Confidential Information; Restrictive Covenants. (a) The Executive acknowledges that the non-public information, knowledge and data (including any trade secrets or similar proprietary information) obtained by him during the course of his employment with the Company, concerning the business or affairs of the Company and its affiliates (the "Business Entities") are the property of the Company. Therefore, the Executive will not at any time (whether during or after his employment with the Company) disclose or use for his own benefit or purposes or the benefit or purposes of any other person, entity or enterprise, other than a Business Entity, any trade secrets, information, data, or other confidential information relating to customers, development programs, costs, marketing, trading, investment, sales activities, promotion, credit and financial data, manufacturing or other processes, financing methods, plans or the business and affairs of any Business Entity; provided that the foregoing shall not apply to information which is not proprietary to the Business Entities or which has become public other than as a result of the Executive's breach of this covenant. The Executive agrees that, during the Employment Period, he will use his best efforts to maintain in good condition all memoranda, books, papers, plans, information, letters and other data, and all copies thereof or therefrom, in any way relating to the business of the Business Entities, and that upon termination of his employment with the Company for any reason, he will return all such materials (together with any other property of the Company) to the Company immediately. The Executive shall not at any time (whether during or after his employment with the Company), without the prior written consent of the CEO, participate in any public conference, publish any document, or otherwise make any public statement that could reasonably be expected to affect the image of the Business Entities. (b) The Executive agrees that during the Non-Competition Period, he will not, directly or indirectly, alone or as a partner, joint venturer, officer, director, employee, consultant, agent, independent contractor or stockholder of any company or business, engage (for anyone other than the Company) in any Competitive Enterprise. For the purpose hereof, a "Competitive Enterprise" shall mean any company, corporation or other entity with any activities directly or indirectly related to the civil explosives business or the initiation systems business. Ownership of less than two percent of the total outstanding equity securities by the Executive of shares of stock of any corporation having a class of equity securities actively traded on a national securities exchange or on The NASDAQ Stock Market shall not be deemed, in and of itself, to violate the prohibitions of this subsection (b) provided that the Executive own less than two percent of such class of equity securities. The "Non-Competition Period", if any, is either one (1) or two (2) years from the Date of Termination at the option of the Company.
Appears in 4 contracts
Samples: Employment Agreement (Mining Services International Corp/), Employment Agreement (Mining Services International Corp/), Employment Agreement (Mining Services International Corp/)
Confidential Information; Restrictive Covenants. (a) The Executive acknowledges that the non-public information, knowledge and data Confidential Information (including any trade secrets or similar proprietary informationas defined below) obtained by him during the course of his employment with the Company, concerning the business or affairs of the Company and its affiliates (the "“Business Entities"”) are the property of the Company. Therefore, the Executive will hold in strictest confidence, and not at any time (whether during or after his employment with the Company) disclose or use for his own benefit or purposes or the benefit or purposes of any other person, entity or enterprise, other than a Business Entity, any trade secrets, non-public information, knowledge or data, or other proprietary or confidential information, including without limitation, any such information relating to customers, development programs, costs, marketing, trading, investment, sales activities, promotion, credit and financial data, inventions, manufacturing or other processes, technology, designs, financing methods, plans or the business and affairs of any Business EntityEntity (collectively, “Confidential Information”); provided that the foregoing “Confidential Information” shall not apply to include (i) any information which is not proprietary to the Business Entities or which has become public publicly known or available or known in the industry, in any case other than as a result of the Executive's ’s breach of this covenant, or (ii) any information that was within the Executive’s knowledge or possession before becoming employed with the Company; and provided further, that the Executive shall not be in violation of this covenant if he discloses any Confidential Information as required by any subpoena or other legal process or notice or in any disposition, judicial or administrative hearing, or trial or arbitration (though the Executive shall, to the extent permitted, give the Company notice of any such subpoena, process, or notice and will cooperate with all reasonable requests of the Company to obtain a protective order regarding, or to narrow the scope of, the Confidential Information required to be disclosed). The Executive agrees that, during that upon termination of his employment with the Employment PeriodCompany for any reason, he will use his best efforts return to maintain in good condition the Company immediately all property of the Company including any documents, memoranda, books, papers, plans, information, letters and other data, and all copies thereof or therefrom, in any way relating to the business of the Business Entities, and that upon termination of .
