Confidentiality; Non-Competition. (a) In consideration for any severance that may be due to the Executive after termination of employment (but regardless of whether and for how long any severance is in fact due) and for allowing the Executive's stock options to be exercised after termination of employment (except for Cause), and in return for other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, for a period of two years commencing upon the termination of his employment hereunder (regardless of the reason for the termination), the Executive shall not, without written consent of the Employer, engage, as a stockholder, director, officer, consultant or otherwise, in any enterprise which competes with the Employer or any business of its subsidiaries, or directly or indirectly employ, contract for or solicit the services in any capacity of any executive or management person who is, or within the prior three months has been, employed by the Employer or any such business. The Executive will not be deemed to be engaged in a competing enterprise if (A) less than 10% of the gross receipts of such enterprise are derived from businesses that compete with the Employer or businesses of its affiliates that were under the Employer's management control, and (B) the Executive's engagement does not involve such competing businesses. This paragraph shall not bar Executive from owning up to 5% of the outstanding securities of any publicly held company. (b) The Executive shall keep secret and confidential and not use (except in connection with the business of the Employer and its affiliates or pursuant to applicable law or court order) any confidential information with respect to the business or affairs of the Employer or its subsidiaries. This obligation will be in effect while the Executive is employed by the Employer and for thirty six (36) months after he ceases to be so employed, but it will not apply at any time to information that is or becomes generally known to the public (other than through a breach of this Section 6(b)). (c) The Executive acknowledges that the remedy at law for breach of his covenants under this Section 6 will be inadequate and, accordingly, in the event of any breach or threatened breach by the Executive of the provisions of this Section 6 the Employer will be entitled (without the necessity of showing economic loss or other actual damage), in addition to all other remedies to an injunction restraining any such breach, without any bond or other security being required. The Executive and the Employer recognize and agree that the duration and scope for which the covenants not to compete and solicit set forth in this Section 6 are to be effective are reasonable. In the event that any court determines that the time period or the area, or both of them, are unreasonable and that such covenants are to that extent unenforceable, the parties agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceable. (d) In the event of a breach by the Executive of any covenant under this Section 6, the Executive agrees that, notwithstanding anything to the contrary in this Agreement or any award of or letter agreement for any options to acquire common stock of the Employer, all remaining obligations of the Employer hereunder and under such options shall thereupon automatically be extinguished and all such options shall thereupon automatically expire. No breach shall be deemed to occur under this Section 6(d) until Employer delivers a written allegation to Executive setting forth in reasonable detail the facts or events constituting the breach; and further, no breach shall be deemed to have occurred if Executive cures said breach within 30 days of such notice, unless such breach was of such magnitude as to be incapable of being cured.
Appears in 4 contracts
Samples: Employment Agreement (Key3media Group Inc), Employment Agreement (Key3media Group Inc), Employment Agreement (Key3media Group Inc)
Confidentiality; Non-Competition. (a) In consideration for any severance that may be due to the Executive after termination of employment (but regardless of whether and for how long any severance is in fact due) and for allowing the Executive's stock options to be exercised for a period of two years (or if as a result of any securities law, the time required to exercise options and sell the stock acquired pursuant to such exercise is longer than two years, then such longer period, but in no event more than 3 years) after termination of employment (except for Cause), and in return for other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, for a period of two years commencing upon the termination of his employment hereunder (regardless of the reason for the termination), the Executive shall not, -16- without written consent of the Employer, engage, as a stockholder, director, officer, consultant or otherwise, in any enterprise which competes with the Employer or any business of its subsidiaries, or directly or indirectly employ, contract for or solicit the services in any capacity of any executive or management person who is, or within the prior three months has been, employed by the Employer or any such business. The Executive will not be deemed to be engaged in a competing enterprise if (A) less than 10% of the gross receipts of such enterprise are derived from businesses that compete with the Employer or businesses of its affiliates that were under the Employer's management control, and (B) the Executive's engagement does not involve such competing businesses. This paragraph shall not bar Executive from owning up to 5% of the outstanding securities of any publicly publicly-held company.
(b) The Executive shall keep secret and confidential and not use (except in connection with the business of the Employer and its affiliates or pursuant to applicable law or court order) any confidential information with respect to the business or affairs of the Employer or its subsidiaries. This obligation will be in effect while the Executive is employed by the Employer and for thirty six (36) 36 months after he ceases to be so employed, but it will not apply at any time to information that is or becomes generally known to the public (other than through a breach of this Section 6(b)).
(c) The Executive acknowledges that the remedy at law for breach of his covenants under this Section 6 will be inadequate and, accordingly, in the event of any breach or threatened breach by the Executive of the provisions of this Section 6 the Employer will be entitled (without the necessity of showing economic loss or other actual damage), in addition to all other remedies to an injunction restraining any such breach, without any bond or other security being required. The Executive and the Employer recognize and agree that the duration and scope for which the covenants not to compete and solicit set forth in this Section 6 are to be effective are reasonable. In the event that any court determines that the time period or the area, or both of them, are unreasonable and that such covenants are to that extent unenforceable, the parties agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceable.
(d) In the event of a breach by the Executive of any covenant under this Section 6, the Executive agrees that, notwithstanding anything to the contrary in this -18- Agreement or any award of or letter agreement for any options to acquire common stock of the Employer, all remaining obligations of the Employer hereunder and under such options shall thereupon automatically be extinguished and all such options shall thereupon automatically expire. No breach shall be deemed to occur under this Section 6(d) until Employer delivers a written allegation to Executive setting forth in reasonable detail the facts or events constituting the breach; and further, no breach shall be deemed to have occurred if Executive cures said breach within 30 days of such notice, unless such breach was of such magnitude as to be incapable of being cured.
Appears in 2 contracts
Samples: Employment Agreement (Key3media Group Inc), Employment Agreement (Key3media Group Inc)
Confidentiality; Non-Competition. (a) In consideration for Consultant acknowledges that: (i) the Business is intensely competitive and that Consultant’s engagement by Company will require that Consultant have access to and knowledge of confidential information of Company (ii) the direct and indirect disclosure of any severance such confidential information to existing or potential competitors of Company would place Company at a competitive disadvantage and would do damage, monetary or otherwise, to Company’s business; and (iii) the engaging by Consultant in any of the activities prohibited by this Section 5 may constitute improper appropriation and/or use of such information and trade secrets. Consultant expressly acknowledges the trade secret status of the confidential information and that may the confidential information constitutes a protectable business interest of Company.
(b) For purposes of this Section 5, Company shall be due construed to include Company and its subsidiaries and affiliates engaged in the Executive Business.
(c) During the Term of this Agreement and at all times after the termination of employment (but regardless Consultant’s engagement upon expiration of the Term or otherwise, Consultant shall not, directly or indirectly, whether individually, as a director, stockholder, owner, partner, employee, principal or agent of any business, or in any other capacity, make known, disclose, furnish, make available or utilize any of the confidential information, other than in the proper performance of the duties contemplated herein, or as required by a court of competent jurisdiction or other administrative or legislative body; provided that, prior to disclosing any of the confidential information to a court or other administrative or legislative body, Consultant shall promptly notify Company so that Company may seek a protective order or other appropriate remedy. Consultant agrees to return all confidential information, including all photocopies, extracts and for how long any severance is in fact due) and for allowing the Executive's stock options to be exercised after termination of employment (except for Cause)summaries thereof, and any such information stored electronically on tapes, computer disks or in return for any other valuable consideration, the receipt manner to Company at any time upon request by Company and sufficiency of which is hereby acknowledged, for a period of two years commencing upon the termination of his employment hereunder engagement for any reason.
