Common use of Covenant Against Competition; Other Covenants Clause in Contracts

Covenant Against Competition; Other Covenants. The Executive acknowledges that (i) the principal business of the Company (which expressly includes for purposes of this Section 6 (and any related enforcement provisions hereof), its successors and assigns) is the designing, developing, marketing or selling of spinal surgery implants, instruments or products (such business, and any and all other businesses that after the Effective Date, and from time to time during the Term, become material with respect to the Company’s then-overall business, herein being collectively referred to as the “Business”); (ii) the Company is one of the limited number of persons who have developed such a business in the Company’s market; (iii) the Executive’s work for the Company has given and will continue to give him access to the confidential affairs and proprietary information of the Company; (iv) the covenants and agreements of the Executive contained in this Section 6 are essential to the business and goodwill of the Company; and (v) the Company would not have entered into this Agreement but for the covenants and agreements set forth in this Section 6. Accordingly, the Executive covenants and agrees that: (a) By and in consideration of the salary and benefits to be provided by the Company hereunder, including the severance arrangements set forth herein, and further in consideration of the Executive’s exposure to the proprietary information of the Company, the Executive covenants and agrees that, during the period commencing on the Effective Date and ending two years following the date upon which the Executive shall cease to be an employee of the Company and its affiliates (the “Restricted Period”), he shall not, directly or indirectly, except in connection with a Permitted Activity (as defined below) (i) engage in any element of the Business (whether as an owner, employee, agent, partner, independent contractor or otherwise), (ii) provide any services, whether with or without compensation, to any individual or entity (other than the Company and its affiliates) that is engaged in any element of the Business, or (iii) invest in or become interested in, as a lender, partner, member, shareholder, principal or otherwise, any entity (other than the Company or its affiliates) that is engaged in any element of the Business, in the case of any of (i), (ii) or (iii), in any geographic area in which the Company or any its affiliates currently conducts the Business, or conducting the Business as of the date of such cessation of employment, provided, however, that, notwithstanding the foregoing, the Executive may invest in securities of any entity, solely for investment purposes and without participating in the business thereof, if (A) such securities are traded on any national securities exchange or the National Association of Securities Dealers, Inc. Automated Quotation System, (B) the Executive is not a controlling person of, or a member of a group which controls, such entity and (C) the Executive does not, directly or indirectly, own 5% or more of any class of securities of such entity. A “Permitted Activity” shall be any of those activities set forth on Exhibit A hereto. (b) During and after the Restricted Period, the Executive shall keep secret and retain in strictest confidence, and shall not use for his benefit or the benefit of others, except in connection with the business and affairs of the Company and its affiliates, all Confidential Company Information and shall not disclose such Confidential Company Information to anyone outside of the Company except (i) with the Company’s express prior written consent, (ii) to the extent such Confidential Company Information which becomes publicly known through no wrongful act of the Executive or is received from a third party not under an obligation to keep such information confidential and without breach of this Agreement or (iii) to the extent required by court order or applicable law, provided that the Executive shall promptly provide written notice to the Company prior to disclosing any Confidential Company Information so that the Company may seek a protective order or other appropriate remedy (and the Executive agrees to cooperate with the Company in connection with seeking such order or other remedy). “Confidential Company Information” means any and all information of the Company and its affiliates that is not available to the public, including, without limitation, the information, observations and data obtained by the Executive during the Term concerning the Business and affairs of the Company and its affiliates, information concerning acquisition opportunities in or reasonably related to the Company’s or its affiliates’ business or industry of which the Executive becomes aware during the Term, the persons or entities that are current, former or prospective suppliers or customers of any one or more of them, as well as development, transition and transformation plans, methodologies and methods of doing business, strategic, marketing and expansion plans, including without limitation plans regarding planned and potential sales, financial and business plans, employee lists and telephone numbers, locations of sales representatives, new and existing programs and services, prices and terms, customer service, integration processes, requirements and costs of providing service, support and equipment.

