Confidentiality, Non-Solicitation and Non-Competition. (a) Except as otherwise required in Executive’s duties to the Company or as authorized in writing by the Company, Executive shall not at any time, either during or after Executive’s employment with the Company, disseminate, disclose, use, communicate or otherwise appropriate, either directly or indirectly, through any individual, person or entity, any Confidential Information (as defined below), and Executive shall retain all such information in trust in a fiduciary capacity for the sole use and benefit of the Company. Executive acknowledges that the Confidential Information is valuable, special, proprietary and unique to the Company, that the Company’s business depends on such Confidential Information, and that the Company wishes to protect such Confidential Information by keeping it secret and for the sole use and benefit of the Company. Executive shall take all steps necessary and all steps reasonably requested by Company to insure that all such Confidential Information is kept secret and confidential for the sole use and benefit of the Company. All records and other materials pertaining to the Confidential Information, whether or not developed by Executive, shall be and remain the exclusive property of the Company. Upon termination of Executive’s employment or at any other time that the Company in writing so requests, Executive shall promptly deliver to Company all materials concerning any Confidential Information and all copies of such materials and any other materials of the Company which are in Executive’s possession or under Executive’s control, and Executive shall not make or retain any copies or extracts of such materials. For purposes of this paragraph 5(a), Confidential Information means and includes all information known or used by the Company in the Company’s business and/or developed by or for the Company by any person, including Executive, which is not otherwise explicitly, consciously, properly, legally and generally known in any industry in which the Company is or may become engaged. Confidential Information does not include general skills and general knowledge of any industry obtained by reason of Executive’s association with the Company. Confidential Information specifically includes, but is not limited to, such information, whether now possessed or later obtained, concerning plans, marketing, sales and inventory methods, materials, processes, procedures, devices used by the Company, business forms, prices, suppliers, retail merchants with which the Company deals, organizations or other entities or persons associated with such retail merchants, contractors, representatives and customers of the Company, plans for the development of new products and services and expansion into new areas or markets, internal operations and any variations, purchasing policies, bidding practices or procedures, pricing policies, customer identities and lists, trade secrets, trade names, trademarks, servicemarks, copyrights, and other proprietary or confidential information of any type, together with all written, graphic and other materials relating to all or any part of the same. (b) During the period of Executive’s employment with the Company and for a period of one (1) year after the termination of Executive’s employment with the Company, for any reason whatsoever, Executive shall not, either directly or indirectly, himself or through or for any person or entity wherever located: (1) Solicit, attempt to hire or hire any person who is then employed by, is a consultant to, or is an agent of, the Company or who was within the prior four (4) months employed by, a consultant to, or an agent of, the Company. (2) Encourage, induce or attempt to induce, or aid, assist or abet any other party or person in encouraging, inducing or attempting to induce, any such employee, consultant or agent to alter or terminate his or her employment, consultation or agency with the Company. (3) Solicit any Company Customer (as defined below) to supply products or perform services for the Company Customer of a similar nature to those products provided or services performed by the Company in the Company’s business during Executive’s employment with the Company. For purposes of this paragraph 5(b)(3), the term “Company Customer” means any person or entity with whom Executive has been involved or in contact within the prior year and to or for whom the Company, within the prior year: (A) provided products or performed services, or entered into an agreement for the providing of products or performance of services; or (B) submitted a bid for, or otherwise negotiated for, the providing of products or the performing of services. The provisions of this paragraph 5(b) shall not apply to Executive after the termination of Executive’s employment with the Company if Executive’s employment is terminated by the Company without Cause (of which the Board shall be the sole judge) more than ninety (90) days prior to any Change in Control.