(b) During his employment with the Company and for any reason, he will return all such materials a period of two years thereafter (together with any other property regardless of the Company) to reason for the Company immediately. The Executive shall not at any time (whether during or after his employment with termination of employment, the Company), without the prior written consent of the CEO, participate in any public conference, publish any document, or otherwise make any public statement that could reasonably be expected to affect the image of the Business Entities.
(b) The Executive agrees that during the “Non-Competition Period”), he the Executive will not, directly or indirectly, alone or as a partner, joint venturer, officer, director, employee, consultant, agent, independent contractor or stockholder of any company or business, engage (for anyone other than the CompanyBusiness Entities) in any Competitive EnterpriseEnterprise anywhere in the United States, Canada, or Mexico. For the purpose hereof, a "“Competitive Enterprise" ” shall mean any company, corporation or other entity with any activities directly or indirectly related business venture engaged in lines of business similar to the civil explosives business or the initiation systems business. Ownership of less than two percent those of the total outstanding equity securities Company or its affiliates. Neither the service by the Executive on corporate boards in accordance with the provisions of Section 2(c) hereof nor the ownership by the Executive of not more than two percent (2%) of the shares of stock of any corporation having a class of equity securities actively traded on a national securities exchange or on The NASDAQ Stock Market market shall not be deemed, in and of itselfthemselves, to violate the prohibitions of this subsection Section 6(b).
(bc) provided that During his employment with the Executive own less than two percent of such class of equity securities. The "Company and during the Non-Competition Period", if anythe Executive shall not take any action having the purpose or intended or foreseeable effect of interfering with or otherwise damaging, in any material respect, the Company’s business relationship with any of its suppliers or customers.
(d) During his employment with the Company and during the Non-Competition Period, the Executive shall not, other than for the benefit of the Business Entities, directly or indirectly, employ, or knowingly permit any company or business organization directly or indirectly controlled by the Executive to employ any person who is either one (1) employed by the Company, or two (2) years from the Date of Termination at the option of in any manner seek to induce any such person to leave his or her employment with the Company.
(e) If the Executive materially breaches any of the provisions of this Section 6 (the “Restrictive Covenants”), the Company shall have the following rights and remedies if such material breach continues and is not cured within fifteen (15) days after written demand by the Company, each of which shall be independent of the other and severally enforceable, and all of which shall be in addition to, and not in lieu of, any other rights and remedies available to the Company under law or equity:
(i) the right and remedy to have the Restrictive Covenants specifically enforced by any court having jurisdiction (whether by temporary restraining order, preliminary injunction, permanent injunction, injunction in aid or arbitration or otherwise) without having to post a bond, it being acknowledged and agreed that any such breach or threatened breach will cause irreparable injury to the Company and that money damages will not provide an adequate remedy to the Company; and
(ii) the right to discontinue the payment of any amounts or benefits owing to the Executive under this Agreement.
(f) The Executive acknowledges that: (i) the business in which the Company is engaged is intensely competitive; (ii) the Executive’s employment by the Company will require that the Executive develop, have access to and knowledge of Confidential Information; (iii) the direct or indirect disclosure or use of any such Confidential Information to existing or potential competitors of the Company would place the Company at a competitive disadvantage and would do damage, monetary or otherwise, to the Company; (iv) the Executive has developed goodwill with clients and suppliers of the Company at substantial expense to the Company; (v) the Executive will continue to develop goodwill, through substantial investment by the Company, while working for the Company; (vi) the engaging by the Executive in any of the activities prohibited by this Section 6 may constitute improper appropriation and/or use of such Confidential Information and/or goodwill; (vii) the services to be rendered by the Executive to the Company are of a special and unique character; (viii) the Executive has been fully advised by counsel in connection with his entering into this Agreement, including as to statutory and common law regarding the enforceability of the Restrictive Covenants; and (ix) enforcement of the Restrictive Covenants will not unduly limit the Executive’s ability to support himself or his family or to earn a livelihood. The Executive expressly acknowledges that the Confidential Information and goodwill of the Company constitute protectible business interests of the Company and that the Restrictive Covenants are fair, reasonable, valid, and enforceable.
