Confidentiality; Noncompetition. (a) During the term of your employment and for an additional period of five years after you are no longer employed by the Company, you will not reveal, divulge or make known to any individual, partnership, joint venture, corporation or other business entity (other than the Company or its affiliates) or use for your own account any customer lists, trade secrets or any confidential information of any kind (“Protected Information”) used by the Company or any of its commonly controlled affiliates in the conduct of the Company’s business and made known to you by reason of your employment with the Company or any of its affiliates (whether or not developed, devised or otherwise created in whole or in part by your efforts); provided, that Protected Information shall not include information that shall become known to the public or the trade without violation of this Section 8(a); and provided, further, that you shall not violate this Section 8(a) if Protected Information is disclosed by you at the direction of the Company or if you are required to provide Protected Information in any legal proceeding or by order of any court. (b) During the term of your employment and for an additional period of one year after you are no longer employed by the Company, you will not, directly or indirectly, engage in a Competitive Business, including owning or controlling an interest in (except as a passive investor owning less than two percent (2%) of the equity securities of a publicly-owned company), or acting as director, officer or employee of, or consultant to, any individual, partnership, joint venture, corporation or other business entity known to you to be engaged in a Competitive Business. “Competitive Business” shall mean the development of therapeutics for spinal cord injuries, multiple sclerosis and other central nervous system conditions for which the Company is actively seeking to develop therapeutics during the term of this Agreement; provided, however, that notwithstanding the aforesaid, you shall not be prohibited from acting in any of the aforesaid capacities for or with respect to any subsidiary, division, affiliate or unit (each, a “Unit”) of an entity if that Unit itself is not engaged in a Competitive Business, irrespective of whether some other Unit of such entity engages in such competition (as long as you do not engage in a Competitive Business for such other Unit). (c) During the term of your employment and for an additional period of one year after you are no longer employed by the Company, you shall not knowingly employ or solicit, encourage or induce any person (except your spouse, if applicable) who at any time within 90 days prior to the termination of your employment shall have been an employee of the Company or any of its commonly controlled affiliates, to become employed by or associated with any individual, partnership, joint venture, corporation or other business entity other than the Company, and you shall not knowingly approach any such employee for such purpose or authorize or knowingly approve the taking of such actions by any other individual, partnership, joint venture, corporation or other business entity or knowingly assist any such individual, partnership, joint venture, corporation or other business entity in taking such action. (d) You acknowledge that the provisions of this Section 8 are reasonable and necessary for the protection of the Company and that each provision, and the period or periods of time and types and scope of restrictions on the activities specified herein are, and are intended to be divisible. In the event that any provision of this Agreement, including any sentence, clause or part hereof, shall be deemed contrary to law or invalid or unenforceable in any respect by a court of competent jurisdiction, the remaining provisions shall not be affected, but shall, subject to the discretion of such court, remain in full force and effect and any invalid and unenforceable provisions shall be deemed, without further action on the part of the parties hereto, modified, amended and limited to the extent necessary to render the same valid and enforceable. (e) You acknowledge that the Company will be irrevocably damaged if the covenants contained herein are not specifically enforced. Accordingly, you agree that, in addition to any other relief to which the Company may be entitled, the Company shall be entitled to seek and obtain injunctive relief from a court of competent jurisdiction for the purposes of restraining you from any actual or threatened breach of such covenants.
Appears in 3 contracts
Samples: Employment Agreement (Acorda Therapeutics Inc), Employment Agreement (Acorda Therapeutics Inc), Employment Agreement (Acorda Therapeutics Inc)
Confidentiality; Noncompetition. (a) During the term of your employment and for an additional period of five years after you are no longer employed by the Company, you will not reveal, divulge or make known to any individual, partnership, joint venture, corporation or other business entity (other than Providing that the Company or its affiliates) or use for your own account any customer listsis funded prior to June 30, trade secrets or any confidential information of any kind (“Protected Information”) used by 2004, the Company or any of its commonly controlled affiliates in the conduct of the Company’s business and made known to you by reason of your employment with the Company or any of its affiliates (whether or not developed, devised or otherwise created in whole or in part by your efforts); provided, that Protected Information Employee shall not include information that shall become known to the public or the trade without violation of this Section 8(a); and provided, further, that you shall not violate this Section 8(a) if Protected Information is disclosed by you at the direction of the Company or if you are required to provide Protected Information in any legal proceeding or by order of any court.
(b) During the term of your employment and for an additional period of one year after you are no longer employed by the Company, you will not, directly or indirectly, engage in a Competitive Business, including owning or controlling an interest in at any time (except as a passive investor owning less than two percent (2%) of the equity securities of a publicly-owned company), or acting as director, officer or employee of, or consultant to, any individual, partnership, joint venture, corporation or other business entity known to you to be engaged in a Competitive Business. “Competitive Business” shall mean the development of therapeutics for spinal cord injuries, multiple sclerosis and other central nervous system conditions for which the Company is actively seeking to develop therapeutics whether during the term of this AgreementAgreement or thereafter), disclose any Confidential Information (defined below) to any person, association, or other entity (other than the Affiliated Companies, as defined below), or use, or permit or assist any person, association, or other entity (other than the Affiliated Companies) to use, any Confidential Information, excepting only: (i) Confidential Information which (A) is then generally available to or obtainable by the public and which did not become so available or obtainable through the breach of any provision of this Agreement by the Employee, or (B) is obtained by the Employee on a non-confidential basis from a source other than an Affiliated Company or any agent or other representative of an Affiliated Company and such source had the right to disclose such Confidential Information to the Employee without violating any legal, contractual, fiduciary, or other obligation; providedand (ii) disclosures required by applicable law. Upon termination of his employment by the Employer (for any reason), howeverthe Employee shall immediately deliver to the Employer all documents and other materials containing any Confidential Information which are in his possession or under his control. During the Restricted Period (defined below), the Employee shall not, directly or indirectly (whether individually or as a shareholder or other owner, partner, member, director, officer, employee, consultant, creditor or agent of any person, association, or other entity):
(a) Enter into, engage in, or promote or assist (financially or otherwise), directly or indirectly, any business which competes with the business of any Affiliated Company (the "Business") anywhere in the Restricted Territory, provided that notwithstanding the aforesaid, you foregoing shall not be prohibited preclude the Employee from acting owning less than 1% of the outstanding capital stock of any corporation whose shares are publicly traded on a national securities exchange or system;
(b) Solicit or attempt to solicit business in competition with the Business from any person or entity (in any of the aforesaid capacities for or with respect to any subsidiary, division, affiliate or unit (eachsuch case, a “Unit”) "Restricted Company"), or interfere or attempt to interfere with any relationship of an entity if that Unit itself is not engaged in a Competitive Business, irrespective of whether some other Unit of such entity engages in such competition (as long as you do not engage in a Competitive Business for such other Unit).any Affiliated Company with any Restricted Company;
(c) During the term Induce or encourage any employee, officer, director, agent, supplier, or independent contractor of your employment and for an additional period of one year after you are no longer employed by the any Affiliated Company to terminate its relationship with any such Affiliated Company, you shall not knowingly employ or solicitotherwise interfere or attempt to interfere in any way with any Affiliated Company's relationships with its employees, encourage officers, directors, agents, suppliers, independent contractors, or induce others;
(d) Employ or engage any person (except your spousewho, if applicable) who at any time within 90 days prior the one-year period immediately preceding such employment or engagement, was an employee, officer, director, or agent of any Affiliated Company; or
(e) Make any statement (oral or written) or take any other action which would tend to disparage or diminish the termination reputation of your employment any Affiliated Company. For purposes of this Agreement:
(i) Affiliated Companies" shall have been an employee include the Company, the Employer and all subsidiaries or affiliates of the Company or any of its commonly controlled affiliates, to become employed by or associated with any individual, partnership, joint venture, corporation or other business entity other than the Company, and you shall not knowingly approach any such employee for such purpose or authorize or knowingly approve the taking of such actions by any other individual, partnership, joint venture, corporation or other business entity or knowingly assist any such individual, partnership, joint venture, corporation or other business entity in taking such action.
(d) You acknowledge that the provisions of this Section 8 are reasonable and necessary for the protection of the Company and that each provision, and the period or periods of time and types and scope of restrictions on the activities specified herein are, and are intended to be divisible. In the event that any provision of this Agreement, including any sentence, clause or part hereof, shall be deemed contrary to law or invalid or unenforceable in any respect by a court of competent jurisdiction, the remaining provisions shall not be affected, but shall, subject to the discretion of such court, remain in full force and effect and any invalid and unenforceable provisions shall be deemed, without further action on the part of the parties hereto, modified, amended and limited to the extent necessary to render the same valid and enforceable.
(e) You acknowledge that the Company will be irrevocably damaged if the covenants contained herein are not specifically enforced. Accordingly, you agree that, in addition to any other relief to which the Company may be entitled, the Company shall be entitled to seek and obtain injunctive relief from a court of competent jurisdiction for the purposes of restraining you from any actual or threatened breach of such covenants.Employer;
Appears in 3 contracts
Samples: Employment and Noncompetition Agreement (Vistula Communications Services Inc), Employment and Noncompetition Agreement (Vistula Communications Services Inc), Employment and Noncompetition Agreement (Vistula Communications Services Inc)
Confidentiality; Noncompetition. (a) During 10.1 The Company and the term of your employment and for an additional period of five years after you are no longer employed Executive acknowledge that the services to be performed by the CompanyExecutive under this Agreement are unique and extraordinary and, you as a result of such employment, the Executive will not reveal, divulge or make known to any individual, partnership, joint venture, corporation or other business entity (other than the Company or its affiliates) or use for your own account any customer lists, trade secrets or any be in possession of confidential information relating to the business practices of the Company. The term “confidential information” shall mean any kind and all information (“Protected Information”verbal and written) used by relating to the Company or any of its commonly controlled affiliates affiliates, or any of their respective activities, other than such information which can be shown by the Executive to be in the conduct public domain (such information not being deemed to be in the public domain merely because it is embraced by more general information which is in the public domain) other than as the result of the Executive’s breach of the provisions of this Section 10.1, including, but not limited to, information relating to: trade secrets (as defined for purposes of Indiana law), personnel lists, financial information, research projects, services used, pricing, customers, customer lists and prospects, product sourcing, marketing and selling and servicing. The Executive agrees that he will not, during and after the termination of his employment, directly or indirectly, use, communicate, disclose or disseminate to any person, firm or corporation any confidential information regarding the clients, customers or business practices of the Company acquired by the Executive during his employment by Company, without the prior consent of the Company.
10.2 The Executive hereby agrees that he shall not, during the period of his employment and for a period of two (2) years following such employment, directly or indirectly, within any county (or adjacent county) in any State within the United States or territory outside the United States in which the Company is engaged in business during the period of the Executive’s employment or on the date of termination of the Executive’s employment, engage, have an interest in or render any services to any business (whether as owner, manager, operator, licensor, licensee, lender, partner, stockholder, joint venturer, Executive, consultant or otherwise) competitive with the Company’s principal business activities. Notwithstanding the foregoing, Executive shall be permitted to own (as a passive investment) not more than five percent (5%) of any class of securities which is publicly traded; provided, however that such five percent (5%) limitation shall apply to the aggregate holdings of Executive and those of all other persons and entities with whom Executive has agreed to act for the purpose of acquiring, holding, voting or disposing of such securities.
10.3 The Executive hereby agrees that he shall not, during the period of his employment and for a period of two (2) years following such employment, directly or indirectly, take any action which constitutes an interference with or a disruption of any of the Company’s business and made known to you by reason of your employment with activities including, without limitation, the Company or any of its affiliates (whether or not developed, devised or otherwise created in whole or in part by your efforts); provided, that Protected Information shall not include information that shall become known to the public or the trade without violation of this Section 8(a); and provided, further, that you shall not violate this Section 8(a) if Protected Information is disclosed by you at the direction solicitation of the Company Company’s customers, or if you are required to provide Protected Information in any legal proceeding or by order persons listed on the personnel lists of any court.
(b) During the term of your employment and for an additional period of one year after you are no longer employed by the Company, you will not, directly or indirectly, engage in a Competitive Business, including owning or controlling an interest in (except as a passive investor owning less than two percent (2%) of the equity securities of a publicly-owned company), or acting as director, officer or employee of, or consultant to, any individual, partnership, joint venture, corporation or other business entity known to you to be engaged in a Competitive Business. “Competitive Business” shall mean the development of therapeutics for spinal cord injuries, multiple sclerosis and other central nervous system conditions for which the Company is actively seeking to develop therapeutics At no time during the term of this Agreement; provided, howeveror thereafter shall the Executive directly or indirectly, disparage the commercial, business or financial reputation of the Company.
10.4 For purposes of clarification, but not of limitation, the Executive hereby acknowledges and agrees that notwithstanding the aforesaidprovisions of Sections 10.2 and 10.3 above shall serve as a prohibition against him, you shall not be prohibited from acting during the period referred to therein, directly or indirectly, hiring, offering to hire, enticing, soliciting or in any other manner persuading or attempting to persuade any officer, executive, agent, lessor, lessee, licensor, licensee or customer who has been previously contacted by either a representative of the aforesaid capacities for or with respect to any subsidiaryCompany, division, affiliate or unit including the Executive (each, a “Unit”) but only those existing during the time of an entity if that Unit itself is not engaged in a Competitive Business, irrespective of whether some other Unit of such entity engages in such competition (as long as you do not engage in a Competitive Business for such other Unit).
(c) During the term of your Executive’s employment and for an additional period of one year after you are no longer employed by the Company, you shall not knowingly employ or solicit, encourage or induce any person (except your spouse, if applicable) who at any time within 90 days prior to the termination of your his employment), to discontinue or alter his, her or its relationship with the Company.
10.5 Upon the termination of the Executive’s employment shall have been an employee for any reason whatsoever, all documents, records, notebooks, equipment, price lists, specifications, programs, customer and prospective customer lists and other materials which refer or relate to any aspect of the business of the Company or any of its commonly controlled affiliates, to become employed by or associated with any individual, partnership, joint venture, corporation or other business entity other than which are in the Company, and you shall not knowingly approach any such employee for such purpose or authorize or knowingly approve the taking of such actions by any other individual, partnership, joint venture, corporation or other business entity or knowingly assist any such individual, partnership, joint venture, corporation or other business entity in taking such action.
(d) You acknowledge that the provisions of this Section 8 are reasonable and necessary for the protection possession of the Company and that each provision, and the period or periods of time and types and scope of restrictions on the activities specified herein are, and are intended to be divisible. In the event that any provision of this AgreementExecutive, including any sentence, clause or part hereofall copies thereof, shall be deemed contrary promptly returned to law the Company.
10.6 After the Executive’s employment terminates and for a period of one (1) year thereafter, he shall provide such assistance as may be reasonably requested by the Company in order to assist the Company in transitioning his duties and responsibilities to his successor or invalid or unenforceable in any respect by a court of competent jurisdiction, the remaining provisions to others. This assistance shall not be affected, but shall, subject require the Executive to the discretion of such court, remain in full force and effect and any invalid and unenforceable provisions shall be deemed, without further action on the part of the parties hereto, modified, amended and limited to the extent necessary to render the same valid and enforceableexpend more than four (4) hours per month.
(e) You acknowledge that the Company will be irrevocably damaged if the covenants contained herein are not specifically enforced. Accordingly, you agree that, in addition to any other relief to which the Company may be entitled, the Company shall be entitled to seek and obtain injunctive relief from a court of competent jurisdiction for the purposes of restraining you from any actual or threatened breach of such covenants.
Appears in 2 contracts
Samples: Employment Agreement (Brightpoint Inc), Employment Agreement (Brightpoint Inc)
Confidentiality; Noncompetition. (a) During the term of your employment and for an additional period of five years after you are no longer employed by the Company, you will not reveal, divulge or make known to any individual, partnership, joint venture, corporation or other business entity (other than the Company or its affiliates) or use for your own account any customer lists, trade secrets or any confidential information of any kind (“Protected Information”) used by the Company or any of its commonly controlled affiliates in the conduct of the Company’s business and made known to you by reason of your employment with the Company or any of its affiliates (whether or not developed, devised or otherwise created in whole or in part by your efforts); provided, that Protected Information shall not include information that shall become known to the public or the trade without violation of this Section 8(a); and provided, further, that you shall not violate this Section 8(a) if Protected Information is disclosed by you at the direction of the Company or if you are required to provide Protected Information in any legal proceeding or by order of any court.
(b) During the term of your employment and for an additional period of one year after you are no longer employed by the Company, you will not, directly or indirectly, engage in a Competitive Business, including owning or controlling an interest in (except as a passive investor owning less than two percent (2%) of the equity securities of a publicly-owned company), or acting as director, officer or employee of, or consultant to, any individual, partnership, joint venture, corporation or other business entity known to you to be engaged in a Competitive Business. “Competitive Business” shall mean the development of therapeutics for spinal cord injuries, multiple sclerosis and other central nervous system conditions for which the Company is actively seeking to develop therapeutics during the term of this Agreement; provided, however, that notwithstanding the aforesaidforesaid, you shall not be prohibited from acting in any of the aforesaid capacities for or with respect to any subsidiary, division, affiliate or unit (each, a “Unit”) of an entity if that Unit itself is not engaged in a Competitive Business, irrespective of whether some other Unit of such entity engages in such competition (as long as you do not engage in a Competitive Business for such other Unit).
(c) During the term of your employment and for an additional period of one year after you are no longer employed by the Company, you shall not knowingly employ or solicit, encourage or induce any person (except your spouse, if applicable) who at any time within 90 days prior to the termination of your employment shall have been an employee of the Company or any of its commonly controlled affiliates, to become employed by or associated with any individual, partnership, joint venture, corporation or other business entity other than the Company, and you shall not knowingly approach any such employee for such purpose or authorize or knowingly approve the taking of such actions by any other individual, partnership, joint venture, corporation or other business entity or knowingly assist any such individual, partnership, joint venture, corporation or other business entity in taking such action.
(d) You acknowledge that the provisions of this Section 8 are reasonable and necessary for the protection of the Company and that each provision, and the period or periods of time and types and scope of restrictions on the activities specified herein are, and are intended to be divisible. In the event that any provision of this Agreement, including any sentence, clause or part hereof, shall be deemed contrary to law or invalid or unenforceable in any respect by a court of competent jurisdiction, the remaining provisions shall not be affected, but shall, subject to the discretion of such court, remain in full force and effect and any invalid and unenforceable provisions shall be deemed, without further action on the part of the parties hereto, modified, amended and limited to the extent necessary to render the same valid and enforceable.
(e) You acknowledge that the Company will be irrevocably damaged if the covenants contained herein are not specifically enforced. Accordingly, you agree that, in addition to any other relief to which the Company may be entitled, the Company shall be entitled to seek and obtain injunctive relief from a court of competent jurisdiction for the purposes of restraining you from any actual or threatened breach of such covenants.
Appears in 2 contracts
Samples: Employment Agreement (Acorda Therapeutics Inc), Employment Agreement (Acorda Therapeutics Inc)
Confidentiality; Noncompetition. (a) During The Employer and the term Employee acknowledge that the services to be performed by the Employee under this Agreement are unique and extraordinary and, as a result of your employment and for an additional period such employment, the Employee will be in possession of five years after you are no longer employed by confidential information relating to the business practices of the Company, you will not revealInventory Management Systems, divulge or make known Inc. ("IMSI") and the Parent. The term "confidential information" shall mean any and all information (verbal and written) relating to any individualthe Company, partnershipIMSI, joint venture, corporation or other business entity (other than the Company or its affiliates) or use for your own account any customer lists, trade secrets or any confidential information of any kind (“Protected Information”) used by the Company Parent or any of its commonly controlled affiliates in the conduct of the Company’s business and made known to you by reason of your employment with the Company their respective affiliates, or any of its affiliates their respective activities, other than such information which can be shown by the Employee to be in the public domain (whether or such information not developed, devised or otherwise created being deemed to be in whole or the public domain merely because it is embraced by more general information which is in part by your effortsthe public domain) other than as the result of breach of the provisions of this subparagraph 6(a); provided, that Protected Information shall not include information that shall become known . Subject to the public or the trade without violation last sentence of this Section 8(asubparagraph 6(a); and provided, furtherthe Employee agrees that he will not, that you shall not violate this Section 8(a) if Protected Information is disclosed by you at the direction of the Company any time during his employment or if you are required to provide Protected Information in any legal proceeding or by order of any court.
