Confidentiality; Non-Disparagement; Non-Solicitation; Non-Competition; Cooperation. In consideration of the amounts which may become payable pursuant to paragraph 5 of this Agreement, the Executive agrees to be bound by the covenants of this paragraph 7. The Executive acknowledges that the covenants contained within this paragraph 7 are essential elements of this Agreement, and that, but for the agreement of the Executive to comply with such covenants, NIC would not have entered into this Agreement to provide for payments under paragraph 5 herein. The allocation of payments under paragraph 5 of this Agreement shall be made with respect to the covenants of this paragraph 7 at such time(s) an allocation would be deemed to be appropriate. The Executive agrees that he shall: (a) at all times during the Agreement Period and for a period of twenty-four (24) months immediately following termination of employment for any reason, hold in the strictest confidence and not disclose, divulge or appropriate, directly or indirectly, for personal use or the use of others, except as may be required in Executive’s work for the Company, any confidential, secret, proprietary or privileged information pertaining to the business of NIC obtained during the Executive’s employment by NIC (collectively, “Confidential Information”), including but not limited to (i) information related to all relationships of NIC with its customers or clients which Executive would not, but for his relationship with NIC, have had contact with (collectively, “Customers”) (including the identities of NIC’s primary contacts at such Customers), trade secrets, inventions, ideas, processes, formulas, source and object codes, data, programs, other works of authorship, know-how, improvements, discoveries, developments, designs and techniques; (ii) information regarding plans for research, trade secrets, development, new products, marketing and selling, business plans, budgets and unpublished financial statements, licenses, prices and costs, investors and Customers; and (iii) information regarding the skills and compensation of other employees of NIC; (b) at all times during the Agreement Period and for a period of twenty-four (24) months immediately following termination of employment for any reason, refrain from publishing, providing, or soliciting, directly or indirectly, any oral or written statements about NIC or any of its respective officers, directors, employees, agents, representatives, products, or practices that may be considered disparaging, slanderous, libelous, derogatory, or defamatory, or which may reasonably expected to tend to injure the reputation or business of NIC or any of its respective officers, directors, employees, agents, representatives, products, or practices; provided, that such restriction shall not limit the Executive’s ability to provide truthful testimony as required by law or any judicial or administrative process; (c) at all times during the Agreement Period and for a period of twenty-four (24) months immediately following termination of employment for any reason, not, directly or indirectly (whether as owner, principal, agent, partner, officer, director, employee, consultant, investor, lender or otherwise), provide services to any other business or organization anywhere in the United States of America or its territories, Canada, Mexico, Brazil, United Kingdom, Germany, South Africa, United Arab Emirates, India and the People’s Republic of China, or any other country in which NIC, directly or indirectly including but not limited to through a joint venture, strategic alliance or other similar arrangement, conducts business at the time of the Executive’s termination of employment that competes with the business of NIC by (1) manufacturing, selling or servicing medium or heavy duty automotive vehicles with diesel powered engines (including but not limited to commercial trucks, commercial buses, school buses, recreational vehicles, and military vehicles), parts or components for such vehicles, diesel powered engines for such vehicles, parts or components for diesel powered engines for such vehicles, (2) providing financing or financing-related services related to any of the business activities listed in paragraph 7(c)(1) above, or (3) providing other services or products which are the same as or substantially similar to those provided by NIC at the time of the Executive’s termination of employment, in each case, with respect to which the Executive developed, received or learned Confidential Information during his employment with NIC; provided, however, that such restriction shall not prohibit the Executive’s purchase or ownership of less than 5% of the outstanding voting stock of a publicly-held company so long as such ownership is passive in nature; (d) at all times during the Agreement Period and for a period of twenty-four (24) months immediately following a termination of employment for any reason, refrain, without the written consent of the Company or NAVISTAR, INC., from, directly or indirectly, (i) recruiting or soliciting any employee, consultant, contractor, agent, or representative of NIC for employment or for retention as a consultant or service provider for any entity other than NIC, (ii) encouraging any employee, consultant, contractor, agent, or representative of NIC to leave its employ or cease his relationship with NIC, (iii) hiring any person who is then an employee, consultant, contractor, agent, or representative of NIC for any entity other than NIC, or providing names or other information about such employee, consultant, contractor, agent, or representative to any person or business under circumstances which could lead to the use of that information for purposes of recruiting or hiring for any entity other than NIC, (iv) interfering with the relationship of NIC with any of its employees, consultants, contractors, agents, or representatives, (v) soliciting or inducing, or in any manner attempting to solicit or induce, any Customer, or prospect of NIC (1) to cease being, or not to become, a client or customer of NIC, or (2) to divert any business of such Customer or prospect from NIC, or (vi) otherwise interfering with, disrupting, or attempting to interfere with or disrupt, the relationship, contractual or otherwise, between NIC and any of its Customers, prospects, suppliers, employees, consultants, contractors, agents, or representatives; and (e) at all times during the Agreement Period and for a period of twenty-four (24) months immediately following termination of employment for any reason, cooperate with and provide assistance to NIC at any time and in any manner reasonably required by NIC or its respective counsel in connection with any litigation or other legal process affecting NIC, or in answering questions concerning any other matter, in which the Executive was involved or had knowledge of during the course of his employment (other than any dispute between the Parties concerning this Agreement); provided, (i) the Company and NAVISTAR, INC. shall have provided the Executive with advance written notice of the request to cooperate and/or assist, (ii) the Company and NAVISTAR, INC. shall reimburse the Executive’s reasonable attorneys’ fees and costs and such other expenses in connection with said cooperation and assistance promptly after the Executive submits a written request therefor together with copies of the invoices substantiating such expenses, but in no event shall payment of any such fees, costs, and expenses be made after the last day of the Executive’s taxable year following the taxable year in which the expense was incurred; provided, that prior to reimbursement the Executive first delivers a written undertaking to the Company and NAVISTAR, INC. to repay all such attorneys’ fees and costs and expenses paid to the Executive prior to the final disposition of the litigation or other legal process affecting NIC if it ultimately be determined by final judicial decision from which there is no further right to appeal that the Executive is not entitled to reimbursement of such attorneys’ fees and costs and expenses, and (iii) that after the termination of employment for any reason, such cooperation and assistance shall not require the Executive to forgo or significantly interrupt any professional or personal commitment that he reasonably deems significant or to take any action that, in his reasonable judgment, could impair his ability to perform the responsibilities of or could jeopardize the continuation of his then current employment or self-employment. The Executive acknowledges and agrees that NIC’s businesses is intensively competitive, Executive’s employment required Executive to have access to and knowledge of NIC’s confidential information and trade secrets, the Customers have required a significant degree of difficulty, number of years, an amount of money by NIC to acquire and develop, Executive has had significant personal contact with and knowledge of the Customers, and the duration of the Customer’s association with NIC and the continuity of the Customer-NIC relationships are of the utmost importance to the success of NIC’s business. The Executive also acknowledges and agrees that the business of NIC is conducted nationally and internationally and agrees that the provisions in the foregoing sentence will operate throughout the United States of America or its territories, Canada, Mexico, Brazil, United Kingdom, Germany, South Africa, United Arab Emirates, India and the People’s Republic of China, and any other country in which NIC conducts business at the time of the Executive’s termination of employment with NIC. The Executives further acknowledges and agrees that the Executive holds a senior management role at NIC and that, if the Executive were to hold a management position with a competitor of NIC, the Executive would be able to exploit unfairly Confidential Information and/or Customer-NIC relationships. Accordingly, the Executive acknowledges and agrees that the foregoing covenants set forth in this paragraph 7 are reasonable, including without limitation, as to scope, activity, subject, geography and duration, and that irreparable injury will result to NIC in the event of any violation by the Executive of these covenants, and that said covenants are a condition precedent to the Company’s and NAVISTAR, INC.’s willingness to enter into this Agreement and pay the consideration set forth in this Agreement. In the event that any of the foregoing covenants are violated, the Company and NAVISTAR, INC. shall be entitled, in addition to any other remedies and damages available under law, equity, or otherwise, to recoup, offset, suspend, or terminate any or all separation payments and benefits previously paid or otherwise subsequently owed to the Executive under this Agreement, to injunctive relief from any court of competent jurisdiction to restrain the violation of such covenants, and/or to prevent any threatened violation by the Executive, and/or by any person or persons acting for, or in concert with, the Executive in any capacity whatsoever, without posting a bond or other security. In addition, if such a court deems that any of the foregoing covenants are unreasonable, the Parties agree that the maximum permissible period and scope prescribed by such court shall be substituted for the stated period and scope.
