Confidentiality, Non-Solicitation and Non-Competition. (a) Executive reaffirms and agrees to comply with the terms of the Agreement Regarding Confidential Information, Intellectual Property and Non- Solicitation of Employees signed by the Executive, a copy of which is attached hereto as Exhibit B and incorporated herein by reference. Executive represents that he has delivered (or will as requested, but no later than the Leave Date, deliver) all Company papers, books, records, computer programs, or like materials in his possession or control and all copies thereof to the Company. (b) In consideration of the covenants and agreements of the Company herein contained, the payments to be made by the Company pursuant to this Agreement, the positions of trust and confidence he has occupied with the Company and the information of a highly sensitive and confidential nature he has received as a result of such positions, the Executive agrees that he will not, during the period commencing on the date of this Agreement and ending on the Termination Date, without the prior written consent of the Company, either directly or indirectly accept employment by or serve as a consultant, agent, substantial stockholder, corporate officer, or director of, or in any other representative capacity for, any entity which is engaged in a line of business in which the Company (either directly or through a subsidiary or affiliate) is engaged on the Leave Date and which is a competitor of the Company or any of its subsidiaries, or assist in the solicitation of any work or engage in any other activity in competition with the business then being conducted by the Company or any of its subsidiaries. Executive acknowledges that the business conducted by the Company is worldwide and that it is reasonably necessary for the protection of the Company and its subsidiaries and their goodwill, in view of his knowledge of its and their worldwide operations, that he not provide to competitors of the Company or any of its subsidiaries anywhere in the world the benefit of his knowledge of the Company and its subsidiaries and its and their business. Executive further acknowledges that a breach by him of his agreements contained in this Section 4 would cause irreparable harm to the Company which is not adequately measurable by money damages and that, accordingly, in the event of such a breach, in addition to any and all other rights the Company may have, including, without limitation, rights at law and in equity, and the right of the Company to terminate certain payments to the Executive, the Company shall be entitled to equitable remedies in the nature of injunctive relief to stop any existing breaches and to prohibit any future breaches. (c) The following additional provisions shall apply to the covenants of the Executive contained in this Section 4. (i) It is the intent and understanding of each party hereto that if, in action before any court or agency legally empowered to enforce the covenants contained in this Section 4, any term, restriction, covenant or promise contained herein is found to be unreasonable and for that reason unenforceable, then such term, restriction, covenant or promise shall be deemed modified to the extent necessary to make it enforceable by such court or agency. (ii) In the event of any material breach by the Executive of any provision of this Section 4, the Company may, by written notice, elect to terminate its obligations under this Agreement. In such event, all payments and other benefits to the Executive otherwise required to be provided by the Company under the provisions of Section 2 shall immediately cease, and the Executive shall thereafter cease to be entitled to receive any amounts not already paid by the Company and he shall be required to return any payments previously received but relating to periods after the date of such breach; provided that the Executive shall be entitled to receive or retain any payment or benefit which is based upon a right which had fully accrued (including any stock options or similar rights which had fully vested) as of the date of such breach. (iii) The Executive understands that, in addition to the restrictions contained herein, pursuant to the terms of the Company's retirement benefit plan, the payment of certain retirement benefits may be affected should the Executive become employed by or perform work for a competitor or supplier of the Company.
Appears in 1 contract
Samples: Separation and Release Agreement (Donnelley R R & Sons Co)
Confidentiality, Non-Solicitation and Non-Competition. (a) Executive reaffirms and agrees to comply with the terms of the Agreement Regarding Confidential Information, Intellectual Property and Non- Solicitation of Employees signed by the ExecutiveExecutive on October 21, 1995, a copy of which is attached hereto as Exhibit B and incorporated herein by reference. Executive represents that he has delivered (or will as requestedshe will, but no later than prior to the Leave Dateend of the Consulting Period, deliver) deliver all Company papers, books, records, computer programs, or like materials in his her possession or control and all copies thereof to the Company, except that the Executive will be permitted to retain copies of documents describing the terms and conditions of those arrangements between the Executive and the Company which survive the termination of the Executive's active employment with the Company.