(b) During the term of your employment and for an additional a period of one (1) year after you are no longer employed by the Company, you will notfollowing such employment, directly or indirectly, engage in a Competitive Businessuse, including owning communicate, disclose or controlling an interest in (except as a passive investor owning less than two percent (2%) of the equity securities of a publicly-owned company), or acting as director, officer or employee of, or consultant to, any individual, partnership, joint venture, corporation or other business entity known to you to be engaged in a Competitive Business. “Competitive Business” shall mean the development of therapeutics for spinal cord injuries, multiple sclerosis and other central nervous system conditions for which the Company is actively seeking to develop therapeutics during the term of this Agreement; provided, however, that notwithstanding the aforesaid, you shall not be prohibited from acting in any of the aforesaid capacities for or with respect disseminate to any subsidiaryperson, divisionfirm or corporation any confidential information regarding the clients, affiliate customers or unit (each, a “Unit”) business practices of an entity if that Unit itself is not engaged in a Competitive Business, irrespective of whether some other Unit of such entity engages in such competition (as long as you do not engage in a Competitive Business for such other Unit).
(c) During the term of your employment and for an additional period of one year after you are no longer employed by the Company, you IMSI or Parent and that Employee agrees that all confidential information shall not knowingly employ or solicit, encourage or induce any person (except your spouse, if applicable) who at any time within 90 days prior to be the termination of your employment shall have been an employee sole property of the Company or any of its commonly controlled affiliates, to become employed by or associated with any individual, partnership, joint venture, corporation or other business entity other than the Company, and you shall not knowingly approach any such employee for such purpose or authorize or knowingly approve the taking of such actions by any other individual, partnership, joint venture, corporation or other business entity or knowingly assist any such individual, partnership, joint venture, corporation or other business entity in taking such action.
(d) You acknowledge that the provisions of this Section 8 are reasonable and necessary for the protection of the Company and that each provision, and the period or periods of time and types and scope of restrictions on the activities specified herein are, and are intended to be divisible. In the event that Employee is requested or becomes legally compelled (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process) to disclose any provision of this Agreementconfidential information or the fact that the confidential information has been made available to you, including any sentence, clause or part hereof, shall be deemed contrary to law or invalid or unenforceable in any respect by a court of competent jurisdiction, Employee will provide the remaining provisions shall not be affected, but shall, subject to the discretion Company with prompt written notice of such court, remain in full force and effect and any invalid and unenforceable provisions shall be deemed, without further action on the part of the parties hereto, modified, amended and limited to the extent necessary to render the same valid and enforceable.
(erequest(s) You acknowledge so that the Company will be irrevocably damaged if may seek a protective order or other appropriate remedy and/or waive compliance with the covenants contained herein are not specifically enforced. Accordingly, you agree that, in addition to any other relief to which the Company may be entitled, the Company shall be entitled to seek and obtain injunctive relief from a court of competent jurisdiction for the purposes of restraining you from any actual or threatened breach of such covenantsprovisions hereof.
Appears in 2 contracts
Samples: Employment Agreement (Take Two Interactive Software Inc), Employment Agreement (Take Two Interactive Software Inc)
Confidentiality; Noncompetition. (a) During The Employer and the term of your employment and for an additional period of five years after you are no longer employed Employee acknowledge that the services to be performed by the CompanyEmployee under this Agree-ment are unique and extraordinary and, you as a result of such employment, the Employee will not reveal, divulge or make known to any individual, partnership, joint venture, corporation or other business entity (other than the Company or its affiliates) or use for your own account any customer lists, trade secrets or any be in possession of confidential information relating to the business practices of the Company. The term "confidential information" shall mean any kind and all information (“Protected Information”oral and written) used by relating to the Company or any of its commonly controlled affiliates in the conduct of the Company’s business and made known to you by reason of your employment with the Company affiliates, or any of its affiliates their respective activities, other than such information which can be shown by the Employee to be in the public domain (whether such information not being deemed to be in the public domain merely because it is embraced by more general information which is in the public domain) other than as the result of breach of the provisions of this Section 7(a), including, but not limited to, information relating to: trade secrets, personnel lists, compensation of employees, financial information, research projects, services used, pricing, customers, customer lists and prospects, product sourcing, marketing and selling and servicing. The Employee agrees that he will not, during or not developedafter his termination or expiration of employment hereunder, devised directly or otherwise created in whole indirectly, use, communicate, disclose or in part disseminate to any person, firm or corporation any confidential information regarding the clients, customers or business prac-tices of the Company acquired by your efforts); providedthe Employee during his employ-ment by Employer, that Protected Information without the prior written consent of Employer. Anything herein to the contrary notwithstanding, the provisions of this Section 7(a) shall not include apply (i) when disclosure is required by law or by any court, arbitrator, mediator or administrative or legislative body (including any committee thereof) with actual or apparent jurisdiction to order the Employee to disclose or make accessible any information, (ii) with respect to any other litigation, arbitration or mediation involving this Agreement, including, but not limited to, the enforcement of this Agreement, (iii) as to information that shall become becomes generally known to the public or within the relevant trade without or industry other than due to the Employee’s violation of this Section 8(aor (iv) as to information that is or becomes available to the Employee on a non-confidential basis from a source which is entitled to disclose it to the Employee.
(b) If permitted by the New York Canon of Ethics, the Employee hereby agrees that he shall not, during the period of his employment and for a period of one (1) year following such employment, directly or indirectly, within any county (or adjacent county) in any State within the United States or territory outside the United States in which the Company is engaged in business during the period of the Employee's employment or on the date of termination of the Employee's employment, engage, have an interest in or render any services to any business (whether as owner, manager, operator, licensor, licensee, lender, partner, stockholder, joint venturer, employee, consultant or otherwise) competitive with the Company's business activities.
(c) The Employee hereby agrees that he shall not, during the period of his employment and for a period of one (1) year following such employment, directly or indirectly solicit any of the Company's customers, or persons listed on the personnel lists of the Company. Except as required by law or legal process, at no time during the Term, or thereafter shall the Employee, directly or indirectly, disparage the commercial, business or financial reputation of the Company. Except as required by law or legal process, at no time during the Term, or thereafter shall the Employer or any executive officer of the Company, directly or indirectly, disparage the professional, business, financial or personal reputation of the Employee.
(d) For purposes of clarification, but not of limitation, the Employee hereby acknowledges and agrees that the provisions of subparagraphs 7(b) and (c) above shall serve as a prohibition against him, during the period referred to therein, directly or indirectly, hiring, offering to hire, enticing, soliciting or in any other manner persuading or attempting to persuade any officer, employee, agent, lessor, lessee, licensor, licensee or customer who has been previously contacted by either a representative of the Company, including the Employee, (but only those suppliers existing during the time of the Employee's employment by the Company, or at the termination of his employment); , to discontinue or alter his, her or its relationship with the Company.
(e) Upon the termination of the Employee's employment for any reason whatsoever, all documents, records, notebooks, equipment, employee lists, price lists, specifications, programs, customer and providedprospective customer lists and other materials which refer or relate to any aspect of the business of the Company which are in the possession of the Employee including all copies thereof, furthershall be promptly returned to the Company. Anything to the contrary notwithstanding, that you shall not violate nothing in this Section 8(a7(e) if Protected Information is disclosed by you shall prevent the Employee from retaining a home computer and security system, papers and other materials of a personal nature, including personal diaries, calendars and Rolodexes, information relating to the Employee’s compensation or relating to reimbursement of expenses, information that the Employee reasonably believe may be needed for tax purposes, and copies of plans, programs and agreements relating to the Employee’s employment.
(f) The products and proceeds of Employees services hereunder that Employee may acquire, obtain, develop or create during the term of this Agreement, or that are otherwise made at the direction of the Company or if you are required to provide Protected Information in any legal proceeding or by order with the use of any court.
(b) During the term of your employment and for an additional period of one year after you are no longer employed by the Company’s or its affiliates’ facilities or materials, you will notincluding, directly or indirectlybut not limited to, engage in a Competitive Businessall materials, including owning or controlling an interest in ideas, concepts, formats, suggestions, developments, packages, programs and other intellectual properties (except as a passive investor owning less than two percent (2%) of the equity securities of a publicly-owned companycollectively, “Works”), or acting shall be considered a "work made for hire," as directorthat term is defined under the United States Copyright Act, officer or employee of, or consultant to, any individual, partnership, joint venture, corporation or other business entity known to you to and Employee shall be engaged in a Competitive Business. “Competitive Business” shall mean the development of therapeutics for spinal cord injuries, multiple sclerosis and other central nervous system conditions for which the Company is actively seeking to develop therapeutics during the term of this Agreement; provided, however, that notwithstanding the aforesaid, you shall not be prohibited from acting in any of the aforesaid capacities for or with respect to any subsidiary, division, affiliate or unit (each, a “Unit”) of an entity if that Unit itself is not engaged in a Competitive Business, irrespective of whether some other Unit of such entity engages in such competition (as long as you do not engage in a Competitive Business for such other Unit).
(c) During the term of your employment and for an additional period of one year after you are no longer employed by the Company, you shall not knowingly employ or solicit, encourage or induce any person (except your spouse, if applicable) who at any time within 90 days prior to the termination of your employment shall have been considered an employee for hire of the Company or any of its commonly controlled affiliates, to become employed by or associated with any individual, partnership, joint venture, corporation or other business entity other than the Company, and you all rights in and to the Works, including the copyright thereto, shall not knowingly approach any such employee for such purpose or authorize or knowingly approve be the taking sole and exclusive property of such actions by any other individualCompany, partnership, joint venture, corporation or other business entity or knowingly assist any such individual, partnership, joint venture, corporation or other business entity in taking such action.
(d) You acknowledge that as the provisions of this Section 8 are reasonable sole author and necessary for the protection of the Company and that each provisionowner thereof, and the period or periods of time and types and scope of restrictions on the activities specified herein are, and are intended to copyright thereto may be divisibleregistered by Company in its own name. In the event that any provision of this Agreement, including any sentence, clause or part hereof, shall be deemed contrary to law or invalid or unenforceable in any respect by a court of competent jurisdiction, the remaining provisions shall not be affected, but shall, subject to the discretion of such court, remain in full force and effect and any invalid and unenforceable provisions shall be deemed, without further action on the part of the parties heretoWorks shall be determined not to be a work made for hire or shall be determined not to be owned by the Company, modified, amended Employee hereby irrevocably assigns and limited transfers to the extent necessary Company, its successors and assigns, the following: (a) the entire right, title and interest in and to render the same valid copyrights, trademarks and enforceableother rights in any such Work and any rights in and to any works based upon, derived from, or incorporating any such Work (“Derivative Work”); (b) the exclusive right to obtain, register and renew the copyrights or copyright protection in any such Work or Derivative Work; (c) all income, royalties, damages, claims and payments now or hereafter due or payable with respect to any such Work and Derivative Work; and (d) all causes of action in law or equity, past and future, for infringements or violation of any of the rights in any such Work or Derivative Work, and any recoveries resulting therefrom. Employee also hereby waives in writing any moral or other rights that he has under state or federal laws, or under the laws of any foreign jurisdiction, which would give him any rights to constrain or prevent the use of any Work or Derivative Work, or which would entitle him to receive additional compensation from the Company. Employee shall execute all documents, including without limitation copyright assignments and applications and waivers of moral rights, and perform all acts that the Company may request, in order to assist the Company in perfecting its rights in and to any Work and Derivative Work anywhere in the world. Employee hereby appoints the officers of the Company as Employee’s attorney-in-fact to execute documents on behalf of Employee for this limited purpose
(g) The parties hereto hereby acknowledge and agree that (i) the Company would be irreparably injured in the event of a breach by the Employee of any of his obligations under this Section 7, (ii) monetary damages would not be an adequate remedy for any such breach, and (iii) the Company shall be entitled to injunctive relief, in addition to any other remedy which it may have, in the event of any such breach.
(eh) You The parties hereto hereby acknowledge that the Company will be irrevocably damaged if the covenants contained herein are not specifically enforced. Accordingly, you agree that, in addition to any other relief to which remedies the Company may be entitledhave under Section 7(g) hereof, the Company shall have the right and remedy to require the Employee to account for and pay over to the Company all compensation, profits, monies, accruals, increments or other benefits (collectively, "Benefits") derived or received by the Employee as the result of any transactions constituting a breach of any of the provisions of Section 7, and the Employee hereby agrees to account for any pay over such Benefits to the Company.
(i) Each of the rights and remedies enumerated in Section 7(g) and 7(h) shall be entitled independent of the other, and shall be severally enforceable, and all of such rights and remedies shall be in addition to, and not in lieu of, any other rights and remedies available to seek the Company under law or in equity.
(j) If any provision contained in this Section 7 is hereafter construed to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid portions.
(k) If any provision contained in this Section 7 is found to be unenforceable by reason of the extent, duration or scope thereof, or otherwise, then the court making such determi-nation shall have the right to reduce such extent, duration, scope or other provision and obtain injunctive relief from a court in its reduced form any such restriction shall thereafter be enforceable as contemplated hereby.
(l) It is the intent of competent the parties hereto that the covenants contained in this Section 7 shall be enforced to the fullest extent permissible under the laws and public policies of each jurisdiction in which enforcement is sought (the Employee hereby acknowledging that said restrictions are reasonably necessary for the purposes protection of restraining you from the Company). Accordingly, it is hereby agreed that if any actual of the provisions of this Section 7 shall be adjudicated to be invalid or threatened breach unenforceable for any reason whatsoever, said provision shall be (only with respect to the operation thereof in the particular jurisdiction in which such adjudication is made) construed by limiting and reducing it so as to be enforceable to the extent permissible, without invalidating the remaining provisions of such covenantsthis Agreement or affecting the validity or enforceability of said provision in any other jurisdiction.
Appears in 1 contract
Samples: Employment Agreement (Take Two Interactive Software Inc)
Confidentiality; Noncompetition. (a) During A. The Employer and the term of your employment and for an additional period of five years after you are no longer employed Executive acknowledge that the services to be performed by the CompanyExecutive under this Agreement are unique and extraordinary and, you as a result of such employment, the Executive will not reveal, divulge or make known to any individual, partnership, joint venture, corporation or other business entity (other than the Company or its affiliates) or use for your own account any customer lists, trade secrets or any be in possession of confidential information relating to the business practices of the Company. The term “confidential information” shall mean any kind and all information (“Protected Information”verbal and written) used by relating to the Company or any of its commonly controlled affiliates affiliates, or any of their respective activities, other than such information which can be shown by the Executive to be in the conduct public domain (such information not being deemed to be in the public domain merely because it is embraced by more general information which is in the public domain) other than as the result of breach of the provisions of this Section 10(a), including, but not limited to, information relating to: trade secrets, personnel lists, financial information, research projects, services used, pricing, customers, customer lists and prospects, product sourcing, marketing and selling and servicing. The Executive agrees that he will not, during or for a period of two years after the termination of employment, directly or indirectly, use, communicate, disclose or disseminate to any person, firm or corporation any confidential information regarding the clients, customers or business practices of the Company acquired by the Executive during his employment by Employer, without the prior written consent of Employer; provided, however, that the Executive understands that Executive will be prohibited from misappropriating any trade secret (as defined for purposes of Indiana law) at any time during or after the termination of employment.
B. The Executive hereby agrees that he shall not, during the period of his employment and for a period of two (2) years following such employment, directly or indirectly, within any county (or adjacent county) in any State within the United States or territory outside the United States in which the Company is engaged in business during the period of the Executive’s employment or on the date of termination of the Executive’s employment, engage, have an interest in or render any services to any business (whether as owner, manager, operator, licensor, licensee, lender, partner, stockholder, joint venturer, employee, consultant or otherwise) competitive with the Company’s principal business activities. Notwithstanding the foregoing: (i) Executive shall be permitted to own (as a passive investment) not more than 5% of any class of securities which is publicly traded; provided, however that said 5% limitation shall apply to the aggregate holdings of Executive and those of all other persons and entities with whom Executive has agreed to act for the purpose of acquiring, holding, voting or disposing of such securities, and (ii) if the Employer provides the Executive with a Notice of Non Renewal so that no Renewal Term is created hereunder, then the post employment restriction period as set forth in this section B. shall be one (1) year following the Initial Term.
C. The Executive hereby agrees that he shall not, during the period of his employment and for a period of two (2) years following such employment, directly or indirectly, take any action which constitutes an interference with or a disruption of any of the Company’s business and made known to you by reason of your employment with activities including, without limitation, the Company or any of its affiliates (whether or not developed, devised or otherwise created in whole or in part by your efforts); provided, that Protected Information shall not include information that shall become known to the public or the trade without violation of this Section 8(a); and provided, further, that you shall not violate this Section 8(a) if Protected Information is disclosed by you at the direction solicitations of the Company Company’s customers, or if you are required to provide Protected Information in any legal proceeding or by order persons listed on the personnel lists of any court.
(b) During the term of your employment and for an additional period of one year after you are no longer employed by the Company, you will not, directly or indirectly, engage in a Competitive Business, including owning or controlling an interest in (except as a passive investor owning less than two percent (2%) of the equity securities of a publicly-owned company), or acting as director, officer or employee of, or consultant to, any individual, partnership, joint venture, corporation or other business entity known to you to be engaged in a Competitive Business. “Competitive Business” shall mean the development of therapeutics for spinal cord injuries, multiple sclerosis and other central nervous system conditions for which the Company is actively seeking to develop therapeutics At no time during the term of this Agreement; provided, howeveror thereafter shall the Executive directly or indirectly, that notwithstanding disparage the aforesaidcommercial, you shall not be prohibited from acting in any business or financial reputation of the aforesaid capacities for or with respect to any subsidiary, division, affiliate or unit (each, a “Unit”) of an entity if that Unit itself is not engaged in a Competitive Business, irrespective of whether some other Unit of such entity engages in such competition (as long as you do not engage in a Competitive Business for such other Unit)Company.
D. For purposes of clarification, but not of limitation, the Executive hereby acknowledges and agrees that the provisions of subparagraphs 10(b) and (c) During above shall serve as a prohibition against him, during the term period referred to therein, directly or indirectly, hiring, offering to hire, enticing, soliciting or in any other manner persuading or attempting to persuade any officer, employee, agent, lessor, lessee, licensor, licensee or customer who has been previously contacted by either a representative of your the Company, including the Executive, (but only those suppliers existing during the time of the Executive’s employment and for an additional period of one year after you are no longer employed by the Company, you shall not knowingly employ or solicit, encourage or induce any person (except your spouse, if applicable) who at any time within 90 days prior to the termination of your his employment), to discontinue or alter his, her or its relationship with the Company.
E. Upon the termination of the Executive’s employment for any reason whatsoever, all documents, records, notebooks, equipment, price lists, specifications, programs, customer and prospective customer lists and other materials which refer or relate to any aspect of the business of the Company which are in the possession of the Executive including all copies thereof, shall have been an employee be promptly returned to the Company.
F. 1. The Executive agrees that all processes, technologies and inventions (“Inventions”), including new contributions, improvements, ideas and discoveries, whether patentable or not, conceived, developed, invented or made by him during his employment by Employer shall belong to the Company, provided that such Inventions grew out of the Executive’s work with the Company, are related in any manner to the business (commercial or experimental) of the Company or any are conceived or made on the Company’s time or with the use of its commonly controlled affiliates, the Company’s facilities or materials. The Executive shall further: (a) promptly disclose such Inventions to become employed by or associated with any individual, partnership, joint venture, corporation or other business entity other than the Company; (b) assign to the Company, without additional compensation, all patent and you shall not knowingly approach any other rights to such employee Inventions for such purpose or authorize or knowingly approve the taking of such actions by any other individual, partnership, joint venture, corporation or other business entity or knowingly assist any such individual, partnership, joint venture, corporation or other business entity in taking such action.
