Certain Restrictive Covenants. (a) The Executive shall not, at any time during the Term or during the 12-month period following the Date of Termination (the “Non-Compete Term”) without the Board’s prior written consent directly or indirectly engage in, have any equity interest in, or manage or operate (whether as a director, officer, employee, agent, representative, security holder, consultant or otherwise) any Competitive Business; provided, however, that: (x) the Executive shall be permitted to acquire a passive stock or equity interest in such a Competitive Business provided the stock or other equity interest acquired is not more than five percent (5%) of the outstanding interest in such a Competitive Business; (y) the Executive shall be permitted to acquire any investment through a mutual fund, private equity fund or other pooled account that is not controlled by the Executive and which he has less than a five percent (5%) interest; or (z) the Executive may provide services to a subsidiary, division or Affiliate of a Competitive Business if such subsidiary, division or Affiliate is not itself engaged in a Competitive Business and the Executive does not provide services to, or have any responsibilities regarding, the Competitive Business. At any time during the Non-Compete Term following the Date of Termination, the Executive may request in writing to the Board that the Board consent to the Executive’s direct or indirect engagement in, ownership of equity interest in, or management or operation of (whether as a director, officer, employee, agent, representative, security holder, consultant or otherwise) any Competitive Business, which request the Board shall consider in good faith based upon the Board’s reasonable determination of the potential impact of the Executive’s involvement in such Competitive Business on the Company and its stockholders. If the Executive believes that the Board would benefit from any additional information or if the Executive has any issues or questions regarding any action taken or to be taken by the Board in connection with this Section 9(a), then the Board and the Executive (along with their respective representatives) shall meet and discuss any such issues or questions, and the Executive shall be permitted to present the Board with any relevant information that he deems appropriate. The Board and the Executive shall act in good faith to address all outstanding issues and questions while protecting the interests of the Company and its stockholders. (b) During the 12 month period following the Date of Termination, the Executive shall not, directly or indirectly (a) recruit, hire or otherwise solicit any person employed by the Company, its subsidiaries, or any of their respective Affiliates as of the Termination Date, (b) recruit, hire or otherwise solicit for employment any person known by the Executive (after reasonable inquiry) to be employed at the time by the Company, its subsidiaries, or any of their respective Affiliates as of the date of the solicitation, (c) recruit or otherwise solicit or induce any non-clerical employee, director, consultant, wholesale customer, vendor, supplier, lessor or lessee of the Company to terminate his or its employment or arrangement with the Company or otherwise change its relationship with the Company, provided that nothing in this Section 9(b) shall prohibit the Executive from providing employment, personal or other references for any such Person or general advertising for employees by the Executive or any Person of which the Executive is an employee or Affiliate. (c) Except as the Executive deems necessary (or, in good faith, desirable) to be disclosed in connection with the performance of the Executive’s duties hereunder or as specifically set forth in this Section 9, the Executive shall, in perpetuity, maintain in confidence and shall not directly, indirectly or otherwise, use, disseminate, disclose or publish, or use for his benefit or the benefit of any person, firm, corporation or other entity any confidential or proprietary information or trade secrets of or relating to the Company, including, without limitation, information with respect to the Company’s operations, processes, products, inventions, business practices, finances, principals, vendors, suppliers, customers, potential customers, marketing methods, costs, prices, contractual relationships, regulatory status, business plans, designs, marketing or other business strategies, compensation paid to employees or other terms of employment, or deliver to any person, firm, corporation or other entity any document, record, notebook, computer program or similar repository of or containing any such confidential or proprietary information or trade secrets. Notwithstanding anything herein to the contrary, nothing shall prohibit the Executive from disclosing any information that is (i) generally known by the public (unless such knowledge occurs as a result of the Executive’s breach of any portion of this Section 9(c)), (ii) when disclosure is required by law or by any court, arbitrator, mediator or administrative or legislative body (including any committee thereof) with apparent jurisdiction to order the Executive to disclose or make accessible any information, provided that, unless otherwise prohibited by law and provided such information is not related to any illegal activities of the Company or any of its subsidiaries, the Executive shall provide the Company with prompt notice of any such requested or required disclosure and shall reasonably cooperate with the Company in any effort by the Company to prevent or otherwise contest such disclosure or (iii) with respect to any other litigation, arbitration or mediation involving this Agreement, including, but not limited to, the enforcement of this Agreement. The parties hereby stipulate and agree that as between them the foregoing matters are important, material and confidential proprietary information and trade secrets and affect the successful conduct of the businesses of the Company (and any successor or assignee of the Company). Upon termination of the Executive’s employment with the Company for any reason, the Executive will promptly deliver to the Company all correspondence, drawings, manuals, letters, notes, notebooks, reports, programs, plans, proposals, financial documents, or any other documents concerning the Company’s customers, business plans, designs, marketing or other business strategies, products or processes, provided that the Executive may retain (i) papers and other materials of a personal nature, including, but not limited to, photographs, correspondence, personal diaries, calendars and rolodexes, personal files and phone books, (ii) information showing his compensation or relating to reimbursement of expenses, (iii) information that he reasonably believes may be needed for tax purposes, (iv) copies of plans, programs and agreements relating to his employment, or termination thereof, with the Company and (v) copies of minutes, presentation materials and personal notes from any meeting of the Board, or any committee thereof, while he was a member of the Board. (d) The Executive shall reasonably cooperate with and assist the Company and its counsel at any time and in any manner reasonably required by the Company or its counsel (with due regard for the Executive’s other commitments if he is not employed by the Company) in connection with any litigation or other legal process affecting the Company of which the Executive has knowledge as a result of his employment with the Company (other than any litigation with respect to this Agreement). In any event, (i) in any matter subject to this Section 9(d), the Executive shall not be required to act against the best interests of any new employer or new business venture in which he is a partner or active participant and (ii) any request for such cooperation shall take into account (A) the significance of the matters at issue in the litigation, arbitration, proceeding or investigation and (B) the Executive’s other personal and business commitments. The Company agrees to provide the Executive reasonable notice in the event his assistance is required. The Company will reimburse the Executive for all reasonable expenses and costs he may incur as a result of providing such assistance, including lost wages (after the Term), travel costs and legal fees to the extent the Executive reasonably believes that separate representation is warranted. The Executive’s entitlement to reimbursement of expenses, including legal fees pursuant to this Section 9(d), shall in no way affect the Executive’s rights to be indemnified and/or advanced expenses in accordance with the Company’s corporate documents, insurance policies and/or in accordance with this Agreement. (e) The Executive shall not intentionally disparage the Company, any of its products or practices, or any of its directors, officers, or employees, whether orally, in writing or otherwise, at any time. The Company (including without limitation its directors) shall not intentionally disparage the Executive, whether orally, in writing or otherwise, at any time. Notwithstanding the foregoing: nothing in this Section 9(e) shall (i) limit the ability of the Company or the Executive, as applicable, to provide truthful testimony as required by law or any judicial or administrative process or the Executive from making normal commercial competitive type statements in a competitive business situation not based on his employment with the Company, or (ii) prevent any Person from (x) responding publicly to incorrect, disparaging or derogatory public statements to the extent reasonably necessary to correct or refute such public statement or (y) making any truthful statement to the extent necessary in any litigation, arbitration or mediation proceeding involving this Agreement, including, but not limited to, the enforcement of this Agreement. In no event shall any termination of the Executive’s employment by the Company or the Executive for any reason constitute disparagement for purposes of this Section 9(e). (f) The Executive agrees that all strategies, methods, processes, techniques, marketing plans, merchandising schemes, themes, layouts, mechanicals, trade secrets, copyrights, trademarks, patents, ideas, specifications and other material or work product (“Intellectual Property”) that the Executive creates, develops or assembles in connection with his employment hereunder shall become the permanent and exclusive property of the Company to be used in any manner it sees fit, in its sole discretion. The Executive shall not communicate to the Company any ideas, concepts, or other intellectual property of any kind (other than that required in his capacity as an officer of the Company) which (i) were earlier communicated to the Executive in confidence by any third party as proprietary information, or (ii) the Executive knows or has reason to know is the proprietary information of any third party. All Intellectual Property created or assembled in connection with the Executive’s employment hereunder shall be the permanent and exclusive property of the Company. The Company and the Executive mutually agree that all Intellectual Property and work product created in connection with this Agreement, which is subject to copyright, shall be deemed to be “work made for hire,” and that all rights to copyrights shall be vested in the Company. If for any reason the Company cannot be deemed to have commissioned “work made for hire,” and its rights to copyright are thereby in doubt, then the Executive agrees not to claim to be the proprietor of the work prepared for the Company, and to irrevocably assign to the Company, at the Company’s expense, all rights in the copyright of the work prepared for the Company. (g) The Company and the Executive expressly acknowledge and agree that the agreements and covenants contained in this Section 9 are reasonable. In the event, however, that any agreement or covenant contained in this Section 9 shall be determined by any court of competent jurisdiction to be unenforceable by reason of its extending for too great a period of time or over too great a geographical area or by reason of its being too extensive in any other respect, it will be interpreted to extend only over the maximum period of time for which it may be enforceable, and/or over the maximum geographical area as to which it may be enforceable and/or to the maximum extent in all other respects as to which it may be enforceable, all as determined by such court in such action. (h) As used in this Section 9, the term “Company” shall include the Company and any of its direct or indirect subsidiaries within the meaning of Code Section 424(f). (i) Any limitation on the Executive’s activities or any forfeiture of benefits, equity or compensation based on violation of limitations on the Executive’s activities shall not be based on any limitation that is any broader than those set forth in this Section 9.