(b) In consideration of the covenants and agreements of the Company herein contained, the payments to be made by the Company pursuant to this Agreement, the positions of trust and confidence he the Executive has occupied and currently occupies with the Company and the information of a highly sensitive and confidential nature he she has received and will receive as a result of such positions, the Executive agrees that he she will not, during the period commencing on the date of this Agreement Resignation Date and ending on the Termination DateApril 1, 2001, without the prior written consent of the Company, either directly or indirectly accept employment by own, manage, operate, control or serve as a consultantparticipate in any manner in the ownership, agentmanagement, substantial stockholder, corporate officer, operation or director control of, or in be connected as an officer, employee, partner, director, principal, consultant, agent or otherwise with, or have any other representative capacity forfinancial interest in, or aid or assist any entity which is engaged in a line of business in which the Company (either directly or through a subsidiary or affiliate) is engaged on the Leave Date and which is a competitor of the Company following entities: Quebecorp World (Quebecorp Printing Inc.), Quad-Graphics, Xxxxx & Co., Inc., Xxxxxxx Corporation, Big Flower Holdings, Xxxxx Corp. or any of its subsidiariesXxxxx Corporation. It is understood and agreed that, or assist in the solicitation of any work or engage in any other activity in competition with the business then being conducted by the Company or any of its subsidiaries. Executive acknowledges that the business conducted by the Company is worldwide and that it is reasonably necessary for the protection purposes of the Company and its subsidiaries and their goodwill, in view of his knowledge of its and their worldwide operations, that he not provide to competitors of the Company or any of its subsidiaries anywhere in the world the benefit of his knowledge of the Company and its subsidiaries and its and their business. Executive further acknowledges that a breach by him of his agreements contained in this Section 4 would cause irreparable harm to the Company which is not adequately measurable by money damages and that, accordingly, in the event of such a breach, in addition to any and all other rights the Company may have, including, without limitation, rights at law and in equity, and the right of the Company to terminate certain payments to the Executive, the Company shall be entitled to equitable remedies in the nature of injunctive relief to stop any existing breaches and to prohibit any future breaches.
(c) The following additional foregoing provisions shall apply to the covenants of the Executive contained in this Section 4.
(i) It is the intent and understanding of each party hereto that if, in action before any court or agency legally empowered to enforce the covenants contained in this Section 4, any term, restriction, covenant or promise contained herein is found to be unreasonable and for that reason unenforceable, then such term, restriction, covenant or promise shall be deemed modified to the extent necessary to make it enforceable by such court or agency.
(ii) In the event of any material breach by the Executive of any provision of this Section 4, the Company may, by written notice, elect to terminate its obligations under this Agreement. In such event, all payments and other benefits to the Executive otherwise required to be provided by the Company under the provisions ownership of Section 2 shall immediately cease, and the Executive shall thereafter cease to be entitled to receive any amounts not already paid by the Company and he shall be required to return any payments previously received but relating to periods after the date of such breach; provided that the Executive shall be entitled to receive or retain any payment or benefit which is based upon a right which had fully accrued more than five percent (including any stock options or similar rights which had fully vested5%) as of the date voting stock of such breach.
(iii) The Executive understands that, in addition to the restrictions contained herein, pursuant to the terms any of the Company's retirement benefit plan, the payment of certain retirement benefits may be affected should the Executive become employed by or perform work for a competitor or supplier of the Company.above entities that are publicly held
Appears in 1 contract
Confidentiality, Non-Solicitation and Non-Competition. (a) Executive reaffirms For a period of one (1) year following the Closing Date, Seller Parent shall and agrees shall cause each of its Affiliates not, to comply with directly or indirectly, as an employee, agent, consultant, stockholder, director, co-partner or in any other individual or representative capacity, hire, solicit, cause, induce or encourage to leave the terms employment or other service of the Agreement Regarding Confidential InformationCompany or any Company Subsidiary or hire, Intellectual Property and Non- Solicitation employ or otherwise engage any such individual, any person on Schedule 6.10 (such persons, the “Key Employees”); provided that nothing contained in this Section 6.10(a) shall (i) prohibit Seller Parent from hiring any such individual in the event that such individual shall have responded to a general solicitation for employment not otherwise aimed or targeted at the employees of Employees signed the Company or any Company Subsidiary or (ii) apply with respect to any such employee who ceases to be employed by the ExecutiveCompany, a copy of which is attached hereto as Exhibit B and incorporated herein any Company Subsidiary or Buyer at least one (1) year prior to any direct or indirect solicitation by reference. Executive represents that he has delivered (Seller Parent or will as requested, but no later than the Leave Date, deliver) all Company papers, books, records, computer programs, or like materials in his possession or control and all copies thereof to the Companyits Affiliates.