Appears in 2 contracts
Samples: Executive Severance Agreement, Executive Severance Agreement (Navistar International Corp)
Confidentiality; Non-Disparagement; Non-Solicitation; Non-Competition; Cooperation. In consideration of the amounts which may become payable pursuant to paragraph 5 of this Agreement, the Executive agrees to be bound by the covenants of this paragraph 7. The Executive acknowledges that the covenants contained within this paragraph 7 are essential elements of this Agreement, and that, but for the agreement of the Executive to comply with such covenants, NIC would not have entered into this Agreement to provide for payments under paragraph 5 herein. The allocation of payments under paragraph 5 of this Agreement shall be made with respect to the covenants of this paragraph 7 at such time(s) an allocation would be deemed to be appropriate. The Executive agrees that he or she shall:
(a) at all times during the Agreement Period and for a period of twenty-four (24) months immediately at all times following termination of employment for any reason, hold in the strictest confidence and not disclose, divulge or appropriate, directly or indirectly, for personal use or the use of others, except as may be required in Executive’s work for the Company, any confidential, secret, proprietary or privileged information pertaining to the business of NIC obtained during the Executive’s employment by NIC (collectively, “Confidential Information”), including but not limited to (i) information related to all relationships of NIC with its customers or clients which Executive would not, but for his or her relationship with NIC, have had contact with (collectively, “Customers”) (including the identities of NIC’s primary contacts at such Customers), trade secrets, inventions, ideas, processes, formulas, source and object codes, data, programs, other works of authorship, know-how, improvements, discoveries, developments, designs and techniques; (ii) information regarding plans for research, trade secrets, development, new products, marketing and selling, business plans, budgets and unpublished financial statements, licenses, prices and costs, investors and Customers; and (iii) information regarding the skills and compensation of other employees of NIC;
(b) at all times during the Agreement Period and for a period of twenty-four (24) months immediately at all times following termination of employment for any reason, refrain from publishing, providing, or soliciting, directly or indirectly, any oral or written statements about NIC or any of its respective officers, directors, employees, agents, representatives, products, or practices that may be considered disparaging, slanderous, libelous, derogatory, or defamatory, or which may reasonably expected to tend to injure the reputation or business of NIC or any of its respective officers, directors, employees, agents, representatives, products, or practices; provided, that such restriction shall not limit the Executive’s ability to provide truthful testimony as required by law or any judicial or administrative process;
(c) at all times during the Agreement Period and for a period of [ranging from twelve (12) months to twenty-four (24) months] twelve (12) months immediately following termination of employment for any reason, not, directly or indirectly (whether as owner, principal, agent, partner, officer, director, employee, consultant, investor, lender or otherwise), provide services to any other business or organization anywhere in the United States of America or its territories, Canada, Mexico, Brazil, United Kingdom, Germany, South Africa, United Arab Emirates, India and the People’s Republic of China, or any other country in which NIC, directly or indirectly including but not limited to through a joint venture, strategic alliance or other similar arrangement, conducts business at the time of the Executive’s termination of employment that competes with the business of NIC by (1) manufacturing, selling or servicing medium or heavy duty automotive vehicles with diesel powered engines (including but not limited to commercial trucks, commercial buses, school buses, recreational vehicles, and military vehicles), parts or components for such vehicles, diesel powered engines for such vehicles, parts or components for diesel powered engines for such vehicles, (2) or providing financing or financing-related services related to any of the business activities listed in paragraph 7(c)(1) abovesuch manufacturing, selling or servicing activities, or (32) providing other services or products which are the same as or substantially similar to those provided by NIC at the time of the Executive’s termination of employment, in each case, with respect to which the Executive developed, received or learned Confidential Information during his employment with NIC; provided, however, that such restriction shall not prohibit the Executive’s purchase or ownership of less than 5% of the outstanding voting stock of a publicly-held company so long as such ownership is passive in nature;
(d) at all times during the Agreement Period and for a period of twenty-four (24) months immediately following a termination of employment for any reason, refrain, without the written consent of the Company or NAVISTAR, INC., from, directly or indirectly, (i) recruiting or soliciting any employee, consultant, contractor, agent, or representative of NIC for employment or for retention as a consultant or service provider for any entity other than NIC, (ii) encouraging any employee, consultant, contractor, agent, or representative of NIC to leave its employ or cease his or her relationship with NIC, (iii) hiring any person who is then an employee, consultant, contractor, agent, or representative of NIC for any entity other than NIC, or providing names or other information about such employee, consultant, contractor, agent, or representative to any person or business under circumstances which could lead to the use of that information for purposes of recruiting or hiring for any entity other than NIC, (iv) interfering with the relationship of NIC with any of its employees, consultants, contractors, agents, or representatives, (v) soliciting or inducing, or in any manner attempting to solicit or induce, any Customer, or prospect of NIC (1) to cease being, or not to become, a client or customer of NIC, or (2) to divert any business of such Customer or prospect from NIC, or (vi) otherwise interfering with, disrupting, or attempting to interfere with or disrupt, the relationship, contractual or otherwise, between NIC and any of its Customers, prospects, suppliers, employees, consultants, contractors, agents, or representatives; and
(e) at all times during the Agreement Period and for a period of twenty-four (24) months immediately at all times following termination of employment for any reason, cooperate with and provide assistance to NIC at any time and in any manner reasonably required by NIC or its respective counsel in connection with any litigation or other legal process affecting NIC, or in answering questions concerning any other matter, in which the Executive was involved or had knowledge of during the course of his or her employment (other than any dispute between the Parties concerning this Agreement); provided, (i) the Company and NAVISTAR, INC. shall have provided the Executive with advance written notice of the request to cooperate and/or assist, (ii) the Company and NAVISTAR, INC. shall reimburse the Executive’s reasonable attorneys’ fees and costs and such other expenses in connection with said cooperation and assistance promptly after the Executive submits a written request therefor together with copies of the invoices substantiating such expenses, but in no event shall payment of any such fees, costs, and expenses be made after the last day of the Executive’s taxable year following the taxable year in which the expense was incurred; provided, that prior to reimbursement the Executive first delivers a written undertaking to the Company and NAVISTAR, INC. to repay all such attorneys’ fees and costs and expenses paid to the Executive prior to the final disposition of the litigation or other legal process affecting NIC if it ultimately be determined by final judicial decision from which there is no further right to appeal that the Executive is not entitled to reimbursement of such attorneys’ fees and costs and expenses, and (iii) that after the termination of employment for any reason, such cooperation and assistance shall not require the Executive to forgo or significantly interrupt any professional or personal commitment that he or she reasonably deems significant or to take any action that, in his or her reasonable judgment, could impair his or her ability to perform the responsibilities of or could jeopardize the continuation of his or her then current employment or self-employment. The Executive acknowledges and agrees that NIC’s businesses business is intensively competitive, Executive’s employment required Executive to have access to and knowledge of NIC’s confidential information and trade secrets, the Customers have required a significant degree of difficulty, number of years, an amount of money by NIC to acquire and develop, Executive has had significant personal contact with and knowledge of the Customers, and the duration of the Customer’s association with NIC and the continuity of the Customer-NIC relationships are of the utmost importance to the success of NIC’s business. The Executive also acknowledges and agrees that the business of NIC is conducted nationally and internationally and agrees that the provisions in the foregoing sentence will operate throughout the United States of America or its territories, Canada, Mexico, Brazil, United Kingdom, Germany, South Africa, United Arab Emirates, India and the People’s Republic of China, and any other country in which NIC conducts business at the time of the Executive’s termination of employment with NIC. The Executives further acknowledges and agrees that the Executive holds a senior management role at NIC and that, if the Executive were to hold a management position with a competitor of NIC, the Executive would be able to exploit unfairly Confidential Information and/or Customer-NIC relationships. Accordingly, the Executive acknowledges and agrees that the foregoing covenants set forth in this paragraph 7 are reasonable, including without limitation, as to scope, activity, subject, geography and duration, and that irreparable injury will result to NIC in the event of any violation by the Executive of these covenants, and that said covenants are a condition precedent to the Company’s and NAVISTAR, INC.’s willingness to enter into this Agreement and pay the consideration set forth in this Agreement. In the event that any of the foregoing covenants are violated, the Company and NAVISTAR, INC. shall be entitled, in addition to any other remedies and damages available under law, equity, or otherwise, to recoup, offset, suspend, or terminate any or all separation payments and benefits previously paid or otherwise subsequently owed to the Executive under this Agreement, to injunctive relief from any court of competent jurisdiction to restrain the violation of such covenants, and/or to prevent any threatened violation by the Executive, and/or by any person or persons acting for, or in concert with, the Executive in any capacity whatsoever, without posting a bond or other security. In addition, if such a court deems that any of the foregoing covenants are unreasonable, the Parties agree that the maximum permissible period and scope prescribed by such court shall be substituted for the stated period and scope.