Appears in 5 contracts
Samples: Employment Agreement (Monster Worldwide, Inc.), Employment Agreement (Monster Worldwide, Inc.), Employment Agreement (Monster Worldwide, Inc.)
Certain Restrictive Covenants. (a) The Executive shall not, at any time during the Term or during the 1218-month period following the Date of Termination (or, in the “event of any termination of the Executive's employment pursuant to Section 6(a)(vii) due to the Company's non-extension of the Term, the 12-month period following the Date of Termination) (either such period, the "Non-Compete Term”") without the Board’s 's prior written consent directly or indirectly engage in, have any equity interest in, or manage or operate (whether as a director, officer, employee, agent, representative, security holder, consultant or otherwise) any Competitive Business; provided, however, that: (x) the Executive shall be permitted to acquire a passive stock or equity interest in such a Competitive Business provided the stock or other equity interest acquired is not more than five percent (5%) of the outstanding interest in such a Competitive Business; or (y) the Executive shall be permitted to acquire any investment through a mutual fund, private equity fund or other pooled account that is not controlled by the Executive and which he has less than a five percent (5%) interest; or (z) the Executive may provide services to a subsidiary, division or Affiliate of a Competitive Business if such subsidiary, division or Affiliate is not itself engaged in a Competitive Business and the Executive does not provide services to, or have any responsibilities regarding, the Competitive Business. At any time during the Non-Compete Term following the Date of Termination, the Executive may request in writing to the Board that the Board consent to the Executive’s 's direct or indirect engagement in, ownership of equity interest in, or management or operation of (whether as a director, officer, employee, agent, representative, security holder, consultant or otherwise) any Competitive Business, which request the Board shall consider in good faith based upon the Board’s 's reasonable determination of the potential impact of the Executive’s 's involvement in such Competitive Business on the Company and its stockholders. If the Executive believes that the Board would benefit from any additional information or if the Executive has any issues or questions regarding any action taken or to be taken by the Board in connection with this Section 9(a), then the Board and the Executive (along with their respective representatives) shall meet and discuss any such issues or questions, questions and the Executive shall be permitted to present the Board with any relevant information that he deems appropriate. The appropriate and the Board and the Executive shall act in good faith to address all outstanding issues and questions while protecting the interests of the Company and its stockholders.
(b) During the 12 24 month period following the Date of Termination, the Executive shall will not, directly or indirectly (a) recruit, hire or otherwise solicit any person employed by the Company, its subsidiaries, or any of their respective Affiliates as of the Termination Date, (b) recruit, hire or otherwise solicit for employment any person known by the Executive (after reasonable inquiry) to be employed at the time by the Company, its subsidiaries, or any of their respective Affiliates as of the date of the solicitation, (c) recruit or otherwise solicit or induce any non-clerical employee, director, consultant, wholesale customer, vendor, supplier, lessor or lessee of the Company to terminate his or its employment or arrangement with the Company or otherwise change its relationship with the Company, provided that nothing in this Section 9(b) shall prohibit the Executive from providing employment, personal or other references for any such Person or general advertising for employees by the Executive or any Person of which the Executive is an employee or Affiliate.
(c) Except as the Executive deems necessary (or, in good faith, desirable) to be disclosed in connection with the performance of the Executive’s 's duties hereunder or as specifically set forth in this Section 9, the Executive shall, in perpetuity, maintain in confidence and shall not directly, indirectly or otherwise, use, disseminate, disclose or publish, or use for his benefit or the benefit of any person, firm, corporation or other entity any confidential or proprietary information or trade secrets of or relating to the Company, including, without limitation, information with respect to the Company’s 's operations, processes, products, inventions, business practices, finances, principals, vendors, suppliers, customers, potential customers, marketing methods, costs, prices, contractual relationships, regulatory status, business plans, designs, marketing or other business strategies, compensation paid to employees or other terms of employment, or deliver to any person, firm, corporation or other entity any document, record, notebook, computer program or similar repository of or containing any such confidential or proprietary information or trade secrets. Notwithstanding anything herein to the contrary, nothing shall prohibit the Executive from disclosing any information that is (i) generally known by the public (unless such knowledge occurs as a result of the Executive’s breach of any portion of this Section 9(c)), (ii) when disclosure is required by law or by any court, arbitrator, mediator or administrative or legislative body (including any committee thereof) with apparent jurisdiction to order the Executive to disclose or make accessible any information, provided that, unless otherwise prohibited by law and provided such information is not related to any illegal activities of the Company or any of its subsidiaries, the Executive shall provide the Company with prompt notice of any such requested or required disclosure and shall reasonably cooperate with the Company in any effort by the Company to prevent or otherwise contest such disclosure or (iii) with respect to any other litigation, arbitration or mediation involving this Agreement, including, but not limited to, the enforcement of this Agreementpublic. The parties hereby stipulate and agree that as between them the foregoing matters are important, material and confidential proprietary information and trade secrets and affect the successful conduct of the businesses of the Company (and any successor or assignee of the Company). Upon termination of the Executive’s 's employment with the Company for any reason, the Executive will promptly deliver to the Company all correspondence, drawings, manuals, letters, notes, notebooks, reports, programs, plans, proposals, financial documents, or any other documents concerning the Company’s 's customers, business plans, designs, marketing or other business strategies, products or processes, provided that the Executive may retain (i) papers his rolodex, address book and other materials of similar information and any non-proprietary documents he received as a personal nature, including, but not limited to, photographs, correspondence, personal diaries, calendars and rolodexes, personal files and phone books, (ii) information showing his compensation or relating to reimbursement of expenses, (iii) information that he reasonably believes may be needed for tax purposes, (iv) copies of plans, programs and agreements relating to his employment, or termination thereof, with the Company and (v) copies of minutes, presentation materials and personal notes from any meeting of the Board, or any committee thereof, while he was a member of the Boarddirector.