(regardless d) During the Term and for an additional period equal to twelve (12) months following the end of the reason for the termination)Term, the Executive Consultant shall notnot engage in Competition (as defined below) with Company. For purposes of this Agreement, without written consent of the Employer“Competition” by Consultant shall mean Consultant’s engaging in, engage, or otherwise directly or indirectly being employed by or acting as a stockholderconsultant or lender to, or being a director, officer, consultant employee, principal, licensor, trustee, broker, agent, stockholder, member, owner, joint venturer or otherwisepartner of, or permitting his name to be used in any enterprise which competes connection with the Employer activities of any other business or organization which competes, directly or indirectly, with the Company as the same shall be constituted at any time during or following his engagement; provided that, it shall not be a violation of this Section 5(d) for Consultant to become the registered or beneficial owner of up to five percent (5%) of any class of the capital stock of a competing corporation registered under the Securities Exchange Act of 1934, as amended, provided that Consultant does not actively participate in the business of such corporation until such time as this covenant expires.
(e) Without limiting the generality of the foregoing, during the Term, Consultant agrees that he will not, directly or indirectly, for his benefit or for the benefit of any other person, firm or entity, do any of the following:
(i) solicit from any customer doing business with Company, any business of its subsidiariesthe same or of a similar nature to the Business with such customer;
(ii) solicit the employment or services of, or directly hire, any person who at the time is employed by or indirectly employ, contract for was a consultant to Company; or
(iii) otherwise interfere with the Business or solicit accounts of Company including the services in any capacity making of any executive statements or management person who iscomments of a defamatory or disparaging nature to third parties regarding Company or its officers, directors, personnel or within the prior three months has beenproducts.
(iv) provide consulting or other similar or related services to any transportation or logistics entity, employed by the Employer organization or any such business. The Executive will not be deemed to be engaged in a competing enterprise if (A) less than 10% of the gross receipts of such enterprise are derived from businesses company providing services that compete with the Employer or businesses of its affiliates that were under the Employer's management control, Company including consulting and (B) the Executive's engagement does not involve such competing businesses. This paragraph shall not bar Executive from owning up to 5% of the outstanding securities of any publicly held companyadvisory firms.
(bv) The Executive shall keep secret and confidential and not use (except in connection with the business provide consulting or other similar services to any customer of the Employer and its affiliates or pursuant to applicable law or court order) any confidential information with respect to the business or affairs Company who is a customer as of the Employer or its subsidiaries. This obligation will be in effect while the Executive is employed by the Employer and for thirty six (36) months after he ceases to be so employed, but it will not apply at any time to information that is or becomes generally known to the public (other than through a breach date of this Section 6(b))agreement.
(cf) The Executive Consultant further acknowledges and agrees that due to the remedy at law for breach uniqueness of his services and confidential nature of the information he will possess, the covenants under this Section 6 will be inadequate and, accordingly, set forth herein are reasonable and necessary for the protection of the business and goodwill of Company; and it is the intent of the parties hereto that if in the event opinion of any breach or threatened breach by the Executive court of the provisions of this Section 6 the Employer will be entitled (without the necessity of showing economic loss or other actual damage), in addition to all other remedies to an injunction restraining competent jurisdiction any such breach, without any bond or other security being required. The Executive and the Employer recognize and agree that the duration and scope for which the covenants not to compete and solicit provision set forth in this Section 6 are 5 is not reasonable in any respect, such court shall have the right, power and authority to be effective are reasonable. In the event that modify any court determines that the time period or the area, or both of them, are unreasonable and that such covenants are to that extent unenforceable, the parties agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceable.
(d) In the event of a breach by the Executive of any covenant under this Section 6, the Executive agrees that, notwithstanding anything to the contrary in this Agreement or any award of or letter agreement for any options to acquire common stock of the Employer, all remaining obligations of the Employer hereunder and under such options shall thereupon automatically be extinguished and all such options provisions as to such court shall thereupon automatically expire. No breach shall be deemed appear not unreasonable and to occur under enforce the remainder of this Section 6(d) until Employer delivers a written allegation to Executive setting forth in reasonable detail the facts or events constituting the breach; and further, no breach shall be deemed to have occurred if Executive cures said breach within 30 days of such notice, unless such breach was of such magnitude 5 as to be incapable of being curedso modified.
Appears in 2 contracts
Samples: Consulting Agreement (Arcbest Corp /De/), Consulting Agreement (Arcbest Corp /De/)
Confidentiality; Non-Competition. (a) In consideration for Executive acknowledges that: the business of designing, manufacturing and supplying pre-wired armored cables as conducted by the Company and its subsidiaries (the "Business") is intensely competitive and Executive's former and current position with the Company has exposed, and will continue to expose, Executive to knowledge of confidential information of the Company; the direct and indirect disclosure of any severance that may be due 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's Business; and the engaging by Executive in any of the activities prohibited by this Agreement may constitute improper appropriation and/or use of such information and trade secrets. Executive expressly acknowledges the trade secret status of the confidential information and that the confidential information constitutes a protectable business interest of the Company.
(b) For purposes of this Agreement, the Company shall be construed to include the Company and its current and future subsidiaries and affiliates engaged in the Business.
(c) From and after termination of employment the Effective Time (but regardless of whether and for how long any severance is as defined in fact duethe Merger Agreement) and for allowing (the Executive's stock options to be exercised after termination of employment (except for Cause"Effective Time"), Executive shall not, directly or indirectly, whether individually, as a director, stockholder, owner, partner, employee, principal or agent of any business, or in any other capacity, make known, disclose, furnish, make available or utilize any of the confidential information of the Company other than in the proper performance of the duties contemplated herein, or as required by a court of competent jurisdiction or other administrative or legislative body; PROVIDED THAT, prior to disclosing any of the confidential information to a court or other administrative or legislative body, Executive shall promptly notify the Company so that it may seek a protective order or other appropriate remedy. Executive agrees to return all confidential information, including all photocopies, extracts and summaries thereof, and any such information stored electronically on tapes, computer disks or in return for any other valuable consideration, manner to the receipt Company at any time upon request by the Company and sufficiency of which is hereby acknowledged, for a period of two years commencing upon the termination of his employment hereunder (regardless of the reason engagement for the termination), the Executive shall not, without written consent of the Employer, engage, as a stockholder, director, officer, consultant or otherwise, in any enterprise which competes with the Employer or any business of its subsidiaries, or directly or indirectly employ, contract for or solicit the services in any capacity of any executive or management person who is, or within the prior three months has been, employed by the Employer or any such business. The Executive will not be deemed to be engaged in a competing enterprise if (A) less than 10% of the gross receipts of such enterprise are derived from businesses that compete with the Employer or businesses of its affiliates that were under the Employer's management control, and (B) the Executive's engagement does not involve such competing businesses. This paragraph shall not bar Executive from owning up to 5% of the outstanding securities of any publicly held company.