(g) The Executive acknowledges and agrees that each of the Restrictive Covenants is given by the Executive as part of the consideration for this Agreement and as an inducement to the Company to enter into this Agreement.
(h) If any court determines that any of the Restrictive Covenants, or any part thereof, is invalid or unenforceable, the remainder of the Restrictive Covenants shall not thereby be affected and shall be given full effect, without regard to the invalid portion. In addition, if any court construes any of the Restrictive Covenants, or any part thereof, to be unenforceable because of the duration of such provision or the area covered thereby, such court shall have the power to reduce the duration or area of such provision and, in its reduced form, such provision shall then be enforceable and shall be enforced. The Executive agrees that the Restrictive Covenants, as so amended, shall be valid and binding as though any invalid or unenforceable provision had not been included herein.
(i) For purposes of this Section 6 and Section 7 hereof, the “Company” refers to the Company and any of its parents, subsidiaries, subdivisions or affiliates.
Appears in 2 contracts
Samples: Employment Agreement (Guaranty Financial Group Inc.), Employment Agreement (Forestar Real Estate Group LLC)
Confidential Information; Restrictive Covenants. (a) The Executive acknowledges that the non-public information, knowledge and data (including any trade secrets or similar proprietary information) obtained by him during the course of his employment with the Company, concerning the business or affairs of the Company and its affiliates (the "Business Entities") are the property of the Company. Therefore, the Executive will not at any time (whether during or after his employment with the Company) disclose or use for his own benefit or purposes or the benefit or purposes of any other person, entity or enterprise, other than a Business Entity, any trade secrets, information, data, or other confidential information relating to customers, development programs, costs, marketing, trading, investment, sales activities, promotion, credit and financial data, manufacturing or other processes, financing methods, plans or the business and affairs of any Business Entity; provided that the foregoing shall not apply to information which is not proprietary to the Business Entities or which has become public other than as a result of the Executive's breach of this covenant. The Executive agrees that, during the Employment Period, he will use his best efforts to maintain in good condition all memoranda, books, papers, plans, information, letters and other data, and all copies thereof or therefrom, in any way relating to the business of the Business Entities, and that upon termination of his employment with the Company for any reason, he will return all such materials (together with any other property of the Company) to the Company immediately. The Executive shall not at any time (whether during or after his employment with the Company), without the prior written consent of the CEO, participate in any public conference, publish any document, or otherwise make any public statement that could reasonably be expected to affect the image of the Business Entities.