(d) The Notwithstanding Section 9(c), the Executive may respond to a lawful and valid subpoena or other legal process or other government or regulatory inquiry but shall give the Company prompt notice thereof (except to the extent legally prohibited), and shall, as much in advance of the return date as is reasonably cooperate with and assist practicable, make available to the Company and its counsel at copies of any time and documents sought which are in any manner reasonably required by the Company or its counsel (with due regard for the Executive’s other commitments if he is not employed by the Company) in connection with any litigation 's possession or other legal process affecting the Company of to which the Executive otherwise has knowledge as a result of his employment with the Company (other than any litigation with respect to this Agreement). In any event, (i) in any matter subject to this Section 9(d), the Executive shall not be required to act against the best interests of any new employer or new business venture in which he is a partner or active participant and (ii) any request for such cooperation shall take into account (A) the significance of the matters at issue in the litigation, arbitration, proceeding or investigation and (B) the Executive’s other personal and business commitments. The Company agrees to provide the Executive reasonable notice in the event his assistance is required. The Company will reimburse the Executive for all reasonable expenses and costs he may incur as a result of providing such assistance, including lost wages (after the Term), travel costs and legal fees to the extent the Executive reasonably believes that separate representation is warranted. The Executive’s entitlement to reimbursement of expenses, including legal fees pursuant to this Section 9(d), shall in no way affect the Executive’s rights to be indemnified and/or advanced expenses in accordance with the Company’s corporate documents, insurance policies and/or in accordance with this Agreement.
(e) The Executive shall not intentionally disparage the Company, any of its products or practices, or any of its directors, officers, or employees, whether orally, in writing or otherwise, at any time. The Company (including without limitation its directors) shall not intentionally disparage the Executive, whether orally, in writing or otherwise, at any time. Notwithstanding the foregoing: nothing in this Section 9(e) shall (i) limit the ability of the Company or the Executive, as applicable, to provide truthful testimony as required by law or any judicial or administrative process or the Executive from making normal commercial competitive type statements in a competitive business situation not based on his employment with the Company, or (ii) prevent any Person from (x) responding publicly to incorrect, disparaging or derogatory public statements to the extent reasonably necessary to correct or refute such public statement or (y) making any truthful statement to the extent necessary in any litigation, arbitration or mediation proceeding involving this Agreement, including, but not limited to, the enforcement of this Agreement. In no event shall any termination of the Executive’s employment by the Company or the Executive for any reason constitute disparagement for purposes of this Section 9(e).
(f) The Executive agrees that all strategies, methods, processes, techniques, marketing plans, merchandising schemes, themes, layouts, mechanicals, trade secrets, copyrights, trademarks, patents, ideas, specifications and other material or work product (“Intellectual Property”) that the Executive creates, develops or assembles in connection with his employment hereunder shall become the permanent and exclusive property of the Company to be used in any manner it sees fit, in its sole discretion. The Executive shall not communicate to the Company any ideas, concepts, or other intellectual property of any kind (other than that required in his capacity as an officer of the Company) which (i) were earlier communicated to the Executive in confidence by any third party as proprietary information, or (ii) the Executive knows or has reason to know is the proprietary information of any third party. All Intellectual Property created or assembled in connection with the Executive’s employment hereunder shall be the permanent and exclusive property of the Company. The Company and the Executive mutually agree that all Intellectual Property and work product created in connection with this Agreement, which is subject to copyright, shall be deemed to be “work made for hire,” and that all rights to copyrights shall be vested in the Company. If for any reason the Company cannot be deemed to have commissioned “work made for hire,” and its rights to copyright are thereby in doubt, then the Executive agrees not to claim to be the proprietor of the work prepared for the Company, and to irrevocably assign to the Company, at the Company’s expense, all rights in the copyright of the work prepared for the Company.
(g) The Company and the Executive expressly acknowledge and agree that the agreements and covenants contained in this Section 9 are reasonable. In the event, however, that any agreement or covenant contained in this Section 9 shall be determined by any court of competent jurisdiction to be unenforceable by reason of its extending for too great a period of time or over too great a geographical area or by reason of its being too extensive in any other respect, it will be interpreted to extend only over the maximum period of time for which it may be enforceable, and/or over the maximum geographical area as to which it may be enforceable and/or to the maximum extent in all other respects as to which it may be enforceable, all as determined by such court in such action.
(h) As used in this Section 9, the term “Company” shall include the Company and any of its direct or indirect subsidiaries within the meaning of Code Section 424(f).
(i) Any limitation on the Executive’s activities or any forfeiture of benefits, equity or compensation based on violation of limitations on the Executive’s activities shall not be based on any limitation that is any broader than those set forth in this Section 9.
Appears in 1 contract
Certain Restrictive Covenants. (a) The Executive shall not, at any time during the Term or during the 12-month period following the Date of Termination (the “Non-Compete Term”) without the Board’s 's prior written consent directly or indirectly engage in, have any equity interest in, or manage or operate (whether as a director, officer, employee, agent, representative, security holder, consultant or otherwise) any Competitive Business; provided, however, that: (x) the Executive shall be permitted to acquire a passive stock or equity interest in such a Competitive Business provided the stock or other equity interest acquired is not more than five percent (5%) of the outstanding interest in such a Competitive Business; (y) the Executive shall be permitted to acquire any investment through a mutual fund, private equity fund or other pooled account that is not controlled by the Executive and which he has less than a five percent (5%) interest; or (z) the Executive may provide services to a subsidiary, division or Affiliate of a Competitive Business if such subsidiary, division or Affiliate is not itself engaged in a Competitive Business and the Executive does not provide services to, or have any responsibilities regarding, the Competitive Business. At any time during the Non-Compete Term following the Date of Termination, the Executive may request in writing to the Board that the Board consent to the Executive’s 's direct or indirect engagement in, ownership of equity interest in, or management or operation of (whether as a director, officer, employee, agent, representative, security holder, consultant or otherwise) any Competitive Business, which request the Board shall consider in good faith based upon the Board’s 's reasonable determination of the potential impact of the Executive’s 's involvement in such Competitive Business on the Company and its stockholders. If the Executive believes that the Board would benefit from any additional information or if the Executive has any issues or questions regarding any action taken or to be taken by the Board in connection with this Section 9(a), then the Board and the Executive (along with their respective representatives) shall meet and discuss any such issues or questions, and the Executive shall be permitted to present the Board with any relevant information that he deems appropriate. The Board and the Executive shall act in good faith to address all outstanding issues and questions while protecting the interests of the Company and its stockholders.