(b) The Executive shall keep secret and confidential and not use (except in connection with the business of the Employer and its affiliates or pursuant to applicable law or court order) any confidential information with respect to the business or affairs of the Employer or its subsidiaries. This obligation will be in effect while the Executive is employed by the Employer and for thirty six (36) months after he ceases to be so employed, but it will not apply at any time to information that is or becomes generally known to the public (other than through a breach of this Section 6(b)).
(c) The Executive acknowledges that the remedy at law for breach of his covenants under this Section 6 will be inadequate and, accordingly, in the event of any breach or threatened breach by the Executive of the provisions of this Section 6 the Employer will be entitled (without the necessity of showing economic loss or other actual damage), in addition to all other remedies to an injunction restraining any such breach, without any bond or other security being required. The Executive and the Employer recognize and agree that the duration and scope for which the covenants not to compete and solicit set forth in this Section 6 are to be effective are reasonable. In the event that any court determines that the time period or the area, or both of them, are unreasonable and that such covenants are to that extent unenforceable, the parties agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceablereason.
(d) In From the event Effective Time until the fifth anniversary of the Effective Time (the "Non-Competition Period"), Executive shall not engage in Competition (as defined below) with the Company. For purposes of this Agreement, "Competition" by Executive shall mean Executive's engaging in, or otherwise directly or indirectly being employed by or acting as a consultant or lender to, or being a director, officer, employee, principal, licensor, trustee, broker, agent, stockholder, member, owner, joint venturer or partner of, or permitting his name to be used in connection with the activities of any other business or organization which is engaged in the same business as the Business of the Company as the same shall be constituted at any time during or following his engagement; PROVIDED THAT, it shall not be a violation of this Agreement for Executive to (i) become the registered or beneficial owner of less than five percent (5%) of any class of the capital stock of a breach competing corporation registered under the Securities Exchange Act of 1934, as amended or (ii) be employed by an entity that engages in the Executive of any covenant under this Section 6, same business as the Executive agrees that, notwithstanding anything to the contrary in this Agreement or any award of or letter agreement for any options to acquire common stock Business of the EmployerCompany, all remaining obligations of the Employer hereunder and under such options shall thereupon automatically be extinguished and all such options shall thereupon automatically expire. No breach shall be deemed to occur under this Section 6(d) until Employer delivers so long as Executive does not directly perform services for or work within a written allegation to Executive setting forth in reasonable detail the facts division or events constituting the breach; and further, no breach shall be deemed to have occurred if Executive cures said breach within 30 days business unit of such notice, unless entity that engages in such breach was of such magnitude as to be incapable of being curedbusiness.
Appears in 2 contracts
Samples: Confidentiality, Non Solicitation and Non Competition Agreement (Tyco International LTD /Ber/), Confidentiality, Non Solicitation and Non Competition Agreement (Tyco International LTD /Ber/)
Confidentiality; Non-Competition. (a) In consideration for any severance that may be due to the Executive after termination of employment (but regardless of whether and for how long any severance is in fact due) and for allowing the Executive's stock options to be exercised after termination of employment (except for Cause), and in return for other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, for a period of two years commencing upon the termination of his employment hereunder (regardless of the reason for the termination), the Executive The Employee shall not, without during the Term of Employment or at any time thereafter, use (other than in the performance of his duties to the Company) or disclose to any person, firm or corporation (except as required by law or with the prior written consent approval of EVI) any confidential information concerning the business, inventions, discoveries, clients, affairs or other trade secrets of the Employer, engage, as a stockholder, director, officer, consultant or otherwise, Company that he may have acquired in any enterprise which competes with the Employer or any business of its subsidiariescourse of, or directly or indirectly employas an incident to, contract for or solicit the services in any capacity of any executive or management person who ishis employment by EVI (collectively, or within the prior three months has been, employed by the Employer or any such business. The Executive will not be deemed to be engaged in a competing enterprise if (A) less than 10% of the gross receipts of such enterprise are derived from businesses that compete with the Employer or businesses of its affiliates that were under the Employer's management control, and (B) the Executive's engagement does not involve such competing businesses. This paragraph shall not bar Executive from owning up to 5% of the outstanding securities of any publicly held company“Confidential Information”).
(b) The Executive obligations of confidentiality and non-use set forth in Subsection 6(a) above shall keep secret and confidential and not use (except in connection with the business of the Employer and its affiliates or pursuant to applicable law or court order) any confidential information with respect to the business or affairs of the Employer or its subsidiaries. This obligation will be in effect while the Executive is employed by the Employer and for thirty six (36) months after he ceases to be so employed, but it will not apply at any time to information that information: (i) which is or becomes generally known to published in any written document or otherwise is or becomes a part of the public (other than through a domain without breach of this Section 6(b))the aforementioned obligation by the Employee; or (ii) which the Employee can establish was already in his possession and not subject to a secrecy obligation at the time he encountered such information in the course of, or as an incident to, his employment by EVI. Specific information shall not be deemed published or otherwise in the public domain, or in the Employee’s prior possession, merely because it is encompassed by some general information published, or in the public domain, or in the Employee’s prior possession.
(c) The Executive acknowledges In addition to restrictive covenants contained in the Asset Purchase Agreement, as a material inducement to EVI in entering into this Agreement, and expressly in partial exchange for the performance of EVI’s obligations under this Agreement, the Employee hereby covenants and agrees that, during the Term of Employment and for a period of twelve (12) months thereafter, he will not, either on his own account, or directly or indirectly in conjunction with or on behalf of any person, firm or entity (other than by reason of the Employee’s equity ownership in any publicly traded firm or corporation, provided that such equity ownership shall not confer upon the Employee the right or ability to influence or direct, directly or indirectly, the management of the business and/or affairs of any such firm or corporation):
(i) Solicit or employ, or attempt to solicit or employ, any person who is then or has, within the six (6) month period prior thereto, been an officer, director or employee of the Company, whether or not such a person would commit a breach of his or her contract of employment, if any, by reason of leaving the service of the Company; or
(ii) Carry on or be engaged, concerned or interested in, or devote any material time to the affairs of, any trade or business engaged in, by the Company, as of the effective date of the termination of such employment. Notwithstanding anything in this Agreement to the contrary, in the event that the remedy at law for breach Employee shall properly elect to terminate this Agreement, in accordance with the provisions of Section 4(d) hereof, as a result of the occurrence of a Company Beach Event, then, in such event, the Employee shall not be bound by the restrictions contained in Section 5 of this Agreement only as the same involve the Business (as defined in the Asset Purchase Agreement), whether now or hereafter operated by COM. It is the intent of the parties hereto that nothing herein shall relieve the Employee of its covenants in this Section 5 as they relate to EVI (and not the Business or COM). By way of example, nothing herein shall relieve the Employee of his covenants under this Section 6 will be inadequate and, accordingly, in the event of any breach or threatened breach by the Executive of the provisions of this Section 6 the Employer will be entitled (without the necessity of showing economic loss or other actual damage), in addition to all other remedies to an injunction restraining any such breach, without any bond or other security being required. The Executive and the Employer recognize and agree that the duration and scope for which the covenants not to compete and solicit set forth in this Section 6 are to be effective are reasonable. In the event that any court determines that the time period or the area, or both of them, are unreasonable and that such covenants are to that extent unenforceable, the parties agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceable.