(b) The Executive agrees that during the Non-Competition Period, he will not, directly or indirectly, alone or as a partner, joint venturer, officer, director, employee, consultant, agent, independent contractor or stockholder of any company or business, engage (for anyone other than the Company) in any Competitive Enterprise. For the purpose hereof, a "Competitive Enterprise" shall mean any company, corporation or other entity with any activities directly or indirectly related to the civil explosives business or the initiation systems business. Ownership of less than two percent of the total outstanding equity securities by the Executive of shares of stock of any corporation having a class of equity securities actively traded on a national securities exchange or on The NASDAQ Stock Market shall not be deemed, in and of itself, to violate the prohibitions of this subsection (b) provided that the Executive own less than two percent of such class of equity securities. The "Non-Competition Period", if any, is either one (1) or two (2) years from the Date of Termination at the option of the Company.joint
Appears in 1 contract
Samples: Employment Agreement (Mining Services International Corp/)
Confidential Information; Restrictive Covenants. (a) The Executive acknowledges that the non-public information, knowledge and data Confidential Information (including any trade secrets or similar proprietary informationas defined below) obtained by him during the course of his employment with the Company, concerning the business or affairs of the Company and its affiliates (the "“Business Entities"”) are the property of the Company. Therefore, the Executive will hold in strictest confidence, and not at any time (whether during or after his employment with the Company) disclose or use for his own benefit or purposes or the benefit or purposes of any other person, entity or enterprise, other than a Business Entity, any trade secrets, non-public information, knowledge or data, or other proprietary or confidential information, including without limitation, any such information relating to customers, development programs, costs, marketing, trading, investment, sales activities, promotion, credit and financial data, inventions, manufacturing or other processes, technology, designs, financing methods, plans or the business and affairs of any Business EntityEntity (collectively, “Confidential Information”); provided that the foregoing Confidential Information shall not apply to include information which is not proprietary to the Business Entities or which has become public publicly known other than as a result of the Executive's ’s breach of this covenant. The Executive agrees that, during that upon termination of his employment with the Employment PeriodCompany for any reason, he will use his best efforts return to maintain in good condition the Company immediately all property of the Company including any documents, memoranda, books, papers, plans, information, letters and other data, and all copies thereof or therefrom, in any way relating to the business of the Business Entities, and that upon termination of .
(b) During his employment with the Company and for any reason, he will return all such materials a period of two years thereafter (together with any other property of the Company) to the Company immediately. The Executive shall not at any time (whether during or after his employment with the Company), without the prior written consent of the CEO, participate in any public conference, publish any document, or otherwise make any public statement that could reasonably be expected to affect the image of the Business Entities.
(b) The Executive agrees that during the “Non-Competition Period”), he the Executive will not, directly or indirectly, alone or as a partner, joint venturer, officer, director, employee, consultant, agent, independent contractor or stockholder of any company or business, engage (for anyone other than the CompanyBusiness Entities) in any Competitive EnterpriseEnterprise anywhere in the United States, Canada, or Mexico. For the purpose hereof, a "“Competitive Enterprise" ” shall mean any companybusiness venture engaged in the paper, corporation forest products or other entity with any activities directly or indirectly related to the civil explosives financial services lines of business or the initiation systems business. Ownership otherwise engaged in lines of less than two percent business similar to those of the total outstanding equity securities Company or its affiliates. Neither the service by the Executive on corporate boards in accordance with the provisions of Section 2(c) hereof nor the ownership by the Executive of not more than two percent (2%) of the shares of stock of any corporation having a class of equity securities actively traded on a national securities exchange or on The NASDAQ Stock Market shall not be deemed, in and of itselfthemselves, to violate the prohibitions of this subsection Section 6(b).
(bc) provided that During his employment with the Executive own less than two percent of such class of equity securities. The "Company and during the Non-Competition Period", if anythe Executive shall not take any action having the purpose or effect of interfering with or otherwise damaging in any material respect the Company’s business relationship with any of its suppliers or customers.
(d) During his employment with the Company and during the Non-Competition Period, is either one (1) or two (2) years from the Date of Termination at Executive shall not, other than for the option benefit of the Company, directly or indirectly, employ, or knowingly permit any company or business organization directly or indirectly controlled by the Executive to employ any person who is employed by the Company, or in any manner seek to induce any such person to leave his or her employment with the Company.