Appears in 1 contract
Confidentiality; Non-Disparagement; Non-Solicitation; Non-Competition; Cooperation. In consideration of the amounts which may become payable pursuant to paragraph 5 of this Agreement, the Executive agrees to be bound by the covenants of this paragraph 7. The Executive acknowledges that the covenants contained within this paragraph 7 are essential elements of this Agreement, and that, but for the agreement of the Executive to comply with such covenants, NIC would not have entered into this Agreement to provide for payments under paragraph 5 herein. The allocation of payments under paragraph 5 of this Agreement shall be made with respect to the covenants of this paragraph 7 at such time(s) an allocation would be deemed to be appropriate. The Executive agrees that he or she shall:
(a) at all times during the Agreement Period and for a period of twenty-four (24) months immediately following termination of employment for any reason, hold in the strictest confidence and not disclose, divulge or appropriate, directly or indirectly, for personal use or the use of others, except as may be required in Executive’s work for the Company, any confidential, secret, proprietary or privileged information pertaining to the business of NIC obtained during the Executive’s employment by NIC (collectively, “Confidential Information”), including but not limited to (i) information related to all relationships of NIC with its customers or clients which Executive would not, but for his or her relationship with NIC, have had contact with (collectively, “Customers”) (including the identities of NIC’s primary contacts at such Customers), trade secrets, inventions, ideas, processes, formulas, source and object codes, data, programs, other works of authorship, know-how, improvements, discoveries, developments, designs and techniques; (ii) information regarding plans for research, trade secrets, development, new products, marketing and selling, business plans, budgets and unpublished financial statements, licenses, prices and costs, investors and Customers; and (iii) information regarding the skills and compensation of other employees of NIC;
(b) at all times during the Agreement Period and for a period of twenty-four (24) months immediately following termination of employment for any reason, refrain from publishing, providing, or soliciting, directly or indirectly, any oral or written statements about NIC or any of its respective officers, directors, employees, agents, representatives, products, or practices that may be considered disparaging, slanderous, libelous, derogatory, or defamatory, or which may reasonably expected to tend to injure the reputation or business of NIC or any of its respective officers, directors, employees, agents, representatives, products, or practices; provided, that such restriction shall not limit the Executive’s ability to provide truthful testimony as required by law or any judicial or administrative process;
(c) at all times during the Agreement Period and for a period of twenty-four (24) months [ranging from 1 to 2 years] immediately following termination of employment for any reason, not, directly or indirectly (whether as owner, principal, agent, partner, officer, director, employee, consultant, investor, lender or otherwise), provide services to any other business or organization anywhere in the United States of America or its territories, Canada, Mexico, Brazil, United Kingdom, Germany, South Africa, United Arab Emirates, India and the People’s Republic of China, or any other country in which NIC, directly or indirectly including but not limited to through a joint venture, strategic alliance or other similar arrangement, conducts business at the time of the Executive’s termination of employment that competes with the business of NIC by (1) manufacturing, selling or servicing medium or heavy duty automotive vehicles with diesel powered engines (including but not limited to commercial trucks, commercial buses, school buses, recreational vehicles, and military vehicles), parts or components for such vehicles, diesel powered engines for such vehicles, parts or components for diesel powered engines for such vehicles, (2) or providing financing or financing-related services related to any of the business activities listed in paragraph 7(c)(1) abovesuch manufacturing, selling or servicing activities, or (32) providing other services or products which are the same as or substantially similar to those provided by NIC at the time of the Executive’s termination of employment, in each case, with respect to which the Executive developed, received or learned Confidential Information during his employment with NIC; provided, however, that such restriction shall not prohibit the Executive’s purchase or ownership of less than 5% of the outstanding voting stock of a publicly-held company so long as such ownership is passive in nature;
(d) at all times during the Agreement Period and for a period of twenty-four (24) months immediately following a termination of employment for any reason, refrain, without the written consent of the Company or NAVISTAR, INC., from, directly or indirectly, (i) recruiting or soliciting any employee, consultant, contractor, agent, or representative of NIC for employment or for retention as a consultant or service provider for any entity other than NIC, (ii) encouraging any employee, consultant, contractor, agent, or representative of NIC to leave its employ or cease his or her relationship with NIC, (iii) hiring any person who is then an employee, consultant, contractor, agent, or representative of NIC for any entity other than NIC, or providing names or other information about such employee, consultant, contractor, agent, or representative to any person or business under circumstances which could lead to the use of that information for purposes of recruiting or hiring for any entity other than NIC, (iv) interfering with the relationship of NIC with any of its employees, consultants, contractors, agents, or representatives, (v) soliciting or inducing, or in any manner attempting to solicit or induce, any Customer, or prospect of NIC (1) to cease being, or not to become, a client or customer of NIC, or (2) to divert any business of such Customer or prospect from NIC, or (vi) otherwise interfering with, disrupting, or attempting to interfere with or disrupt, the relationship, contractual or otherwise, between NIC and any of its Customers, prospects, suppliers, employees, consultants, contractors, agents, or representatives; and
(e) at all times during the Agreement Period and for a period of twenty-four (24) months immediately following termination of employment for any reason, cooperate with and provide assistance to NIC at any time and in any manner reasonably required by NIC or its respective counsel in connection with any litigation or other legal process affecting NIC, or in answering questions concerning any other matter, in which the Executive was involved or had knowledge of during the course of his or her employment (other than any dispute between the Parties concerning this Agreement); provided, (i) the Company and NAVISTAR, INC. shall have provided the Executive with advance written notice of the request to cooperate and/or assist, (ii) the Company and NAVISTAR, INC. shall reimburse the Executive’s reasonable attorneys’ fees and costs and such other expenses in connection with said cooperation and assistance promptly after the Executive submits a written request therefor together with copies of the invoices substantiating such expenses, but in no event shall payment of any such fees, costs, and expenses be made after the last day of the Executive’s taxable year following the taxable year in which the expense was incurred; provided, that prior to reimbursement the Executive first delivers a written undertaking to the Company and NAVISTAR, INC. to repay all such attorneys’ fees and costs and expenses paid to the Executive prior to the final disposition of the litigation or other legal process affecting NIC if it ultimately be determined by final judicial decision from which there is no further right to appeal that the Executive is not entitled to reimbursement of such attorneys’ fees and costs and expenses, and (iii) that after the termination of employment for any reason, such cooperation and assistance shall not require the Executive to forgo or significantly interrupt any professional or personal commitment that he or she reasonably deems significant or to take any action that, in his or her reasonable judgment, could impair his or her ability to perform the responsibilities of or could jeopardize the continuation of his or her then current employment or self-employment. The Executive acknowledges and agrees that NIC’s businesses is intensively competitive, Executive’s employment required Executive to have access to and knowledge of NIC’s confidential information and trade secrets, the Customers have required a significant degree of difficulty, number of years, an amount of money by NIC to acquire and develop, Executive has had significant personal contact with and knowledge of the Customers, and the duration of the Customer’s association with NIC and the continuity of the Customer-NIC relationships are of the utmost importance to the success of NIC’s business. The Executive also acknowledges and agrees that the business of NIC is conducted nationally and internationally and agrees that the provisions in the foregoing sentence will operate throughout the United States of America or its territories, Canada, Mexico, Brazil, United Kingdom, Germany, South Africa, United Arab Emirates, India and the People’s Republic of China, and any other country in which NIC conducts business at the time of the Executive’s termination of employment with NIC. The Executives further acknowledges and agrees that the Executive holds a senior management role at NIC and that, if the Executive were to hold a management position with a competitor of NIC, the Executive would be able to exploit unfairly Confidential Information and/or Customer-NIC relationships. Accordingly, the Executive acknowledges and agrees that the foregoing covenants set forth in this paragraph 7 are reasonable, including without limitation, as to scope, activity, subject, geography and duration, and that irreparable injury will result to NIC in the event of any violation by the Executive of these covenants, and that said covenants are a condition precedent to the Company’s and NAVISTAR, INC.’s willingness to enter into this Agreement and pay the consideration set forth in this Agreement. In the event that any of the foregoing covenants are violated, the Company and NAVISTAR, INC. shall be entitled, in addition to any other remedies and damages available under law, equity, or otherwise, to recoup, offset, suspend, or terminate any or all separation payments and benefits previously paid or otherwise subsequently owed to the Executive under this Agreement, to injunctive relief from any court of competent jurisdiction to restrain the violation of such covenants, and/or to prevent any threatened violation by the Executive, and/or by any person or persons acting for, or in concert with, the Executive in any capacity whatsoever, without posting a bond or other security. In addition, if such a court deems that any of the foregoing covenants are unreasonable, the Parties agree that the maximum permissible period and scope prescribed by such court shall be substituted for the stated period and scope.