(d) In the event of a breach by the Executive of any covenant under this Section 6, the Executive agrees that, notwithstanding anything 5 with respect to the contrary in this Agreement or any award Confidential Information, employees, and/or business (other than the Business) of or letter agreement for any options to acquire common stock of the Employer, all remaining obligations of the Employer hereunder and under such options shall thereupon automatically be extinguished and all such options shall thereupon automatically expire. No breach shall be deemed to occur under this Section 6(d) until Employer delivers a written allegation to Executive setting forth in reasonable detail the facts or events constituting the breach; and further, no breach shall be deemed to have occurred if Executive cures said breach within 30 days of such notice, unless such breach was of such magnitude as to be incapable of being curedEVI.
Appears in 1 contract
Confidentiality; Non-Competition. (a) In consideration for any severance that may be due to the Executive after termination of employment (but regardless of whether and for how long any severance is in fact due) and for allowing the Executive's stock options to be exercised after termination of employment (except for Cause), and in return for other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, for For a period of two years commencing upon the termination of his employment hereunder (regardless of the reason for the termination), the Executive shall not, without with out written consent of the EmployerCompany, engage, as a stockholder, director, officer, consultant or otherwise, in any enterprise anywhere in the world which competes with the Employer Company or any business of its subsidiariesaffiliates that, at the time of such termination, is under the Company's management control, or directly or indirectly employ, contract for or solicit the services in any capacity of any executive or management person who is, or within the prior three months has been, employed by the Employer Company or any such business. The Executive will not be deemed to be engaged in a competing enterprise if (A) less than 10% of the gross receipts of such enterprise are derived from businesses that compete with the Employer Company or businesses of its affiliates that were under the EmployerCompany's management control, and (B) the Executive's engagement does not involve such competing businesses. This paragraph shall not bar Executive from owning up to 5% of the outstanding securities of any publicly publicly-held company.
(b) The Executive shall keep secret and confidential and not use (except in connection with the business of the Employer Company and its affiliates or pursuant to applicable law or court order) any confidential information with respect to the business or affairs of the Employer Company or its subsidiariesaffiliates. This obligation will be in effect while the Executive is employed by the Employer Company and for thirty six (36) months at all times after he ceases to be so employed, but it will not apply at any time to information that is or becomes generally known to the public (other than through a breach of this Section 6(b)).
(c) The Executive acknowledges that the remedy at law for breach of his covenants under this Section 6 will be inadequate and, accordingly, in the event of any breach or threatened breach by the Executive of the provisions of this Section 6 the Employer Company will be entitled (without the necessity of showing economic loss or other actual damage), in addition to all other remedies (which shall include the termination of the right to any payment under this Agree ment), to an injunction restraining any such breach, without any bond or other security being required. The Executive and the Employer Company recognize and agree that the duration and scope for which the covenants not to compete and solicit set forth in this Section 6 are to be effective are reasonable. In the event that any court determines that the time period or the area, or both of them, are unreasonable and that such covenants are to that extent unenforceable, the parties agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceable.
(d) In the event of a breach by the Executive of any covenant under this Section 6, the Executive agrees that, notwithstanding anything to the contrary in this Agreement or any award of or letter agreement for any options option to acquire common stock of the EmployerCompany or of SOFTBANK, all remaining obligations of including the Employer hereunder Fixed Option and under the Incentive Option, any such options shall thereupon automatically be extinguished and all such options shall thereupon automatically expire. No breach shall be deemed to occur under this Section 6(d) until Employer delivers a written allegation to Executive setting forth in reasonable detail option that is at the facts or events constituting the breach; and further, no breach shall be deemed to have occurred if Executive cures said breach within 30 days time of such notice, unless such breach was of such magnitude as to be incapable of being curedunexercised shall immediately terminate.
Appears in 1 contract
Samples: Employment Agreement (Zd Inc)
Confidentiality; Non-Competition. (a) In consideration for the payment of any severance severance, if any, that may be is due to the Executive after termination of employment (but regardless of whether and for how long any severance is in fact due) and for allowing the Executive's stock options to be exercised for a period of two years (or if as a result of any securities law, the time required to exercise options and sell the stock acquired pursuant to such exercise is longer than two years, then such longer period, but in no event more than 3 years) after termination of employment (except for Cause), and in return for other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, for a period of two years commencing upon the termination of his employment hereunder (regardless of the reason for the termination), the Executive shall not, without written consent of the Employer, engage, as a stockholder, director, officer, consultant or otherwise, in any enterprise which competes with the Employer or any business of its subsidiaries, or directly or indirectly employ, contract for or solicit the services in any capacity of any executive or management person who is, or within the prior three months has been, employed by the Employer or any such business. The Executive will not be deemed to be engaged in a competing enterprise if (A) less than 10% of the gross receipts of such enterprise are derived from businesses that compete with the Employer or businesses of its affiliates that were under the Employer's management control, and (B) the Executive's engagement does not involve such competing businesses. This paragraph shall not bar Executive from owning up to 5% of the outstanding securities of any publicly publicly-held company.
(b) The Executive shall keep secret and confidential and not use (except in connection with the business of the Employer and its affiliates or pursuant to applicable law or court order) any confidential information with respect to the business or affairs of the Employer or its subsidiaries. This obligation will be in effect while the Executive is employed by the Employer and for thirty six (36) 36 months after he ceases to be so employed, but it will not apply at any time to information that is or becomes generally known to the public (other than through a breach of this Section 6(b)).
(c) The Executive acknowledges that the remedy at law for breach of his covenants under this Section 6 will be inadequate and, accordingly, in the event of any breach or threatened breach by the Executive of the provisions of this Section 6 the Employer will be entitled (without the necessity of showing economic loss or other actual damage), ) in addition to all other remedies to an injunction restraining any such breach, without any bond or other security being required. The Executive and the Employer recognize and agree that the duration and scope for which the covenants not to compete and solicit set forth in this Section 6 are to be effective are reasonable. In the event that any court determines that the time period or the area, or both of them, are unreasonable and that such covenants are to that extent unenforceable, the parties agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceable.
(d) In the event of a breach by the Executive of any covenant under this Section 6, the Executive agrees that, notwithstanding anything to the contrary in this Agreement or any award of or letter agreement for any options to acquire common stock of the Employer, all remaining obligations of the Employer hereunder and under such options shall thereupon automatically be extinguished and all such options shall thereupon automatically expire. No breach shall be deemed to occur under this Section 6(d) until Employer delivers a written allegation to Executive setting forth in reasonable detail the facts or events constituting the breach; and further, no breach shall be deemed to have occurred if Executive cures said breach within 30 days of such notice, unless such breach was of such magnitude as to be incapable of being cured.