(b) During the 12 month period following the Date of Termination, the Executive shall not, directly or indirectly (a) recruit, hire or otherwise solicit any person employed by the Company, its subsidiaries, or any of their respective Affiliates as of the Termination Date, (b) recruit, hire or otherwise solicit for employment any person known by the Executive (after reasonable inquiry) to be employed at the time by the Company, its subsidiaries, or any of their respective Affiliates as of the date of the solicitation, (c) recruit or otherwise solicit or induce any non-clerical employee, director, consultant, wholesale customer, vendor, supplier, lessor or lessee of the Company to terminate his or its employment or arrangement with the Company or otherwise change its relationship with the Company, provided that nothing in this Section 9(b) shall prohibit the Executive from providing employment, personal or other references for any such Person or general advertising for employees by the Executive or any Person of which the Executive is an employee or Affiliate.
(c) Except as the Executive deems necessary (or, in good faith, desirable) to be disclosed in connection with the performance of the Executive’s 's duties hereunder or as specifically set forth in this Section 9, the Executive shall, in perpetuity, maintain in confidence and shall not directly, indirectly or otherwise, use, disseminate, disclose or publish, or use for his benefit or the benefit of any person, firm, corporation or other entity any confidential or proprietary information or trade secrets of or relating to the Company, including, without limitation, information with respect to the Company’s 's operations, processes, products, inventions, business practices, finances, principals, vendors, suppliers, customers, potential customers, marketing methods, costs, prices, contractual relationships, regulatory status, business plans, designs, marketing or other business strategies, compensation paid to employees or other terms of employment, or deliver to any person, firm, corporation or other entity any document, record, notebook, computer program or similar repository of or containing any such confidential or proprietary information or trade secrets. Notwithstanding anything herein to the contrary, nothing shall prohibit the Executive from disclosing any information that is (i) generally known by the public (unless such knowledge occurs as a result of the Executive’s 's breach of any portion of this Section 9(c)), (ii) when disclosure is required by law or by any court, arbitrator, mediator or administrative or legislative body (including any committee thereof) with apparent jurisdiction to order the Executive to disclose or make accessible any information, provided that, unless otherwise prohibited by law and provided such information is not related to any illegal activities of the Company or any of its subsidiaries, the Executive shall provide the Company with prompt notice of any such requested or required disclosure and shall reasonably cooperate with the Company in any effort by the Company to prevent or otherwise contest such disclosure or (iii) with respect to any other litigation, arbitration or mediation involving this Agreement, including, but not limited to, the enforcement of this Agreement. The parties hereby stipulate and agree that as between them the foregoing matters are important, material and confidential proprietary information and trade secrets and affect the successful conduct of the businesses of the Company (and any successor or assignee of the Company). Upon termination of the Executive’s 's employment with the Company for any reason, the Executive will promptly deliver to the Company all correspondence, drawings, manuals, letters, notes, notebooks, reports, programs, plans, proposals, financial documents, or any other documents concerning the Company’s 's customers, business plans, designs, marketing or other business strategies, products or processes, provided that the Executive may retain (i) papers and other materials of a personal nature, including, but not limited to, photographs, correspondence, personal diaries, calendars and rolodexes, personal files and phone books, (ii) information showing his compensation or relating to reimbursement of expenses, (iii) information that he reasonably believes may be needed for tax purposes, (iv) copies of plans, programs and agreements relating to his employment, or termination thereof, with the Company and (v) copies of minutes, presentation materials and personal notes from any meeting of the Board, or any committee thereof, while he was a member of the Board.
(d) The Executive shall reasonably cooperate with and assist the Company and its counsel at any time and in any manner reasonably required by the Company or its counsel (with due regard for the Executive’s 's other commitments if he is not employed by the Company) in connection with any litigation or other legal process affecting the Company of which the Executive has knowledge as a result of his employment with the Company (other than any litigation with respect to this Agreement). In any event, (i) in any matter subject to this Section 9(d), the Executive shall not be required to act against the best interests of any new employer or new business venture in which he is a partner or active participant and (ii) any request for such cooperation shall take into account (A) the significance of the matters at issue in the litigation, arbitration, proceeding or investigation and (B) the Executive’s 's other personal and business commitments. The Company agrees to provide the Executive reasonable notice in the event his assistance is required. The Company will reimburse the Executive for all reasonable expenses and costs he may incur as a result of providing such assistance, including lost wages (after the Term), travel costs and legal fees to the extent the Executive reasonably believes that separate representation is warranted. The Executive’s 's entitlement to reimbursement of expenses, including legal fees pursuant to this Section 9(d), shall in no way affect the Executive’s 's rights to be indemnified and/or advanced expenses in accordance with the Company’s 's corporate documents, insurance policies and/or in accordance with this Agreement.
(e) The Executive shall not intentionally disparage the Company, any of its products or practices, or any of its directors, officers, or employees, whether orally, in writing or otherwise, at any time. The Company (including without limitation its directors) shall not intentionally disparage the Executive, whether orally, in writing or otherwise, at any time. Notwithstanding the foregoing: nothing in this Section 9(e) shall (i) limit the ability of the Company or the Executive, as applicable, to provide truthful testimony as required by law or any judicial or administrative process or the Executive from making normal commercial competitive type statements in a competitive business situation not based on his employment with the Company, or (ii) prevent any Person from (x) responding publicly to incorrect, disparaging or derogatory public statements to the extent reasonably necessary to correct or refute such public statement or (y) making any truthful statement to the extent necessary in any litigation, arbitration or mediation proceeding involving this Agreement, including, but not limited to, the enforcement of this Agreement. In no event shall any termination of the Executive’s 's employment by the Company or the Executive for any reason constitute disparagement for purposes of this Section 9(e).
(f) The Executive agrees that all strategies, methods, processes, techniques, marketing plans, merchandising schemes, themes, layouts, mechanicals, trade secrets, copyrights, trademarks, patents, ideas, specifications and other material or work product (“Intellectual Property”) that the Executive creates, develops or assembles in connection with his employment hereunder shall become the permanent and exclusive property of the Company to be used in any manner it sees fit, in its sole discretion. The Executive shall not communicate to the Company any ideas, concepts, or other intellectual property of any kind (other than that required in his capacity as an officer of the Company) which (i) were earlier communicated to the Executive in confidence by any third party as proprietary information, or (ii) the Executive knows or has reason to know is the proprietary information of any third party. All Intellectual Property created or assembled in connection with the Executive’s 's employment hereunder shall be the permanent and exclusive property of the Company. The Company and the Executive mutually agree that all Intellectual Property and work product created in connection with this Agreement, which is subject to copyright, shall be deemed to be “work made for hire,” and that all rights to copyrights shall be vested in the Company. If for any reason the Company cannot be deemed to have commissioned “''work made for hire,” and its rights to copyright are thereby in doubt, then the Executive agrees not to claim to be the proprietor of the work prepared for the Company, and to irrevocably assign to the Company, at the Company’s 's expense, all rights in the copyright of the work prepared for the Company.
(g) The Company and the Executive expressly acknowledge and agree that the agreements and covenants contained in this Section 9 are reasonable. In the event, however, that any agreement or covenant contained in this Section 9 shall be determined by any court of competent jurisdiction to be unenforceable by reason of its extending for too great a period of time or over too great a geographical area or by reason of its being too extensive in any other respect, it will be interpreted to extend only over the maximum period of time for which it may be enforceable, and/or over the maximum geographical area as to which it may be enforceable and/or to the maximum extent in all other respects as to which it may be enforceable, all as determined by such court in such action.
(h) As used in this Section 9, the term “Company” shall include the Company and any of its direct or indirect subsidiaries within the meaning of Code Section 424(f).
(i) Any limitation on the Executive’s 's activities or any forfeiture of benefits, equity or compensation based on violation of limitations on the Executive’s 's activities shall not be based on any limitation that is any broader than those set forth in this Section 9.