Appears in 1 contract
Samples: Executive Severance Agreement (Navistar International Corp)
Confidentiality; Non-Disparagement; Non-Solicitation; Non-Competition; Cooperation. In consideration of the amounts which may become payable pursuant to paragraph 5 of this Agreement, the Executive agrees to be bound by the covenants of this paragraph 7. The Executive Section 7 and acknowledges that the covenants contained within this paragraph Section 7 are essential elements of this Agreement. As such, and that, but for the agreement of the Executive to comply with such covenants, NIC would not have entered into this Agreement to provide for payments under paragraph 5 herein. The allocation of payments under paragraph 5 of this Agreement shall be made with respect to the covenants of this paragraph 7 at such time(s) an allocation would be deemed to be appropriate. The Executive agrees that he shall:
(a) at all times during the Agreement Period Services Term and for a period of twenty-four (24) months immediately following termination of employment and service for any reason, hold in the strictest confidence and not disclose, divulge or appropriate, directly or indirectly, for personal use or the use of others, except as may be required in Executive’s work for the Company, any confidential, secret, proprietary or privileged information pertaining to the business of NIC obtained during the Executive’s employment by NIC (collectively, “Confidential Information”), including but not limited to (i) information related to all relationships of NIC with its customers or clients which Executive would not, but for his relationship with NIC, have had contact with (collectively, “Customers”) (including the identities of NIC’s primary contacts at such Customers), trade secrets, inventions, ideas, processes, formulas, source and object codes, data, programs, other works of authorship, know-how, improvements, discoveries, developments, designs and techniques; (ii) information regarding plans for research, trade secrets, development, new products, marketing and selling, business plans, budgets and unpublished financial statements, licenses, prices and costs, investors and Customers; and (iii) information regarding the skills and compensation of other employees of NIC;
(b) at all times during the Agreement Period Services Term and for a period of twenty-four (24) months immediately following a termination of employment and service for any reason, refrain from publishing, providing, or soliciting, directly or indirectly, any oral or written statements about NIC or any of its respective officers, directors, employees, agents, representatives, products, or practices that may be considered disparaging, slanderous, libelous, derogatory, or defamatory, or which may reasonably be expected to tend to injure the reputation or business of NIC or any of its respective officers, directors, employees, agents, representatives, products, or practices; provided, provided that such restriction shall not limit the Executive’s ability to provide truthful testimony as required by law or any judicial or administrative process;
(c) at all times during the Agreement Period Services Term and for a period of twenty-four (24) months immediately following termination of employment and service for any reason, not, directly or indirectly (whether as owner, principal, agent, partner, officer, director, employee, consultant, investor, lender or otherwise), provide services to any other business or organization anywhere in the United States of America or its territories, Canada, Mexico, Brazil, United Kingdom, Germany, South Africa, United Arab Emirates, India and the People’s Republic of China, or any other country in which NIC, directly or indirectly including but not limited to through a joint venture, strategic alliance or other similar arrangement, conducts business at the time of the Executive’s termination of employment and service that competes with the business of NIC by (1i) manufacturing, selling or servicing medium or heavy duty automotive vehicles with diesel powered engines (including but not limited to commercial trucks, commercial buses, school buses, recreational vehicles, and military vehicles), parts or components for such vehicles, diesel powered engines for such vehicles, parts or components for diesel powered engines for such vehicles, ; (2ii) providing financing or financing-related services related to any of the business activities listed in paragraph 7(c)(1Section 7(c)(i) above, ; or (3iii) providing other services or products which are the same as or substantially similar to those provided by NIC at the time of the Executive’s termination of employmentemployment and service, in each case, with respect to which the Executive developed, received or learned Confidential Information during his employment and service with NIC; provided, however, that such restriction shall not prohibit the Executive’s purchase or ownership of less than five percent (5% %) of the outstanding voting stock of a publicly-held company so long as such ownership is passive in nature;
(d) at all times during the Agreement Period Services Term and for a period of twenty-four (24) months immediately following a termination of employment and service for any reason, refrain, without the written consent of the Company or NAVISTAR, INC., from, directly or indirectly, (i) recruiting or soliciting any employee, consultant, contractor, agent, or representative of NIC for employment or for retention as a consultant or service provider for any entity other than NIC, ; (ii) encouraging any employee, consultant, contractor, agent, or representative of NIC to leave its employ or cease his relationship with NIC, ; (iii) hiring any person who is then an employee, consultant, contractor, agent, or representative of NIC for any entity other than NIC, or providing names or other information about such employee, consultant, contractor, agent, or representative to any person or business under circumstances which could lead to the use of that information for purposes of recruiting or hiring for any entity other than NIC, ; (iv) interfering with the relationship of NIC with any of its employees, consultants, contractors, agents, or representatives, ; (v) soliciting or inducing, or in any manner attempting to solicit or induce, any Customer, or prospect of NIC (1) to cease being, or not to become, a client or customer of NIC, ; or (2) to divert any business of such Customer or prospect from NIC, or (vi) otherwise interfering with, disrupting, or attempting to interfere with or disrupt, the relationship, contractual or otherwise, between NIC and any of its Customers, prospects, suppliers, employees, consultants, contractors, agents, or representatives; and
(e) at all times during the Agreement Period Services Term and for a period of twenty-four (24) months immediately following termination of employment and service for any reason, cooperate with and provide assistance to NIC at any time and in any manner reasonably required by NIC or its respective counsel in connection with any litigation or other legal process affecting NIC, or in answering questions concerning any other matter, in which the Executive was involved or had knowledge of during the course of his employment and service (other than any dispute between the Parties concerning this Agreement); provided, provided that (i) the Company and NAVISTAR, INC. shall have provided the Executive with advance written notice of the request to cooperate and/or or assist, ; (ii) the Company and NAVISTAR, INC. shall reimburse the Executive’s reasonable attorneys’ fees and costs and such other expenses in connection with said cooperation and assistance promptly after the Executive submits a written request therefor together with copies of the invoices substantiating such expenses, but in no event shall payment of any such fees, costs, and expenses be made after the last day of the Executive’s taxable year following the taxable year in which the expense was incurred; provided, provided that prior to reimbursement the Executive first delivers a written undertaking to the Company and NAVISTAR, INC. to repay all such attorneys’ fees and costs and expenses paid to the Executive prior to the final disposition of the litigation or other legal process affecting NIC if it ultimately be determined by final judicial decision from which there is no further right to appeal that the Executive is not entitled to reimbursement of such attorneys’ fees and costs and expenses, ; and (iii) that after the termination of employment and service for any reason, such cooperation and assistance shall not require the Executive to forgo or significantly interrupt any professional or personal commitment that he reasonably deems significant or to take any action that, in his reasonable judgment, could impair his ability to perform the responsibilities of or could jeopardize the continuation of his then current employment or self-employment. The .
(f) Executive acknowledges and agrees that NIC’s businesses is intensively competitive, Executive’s employment and service required Executive to have access to and knowledge of NIC’s confidential information and trade secrets, the Customers have required a significant degree of difficulty, number of years, an amount of money by NIC to acquire and develop, Executive has had significant personal contact with and knowledge of the Customers, and the duration of the Customer’s association with NIC and the continuity of the Customer-NIC relationships are of the utmost importance to the success of NIC’s business. The Executive also acknowledges and agrees that the business of NIC is conducted nationally and internationally and agrees that the provisions in the foregoing sentence will operate throughout the United States of America or its territories, Canada, Mexico, Brazil, United Kingdom, Germany, South Africa, United Arab Emirates, India and the People’s Republic of China, and any other country in which NIC conducts business at the time of the Executive’s termination of employment and service with NIC. The Executives Executive further acknowledges and agrees that the Executive holds a senior management role at NIC and that, if the Executive were to hold a management position with a competitor of NIC, the Executive would be able to exploit unfairly Confidential Information and/or or Customer-NIC relationships. Accordingly, the Executive acknowledges and agrees that the foregoing covenants set forth in this paragraph Section 7 are reasonable, including without limitation, as to scope, activity, subject, geography and duration, and that irreparable injury will result to NIC in the event of any violation by the Executive of these covenants, and that said covenants are a condition precedent to the Company’s and NAVISTAR, INC.’s willingness to enter into this Agreement and pay the consideration set forth in this Agreement. In the event that any of the foregoing covenants are violated, the Company and NAVISTAR, INC. shall be entitled, in addition to any other remedies and damages available under law, equity, or otherwise, to recoup, offset, suspend, or terminate any or all separation payments and benefits previously paid or otherwise subsequently owed to the Executive under this Agreement, to injunctive relief from any court of competent jurisdiction to restrain the violation of such covenants, and/or to prevent any threatened violation by the Executive, and/or by any person or persons acting for, or in concert with, the Executive in any capacity whatsoever, without posting a bond or other security. In addition, if such a court deems that any of the foregoing covenants are unreasonable, the Parties agree that the maximum permissible period and scope prescribed by such court shall be substituted for the stated period and scope.