Covenant Against Competition; Other Covenants. The Executive acknowledges that (i) the principal business of the Company (which expressly includes for purposes of this Section 6 (and any related enforcement provisions hereof), its successors and assigns) is investing in, managing and leasing commercial office buildings (the designing“Activities”) located primarily in the Washington, developingD.C., marketing or selling of spinal surgery implantsVirginia, instruments or products Maryland, Pennsylvania, New Jersey and Delaware markets (such businessgeographic area, and any and all together with such other businesses that after geographic markets in which the Effective Date, and from time to time Company may engage in the Activities during the Termemploy of the Executive, become material with respect is herein referred to as the Company’s then-overall business, “Geographic Area” and such Activities as conducted in such Geographic Area are herein being collectively referred to as the “Business”); (ii) the Company is one of the limited number of persons who have developed such a business in the Company’s market; (iii) the Executive’s work for the Company has given and will continue to give him access to the confidential affairs and proprietary information of the Company; (iviii) the covenants and agreements of the Executive contained in this Section 6 are essential to the business and goodwill of the Company; and (viv) the Company would not have entered into this Agreement but for the covenants and agreements set forth in this Section 6. Accordingly, the Executive covenants and agrees that: (a) By and in consideration of the salary and benefits to be provided by the Company hereunder, including and subject to Executive receiving all monies due to him under the severance arrangements set forth herein, and further in consideration of the Executive’s exposure access to the proprietary information of the Company, the Executive covenants and agrees that, during the period commencing on the Effective Date date hereof and ending two years one year following the date upon which the Executive shall cease to be an employee of the Company and its affiliates (the “Restricted Period”)affiliates, he shall notnot in the Geographic Area, directly or indirectly, except in connection with a Permitted Activity (as defined below) the prior approval of the Board, (i) engage in any element of a business that is substantially similar to the Business (whether as an owner, employee, agent, partner, independent contractor other than for the Company or otherwiseits affiliates), or (ii) provide render any services, whether with or without compensation, services to any individual person, corporation, partnership or entity (other than the Company and its affiliates) that is engaged in any element of the Business, or (iii) invest in or become interested in, as a lender, partner, member, shareholder, principal or otherwise, any entity (other than the Company or its affiliates) whose principal business is substantially similar to the Business or who has taken substantial measures, or made material investments, evidencing an intention to engage in a business that is substantially similar to the Business other than incidentally as is necessary to engage in its principal business, or (iii) become interested in any person, corporation, partnership or other entity (other than the Company or its affiliates) principally engaged in any element of a business that is substantially similar to the Business, in the case of any of (i)as a partner, (ii) shareholder, principal, agent, employee, consultant or (iii), in any geographic area in which the Company other relationship or any its affiliates currently conducts the Business, or conducting the Business as of the date of such cessation of employment, capacity; provided, however, that, notwithstanding the foregoing, (1) the Company hereby acknowledges that the Executive will continue to serve as a director of Bxxxxxx & Rxxxxx, Inc., and will also devote a portion of his time and attention to his duties in that capacity, (2) the Company understand and agrees that, subject to compliance by the Executive with the second sentience of Section 2 of this Agreement, the Company’s Code of Business Conduct and Ethics including the conflicts of interest policy contained therein, with the terms of any agreement among the Executive, the Company and Bxxxxxx & Rxxxxx, Inc. and with applicable law (including statutory fiduciary duties), the Executive shall not be deemed to have violated any provision of this Agreement as a result of the performance of his duties as a director of Bxxxxxx & Rxxxxx and (3) the Executive may invest in up to 5% of the securities of any entity, solely for investment purposes and without participating in the business thereof, if (A) such securities are traded on any national securities exchange or the National Association of Securities Dealers, Inc. Automated Quotation System, and (B) the Executive is not a controlling person of, or a member of a group which controls, such entity and (Centity. In addition, the restrictions of this Section 6(a) shall not apply to the existing investments or other activities of the Executive does not, directly or indirectly, own 5% or more of any class of securities of such entity. A “Permitted Activity” shall be any of those activities set forth on Exhibit Schedule A hereto. (b) During and after the Restricted Periodperiod of the Executive’s employment with the Company and its affiliates, the Executive shall keep secret and retain in strictest confidence, and shall not use for his benefit or the benefit of others, except in connection with the business and affairs of the Company and its affiliates, all confidential matters relating to the Company’s Business and the business of any of its affiliates and to the Company and any of its affiliates, learned by the Executive heretofore or hereafter directly or indirectly from the Company or any of its affiliates (the “Confidential Company Information Information”); and shall not disclose such Confidential Company Information to anyone outside of the Company except (i) with the Company’s express prior written consent, (ii) to the extent such consent and except for Confidential Company Information which is at the time of receipt or thereafter becomes publicly known through no wrongful act of the Executive or is received from a third party not under an obligation to keep such information confidential and without breach of this Agreement or Agreement. (iiic) to During the extent required by court order or applicable law, provided that period commencing on the date hereof and ending one year following the date upon which the Executive shall promptly provide written notice cease to the Company prior to disclosing any Confidential Company Information so that the Company may seek a protective order or other appropriate remedy (and the Executive agrees to cooperate with the Company in connection with seeking such order or other remedy). “Confidential Company Information” means any and all information of the Company and its affiliates that is not available to the public, including, without limitation, the information, observations and data obtained by the Executive during the Term concerning the Business and affairs be an employee of the Company and its affiliates, information concerning acquisition opportunities in (i) the Executive shall not, without the Company’s prior written consent, directly or reasonably related indirectly, knowingly (A) solicit or encourage to leave the employment or other service of the Company, or any of its affiliates, any employee or independent contractor thereof or (B) hire (on behalf of the Executive or any other person or entity) any employee who has left the employment of the Company or any of its affiliates within the one-year period which follows the termination of such employee’s employment with the Company and its affiliates, and (ii) the Executive will not, whether for his own account or for the account of any other person, firm, corporation or other business organization, intentionally interfere with the Company’s or any of its affiliates’ business relationship with, or industry endeavor to entice away from the Company or any of which the Executive becomes aware its affiliates, any person who during the Term, Term is or was a customer or client of the persons Company or entities that are current, former or prospective suppliers or customers any of any one or more of them, as well as development, transition and transformation plans, methodologies and methods of doing business, strategic, marketing and expansion plans, including without limitation plans regarding planned and potential sales, financial and business plans, employee lists and telephone numbers, locations of sales representatives, new and existing programs and services, prices and terms, customer service, integration processes, requirements and costs of providing service, support and equipmentits affiliates.