Appears in 1 contract
Certain Restrictive Covenants. (a) The Executive shall not, at any time during the Term or during the 12-12- month period following the Date of Termination (the “Non-Compete Term”) without the Board’s prior written consent directly or indirectly engage in, have any equity interest in, or manage or operate (whether as a director, officer, employee, agent, representative, security holder, consultant or otherwise) any Competitive Business; provided, however, that: (x) the Executive shall be permitted to acquire a passive stock or equity interest in such a Competitive Business provided the stock or other equity interest acquired is not more than five percent (5%) of the outstanding interest in such a Competitive Business; (y) the Executive shall be permitted to acquire any investment through a mutual fund, private equity fund or other pooled account that is not controlled by the Executive and which he has less than a five percent (5%) interest; or (z) the Executive may provide services to a subsidiary, division or Affiliate of a Competitive Business if such subsidiary, division or Affiliate is not itself engaged in a Competitive Business and the Executive does not provide services to, or have any responsibilities regarding, the Competitive Business. At any time during the Non-Compete Term following the Date of Termination, the Executive may request in writing to the Board that the Board consent to the Executive’s direct or indirect engagement in, ownership of equity interest in, or management or operation of (whether as a director, officer, employee, agent, representative, security holder, consultant or otherwise) any Competitive Business, which request the Board shall consider in good faith based upon the Board’s reasonable determination of the potential impact of the Executive’s involvement in such Competitive Business on the Company and its stockholders. If the Executive believes that the Board would benefit from any additional information or if the Executive has any issues or questions regarding any action taken or to be taken by the Board in connection with this Section 9(a), then the Board and the Executive (along with their respective representatives) shall meet and discuss any such issues or questions, and the Executive shall be permitted to present the Board with any relevant information that he deems appropriate. The Board and the Executive shall act in good faith to address all outstanding issues and questions while protecting the interests of the Company and its stockholders.
(b) During the 12 month period following the Date of Termination, the Executive shall not, directly or indirectly (a) recruit, hire or otherwise solicit any person employed by the Company, its subsidiaries, or any of their respective Affiliates as of the Termination Date, (b) recruit, hire or otherwise solicit for employment any person known by the Executive (after reasonable inquiry) to be employed at the time by the Company, its subsidiaries, or any of their respective Affiliates as of the date of the solicitation, (c) recruit or otherwise solicit or induce any non-clerical employee, director, consultant, wholesale customer, vendor, supplier, lessor or lessee of the Company to terminate his or its employment or arrangement with the Company or otherwise change its relationship with the Company, provided that nothing in this Section 9(b) shall prohibit the Executive from providing employment, personal or other references for any such Person or general advertising for employees by the Executive or any Person of which the Executive is an employee or Affiliate.
(c) Except as the Executive deems necessary (or, in good faith, desirable) to be disclosed in connection with the performance of the Executive’s duties hereunder or as specifically set forth in this Section 9, the Executive shall, in perpetuity, maintain in confidence and shall not directly, indirectly or otherwise, use, disseminate, disclose or publish, or use for his benefit or the benefit of any person, firm, corporation or other entity any confidential or proprietary information or trade secrets of or relating to the Company, including, without limitation, information with respect to the Company’s operations, processes, products, inventions, business practices, finances, principals, vendors, suppliers, customers, potential customers, marketing methods, costs, prices, contractual relationships, regulatory status, business plans, designs, marketing or other business strategies, compensation paid to employees or other terms of employment, or deliver to any person, firm, corporation or other entity any document, record, notebook, computer program or similar repository of or containing any such confidential or proprietary information or trade secrets. Notwithstanding anything herein to the contrary, nothing shall prohibit the Executive from disclosing any information that is (i) generally known by the public (unless such knowledge occurs as a result of the Executive’s breach of any portion of this Section 9(c)), (ii) when disclosure is required by law or by any court, arbitrator, mediator or administrative or legislative body (including any committee thereof) with apparent jurisdiction to order the Executive to disclose or make accessible any information, provided that, unless otherwise prohibited by law and provided such information is not related to any illegal activities of the Company or any of its subsidiaries, the Executive shall provide the Company with prompt notice of any such requested or required disclosure and shall reasonably cooperate with the Company in any effort by the Company to prevent or otherwise contest such disclosure or (iii) with respect to any other litigation, arbitration or mediation involving this Agreement, including, but not limited to, the enforcement of this Agreement. The parties hereby stipulate and agree that as between them the foregoing matters are important, material and confidential proprietary information and trade secrets and affect the successful conduct of the businesses of the Company (and any successor or assignee of the Company). Upon termination of the Executive’s employment with the Company for any reason, the Executive will promptly deliver to the Company all correspondence, drawings, manuals, letters, notes, notebooks, reports, programs, plans, proposals, financial documents, or any other documents concerning the Company’s customers, business plans, designs, marketing or other business strategies, products or processes, provided that the Executive may retain (i) papers and other materials of a personal nature, including, but not limited to, photographs, correspondence, personal diaries, calendars and rolodexes, personal files and phone books, (ii) information showing his compensation or relating to reimbursement of expenses, (iii) information that he reasonably believes may be needed for tax purposes, (iv) copies of plans, programs and agreements relating to his employment, or termination thereof, with the Company and (v) copies of minutes, presentation materials and personal notes from any meeting of the Board, or any committee thereof, while he was a member of the Board.
(d) The Executive shall reasonably cooperate with and assist the Company and its counsel at any time and in any manner reasonably required by the Company or its counsel (with due regard for the Executive’s other commitments if he is not employed by the Company) in connection with any litigation or other legal process affecting the Company of which the Executive has knowledge as a result of his employment with the Company (other than any litigation with respect to this Agreement). In any event, (i) in any matter subject to this Section 9(d), the Executive shall not be required to act against the best interests of any new employer or new business venture in which he is a partner or active participant and (ii) any request for such cooperation shall take into account (A) the significance of the matters at issue in the litigation, arbitration, proceeding or investigation and (B) the Executive’s other personal and business commitments. The Company agrees to provide the Executive reasonable notice in the event his assistance is required. The Company will reimburse the Executive for all reasonable expenses and costs he may incur as a result of providing such assistance, including lost wages (after the Term), travel costs and legal fees to the extent the Executive reasonably believes that separate representation is warranted. The Executive’s entitlement to reimbursement of expenses, including legal fees pursuant to this Section 9(d), shall in no way affect the Executive’s rights to be indemnified and/or advanced expenses in accordance with the Company’s corporate documents, insurance policies and/or in accordance with this Agreement.
(e) The Executive shall not intentionally disparage the Company, any of its products or practices, or any of its directors, officers, or employees, whether orally, in writing or otherwise, at any time. The Company (including without limitation its directors) shall not intentionally disparage the Executive, whether orally, in writing or otherwise, at any time. Notwithstanding the foregoing: nothing in this Section 9(e) shall (i) limit the ability of the Company or the Executive, as applicable, to provide truthful testimony as required by law or any judicial or administrative process or the Executive from making normal commercial competitive type statements in a competitive business situation not based on his employment with the Company, or (ii) prevent any Person from (x) responding publicly to incorrect, disparaging or derogatory public statements to the extent reasonably necessary to correct or refute such public statement or (y) making any truthful statement to the extent necessary in any litigation, arbitration or mediation proceeding involving this Agreement, including, but not limited to, the enforcement of this Agreement. In no event shall any termination of the Executive’s employment by the Company or the Executive for any reason constitute disparagement for purposes of this Section 9(e).