Appears in 1 contract
Confidentiality; Non-Disparagement; Non-Solicitation; Non-Competition; Cooperation. In consideration of the amounts which may become payable pursuant to paragraph 5 of this Agreement, the Executive agrees to be bound by the covenants of this paragraph 7. The Executive acknowledges that the covenants contained within this paragraph 7 are essential elements of this Agreement, and that, but for the agreement of the Executive to comply with such covenants, NIC would not have entered into this Agreement to provide for payments under paragraph 5 herein. The allocation of payments under paragraph 5 of this Agreement shall be made with respect to the covenants of this paragraph 7 at such time(s) an allocation would be deemed to be appropriate. The Executive agrees that he or she shall:
(a) at all times during the Agreement Period and for a period of twenty-four (24) months immediately at all times following termination of employment for any reason, hold in the strictest confidence and not disclose, divulge or appropriate, directly or indirectly, for personal use or the use of others, except as may be required in Executive’s work for the Company, any confidential, secret, proprietary or privileged information pertaining to the business of NIC obtained during the Executive’s employment by NIC (collectively, “Confidential Information”), including but not limited to (i) information related to all relationships of NIC with its customers or clients which Executive would not, but for his or her relationship with NIC, have had contact with (collectively, “Customers”) (including the identities of NIC’s primary contacts at such Customers), trade secrets, inventions, ideas, processes, formulas, source and object codes, data, programs, other works of authorship, know-how, improvements, discoveries, developments, designs and techniques; (ii) information regarding plans for research, trade secrets, development, new products, marketing and selling, business plans, budgets and unpublished financial statements, licenses, prices and costs, investors and Customers; and (iii) information regarding the skills and compensation of other employees of NIC;
; (b) at all times during the Agreement Period and for a period of twenty-four (24) months immediately at all times following termination of employment for any reason, refrain from publishing, providing, or soliciting, directly or indirectly, any oral or written statements about NIC or any of its respective officers, directors, employees, agents, representatives, products, or practices that may be considered disparaging, slanderous, libelous, derogatory, or defamatory, or which may reasonably expected to tend to injure the reputation or business of NIC or any of its respective officers, directors, employees, agents, representatives, products, or practices; provided, that such restriction shall not limit the Executive’s ability to provide truthful testimony as required by law or any judicial or administrative process;
(c) at all times during the Agreement Period and for a period of twenty-four twelve (2412) months immediately following termination of employment for any reason, not, directly or indirectly (whether as owner, principal, agent, partner, officer, director, employee, consultant, investor, lender or otherwise), provide services to any other business or organization anywhere in the United States of America or its territories, Canada, Mexico, Brazil, United Kingdom, Germany, South Africa, United Arab Emirates, India and the People’s Republic of China, or any other country in which NIC, directly or indirectly including but not limited to through a joint venture, strategic alliance or other similar arrangement, conducts business at the time of the Executive’s termination of employment that competes with the business of NIC by (1) manufacturing, selling or servicing medium or heavy duty automotive vehicles with diesel powered engines (including but not limited to commercial trucks, commercial buses, school buses, recreational vehicles, and military vehicles), parts or components for such vehicles, diesel powered engines for such vehicles, parts or components for diesel powered engines for such vehicles, (2) or providing financing or financing-related services related to any of the business activities listed in paragraph 7(c)(1) abovesuch manufacturing, selling or servicing activities, or (32) providing other services or products which are the same as or substantially similar to those provided by NIC at the time of the Executive’s termination of employment, in each case, with respect to which the Executive developed, received or learned Confidential Information during his employment with NIC; provided, however, that such restriction shall not prohibit the Executive’s purchase or ownership of less than 5% of the outstanding voting stock of a publicly-held company so long as such ownership is passive in nature;
(d) at all times during the Agreement Period and for a period of [ranging from twelve (12) to twenty-four (24) )] months immediately following a termination of employment for any reason, refrain, without the written consent of the Company or NAVISTAR, INC., from, directly or indirectly, (i) recruiting or soliciting any employee, consultant, contractor, agent, or representative of NIC for employment or for retention as a consultant or service provider for any entity other than NIC, (ii) encouraging any employee, consultant, contractor, agent, or representative of NIC to leave its employ or cease his or her relationship with NIC, (iii) hiring any person who is then an employee, consultant, contractor, agent, or representative of NIC for any entity other than NIC, or providing names or other information about such employee, consultant, contractor, agent, or representative to any person or business under circumstances which could lead to the use of that information for purposes of recruiting or hiring for any entity other than NIC, (iv) interfering with the relationship of NIC with any of its employees, consultants, contractors, agents, or representatives, (v) soliciting or inducing, or in any manner attempting to solicit or induce, any Customer, or prospect of NIC (1) to cease being, or not to become, a client or customer of NIC, or (2) to divert any business of such Customer or prospect from NIC, or (vi) otherwise interfering with, disrupting, or attempting to interfere with or disrupt, the relationship, contractual or otherwise, between NIC and any of its Customers, prospects, suppliers, employees, consultants, contractors, agents, or representatives; and
(e) at all times during the Agreement Period and for a period of twenty-four (24) months immediately at all times following termination of employment for any reason, cooperate with and provide assistance to NIC at any time and in any manner reasonably required by NIC or its respective counsel in connection with any litigation or other legal process affecting NIC, or in answering questions concerning any other matter, in which the Executive was involved or had knowledge of during the course of his or her employment (other than any dispute between the Parties concerning this Agreement); provided, (i) the Company and NAVISTAR, INC. shall have provided the Executive with advance written notice of the request to cooperate and/or assist, (ii) the Company and NAVISTAR, INC. shall reimburse the Executive’s reasonable attorneys’ fees and costs and such other expenses in connection with said cooperation and assistance promptly after the Executive submits a written request therefor together with copies of the invoices substantiating such expenses, but in no event shall payment of any such fees, costs, and expenses be made after the last day of the Executive’s taxable year following the taxable year in which the expense was incurred; provided, that prior to reimbursement the Executive first delivers a written undertaking to the Company and NAVISTAR, INC. to repay all such attorneys’ fees and costs and expenses paid to the Executive prior to the final disposition of the litigation or other legal process affecting NIC if it ultimately be determined by final judicial decision from which there is no further right to appeal that the Executive is not entitled to reimbursement of such attorneys’ fees and costs and expenses, and (iii) that after the termination of employment for any reason, such cooperation and assistance shall not require the Executive to forgo or significantly interrupt any professional or personal commitment that he or she reasonably deems significant or to take any action that, in his or her reasonable judgment, could impair his or her ability to perform the responsibilities of or could jeopardize the continuation of his or her then current employment or self-employment. The Executive acknowledges and agrees that NIC’s businesses business is intensively competitive, Executive’s employment required Executive to have access to and knowledge of NIC’s confidential information and trade secrets, the Customers have required a significant degree of difficulty, number of years, an amount of money by NIC to acquire and develop, Executive has had significant personal contact with and knowledge of the Customers, and the duration of the Customer’s association with NIC and the continuity of the Customer-NIC relationships are of the utmost importance to the success of NIC’s business. The Executive also acknowledges and agrees that the business of NIC is conducted nationally and internationally and agrees that the provisions in the foregoing sentence will operate throughout the United States of America or its territories, Canada, Mexico, Brazil, United Kingdom, Germany, South Africa, United Arab Emirates, India and the People’s Republic of China, and any other country in which NIC conducts business at the time of the Executive’s termination of employment with NIC. The Executives further acknowledges and agrees that the Executive holds a senior management role at NIC and that, if the Executive were to hold a management position with a competitor of NIC, the Executive would be able to exploit unfairly Confidential Information and/or Customer-NIC relationships. Accordingly, the Executive acknowledges and agrees that the foregoing covenants set forth in this paragraph 7 are reasonable, including without limitation, as to scope, activity, subject, geography and duration, and that irreparable injury will result to NIC in the event of any violation by the Executive of these covenants, and that said covenants are a condition precedent to the Company’s and NAVISTAR, INC.’s willingness to enter into this Agreement and pay the consideration set forth in this Agreement. In the event that any of the foregoing covenants are violated, the Company and NAVISTAR, INC. shall be entitled, in addition to any other remedies and damages available under law, equity, or otherwise, to recoup, offset, suspend, or terminate any or all separation payments and benefits previously paid or otherwise subsequently owed to the Executive under this Agreement, to injunctive relief from any court of competent jurisdiction to restrain the violation of such covenants, and/or to prevent any threatened violation by the Executive, and/or by any person or persons acting for, or in concert with, the Executive in any capacity whatsoever, without posting a bond or other security. In addition, if such a court deems that any of the foregoing covenants are unreasonable, the Parties agree that the maximum permissible period and scope prescribed by such court shall be substituted for the stated period and scope.