Appears in 2 contracts
Samples: Change of Control/Severance Agreement (Handleman Co /Mi/), Executive Employment Agreement (Handleman Co /Mi/)
Confidentiality, Non-Solicitation and Non-Competition. (a) Except as otherwise required in Executive’s duties to the Company or as authorized in writing by the Company, Executive shall not at any time, either during or after Executive’s employment with the Company, disseminate, disclose, use, communicate or otherwise appropriate, either directly or indirectly, through any individual, person or entity, any Confidential Information (as defined below), and Executive shall retain all such information in trust in a fiduciary capacity for the sole use and benefit of the Company. Executive acknowledges that the Confidential Information is valuable, special, proprietary and unique to the Company, that the Company’s business depends on such Confidential Information, and that the Company wishes to protect such Confidential Information by keeping it secret and for the sole use and benefit of the Company. Executive shall take all steps necessary and all steps reasonably requested by Company to insure that all such Confidential Information is kept secret and confidential for the sole use and benefit of the Company. All records and other materials pertaining to the Confidential Information, whether or not developed by Executive, shall be and remain the exclusive property of the Company. Upon termination of Executive’s employment or at any other time that the Company in writing so requests, Executive shall promptly deliver to Company all materials concerning any Confidential Information and all copies of such materials and any other materials of the Company which that are in Executive’s possession or under Executive’s control, and Executive shall not make or retain any copies or extracts of such materials. For purposes of this paragraph 5(a), Confidential Information means and includes all information known or used by the Company in the Company’s business and/or developed by or for the Company by any person, including Executive, which is not otherwise explicitly, consciously, properly, legally and generally known in any industry in which the Company is or may become engaged. Confidential Information does not include general skills and general knowledge of any industry obtained by reason of Executive’s association with the Company. Confidential Information specifically includes, but is not limited to, such information, whether now possessed or later obtained, concerning plans, marketing, sales and inventory methods, materials, processes, procedures, devices used by the Company, business forms, prices, suppliers, retail merchants with which the Company deals, organizations or other entities or persons associated with such retail merchants, contractors, representatives and customers of the Company, plans for the development of new products and services and expansion into new areas or markets, internal operations and any variations, purchasing policies, bidding practices or procedures, pricing policies, customer identities and lists, trade secrets, trade names, trademarks, servicemarks, copyrights, and other proprietary or confidential information of any type, together with all written, graphic and other materials relating to all or any part of the same.
(b) During the period of Executive’s employment with the Company and for a period of one (1) year after the termination of Executive’s employment with the Company, for any reason whatsoever, Executive shall not, either directly or indirectly, himself or through or for any person or entity wherever located:
(1) Solicit, attempt to hire or hire any person who is then employed by, is a consultant to, or is an agent of, the Company or who was within the prior four (4) months employed by, a consultant to, or an agent of, the Company.
(2) Encourage, induce or attempt to induce, or aid, assist or abet any other party or person in encouraging, inducing or attempting to induce, any such employee, consultant or agent to alter or terminate his or her employment, consultation or agency with the Company.
(3) Solicit any Company Customer (as defined below) to supply products or perform services for the Company Customer of a similar nature to those products provided or services performed by the Company in the Company’s business during Executive’s employment with the Company. For purposes of this paragraph 5(b)(35(b) (3), the term “Company Customer” means any person or entity with whom Executive has been involved or in contact within the prior year and to or for whom the Company, within the prior year: (A) provided products or performed services, or entered into an agreement for the providing of products or performance of services; or (B) submitted a bid for, or otherwise negotiated for, the providing of products or the performing of services. The provisions of this paragraph 5(b) shall not apply to Executive after the termination of Executive’s employment with the Company if Executive’s employment is terminated by the Company without Cause (of which the Board shall be the sole judge) more than ninety (90) days prior to any Change in Control.