United States and foreign countries; (c) sign all papers necessary to carry out the foregoing; and (d) You acknowledge that the provisions give testimony in support of this Section 8 are reasonable and necessary for the protection of the Company and that each provision, and the period or periods of time and types and scope of restrictions on the activities specified herein are, and are intended to be divisible. In the event that any provision of this Agreement, including any sentence, clause or part hereof, shall be deemed contrary to law or invalid or unenforceable in any respect by a court of competent jurisdiction, the remaining provisions shall not be affected, but shall, subject to the discretion of such court, remain in full force and effect and any invalid and unenforceable provisions shall be deemed, without further action on the part of the parties hereto, modified, amended and limited to the extent necessary to render the same valid and enforceable.
(e) You acknowledge that the Company will be irrevocably damaged if the covenants contained herein are not specifically enforced. Accordingly, you agree that, in addition to any other relief to which the Company may be entitled, the Company shall be entitled to seek and obtain injunctive relief from a court of competent jurisdiction for the purposes of restraining you from any actual or threatened breach of such covenants.his inventorship;
Appears in 1 contract
Confidentiality; Noncompetition. (a) During The Company and the term of your employment and for an additional period of five years after you are no longer employed Employee acknowledge that the services to be performed by the CompanyEmployee under the Agreement are unique and extraordinary and, you as a result of such employment, the Employee will not reveal, divulge or make known to any individual, partnership, joint venture, corporation or other business entity (other than the Company or its affiliates) or use for your own account any customer lists, trade secrets or any be in possession of confidential information relating to the business practices of the Company. The term “confidential information” shall mean any kind and all information (“Protected Information”oral or written) used by relating to the Company or any of its commonly controlled affiliates in the conduct of the Company’s business and made known to you by reason of your employment with the Company affiliates, or any of its affiliates (whether or not developedtheir respective activities, devised or otherwise created other than such information which can be shown by the Employee to be in whole or in part by your efforts); provided, that Protected Information shall not include information that shall become known to the public or domain (such information not being deemed to be in the trade without violation public domain merely because it is embraced by more general information which is in the public domain) other than as the result of breach of the provisions of this Section 8(a); , including, but not limited to, information relating to: trade secrets, proprietary information, personnel lists, financial information, research projects, services used, pricing, customers, customer lists and providedprospects, furtherproduct sourcing, marketing and selling and servicing. The Employee agrees that you shall she will not violate this Section 8(a) if Protected Information is disclosed during her employment or subsequent to the termination of employment, except as may be required by you at law or legal process or in the direction good faith performance of the Company or if you are required her duties to provide Protected Information in any legal proceeding or by order of any court.
(b) During the term of your employment and for an additional period of one year after you are no longer employed by the Company, you will not, directly or indirectly, engage in a Competitive Businessuse, including owning communicate, disclose or controlling an interest in (except as a passive investor owning less than two percent (2%) disseminate to any person, firm or corporation any confidential information regarding the clients, customers or business practices of the equity securities Company acquired by the Employee during her employment by the Company, without the prior written consent of a publicly-owned company), or acting as director, officer or employee of, or consultant to, any individual, partnership, joint venture, corporation or other business entity known to you to be engaged in a Competitive Business. “Competitive Business” shall mean the development of therapeutics for spinal cord injuries, multiple sclerosis and other central nervous system conditions for which the Company is actively seeking to develop therapeutics during the term of this AgreementCompany; provided, however, that notwithstanding the aforesaidEmployee understands that the Employee will be prohibited from misappropriating any trade secret at any time during or after the termination of employment. At no time during the Employment Term or thereafter shall the Employee directly or indirectly, you disparage the commercial, business or financial reputation of the Company. At no time during the Employment Term or thereafter shall the Company directly or indirectly, disparage the Employee in any manner that is likely to be harmful to her business or personal reputation. The foregoing shall not be prohibited from acting violated by truthful statements in response to legal process or required governmental testimony or filings.
(b) In consideration of the rights and benefits conferred to the Employee hereunder and for other good and valuable consideration, the Employee hereby agrees that she shall not, during the Employment Term and for a period of one (1) year following such employment (the “Restrictive Period”), directly or indirectly, take any action which constitutes an interference with or a disruption of any of the aforesaid capacities Company’s business activities.
(c) For purposes of clarification, but not of limitation, the Employee hereby acknowledges and agrees that the provisions of subparagraph 8(b) above shall serve as a prohibition against her, during the Restrictive Period, from:
(i) directly or indirectly, contacting, soliciting or directing any person, firm, or corporation to contact or solicit, any of the Company’s customers, prospective customers, or business partners for the purpose of selling or with respect attempting to sell, any products and/or services that are the same as or similar to the products and services provided by the Company to its customers during the Restrictive Period. In addition, the Employee will not disclose the identity of any such business partners, customers, or prospective customers, or any part thereof, to any subsidiaryperson, divisionfirm, affiliate corporation, association, or other entity for any reason or purpose whatsoever;
(ii) directly or indirectly, engaging or carrying on in any manner (including, without limitation, as principal, shareholder, partner, lender, agent, employee, consultant, or investor (other than a passive investor with less than a five percent (5%) interest) trustee or through the agency of any corporation, partnership, limited liability company, or association) in any business that is in competition with or engaged in any business in competition with the business of the Company; or
(iii) soliciting on her own behalf or on behalf of any other person, the services of any person who is an employee of the Company, or soliciting any of the Company’s employees to terminate employment with the Company. This Section 8(c) shall not be violated by (i) general advertising or recruiting not specifically targeted at Company employees, (ii) the Employee serving as a professional reference for any employee of the Company, or (iii) actions taken by any person or entity that the Employee is associated with if the Employee is not personally involved in any manner in the matter and has not identified such employee for soliciting. In addition, the provisions of Section 8(c)(ii) hereof shall not be violated by the Employee commencing employment with a division or unit (each, a “Unit”) of an entity if any business that Unit itself is not engaged in a Competitive Business, irrespective of whether some other Unit of such entity engages in such competition (as with the Company so long as you the Employee and such division or unit do not engage in a Competitive Business for such other Unit).
(c) During the term of your employment and for an additional period of one year after you are no longer employed by business that is in competition with the Company, you shall not knowingly employ or solicit, encourage or induce any person (except your spouse, if applicable) who at any time within 90 days prior to the termination of your employment shall have been an employee of the Company or any of its commonly controlled affiliates, to become employed by or associated with any individual, partnership, joint venture, corporation or other business entity other than the Company, and you shall not knowingly approach any such employee for such purpose or authorize or knowingly approve the taking of such actions by any other individual, partnership, joint venture, corporation or other business entity or knowingly assist any such individual, partnership, joint venture, corporation or other business entity in taking such action.
(d) You Upon the termination of the Employee’s employment for any reason whatsoever, all documents, records, notebooks, equipment, price lists, specifications, programs, customer and prospective customer lists and other materials which refer or relate to any aspect of the business of the Company which are in the possession or under the control of the Employee including all copies thereof, shall be promptly returned to the Company.
(e) The parties hereto hereby acknowledge and agree that (i) the Company would be irreparably injured in the event of a breach by the Employee of any of her obligations under this Section 8, (ii) monetary damages would not be an adequate remedy for any such breach, and (iii) the Company shall be entitled to injunctive relief, in addition to any other remedy which it may have, in the event of any such breach.
(f) The rights and remedies enumerated in Section 8(e) shall be independent of the other, and shall be enforceable, and all of such rights and remedies shall be in addition to, and not in lieu of, any other rights and remedies available to the Company under law or in equity.
(g) If any provision contained in this Section 8 is hereafter construed to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the invalid portions.
(h) This Section 8 shall survive the termination of this Agreement.
(i) It is the intent of the parties hereto that the covenants contained in this Section 8 shall be enforced to the fullest extent permissible under the laws and public policies of each jurisdiction in which enforcement is sought (the Employee hereby acknowledging that said restrictions are reasonably necessary for the protection of the Company). Accordingly, it is hereby agreed that if any of the provisions of this Section 8 are reasonable and necessary for the protection of the Company and that each provision, and the period or periods of time and types and scope of restrictions on the activities specified herein are, and are intended shall be adjudicated to be divisible. In the event that any provision of this Agreement, including any sentence, clause or part hereof, shall be deemed contrary to law or invalid or unenforceable for any reason whatsoever, said provision shall be (only with respect to the operation thereof in any respect the particular jurisdiction in which such adjudication is made) construed by a court of competent jurisdictionlimiting and reducing it so as to be enforceable to the extent permissible, without invalidating the remaining provisions shall not be affected, but shall, subject to of this Agreement or affecting the discretion validity or enforceability of such court, remain said provision in full force and effect and any invalid and unenforceable provisions shall be deemed, without further action on the part of the parties hereto, modified, amended and limited to the extent necessary to render the same valid and enforceable.
(e) You acknowledge that the Company will be irrevocably damaged if the covenants contained herein are not specifically enforced. Accordingly, you agree that, in addition to any other relief to which the Company may be entitled, the Company shall be entitled to seek and obtain injunctive relief from a court of competent jurisdiction for the purposes of restraining you from any actual or threatened breach of such covenantsjurisdiction.
Appears in 1 contract
Confidentiality; Noncompetition. The Employee shall not, directly ------------------------------- or indirectly, at any time (a) During whether during the term of your employment and for an additional period of five years after you are no longer employed by the Companythis agreement or thereafter), you will not reveal, divulge or make known disclose any Confidential Information (defined below) to any individualperson, partnershipassociation, joint venture, corporation or other business entity (other than the Affiliated Companies, as defined below), or use, or permit or assist any person, association, or other entity (other than the Affiliated Companies) to use, any Confidential Information, excepting only Confidential Information which (i) is then generally available to or obtainable by the public and which did not become so available or obtainable through the breach of any provision of this agreement by the Employee, or (ii) is obtained by the Employee on a non-confidential basis from a source other than an Affiliated Company or its affiliates) any agent or use for your own account other representative of an Affiliated Company and such source had the right to disclose such Confidential Information to the Employee without violating any customer listslegal, trade secrets contractual, fiduciary, or any confidential information other obligation. Upon termination of any kind (“Protected Information”) used his employment by the Company (for any reason), the Employee shall immediately deliver to the Company all documents and other materials containing any Confidential Information which are in his possession or any of its commonly controlled affiliates in under his control. During the conduct term of the Company’s business and made known to you by reason of your Employee's employment with the Company or any of its affiliates Affiliated Company (whether pursuant to this agreement or otherwise) and during the Restricted Period (defined below), the Employee shall not, other than on behalf of the Company, directly or indirectly (whether individually or as a shareholder or other owner, partner, member, director, officer, employee, consultant, creditor or agent of any person, association, or other entity):
(a) Enter into, engage in, or promote or assist (financially or otherwise), whether directly or indirectly, any business which competes with the business of any Affiliated Company (the "Business"); provided that the foregoing shall not developedprohibit the Employee from (i) being employed by the PA during or following the Employee's employment with the Company, devised (ii) owning not more than 1% of the outstanding capital stock of any corporation whose shares are publicly traded on a national securities exchange or system, or (iii) becoming an employee of, or otherwise created in whole performing services for, after the termination of the Employee's employment with the Company and any Affiliated Companies, a professional corporation or in part by your efforts); provided, that Protected Information shall not include information that shall become known association or other person or entity which provides professional dental care services to the public (a "Dental Care Provider"), so long as such Dental Care Provider is not an ADP Provider (as defined below) and was not an ADP Provider at any time during the one-year period immediately preceding such Dental Care Provider's employment or the trade without violation of this Section 8(a); and provided, further, that you shall not violate this Section 8(a) if Protected Information is disclosed by you at the direction other engagement of the Company or if you are required to provide Protected Information in any legal proceeding or by order of any court.Employee;
(b) During the term of your employment and for Solicit or attempt to solicit business from any Dental Care Provider to which any Affiliated Company provides management, consulting, or other services (an additional period of one year after you are no longer employed by the Company, you will not, directly or indirectly, engage in a Competitive Business, including owning or controlling an interest in (except as a passive investor owning less than two percent (2%) of the equity securities of a publicly-owned company"ADP Provider"), or acting as director, officer interfere or employee of, or consultant to, attempt to interfere with any individual, partnership, joint venture, corporation or other business entity known to you to be engaged in a Competitive Business. “Competitive Business” shall mean the development relationship of therapeutics for spinal cord injuries, multiple sclerosis and other central nervous system conditions for which the any Affiliated Company is actively seeking to develop therapeutics during the term of this Agreement; provided, however, that notwithstanding the aforesaid, you shall not be prohibited from acting in with any of the aforesaid capacities for or with respect to any subsidiary, division, affiliate or unit (each, a “Unit”) of an entity if that Unit itself is not engaged in a Competitive Business, irrespective of whether some other Unit of such entity engages in such competition (as long as you do not engage in a Competitive Business for such other Unit).ADP Provider;
(c) During the term Induce or encourage any employee, officer, director, agent, supplier, or independent contractor of your employment and for an additional period of one year after you are no longer employed by the any Affiliated Company to terminate its relationship with such Affiliated Company, you shall not knowingly employ or solicitotherwise interfere or attempt to interfere in any way with any Affiliated Company's relationships with its employees, encourage officers, directors, agents, suppliers, independent contractors, or induce others;
(d) Employ or engage any person (except your spousewho, if applicable) who at any time within 90 days prior to the termination one-year period immediately preceding such employment or engagement, was an employee, officer, or director of your employment shall have been an employee of the Company or any of its commonly controlled affiliates, to become employed by or associated with any individual, partnership, joint venture, corporation or other business entity other than the Affiliated Company, and you shall not knowingly approach any such employee for such purpose or authorize or knowingly approve the taking of such actions by any other individual, partnership, joint venture, corporation or other business entity or knowingly assist any such individual, partnership, joint venture, corporation or other business entity in taking such action.
(d) You acknowledge that the provisions of this Section 8 are reasonable and necessary for the protection of the Company and that each provision, and the period or periods of time and types and scope of restrictions on the activities specified herein are, and are intended to be divisible. In the event that any provision of this Agreement, including any sentence, clause or part hereof, shall be deemed contrary to law or invalid or unenforceable in any respect by a court of competent jurisdiction, the remaining provisions shall not be affected, but shall, subject to the discretion of such court, remain in full force and effect and any invalid and unenforceable provisions shall be deemed, without further action on the part of the parties hereto, modified, amended and limited to the extent necessary to render the same valid and enforceable.; or
(e) You acknowledge that the Company will be irrevocably damaged if the covenants contained herein are not specifically enforced. Accordingly, you agree that, in addition to Make any statement (oral or written) or take any other relief action which would tend to which disparage or diminish the Company may be entitled, the Company shall be entitled to seek and obtain injunctive relief from a court reputation of competent jurisdiction for the purposes of restraining you from any actual or threatened breach of such covenantsAffiliated Company.
Appears in 1 contract
Samples: Employment and Noncompetition Agreement (American Dental Partners Inc)
Confidentiality; Noncompetition. Executive shall not, ------------------------------- directly or indirectly, at any time, disclose any Confidential Information (adefined below) During the term of your employment and for an additional period of five years after you are no longer employed by the Company, you will not reveal, divulge or make known to any individualperson, association or other entity, or use, or authorize or assist any person, partnership, joint ventureassociation, limited liability company, corporation or other business entity (other than the Company or any of the Affiliated Companies) to use, any Confidential Information, excepting only (a) disclosures required by applicable law and (b) disclosures made on a confidential basis to Executive's legal counsel, accountants or other financial advisors ("Executive's Representatives"); provided that (i) if Executive believes disclosure of Confidential Information is required by applicable law, Executive shall promptly (and in any event prior to such disclosure) give the Company notice of such proposed disclosure and cooperate with the Company in all ways reasonably requested by it in its affiliatesefforts to obtain a protective order or otherwise limit the scope of such disclosure to the extent the Company deems necessary or appropriate; (ii) Executive shall cause Executive's Representatives to observe and adhere to the terms of this paragraph the same as such terms are binding on Executive and shall be responsible and liable for any breach of the terms of this paragraph by any such Representatives; and (iii) Executive shall not be prohibited or use for your own account any customer listsrestricted from disclosing or using Confidential Information to the extent reasonably necessary to protect his rights under this agreement or to defend himself in an action brought against him arising out of his service as a director, trade secrets officer or any confidential information employee of any kind (“Protected Information”) used by the Company or any of its commonly controlled affiliates in the conduct of the Company’s business Affiliated Companies. Executive represents and made known warrants to you by reason of your employment with the Company or any of its affiliates (whether or not developed, devised or otherwise created in whole or in part by your efforts); provided, that Protected Information shall not include information that shall become known he has delivered to the public Company all documents and other materials containing any Confidential Information which are in his possession or the trade without violation of this Section 8(a)under his control; and provided, further, provided that you shall not violate this Section 8(a) if Protected Information is disclosed by you at the direction of the Company shall provide Executive with reasonable access to Confidential Information which relates to his past compensation or if you are required to provide Protected Information in any legal proceeding or by order of any court.
(b) During the term of your employment and for an additional period of one year after you are no longer employed by the Company, you will not, directly or indirectly, engage in a Competitive Business, including owning or controlling an interest in (except service as a passive investor owning less than two percent (2%) of the equity securities of a publicly-owned company), or acting as director, officer or employee of, or consultant to, any individual, partnership, joint venture, corporation or other business entity known to you to be engaged in a Competitive Business. “Competitive Business” shall mean the development of therapeutics for spinal cord injuries, multiple sclerosis and other central nervous system conditions for which the Company is actively seeking to develop therapeutics during the term of this Agreement; provided, however, that notwithstanding the aforesaid, you shall not be prohibited from acting in any of the aforesaid capacities for or with respect to any subsidiary, division, affiliate or unit (each, a “Unit”) of an entity if that Unit itself is not engaged in a Competitive Business, irrespective of whether some other Unit of such entity engages in such competition (as long as you do not engage in a Competitive Business for such other Unit).
(c) During the term of your employment and for an additional period of one year after you are no longer employed by the Company, you shall not knowingly employ or solicit, encourage or induce any person (except your spouse, if applicable) who at any time within 90 days prior to the termination of your employment shall have been an employee of the Company or any of its commonly controlled affiliatesthe Affiliated Companies, to become employed by for any reasonable purpose upon reasonable prior notice. During the Noncompetition Period, Executive shall not, directly or associated with indirectly, engage in, assist or have an active interest in (whether as proprietor, partner, investor, shareholder, officer, director, member or any individualtype of principal whatsoever), enter the employment of or act as agent for or adviser or consultant to, any person, partnership, joint ventureassociation, limited liability company, corporation or other entity which is (or is about to become) engaged in any business entity other than that competes with the CompanyCompany or any of the Affiliated Companies anywhere within the United States. Notwithstanding the foregoing provisions of this section, and you the provisions of the immediately preceding paragraph of this section shall not knowingly approach any such employee for such purpose prohibit Executive from owning, directly or authorize indirectly, two percent or knowingly approve less of the taking issued and outstanding voting stock of such actions by a company whose shares are publicly traded. During the Noncompetition Period, Executive shall not, on his own behalf or on behalf of any other individualperson, partnership, joint ventureassociation, limited liability company, corporation or other business entity entity, solicit or knowingly assist in any manner attempt to influence or induce any employee of the Company or any of the Affiliated Companies to leave the employment of the Company or such individualAffiliated Company nor shall he use or disclose to any person, partnership, joint ventureassociation, limited liability company, corporation or other business entity any information obtained while an employee of the Company or any of the Affiliated Companies concerning the names and addresses of the employees of the Company or any such Affiliated Company. During the Noncompetition Period and thereafter, (A) Executive shall not make any statement (oral or written), or take any other action, which is in taking such any way disparaging to the Company or any Affiliated Company, and (B) neither the Company nor any Affiliated Company shall make any statement, or take any other action.