Appears in 1 contract
Samples: Executive Severance Agreement (Navistar International Corp)
Confidentiality; Non-Disparagement; Non-Solicitation; Non-Competition; Cooperation. In consideration of the amounts which may become payable pursuant to paragraph 5 Section 6 of this Agreement, the Executive agrees to be bound by the covenants of this paragraph Section 7. The Executive acknowledges that the covenants contained within this paragraph Section 7 are essential elements of this Agreement, and that, but for the agreement of the Executive to comply with such covenants, NIC would not have entered into this Agreement to provide for payments under paragraph 5 Section 6 herein. The allocation of payments under paragraph 5 Section 6 of this Agreement shall be made with respect to the covenants of this paragraph Section 7 at such time(s) an allocation would be deemed to be appropriate. The Executive agrees that he shall:
(a) at all times during the Agreement Period Services Term and for a period of twenty-four (24) months immediately at all times following termination of employment and service for any reason, hold in the strictest confidence and not disclose, divulge or appropriate, directly or indirectly, for personal use or the use of others, except as may be required in Executive’s work for the Company, any confidential, secret, proprietary or privileged information pertaining to the business of NIC obtained during the Executive’s employment by NIC (collectively, “Confidential Information”), including but not limited to (i) information related to all relationships of NIC with its customers or clients which Executive would not, but for his relationship with NIC, have had contact with (collectively, “Customers”) (including the identities of NIC’s primary contacts at such Customers), trade secrets, inventions, ideas, processes, formulas, source and object codes, data, programs, other works of authorship, know-how, improvements, discoveries, developments, designs and techniques; (ii) information regarding plans for research, trade secrets, development, new products, marketing and selling, business plans, budgets and unpublished financial statements, licenses, prices and costs, investors and Customers; and (iii) information regarding the skills and compensation of other employees of NIC;
(b) at all times during the Agreement Period Services Term and for a period of twenty-four (24) months immediately at all times following termination of employment and service for any reason, refrain from publishing, providing, or soliciting, directly or indirectly, any oral or written statements about NIC or any of its respective officers, directors, employees, agents, representatives, products, or practices that may be considered disparaging, slanderous, libelous, derogatory, or defamatory, or which may reasonably expected to tend to injure the reputation or business of NIC or any of its respective officers, directors, employees, agents, representatives, products, or practices; provided, that such restriction shall not limit the Executive’s ability to provide truthful testimony as required by law or any judicial or administrative process;
(c) at all times during the Agreement Period Services Term and for a period of twenty-four (24) months immediately following termination of employment and service for any reason, not, directly or indirectly (whether as owner, principal, agent, partner, officer, director, employee, consultant, investor, lender or otherwise), provide services to any other business or organization anywhere in the United States of America or its territories, Canada, Mexico, Brazil, United Kingdom, Germany, South Africa, United Arab Emirates, India and the People’s Republic of China, or any other country in which NIC, directly or indirectly including but not limited to through a joint venture, strategic alliance or other similar arrangement, conducts business at the time of the Executive’s termination of employment and service that competes with the business of NIC by (1) manufacturing, selling or servicing medium or heavy duty automotive vehicles with diesel powered engines (including but not limited to commercial trucks, commercial buses, buses and school buses, recreational vehicles, and military vehicles), parts or components for such vehicles, diesel powered engines for such vehicles, parts or components for diesel powered engines for such vehicles, (2) or providing financing or financing-related services related to any of the business activities listed in paragraph 7(c)(1) abovesuch manufacturing, selling or servicing activities, or (32) providing other services or products which are the same as or substantially similar to those provided by NIC at the time of the Executive’s termination of employmentemployment and service, in each case, with respect to which the Executive developed, received or learned Confidential Information during his employment with NIC; provided, however, that such restriction shall not prohibit the Executive’s purchase or ownership of less than 5% of the outstanding voting stock of a publicly-held company so long as such ownership is passive in nature;
(d) at all times during the Agreement Period Services Term and for a period of twenty-four (24) months immediately following a termination of employment and service for any reason, refrain, without the written consent of the Company or NAVISTAR, INC., from, directly or indirectly, (i) recruiting or soliciting any employee, consultant, contractor, agent, or representative of NIC for employment or for retention as a consultant or service provider for any entity other than NIC, ; (ii) encouraging any employee, consultant, contractor, agent, or representative of NIC to leave its employ or cease his relationship with NIC, ; (iii) hiring any person who is then an employee, consultant, contractor, agent, or representative of NIC for any entity other than NIC, or providing names or other information about such employee, consultant, contractor, agent, or representative to any person or business under circumstances which could lead to the use of that information for purposes of recruiting or hiring for any entity other than NIC, ; (iv) interfering with the relationship of NIC with any of its employees, consultants, contractors, agents, or representatives, ; (v) soliciting or inducing, or in any manner attempting to solicit or induce, any Customer, or prospect of NIC (1) to cease being, or not to become, a client or customer of NIC, or (2) to divert any business of such Customer or prospect from NIC, ; or (vi) otherwise interfering with, disrupting, or attempting to interfere with or disrupt, the relationship, contractual or otherwise, between NIC and any of its Customers, prospects, suppliers, employees, consultants, contractors, agents, or representatives; and
(e) at all times during and following the Agreement Period and for a period of twenty-four (24) months immediately following termination of employment for any reasonServices Term, cooperate with and provide assistance to NIC at any time and in any manner reasonably required by NIC or its respective counsel in connection with any litigation or other legal process affecting NIC, or in answering questions concerning any other matter, in which the Executive was involved or had knowledge of during the course of his employment (other than any dispute between the Parties concerning this Agreement); provided, (i) the Company and NAVISTAR, INC. shall have provided the Executive with advance written notice of the request to cooperate and/or assist, (ii) the Company and NAVISTAR, INC. shall reimburse the Executive’s reasonable attorneys’ fees and costs and such other expenses in connection with said cooperation and assistance promptly after the Executive submits a written request therefor together with copies of the invoices substantiating such expenses, but in no event shall payment of any such fees, costs, and expenses be made after the last day of the Executive’s taxable year following the taxable year in which the expense was incurred; provided, that prior to reimbursement the Executive first delivers a written undertaking to the Company and NAVISTAR, INC. to repay all such attorneys’ fees and costs and expenses paid to the Executive prior to the final disposition of the litigation or other legal process affecting NIC if it ultimately be determined by final judicial decision from which there is no further right to appeal that the Executive is not entitled to reimbursement of such attorneys’ fees and costs and expenses, and (iii) that after the termination of employment and service for any reason, such cooperation and assistance shall not require the Executive to forgo or significantly interrupt any professional or personal commitment that he reasonably deems significant or to take any action that, in his reasonable judgment, could impair his ability to perform the responsibilities of or could jeopardize the continuation of his then current employment or self-employment. The .
(f) Executive acknowledges and agrees that NIC’s businesses business is intensively competitive, Executive’s employment required Executive to have access to and knowledge of NIC’s confidential information and trade secrets, the Customers have required a significant degree of difficulty, number of years, an amount of money by NIC to acquire and develop, Executive has had significant personal contact with and knowledge of the Customers, and the duration of the Customer’s association with NIC and the continuity of the Customer-NIC relationships are of the utmost importance to the success of NIC’s business. The Executive also acknowledges and agrees that the business of NIC is conducted nationally and internationally and agrees that the provisions in the foregoing sentence will operate throughout the United States of America or its territories, Canada, Mexico, Brazil, United Kingdom, Germany, South Africa, United Arab Emirates, India and the People’s Republic of China, and any other country in which NIC conducts business at the time of the Executive’s termination of employment and service with NIC. The Executives Executive further acknowledges and agrees that the Executive holds a senior management role at NIC and that, if the Executive were to hold a management position with a competitor of NIC, the Executive would be able to exploit unfairly Confidential Information and/or Customer-NIC relationships. Accordingly, the Executive acknowledges and agrees that the foregoing covenants set forth in this paragraph Section 7 are reasonable, including without limitation, as to scope, activity, subject, geography and duration, and that irreparable injury will result to NIC in the event of any violation by the Executive of these covenants, and that said covenants are a condition precedent to the Company’s and NAVISTAR, INC.’s willingness to enter into this Agreement and pay the consideration set forth in this Agreement. In the event that any of the foregoing covenants are violated, the Company and NAVISTAR, INC. shall be entitled, in addition to any other remedies and damages available under law, equity, or otherwise, to recoup, offset, suspend, or terminate any or all separation payments and benefits previously paid or otherwise subsequently owed to the Executive under this Agreement, to injunctive relief from any court of competent jurisdiction to restrain the violation of such covenants, and/or to prevent any threatened violation by the Executive, and/or by any person or persons acting for, or in concert with, the Executive in any capacity whatsoever, without posting a bond or other security. In addition, if such a court deems that any of the foregoing covenants are unreasonable, the Parties agree that the maximum permissible period and scope prescribed by such court shall be substituted for the stated period and scope.