(b) In consideration For a period of two (2) years following the covenants and agreements Closing Date (except with respect to any Buyer Confidential Information that constitutes a trade secret for which the obligations set forth herein shall survive for a period of five (5) years following the Company herein containedClosing Date), the payments to except as may be made approved in writing by the Company pursuant to Buyer, or as may be necessary for the proper discharge by Seller Parent or Seller of its duties or exercise of its rights under this Agreement, the positions of trust or as may be necessary to be disclosed to counsel, Taxing Authorities and confidence he has occupied with the Company accountants preparing Seller’s or Seller Parent’s tax reports and the information of a highly sensitive and confidential nature he has received as a result of such positions, the Executive agrees that he will not, during the period commencing on the date of this Agreement and ending on the Termination Date, without the prior written consent of the Company, either directly or indirectly accept employment by or serve as a consultant, agent, substantial stockholder, corporate officerfilings, or director ofas may be required under Applicable Law, Seller Parent and Seller shall, and shall cause their respective Representatives to, keep all documents, materials, records and other information that it has or has obtained prior to or after the Closing regarding Buyer, or in any other representative capacity for, any entity which is engaged in a line of business in which the Company (either directly or through a subsidiary or affiliate) is engaged on the Leave Date and which is a competitor member of the Company or any Company Subsidiary (“Buyer Confidential Information”) strictly confidential and will not disclose such information without Buyer’s prior written consent. “Buyer Confidential Information” shall not include information that (i) is or becomes publicly available (other than as a result of its subsidiariesa disclosure by Seller Parent, Seller or assist their respective Representatives in violation of this Section 6.10), (ii) is or becomes available to it from a source that, to the solicitation Knowledge of any work Seller Parent, is not prohibited from disclosing such information to it by a legal, contractual or engage in any fiduciary obligation or (iii) has been independently developed by it (other activity in competition than by or with the business then being conducted by respect to the Company or any of its subsidiaries. Executive acknowledges that the business conducted by the Company Subsidiaries) or its respective Representatives without reference to confidential information.
(c) Except for minority investments in the ordinary course of business (including in connection with module sales), neither Seller Parent nor any business or entity directly or indirectly majority owned or managed by Seller Parent shall, for a period beginning on the Closing Date and ending on the date that is worldwide one (1) year after the Closing Date, without Buyer’s prior written consent, directly own, invest in or control any business, whether in corporate, proprietorship or partnership form or otherwise, that is developing solar plants 5MW or greater having the same point of interconnection as any Project listed on Schedule 6.10(c). This Section 6.10(c) shall terminate and be of no further force and effect upon the merger, sale or combination of Seller with or into any other Person; provided that it such merger, sale or combination is reasonably necessary for not entered into to avoid Seller Parent’s obligations under this Section 6.10(c).
(d) Notwithstanding anything to the protection contrary, in the case of breach of the Company and its subsidiaries and their goodwill, in view of his knowledge of its and their worldwide operations, that he not provide to competitors of the Company or any of its subsidiaries anywhere in the world the benefit of his knowledge of the Company and its subsidiaries and its and their business. Executive further acknowledges that a breach by him of his agreements contained covenants in this Section 4 would cause 6.10, (i) the Parties acknowledge that any such breach may result in serious and irreparable harm injury to the Company which is not adequately measurable by money damages Buyer, and that, accordingly, therefore each Party acknowledges and agrees that in the event of such a breachbreach Buyer shall be entitled, in addition to any other remedy at law or in equity to which Buyer may be entitled, to equitable relief, including specific performance and all other an injunction to restrain such breaching party from such breach and to compel compliance with the obligations of such breaching party hereunder in protecting or enforcing Buyer’s rights the Company may have, includingand remedies, without limitation, rights at law and in equitynecessity of posting bond or other surety, and (ii) the right claiming of damages for any losses incurred by Buyer due to actions prohibited by the Company to terminate certain payments to the Executive, the Company aforesaid covenants under Article XI shall be entitled to equitable remedies in the nature of injunctive relief to stop any existing breaches and to prohibit any future breachesremain unaffected.