, which is in any way disparaging to Executive; provided, however, that this paragraph shall not apply to (di) You acknowledge that truthful statements when required to be made by order of a court or other body having jurisdiction, or as otherwise may be required by law or legal process, (ii) truthful statements made by the provisions of this Section 8 are reasonable and Company, an Affiliated Company or Executive if necessary for the protection Company, the Affiliated Company or Executive, as the case may be, to defend itself or himself in any civil, criminal, administrative or arbitration proceeding, or (iii) truthful statements made by the Company or an Affiliated Company pertaining to any conduct of Executive of the Company and that each provision, and the period type described in clauses (b) or periods (c) of time and types and scope of restrictions on the activities specified herein are, and are intended to be divisible. In the event that any provision Section 12 of this Agreement, including any sentence, clause or part hereof, shall be deemed contrary to law or invalid or unenforceable in any respect by a court of competent jurisdiction, the remaining provisions shall not be affected, but shall, subject to the discretion of such court, remain in full force and effect and any invalid and unenforceable provisions shall be deemed, without further action on the part of the parties hereto, modified, amended and limited to the extent necessary to render the same valid and enforceableagreement.
(e) You acknowledge that the Company will be irrevocably damaged if the covenants contained herein are not specifically enforced. Accordingly, you agree that, in addition to any other relief to which the Company may be entitled, the Company shall be entitled to seek and obtain injunctive relief from a court of competent jurisdiction for the purposes of restraining you from any actual or threatened breach of such covenants.
Appears in 1 contract
Confidentiality; Noncompetition. (a) During The Employer and the term of your employment and for an additional period of five years after you are no longer employed Employee acknowledge that the services to be performed by the CompanyEmployee under this Agreement are unique and extraordinary and, you as a result of such employment, the Employee will not reveal, divulge or make known to any individual, partnership, joint venture, corporation or other business entity (other than the Company or its affiliates) or use for your own account any customer lists, trade secrets or any be in possession of confidential information relating to the business practices of the Company. The term "confidential information" shall mean any kind and all information (“Protected Information”oral and written) used by relating to the Company or any of its commonly controlled affiliates affiliates, or any of their respective activities which the Employee came into possession of in the conduct course of his employment with the Company, other than such information which can be shown by the Employee to be in the public domain (such information not being deemed to be in the public domain merely because it is embraced by more general information which is in the public domain) other than as the result of breach of the Company’s business provisions of this Section 7(a), including, but not limited to, information relating to: trade secrets, personnel lists, compensation of employees, financial information, research projects, services used, pricing, customers, customer lists and made known prospects, product sourcing, marketing and selling and servicing. Notwithstanding the foregoing "confidential information" shall not include information relating to you the general methodology and mechanics employed by reason Employee in the performance of your employment his duties with the Company or that Employee can demonstrate was known to him prior to his employment with the Company. The Employee agrees that he will not, during or after his termination or expiration of employment hereunder, directly or indirectly, use, communicate, disclose or disseminate to any person, firm or corporation any confidential information regarding the clients, customers or business practices of its affiliates (whether or not developedthe Company acquired by the Employee during his employment by Employer, devised or otherwise created in whole or in part by your efforts); providedwithout the prior written consent of Employer. Anything herein to the contrary notwithstanding, that Protected Information the provisions of this Section 7(a) shall not include apply (i) when disclosure is required by law or by any court, arbitrator, mediator or administrative or legislative body (including any committee thereof) with actual or apparent jurisdiction to order the Employee to disclose or make accessible any information, (ii) with respect to any other litigation, arbitration or mediation involving this Agreement, including, but not limited to, the enforcement of this Agreement, (iii) as to information that shall become becomes generally known to the public or within the relevant trade without or industry other than due to the Employee's violation of this Section 8(aor (iv) as to information that is or becomes available to the Employee on a non-confidential basis from a source which is entitled to disclose it to the Employee.
(b) If permitted by the New York Canon of Ethics, the Employee hereby agrees that he shall not, during the period of his employment and for a period of one (1) year following the termination of such employment, directly or indirectly, within any county (or adjacent county) in any State within the United States or territory outside the United States in which the Company is engaged in business during the period of the Employee's employment or on the date of termination of the Employee's employment, engage, have an interest in or render any services to any business (whether as owner, manager, operator, licensor, licensee, lender, partner, stockholder, joint venturer, employee, consultant or otherwise) competitive with the Company's business activities.
(c) The Employee hereby agrees that he shall not, during the period of his employment and for a period of one (1) year following such employment, directly or indirectly solicit any of the Company's customers, or persons listed on the personnel lists of the Company, to discontinue or alter his, her or its relationship with the Company. Except as required by law or legal process, at no time during the Term, or thereafter shall the Employee, directly or indirectly, disparage the commercial, business or financial reputation of the Company. Except as required by law or legal process, at no time during the Term, or thereafter shall the Employer or any executive officer of the Company, directly or indirectly, disparage the professional, business, financial or personal reputation of the Employee.
(d) For purposes of clarification, but not of limitation, the Employee hereby acknowledges and agrees that the provisions of subparagraphs 7(b) and (c) above shall serve as a prohibition against him, during the period referred to therein, directly or indirectly, hiring, offering to hire, enticing, soliciting or in any other manner persuading or attempting to persuade any officer, employee, agent, lessor, lessee, licensor, licensee or customer who has been previously contacted by either a representative of the Company, including the Employee, (but only those persons or entities that had a business or employment relationship with the Company during the time of the Employee's employment by the Company, or at the termination of his employment); , to discontinue or alter his, her or its relationship with the Company.
(e) Upon the termination of the Employee's employment for any reason whatsoever, all documents, records, notebooks, equipment, employee lists, price lists, specifications, programs, customer and providedprospective customer lists and other materials which refer or relate to any aspect of the business of the Company which the Employee acquired in the course of his employment with the Company and are in the possession of the Employee, furtherincluding all copies thereof, that you shall not violate be promptly returned to the Company. Anything to the contrary notwithstanding, nothing in this Section 8(a7(e) if Protected Information is disclosed by you shall prevent the Employee from retaining a home computer and security system, papers and other materials of a personal nature, including personal diaries, calendars and Rolodexes, information relating to the Employee's compensation or relating to reimbursement of expenses, information that the Employee reasonably believe may be needed for tax purposes, and copies of plans, programs and agreements relating to the Employee's employment.
(f) The products and proceeds of Employee's services hereunder that Employee may acquire, obtain, develop or create during the Term that relate to the Company's business, or that are otherwise made at the direction of the Company or if you are required to provide Protected Information in any legal proceeding or by order with the use of any court.
(b) During the term of your employment and for an additional period of one year after you are no longer employed by the Company's or its affiliates' facilities or materials, you will notincluding, directly or indirectlybut not limited to, engage in a Competitive Businessall materials, including owning or controlling an interest in ideas, concepts, formats, suggestions, developments, packages, programs and other intellectual properties (except as a passive investor owning less than two percent (2%) of the equity securities of a publicly-owned companycollectively, "Works"), or acting shall be considered a "work made for hire," as directorthat term is defined under the United States Copyright Act, officer or employee of, or consultant to, any individual, partnership, joint venture, corporation or other business entity known to you to and Employee shall be engaged in a Competitive Business. “Competitive Business” shall mean the development of therapeutics for spinal cord injuries, multiple sclerosis and other central nervous system conditions for which the Company is actively seeking to develop therapeutics during the term of this Agreement; provided, however, that notwithstanding the aforesaid, you shall not be prohibited from acting in any of the aforesaid capacities for or with respect to any subsidiary, division, affiliate or unit (each, a “Unit”) of an entity if that Unit itself is not engaged in a Competitive Business, irrespective of whether some other Unit of such entity engages in such competition (as long as you do not engage in a Competitive Business for such other Unit).
(c) During the term of your employment and for an additional period of one year after you are no longer employed by the Company, you shall not knowingly employ or solicit, encourage or induce any person (except your spouse, if applicable) who at any time within 90 days prior to the termination of your employment shall have been considered an employee for hire of the Company or any of its commonly controlled affiliates, to become employed by or associated with any individual, partnership, joint venture, corporation or other business entity other than the Company, and you all rights in and to the Works, including the copyright thereto, shall not knowingly approach any such employee for such purpose or authorize or knowingly approve be the taking of such actions by any other individual, partnership, joint venture, corporation or other business entity or knowingly assist any such individual, partnership, joint venture, corporation or other business entity in taking such action.
(d) You acknowledge that the provisions of this Section 8 are reasonable sole and necessary for the protection exclusive property of the Company Company, as the sole author and that each provisionowner thereof, and the period or periods of time and types and scope of restrictions on copyright thereto may be registered by the activities specified herein are, and are intended to be divisibleCompany in its own name. In the event that any provision of this Agreement, including any sentence, clause or part hereof, shall be deemed contrary to law or invalid or unenforceable in any respect by a court of competent jurisdiction, the remaining provisions shall not be affected, but shall, subject to the discretion of such court, remain in full force and effect and any invalid and unenforceable provisions shall be deemed, without further action on the part of the parties heretoWorks shall be determined not to be a work made for hire or shall be determined not to be owned by the Company, modified, amended Employee hereby irrevocably assigns and limited transfers to the extent necessary Company, its successors and assigns, the following: (a) the entire right, title and interest in and to render the same valid copyrights, trademarks and enforceableother rights in any such Work and any rights in and to any works based upon, derived from, or incorporating any such Work ("Derivative Work"); (b) the exclusive right to obtain, register and renew the copyrights or copyright protection in any such Work or Derivative Work; (c) all income, royalties, damages, claims and payments now or hereafter due or payable with respect to any such Work and Derivative Work; and (d) all causes of action in law or equity, past and future, for infringements or violation of any of the rights in any such Work or Derivative Work, and any recoveries resulting therefrom. Employee also hereby waives in writing any moral or other rights that he has under state or federal laws, or under the laws of any foreign jurisdiction, which would give him any rights to constrain or prevent the use of any Work or Derivative Work, or which would entitle him to receive additional compensation from the Company. Employee shall execute all documents, including without limitation copyright assignments and applications and waivers of moral rights, and perform all acts that the Company may request, in order to assist the Company in perfecting its rights in and to any Work and Derivative Work anywhere in the world. Employee hereby appoints the officers of the Company as Employee's attorney-in-fact to execute documents on behalf of Employee for this limited purpose
(g) The parties hereto hereby acknowledge and agree that (i) the Company may be irreparably injured in the event of a breach by the Employee of any of his obligations under this Section 7, (ii) monetary damages may not be an adequate remedy for any such breach, and (iii) the Company shall be entitled to seek injunctive relief, in addition to any other remedy which it may have, in the event of any such breach.
(eh) You The parties hereto hereby acknowledge that the Company will be irrevocably damaged if the covenants contained herein are not specifically enforced. Accordingly, you agree that, in addition to any other relief to which remedies the Company may be entitledhave under Section 7(g) hereof, the Company may have the right and remedy to seek to require the Employee to account for and pay over to the Company all compensation, profits, monies, accruals, increments or other benefits (collectively, "Benefits") derived or received by the Employee as the result of any transactions constituting a breach of any of the provisions of Section 7, and the Employee hereby agrees to account for any pay over such Benefits to the Company if so ordered by an appropriate court or arbitrator.
(i) Each of the rights and remedies enumerated in Section 7(g) and 7(h) shall be entitled independent of the other, and shall be severally enforceable, and all of such rights and remedies shall be in addition to, and not in lieu of, any other rights and remedies available to seek the Company under law or in equity.
(j) It is the intent of the parties hereto that the covenants contained in this Section 7 shall be enforced to the fullest extent permissible under the laws and obtain injunctive relief from a court public policies of competent each jurisdiction in which enforcement is sought (the Employee hereby acknowledging that said restrictions are reasonably necessary for the purposes protection of restraining you from the Company). Accordingly, it is hereby agreed that if any actual of the provisions of this Section 7 shall be adjudicated to be invalid or threatened breach unenforceable for any reason whatsoever, said provision shall be (only with respect to the operation thereof in the particular jurisdiction in which such adjudication is made) construed by limiting and reducing it so as to be enforceable to the extent permissible, without invalidating the remaining provisions of such covenantsthis Agreement or affecting the validity or enforceability of said provision in any other jurisdiction.
Appears in 1 contract
Samples: Employment Agreement (Take Two Interactive Software Inc)
Confidentiality; Noncompetition. (a) During The Employer and the term of your employment and for an additional period of five years after you are no longer employed Employee acknowledge that the services to be performed by the CompanyEmployee under this Agree-ment are unique and extraordinary and, you as a result of such employment, the Employee will not reveal, divulge or make known to any individual, partnership, joint venture, corporation or other business entity (other than the Company or its affiliates) or use for your own account any customer lists, trade secrets or any be in possession of confidential information relating to the business practices of the Company. The term "confidential information" shall mean any kind and all information (“Protected Information”oral and written) used by relating to the Company or any of its commonly controlled affiliates affiliates, or any of their respective activities, other than such information which can be shown by the Employee to be in the conduct public domain (such information not being deemed to be in the public domain merely because it is embraced by more general information which is in the public domain) other than as the result of breach of the Company’s business provisions of this Section 7(a), including, but not limited to, information relating to: trade secrets, personnel lists, compensation of employees, financial information, research projects, services used, pricing, customers, customer lists and made known prospects, product sourcing, marketing and selling and servicing. Notwithstanding the foregoing “confidential information” shall not include information relating to you the general methodology and mechanics employed by reason Employee in the performance of your employment her duties with the Company or that Employee can demonstrate was known to her prior to her employment with the Company. The Employee agrees that she will not, during or after her termination or expiration of employment hereunder, directly or indirectly, use, communicate, disclose or disseminate to any person, firm or corporation any confidential information regarding the clients, customers or business prac-tices of its affiliates (whether or not developedthe Company acquired by the Employee during her employ-ment by Employer, devised or otherwise created in whole or in part by your efforts); providedwithout the prior written consent of Employer. Anything herein to the contrary notwithstanding, that Protected Information the provisions of this Section 7(a) shall not include apply (i) when disclosure is required by law or by any court, arbitrator, mediator or administrative or legislative body (including any committee thereof) with actual or apparent jurisdiction to order the Employee to disclose or make accessible any information, (ii) with respect to any other litigation, arbitration or mediation involving this Agreement, including, but not limited to, the enforcement of this Agreement, (iii) as to information that shall become becomes generally known to the public or within the relevant trade without or industry other than due to the Employee’s violation of this Section 8(aor (iv) as to information that is or becomes available to the Employee on a non-confidential basis from a source which is entitled to disclose it to the Employee.
(b) The Employee hereby agrees that she shall not, during the period of her employment and for a period of one (1) year following the termination of such employment, directly or indirectly, within any county (or adjacent county) in any State within the United States or territory outside the United States in which the Company is engaged in business during the period of the Employee's employment or on the date of termination of the Employee's employment, engage, have an interest in or render any services to any business (whether as owner, manager, operator, licensor, licensee, lender, partner, stockholder, joint venturer, employee, consultant or otherwise) competitive with the Company's business activities.
(c) The Employee hereby agrees that she shall not, during the period of her employment and for a period of one (1) year following such employment, directly or indirectly solicit any of the Company's customers, or persons listed on the personnel lists of the Company. Except as required by law or legal process, at no time during the Term, or thereafter shall the Employee, directly or indirectly, disparage the commercial, business or financial reputation of the Company. Except as required by law or legal process, at no time during the Term, or thereafter shall the Employer or any executive officer of the Company, directly or indirectly, disparage the professional, business, financial or personal reputation of the Employee.
(d) For purposes of clarification, but not of limitation, the Employee hereby acknowledges and agrees that the provisions of subparagraphs 7(b) and (c) above shall serve as a prohibition against her, during the period referred to therein, directly or indirectly, hiring, offering to hire, enticing, soliciting or in any other manner persuading or attempting to persuade any officer, employee, agent, lessor, lessee, licensor, licensee or customer who has been previously contacted by either a representative of the Company, including the Employee, (but only those persons or entities that had a relationship with the Company during the time of the Employee's employment by the Company, or at the termination of her employment); , to discontinue or alter his, her or its relationship with the Company.
(e) Upon the termination of the Employee's employment for any reason whatsoever, all documents, records, notebooks, equipment, employee lists, price lists, specifications, programs, customer and providedprospective customer lists and other materials which refer or relate to any aspect of the business of the Company which are in the possession of the Employee including all copies thereof, furthershall be promptly returned to the Company. Anything to the contrary notwithstanding, that you shall not violate nothing in this Section 8(a7(e) if Protected Information is disclosed by you shall prevent the Employee from retaining a home computer and security system, papers and other materials of a personal nature, including personal diaries, calendars and Rolodexes, information relating to the Employee’s compensation or relating to reimbursement of expenses, information that the Employee reasonably believe may be needed for tax purposes, and copies of plans, programs and agreements relating to the Employee’s employment.
(f) The products and proceeds of Employees services hereunder that Employee may acquire, obtain, develop or create during the Term that relate to the Company’s business, or that are otherwise made at the direction of the Company or if you are required to provide Protected Information in any legal proceeding or by order with the use of any court.
(b) During the term of your employment and for an additional period of one year after you are no longer employed by the Company’s or its affiliates’ facilities or materials, you will notincluding, directly or indirectlybut not limited to, engage in a Competitive Businessall materials, including owning or controlling an interest in ideas, concepts, formats, suggestions, developments, packages, programs and other intellectual properties (except as a passive investor owning less than two percent (2%) of the equity securities of a publicly-owned companycollectively, “Works”), or acting shall be considered a "work made for hire," as directorthat term is defined under the United States Copyright Act, officer or employee of, or consultant to, any individual, partnership, joint venture, corporation or other business entity known to you to and Employee shall be engaged in a Competitive Business. “Competitive Business” shall mean the development of therapeutics for spinal cord injuries, multiple sclerosis and other central nervous system conditions for which the Company is actively seeking to develop therapeutics during the term of this Agreement; provided, however, that notwithstanding the aforesaid, you shall not be prohibited from acting in any of the aforesaid capacities for or with respect to any subsidiary, division, affiliate or unit (each, a “Unit”) of an entity if that Unit itself is not engaged in a Competitive Business, irrespective of whether some other Unit of such entity engages in such competition (as long as you do not engage in a Competitive Business for such other Unit).
(c) During the term of your employment and for an additional period of one year after you are no longer employed by the Company, you shall not knowingly employ or solicit, encourage or induce any person (except your spouse, if applicable) who at any time within 90 days prior to the termination of your employment shall have been considered an employee for hire of the Company or any of its commonly controlled affiliates, to become employed by or associated with any individual, partnership, joint venture, corporation or other business entity other than the Company, and you all rights in and to the Works, including the copyright thereto, shall not knowingly approach any such employee for such purpose or authorize or knowingly approve be the taking of such actions by any other individual, partnership, joint venture, corporation or other business entity or knowingly assist any such individual, partnership, joint venture, corporation or other business entity in taking such action.
(d) You acknowledge that the provisions of this Section 8 are reasonable sole and necessary for the protection exclusive property of the Company Company, as the sole author and that each provisionowner thereof, and the period or periods of time and types and scope of restrictions on copyright thereto may be registered by the activities specified herein are, and are intended to be divisibleCompany in its own name. In the event that any provision of this Agreement, including any sentence, clause or part hereof, shall be deemed contrary to law or invalid or unenforceable in any respect by a court of competent jurisdiction, the remaining provisions shall not be affected, but shall, subject to the discretion of such court, remain in full force and effect and any invalid and unenforceable provisions shall be deemed, without further action on the part of the parties heretoWorks shall be determined not to be a work made for hire or shall be determined not to be owned by the Company, modified, amended Employee hereby irrevocably assigns and limited transfers to the extent necessary Company, its successors and assigns, the following: (a) the entire right, title and interest in and to render the same valid copyrights, trademarks and enforceableother rights in any such Work and any rights in and to any works based upon, derived from, or incorporating any such Work (“Derivative Work”); (b) the exclusive right to obtain, register and renew the copyrights or copyright protection in any such Work or Derivative Work; (c) all income, royalties, damages, claims and payments now or hereafter due or payable with respect to any such Work and Derivative Work; and (d) all causes of action in law or equity, past and future, for infringements or violation of any of the rights in any such Work or Derivative Work, and any recoveries resulting therefrom. Employee also hereby waives in writing any moral or other rights that she has under state or federal laws, or under the laws of any foreign jurisdiction, which would give her any rights to constrain or prevent the use of any Work or Derivative Work, or which would entitle her to receive additional compensation from the Company. Employee shall execute all documents, including without limitation copyright assignments and applications and waivers of moral rights, and perform all acts that the Company may request, in order to assist the Company in perfecting its rights in and to any Work and Derivative Work anywhere in the world. Employee hereby appoints the officers of the Company as Employee’s attorney-in-fact to execute documents on behalf of Employee for this limited purpose
(g) The parties hereto hereby acknowledge and agree that (i) the Company may be irreparably injured in the event of a breach by the Employee of any of her obligations under this Section 7, (ii) monetary damages may not be an adequate remedy for any such breach, and (iii) the Company shall be entitled to seek injunctive relief, in addition to any other remedy which it may have, in the event of any such breach.