Appears in 1 contract
Confidentiality; Non-Disparagement; Non-Solicitation; Non-Competition; Cooperation. In consideration of the amounts which may become payable pursuant to paragraph 5 of this Agreement, the Executive agrees to be bound by the covenants of this paragraph 7. The Executive Section 7 and acknowledges that the covenants contained within this paragraph Section 7 are essential elements of this Agreement. As such, and that, but for the agreement of the Executive to comply with such covenants, NIC would not have entered into this Agreement to provide for payments under paragraph 5 herein. The allocation of payments under paragraph 5 of this Agreement shall be made with respect to the covenants of this paragraph 7 at such time(s) an allocation would be deemed to be appropriate. The Executive agrees that he shall:
(a) at all times during the Agreement Period Services Term and for a period of twenty-four (24) months immediately following termination of employment and service for any reason, hold in the strictest confidence and not disclose, divulge or appropriate, directly or indirectly, for personal use or the use of others, except as may be required in Executive’s work for the Company, any confidential, secret, proprietary or privileged information pertaining to the business of NIC obtained during the Executive’s employment by NIC (collectively, “Confidential Information”), including but not limited to (i) information related to all relationships of NIC with its customers or clients which Executive would not, but for his relationship with NIC, have had contact with (collectively, “Customers”) (including the identities of NIC’s primary contacts at such Customers), trade secrets, inventions, ideas, processes, formulas, source and object codes, data, programs, other works of authorship, know-how, improvements, discoveries, developments, designs and techniques; (ii) information regarding plans for research, trade secrets, development, new products, marketing and selling, business plans, budgets and unpublished financial statements, licenses, prices and costs, investors and Customers; and (iii) information regarding the skills and compensation of other employees of NIC;
(b) at all times during the Agreement Period Services Term and for following a period of twenty-four (24) months immediately following termination of employment and service for any reason, refrain from publishing, providing, or soliciting, directly or indirectly, any oral or written statements about NIC or any of its respective officers, directors, employees, agents, representatives, products, or practices that may be considered disparaging, slanderous, libelous, derogatory, or defamatory, or which may reasonably be expected to tend to injure the reputation or business of NIC or any of its respective officers, directors, employees, agents, representatives, products, or practices; provided, provided that such restriction (and the restriction in Section 7(a) above) shall not limit the Executive’s ability to provide truthful testimony as required by law or any judicial or administrative processprocess or make truthful disclosures under the whistleblower provisions of federal law or regulation;
(c) at all times during the Agreement Period Services Term and for a period of twenty-four (24) months immediately following termination of employment and service for any reason, not, directly or indirectly (whether as owner, principal, agent, partner, officer, director, employee, consultant, investor, lender or otherwise), provide services to any other business or organization anywhere in the United States of America or its territories, Canada, Mexico, Brazil, United Kingdom, Germany, South Africa, United Arab Emirates, India and the People’s Republic of China, or any other country in which NIC, directly or indirectly including but not limited to through a joint venture, strategic alliance or other similar arrangement, conducts business at the time of the Executive’s termination of employment and service that competes with the business of NIC by (1i) manufacturing, selling or servicing medium or heavy duty automotive vehicles with diesel powered engines (including but not limited to commercial trucks, commercial buses, school buses, recreational vehicles, and military vehicles), parts or components for such vehicles, diesel powered engines for such vehicles, parts or components for diesel powered engines for such vehicles, ; (2ii) providing financing or financing-financing- related services related to any of the business activities listed in paragraph 7(c)(1Section 7(c)(i) above, ; or (3iii) providing other services or products which are the same as or substantially similar to those provided by NIC at the time of the Executive’s termination of employment, in each case, with respect to which the Executive developed, received or learned Confidential Information during his employment with NICand service; provided, however, that such restriction shall not prohibit the Executive’s purchase or ownership of less than five percent (5% %) of the outstanding voting stock of a publicly-held company so long as such ownership is passive in nature; provided, further, notwithstanding anything in this Agreement to the contrary, (y) the ownership by Executive of a dealership (or group of dealerships) for the retail sale and service of medium or heavy duty automotive vehicles with diesel powered engines (including commercial trucks, commercial buses, school buses, recreational vehicles, and military vehicles), parts or components for such vehicles, diesel powered engines for such vehicles, and parts or components for diesel powered engines for such vehicles, and (z) the providing of financing or financing related services to customers in connection with the business described in above clause (y), shall not be deemed to be a violation of this Agreement and particularly, of this Section 7(c);
(d) at all times during the Agreement Period Services Term and for a period of twenty-four (24) months immediately following a termination of employment and service for any reason, refrain, without the written consent of the Company or NAVISTAR, INC., from, directly or indirectly, (i) recruiting or soliciting any employee, consultant, contractor, agent, or representative of NIC for employment or for retention as a consultant or service provider for any entity other than NIC, ; (ii) encouraging any employee, consultant, contractor, agent, or representative of NIC to leave its employ or cease his relationship with NIC, ; (iii) hiring any person who is then an employee, consultant, contractor, agent, or representative of NIC for any entity other than NIC, or providing names or other information about such employee, consultant, contractor, agent, or representative to any person or business under circumstances which could lead to the use of that information for purposes of recruiting or hiring for any entity other than NIC, ; (iv) interfering with the relationship of NIC with any of its employees, consultants, contractors, agents, or representatives, ; (v) soliciting or inducing, or in any manner attempting to solicit or induce, any Customer, or prospect of NIC (1) to cease being, or not to become, a client or customer of NIC, ; or (2) to divert any business of such Customer or prospect from NIC, ; or (vi) otherwise interfering with, disrupting, or attempting to interfere with or disrupt, the relationship, contractual or otherwise, between NIC and any of its Customers, prospects, suppliers, employees, consultants, contractors, agents, or representatives; and
(e) at all times during the Agreement Period Services Term and for a period of twenty-four (24) months immediately following termination of employment and service for any reason, cooperate with and provide assistance to NIC at any time and in any manner reasonably required by NIC or its respective counsel in connection with any litigation or other legal process affecting NIC, or in answering questions concerning any other matter, in which the Executive was involved or had knowledge of during the course of his employment and service (other than any dispute between the Parties concerning this Agreement); provided, provided that (i) the Company and NAVISTAR, INC. shall have provided the Executive with advance written notice of the request to cooperate and/or or assist, ; (ii) the Company and NAVISTAR, INC. shall reimburse the Executive’s reasonable attorneys’ fees and costs and such other expenses in connection with said cooperation and assistance promptly after the Executive submits a written request therefor together with copies of the invoices substantiating such expenses, but in no event shall payment of any such fees, costs, and expenses be made after the last day of the Executive’s taxable year following the taxable year in which the expense was incurred; provided, provided that prior to reimbursement the Executive first delivers a written undertaking to the Company and NAVISTAR, INC. to repay all such attorneys’ fees and costs and expenses paid to the Executive prior to the final disposition of the litigation or other legal process affecting NIC if it ultimately be determined by final judicial decision from which there is no further right to appeal that the Executive is not entitled to reimbursement of such attorneys’ fees and costs and expenses, ; and (iii) that after the termination of employment and service for any reason, such cooperation and assistance shall not require the Executive to forgo or significantly interrupt any professional or personal commitment that he reasonably deems significant or to take any action that, in his reasonable judgment, could impair his ability to perform the responsibilities of or could jeopardize the continuation of his then current employment or self-employment. The .
(f) Executive acknowledges and agrees that NIC’s businesses business is intensively competitive, Executive’s employment and service required Executive to have access to and knowledge of NIC’s confidential information and trade secrets, the Customers have required a significant degree of difficulty, number of years, an amount of money by NIC to acquire and develop, Executive has had significant personal contact with and knowledge of the Customers, and the duration of the Customer’s association with NIC and the continuity of the Customer-NIC relationships are of the utmost importance to the success of NIC’s business. The Executive also acknowledges and agrees that the business of NIC is conducted nationally and internationally and agrees that the provisions in the foregoing sentence will operate throughout the United States of America or its territories, Canada, Mexico, Brazil, United Kingdom, Germany, South Africa, United Arab Emirates, India and the People’s Republic of China, and any other country in which NIC conducts business at the time of the Executive’s termination of employment and service with NIC. The Executives Executive further acknowledges and agrees that the Executive holds a senior management role at NIC and that, if the Executive were to hold a management position with a competitor of NIC, the Executive would be able to exploit unfairly Confidential Information and/or or Customer-NIC relationships. Accordingly, the Executive acknowledges and agrees that the foregoing covenants set forth in this paragraph Section 7 are reasonable, including without limitation, as to scope, activity, subject, geography and duration, and that irreparable injury will result to NIC in the event of any violation by the Executive of these covenants, and that said covenants are a condition precedent to the Company’s and NAVISTAR, INC.’s willingness to enter into this Agreement and pay the consideration set forth in this Agreement. In the event that any of the foregoing covenants are violated, the Company and NAVISTAR, INC. shall be entitled, in addition to any other remedies and damages available under law, equity, or otherwise, to recoup, offset, suspend, or terminate any or all separation payments and benefits previously paid or otherwise subsequently owed to the Executive under this Agreement, to injunctive relief from any court of competent jurisdiction to restrain the violation of such covenants, and/or to prevent any threatened violation by the Executive, and/or by any person or persons acting for, or in concert with, the Executive in any capacity whatsoever, without posting a bond or other security. In addition, if such a court deems that any of the foregoing covenants are unreasonable, the Parties agree that the maximum permissible period and scope prescribed by such court shall be substituted for the stated period and scope.