Appears in 1 contract
Confidentiality; Non-Competition. (a) In consideration for any severance that may be due to the Executive after termination of employment (but regardless of whether and for how long any severance is in fact due) and for allowing the Executive's stock options to be exercised for a period of two years (or if as a result of any securities law, the time required to exercise options and sell the stock acquired pursuant to such exercise is longer than two years, then such longer period, but in no event more than 3 years) after termination of employment (except for Cause), and in return for other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, for a period of two years commencing upon the termination of his employment hereunder (regardless of the reason for the termination), the Executive shall not, without written consent of the Employer, engage, as a stockholder, director, officer, consultant or otherwise, in any enterprise which competes with the Employer or any business of its subsidiaries, or directly or indirectly employ, contract for or solicit the services in any capacity of any executive or management person who is, or within the prior three months has been, employed by the Employer or any such business. The Executive will not be deemed to be engaged in a competing enterprise if (A) less than 10% of the gross receipts of such enterprise are derived from businesses that compete with the Employer or businesses of its affiliates that were under the Employer's management control, and (B) the Executive's engagement does not involve such competing businesses. This paragraph shall not bar Executive from owning up to 5% of the outstanding securities of any publicly publicly-held company.
(b) The Executive shall keep secret and confidential and not use (except in connection with the business of the Employer and its affiliates or pursuant to applicable law or court order) any confidential information with respect to the business or affairs of the Employer or its subsidiaries. This obligation will be in effect while the Executive is employed by the Employer and for thirty six (36) 36 months after he ceases to be so employed, but it will not apply at any time to information that is or becomes generally known to the public (other than through a breach of this Section 6(b)).
(c) The Executive acknowledges that the remedy at law for breach of his covenants under this Section 6 will be inadequate and, accordingly, in the event of any breach or threatened breach by the Executive of the provisions of this Section 6 the Employer will be entitled (without the necessity of showing economic loss or other actual damage), in addition to all other remedies to an injunction restraining any such breach, without any bond or other security being required. The Executive and the Employer recognize and agree that the duration and scope for which the covenants not to compete and solicit set forth in this Section 6 are to be effective are reasonable. In the event that any court determines that the time period or the area, or both of them, are unreasonable and that such covenants are to that extent unenforceable, the parties agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceable.
(d) In the event of a breach by the Executive of any covenant under this Section 6, the Executive agrees that, notwithstanding anything to the contrary in this Agreement or any award of or letter agreement for any options to acquire common stock of the Employer, all remaining obligations of the Employer hereunder and under such options shall thereupon automatically be extinguished and all such options shall thereupon automatically expire. No breach shall be deemed to occur under this Section 6(d) until Employer delivers a written allegation to Executive setting forth in reasonable detail the facts or events constituting the breach; and further, no breach shall be deemed to have occurred if Executive cures said breach within 30 days of such notice, unless such breach was of such magnitude as to be incapable of being cured.
Appears in 1 contract
Confidentiality; Non-Competition. As a condition to the Companies' and the Stockholder's willingness to enter into this Agreement and in partial consideration of the grant of the Options, the Employee agrees to the covenants and restrictions set forth in this Section 8.
(a) In consideration for any severance that may be due to The Employee agrees that, during the Executive after termination of employment (but regardless of whether Term and for how long any severance is in fact due) and for allowing the Executive's stock options to be exercised after termination of employment (except for Cause), and in return for other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, for a period of two (2) years commencing upon the termination of his employment hereunder (regardless of the reason for the termination)thereafter, the Executive he shall not, without written consent directly or indirectly, induce or solicit (or authorize or assist in the taking of any such actions by any third party) any employee or consultant of the Employer, engage, as a stockholder, director, officer, consultant Companies to leave his or otherwise, in any enterprise which competes her business association with the Employer or any business of its subsidiaries, or directly or indirectly employ, contract for or solicit the services in any capacity of any executive or management person who is, or within the prior three months has been, employed by the Employer or any such business. The Executive will not be deemed to be engaged in a competing enterprise if (A) less than 10% of the gross receipts of such enterprise are derived from businesses that compete with the Employer or businesses of its affiliates that were under the Employer's management control, and (B) the Executive's engagement does not involve such competing businesses. This paragraph shall not bar Executive from owning up to 5% of the outstanding securities of any publicly held companyCompanies.
(b) The Executive shall keep secret Employee acknowledges and confidential agrees that, during the course of the provision of the Employee's services to the Companies, the Employee may be exposed to confidential, proprietary or sensitive data and not use (except in connection with information concerning the business of the Employer and its affiliates or pursuant to applicable law or court order) any confidential information with respect to the business or affairs of the Employer or its subsidiariesCompanies, and that all such data and information constitutes a protectable business interest of the Companies. This obligation will be in effect while In furtherance of such business interest, the Executive Employee is employed by contemporaneously herewith executing and delivering to Xxxxxx Digital and PriceLine the Employer and for thirty six standard consultant confidentiality agreement of each of them (36) months after he ceases to be so employed, but it will not apply at any time to information that is or becomes generally known to the public (other than through a breach of this Section 6(b)"Confidentiality Agreements").
(c) The Executive acknowledges Employee agrees that he will not at any time during the Term and, (i) for a period of one (1) year following the Date of Termination, di- rectly or indirectly, own any interest in, operate, join, control or participate as a director, stockholder, owner, partner, principal, officer or agent of, enter into the employment of, act as a consultant to, or perform any services for, any entity that is engaged anywhere in the United States of America in any business in which either of the Companies is presently engaged. Notwithstanding anything herein to the contrary, this Section 8 shall not prevent the Employee from acquiring securities representing not more than one percent (1%) of the outstanding voting securities of any publicly held corporation. It is the desire and intent of the parties that the provisions of this Section 8(c) shall be enforced to the fullest extent permitted under applicable law. If all or part of this Section 8(c) is held invalid, illegal or incapable of being enforced by any law or public policy, all other terms and provisions of this Agreement shall nevertheless remain in full force and effect. If any part of this Section 8(c) is ultimately determined to be excessively broad as to duration, scope, activity or subject, such part will be construed by limiting and reducing it so as to be enforceable to the maximum extent compatible with applicable law.
(d) The Employee acknowledges and agrees that each of the covenants set forth in this Section 8 and in the Confidentiality Agreements are reasonable and necessary for the protection of the Companies' business interests, that irreparable injury will result to the Companies if the Employee breaches any of the terms of said covenants, and that in the event of the Employee's actual or threatened breach of any such covenants, the Companies will have no adequate remedy at law for breach of his covenants under this Section 6 will be inadequate and, accordingly, law. The Employee accordingly agrees that in the event of any breach actual or threatened breach by the Executive Employee of any of said covenants, the provisions of this Section 6 the Employer will Companies shall be entitled (to immediate injunctive and other equitable relief without bond and without the necessity of showing economic loss or other actual damage), in addition to all monetary damages. Nothing contained herein shall be construed as prohibiting the Companies from pursuing any other remedies available to an injunction restraining any it for such breach or threatened breach, without including the recovery of any bond or other security being required. The Executive and the Employer recognize and agree that the duration and scope for damages which the covenants not it is able to compete and solicit set forth in this Section 6 are to be effective are reasonable. In the event that any court determines that the time period or the area, or both of them, are unreasonable and that such covenants are to that extent unenforceable, the parties agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceableprove.