(ce) The following additional provisions shall apply to Parties acknowledge that the covenants of the Executive contained set forth in this Section 46.10 are an essential element to this Agreement and that, but for these covenants, the Parties would not have entered into this Agreement. The Parties specifically acknowledge and agree that each Party has received adequate consideration in exchange for entering into these covenants, the foregoing restrictions are reasonable and necessary to protect the legitimate interest of Buyer following the Closing, including the goodwill that Buyer shall be purchasing from Seller pursuant to the transactions contemplated hereby.
(if) The Parties acknowledge that this Section 6.10 constitutes an independent covenant and shall not be affected by performance or nonperformance of any other provisions of any of the Transaction Documents or any other document contemplated thereby.
(g) It is the intent and understanding intention of each party the Parties hereto that if, in action before if any court of the restrictions or agency legally empowered to enforce the covenants contained in this Section 4, any term, restriction, covenant 6.10 is held to cover a geographic area or promise contained herein is found to be unreasonable for length of time which is not permitted by Applicable Law, or in any way construed to be too broad or to any extent invalid, such restrictions or covenants shall not be construed to be null, void and for that reason unenforceableof no effect, then such term, restriction, covenant or promise shall be deemed modified but to the extent necessary to make it such restrictions or covenants would be valid or enforceable by such under Applicable Law, a court of competent jurisdiction shall construe and interpret or agency.
(ii) In the event of any material breach by the Executive of any provision of reform this Section 46.10 to provide for a covenant having the maximum enforceable geographic area, the Company may, by written notice, elect to terminate its obligations under this Agreement. In such event, all payments time period and other benefits to the Executive otherwise required to provisions (not greater than those contained in this Section 6.10) that would be provided by the Company valid and enforceable under the provisions of Section 2 shall immediately cease, and the Executive shall thereafter cease to be entitled to receive any amounts not already paid by the Company and he shall be required to return any payments previously received but relating to periods after the date of such breach; provided that the Executive shall be entitled to receive or retain any payment or benefit which is based upon a right which had fully accrued (including any stock options or similar rights which had fully vested) as of the date of such breachlaw.
(iii) The Executive understands that, in addition to the restrictions contained herein, pursuant to the terms of the Company's retirement benefit plan, the payment of certain retirement benefits may be affected should the Executive become employed by or perform work for a competitor or supplier of the Company.
Appears in 1 contract
Confidentiality, Non-Solicitation and Non-Competition. (a) Executive reaffirms and agrees to comply with the terms of the Agreement Regarding Confidential Information, Intellectual Property and Non- Solicitation of Employees signed by the ExecutiveExecutive on November 16, 1988, a copy of which is attached hereto as Exhibit B and incorporated herein by reference; provided, however, that if the Executive's active employment with the Company is terminated during 1998 by the Executive's resignation for any reason or by the Company terminating such active employment for any reason other than Cause, then paragraph 10 of the Agreement attached hereto as Exhibit B shall be deemed amended, effective as of such termination of employment, so that each reference to "competitor(s), supplier(s) or customer(s) of Donnelley" shall be deemed deleted and replaced by a reference to "Competitor(s)," as that term is defined in Section 6(b), below. Executive represents that he has delivered (or will as requestedwill, but no later than prior to the Leave Date, deliver) deliver all Company papers, books, records, computer programs, or like materials in his possession or control and all copies thereof to the Company, except that the Executive will be permitted to retain copies of documents describing the terms and conditions of those arrangements between the Executive and the Company which survive the termination of the Executive's active employment with the Company.