(f) The Executive agrees that all strategies, methods, processes, techniques, marketing plans, merchandising schemes, themes, layouts, mechanicals, trade secrets, copyrights, trademarks, patents, ideas, specifications and other material or work product (“Intellectual Property”) that the Executive creates, develops or assembles in connection with his employment hereunder shall become the permanent and exclusive property of the Company to be used in any manner it sees fit, in its sole discretion. The Executive shall not communicate to the Company any ideas, concepts, or other intellectual property of any kind (other than that required in his capacity as an officer of the Company) which (i) were earlier communicated to the Executive in confidence by any third party as proprietary information, or (ii) the Executive knows or has reason to know is the proprietary information of any third party. All Intellectual Property created or assembled in connection with the Executive’s employment hereunder shall be the permanent and exclusive property of the Company. The Company and the Executive mutually agree that all Intellectual Property and work product created in connection with this Agreement, which is subject to copyright, shall be deemed to be “work made for hire,” and that all rights to copyrights shall be vested in the Company. If for any reason the Company cannot be deemed to have commissioned “work made for hire,” and its rights to copyright are thereby in doubt, then the Executive agrees not to claim to be the proprietor of the work prepared for the Company, and to irrevocably assign to the Company, at the Company’s expense, all rights in the copyright of the work prepared for the Company.
(g) The Company and the Executive expressly acknowledge and agree that the agreements and covenants contained in this Section 9 are reasonable. In the event, however, that any agreement or covenant contained in this Section 9 shall be determined by any court of competent jurisdiction to be unenforceable by reason of its extending for too great a period of time or over too great a geographical area or by reason of its being too extensive in any other respect, it will be interpreted to extend only over the maximum period of time for which it may be enforceable, and/or over the maximum geographical area as to which it may be enforceable and/or to the maximum extent in all other respects as to which it may be enforceable, all as determined by such court in such action.
(h) As used in this Section 9, the term “Company” shall include the Company and any of its direct or indirect subsidiaries within the meaning of Code Section 424(f).
(i) Any limitation on the Executive’s activities or any forfeiture of benefits, equity or compensation based on violation of limitations on the Executive’s activities shall not be based on any limitation that is any broader than those set forth in this Section 9.
Appears in 1 contract
Certain Restrictive Covenants. (a) The Executive shall not, at any time during the Term or during the 1218-month period following the Date of Termination (or, in the event of any termination of the Executive’s employment pursuant to Section 6(a)(vii) due to the Company’s non-extension of the Term, the 12-month period following the Date of Termination) (either such period, the “Non-Compete Term”) without the Board’s prior written consent directly or indirectly engage in, have any equity interest in, or manage or operate (whether as a director, officer, employee, agent, representative, security holder, consultant or otherwise) any Competitive Business; provided, however, that: (x) the Executive shall be permitted to acquire a passive stock or equity interest in such a Competitive Business provided the stock or other equity interest acquired is not more than five percent (5%) of the outstanding interest in such a Competitive Business; or (y) the Executive shall be permitted to acquire any investment through a mutual fund, private equity fund or other pooled account that is not controlled by the Executive and which he has less than a five percent (5%) interest; or (z) the Executive may provide services to a subsidiary, division or Affiliate of a Competitive Business if such subsidiary, division or Affiliate is not itself engaged in a Competitive Business and the Executive does not provide services to, or have any responsibilities regarding, the Competitive Business. At any time during the Non-Compete Term following the Date of Termination, the Executive may request in writing to the Board that the Board consent to the Executive’s direct or indirect engagement in, ownership of equity interest in, or management or operation of (whether as a director, officer, employee, agent, representative, security holder, consultant or otherwise) any Competitive Business, which request the Board shall consider in good faith based upon the Board’s reasonable determination of the potential impact of the Executive’s involvement in such Competitive Business on the Company and its stockholders. If the Executive believes that the Board would benefit from any additional information or if the Executive has any issues or questions regarding any action taken or to be taken by the Board in connection with this Section 9(a), then the Board and the Executive (along with their respective representatives) shall meet and discuss any such issues or questions, and the Executive shall be permitted to present the Board with any relevant information that he deems appropriate. The Board and the Executive shall act in good faith to address all outstanding issues and questions while protecting the interests of the Company and its stockholders.
(b) During the 12 24 month period following the Date of Termination, the Executive shall will not, directly or indirectly (a) recruit, hire or otherwise solicit any person employed by the Company, its subsidiaries, or any of their respective Affiliates as of the Termination Date, (b) recruit, hire or otherwise solicit for employment any person known by the Executive (after reasonable inquiry) to be employed at the time by the Company, its subsidiaries, or any of their respective Affiliates as of the date of the solicitation, (c) recruit or otherwise solicit or induce any non-clerical employee, director, consultant, wholesale customer, vendor, supplier, lessor or lessee of the Company to terminate his or its employment or arrangement with the Company or otherwise change its relationship with the Company, provided that nothing in this Section 9(b) shall prohibit the Executive from providing employment, personal or other references for any such Person or general advertising for employees by the Executive or any Person of which the Executive is an employee or Affiliate.
(c) Except as the Executive deems necessary (or, in good faith, desirable) to be disclosed in connection with the performance of the Executive’s duties hereunder or as specifically set forth in this Section 9, the Executive shall, in perpetuity, maintain in confidence and shall not directly, indirectly or otherwise, use, disseminate, disclose or publish, or use for his benefit or the benefit of any person, firm, corporation or other entity any confidential or proprietary information or trade secrets of or relating to the Company, including, without limitation, information with respect to the Company’s operations, processes, products, inventions, business practices, finances, principals, vendors, suppliers, customers, potential customers, marketing methods, costs, prices, contractual relationships, regulatory status, business plans, designs, marketing or other business strategies, compensation paid to employees or other terms of employment, or deliver to any person, firm, corporation or other entity any document, record, notebook, computer program or similar repository of or containing any such confidential or proprietary information or trade secrets. Notwithstanding anything herein to the contrary, nothing shall prohibit the Executive from disclosing any information that is (i) generally known by the public (unless such knowledge occurs as a result of the Executive’s breach of any portion of this Section 9(c)), (ii) when disclosure is required by law or by any court, arbitrator, mediator or administrative or legislative body (including any committee thereof) with apparent jurisdiction to order the Executive to disclose or make accessible any information, provided that, unless otherwise prohibited by law and provided such information is not related to any illegal activities of the Company or any of its subsidiaries, the Executive shall provide the Company with prompt notice of any such requested or required disclosure and shall reasonably cooperate with the Company in any effort by the Company to prevent or otherwise contest such disclosure or (iii) with respect to any other litigation, arbitration or mediation involving this Agreement, including, but not limited to, the enforcement of this Agreementpublic. The parties hereby stipulate and agree that as between them the foregoing matters are important, material and confidential proprietary information and trade secrets and affect the successful conduct of the businesses of the Company (and any successor or assignee of the Company). Upon termination of the Executive’s employment with the Company for any reason, the Executive will promptly deliver to the Company all correspondence, drawings, manuals, letters, notes, notebooks, reports, programs, plans, proposals, financial documents, or any other documents concerning the Company’s customers, business plans, designs, marketing or other business strategies, products or processes, provided that the Executive may retain (i) papers his rolodex, address book and other materials of similar information and any non-proprietary documents he received as a personal nature, including, but not limited to, photographs, correspondence, personal diaries, calendars and rolodexes, personal files and phone books, (ii) information showing his compensation or relating to reimbursement of expenses, (iii) information that he reasonably believes may be needed for tax purposes, (iv) copies of plans, programs and agreements relating to his employment, or termination thereof, with the Company and (v) copies of minutes, presentation materials and personal notes from any meeting of the Board, or any committee thereof, while he was a member of the Boarddirector.