(e) If the Executive materially breaches any of the provisions of this Section 6 (the “Restrictive Covenants”), the Company shall have the following rights and remedies if such material breach continues and is not cured within fifteen (15) days after written demand by the Company, each of which shall be independent of the other and severally enforceable, and all of which shall be in addition to, and not in lieu of, any other rights and remedies available to the Company under law or equity:
(i) the right and remedy to have the Restrictive Covenants specifically enforced by any court having jurisdiction (whether by temporary restraining order, preliminary injunction, permanent injunction, injunction in aid or arbitration or otherwise) without having to post a bond, it being acknowledged and agreed that any such breach or threatened breach will cause irreparable injury to the Company and that money damages will not provide an adequate remedy to the Company; and
(ii) The right to discontinue the payment of any amounts or benefits owing to the Executive under this Agreement.
(f) The Executive acknowledges that: (i) the business in which the Company is engaged is intensely competitive; (ii) the Executive’s employment by the Company will require that the Executive develop, have access to and knowledge of Confidential Information; (iii) the direct or indirect disclosure or use of any such Confidential Information to existing or potential competitors of the Company would place the Company at a competitive disadvantage and would do damage, monetary or otherwise, to the Company; (iv) the Executive has developed goodwill with clients and suppliers of the Company at substantial expense to the Company; (v) the Executive will continue to develop goodwill, through substantial investment by the Company, while working for the Company; (vi) the engaging by the Executive in any of the activities prohibited by this Section 6 may constitute improper appropriation and/or use of such Confidential Information and/or goodwill; (vii) the services to be rendered by the Executive to the Company are of a special and unique character; (viii) the Executive has been fully advised by counsel in connection with his entering into this Agreement, including as to statutory and common law regarding the enforceability of the Restrictive Covenants; and (ix) enforcement of the Restrictive Covenants will not unduly limit the Executive’s ability to support himself or his family or to earn a livelihood. The Executive expressly acknowledges that the Confidential Information and goodwill of the Company constitute protectible business interests of the Company and that the Restrictive Covenants are fair, reasonable, valid, and enforceable.
(g) The Executive acknowledges and agrees that each of the Restrictive Covenants is given by the Executive as part of the consideration for this Agreement and as an inducement to the Company to enter into this Agreement.
(h) If any court determines that any of the Restrictive Covenants, or any part thereof, is invalid or unenforceable, the remainder of the Restrictive Covenants shall not thereby be affected and shall be given full effect, without regard to the invalid portion. In addition, if any court construes any of the Restrictive Covenants, or any part thereof, to be unenforceable because of the duration of such provision or the area covered thereby, such court shall have the power to reduce the duration or area of such provision and, in its reduced form, such provision shall then be enforceable and shall be enforced. The Executive agrees that the Restrictive Covenants, as so amended, shall be valid and binding as though any invalid or unenforceable provision had not been included herein.
(i) For purposes of this Section 6 and Section 7 hereof, the “Company” refers to the Company and any of its parents, subsidiaries, subdivisions or affiliates.
Appears in 1 contract
Confidential Information; Restrictive Covenants. (a) The Executive acknowledges that the non-public information, knowledge and data (including any trade secrets or similar proprietary information) obtained by him during the course of his employment with the Company, concerning the business or affairs of the Company and its affiliates (the "Business Entities") are the property of the Company. Therefore, the Executive will not at any time (whether during or after his employment with the Company) disclose or use for his own benefit or purposes or the benefit or purposes of any other person, entity or enterprise, other than a Business Entity, any trade secrets, information, data, or other confidential information relating to customers, development programs, costs, marketing, trading, investment, sales activities, promotion, credit and financial data, manufacturing or other processes, financing methods, plans or the business and affairs of any Business Entity; provided that the foregoing shall not apply to information which is not proprietary to the Business Entities or which has become public other than as a result of the Executive's breach of this covenant. The Executive agrees that, during the Employment Period, he will use his best efforts to maintain in good condition all memoranda, books, papers, plans, information, letters and other data, and all copies thereof or therefrom, in any way relating to the business of the Business Entities, and that upon termination of his employment with the Company for any reason, he will return all such materials (together with any other property of the Company) to the Company immediately. The Executive shall not at any time (whether during or after his employment with the Company), without the prior written consent of the CEO, participate in any public conference, publish any document, or otherwise make any public statement