(eh) You The parties hereto hereby acknowledge that the Company will be irrevocably damaged if the covenants contained herein are not specifically enforced. Accordingly, you agree that, in addition to any other relief to which remedies the Company may be entitledhave under Section 7(g) hereof, the Company may have the right and remedy to require the Employee to account for and pay over to the Company all compensation, profits, monies, accruals, increments or other benefits (collectively, "Benefits") derived or received by the Employee as the result of any transactions constituting a breach of any of the provisions of Section 7, and the Employee hereby agrees to account for any pay over such Benefits to the Company.
(i) Each of the rights and remedies enumerated in Section 7(g) and 7(h) shall be entitled independent of the other, and shall be severally enforceable, and all of such rights and remedies shall be in addition to, and not in lieu of, any other rights and remedies available to seek the Company under law or in equity.
(j) It is the intent of the parties hereto that the covenants contained in this Section 7 shall be enforced to the fullest extent permissible under the laws and obtain injunctive relief from a court public policies of competent each jurisdiction in which enforcement is sought (the Employee hereby acknowledging that said restrictions are reasonably necessary for the purposes protection of restraining you from the Company). Accordingly, it is hereby agreed that if any actual of the provisions of this Section 7 shall be adjudicated to be invalid or threatened breach unenforceable for any reason whatsoever, said provision shall be (only with respect to the operation thereof in the particular jurisdiction in which such adjudication is made) construed by limiting and reducing it so as to be enforceable to the extent permissible, without invalidating the remaining provisions of such covenantsthis Agreement or affecting the validity or enforceability of said provision in any other jurisdiction.
Appears in 1 contract
Samples: Employment Agreement (Take Two Interactive Software Inc)
Confidentiality; Noncompetition. a. Executive shall regard and preserve as confidential all proprietary or confidential information of Company or any business concern controlling, controlled by, or under common control with Company or of any East West Entity (aas such term is defined in Section 5(h) During hereof) (collectively, "Companies") that has been or may be developed or obtained by or disclosed to Executive by reason of Executive's employment ("Confidential Information") with any of the term Companies. Executive shall not use for Executive's own benefit or purpose, or the benefit or purpose of your employment and for an additional period of five years after you are no longer employed by the Company, you will not reveal, divulge or make known to any individual, partnership, joint venture, corporation or other business entity (person other than the Company Companies, or disclose to others, either during the Employment Term or at any time thereafter, except as required in the course of Executive's employment with any of the Companies, any Confidential Information. Confidential Information shall include, but not be limited to, all nonpublic information of any of the Companies relating to its affiliates) business, including all vendor or use for your own account any customer lists, trade secrets financial information, methods of operation, business plans, marketing plans, strategies, or forecasts, proprietary software or other technology, and terms of contracts. This subsection a. shall not prevent Executive from performing her duties under the Consulting Agreement referred to in Section 5.h, so long as both the Employment Term and such Consulting Agreement shall remain in effect and Executive's use or disclosure of Confidential Information in performing her duties under the Consulting Agreement shall be limited to that reasonably required for such purpose. This Section 5.a shall not apply to information that becomes public other than through a breach of this Agreement by Executive; to information that Executive obtained non-confidentially before commencement of the Employment Term; or to any confidential information of any kind disclosure that Executive shall be required by law to make.
b. Executive covenants and agrees that (“Protected Information”i) used for so long as Executive shall be employed by the Company or any of its commonly controlled affiliates the Companies (the "Period of Employment") and (ii) if the Executive's employment shall have been terminated during the Employment Term (x) by either Company for cause, (y) by Executive in breach of this Agreement, or (z) pursuant to clause iii., iv., or v. of Section 3.b, and, in the conduct of the Company’s business and made known to you by reason of your employment with the Company or any of its affiliates (whether or not developed, devised or otherwise created in whole or in part by your efforts); provided, that Protected Information shall not include information that shall become known to the public or the trade without violation case of this subclause (z), Company shall be in compliance with clause iii of Section 8(a); and provided3.c, further, that you shall not violate this Section 8(a) if Protected Information is disclosed by you at the direction of the Company or if you are required to provide Protected Information in any legal proceeding or by order of any court.
(b) During the term of your employment and then for an additional period of one year after you are no longer employed by the Companytermination of such employment, you will Executive shall not, directly or indirectly, as principal, partner, agent, employee, independent contractor, stockholder, or otherwise, anywhere in the United States or Canada, engage or attempt to engage in a Competitive Businessany ski resort business or ski resort real estate development business or within 50 miles of Lake Tahoe any business activity of the kind being conducted or planned to be conducted by any of the Companies. The foregoing shall not prohibit Executive, including together with Executive's spouse and children, from owning or controlling an interest beneficially any publicly traded security, so long as the beneficial ownership by all of them, when combined with the beneficial ownership of such publicly traded security of any person (as the term is used in (except as a passive investor owning less than two percent (2%Section 13(d) of the equity securities Securities Exchange Act of 1934) of which any of them is a publicly-owned company)member, shall constitute less than 5% of the class of such publicly traded security. Notwithstanding this Section 5.b, Executive may commence seeking other employment if neitherCompany, at least 90 days before the end of the Employment Term, shall not have offered to Executive in writing to continue to employ Executive for at least two years, on terms no less favorable than those existing as of the time of such offer.
c. Executive covenants and agrees that, during the Period of Employment, and for two years thereafter, Executive shall not, directly or acting as directorindirectly, solicit any officer or management level employee of, or consultant to, any individual, partnership, joint venture, corporation or other business entity known to you to be engaged in a Competitive Business. “Competitive Business” shall mean the development of therapeutics for spinal cord injuries, multiple sclerosis and other central nervous system conditions for which the Company is actively seeking to develop therapeutics during the term of this Agreement; provided, however, that notwithstanding the aforesaid, you shall not be prohibited from acting in any of the aforesaid capacities Companies to leave such employment or to engage in any activity that Executive would be prevented from engaging in under this Section 5.
d. Executive covenants and agrees that, during the Period of Employment and, for any subsequent period during which Section 5.b shall be in effect, Executive shall not, directly or indirectly, seek to persuade any vendor, customer, or other person doing business with any of the Companies to cease, reduce, or not increase such business.
e. Executive covenants and agrees that, during the Period of Employment, and for one year thereafter, Executive shall not disparage any of the Companies or any of the personnel of any of the Companies or reveal any information that might impair the reputation or goodwill of any of them, except that this Section 5.e shall not prohibit Executive from enforcing her rights hereunder.
f. Executive recognizes that the foregoing limitations are reasonable and properly required for the adequate protection of the business of the Companies and that in the event that any territorial or time limitation is deemed in arbitration or by a court with proper jurisdiction to be unreasonable, Executive agrees to request, and to submit to, the reduction of said territorial or time limitation to such an area or period as shall be deemed reasonable by such court. If Executive shall breach any of the foregoing covenants, then the time limitation thereof shall be extended for a period of time during which such breach shall occur. The existence of any claim or cause of action by Executive against any of the Companies, if any, whether predicated upon this Agreement or otherwise, shall not constitute a defense to the enforcement of the foregoing covenants. Executive agrees that a remedy at law for any breach or proposed or attempted breach of any of the provisions of this Section 5 shall be inadequate and that the Companies shall be entitled to injunctive relief with respect to such breach or proposed or attempted breach, in addition to any subsidiary, division, affiliate or unit (each, a “Unit”) of an entity if that Unit itself is not engaged in a Competitive Business, irrespective of whether some other Unit of such entity engages in such competition (as long as you do not engage in a Competitive Business for such other Unit)remedy it might have.
(c) During the term of your employment and for an additional period of one year after you are no longer employed by the Company, you shall not knowingly employ or solicit, encourage or induce any person (except your spouse, if applicable) who at any time within 90 days prior to the termination of your employment shall have been an employee of the Company or any of its commonly controlled affiliates, to become employed by or associated with any individual, partnership, joint venture, corporation or other business entity other than the Company, and you shall not knowingly approach any such employee for such purpose or authorize or knowingly approve the taking of such actions by any other individual, partnership, joint venture, corporation or other business entity or knowingly assist any such individual, partnership, joint venture, corporation or other business entity in taking such action.
(d) You acknowledge g. Executive agrees that the provisions of this Section 8 are reasonable and necessary for the protection of the Company and that each provision, and the period or periods of time and types and scope of restrictions on the activities specified herein are, and are intended to be divisible. In the event that any provision of this Agreement, including any sentence, clause or part hereof, 5 shall be deemed contrary to law or invalid or unenforceable in any respect by a court of competent jurisdiction, the remaining provisions shall not be affected, but shall, subject inure to the discretion benefit of and be enforceable by any person with whom or into which either Company shall merge or consolidate, regardless whether such court, remain in full force and effect and any invalid and unenforceable provisions shall be deemed, without further action on the part of the parties hereto, modified, amended and limited to the extent necessary to render the same valid and enforceable.
(e) You acknowledge that the Company will be irrevocably damaged if the covenants contained herein are not specifically enforced. Accordingly, you agree that, in addition to any other relief to which the Company may be entitled, the Company shall be entitled to seek and obtain injunctive relief from a court of competent jurisdiction for the purposes of restraining you from any actual or threatened breach survivor of such covenantstransaction, or to any person acquiring all or substantially all of either Company's assets or business.
h. Notwithstanding the foregoing provisions of Section 5, Executive shall continue to perform consulting services, as an employee on loan from Parent, to Morita Investments International B.V. ("MINT"), pursuant to the Consulting Agreement dated December 15, 1999 between MINT, Executive, and Xxxxxxxxxxx X. Xxxxx, monetary compensation under which has been assigned to Parent. If Executive shall be employed by Parent as of the end of fiscal year in which Parent shall receive monetary compensation pursuant to section 7 of such Consulting Agreement, Executive shall receive a bonus for such fiscal year equal to the percentage, of the amount that Parent shall have so received, that is set forth below opposite the compounded annual growth rate of Parent's Enterprise Value since October 31, 1999 through the end of such fiscal year ("CAGR"). Bonus percentage If CAGR is shall be ---------- ---------------- <5% 5% >5%, < 10% 10% >10%, < 15% 17.5% >15% 25% Enterprise Value as of the end of a fiscal year shall mean any excess of Asset Value over Consolidated Debt. Asset Value as of the end of a fiscal year shall mean the sum of (i) the product obtained by multiplying EBITDA for such fiscal year (including revenue from timber sales, but excluding sales of real estate or other one-time revenue items) as determined from Parent's annual audited income statement by 7.5, plus, as of the end of such fiscal year, (ii) the fair market value of real property available for development, owned by Company or any subsidiary, plus (iii) the fair market value of Company's interest in, and of the interest of any Company affiliate in, the East West joint ventures (which, for this purpose includes any transaction between Holdings or any Holdings affiliate and East West Partners, Inc. or any affiliate thereof), including East West Resort Development V, L.P., L.L.P. (collectively, an "East West Entity"), and any other joint venture or transaction as to which Executive has, at either Company's request, provided material assistance in negotiating or overseeing. Consolidated Debt shall mean the mean of the monthly balances, as recorded on the books of Parent or its subsidiaries in accordance with GAAP, during such fiscal year of debt for borrowed money, including short-term debt for money borrowed, capitalized leases, and redeemable preferred stock, but excluding the Investor Notes or accruals thereon. Notwithstanding anything else contained herein, Parent's Enterprise Value, as of October 31, 1999, was $60,000,000.
i. Notwithstanding Section 6, any dispute over any accounting determination shall be resolved conclusively by Company's regularly engaged independent accountants, applying GAAP consistently with Company's past practices, and, if either Company and Executive shall disagree regarding fair market value of real property or any interest referred to in Section 5.h, clause (iii), a conclusive determination shall be made by an appraisal firm selected by an accounting firm selected by lot from among those of the five largest United States accounting firms that shall have had no material relationship with Parent, any affiliate, Executive, or any member of Executive's family. Any determination of the fair market value of any interest referred to in Section 5.h, clause (iii) shall be made without any minority discount. The fees and expenses of such independent accountants or appraisal firm shall be borne by Parent. If the disputed item shall have been previously determined under Company's employment agreement with Xxxxxxxxxxx X. Xxxxx, and Company shall have offered Executive the opportunity fully to participate in the resolution thereof, such determination shall bind Company and Executive hereunder.
Appears in 1 contract
Samples: Employment Agreement (Booth Creek Ski Holdings Inc)
Confidentiality; Noncompetition. (a) During the term of your employment and for an additional period of five two years after you are no longer employed by the Company, you will not reveal, divulge or make known to any individual, partnership, joint venture, corporation or other business entity (other than the Company or its affiliates) or use for your own account any customer lists, trade secrets or any confidential information of any kind (“"Protected Information”") used by the Company or any of its commonly controlled affiliates in the conduct of the Company’s 's business and made known to you by reason of your employment with the Company or any of its affiliates (whether or not developed, devised or otherwise created in whole or in part by your efforts), and upon termination of the Term you will deliver to the Company any material relating to any Protected Information that you have received during your employment with the Company; provided, that Protected Information shall not include information that shall become known to the public or the trade without violation of this Section 8(a9(a); and provided, further, that you shall not violate this Section 8(a9
(a) if Protected Information is disclosed by you at the direction of the Company or if you are required to provide Protected Information in any legal proceeding or by order of any court.
(b) During the term of your employment and for an additional period of one year after you are no longer employed by the Companyemployment, you will not, directly or indirectly, engage in a Competitive Business, including owning or controlling an interest in (except as a passive investor owning less than two five percent (25%) of the equity securities of a publicly-owned company), or acting as director, officer or employee of, or consultant to, any individual, partnership, joint venture, corporation or other business entity known to you to be engaged in a Competitive Business. “"Competitive Business” " shall mean the development collection or storage of therapeutics for spinal cord injuries, multiple sclerosis and stem cells or any other central nervous system conditions for business which comprises a substantial portion of the Company is actively seeking to develop therapeutics Company's operations or Board approved planned operations during the term Term of this Agreementyour employment; provided, however, that notwithstanding the aforesaid, you shall not be prohibited from acting in any of the aforesaid capacities for or with respect to any subsidiary, division, affiliate or unit (each, a “"Unit”") of an entity if that Unit itself is not engaged in a Competitive Business, irrespective of whether some other Unit of such entity engages in such competition (as long as you do not engage in a Competitive Business for such other Unit).
(c) During the term of your employment ; and provided further that you will not be restricted from continuing to act in any capacity for an additional period of one year after and receiving compensation from those companies with which you are no longer employed by the Companycurrently have understandings, you shall not knowingly employ arrangements, agreements or solicit, encourage commitments or induce from engaging in any person (except your spouse, if applicable) who at any time within 90 days prior to the termination of your employment shall have been an employee of the Company or any of its commonly controlled affiliates, to become employed by or associated with any individual, partnership, joint venture, corporation or other business entity other than the Company, and you shall not knowingly approach any such employee activities for such purpose industry organizations or authorize or knowingly approve the taking of such actions by any other individual, partnership, joint venture, corporation or other business entity or knowingly assist any such individual, partnership, joint venture, corporation or other business entity in taking such actioncharitable foundations as you may desire.
(d) You acknowledge that the provisions of this Section 8 are reasonable and necessary for the protection of the Company and that each provision, and the period or periods of time and types and scope of restrictions on the activities specified herein are, and are intended to be divisible. In the event that any provision of this Agreement, including any sentence, clause or part hereof, shall be deemed contrary to law or invalid or unenforceable in any respect by a court of competent jurisdiction, the remaining provisions shall not be affected, but shall, subject to the discretion of such court, remain in full force and effect and any invalid and unenforceable provisions shall be deemed, without further action on the part of the parties hereto, modified, amended and limited to the extent necessary to render the same valid and enforceable.
(e) You acknowledge that the Company will be irrevocably damaged if the covenants contained herein are not specifically enforced. Accordingly, you agree that, in addition to any other relief to which the Company may be entitled, the Company shall be entitled to seek and obtain injunctive relief from a court of competent jurisdiction for the purposes of restraining you from any actual or threatened breach of such covenants.
Appears in 1 contract
Confidentiality; Noncompetition. (a) During The Employer and the term of your employment and for an additional period of five years after you are no longer employed Employee acknowledge that the services to be performed by the CompanyEmployee under this Agreement are unique and extraordinary and, you as a result of such employment, the Employee will not reveal, divulge or make known to any individual, partnership, joint venture, corporation or other business entity (other than the Company or its affiliates) or use for your own account any customer lists, trade secrets or any be in possession of confidential information relating to the business practices of the Company. The term “confidential information” shall mean any kind and all information (“Protected Information”oral and written) used by relating to the Company or any of its commonly controlled affiliates affiliates, or any of their respective activities which the Employee came into possession of in the conduct course of her employment with the Company, other than such information which can be shown by the Employee to be in the public domain (such information not being deemed to be in the public domain merely because it is embraced by more general information which is in the public domain) other than as the result of breach of the Company’s business provisions of this Section 7(a), including, but not limited to, information relating to: trade secrets, personnel lists, compensation of employees, financial information, research projects, services used, pricing, customers, customer lists and made known prospects, product sourcing, marketing and selling and servicing. Notwithstanding the foregoing “confidential information” shall not include information relating to you the general methodology and mechanics employed by reason Employee in the performance of your employment her duties with the Company or that Employee can demonstrate was known to her prior to her employment with the Company. The Employee agrees that she will not, during or after her termination or expiration of employment hereunder, directly or indirectly, use, communicate, disclose or disseminate to any person, firm or corporation any confidential information regarding the clients, customers or business practices of its affiliates (whether or not developedthe Company acquired by the Employee during her employment by Employer, devised or otherwise created in whole or in part by your efforts); providedwithout the prior written consent of Employer. Anything herein to the contrary notwithstanding, that Protected Information the provisions of this Section 7(a) shall not include apply (i) when disclosure is required by law or by any court, arbitrator, mediator or administrative or legislative body (including any committee thereof) with actual or apparent jurisdiction to order the Employee to disclose or make accessible any information, (ii) with respect to any other litigation, arbitration or mediation involving this Agreement, including, but not limited to, the enforcement of this Agreement, (iii) as to information that shall become becomes generally known to the public or within the relevant trade without or industry other than due to the Employee’s violation of this Section 8(aor (iv) as to information that is or becomes available to the Employee on a non-confidential basis from a source which is entitled to disclose it to the Employee.
(b) The Employee hereby agrees that she shall not, during the period of her employment and for a period of one (1) year following the termination of such employment, directly or indirectly, within any county (or adjacent county) in any State within the United States or territory outside the United States in which the Company is engaged in business during the period of the Employee’s employment or on the date of termination of the Employee’s employment, engage, have an interest in or render any services to any business (whether as owner, manager, operator, licensor, licensee, lender, partner, stockholder, joint venturer, employee, consultant or otherwise) competitive with the Company’s business activities.
(c) The Employee hereby agrees that she shall not, during the period of her employment and for a period of one (1) year following such employment, directly or indirectly solicit any of the Company’s customers, or persons listed on the personnel lists of the Company, to discontinue or alter his, her or its relationship with the Company. Except as required by law or legal process, at no time during the Term, or thereafter shall the Employee, directly or indirectly, disparage the commercial, business or financial reputation of the Company. Except as required by law or legal process, at no time during the Term, or thereafter shall the Employer or any executive officer of the Company, directly or indirectly, disparage the professional, business, financial or personal reputation of the Employee.