(d) The Notwithstanding Section 9(c), the Executive may respond to a lawful and valid subpoena or other legal process or other government or regulatory inquiry but shall give the Company prompt notice thereof (except to the extent legally prohibited), and shall, as much in advance of the return date as is reasonably practicable, make available to the Company and its counsel copies of any documents sought which are in the Executive’s possession or to which the Executive otherwise has reasonable access. In addition, the Executive shall reasonably cooperate with and assist the Company and its counsel at any time and in any manner reasonably required by the Company or its counsel (with due regard for the Executive’s other commitments if he is not employed by the Company) in connection with any litigation or other legal process affecting the Company of which the Executive has knowledge as a result of his employment with the Company (other than any litigation with respect to this Agreement). In any event, (i) in any matter subject to this Section 9(d)the event of such requested cooperation, the Executive Company shall not be required to act against the best interests of any new employer or new business venture in which he is a partner or active participant and (ii) any request for such cooperation shall take into account (A) the significance of the matters at issue in the litigation, arbitration, proceeding or investigation and (B) reimburse the Executive’s other personal and business commitments. The Company agrees to provide the Executive reasonable notice in the event his assistance is required. The Company will reimburse the Executive for all reasonable expenses and costs he may incur as a result out of providing such assistance, including lost wages (after the Term), travel costs and legal fees to the extent the Executive reasonably believes that separate representation is warranted. The Executive’s entitlement to reimbursement of pocket expenses, including legal fees pursuant to this Section 9(d), shall in no way affect the Executive’s rights to be indemnified and/or advanced expenses in accordance with the Company’s corporate documents, insurance policies and/or in accordance with this Agreement.
(e) The Executive shall not intentionally disparage the Company, any of its products or practices, or any of its directors, officers, or employees, whether orally, in writing or otherwise, at any time. The Company (including without limitation its directors) shall not intentionally disparage the Executive, whether orally, in writing or otherwise, at any time. Notwithstanding the foregoing: (i) nothing in this Section 9(e) shall (i) limit the ability of the Company or the Executive, as applicable, to provide truthful testimony as required by law or any judicial or administrative process or the Executive from making normal commercial competitive type statements in a competitive business situation not based on his employment with the Company, or ; and (ii) prevent any Person from (x) responding publicly to incorrect, disparaging or derogatory public statements to the extent reasonably necessary to correct or refute such public statement or (y) making any truthful statement to the extent necessary in any litigation, arbitration or mediation proceeding involving this Agreement, including, but not limited to, the enforcement of this Agreement. In no event shall any termination of the Executive’s employment by the Company or the Executive for any reason constitute disparagement for purposes of this Section 9(e).
(f) The Executive agrees that all strategies, methods, processes, techniques, marketing plans, merchandising schemes, themes, layouts, mechanicals, trade secrets, copyrights, trademarks, patents, ideas, specifications and other material or work product (“Intellectual Property”) that the Executive creates, develops or assembles in connection with his employment hereunder shall become the permanent and exclusive property of the Company to be used in any manner it sees fit, in its sole discretion. The Executive shall not communicate to the Company any ideas, concepts, or other intellectual property of any kind (other than that required in his capacity as an officer of the Company) which (i) were earlier communicated to the Executive in confidence by any third party as proprietary information, or (ii) the Executive knows or has reason to know is the proprietary information of any third party. All Intellectual Property created or assembled in connection with the Executive’s employment hereunder shall be the permanent and exclusive property of the Company. The Company and the Executive mutually agree that all Intellectual Property and work product created in connection with this Agreement, which is subject to copyright, shall be deemed to be “work made for hire,” and that all rights to copyrights shall be vested in the Company. If for any reason the Company cannot be deemed to have commissioned “work made for hire,” and its rights to copyright are thereby in doubt, then the Executive agrees not to claim to be the proprietor of the work prepared for the Company, and to irrevocably assign to the Company, at the Company’s expense, all rights in the copyright of the work prepared for the Company.
(g) The Company and the Executive expressly acknowledge and agree that the agreements and covenants contained in this Section 9 are reasonable. In the event, however, that any agreement or covenant contained in this Section 9 shall be determined by any court of competent jurisdiction to be unenforceable by reason of its extending for too great a period of time or over too great a geographical area or by reason of its being too extensive in any other respect, it will be interpreted to extend only over the maximum period of time for which it may be enforceable, and/or over the maximum geographical area as to which it may be enforceable and/or to the maximum extent in all other respects as to which it may be enforceable, all as determined by such court in such action.
(h) As used in this Section 9, the term “Company” shall include the Company and any of its Affiliates or direct or indirect subsidiaries within the meaning of Code Section 424(f).
(i) Any limitation on the Executive’s activities or any forfeiture of benefits, equity or compensation based on violation of limitations on the Executive’s activities shall not be based on any limitation that is any broader than those set forth in this Section 9.
Appears in 1 contract
Certain Restrictive Covenants. (a) The Executive shall not, at any time during the Term or during the 12-month period following the Date of Termination (the “Non-Compete Term”) without the Board’s prior written consent directly or indirectly engage in, have any equity interest in, or manage or operate (whether as a director, officer, employee, agent, representative, security holder, consultant or otherwise) any Competitive Business; provided, however, that: (x) the Executive shall be permitted to acquire a passive stock or equity interest in such a Competitive Business provided the stock or other equity interest acquired is not more than five percent (5%) of the outstanding interest in such a Competitive Business; (y) the Executive shall be permitted to acquire any investment through a mutual fund, private equity fund or other pooled account that is not controlled by the Executive and which he has less than a five percent (5%) interest; or (z) the Executive may provide services to a subsidiary, division or Affiliate of a Competitive Business if such subsidiary, division or Affiliate is not itself engaged in a Competitive Business and the Executive does not provide services to, or have any responsibilities regarding, the Competitive Business. At any time during the Non-Compete Term following the Date of Termination, the Executive may request in writing to the Board that the Board consent to the Executive’s direct or indirect engagement in, ownership of equity interest in, or management or operation of (whether as a director, officer, employee, agent, representative, security holder, consultant or otherwise) any Competitive Business, which request the Board shall consider in good faith based upon the Board’s reasonable determination of the potential impact of the Executive’s involvement in such Competitive Business on the Company and its stockholders. If the Executive believes that the Board would benefit from any additional information or if the Executive has any issues or questions regarding any action taken or to be taken by the Board in connection with this Section 9(a), then the Board and the Executive (along with their respective representatives) shall meet and discuss any such issues or questions, and the Executive shall be permitted to present the Board with any relevant information that he deems appropriate. The Board and the Executive shall act in good faith to address all outstanding issues and questions while protecting the interests of the Company and its stockholders.