(de) In the event The provisions of a breach by the Executive of any covenant under this Section 68 shall survive the expiration or termination of this Agreement, the Executive agrees that, notwithstanding anything to the contrary in this Agreement or and any award of or letter agreement for any options to acquire common stock of the Employerarrangements contained herein, all remaining obligations of the Employer hereunder and under such options shall thereupon automatically be extinguished and all such options shall thereupon automatically expire. No breach shall be deemed to occur under this Section 6(d) until Employer delivers a written allegation to Executive setting forth in reasonable detail binding upon the facts Employee's corporate or events constituting the breach; personal successors and further, no breach shall be deemed to have occurred if Executive cures said breach within 30 days of such notice, unless such breach was of such magnitude as to be incapable of being curedassigns.
Appears in 1 contract
Confidentiality; Non-Competition. (a) In consideration for any severance The Executive acknowledges that: (i) the Business is intensely competitive and that the Executive’s employment by the Company will require that the Executive have access to and knowledge of confidential information of the Company relating to such business and other trade secrets, in each case greater than the extent to which such information is generally known or publicly available through no violation of this Section 10 by the Executive; (ii) the use or disclosure of such information other than in furtherance of the Business may be due place the Company at a competitive disadvantage and may do damage, monetary or otherwise, to the Business; and (iii) the engaging by the Executive after termination in any of employment (but regardless the activities prohibited by this Section 10 shall constitute improper appropriation and/or use of whether such information. The Executive expressly acknowledges the trade secret status of the Company’s confidential information and for how long any severance is that the confidential information constitutes a protectable business interest in fact due) and for allowing the Executive's stock options to be exercised after termination of employment (except for Cause), and in return for other valuable considerationCompany. Accordingly, the receipt Company and sufficiency the Executive agree as follows:
(b) For purposes of which is hereby acknowledgedthis Section 10, for the Company shall be construed to include the Company, its subsidiaries and their respective affiliates.
(c) For a period of two years commencing upon one (1) year after the termination of his Executive’s employment hereunder for any reason (regardless of the reason for the termination“Non-Competition Period”), the Executive shall not engage in Competition, as defined below, with the Company in the State of Utah. For purposes of this Agreement, “Competition” by the Executive shall mean the Executive’s engaging in significant activities relating to, or otherwise directly or indirectly being employed by or acting as a consultant or lender to, or being a director, officer, employee, principal, agent, stockholder, member, owner or partner of, or permitting his name to be used in connection with the activities of any entity engaged in the operation of hospitals and/or in-patient healthcare facilities; provided that, it shall not be a violation of this subsection for Executive to become the registered or beneficial owner of less than five percent (5%) of any class of the capital stock of any one or more competing corporations registered under the Securities Exchange Act of 1934, as amended, provided that, the Executive does not actively participate in the business of such corporation until such time as this covenant expires.
(d) During the Non-Competition Period, the Executive agrees that he will not, directly or indirectly, for his benefit or for the benefit of any other person, firm or entity, (i) induce, attempt to induce, or assist others to induce any employee or other person or entity with whom the Company or its subsidiaries has any contractual or business relationship to terminate its, his or her association with the Company or its subsidiaries, or to cease doing business with the Company or its subsidiaries, or do anything to materially interfere with the relationship between the Company or its subsidiaries and any such person or entity, or (ii) hire, without the written consent of the EmployerCompany, engage, as a stockholder, director, officer, consultant or otherwise, in any enterprise which competes with person who was an employee of the Employer Company or any business of its subsidiaries, or directly or indirectly employ, contract for or solicit the services in any capacity of any executive or management person who is, or within the prior three months has been, employed by the Employer or any such business. The Executive will not be deemed to be engaged in a competing enterprise if (A) less than 10% of the gross receipts of such enterprise are derived from businesses that compete with the Employer or businesses of its affiliates that were under the Employer's management control, and (B) subsidiaries during the Executive's engagement does not involve such competing businesses. This paragraph shall not bar Executive from owning up to 5% of the outstanding securities of any publicly held company’s employment.
(b) The Executive shall keep secret and confidential and not use (except in connection with the business of the Employer and its affiliates or pursuant to applicable law or court order) any confidential information with respect to the business or affairs of the Employer or its subsidiaries. This obligation will be in effect while the Executive is employed by the Employer and for thirty six (36) months after he ceases to be so employed, but it will not apply at any time to information that is or becomes generally known to the public (other than through a breach of this Section 6(b)).
(ce) The Executive acknowledges that the remedy services to be rendered by him to the Company are of a special and unique character, which gives this Agreement a peculiar value to the Company, the loss of which may not be reasonably or adequately compensated for by damages in an action at law for breach of his covenants under this Section 6 will be inadequate andlaw, accordingly, in the event of any and that a breach or threatened breach by the Executive him of any of the provisions of contained in this Section 6 10 may cause the Employer will Company irreparable injury. The Executive therefore agrees that the Company may be entitled (entitled, in addition to any other right or remedy, to a temporary, preliminary and permanent injunction, without the necessity of showing economic loss proving the inadequacy of monetary damages or other actual damage), in addition to all other remedies to an injunction restraining any such breach, without the posting of any bond or other security being required. The security, enjoining or restraining the Executive and the Employer recognize and agree that the duration and scope for which the covenants not to compete and solicit set forth in this Section 6 are to be effective are reasonable. In the event that from any court determines that the time period such violation or the area, or both of them, are unreasonable and that such covenants are to that extent unenforceable, the parties agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceablethreatened violations.
(df) In If any one or more of the event of a breach by the Executive of any covenant under this Section 6, the Executive agrees that, notwithstanding anything to the contrary provisions contained in this Agreement or any award of or letter agreement for any options to acquire common stock of the Employer, all remaining obligations of the Employer hereunder and under such options shall thereupon automatically be extinguished and all such options shall thereupon automatically expire. No breach shall be deemed held to occur under this Section 6(d) until Employer delivers a written allegation be excessively broad as to Executive setting forth in reasonable detail the facts duration, activity or events constituting the breach; and furthersubject, no breach such provisions shall be deemed to have occurred if Executive cures said breach within 30 days of such notice, unless such breach was of such magnitude construed by limiting and reducing them so as to be incapable of being curedenforceable to the fullest extent permitted by law.
Appears in 1 contract
Confidentiality; Non-Competition. (a) In consideration Except in connection with Employee’s employment with FC, Employee will not, directly or indirectly, use for himself or disclose to any other person or entity any confidential information concerning FC, the Corporation, TLSS or any of their respective affiliates, for any severance that may be due to the Executive after termination of employment (but regardless of whether and for how long any severance is in fact due) and for allowing the Executive's stock options to be exercised after termination of employment (except for Cause), and in return for other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, for a period of two years commencing upon the termination of his employment hereunder (regardless of the reason for the termination), the Executive shall notpurpose whatsoever, without the prior written consent of the EmployerBoard of FC. For purposes of this Agreement, engage“confidential information” shall not include information that: is or becomes a part of the public domain (other than by a breach of this Agreement), as is or was rightfully received by Employee from a stockholder, director, officer, consultant or otherwise, in any enterprise which competes with the Employer or any business of its subsidiaries, or directly or indirectly employ, contract for or solicit the services in any capacity of any executive or management person who is, or within the prior three months has been, employed third party not obligated to hold such information confidential; and/or is required by the Employer or any such business. The Executive will not be deemed law to be engaged in a competing enterprise if (A) less than 10% of the gross receipts of such enterprise are derived from businesses that compete with the Employer or businesses of its affiliates that were under the Employer's management control, and (B) the Executive's engagement does not involve such competing businesses. This paragraph shall not bar Executive from owning up to 5% of the outstanding securities of any publicly held companydisclosed.