Covenant Against Competition; Other Covenants. The Executive acknowledges that (i) the principal business of the Company (which expressly includes for purposes of this Section 6 (and any related enforcement provisions hereof), its successors and assigns) is the designingownership and leasing of commercial office properties in the greater metropolitan Washington, developingD.C. marketplace and its surrounding areas, marketing or selling ranging generally from Baltimore, Maryland through Richmond and Norfolk, Virginia, as well as the origination of, acquisition of spinal surgery implants, instruments or products and investment in structured real estate finance investments (such business, and any and all such other principal businesses that after in which the Effective DateCompany may engage during the employ of the Executive, in the locations described, and from time to time such other locations in which the Company may conduct business during the Termemploy of the Executive, become material with respect to the Company’s then-overall business, as herein being collectively referred to as the “Business”; provided, however, that, for purposes of this Agreement, the definition of “Business” shall not include the investments and activities described on Exhibit A hereto); (ii) the Company is one of the limited number of persons who have developed such a business in the Company’s market; (iii) the Executive’s work for the Company has given and will continue to give him access to the confidential affairs and proprietary information of the Company; (iviii) the covenants and agreements of the Executive contained in this Section 6 are essential to the business and goodwill of the Company; and (viv) the Company would not have entered into this Agreement but for the covenants and agreements set forth in this Section 6. Accordingly, the Executive covenants and agrees that: (a) By and in consideration of the salary and benefits to be provided by the Company hereunder, including the severance arrangements and subject to Executive receiving all monies due to him as set forth herein, and further in consideration of the Executive’s exposure to the proprietary information of the Company, the Executive covenants and agrees that, during the period commencing on of the Effective Date and Executive’s employment with the Company and, in the event of a termination of the Executive’s employment hereunder by the Company for Cause or a termination of the Executive’s employment hereunder by the Executive without Good Reason, for a period ending two years one year following the date upon which the Executive shall cease to be an employee of the Company and its affiliates (the “Restricted Period”)such termination becomes effective, he shall notnot in the United States, directly or indirectly, except in connection with a Permitted Activity (as defined below) the prior approval of the Board, (i) engage in any element of the Business (whether as an owner, employee, agent, partner, independent contractor other than for the Company or otherwiseits affiliates), or (ii) provide render any services, whether with or without compensation, services to any individual person, corporation, partnership or entity (other than the Company and its affiliates) that is engaged in any element of the Business, or (iii) invest in or become interested in, as a lender, partner, member, shareholder, principal or otherwise, any entity (other than the Company or its affiliates) that whose principal business is to engage in the Business or who has taken substantial measures, or made material investments, evidencing an intention to engage in the Business other than incidentally as is necessary to engage in its principal business, or (iii) become interested in any person, corporation, partnership or other entity (other than the Company or its affiliates) principally engaged in any element of the Business, in the case of any of (i)as a partner, (ii) shareholder, principal, agent, employee, consultant or (iii), in any geographic area in which the Company other relationship or any its affiliates currently conducts the Business, or conducting the Business as of the date of such cessation of employment, capacity; provided, however, that, notwithstanding the foregoing, the Executive may invest in up to 5% of the securities of any entity, solely for investment purposes and without participating in the business thereof, if (A) such securities are traded on any national securities exchange or the National Association of Securities Dealers, Inc. Automated Quotation System, and (B) the Executive is not a controlling person of, or a member of a group which controls, such entity entity. Notwithstanding the foregoing, the restrictions in this Section 6(a) shall not apply upon and (Cafter a termination covered by Section 5.2. In addition, the restrictions of this Section 6(a) shall not apply to any existing investments or other activities of the Executive does notwhich, directly or indirectlyif applicable, own 5% or more of any class of securities of such entity. A “Permitted Activity” shall be any of those activities are set forth on Exhibit A hereto. (b) During and after the Restricted Periodperiod of the Executive’s employment with the Company and its affiliates, the Executive shall keep secret and retain in strictest confidence, and shall not use for his benefit or the benefit of others, except in connection with the business and affairs of the Company and its affiliates, all confidential matters relating to the Company’s Business and the business of any of its affiliates and to the Company and any of its affiliates, learned by the Executive heretofore or hereafter directly or indirectly from the Company or any of its affiliates (the “Confidential Company Information