that could reasonably be expected to affect the image of the Business Entities.. The Company acknowledges that all information related to the STS Technology and the Detotec Technology, as those terms are defined in Exhibit A attached hereto, is not the property of the Company and is not subject to this Agreement. The Company also acknowledges that the Executive possesses certain knowledge and experience that the Executive has obtained through prior education and employment (other than his employment by MSI or O'Brien Design Associates) (the "Executive's Information"). Except as the Executive and the Company may at a future date agree to in writing, nothing in this Agreement or any other agreement or document entered into between the Executive and the Company or any of its affiliates in connection with the transactions of which this Agreement is a part shall prevent the Executive from using the Executive's Information either (i) during his employment by the Company and during any Non-Competition Period after his employment, whether as an employee, consultant, owner, part-owner, officer, director or in any other capacity, for or on behalf of Detotec, Inc., a Delaware corporation ("DNA"), or Shock Tube Systems, Inc., a Delaware corporation ("STS", and together with Detotec, the "Existing Businesses"), or (ii) after his employment by the Company and after the lapse of the Non-Competition Period as set forth in this Section 6, whether as an employee, consultant, owner, part-owner, officer, director or in any other capacity, for or on behalf of the Existing Businesses or for any other business or entity, provided, however, that in each such case the Executive may not be required by such relationship to reveal, infringe upon, base judgment upon or otherwise use in any manner or form any confidential or proprietary information of the Company or any of its affiliates or O'Brien Design Associates, Inc.
(b) The Executive agrees that during the Non-Competition Period, he will not, directly or indirectly, alone or as a partner, joint venturer, officer, director, employee, consultant, agent, independent contractor or stockholder of any company or business, engage (for anyone other than the Company) in any Competitive Enterprise. For the purpose hereof, a "Competitive Enterprise" shall mean any company, corporation or other entity with any activities directly or indirectly related to the civil explosives business or the initiation systems business. Ownership of less than two percent of the total outstanding equity securities by the Executive of shares of stock of any corporation having a class of equity securities actively traded on a national securities exchange or on The NASDAQ Stock Market shall not be deemed, in and of itself, to violate the prohibitions of this subsection (b) provided that the Executive own less than two percent of such class of equity securities. The "Non-Competition Period", if any, is either one (1) or two (2) years from the Date of Termination at the option of the Company.
Appears in 1 contract
Samples: Employment Agreement (Mining Services International Corp/)
Confidential Information; Restrictive Covenants. (a) The Executive acknowledges that the non-public information, knowledge and data Confidential Information (including any trade secrets or similar proprietary informationas defined below) obtained by him during the course of his employment with the Company, concerning the business or affairs of the Company and its affiliates (the "Business Entities") are the property of the Company. Therefore, the Executive will hold in strictest confidence, and not at any time (whether during or after his employment with the Company) disclose or use for his own benefit or purposes or the benefit or purposes of any other person, entity or enterprise, other than a Business Entity, any trade secrets, non-public information, knowledge or data, or other proprietary or confidential information, including without limitation, any such information relating to customers, development programs, costs, marketing, trading, investment, sales activities, promotion, credit and financial data, inventions, manufacturing or other processes, technology, designs, financing methods, plans or the business and affairs of any Business EntityEntity (collectively, “Confidential Information”); provided that the foregoing "Confidential Information" shall not apply to include (i) any information which is not proprietary to the Business Entities or which has become public publicly known or available or known in the industry, in any case other than as a result of the Executive's breach of this covenant, or (ii) any information that was within the Executive’s knowledge or possession before becoming employed with the Company; and provided further, that the Executive shall not be in violation of this covenant if he discloses any Confidential Information as required by any subpoena or other legal process or notice or in any disposition, judicial or administrative hearing, or trial or arbitration (though the Executive shall, to the extent permitted, give the Company notice of any such subpoena, process, or notice and will cooperate with all reasonable requests of the Company to obtain a protective order regarding, or to narrow the scope of, the Confidential Information required to be disclosed). The Executive agrees that, during that upon termination of his employment with the Employment PeriodCompany for any reason, he will use his best efforts return to maintain in good condition the Company immediately all property of the Company including any documents, memoranda, books, papers, plans, information, letters and other data, and all copies thereof or therefrom, in any way relating to the business of the Business Entities, and that upon termination of .