(d) For purposes of clarification, but not of limitation, the Employee hereby acknowledges and agrees that the provisions of subparagraphs 7(b) and (c) above shall serve as a prohibition against her, during the period referred to therein, directly or indirectly, hiring, offering to hire, enticing, soliciting or in any other manner persuading or attempting to persuade any officer, employee, agent, lessor, lessee, licensor, licensee or customer who has been previously contacted by either a representative of the Company, including the Employee, (but only those persons or entities that had a business or employment relationship with the Company during the time of the Employee’s employment by the Company, or at the termination of her employment); , to discontinue or alter his, her or its relationship with the Company.
(e) Upon the termination of the Employee’s employment for any reason whatsoever, all documents, records, notebooks, equipment, employee lists, price lists, specifications, programs, customer and providedprospective customer lists and other materials which refer or relate to any aspect of the business of the Company which the Employee acquired in the course of her employment with the Company and are in the possession of the Employee, furtherincluding all copies thereof, that you shall not violate be promptly returned to the Company. Anything to the contrary notwithstanding, nothing in this Section 8(a7(e) if Protected Information is disclosed by you shall prevent the Employee from retaining a home computer and security system, papers and other materials of a personal nature, including personal diaries, calendars and Rolodexes, information relating to the Employee’s compensation or relating to reimbursement of expenses, information that the Employee reasonably believe may be needed for tax purposes, and copies of plans, programs and agreements relating to the Employee’s employment.
(f) The products and proceeds of Employees services hereunder that Employee may acquire, obtain, develop or create during the Term that relate to the Company’s business, or that are otherwise made at the direction of the Company or if you are required to provide Protected Information in any legal proceeding or by order with the use of any court.
(b) During the term of your employment and for an additional period of one year after you are no longer employed by the Company’s or its affiliates’ facilities or materials, you will notincluding, directly or indirectlybut not limited to, engage in a Competitive Businessall materials, including owning or controlling an interest in ideas, concepts, formats, suggestions, developments, packages, programs and other intellectual properties (except as a passive investor owning less than two percent (2%) of the equity securities of a publicly-owned companycollectively, “Works”), or acting as director, officer or employee of, or consultant to, any individual, partnership, joint venture, corporation or other business entity known to you to shall be engaged in a Competitive Business. “Competitive Business” shall mean the development of therapeutics for spinal cord injuries, multiple sclerosis and other central nervous system conditions for which the Company is actively seeking to develop therapeutics during the term of this Agreement; provided, however, that notwithstanding the aforesaid, you shall not be prohibited from acting in any of the aforesaid capacities for or with respect to any subsidiary, division, affiliate or unit (each, considered a “Unit”) of an entity if work made for hire,” as that Unit itself term is not engaged in a Competitive Businessdefined under the United States Copyright Act, irrespective of whether some other Unit of such entity engages in such competition (as long as you do not engage in a Competitive Business for such other Unit).
(c) During the term of your employment and for an additional period of one year after you are no longer employed by the Company, you Employee shall not knowingly employ or solicit, encourage or induce any person (except your spouse, if applicable) who at any time within 90 days prior to the termination of your employment shall have been be considered an employee for hire of the Company or any of its commonly controlled affiliates, to become employed by or associated with any individual, partnership, joint venture, corporation or other business entity other than the Company, and you all rights in and to the Works, including the copyright thereto, shall not knowingly approach any such employee for such purpose or authorize or knowingly approve be the taking of such actions by any other individual, partnership, joint venture, corporation or other business entity or knowingly assist any such individual, partnership, joint venture, corporation or other business entity in taking such action.
(d) You acknowledge that the provisions of this Section 8 are reasonable sole and necessary for the protection exclusive property of the Company Company, as the sole author and that each provisionowner thereof, and the period or periods of time and types and scope of restrictions on copyright thereto may be registered by the activities specified herein are, and are intended to be divisibleCompany in its own name. In the event that any provision of this Agreement, including any sentence, clause or part hereof, shall be deemed contrary to law or invalid or unenforceable in any respect by a court of competent jurisdiction, the remaining provisions shall not be affected, but shall, subject to the discretion of such court, remain in full force and effect and any invalid and unenforceable provisions shall be deemed, without further action on the part of the parties heretoWorks shall be determined not to be a work made for hire or shall be determined not to be owned by the Company, modified, amended Employee hereby irrevocably assigns and limited transfers to the extent necessary Company, its successors and assigns, the following: (a) the entire right, title and interest in and to render the same valid copyrights, trademarks and enforceableother rights in any such Work and any rights in and to any works based upon, derived from, or incorporating any such Work (“Derivative Work”); (b) the exclusive right to obtain, register and renew the copyrights or copyright protection in any such Work or Derivative Work; (c) all income, royalties, damages, claims and payments now or hereafter due or payable with respect to any such Work and Derivative Work; and (d) all causes of action in law or equity, past and future, for infringements or violation of any of the rights in any such Work or Derivative Work, and any recoveries resulting therefrom. Employee also hereby waives in writing any moral or other rights that she has under state or federal laws, or under the laws of any foreign jurisdiction, which would give her any rights to constrain or prevent the use of any Work or Derivative Work, or which would entitle her to receive additional compensation from the Company. Employee shall execute all documents, including without limitation copyright assignments and applications and waivers of moral rights, and perform all acts that the Company may request, in order to assist the Company in perfecting its rights in and to any Work and Derivative Work anywhere in the world. Employee hereby appoints the officers of the Company as Employee’s attorney-in-fact to execute documents on behalf of Employee for this limited purpose
(g) The parties hereto hereby acknowledge and agree that (i) the Company may be irreparably injured in the event of a breach by the Employee of any of her obligations under this Section 7, (ii) monetary damages may not be an adequate remedy for any such breach, and (iii) the Company shall be entitled to seek injunctive relief, in addition to any other remedy which it may have, in the event of any such breach.
(eh) You The parties hereto hereby acknowledge that the Company will be irrevocably damaged if the covenants contained herein are not specifically enforced. Accordingly, you agree that, in addition to any other relief to which remedies the Company may be entitledhave under Section 7(g) hereof, the Company may have the right and remedy to seek to require the Employee to account for and pay over to the Company all compensation, profits, monies, accruals, increments or other benefits (collectively, “Benefits”) derived or received by the Employee as the result of any transactions constituting a breach of any of the provisions of Section 7, and the Employee hereby agrees to account for any pay over such Benefits to the Company if so ordered by an appropriate court or arbitrator.
(i) Each of the rights and remedies enumerated in Section 7(g) and 7(h) shall be entitled independent of the other, and shall be severally enforceable, and all of such rights and remedies shall be in addition to, and not in lieu of, any other rights and remedies available to seek the Company under law or in equity.
(j) It is the intent of the parties hereto that the covenants contained in this Section 7 shall be enforced to the fullest extent permissible under the laws and obtain injunctive relief from a court public policies of competent each jurisdiction in which enforcement is sought (the Employee hereby acknowledging that said restrictions are reasonably necessary for the purposes protection of restraining you from the Company). Accordingly, it is hereby agreed that if any actual of the provisions of this Section 7 shall be adjudicated to be invalid or threatened breach unenforceable for any reason whatsoever, said provision shall be (only with respect to the operation thereof in the particular jurisdiction in which such adjudication is made) construed by limiting and reducing it so as to be enforceable to the extent permissible, without invalidating the remaining provisions of such covenantsthis Agreement or affecting the validity or enforceability of said provision in any other jurisdiction.
Appears in 1 contract
Samples: Employment Agreement (Take Two Interactive Software Inc)
Confidentiality; Noncompetition. (a) During A. The Employer and the term Employee acknowledge that the services to be performed by the Employee under this Agreement are unique and extraordinary. As a result of your employment his employment, the Employee will be in possession of sensitive and for an additional period highly confidential information relating to the business practices of five years after you are no longer employed by the Company, you will not reveal, divulge or make known both in the United States and abroad. The term “confidential information” shall mean any and all information (verbal and written) relating to any individual, partnership, joint venture, corporation or other business entity (other than the Company or its affiliates) or use for your own account any customer lists, trade secrets or any confidential information of any kind (“Protected Information”) used by the Company or any of its commonly controlled affiliates affiliates, or any of their respective activities, other than such information which can be shown by the Employee to be in the conduct public domain (such information not being deemed to be in the public domain merely because it is embraced by more general information which is in the public domain) other than as the result of breach of the provisions of this Section 8.A, including, but not limited to, information relating to: trade secrets, personnel lists, financial information, research projects, services used, pricing, customers, customer lists and prospects, product sourcing, marketing and selling and servicing. The Employee agrees that he will not, during or for a period of five (5) years after the termination of employment, directly or indirectly, use, communicate, disclose or disseminate to any person, firm or corporation any confidential information regarding the clients, customers or business practices of the Company acquired by the Employee during his employment by Employer, without the prior written consent of Employer; provided, however, that the Employee understands that Employee will be prohibited from misappropriating or disclosing any trade secret (as defined for purposes of Indiana law) at any time during or after the termination of employment.
B. The Employee hereby agrees that he shall not, during the period of his employment and for a period of one (1) year following such employment, directly or indirectly, within any county (or adjacent county) in any State within the United States or within any country outside of the United States in which the Company is engaged in business during the period of the Employee’s employment or on the date of termination of the Employee’s employment, engage, have an interest in or render any services to any business (whether as owner, manager, operator, licensor, licensee, lender, partner, stockholder, joint venturer, employee, consultant or otherwise) competitive with the Company’s principal business activities, whether such activities are carried on within the United States and/or outside of the United States.
C. The Employee hereby agrees that he shall not, during the period of his employment and for a period of two (2) years following such employment, directly or indirectly, take any action which constitutes an interference with or a disruption of any of the Company’s business and made known to you by reason activities including, without limitation, the solicitation of your employment with the Company or any of its affiliates (whether the Company’s customers, or not developed, devised or otherwise created in whole or in part by your efforts); provided, that Protected Information shall not include information that shall become known to persons listed on the public or the trade without violation of this Section 8(a); and provided, further, that you shall not violate this Section 8(a) if Protected Information is disclosed by you at the direction personnel lists of the Company or if you are required to provide Protected Information in any legal proceeding or by order of any court.
(b) During the term of your employment and for an additional period of one year after you are Company. At no longer employed by the Company, you will not, directly or indirectly, engage in a Competitive Business, including owning or controlling an interest in (except as a passive investor owning less than two percent (2%) of the equity securities of a publicly-owned company), or acting as director, officer or employee of, or consultant to, any individual, partnership, joint venture, corporation or other business entity known to you to be engaged in a Competitive Business. “Competitive Business” shall mean the development of therapeutics for spinal cord injuries, multiple sclerosis and other central nervous system conditions for which the Company is actively seeking to develop therapeutics time during the term of this Agreement; provided, howeveror thereafter, shall the Employee directly or indirectly, disparage the commercial, business, or financial reputation of the Company.
D. For purposes of clarification, but not of limitation, the Employee hereby acknowledges and agrees that notwithstanding the aforesaidprovisions of Sections 8.B and 8.C above shall serve as a prohibition against him, you shall not be prohibited from acting during the period referred to therein, directly or indirectly, hiring, offering to hire, enticing, soliciting or in any other manner persuading or attempting to persuade any officer, employee, agent, lessor, lessee, licensor, licensee or customer who has been previously contacted by either a representative of the aforesaid capacities for or with respect to any subsidiaryCompany, divisionincluding the Employee, affiliate or unit (each, a “Unit”) but only those suppliers existing during the time of an entity if that Unit itself is not engaged in a Competitive Business, irrespective of whether some other Unit of such entity engages in such competition (as long as you do not engage in a Competitive Business for such other Unit).
(c) During the term of your Employee’s employment and for an additional period of one year after you are no longer employed by the Company, you shall not knowingly employ or solicit, encourage or induce any person (except your spouse, if applicable) who at any time within 90 days prior to the termination of your his employment), to discontinue or alter his, her or its relationship with the Company.
E. Upon the termination of the Employee’s employment for any reason whatsoever, or at such other time as directed by the Company, all documents, records, notebooks, equipment, price lists, specifications, programs, customer and prospective customer lists and other materials which refer or relate to any aspect of the business of the Company which are in the possession of the Employee including all copies thereof, shall have been an employee be promptly returned to the Company.
F. 1. The Employee agrees that all processes, technologies and inventions (“Inventions”), including new contributions, improvements, ideas and discoveries, whether patentable or not, conceived, developed, invented or made by him during his employment by Employer shall belong to the Company, provided that such Inventions grew out of the Employee’s work with the Company, are related in any manner to the business (commercial or experimental) of the Company or any are conceived or made on the Company’s time or with the use of its commonly controlled affiliates, the Company’s facilities or materials. The Employee shall further: (a) promptly disclose such Inventions to become employed by or associated with any individual, partnership, joint venture, corporation or other business entity other than the Company; (b) assign to the Company, without additional compensation, all patent and you shall not knowingly approach any other rights to such employee Inventions for such purpose or authorize or knowingly approve the taking of such actions by any other individual, partnership, joint venture, corporation or other business entity or knowingly assist any such individual, partnership, joint venture, corporation or other business entity in taking such action.
United States and foreign countries; (c) sign all papers necessary to carry out the foregoing; and (d) You acknowledge that the provisions give testimony in support of this Section 8 are reasonable and necessary for the protection of the Company and that each provision, and the period or periods of time and types and scope of restrictions on the activities specified herein are, and are intended to be divisible. In the event that any provision of this Agreement, including any sentence, clause or part hereof, shall be deemed contrary to law or invalid or unenforceable in any respect by a court of competent jurisdiction, the remaining provisions shall not be affected, but shall, subject to the discretion of such court, remain in full force and effect and any invalid and unenforceable provisions shall be deemed, without further action on the part of the parties hereto, modified, amended and limited to the extent necessary to render the same valid and enforceable.
(e) You acknowledge that the Company will be irrevocably damaged if the covenants contained herein are not specifically enforced. Accordingly, you agree that, in addition to any other relief to which the Company may be entitled, the Company shall be entitled to seek and obtain injunctive relief from a court of competent jurisdiction for the purposes of restraining you from any actual or threatened breach of such covenants.his inventorship;
Appears in 1 contract
Confidentiality; Noncompetition. The Employee shall not, directly or indirectly, at any time (a) During whether during the term of your employment and for an additional period of five years after you are no longer employed by the Companythis agreement or thereafter), you will not reveal, divulge or make known disclose any Confidential Information (defined below) to any individualperson, partnershipassociation, joint venture, corporation or other business entity (other than the Affiliated Companies, as defined below) or use, or permit or assist any person, association, or other entity (other than the Affiliated Companies) to use, any Confidential Information, excepting only Confidential Information which (i) is then generally available to or obtainable by the public and which did not become so available or obtainable through the breach of any provision of this agreement by the Employee, or (ii) is obtained by the Employee on a non-confidential basis from a source other than an Affiliated Company or its affiliates) any agent or use for your own account other representative of an Affiliated Company and such source had the right to disclose such Confidential Information to the Employee without violating any customer listslegal, trade secrets contractual, fiduciary, or any confidential information other obligation. Upon termination of any kind (“Protected Information”) used his employment by the Company (for any reason), the Employee shall immediately deliver to the Company all documents and other materials containing any Confidential Information which are in his possession or any of its commonly controlled affiliates in under his control. During the conduct term of the Company’s business and made known to you by reason of your Employee's employment with the Company or any of its affiliates Affiliated Company (whether pursuant to this agreement or otherwise) and during the Restricted Period (defined below), the Employee shall not, other than on behalf of the Company, directly or indirectly (whether individually or as a shareholder or other owner, partner, member, director, officer, employee, consultant, creditor, or agent of any person, association, or other entity):
(a) Enter into, engage in, or promote or assist (financially or otherwise), whether directly or indirectly, any business which competes with the business of any Affiliated Company (the "Business"); provided that the foregoing shall not developedprohibit the Employee from (i) being employed by the PA during or following the Employee's employment with the Company, devised (ii) owning not more than 1% of the outstanding capital stock of any corporation whose shares are publicly traded on a national securities exchange or system, or (iii) becoming an employee of, or otherwise created in whole performing services for, after the termination of the Employee's employment with the Company and any Affiliated Companies, a professional corporation or in part by your efforts); provided, that Protected Information shall not include information that shall become known association or other person or entity which provides professional dental care services to the public (a "Dental Care Provider"), so long as such Dental Care Provider is not an ADP Provider (as defined below) and was not an ADP Provider at any time during the one-year period immediately preceding such Dental Care Provider's employment or the trade without violation of this Section 8(a); and provided, further, that you shall not violate this Section 8(a) if Protected Information is disclosed by you at the direction other engagement of the Company or if you are required to provide Protected Information in any legal proceeding or by order of any court.Employee;
(b) During the term of your employment and for Solicit or attempt to solicit business from any Dental Care Provider to which any Affiliated Company provides management, consulting, or other services (an additional period of one year after you are no longer employed by the Company, you will not, directly or indirectly, engage in a Competitive Business, including owning or controlling an interest in (except as a passive investor owning less than two percent (2%) of the equity securities of a publicly-owned company"ADP Provider"), or acting as director, officer interfere or employee of, or consultant to, attempt to interfere with any individual, partnership, joint venture, corporation or other business entity known to you to be engaged in a Competitive Business. “Competitive Business” shall mean the development relationship of therapeutics for spinal cord injuries, multiple sclerosis and other central nervous system conditions for which the any Affiliated Company is actively seeking to develop therapeutics during the term of this Agreement; provided, however, that notwithstanding the aforesaid, you shall not be prohibited from acting in with any of the aforesaid capacities for or with respect to any subsidiary, division, affiliate or unit (each, a “Unit”) of an entity if that Unit itself is not engaged in a Competitive Business, irrespective of whether some other Unit of such entity engages in such competition (as long as you do not engage in a Competitive Business for such other Unit).ADP Provider;
(c) During the term Induce or encourage any employee, officer, director, agent, supplier, or independent contractor of your employment and for an additional period of one year after you are no longer employed by the any Affiliated Company to terminate its relationship with such Affiliated Company, you shall not knowingly employ or solicitotherwise interfere or attempt to interfere in any way with any Affiliated Company's relationships with its employees, encourage officers, directors, agents, suppliers, independent contractors, or induce others;
(d) Employ or engage any person (except your spousewho, if applicable) who at any time within 90 days prior to the termination one-year period immediately preceding such employment or engagement, was an employee, officer, or director of your employment shall have been an employee of the Company or any of its commonly controlled affiliates, to become employed by or associated with any individual, partnership, joint venture, corporation or other business entity other than the Affiliated Company, and you shall not knowingly approach any such employee for such purpose or authorize or knowingly approve the taking of such actions by any other individual, partnership, joint venture, corporation or other business entity or knowingly assist any such individual, partnership, joint venture, corporation or other business entity in taking such action.
(d) You acknowledge that the provisions of this Section 8 are reasonable and necessary for the protection of the Company and that each provision, and the period or periods of time and types and scope of restrictions on the activities specified herein are, and are intended to be divisible. In the event that any provision of this Agreement, including any sentence, clause or part hereof, shall be deemed contrary to law or invalid or unenforceable in any respect by a court of competent jurisdiction, the remaining provisions shall not be affected, but shall, subject to the discretion of such court, remain in full force and effect and any invalid and unenforceable provisions shall be deemed, without further action on the part of the parties hereto, modified, amended and limited to the extent necessary to render the same valid and enforceable.; or
(e) You acknowledge that the Company will be irrevocably damaged if the covenants contained herein are not specifically enforced. Accordingly, you agree that, in addition to Make any statement (oral or written) or take any other relief action which would tend to which disparage or diminish the Company may be entitled, the Company shall be entitled to seek and obtain injunctive relief from a court reputation of competent jurisdiction for the purposes of restraining you from any actual or threatened breach of such covenantsAffiliated Company.
