(D) or (E) 5 above, during the remainder of the Additional Pay Periodpayment period. In the event of a judicial determination that the Executive has breached his obligations under Paragraphs 6(b)7.2, 6(c) 7.3 or 6(d)7.4, in addition to any damages or other relief otherwise available to the Company, the Executive shall be obligated to reimburse the Company for any Additional Pay payments previously received from the Company. In addition, following a judicial determination, the prevailing party shall be entitled to be reimbursed by the nonprevailing non-prevailing party for reasonable legal fees and expenses incurred by the prevailing party in connection with the judicial proceeding seeking to enforce the provisions of Paragraph 6 7 hereof.
(f) 7.6 For the purposes of this Agreement, the period of restriction of confidentiality or proprietary information and competition is intended to limit disclosure and competition by the Executive to the maximum extent permitted by law. If it shall be finally determined by any court of competent jurisdiction ruling on this Agreement that the scope or duration of any limitation contained in this Agreement is too extensive to be legally enforceable, then the parties hereby agree that the provisions hereof shall be construed to be confined to such scope or duration (not greater than that provided for herein) as shall be legally enforceable, and the Executive hereby consents to the enforcement of such limitations as so modified.
(g) 7.7 The Executive acknowledges that any violation by him of the provisions of this Paragraph 6 7 would cause serious and irreparable damage to the Company. He further acknowledges that it might not be possible to measure such damage in money. Accordingly, the Executive agrees that, in the event of a breach or threatened breach by the Executive of the provisions of this SectionParagraph, the Company may seek, in addition to any other rights or remedies, including money damages, an injunction or restraining order, without the need to post any bond or other security, prohibiting the Executive from doing or continuing to do any acts constituting such breach or threatened breach.
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