(b) During his employment with the Company and for any reason, he will return all such materials a period of two years thereafter (together with any other property regardless of the Company) to reason for the Company immediately. The Executive shall not at any time (whether during or after his employment with termination of employment, the Company), without the prior written consent of the CEO, participate in any public conference, publish any document, or otherwise make any public statement that could reasonably be expected to affect the image of the Business Entities.
(b) The Executive agrees that during the "Non-Competition Period"), he the Executive will not, directly or indirectly, alone or as a partner, joint venturer, officer, director, employee, consultant, agent, independent contractor or stockholder of any company or business, engage (for anyone other than the CompanyBusiness Entities) in any Competitive EnterpriseEnterprise anywhere in the United States, Canada, or Mexico. For the purpose hereof, a "Competitive Enterprise" shall mean any company, corporation or other entity with any activities directly or indirectly related business venture engaged in lines of business similar to the civil explosives business or the initiation systems business. Ownership of less than two percent those of the total outstanding equity securities Company or its affiliates. Neither the service by the Executive on corporate boards in accordance with the provisions of Section 2(c) hereof nor the ownership by the Executive of not more than two percent (2%) of the shares of stock of any corporation having a class of equity securities actively traded on a national securities exchange or on The NASDAQ Stock Market market shall not be deemed, in and of itselfthemselves, to violate the prohibitions of this subsection Section 6(b).
(bc) provided that During his employment with the Executive own less than two percent of such class of equity securities. The "Company and during the Non-Competition Period", if anythe Executive shall not take any action having the purpose or intended or foreseeable effect of interfering with or otherwise damaging, in any material respect, the Company's business relationship with any of its suppliers or customers.
(d) During his employment with the Company and during the Non-Competition Period, the Executive shall not, other than for the benefit of the Business Entities, directly or indirectly, employ, or knowingly permit any company or business organization directly or indirectly controlled by the Executive to employ any person who is either one (1) employed by the Company, or two (2) years from the Date of Termination at the option of in any manner seek to induce any such person to leave his or her employment with the Company.
(e) If the Executive materially breaches any of the provisions of this Section 6 (the "Restrictive Covenants"), the Company shall have the following rights and remedies if such material breach continues and is not cured within fifteen (15) days after written demand by the Company, each of which shall be independent of the other and severally enforceable, and all of which shall be in addition to, and not in lieu of, any other rights and remedies available to the Company under law or equity:
(i) the right and remedy to have the Restrictive Covenants specifically enforced by any court having jurisdiction (whether by temporary restraining order, preliminary injunction, permanent injunction, injunction in aid or arbitration or otherwise) without having to post a bond, it being acknowledged and agreed that any such breach or threatened breach will cause irreparable injury to the Company and that money damages will not provide an adequate remedy to the Company; and
(ii) the right to discontinue the payment of any amounts or benefits owing to the Executive under this Agreement.