Appears in 1 contract
Samples: Employment Agreement (American Dental Partners Inc)
Confidentiality; Noncompetition. (a) During A. The Employer and the term of your employment and for an additional period of five years after you are no longer employed Executive acknowledge that the services to be performed by the CompanyExecutive under this Agreement are unique and extraordinary and, you as a result of such employment, the Executive will not reveal, divulge or make known to any individual, partnership, joint venture, corporation or other business entity (other than the Company or its affiliates) or use for your own account any customer lists, trade secrets or any be in possession of confidential information relating to the business practices of the Company. The term “confidential information” shall mean any kind and all information (“Protected Information”verbal and written) used by relating to the Company or any of its commonly controlled affiliates affiliates, or any of their respective activities, other than such information which can be shown by the Executive to be in the conduct public domain (such information not being deemed to be in the public domain merely because it is embraced by more general information which is in the public domain) other than as the result of breach of the provisions of this Section 10(a), including, but not limited to, information relating to: trade secrets, personnel lists, financial information, research projects, services used, pricing, customers, customer lists and prospects, product sourcing, marketing and selling and servicing. The Executive agrees that he will not, during or for a period of two years after the termination of employment, directly or indirectly, use, communicate, disclose or disseminate to any person, firm or corporation any confidential information regarding the clients, customers or business practices of the Company acquired by the Executive during his employment by Employer, without the prior written consent of Employer; provided, however, that the Executive understands that Executive will be prohibited from misappropriating any trade secret (as defined for purposes of Indiana law) at any time during or after the termination of employment.
B. The Executive hereby agrees that he shall not, during the period of his employment and for a period of two (2) years following such employment, directly or indirectly, within any county (or adjacent county) in any State within the United States or territory outside the United States in which the Company is engaged in business during the period of the Executive’s employment or on the date of termination of the Executive’s employment, engage, have an interest in or render any services to any business (whether as owner, manager, operator, licensor, licensee, lender, partner, stockholder, joint venturer, employee, consultant or otherwise) competitive with the Company’s principal business activities. Notwithstanding the foregoing: (i) Executive shall be permitted to own (as a passive investment) not more than 5% of any class of securities which is publicly traded; provided, however that said 5% limitation shall apply to the aggregate holdings of Executive and those of all other persons and entities with whom Executive has agreed to act for the purpose of acquiring, holding, voting or disposing of such securities, and (ii) if the Employer provides the Executive with a Notice of Non Renewal so that no Renewal Term is created hereunder, then the post employment restriction period as set forth in this section B. shall be one (1) year following the Initial Term.
C. The Executive hereby agrees that he shall not, during the period of his employment and for a period of two (2) years following such employment, directly or indirectly, take any action which constitutes an interference with or a disruption of any of the Company’s business and made known to you by reason of your employment with activities including, without limitation, the Company or any of its affiliates (whether or not developed, devised or otherwise created in whole or in part by your efforts); provided, that Protected Information shall not include information that shall become known to the public or the trade without violation of this Section 8(a); and provided, further, that you shall not violate this Section 8(a) if Protected Information is disclosed by you at the direction solicitations of the Company Company’s customers, or if you are required to provide Protected Information in any legal proceeding or by order persons listed on the personnel lists of any court.
(b) During the term of your employment and for an additional period of one year after you are no longer employed by the Company, you will not, directly or indirectly, engage in a Competitive Business, including owning or controlling an interest in (except as a passive investor owning less than two percent (2%) of the equity securities of a publicly-owned company), or acting as director, officer or employee of, or consultant to, any individual, partnership, joint venture, corporation or other business entity known to you to be engaged in a Competitive Business. “Competitive Business” shall mean the development of therapeutics for spinal cord injuries, multiple sclerosis and other central nervous system conditions for which the Company is actively seeking to develop therapeutics At no time during the term of this Agreement; provided, howeveror thereafter shall the Executive directly or indirectly, disparage the commercial, business or financial reputation of the Company.
D. For purposes of clarification, but not of limitation, the Executive hereby acknowledges and agrees that notwithstanding the aforesaidprovisions of subparagraphs IX.B. and IX.C. above shall serve as a prohibition against him, you shall not be prohibited from acting during the period referred to therein, directly or indirectly, hiring, offering to hire, enticing, soliciting or in any other manner persuading or attempting to persuade any officer, employee, agent, lessor, lessee, licensor, licensee or customer who has been previously contacted by either a representative of the aforesaid capacities for or with respect to any subsidiaryCompany, divisionincluding the Executive, affiliate or unit (each, a “Unit”) but only those suppliers existing during the time of an entity if that Unit itself is not engaged in a Competitive Business, irrespective of whether some other Unit of such entity engages in such competition (as long as you do not engage in a Competitive Business for such other Unit).
(c) During the term of your Executive’s employment and for an additional period of one year after you are no longer employed by the Company, you shall not knowingly employ or solicit, encourage or induce any person (except your spouse, if applicable) who at any time within 90 days prior to the termination of your his employment), to discontinue or alter his, her or its relationship with the Company.
E. Upon the termination of the Executive’s employment for any reason whatsoever, all documents, records, notebooks, equipment, price lists, specifications, programs, customer and prospective customer lists and other materials which refer or relate to any aspect of the business of the Company which are in the possession of the Executive including all copies thereof, shall have been an employee be promptly returned to the Company.
F. 1. The Executive agrees that all processes, technologies and inventions (“Inventions”), including new contributions, improvements, ideas and discoveries, whether patentable or not, conceived, developed, invented or made by him during his employment by Employer shall belong to the Company, provided that such Inventions grew out of the Executive’s work with the Company, are related in any manner to the business (commercial or experimental) of the Company or any are conceived or made on the Company’s time or with the use of its commonly controlled affiliates, the Company’s facilities or materials. The Executive shall further: (a) promptly disclose such Inventions to become employed by or associated with any individual, partnership, joint venture, corporation or other business entity other than the Company; (b) assign to the Company, without additional compensation, all patent and you shall not knowingly approach any other rights to such employee Inventions for such purpose or authorize or knowingly approve the taking of such actions by any other individual, partnership, joint venture, corporation or other business entity or knowingly assist any such individual, partnership, joint venture, corporation or other business entity in taking such action.
United States and foreign countries; (c) sign all papers necessary to carry out the foregoing; and (d) You acknowledge that the provisions give testimony in support of this Section 8 are reasonable and necessary for the protection of the Company and that each provision, and the period or periods of time and types and scope of restrictions on the activities specified herein are, and are intended to be divisible. In the event that any provision of this Agreement, including any sentence, clause or part hereof, shall be deemed contrary to law or invalid or unenforceable in any respect by a court of competent jurisdiction, the remaining provisions shall not be affected, but shall, subject to the discretion of such court, remain in full force and effect and any invalid and unenforceable provisions shall be deemed, without further action on the part of the parties hereto, modified, amended and limited to the extent necessary to render the same valid and enforceable.
(e) You acknowledge that the Company will be irrevocably damaged if the covenants contained herein are not specifically enforced. Accordingly, you agree that, in addition to any other relief to which the Company may be entitled, the Company shall be entitled to seek and obtain injunctive relief from a court of competent jurisdiction for the purposes of restraining you from any actual or threatened breach of such covenants.his inventorship;
Appears in 1 contract
Confidentiality; Noncompetition. (a) During the term of your employment and for an additional period of five years after you are no longer employed by the Company, you will not reveal, divulge or make known to any individual, partnership, joint venture, corporation or other business entity (other than the Company or its affiliates) or use for your own account any customer lists, trade secrets or any confidential information of any kind (“Protected Information”) used by the Company or any of its commonly controlled affiliates in the conduct of the Company’s business and made known to you by reason of your employment with the Company or any of its affiliates (whether or not developed, devised or otherwise created in whole or in part by your efforts); provided, that Protected Information The Executive shall not include information that shall become known to the public or the trade without violation of this Section 8(a); and provided, further, that you shall not violate this Section 8(a) if Protected Information is disclosed by you at the direction of the Company or if you are required to provide Protected Information in any legal proceeding or by order of any court.
(b) During the term of your employment and for an additional period of one year after you are no longer employed by the Company, you will not, directly or indirectly, engage in a Competitive Businessat any time, including owning disclose any Confidential Information (defined below) to any person, association, or controlling an interest in other entity (except other than the Affiliated Companies, as a passive investor owning less than two percent (2%) of the equity securities of a publicly-owned companydefined below), or acting as director, officer or employee ofuse, or consultant toauthorize or assist any person, association, or other entity (other than the Affiliated Companies) to use, any individualConfidential Information, partnershipexcepting only (a) disclosures required by applicable law, joint ventureand (b) disclosures made on a confidential basis to the Executive's legal counsel, corporation accountants, or other business entity known financial advisors (the "Executive's Representatives"); provided that (i) if the Executive believes disclosure of Confidential Information is required by applicable law, the Executive shall promptly (and in any event prior to you to be engaged in a Competitive Business. “Competitive Business” shall mean the development of therapeutics for spinal cord injuries, multiple sclerosis and other central nervous system conditions for which such disclosure) give the Company is actively seeking notice of such proposed disclosure and cooperate with the Company in all ways reasonably requested by it in its efforts to develop therapeutics during obtain a protective order or otherwise limit the term scope of such disclosure to the extent the Company deems necessary or appropriate; (ii) the Executive shall cause the Executive's Representatives to observe and adhere to the terms of this Agreementparagraph the same as such terms are binding on the Executive and shall be responsible and liable for any breach of the terms of this paragraph by any such Representatives; provided, however, that notwithstanding and (iii) the aforesaid, you Executive shall not be prohibited or restricted from acting disclosing or using Confidential Information to the extent reasonably necessary to protect his rights under this agreement or to defend himself in an action brought against him arising out of his service as a director, officer, or employee of any of the aforesaid capacities for Affiliated Companies. On or with respect to any subsidiarybefore the Separation Date, division, affiliate or unit (each, a “Unit”) of an entity if that Unit itself is not engaged in a Competitive Business, irrespective of whether some other Unit of such entity engages in such competition (as long as you do not engage in a Competitive Business for such other Unit).
(c) During the term of your employment and for an additional period of one year after you are no longer employed by the Company, you Executive shall not knowingly employ or solicit, encourage or induce any person (except your spouse, if applicable) who at any time within 90 days prior immediately deliver to the termination Company all documents and other materials containing any Confidential Information which are in his possession or under his control; provided that the Company shall provide the Executive with reasonable access to Confidential Information which relates to his service as a director of your employment shall have been the Company or its subsidiaries, or Confidential Information which relates to his compensation or service as an employee of the Company or its subsidiaries, for any reasonable purpose upon reasonable prior notice. During the Severance Period, the Executive shall not, other than as a result of any consulting services requested by the Company under Section 1 of this agreement, directly or indirectly (whether individually or as a shareholder or other owner, partner, member, director, officer, employee, consultant, creditor or agent of any person, association, or other entity):
(A) Enter into, engage in, or promote or assist (financially or otherwise), directly or indirectly, any business which provides any commercial banking, savings banking, mortgage lending, or any similar lending or banking services (the "Restricted Services") anywhere in the geographic area of the States of Ohio, Indiana, Michigan, and Kentucky (the "Restricted Territory");
(B) Solicit any person or entity located in the Restricted Territory for the provision of any Restricted Services;
(C) Induce or encourage any employee, officer, director, agent, customer, supplier, or independent contractor of any Affiliated Company to terminate its relationship with any Affiliated Company, or otherwise interfere or attempt to interfere in any way with any Affiliated Company's relationships with any of its commonly controlled affiliatesemployees, to become employed by officers, directors, agents, customers, suppliers, independent contractors, or associated with others;
(D) Employ or engage any individualperson who, partnershipat any time within the one-year period immediately preceding such employment or engagement, joint venturewas an employee, corporation officer, or other business entity other than the director of any Affiliated Company; or
(E) Make any statement (oral or written), and you shall not knowingly approach any such employee for such purpose or authorize or knowingly approve the taking of such actions by take any other individualaction, partnershipwhich is in any way disparaging to any Affiliated Company or tends to diminish the reputation of any Affiliated Company. Notwithstanding the foregoing provisions of this section, joint venture, corporation or other business entity or knowingly assist any such individual, partnership, joint venture, corporation or other business entity in taking such action.
(d) You acknowledge that the provisions of the immediately preceding paragraph of this Section 8 are reasonable and necessary for section shall not prohibit the protection Executive from owning, directly or indirectly, two percent or less of the Company issued and outstanding voting stock of a company whose shares are publicly traded, or limit or restrict the Executive from fulfilling his duties as a director of Ohio Casualty Corporation or its subsidiaries, provided that each provisionin performing such duties he does not personally violate the foregoing provisions, and the period it being understood that merely voting as a director, or periods of time and types and scope of restrictions on the activities specified herein areparticipating in board discussion, and are intended to be divisible. In the event that any provision of this Agreement, including any sentence, clause or part hereof, shall be deemed contrary to law or invalid or unenforceable in any respect by a court of competent jurisdiction, the remaining provisions shall not be affected, but shall, subject deemed to the discretion of such court, remain in full force and effect and any invalid and unenforceable provisions shall be deemed, without further action on the part of the parties hereto, modified, amended and limited to the extent necessary to render the same valid and enforceablea personal violation.
(e) You acknowledge that the Company will be irrevocably damaged if the covenants contained herein are not specifically enforced. Accordingly, you agree that, in addition to any other relief to which the Company may be entitled, the Company shall be entitled to seek and obtain injunctive relief from a court of competent jurisdiction for the purposes of restraining you from any actual or threatened breach of such covenants.
Appears in 1 contract
Samples: Separation Agreement (First Financial Bancorp /Oh/)
Confidentiality; Noncompetition. a. Executive shall regard and preserve as confidential all proprietary or confidential information of Company or any business concern controlling, controlled by, or under common control with Company or of any East West Entity (aas such term is defined in Section 5(h) During hereof) (collectively, "Companies") that has been or may be developed or obtained by or disclosed to Executive by reason of Executive's employment ("Confidential Information") with any of the term Companies. Executive shall not use for Executive's own benefit or purpose, or the benefit or purpose of your employment and for an additional period of five years after you are no longer employed by the Company, you will not reveal, divulge or make known to any individual, partnership, joint venture, corporation or other business entity (person other than the Company Companies, or disclose to others, either during the Employment Term or at any time thereafter, except as required in the course of Executive's employment with any of the Companies, any Confidential Information. Confidential Information shall include, but not be limited to, all nonpublic information of any of the Companies relating to its affiliates) business, including all vendor or use for your own account any customer lists, trade secrets financial information, methods of operation, business plans, marketing plans, strategies, or forecasts, proprietary software or other technology, and terms of contracts. This subsection a. shall not prevent Executive from performing his duties under the Consulting Agreement referred to in Section 5.h, so long as both the Employment Term and such Consulting Agreement shall remain in effect and Executive's use or disclosure of Confidential Information in performing his duties under the Consulting Agreement shall be limited to that reasonably required for such purpose. This Section 5.a shall not apply to information that becomes public other than through a breach of this Agreement by Executive; to information that Executive obtained non-confidentially before commencement of the Employment Term; or to any confidential information of any kind disclosure that Executive shall be required by law to make.
b. Executive covenants and agrees that (“Protected Information”i) used for so long as Executive shall be employed by the Company or any of its commonly controlled affiliates the Companies (the "Period of Employment") and (ii) if the Executive's employment shall have been terminated during the Employment Term (x) by either Company for cause, (y) by Executive in breach of this Agreement, or (z) pursuant to clause iii., iv., or v. of Section 3.b, and, in the conduct of the Company’s business and made known to you by reason of your employment with the Company or any of its affiliates (whether or not developed, devised or otherwise created in whole or in part by your efforts); provided, that Protected Information shall not include information that shall become known to the public or the trade without violation case of this subclause (z), Company shall be in compliance with clause iii of Section 8(a); and provided3.c, further, that you shall not violate this Section 8(a) if Protected Information is disclosed by you at the direction of the Company or if you are required to provide Protected Information in any legal proceeding or by order of any court.
(b) During the term of your employment and then for an additional period of one year after you are no longer employed by the Companytermination of such employment, you will Executive shall not, directly or indirectly, as principal, partner, agent, employee, independent contractor, stockholder, or otherwise, anywhere in the United States or Canada, engage or attempt to engage in a Competitive Businessany ski resort business or ski resort real estate development business or within 50 miles of Lake Tahoe any business activity of the kind being conducted or planned to be conducted by any of the Companies. The foregoing shall not prohibit Executive, including together with Executive's spouse and children, from owning or controlling an interest beneficially any publicly traded security, so long as the beneficial ownership by all of them, when combined with the beneficial ownership of such publicly traded security of any person (as the term is used in (except as a passive investor owning less than two percent (2%Section 13(d) of the equity securities Securities Exchange Act of 1934) of which any of them is a publicly-owned company)member, shall constitute less than 5% of the class of such publicly traded security. Notwithstanding this Section 5.b, Executive may commence seeking other employment if neither Company, at least 90 days before the end of the Employment Term, shall not have offered to Executive in writing to continue to employ Executive for at least two years, on terms no less favorable than those existing as of the time of such offer.
c. Executive covenants and agrees that, during the Period of Employment, and for two years thereafter, Executive shall not, directly or acting as directorindirectly, solicit any officer or management level employee of, or consultant to, any individual, partnership, joint venture, corporation or other business entity known to you to be engaged in a Competitive Business. “Competitive Business” shall mean the development of therapeutics for spinal cord injuries, multiple sclerosis and other central nervous system conditions for which the Company is actively seeking to develop therapeutics during the term of this Agreement; provided, however, that notwithstanding the aforesaid, you shall not be prohibited from acting in any of the aforesaid capacities Companies to leave such employment or to engage in any activity that Executive would be prevented from engaging in under this Section 5.
d. Executive covenants and agrees that, during the Period of Employment and, for any subsequent period during which Section 5.b shall be in effect, Executive shall not, directly or indirectly, seek to persuade any vendor, customer, or other person doing business with any of the Companies to cease, reduce, or not increase such business.
e. Executive covenants and agrees that, during the Period of Employment, and for one year thereafter, Executive shall not disparage any of the Companies or any of the personnel of any of the Companies or reveal any information that might impair the reputation or goodwill of any of them, except that this Section 5.e shall not prohibit Executive from enforcing his rights hereunder.
f. Executive recognizes that the foregoing limitations are reasonable and properly required for the adequate protection of the business of the Companies and that in the event that any territorial or time limitation is deemed in arbitration or by a court with proper jurisdiction to be unreasonable, Executive agrees to request, and to submit to, the reduction of said territorial or time limitation to such an area or period as shall be deemed reasonable by such court. If Executive shall breach any of the foregoing covenants, then the time limitation thereof shall be extended for a period of time during which such breach shall occur. The existence of any claim or cause of action by Executive against any of the Companies, if any, whether predicated upon this Agreement or otherwise, shall not constitute a defense to the enforcement of the foregoing covenants. Executive agrees that a remedy at law for any breach or proposed or attempted breach of any of the provisions of this Section 5 shall be inadequate and that the Companies shall be entitled to injunctive relief with respect to such breach or proposed or attempted breach, in addition to any subsidiary, division, affiliate or unit (each, a “Unit”) of an entity if that Unit itself is not engaged in a Competitive Business, irrespective of whether some other Unit of such entity engages in such competition (as long as you do not engage in a Competitive Business for such other Unit)remedy it might have.
(c) During the term of your employment and for an additional period of one year after you are no longer employed by the Company, you shall not knowingly employ or solicit, encourage or induce any person (except your spouse, if applicable) who at any time within 90 days prior to the termination of your employment shall have been an employee of the Company or any of its commonly controlled affiliates, to become employed by or associated with any individual, partnership, joint venture, corporation or other business entity other than the Company, and you shall not knowingly approach any such employee for such purpose or authorize or knowingly approve the taking of such actions by any other individual, partnership, joint venture, corporation or other business entity or knowingly assist any such individual, partnership, joint venture, corporation or other business entity in taking such action.