(c) During the period of Executive’s employment with the Company and for a period of one (1) year after Executive’s termination of employment with the Company, for any reason whatsoever, Executive shall not, either directly or indirectly, himself or through or for any individual, person or entity wherever located:
(1) Engage in any activities, perform any services or conduct any businesses that are competitive with any business of the Company and that are the same or similar to the business of the Company conducted by Executive, at Executive’s direction or under Executive’s supervision during the term of Executive’s employment with the Company (“Executive’s Company Business”); or
(2) Be engaged by, employed by, consult with, own any capital stock of, or have any financial interest of any kind in, any individual, person or entity wherever located, which conducts a business that is competitive with any business of the Company and that is the same as or similar to Executive’s Company Business. Notwithstanding the foregoing, Executive may own, for investment purposes only, up to 5% of the stock of any publicly-traded entity whose stock is either listed on a national stock exchange or quoted in The NASDAQ National Market (if Executive is not otherwise affiliated with such entity). The provisions of this paragraph 5(c) shall not apply to Executive after the termination of Executive’s employment with the Company if Executive’s employment is terminated by the Company without Cause (of which the Board shall be the sole judge) more than ninety (90) days prior to any Change in Control.
(d) Executive acknowledges and agrees that the covenants and undertakings contained in this paragraph 5 of this Agreement relate to matters that are of a special, unique and extraordinary character and that a breach of any of the terms of this paragraph 5 constitutes a material breach by Executive under this Agreement and shall cause substantial injury to the Company and the Company’s business, and that the amount of such injury will be difficult, if not impossible, to estimate or determine and cannot be adequately compensated. Therefore, Executive acknowledges that in the event of his breach of any of the covenants or undertakings contained in this paragraph 5, the Entity (Company) shall be entitled, in addition to all other rights and remedies available under applicable law, to terminate immediately its obligation to pay to Executive the Severance Amount, the other benefits and payments set forth in paragraphs 3(b) and (d), and the fees, costs and expenses set forth in paragraph 11; and if Executive shall have received any portion of the Severance Amount or such other benefits and payments or such fees, costs and expenses, Executive shall be obligated and required to forthwith remit the Severance Amount and other benefits or payments or fees, costs and expenses theretofore made to or on behalf of Executive by the Entity (Company).
Appears in 1 contract
Samples: Change of Control/Severance Agreement (Handleman Co /Mi/)
Confidentiality, Non-Solicitation and Non-Competition. (a) Except as otherwise required in Executive’s duties to the Company or as authorized in writing by the Company, Executive shall not at any time, either during or after Executive’s employment with the Company, disseminate, disclose, use, communicate or otherwise appropriate, either directly or indirectly, through any individual, person or entity, any Confidential Information (as defined below), and Executive shall retain all such information in trust in a fiduciary capacity for the sole use and benefit of the Company. Executive acknowledges that the Confidential Information is valuable, special, proprietary and unique to the Company, that the Company’s business depends on such Confidential Information, and that the Company wishes to protect such Confidential Information by keeping it secret and for the sole use and benefit of the Company. Executive shall take all steps necessary and all steps reasonably requested by Company to insure that all such Confidential Information is kept secret and confidential for the sole use and benefit of the Company. All records and other materials pertaining to the Confidential Information, whether or not developed by Executive, shall be and remain the exclusive property of the Company. Upon termination of Executive’s employment or at any other time that the Company in writing so requests, Executive shall promptly deliver to Company all materials concerning any Confidential Information and all copies of such materials and any other materials of the Company which are in Executive’s possession or under Executive’s control, and Executive shall not make or retain any copies or extracts of such materials. For purposes of this paragraph 5(a), Confidential Information means and includes all information known or used by the Company in the Company’s business and/or developed by or for the Company by any person, including Executive, which is not otherwise explicitly, consciously, properly, legally and generally known in any industry in which the Company is or may become engaged. Confidential Information does not include general skills and general knowledge of any industry obtained by reason of Executive’s association with the Company. Confidential Information specifically includes, but is not limited to, such information, whether now possessed or later obtained, concerning plans, marketing, sales and inventory methods, materials, processes, procedures, devices used by the Company, business forms, prices, suppliers, retail merchants with which the Company deals, organizations or other entities or persons associated with such retail merchants, contractors, representatives and customers of the Company, plans for the development of new products and services and expansion into new areas or markets, internal operations and any variations, purchasing policies, bidding practices or procedures, pricing policies, customer identities and lists, trade secrets, trade names, trademarks, servicemarks, copyrights, and other proprietary or confidential information of any type, together with all written, graphic and other materials relating to all or any part of the same.