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Confidentiality; Non-Disparagement; Non-Solicitation; Non-Competition; Cooperation. In consideration of the amounts which may become payable pursuant to paragraph 5 of this Agreement, the Executive agrees to be bound by the covenants of this paragraph 7. The Executive Section 7 and acknowledges that the covenants contained within this paragraph Section 7 are essential elements of this Agreement. As such, and that, but for the agreement of the Executive to comply with such covenants, NIC would not have entered into this Agreement to provide for payments under paragraph 5 herein. The allocation of payments under paragraph 5 of this Agreement shall be made with respect to the covenants of this paragraph 7 at such time(s) an allocation would be deemed to be appropriate. The Executive agrees that he shall:
(a) at all times during the Agreement Period Services Term and for a period of twenty-four (24) months immediately following termination of employment and service for any reason, hold in the strictest confidence and not disclose, divulge or appropriate, directly or indirectly, for personal use or the use of others, except as may be required in Executive’s work for the Company, any confidential, secret, proprietary or privileged information pertaining to the business of NIC obtained during the Executive’s employment by NIC (collectively, “Confidential Information”), including but not limited to (i) information related to all relationships of NIC with its customers or clients which Executive would not, but for his relationship with NIC, have had contact with (collectively, “Customers”) (including the identities of NIC’s primary contacts at such Customers), trade secrets, inventions, ideas, processes, formulas, source and object codes, data, programs, other works of authorship, know-how, improvements, discoveries, developments, designs and techniques; (ii) information regarding plans for research, trade secrets, development, new products, marketing and selling, business plans, budgets and unpublished financial statements, licenses, prices and costs, investors and Customers; and (iii) information regarding the skills and compensation of other employees of NIC;
(b) at all times during the Agreement Period Services Term and for following a period of twenty-four (24) months immediately following termination of employment and service for any reason, refrain from publishing, providing, or soliciting, directly or indirectly, any oral or written statements about NIC or any of its respective officers, directors, employees, agents, representatives, products, or practices that may be considered disparaging, slanderous, libelous, derogatory, or defamatory, or which may reasonably be expected to tend to injure the reputation or business of NIC or any of its respective officers, directors, employees, agents, representatives, products, or practices; provided, provided that such restriction shall not limit the Executive’s ability to provide truthful testimony as required by law or any judicial or administrative process;
(c) at all times during the Agreement Period Services Term and for a period of twenty-four (24) months immediately following termination of employment and service for any reason, not, directly or indirectly (whether as owner, principal, agent, partner, officer, director, employee, consultant, investor, lender or otherwise), provide services to any other business or organization anywhere in the United States of America or its territories, Canada, Mexico, Brazil, United Kingdom, Germany, South Africa, United Arab Emirates, India and the People’s Republic of China, or any other country in which NIC, directly or indirectly including but not limited to through a joint venture, strategic alliance or other similar arrangement, conducts business at the time of the Executive’s termination of employment and service that competes with the business of NIC by (1i) manufacturing, selling or servicing medium or heavy duty automotive vehicles with diesel powered engines (including but not limited to commercial trucks, commercial buses, school buses, recreational vehicles, and military vehicles), parts or components for such vehicles, diesel powered engines for such vehicles, parts or components for diesel powered engines for such vehicles, ; (2ii) providing financing or financing-financing- related services related to any of the business activities listed in paragraph 7(c)(1Section 7(c)(i) above, ; or (3iii) providing other services or products which are the same as or substantially similar to those provided by NIC at the time of the Executive’s termination of employment, in each case, with respect to which the Executive developed, received or learned Confidential Information during his employment with NICand service; provided, however, that such restriction shall not prohibit the Executive’s purchase or ownership of less than five percent (5% %) of the outstanding voting stock of a publicly-held company so long as such ownership is passive in nature; provided, further, notwithstanding anything in this Agreement to the contrary, (y) the ownership by Executive of a dealership (or group of dealerships) for the retail sale and service of medium or heavy duty automotive vehicles with diesel powered engines (including commercial trucks, commercial buses, school buses, recreational vehicles, and military vehicles), parts or components for such vehicles, diesel powered engines for such vehicles, and parts or components for diesel powered engines for such vehicles, and (z) the providing of financing or financing related services to customers in connection with the business described in above clause (y), shall not be deemed to be a violation of this Agreement and particularly, of this Section 7(c);
(d) at all times during the Agreement Period Services Term and for a period of twenty-four (24) months immediately following a termination of employment and service for any reason, refrain, without the written consent of the Company or NAVISTAR, INC., from, directly or indirectly, (i) recruiting or soliciting any employee, consultant, contractor, agent, or representative of NIC for employment or for retention as a consultant or service provider for any entity other than NIC, ; (ii) encouraging any employee, consultant, contractor, agent, or representative of NIC to leave its employ or cease his relationship with NIC, ; (iii) hiring any person who is then an employee, consultant, contractor, agent, or representative of NIC for any entity other than NIC, or providing names or other information about such employee, consultant, contractor, agent, or representative to any person or business under circumstances which could lead to the use of that information for purposes of recruiting or hiring for any entity other than NIC, ; (iv) interfering with the relationship of NIC with any of its employees, consultants, contractors, agents, or representatives, ; (v) soliciting or inducing, or in any manner attempting to solicit or induce, any Customer, or prospect of NIC (1) to cease being, or not to become, a client or customer of NIC, ; or (2) to divert any business of such Customer or prospect from NIC, or (vi) otherwise interfering with, disrupting, or attempting to interfere with or disrupt, the relationship, contractual or otherwise, between NIC and any of its Customers, prospects, suppliers, employees, consultants, contractors, agents, or representatives; and
(e) at all times during the Agreement Period Services Term and for a period of twenty-four (24) months immediately following termination of employment and service for any reason, cooperate with and provide assistance to NIC at any time and in any manner reasonably required by NIC or its respective counsel in connection with any litigation or other legal process affecting NIC, or in answering questions concerning any other matter, in which the Executive was involved or had knowledge of during the course of his employment and service (other than any dispute between the Parties concerning this Agreement); provided, provided that (i) the Company and NAVISTAR, INC. shall have provided the Executive with advance written notice of the request to cooperate and/or or assist, ; (ii) the Company and NAVISTAR, INC. shall reimburse the Executive’s reasonable attorneys’ fees and costs and such other expenses in connection with said cooperation and assistance promptly after the Executive submits a written request therefor together with copies of the invoices substantiating such expenses, but in no event shall payment of any such fees, costs, and expenses be made after the last day of the Executive’s taxable year following the taxable year in which the expense was incurred; provided, provided that prior to reimbursement the Executive first delivers a written undertaking to the Company and NAVISTAR, INC. to repay all such attorneys’ fees and costs and expenses paid to the Executive prior to the final disposition of the litigation or other legal process affecting NIC if it ultimately be determined by final judicial decision from which there is no further right to appeal that the Executive is not entitled to reimbursement of such attorneys’ fees and costs and expenses, ; and (iii) that after the termination of employment and service for any reason, such cooperation and assistance shall not require the Executive to forgo or significantly interrupt any professional or personal commitment that he reasonably deems significant or to take any action that, in his reasonable judgment, could impair his ability to perform the responsibilities of or could jeopardize the continuation of his then current employment or self-employment. The .
(f) Executive acknowledges and agrees that NIC’s businesses is intensively competitive, Executive’s employment and service required Executive to have access to and knowledge of NIC’s confidential information and trade secrets, the Customers have required a significant degree of difficulty, number of years, an amount of money by NIC to acquire and develop, Executive has had significant personal contact with and knowledge of the Customers, and the duration of the Customer’s association with NIC and the continuity of the Customer-NIC relationships are of the utmost importance to the success of NIC’s business. The Executive also acknowledges and agrees that the business of NIC is conducted nationally and internationally and agrees that the provisions in the foregoing sentence will operate throughout the United States of America or its territories, Canada, Mexico, Brazil, United Kingdom, Germany, South Africa, United Arab Emirates, India and the People’s Republic of China, and any other country in which NIC conducts business at the time of the Executive’s termination of employment and service with NIC. The Executives Executive further acknowledges and agrees that the Executive holds a senior management role at NIC and that, if the Executive were to hold a management position with a competitor of NIC, the Executive would be able to exploit unfairly Confidential Information and/or or Customer-NIC relationships. Accordingly, the Executive acknowledges and agrees that the foregoing covenants set forth in this paragraph Section 7 are reasonable, including without limitation, as to scope, activity, subject, geography and duration, and that irreparable injury will result to NIC in the event of any violation by the Executive of these covenants, and that said covenants are a condition precedent to the Company’s and NAVISTAR, INC.’s willingness to enter into this Agreement and pay the consideration set forth in this Agreement. In the event that any of the foregoing covenants are violated, the Company and NAVISTAR, INC. shall be entitled, in addition to any other remedies and damages available under law, equity, or otherwise, to recoup, offset, suspend, or terminate any or all separation payments and benefits previously paid or otherwise subsequently owed to the Executive under this Agreement, to injunctive relief from any court of competent jurisdiction to restrain the violation of such covenants, and/or to prevent any threatened violation by the Executive, and/or by any person or persons acting for, or in concert with, the Executive in any capacity whatsoever, without posting a bond or other security. In addition, if such a court deems that any of the foregoing covenants are unreasonable, the Parties agree that the maximum permissible period and scope prescribed by such court shall be substituted for the stated period and scope.
Appears in 1 contract