(b) In consideration of the covenants and agreements of the Company herein contained, the payments to be made by the Company pursuant to this AgreementAgreement after the Leave Date, the positions of trust and confidence he has occupied and currently occupies with the Company and the information of a highly sensitive and confidential nature he has received and will receive as a result of such positions, the Executive agrees that he will not, during the period commencing on the date of this Agreement and ending on the Termination Date, without the prior written consent of the Company, either directly or indirectly accept employment by (i) own, manage, operate, control or serve as a consultantparticipate in any manner in the ownership, agentmanagement, substantial stockholder, corporate officer, operation or director control of, or in be connected as an officer, employee, partner, director, principal, consultant, agent or otherwise with, or have any other representative capacity forfinancial interest in, or aid or assist any Competitor (as defined below). For purposes of this Section 6, "Competitor" shall mean any entity which is engaged conducts any business, venture or activity which competes with the business of the Company, or any group, division or subsidiary of the Company, as described in a line of business in which the Company (either directly or through a subsidiary or affiliate) is engaged Company's most recent Annual Report on Form 10-K filed with the Securities and Exchange Commission prior to the Leave Date and which (hereinafter referred to as the "Company Business") in the United States or any other geographic area where the Company Business is a competitor being conducted as of the Leave Date or (ii) recruit or otherwise seek to induce any employees of the Company or any of its subsidiaries, subsidiaries to terminate their employment or assist in the solicitation of violate any work agreement with or engage in any other activity in competition with the business then being conducted by duty to the Company or any of its subsidiaries. It is understood and agreed that, for the purposes of the foregoing provisions of this Section 6, (iii) no business, venture or activity shall be deemed to be a part of the Company Business unless not less than ten percent (10%) of the Company's consolidated gross sales or operating income is derived from, or not less than ten percent (10%) of the Company's consolidated assets are devoted to, such business, venture or activity; provided, however, that any business, venture or activity conducted by an entity (A) in which the Company holds an ownership interest as part of the 77 Capital portfolio of the Company or (B) for which the Executive has served as a director or in any other executive position as a representative of the Company, shall be deemed to be a part of the Company Business if at least ten percent (10%) of that particular entity's gross sales or operating income is derived from, or not less than ten percent (10%) of that particular entity's assets are devoted to, such business, venture or activity; and (iv) no business, venture or activity conducted by any entity which is not affiliated with the Company and by which the Executive is employed or in which the Executive is interested or with which the Executive is connected or associated shall be taken into account unless it is one from which ten percent (10%) or more of such entity's consolidated gross sales or operating income is derived, or to which ten percent (10%) or more of such entity's consolidated assets are devoted; provided, however, that if the actual gross sales or operating income or assets of such entity derived from or devoted to such business, venture or activity is equal to or in excess of ten percent (10%) of the most nearly comparable figure for the Company, such business, venture or activity of such entity shall be taken into account. Further, ownership of not more than five percent (5%) of the voting stock of any publicly held corporation shall not, of itself, constitute a violation of this Section 6. Executive acknowledges that the business conducted by the Company is worldwide and that it is reasonably necessary for the protection of the Company and its subsidiaries and their goodwill, in view of his knowledge of its and their worldwide operations, that he not provide to competitors of the Company or any of its subsidiaries anywhere in the world the benefit of his knowledge of the Company and its subsidiaries and its and their business. Executive further acknowledges that a breach by him of his agreements contained in this Section 4 6 would cause irreparable harm to the Company which is not adequately measurable by money damages and that, accordingly, in the event of such a breach, in addition to any and all other rights the Company may have, including, without limitation, rights at law and in equity, and the any right of the Company to terminate certain payments to the Executive, the Company shall be entitled to equitable remedies in the nature of injunctive relief to stop any existing breaches and to prohibit any future breaches.
(c) The following additional provisions shall apply to the covenants of the Executive contained in this Section 4.
(i) It is the intent and understanding of each party hereto that if, in action before any court or agency legally empowered to enforce the covenants contained in this Section 4, any term, restriction, covenant or promise contained herein is found to be unreasonable and for that reason unenforceable, then such term, restriction, covenant or promise shall be deemed modified to the extent necessary to make it enforceable by such court or agency.
(ii) In the event of any material breach by the Executive of any provision of this Section 4, the Company may, by written notice, elect to terminate its obligations under this Agreement. In such event, all payments and other benefits to the Executive otherwise required to be provided by the Company under the provisions of Section 2 shall immediately cease, and the Executive shall thereafter cease to be entitled to receive any amounts not already paid by the Company and he shall be required to return any payments previously received but relating to periods after the date of such breach; provided that the Executive shall be entitled to receive or retain any payment or benefit which is based upon a right which had fully accrued (including any stock options or similar rights which had fully vested) as of the date of such breach.
(iii) The Executive understands that, in addition to the restrictions contained herein, pursuant to the terms of the Company's retirement benefit plan, the payment of certain retirement benefits may be affected should the Executive become employed by or perform work for a competitor or supplier of the Company.
Appears in 1 contract
Samples: Leave of Absence Agreement (Donnelley R R & Sons Co)