(b) During the period of Executive’s employment with the Company and for a period of one (1) year after the termination of Executive’s employment with the Company, for any reason whatsoever, Executive shall not, either directly or indirectly, himself or through or for any person or entity wherever located:
(1) Solicit, attempt to hire or hire any person who is then employed by, is a consultant to, or is an agent of, the Company or who was within the prior four (4) months employed by, a consultant to, or an agent of, the Company.
(2) Encourage, induce or attempt to induce, or aid, assist or abet any other party or person in encouraging, inducing or attempting to induce, any such employee, consultant or agent to alter or terminate his or her employment, consultation or agency with the Company.
(3) Solicit any Company Customer (as defined below) to supply products or perform services for the Company Customer of a similar nature to those products provided or services performed by the Company in the Company’s business during Executive’s employment with the Company. For purposes of this paragraph 5(b)(3), the term “Company Customer” means any person or entity with whom Executive has been involved or in contact within the prior year and to or for whom the Company, within the prior year: (A) provided products or performed services, or entered into an agreement for the providing of products or performance of services; or (B) submitted a bid for, or otherwise negotiated for, the providing of products or the performing of services. The provisions of this paragraph 5(b) shall not apply to Executive after the termination of Executive’s employment with the Company if Executive’s employment is terminated by the Company without Cause (of which the Board shall be the sole judge) more than ninety (90) days prior to any Change in Control.
(c) During the period of Executive’s employment with the Company and for a period of one (1) year after Executive’s termination of employment with the Company, for any reason whatsoever, Executive shall not, either directly or indirectly, himself or through or for any individual, person or entity wherever located:
(1) Engage in any activities, perform any services or conduct any businesses which are competitive with any business of the Company and which are the same or similar to the business of the Company conducted by Executive, at Executive’s direction or under Executive’s supervision during the term of Executive’s employment with the Company (“Executive’s Company Business”); or
(2) Be engaged by, employed by, consult with, own any capital stock of, or have any financial interest of any kind in, any individual, person or entity wherever located, which conducts a business which is competitive with any business of the Company and which is the same as or similar to Executive’s Company Business. Notwithstanding the foregoing, Executive may own, for investment purposes only, up to 5% of the stock of any publicly-traded entity whose stock is either listed on a national stock exchange quoted in The Nasdaq National Market (if Executive is not otherwise affiliated with such entity). The provisions of this paragraph 5(c) shall not apply to Executive after the termination of Executive’s employment with the Company if Executive’s employment is terminated by the Company without Cause (of which the Board shall be the sole judge) more than ninety (90) days prior to any Change in Control.
(d) Executive acknowledges and agrees that the covenants and undertakings contained in this paragraph 5 of this Agreement relate to matters which are of a special, unique and extraordinary character and that a breach of any of the terms of this paragraph 5 constitutes a material breach by Executive under this Agreement and shall cause substantial injury to the Company and the Company’s business, and that the amount of such injury will be difficult, if not impossible, to estimate or determine and cannot be adequately compensated. Therefore, Executive acknowledges that in the event of his breach of any of the covenants or undertakings contained in this paragraph 5, the Entity (Company) shall be entitled, in addition to all other rights and remedies available under applicable law, to terminate immediately its obligation to pay to Executive the Severance Amount, the other benefits and payments set forth in paragraphs 3(b) and (d), and the fees, costs and expenses set forth in paragraph 11; and if Executive shall have received any portion of the Severance Amount or such other benefits and payments or such fees, costs and expenses, Executive shall be obligated and required to forthwith remit the Severance Amount and other benefits or payments or fees, costs and expenses theretofore made to or on behalf of Executive by the Entity (Company).
Appears in 1 contract