(b) The Executive shall keep secret For a period of three (3) years from the date of termination of Employee’s employment with FC or any of its affiliates, and confidential and not use within a one hundred (100) mile radius of FC’s business at 1 Xxxx Xxxxx, Xxxxxxxxxx Xxxx, XX 00000, except in connection with the business of the Employer and its affiliates Employee’s employment with FC, Employee shall not: shall not engage, directly or pursuant to applicable law indirectly, whether as an individual, sole proprietor, or court order) any confidential information with respect to the business as a shareholder, member, partner, owner, principal, agent, officer, director, manager, employer, employee, lender, consultant or affairs of the Employer or its subsidiaries. This obligation will be in effect while the Executive is employed by the Employer and for thirty six (36) months after he ceases to be so employed, but it will not apply at any time to information that is or becomes generally known to the public (other than through a breach of this Section 6(b)).
(c) The Executive acknowledges that the remedy at law for breach of his covenants under this Section 6 will be inadequate and, accordingly, in the event independent contractor of any breach firm, corporation or threatened breach by other entity or group or otherwise in any “Competing Business” (as hereinafter defined), provided, however, the Executive of three (3) entities listed on Schedule 8.1 attached hereto (the “Excluded Parties”), and which the Employee does have an interest in, as more particularly described on Schedule 8.1, shall be excluded from the non-compete provisions of this Section 6 7, as FC will continue to have an ongoing business relationship with such Excluded Parties. For purposes of this Agreement, the Employer will be entitled (without the necessity of showing economic loss term “Competing Business” shall mean any individual, sole proprietorship, partnership, firm, corporation or other actual damageentity or group which provides services for various clients in the trucking and warehousing industry and all related services thereto. Notwithstanding the above, if FC shall terminate the employment of Employee without “Cause” (as hereinafter defined), in addition to all other remedies to an injunction restraining any such breach, without any bond or other security being required. The Executive and then the Employer recognize and agree that the duration and scope for which the covenants not to compete and solicit set forth in this Section 6 are to be effective are reasonable. In the event that any court determines that the remaining time period or the area, or both of them, are unreasonable and that such covenants are to that extent unenforceable, the parties agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceable.
(d) In the event of a breach by the Executive of any covenant under this Section 6, the Executive agrees that, notwithstanding anything to the contrary in this Agreement or any award of or letter agreement for any options to acquire common stock of the Employer, all remaining obligations of the Employer non-compete restrictions hereunder and under such options shall thereupon automatically be extinguished and all such options shall thereupon automatically expire. No breach shall be deemed to occur under this Section 6(d) until Employer delivers a written allegation to Executive setting forth in reasonable detail the facts or events constituting the breach; and further, no breach shall be deemed to have occurred if Executive cures said breach within 30 days of such notice, unless such breach was of such magnitude as to be incapable of being curedreduced by one-half.
Appears in 1 contract
Samples: Employment Agreement (Transportation & Logistics Systems, Inc.)
Confidentiality; Non-Competition. As a condition to PriceLine's willingness to enter into this Agreement and in partial consideration of the grant of the Option, the Employee agrees to the covenants and restrictions set forth in this Section 8.
(a) In consideration for any severance that may be due to The Employee agrees that, during the Executive after termination of employment (but regardless of whether Term and for how long any severance is in fact due) and for allowing the Executive's stock options to be exercised after termination of employment (except for Cause), and in return for other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, for a period of two (2) years commencing upon the termination of his employment hereunder (regardless of the reason for the termination)thereafter, the Executive he shall not, without written consent directly or indirectly, induce or solicit (or authorize or assist in the taking of the Employer, engage, as a stockholder, director, officer, any such actions by any third party) any employee or consultant of PriceLine or otherwise, in any enterprise which competes with the Employer PriceLine Travel or any of their affiliates to leave his or her business of its subsidiaries, or directly or indirectly employ, contract for or solicit the services in any capacity of any executive or management person who is, or within the prior three months has been, employed by the Employer or any association with such business. The Executive will not be deemed to be engaged in a competing enterprise if (A) less than 10% of the gross receipts of such enterprise are derived from businesses that compete with the Employer or businesses of its affiliates that were under the Employer's management control, and (B) the Executive's engagement does not involve such competing businesses. This paragraph shall not bar Executive from owning up to 5% of the outstanding securities of any publicly held companyentity.
(b) The Executive shall keep secret Employee acknowledges and confidential agrees that, during the course of the provision of the Employee's services to PriceLine and not use (except in connection with PriceLine Travel, the Employee may be exposed to confidential, proprietary or sensitive data and information concerning the business of the Employer and its affiliates or pursuant to applicable law or court order) any confidential information with respect to the business or affairs of PriceLine and PriceLine Travel, and that all such data and information constitutes a protectable business interest of PriceLine and PriceLine Travel. In furtherance of such business interest, the Employer or its subsidiaries. This obligation will be in effect while Employee is contemporaneously herewith executing and delivering to PriceLine the Executive is employed by standard consultant confidentiality agreement PriceLine (the Employer and for thirty six (36) months after he ceases to be so employed, but it will not apply at any time to information that is or becomes generally known to the public (other than through a breach of this Section 6(b)"Confidentiality Agreement").
(c) The Executive acknowledges Employee agrees that he will not at any time during the Term and, (i) for a period of one (1) year following the Date of Termination, directly or indirectly, own any interest in, operate, join, control or participate as a director, stockholder, owner, partner, principal, officer or agent of, enter into the employment of, act as a consultant to, or perform any services for, any entity that is engaged anywhere in the United States of America in a business substantially similar to PriceLine or PriceLine Travel whereby customers are directed to make an offer to purchase goods and services and such demand is provided to potential sellers. Notwithstanding anything herein to the contrary, this Section 8 shall not prevent the Employee from acquiring securities representing not more than one percent (1%) of the outstanding voting securities of any publicly held corporation. It is the desire and intent of the parties that the provisions of this Section 8(c) shall be enforced to the fullest extent permitted under applicable law. If all or part of this Section 8(c) is held invalid, illegal or incapable of being enforced by any law or public policy, all other terms and provisions of this Agreement shall nevertheless remain in full force and effect. If any part of this Section 8(c) is ultimately determined to be excessively broad as to duration, scope, activity or subject, such part will be construed by limiting and reducing it so as to be enforceable to the maximum extent compatible with applicable law.