(b) During the 12 month period following the Date of Termination, the Executive shall not, directly or indirectly (a) recruit, hire or otherwise solicit any person employed by the Company, its subsidiaries, or any of their respective Affiliates as of the Termination Date, (b) recruit, hire or otherwise solicit for employment any person known by the Executive (after reasonable inquiry) to be employed at the time by the Company, its subsidiaries, or any of their respective Affiliates as of the date of the solicitation, (c) recruit or otherwise solicit or induce any non-clerical employee, director, consultant, wholesale customer, vendor, supplier, lessor or lessee of the Company to terminate his or its employment or arrangement with the Company or otherwise change its relationship with the Company, provided that nothing in this Section 9(b) shall prohibit the Executive from providing employment, personal or other references for any such Person or general advertising for employees by the Executive or any Person of which the Executive is an employee or Affiliate.
(c) Except as the Executive deems necessary (or, in good faith, desirable) to be disclosed in connection with the performance of the Executive’s duties hereunder or as specifically set forth in this Section 9, the Executive shall, in perpetuity, maintain in confidence and shall not directly, indirectly or otherwise, use, disseminate, disclose or publish, or use for his benefit or the benefit of any person, firm, corporation or other entity any confidential or proprietary information or trade secrets of or relating to the Company, including, without limitation, information with respect to the Company’s operations, processes, products, inventions, business practices, finances, principals, vendors, suppliers, customers, potential customers, marketing methods, costs, prices, contractual relationships, regulatory status, business plans, designs, marketing or other business strategies, compensation paid to employees or other terms of employment, or deliver to any person, firm, corporation or other entity any document, record, notebook, computer program or similar repository of or containing any such confidential or proprietary information or trade secrets. Notwithstanding anything herein to the contrary, nothing shall prohibit the Executive from disclosing any information that is (i) generally known by the public (unless such knowledge occurs as a result of the Executive’s breach of any portion of this Section 9(c))public, (ii) when disclosure is required by law or by any court, arbitrator, mediator or administrative or legislative body (including any committee thereof) with apparent jurisdiction to order the Executive to disclose or make accessible any information, provided that, unless otherwise prohibited by law and provided such information is not related to any illegal activities of the Company or any of its subsidiaries, the Executive shall provide the Company with prompt notice of any such requested or required disclosure and shall reasonably cooperate with the Company in any effort by the Company to prevent or otherwise contest such disclosure or (iii) with respect to any other litigation, arbitration or mediation involving this Agreement, including, but not limited to, the enforcement of this Agreement. The parties hereby stipulate and agree that as between them the foregoing matters are important, material and confidential proprietary information and trade secrets and affect the successful conduct of the businesses of the Company (and any successor or assignee of the Company). Upon termination of the Executive’s employment with the Company for any reason, the Executive will promptly deliver to the Company all correspondence, drawings, manuals, letters, notes, notebooks, reports, programs, plans, proposals, financial documents, or any other documents concerning the Company’s customers, business plans, designs, marketing or other business strategies, products or processes, provided that the Executive may retain (i) papers and other materials of a personal nature, including, but not limited to, photographs, correspondence, personal diaries, calendars and rolodexes, personal files and phone books, (ii) information showing his compensation or relating to reimbursement of expenses, (iii) information that he reasonably believes may be needed for tax purposes, (iv) copies of plans, programs and agreements relating to his employment, or termination thereof, with the Company and (v) copies of minutes, presentation materials and personal notes from any meeting of the Board, or any committee thereof, while he was a member of the Board.
(d) The Executive shall reasonably cooperate with and assist the Company and its counsel at any time and in any manner reasonably required by the Company or its counsel (with due regard for the Executive’s other commitments if he is not employed by the Company) in connection with any litigation or other legal process affecting the Company of which the Executive has knowledge as a result of his employment with the Company (other than any litigation with respect to this Agreement). In any event, (i) in any matter subject to this Section 9(d), the Executive shall not be required to act against the best interests of any new employer or new business venture in which he is a partner or active participant and (ii) any request for such cooperation shall take into account (A) the significance of the matters at issue in the litigation, arbitration, proceeding or investigation and (B) the Executive’s other personal and business commitments. The Company agrees to provide the Executive reasonable notice in the event his assistance is required. The Company will reimburse the Executive for all reasonable expenses and costs he may incur as a result of providing such assistance, including lost wages (after the Term), travel costs and legal fees to the extent the Executive reasonably believes that separate representation is warranted. The Executive’s entitlement to reimbursement of expenses, including legal fees pursuant to this Section 9(d), shall in no way affect the Executive’s rights to be indemnified and/or advanced expenses in accordance with the Company’s corporate documents, insurance policies and/or in accordance with this Agreement.
(e) The Executive shall not intentionally disparage the Company, any of its products or practices, or any of its directors, officers, or employees, whether orally, in writing or otherwise, at any time. The Company (including without limitation its directors) shall not intentionally disparage the Executive, whether orally, in writing or otherwise, at any time. Notwithstanding the foregoing: nothing in this Section 9(e) shall (i) limit the ability of the Company or the Executive, as applicable, to provide truthful testimony as required by law or any judicial or administrative process or the Executive from making normal commercial competitive type statements in a competitive business situation not based on his employment with the Company, or (ii) prevent any Person from (x) responding publicly to incorrect, disparaging or derogatory public statements to the extent reasonably necessary to correct or refute such public statement or (y) making any truthful statement to the extent necessary in with respect to any litigation, arbitration or mediation proceeding involving this Agreement, including, but not limited to, the enforcement of this Agreement. In no event shall any termination of the Executive’s employment by the Company or the Executive for any reason constitute disparagement for purposes of this Section 9(e).
(f) The Executive agrees that all strategies, methods, processes, techniques, marketing plans, merchandising schemes, themes, layouts, mechanicals, trade secrets, copyrights, trademarks, patents, ideas, specifications and other material or work product (“Intellectual Property”) that the Executive creates, develops or assembles in connection with his employment hereunder shall become the permanent and exclusive property of the Company to be used in any manner it sees fit, in its sole discretion. The Executive shall not communicate to the Company any ideas, concepts, or other intellectual property of any kind (other than that required in his capacity as an officer of the Company) which (i) were earlier communicated to the Executive in confidence by any third party as proprietary information, or (ii) the Executive knows or has reason to know is the proprietary information of any third party. All Intellectual Property created or assembled in connection with the Executive’s employment hereunder shall be the permanent and exclusive property of the Company. The Company and the Executive mutually agree that all Intellectual Property and work product created in connection with this Agreement, which is subject to copyright, shall be deemed to be “work made for hire,” and that all rights to copyrights shall be vested in the Company. If for any reason the Company cannot be deemed to have commissioned “work made for hire,” and its rights to copyright are thereby in doubt, then the Executive agrees not to claim to be the proprietor of the work prepared for the Company, and to irrevocably assign to the Company, at the Company’s expense, all rights in the copyright of the work prepared for the Company.
(g) The Company and the Executive expressly acknowledge and agree that the agreements and covenants contained in this Section 9 are reasonable. In the event, however, that any agreement or covenant contained in this Section 9 shall be determined by any court of competent jurisdiction to be unenforceable by reason of its extending for too great a period of time or over too great a geographical area or by reason of its being too extensive in any other respect, it will be interpreted to extend only over the maximum period of time for which it may be enforceable, and/or over the maximum geographical area as to which it may be enforceable and/or to the maximum extent in all other respects as to which it may be enforceable, all as determined by such court in such action.
(h) As used in this Section 9, the term “Company” shall include the Company and any of its direct or indirect subsidiaries within the meaning of Code Section 424(f).
(i) Any limitation on the Executive’s activities or any forfeiture of benefits, equity or compensation based on violation of limitations on the Executive’s activities shall not be based on any limitation that is any broader than those set forth in this Section 9.
Appears in 1 contract