(f) The Executive acknowledges that: (i) the business in which the Company is engaged is intensely competitive; (ii) the Executive's employment by the Company will require that the Executive develop, have access to and knowledge of Confidential Information; (iii) the direct or indirect disclosure or use of any such Confidential Information to existing or potential competitors of the Company would place the Company at a competitive disadvantage and would do damage, monetary or otherwise, to the Company; (iv) the Executive has developed goodwill with clients and suppliers of the Company at substantial expense to the Company; (v) the Executive will continue to develop goodwill, through substantial investment by the Company, while working for the Company; (vi) the engaging by the Executive in any of the activities prohibited by this Section 6 may constitute improper appropriation and/or use of such Confidential Information and/or goodwill; (vii) the services to be rendered by the Executive to the Company are of a special and unique character; (viii) the Executive has been fully advised by counsel in connection with his entering into this Agreement, including as to statutory and common law regarding the enforceability of the Restrictive Covenants; and (ix) enforcement of the Restrictive Covenants will not unduly limit the Executive's ability to support himself or his family or to earn a livelihood. The Executive expressly acknowledges that the Confidential Information and goodwill of the Company constitute protectible business interests of the Company and that the Restrictive Covenants are fair, reasonable, valid, and enforceable.
(g) The Executive acknowledges and agrees that each of the Restrictive Covenants is given by the Executive as part of the consideration for this Agreement and as an inducement to the Company to enter into this Agreement.
(h) If any court determines that any of the Restrictive Covenants, or any part thereof, is invalid or unenforceable, the remainder of the Restrictive Covenants shall not thereby be affected and shall be given full effect, without regard to the invalid portion. In addition, if any court construes any of the Restrictive Covenants, or any part thereof, to be unenforceable because of the duration of such provision or the area covered thereby, such court shall have the power to reduce the duration or area of such provision and, in its reduced form, such provision shall then be enforceable and shall be enforced. The Executive agrees that the Restrictive Covenants, as so amended, shall be valid and binding as though any invalid or unenforceable provision had not been included herein.
(i) For purposes of this Section 6 and Section 7 hereof, the "Company" refers to the Company and any of its parents, subsidiaries, subdivisions or affiliates.
Appears in 1 contract
Confidential Information; Restrictive Covenants. (a) The Executive acknowledges that the non-public information, knowledge and data (including any trade secrets or similar proprietary information) obtained by him during the course of his employment with the Company, concerning the business or affairs of the Company and its affiliates (the "Business Entities") are the property of the Company. Therefore, the Executive will not at any time (whether during or after his employment with the Company) disclose or use for his own benefit or purposes or the benefit or purposes of any other person, entity or enterprise, other than a Business Entity, any trade secrets, information, data, or other confidential information relating to customers, development programs, costs, marketing, trading, investment, sales activities, promotion, credit and financial data, manufacturing or other processes, financing methods, plans or the business and affairs of any Business Entity; provided that the foregoing shall not apply to information which is not proprietary to the Business Entities or which has become public other than as a result of the Executive's breach of this covenant. The Executive agrees that, during the Employment Period, he will use his best efforts to maintain in good condition all memoranda, books, papers, plans, information, letters and other data, and all copies thereof or therefrom, in any way relating to the business of the Business Entities, and that upon termination of his employment with the Company for any reason, he will return all such materials (together with any other property of the Company) to the Company immediately. The Executive shall not at any time (whether during or after his employment with the Company), without the prior written consent of the CEO, participate in any public conference, publish any document, or otherwise make any public statement that could reasonably be expected to affect the image of the Business Entities.
(b) The Executive agrees that during the Non-Competition Period, he will not, directly or indirectly, alone or as a partner, joint venturer, officer, director, employee, consultant, agent, independent contractor or stockholder of any company or business, engage (for anyone other than the Company) in any Competitive Enterprise. For the purpose hereof, a "Competitive Enterprise" shall mean any company, corporation or other entity with any activities directly or indirectly related to the civil explosives business or the initiation systems business. Ownership of less than two percent of the total outstanding equity securities by the Executive of shares of stock of any corporation having a class of equity securities actively traded on a national securities exchange or on The NASDAQ Stock Market shall not be deemed, in and of itself, to violate the prohibitions of this subsection (b) provided that the Executive own less than two percent of such class of equity securities. The "Non-Competition Period", if any, is either one (1) or two (2) years from the Date of Termination at the option of the Company.,
Appears in 1 contract
Samples: Employment Agreement (Mining Services International Corp/)