(d) You acknowledge g. Executive agrees that the provisions of this Section 8 are reasonable and necessary for the protection of the Company and that each provision, and the period or periods of time and types and scope of restrictions on the activities specified herein are, and are intended to be divisible. In the event that any provision of this Agreement, including any sentence, clause or part hereof, 5 shall be deemed contrary to law or invalid or unenforceable in any respect by a court of competent jurisdiction, the remaining provisions shall not be affected, but shall, subject inure to the discretion benefit of and be enforceable by any person with whom or into which either Company shall merge or consolidate, regardless whether such court, remain in full force and effect and any invalid and unenforceable provisions shall be deemed, without further action on the part of the parties hereto, modified, amended and limited to the extent necessary to render the same valid and enforceable.
(e) You acknowledge that the Company will be irrevocably damaged if the covenants contained herein are not specifically enforced. Accordingly, you agree that, in addition to any other relief to which the Company may be entitled, the Company shall be entitled to seek and obtain injunctive relief from a court of competent jurisdiction for the purposes of restraining you from any actual or threatened breach survivor of such covenantstransaction, or to any person acquiring all or substantially all of either Company's assets or business.
h. Notwithstanding the foregoing provisions of Section 5, Executive shall continue to perform consulting services, as an employee on loan from Parent, to Morita Investments International B.V. ("MINT"), pursuant to the Consulting Agreement dated December 15, 1999 between MINT, Executive, and Xxxxxxxxx X. Xxxx, monetary compensation under which has been assigned to Parent. If Executive shall be employed by Parent as of the end of fiscal year in which Parent shall receive monetary compensation pursuant to section 7 of such Consulting Agreement, Executive shall receive a bonus for such fiscal year equal to the percentage, of the amount that Parent shall have so received, that is set forth below opposite the compounded annual growth rate of Parent's Enterprise Value since October 31, 1999 through the end of such fiscal year ("CAGR"). Bonus percentage If CAGR is shall be ---------- ---------------- <5% 5% >5%, < 10% 10% >10%, < 15% 17.5% >15% 25% Enterprise Value as of the end of a fiscal year shall mean any excess of Asset Value over Consolidated Debt. Asset Value as of the end of a fiscal year shall mean the sum of (i) the product obtained by multiplying EBITDA for such fiscal year (including revenue from timber sales, but excluding sales of real estate or other one-time revenue items) as determined from Parent's annual audited income statement by 7.5, plus, as of the end of such fiscal year, (ii) the fair market value of real property available for development, owned by Company or any subsidiary, plus (iii) the fair market value of Company's interest in, and of the interest of any Company affiliate in, the East West joint ventures (which, for this purpose includes any transaction between Holdings or any Holdings affiliate and East West Partners, Inc. or any affiliate thereof), including East West Resort Development V, L.P., L.L.P. (collectively, an "East West Entity"), and any other joint venture or transaction as to which Executive has, at either Company's request, provided material assistance in negotiating or overseeing. Consolidated Debt shall mean the mean of the monthly balances, as recorded on the books of Parent or its subsidiaries in accordance with GAAP, during such fiscal year of debt for borrowed money, including short-term debt for money borrowed, capitalized leases, and redeemable preferred stock, but excluding the Investor Notes or accruals thereon. Notwithstanding anything else contained herein, Parent's Enterprise Value, as of October 31, 1999, was $60,000,000.
i. Notwithstanding Section 6, any dispute over any accounting determination shall be resolved conclusively by Company's regularly engaged independent accountants, applying GAAP consistently with Company's past practices, and, if either Company and Executive shall disagree regarding fair market value of real property or any interest referred to in Section 5.h, clause (iii), a conclusive determination shall be made by an appraisal firm selected by an accounting firm selected by lot from among those of the five largest United States accounting firms that shall have had no material relationship with Parent, any affiliate, Executive, or any member of Executive's family. Any determination of the fair market value of any interest referred to in Section 5.h, clause (iii) shall be made without any minority discount. The fees and expenses of such independent accountants or appraisal firm shall be borne by Parent. If the disputed item shall have been previously determined under Company's employment agreement with Xxxxxxxxx X. Xxxx, and Company shall have offered Executive the opportunity fully to participate in the resolution thereof, such determination shall bind Company and Executive hereunder.
Appears in 1 contract
Samples: Employment Agreement (Booth Creek Ski Holdings Inc)
Confidentiality; Noncompetition. (a) During the term of your employment this Agreement and for an additional period at all times thereafter, each Management Shareholder agrees that, except to the extent required in the course of five years after you are no longer employed by the Companyhis employment, you he will not reveal, divulge or make known to any individual, partnership, joint venture, corporation or other business entity anyone (other than the Company or Company, its affiliates) or use for your own account any customer lists, trade secrets subsidiary or any confidential information of any kind (“Protected Information”) used persons employed or designated by the Company or its subsidiary) any of its commonly controlled affiliates in the conduct of the Company’s business and made known to you by reason of your employment with the Company confidential knowledge or any of its affiliates (whether or not developed, devised or otherwise created in whole or in part by your efforts); provided, that Protected Information shall not include information that shall become known relating to the public or the trade without violation of this Section 8(a); and provided, further, that you shall not violate this Section 8(a) if Protected Information is disclosed by you at the direction of the Company or if you are required to provide Protected Information in any legal proceeding or by order of any court.
(b) During the term of your employment and for an additional period of one year after you are no longer employed by the Company, you will not, directly or indirectly, engage in a Competitive Business, including owning or controlling an interest in (except as a passive investor owning less than two percent (2%) of the equity securities of a publicly-owned company), or acting as director, officer or employee of, or consultant to, any individual, partnership, joint venture, corporation or other business entity known to you to be engaged in a Competitive Business. “Competitive Business” shall mean the development of therapeutics for spinal cord injuries, multiple sclerosis and other central nervous system conditions for which the Company is actively seeking to develop therapeutics during the term of this Agreement; provided, however, that notwithstanding the aforesaid, you shall not be prohibited from acting in any of the aforesaid capacities for or with respect to any subsidiary, division, affiliate or unit (each, a “Unit”) of an entity if that Unit itself is not engaged in a Competitive Business, irrespective of whether some other Unit of such entity engages in such competition (as long as you do not engage in a Competitive Business for such other Unit).
(c) During the term of your employment and for an additional period of one year after you are no longer employed by the Company, you shall not knowingly employ or solicit, encourage or induce any person (except your spouse, if applicable) who at any time within 90 days prior to the termination of your employment shall have been an employee of the Company or any of its commonly controlled subsidiaries or affiliates, including, without limitation, all types of trade secrets (unless readily ascertainable from public or published information or trade sources), product design and customer and supplier information. Each Management Shareholder further agrees not to become employed by disclose, publish or associated with make use of any individualsuch knowledge or information for personal purposes or for the benefit of any person, partnership, joint venturefirm, corporation or other business entity (other than the Company, and you its subsidiary or any persons employed or designated by the Company or its subsidiary) without the prior written consent of the Company or its subsidiary.
(b) No Management Shareholder, nor any Affiliate thereof, will for the period set forth opposite such Management Shareholders name on Annex I hereto ------- following the Effective Time (the "Noncompetition Period"), (i) in any --------------------- geographic area where the Company or its subsidiary conducts business during the Noncompetition Period, engage or participate in directly or indirectly (whether as an officer, director, employee, partner, consultant, holder of an equity or debt investment, lender or in any other manner or capacity, including, without limitation, by the rendering of services or advice to any person), or lend his name (or any part or variant thereof) to, any Competing Business (as defined below); (ii) deal, directly or indirectly, in a competitive manner with any customers doing business with the Company or its subsidiary during the Noncompetition Period; (iii) solicit or employ any officer, director or agent of the Company or its subsidiary to become an officer, director, or agent of any Management Shareholder, their respective Affiliates or anyone else; or (iv) engage in or participate in, directly or indirectly, any business conducted under any name that shall be the same as or similar to the name of the Company or its subsidiary or any trade name used by the Company or its subsidiary. Ownership by a Management Shareholder for investment of less than 2% of the outstanding shares of capital stock or class of debt securities of any corporation with one or more classes of its capital stock listed on a national securities exchange or actively traded in the over-the-counter market shall not knowingly approach constitute a breach of the foregoing covenant. The term "Competing Business" shall mean any such employee for such purpose or authorize or knowingly approve the taking of such actions by any other individual, partnership, joint venture, corporation transportation or other business entity or knowingly assist any such individual, partnership, joint venture, corporation or other business entity in taking such action.
(d) You acknowledge that the provisions of this Section 8 are reasonable and necessary for the protection of the Company and that each provision, and the period or periods of time and types and scope of restrictions on the activities specified herein are, and are intended to be divisible. In the event that any provision of this Agreement, including any sentence, clause or part hereof, shall be deemed contrary to law or invalid or unenforceable in any respect by a court of competent jurisdiction, the remaining provisions shall not be affected, but shall, subject to the discretion of such court, remain in full force and effect and any invalid and unenforceable provisions shall be deemed, without further action on the part of the parties hereto, modified, amended and limited to the extent necessary to render the same valid and enforceable.
(e) You acknowledge that the Company will be irrevocably damaged if or its subsidiary or any of their respective Affiliates have engaged in at any time during the covenants contained herein are not specifically enforced. Accordinglyperiod of employment of the applicable Management Shareholder in any city or county in any state of the United States, you agree thatCanada or Mexico including, without limitation, any business engaged in addition (i) intermodal marketing, (ii) flatbed specialized hauling services, (iii) less-then-truckload common carrier services, (iv) drayage, consolidation, deconsolidation or distribution services, (v) contract warehousing, freight handling or logistic services, (vi) comprehensive transportation management programs or services to any other relief to which the Company may be entitledthird party customers, the Company shall be entitled to seek (vii) freight consolidation and obtain injunctive relief from a court of competent jurisdiction for the purposes of restraining you from any actual or threatened breach of such covenantsdeconsolidation, (viii) traffic management, and (ix) railroad signal project management.
Appears in 1 contract
Confidentiality; Noncompetition. (a) During The Employer and the term of your employment and for an additional period of five years after you are no longer employed Employee acknowledge that the services to be performed by the CompanyEmployee under this Agreement are unique and extraordinary and, you as a result of such employment, the Employee will not reveal, divulge or make known to any individual, partnership, joint venture, corporation or other business entity (other than the Company or its affiliates) or use for your own account any customer lists, trade secrets or any be in possession of confidential information relating to the business practices of the Company. The term “confidential information” shall mean any kind and all information (“Protected Information”oral and written) used by relating to the Company or any of its commonly controlled affiliates in the conduct of the Company’s business and made known to you by reason of your employment with the Company affiliates, or any of its affiliates their respective activities, other than such information which can be shown by the Employee to be in the public domain (whether or such information not developedbeing deemed to be in the public domain merely because it is embraced by more general information which is in the public domain) other than as the result of breach of the provisions of this Section 7(a), devised or otherwise created in whole or in part by your efforts); providedincluding, that Protected Information but not limited to, information relating to: trade secrets, personnel lists, compensation of employees, financial information, research projects, services used, pricing, customers, customer lists and prospects, product sourcing, marketing and selling and servicing. Notwithstanding the foregoing “confidential information” shall not include information that Employee can demonstrate was known to him prior to his employment with the Company. The Employee agrees that he will not, during or after his termination or expiration of employment hereunder, directly or indirectly, use, communicate, disclose or disseminate to any person, firm or corporation any confidential information without the prior written consent of the Employer. Anything herein to the contrary notwithstanding, the provisions of this Section 7(a) shall become not apply: (i) when disclosure is required by law or by any court, arbitrator or administrative or legislative body (including any committee thereof) with actual or apparent jurisdiction to order the Employee to disclose or make accessible any information; (ii) with respect to any other litigation, arbitration or mediation involving this Agreement, including, but not limited to, the enforcement of this Agreement; or (iii) as to information that becomes generally known to the public or within the relevant trade without or industry other than due to the Employee’s violation of this Section 8(aSection.
(b) The Employee hereby agrees that he shall not, during the period of his employment and for a period of one (1) year following the termination of such employment, directly or indirectly, within any county (or adjacent county) in any State within the United States or territory outside the United States in which the Company is engaged in business during the period of the Employee’s employment or on the date of termination of the Employee’s employment, engage, have an interest in or render any services to any business (whether as owner, manager, operator, licensor, licensee, lender, partner, stockholder, joint venturer, employee, consultant or otherwise) competitive with the Company’s business activities.
(c) The Employee hereby agrees that he shall not, during the period of his employment and for a period of one (1) year following such employment, directly or indirectly solicit any of the Company’s customers, or persons listed on the personnel lists of the Company. Except as required by law or legal process, at no time during the Term, or thereafter shall the Employee, directly or indirectly, disparage the commercial, business or financial reputation of the Company.
(d) For purposes of clarification, but not of limitation, the Employee hereby acknowledges and agrees that the provisions of subparagraphs 7(b) and (c) above shall serve as a prohibition against him, during the period referenced therein, directly or indirectly, hiring, offering to hire, enticing, soliciting or in any other manner persuading or attempting to persuade any officer, employee, agent, lessor, lessee, licensor, licensee or customer who has been previously contacted by either a representative of the Company, including the Employee (but only those persons or entities that had a relationship with the Company during the time of the Employee’s employment by the Company, or at the termination of his employment); , to discontinue or alter his, her or its relationship with the Company.
(e) Upon the termination of the Employee’s employment for any reason whatsoever, all Company property and providedequipments, furtheras well as all documents, that you records, notebooks, equipment, employee lists, price lists, specifications, programs, customer and prospective customer lists and other materials which refer or relate to any aspect of the business of the Company which are in the possession of the Employee including all copies thereof, shall not violate be immediately returned to the Company. Anything to the contrary notwithstanding, nothing in this Section 8(a7(e) if Protected Information is disclosed by you shall prevent the Employee from retaining a home computer and security system, papers and other materials of a personal nature, including personal diaries, calendars and Rolodexes, information relating to the Employee’s compensation or relating to reimbursement of expenses, information that the Employee reasonably believe may be needed for tax purposes, and copies of plans, programs and agreements relating to the Employee’s employment.
(f) The products and proceeds of Employee’s services hereunder that Employee may acquire, obtain, develop or create during the Term that relate to the Company’s business, or that are otherwise made at the direction of the Company or if you are required to provide Protected Information in any legal proceeding or by order with the use of any court.
(b) During the term of your employment and for an additional period of one year after you are no longer employed by the Company’s or its affiliates’ facilities or materials, you will notincluding, directly or indirectlybut not limited to, engage in a Competitive Businessall materials, including owning or controlling an interest in ideas, concepts, formats, suggestions, developments, packages, programs and other intellectual properties (except as a passive investor owning less than two percent (2%) of the equity securities of a publicly-owned companycollectively, “Works”), or acting as director, officer or employee of, or consultant to, any individual, partnership, joint venture, corporation or other business entity known to you to shall be engaged in a Competitive Business. “Competitive Business” shall mean the development of therapeutics for spinal cord injuries, multiple sclerosis and other central nervous system conditions for which the Company is actively seeking to develop therapeutics during the term of this Agreement; provided, however, that notwithstanding the aforesaid, you shall not be prohibited from acting in any of the aforesaid capacities for or with respect to any subsidiary, division, affiliate or unit (each, considered a “Unit”) of an entity if work made for hire,” as that Unit itself term is not engaged in a Competitive Businessdefined under the United States Copyright Act, irrespective of whether some other Unit of such entity engages in such competition (as long as you do not engage in a Competitive Business for such other Unit).
(c) During the term of your employment and for an additional period of one year after you are no longer employed by the Company, you Employee shall not knowingly employ or solicit, encourage or induce any person (except your spouse, if applicable) who at any time within 90 days prior to the termination of your employment shall have been be considered an employee for hire of the Company or any of its commonly controlled affiliates, to become employed by or associated with any individual, partnership, joint venture, corporation or other business entity other than the Company, and you all rights in and to the Works, including the copyright thereto, shall not knowingly approach any such employee for such purpose or authorize or knowingly approve be the taking of such actions by any other individual, partnership, joint venture, corporation or other business entity or knowingly assist any such individual, partnership, joint venture, corporation or other business entity in taking such action.
(d) You acknowledge that the provisions of this Section 8 are reasonable sole and necessary for the protection exclusive property of the Company Company, as the sole author and that each provisionowner thereof, and the period or periods of time and types and scope of restrictions on copyright thereto may be registered by the activities specified herein are, and are intended to be divisibleCompany in its own name. In the event that any provision of this Agreement, including any sentence, clause or part hereof, shall be deemed contrary to law or invalid or unenforceable in any respect by a court of competent jurisdiction, the remaining provisions shall not be affected, but shall, subject to the discretion of such court, remain in full force and effect and any invalid and unenforceable provisions shall be deemed, without further action on the part of the parties heretoWorks shall be determined not to be a work made for hire or shall be determined not to be owned by the Company, modified, amended Employee hereby irrevocably assigns and limited transfers to the extent necessary Company, its successors and assigns, the following: (a) the entire right, title and interest in and to render the same valid copyrights, trademarks and enforceableother rights in any such Work and any rights in and to any works based upon, derived from, or incorporating any such Work (“Derivative Work”); (b) the exclusive right to obtain, register and renew the copyrights or copyright protection in any such Work or Derivative Work; (c) all income, royalties, damages, claims and payments now or hereafter due or payable with respect to any such Work and Derivative Work; and (d) all causes of action in law or equity, past and future, for infringements or violation of any of the rights in any such Work or Derivative Work, and any recoveries resulting therefrom. Employee also hereby waives in writing any moral or other rights that he has under state or federal laws, or under the laws of any foreign jurisdiction, which would give him any rights to constrain or prevent the use of any Work or Derivative Work, or which would entitle him to receive additional compensation from the Company. Employee shall execute all documents, including without limitation copyright assignments and applications and waivers of moral rights, and perform all acts that the Company may request, in order to assist the Company in perfecting its rights in and to any Work and Derivative Work anywhere in the world. Employee hereby appoints the officers of the Company as Employee’s attorney-in-fact to execute documents on behalf of Employee for this limited purpose
(g) The parties hereto hereby acknowledge and agree that (i) the Company may be irreparably injured in the event of a breach by the Employee of any of his obligations under this Section 7, (ii) monetary damages may not be an adequate remedy for any such breach, and (iii) the Company shall be entitled to seek injunctive relief, in addition to any other remedy which it may have, in the event of any such breach.
(eh) You The parties hereto hereby acknowledge that the Company will be irrevocably damaged if the covenants contained herein are not specifically enforced. Accordingly, you agree that, in addition to any other relief to which remedies the Company may be entitledhave under Section 7(g) hereof, the Company may have the right and remedy to require the Employee to account for and pay over to the Company all compensation, profits, monies, accruals, increments or other benefits (collectively, “Benefits”) derived or received by the Employee as the result of any transactions constituting a breach of any of the provisions of Section 7, and the Employee hereby agrees to account for any pay over such Benefits to the Company.
(i) Each of the rights and remedies enumerated in Section 7(g) and 7(h) shall be entitled independent of the other, and shall be severally enforceable, and all of such rights and remedies shall be in addition to, and not in lieu of, any other rights and remedies available to seek the Company under law or in equity.
(j) It is the intent of the parties hereto that the covenants contained in this Section 7 shall be enforced to the fullest extent permissible under the laws and obtain injunctive relief from a court public policies of competent each jurisdiction in which enforcement is sought (the Employee hereby acknowledging that said restrictions are reasonably necessary for the purposes protection of restraining you from the Company). Accordingly, it is hereby agreed that if any actual of the provisions of this Section 7 shall be adjudicated to be invalid or threatened breach unenforceable for any reason whatsoever, said provision shall be (only with respect to the operation thereof in the particular jurisdiction in which such adjudication is made) construed by limiting and reducing it so as to be enforceable to the extent permissible, without invalidating the remaining provisions of such covenantsthis Agreement or affecting the validity or enforceability of said provision in any other jurisdiction.
Appears in 1 contract
Samples: Employment Agreement (Take Two Interactive Software Inc)