(d) The Employee acknowledges and agrees that each of the covenants set forth in this Section 8 and in the Confidentiality Agreement are reasonable and necessary for the protection of PriceLine's and PriceLine Travel's business interests, that irreparable injury will result to PriceLine and PriceLine Travel if the Employee breaches any of the terms of said covenants, and that in the event of the Employee's actual or threatened breach of any such covenants, PriceLine and PriceLine Travel will have no adequate remedy at law for breach of his covenants under this Section 6 will be inadequate and, accordingly, law. The Employee accordingly agrees that in the event of any breach actual or threatened breach by the Executive Employee of the provisions any of this Section 6 the Employer will said covenants, PriceLine and PriceLine Travel shall be entitled (to immediate injunctive and other equitable relief without bond and without the necessity of showing economic loss or other actual damage)monetary damages. Notwithstanding the provisions of Section 15 hereof, such equitable relief may be sought in addition to all any court of competent jurisdiction. Nothing contained herein shall be construed as prohibiting PriceLine from pursuing any other remedies available to an injunction restraining any it for such breach or threatened breach, without including the recovery of any bond or other security being required. The Executive and the Employer recognize and agree that the duration and scope for damages which the covenants not it is able to compete and solicit set forth in this Section 6 are to be effective are reasonable. In the event that any court determines that the time period or the area, or both of them, are unreasonable and that such covenants are to that extent unenforceable, the parties agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceableprove.
(de) In the event The provisions of a breach by the Executive of any covenant under this Section 68 shall survive the expiration or termination of this Agreement, the Executive agrees that, notwithstanding anything to the contrary in this Agreement or and any award of or letter agreement for any options to acquire common stock of the Employerarrangements contained herein, all remaining obligations of the Employer hereunder and under such options shall thereupon automatically be extinguished and all such options shall thereupon automatically expire. No breach shall be deemed to occur under this Section 6(d) until Employer delivers a written allegation to Executive setting forth in reasonable detail binding upon the facts Employee's corporate or events constituting the breach; personal successors and further, no breach shall be deemed to have occurred if Executive cures said breach within 30 days of such notice, unless such breach was of such magnitude as to be incapable of being curedassigns.
Appears in 1 contract
Confidentiality; Non-Competition. As a condition to the Company's willingness to enter into this Agreement, the Employee agrees to the covenants and restrictions set forth in this Section 7.
(a) In consideration for any severance that may be due to The Employee agrees that, during the Executive after termination of employment (but regardless of whether Employment Period and for how long any severance is in fact due) and for allowing the Executive's stock options to be exercised after termination of employment (except for Cause), and in return for other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, for a period of two (2) years commencing upon the termination of his employment hereunder (regardless of the reason for the termination)thereafter, the Executive he shall not, without written consent directly or indirectly, induce or solicit (or authorize or assist in the taking of any such actions by any third party) any employee or consultant of the Employer, engage, as a stockholder, director, officer, consultant Company to leave his or otherwise, in any enterprise which competes her business association with the Employer or any business of its subsidiaries, or directly or indirectly employ, contract for or solicit the services in any capacity of any executive or management person who is, or within the prior three months has been, employed by the Employer or any such business. The Executive will not be deemed to be engaged in a competing enterprise if (A) less than 10% of the gross receipts of such enterprise are derived from businesses that compete with the Employer or businesses of its affiliates that were under the Employer's management control, and (B) the Executive's engagement does not involve such competing businesses. This paragraph shall not bar Executive from owning up to 5% of the outstanding securities of any publicly held companyCompany.
(b) The Executive shall keep secret Employee acknowledges and confidential agrees that, during the course of the provision of the Employee's services to the Company, the Employee may be exposed to confidential, proprietary or sensitive data and not use (except in connection with information concerning the business of the Employer and its affiliates or pursuant to applicable law or court order) any confidential information with respect to the business or affairs of the Employer Company, and that all such data and information constitutes a protectable business interest of the Company. In furtherance of such business interest, the Employee agrees not to, during the Period of Employment or its subsidiaries. This obligation will be in effect while the Executive is employed by the Employer and for thirty six (36) months after he ceases to be so employed, but it will not apply at any time thereafter, use for the Employee's purposes, or disclose to or for the benefit of any third party, any trade secret or other confidential information that of the Company or any of its affiliates (except as may be required by law or in the performance of duties hereunder consistent with the Company's policies) and the Employee will comply with any confidentiality obligations of the Company to a third party, whether under agreement or otherwise. Notwithstanding the foregoing, confidential information shall be deemed not to include information which (i) is or becomes generally known available to the public (other than through as a breach result of this Section 6(b))a disclosure by the Employee or any other person who directly or indirectly receives such information from the Employee or at the Employee's discretion or (ii) is or becomes available to the Employee on a non-confidential basis from a source which is entitled to disclose it to the Employee.
(c) The Executive acknowledges Employee agrees that he will not at any time during the Employment and for a period two (2) years thereafter, directly or indirectly, own any interest in, operate, join, control or participate as a director, stockholder, owner, partner, principal, officer or agent of, enter into the employment of, act as a consultant to, or perform any services for, any entity that is engaged anywhere in the United States of America in the online travel auction business or any other business entered into by the Company which makes up a minimum of 20%of the Company's overall revenues or invested capital. Notwithstanding anything herein to the contrary, this Section 7(c) shall not prevent the Employee from acquiring securities representing not more than one percent (1%) of the outstanding voting securities of any publicly held corporation. It is the desire and intent of the parties that the provisions of this Section 7(c) shall be enforced to the fullest extent permitted under applicable law. If all or part of this Section 7(c) is held invalid, illegal or incapable of being enforced by any law or public policy, all other terms and provisions of this Agreement shall nevertheless remain in full force and effect. If any part of this Section 7(c) is ultimately determined to be excessively broad as to duration, scope, activity or subject, such part will be construed by limiting and reducing it so as to be enforceable to the maximum extent compatible with applicable law.
(d) The Employee acknowledges and agrees that each of the covenants set forth in this Section 7 are reasonable and necessary for the protection of the Company business interests, that irreparable injury will result to the Company if the Employee breaches any of the terms of said covenants, and that in the event of the Employee's actual or threatened breach of any such covenants, the Company will have no adequate remedy at law for breach of his covenants under this Section 6 will be inadequate and, accordingly, law. The Employee accordingly agrees that in the event of any breach actual or threatened breach by the Executive Employee of any of said covenants, the provisions of this Section 6 the Employer will Company shall be entitled (to immediate injunctive and other equitable relief without bond and without the necessity of showing economic loss or other actual damage), in addition to all monetary damages. Nothing contained herein shall be construed as prohibiting the Company from pursuing any other remedies available to an injunction restraining any it for such breach or threatened breach, without including the recovery of any bond or other security being required. The Executive and the Employer recognize and agree that the duration and scope for damages which the covenants not it is able to compete and solicit set forth in this Section 6 are to be effective are reasonable. In the event that any court determines that the time period or the area, or both of them, are unreasonable and that such covenants are to that extent unenforceable, the parties agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceableprove.
(de) In the event The provisions of a breach by the Executive of any covenant under this Section 67 shall survive the expiration or termination of this Agreement, the Executive agrees that, notwithstanding anything to the contrary in this Agreement or and any award of or letter agreement for any options to acquire common stock of the Employerarrangements contained herein, all remaining obligations of the Employer hereunder and under such options shall thereupon automatically be extinguished and all such options shall thereupon automatically expire. No breach shall be deemed to occur under this Section 6(d) until Employer delivers a written allegation to Executive setting forth in reasonable detail binding upon the facts Employee's corporate or events constituting the breach; personal successors and further, no breach shall be deemed to have occurred if Executive cures said breach within 30 days of such notice, unless such breach was of such magnitude as to be incapable of being curedassigns.
Appears in 1 contract