Information”); and shall not disclose such Confidential Company Information to anyone outside of the Company except (i) with the Company’s express prior written consent, (ii) to the extent such consent and except for Confidential Company Information which is at the time of receipt or thereafter becomes publicly known through no wrongful act of the Executive or is received from a third party not under an obligation to keep such information confidential and without breach of this Agreement or Agreement. (iiic) to During the extent required by court order or applicable law, provided that period commencing on the date hereof and ending one year following the date upon which the Executive shall promptly provide written notice cease to the Company prior to disclosing any Confidential Company Information so that the Company may seek a protective order or other appropriate remedy (and the Executive agrees to cooperate with the Company in connection with seeking such order or other remedy). “Confidential Company Information” means any and all information of the Company and its affiliates that is not available to the public, including, without limitation, the information, observations and data obtained by the Executive during the Term concerning the Business and affairs be an employee of the Company and its affiliates, information concerning acquisition opportunities in (i) the Executive shall not, without the Company’s prior written consent, directly or reasonably related indirectly, knowingly (A) solicit or encourage to leave the employment or other service of the Company, or any of its affiliates, any employee or independent contractor thereof or (B) hire (on behalf of the Executive or any other person or entity) any employee who has left the employment of the Company or any of its affiliates within the one-year period which follows the termination of such employee’s employment with the Company and its affiliates, and (ii) the Executive will not, whether for his own account or for the account of any other person, firm, corporation or other business organization, intentionally interfere with the Company’s or any of its affiliates’ business relationship with, or industry endeavor to entice away from the Company or any of which the Executive becomes aware its affiliates, any person who during the Term, Term is or was a customer or client of the persons Company or entities that are current, former or prospective suppliers or customers any of any one or more of them, as well as development, transition and transformation plans, methodologies and methods of doing business, strategic, marketing and expansion plans, including without limitation plans regarding planned and potential sales, financial and business plans, employee lists and telephone numbers, locations of sales representatives, new and existing programs and services, prices and terms, customer service, integration processes, requirements and costs of providing service, support and equipmentits affiliates.

Covenant Against Competition; Other Covenants. The Executive acknowledges that (i) the principal business of the Company (which expressly includes for purposes of this Section 6 (and any related enforcement provisions hereof), its successors and assigns) is the designing, developing, marketing or selling provision of spinal surgery implants, instruments or products a broad range of services designed to promote the cost-effective delivery of pharmacy benefits (such business, and any and all other businesses that after the Effective Datedate hereof, and from time to time during the Term, become material with respect to the Company’s 's then-overall business, herein being collectively referred to as the “"Business”"); (ii) the Company is one dependent on the efforts of the a certain limited number of persons who have developed such a business in the Company’s market's Business; (iii) the Company's Business is, in part, national in scope; (iv) the Executive’s 's work for the Company has given and will continue to give him access to the confidential affairs and proprietary information of the Company; (ivv) the covenants and agreements of the Executive contained in this Section 6 are essential to the business and goodwill of the Company; and (vvi) the Company would not have entered into this Agreement but for the covenants and agreements set forth in this Section 6. Accordingly, the Executive covenants and agrees that: (a) By and in consideration of the salary and benefits to be provided by If at any time during his employment with the Company hereunder, including the severance arrangements set forth hereinExecutive is no longer serving as General Counsel and is given a title or is otherwise assigned a position which principally has business responsibilities, and further in consideration of the Executive’s exposure to the proprietary information of the Company, Company gives the Executive covenants and agrees thatnotice of such fact, then during the period commencing on the Effective Date and ending two years following the date upon which the Executive shall cease to be an employee of receives such notice from the Company and its affiliates ending one year following (i) termination of the “Restricted Period”Executive's employment with the Company (irrespective of the reason for such termination) or (ii) payment of any Annual Salary in accordance with Section 4 or 5 hereof (unless such termination is by the Company without Cause), he whichever occurs last, the Executive shall notnot engage, directly or indirectlyindirectly (which includes, except without limitation, owning, managing, operating, controlling, being employed by, giving financial assistance to, participating in connection or being connected in any material way with a Permitted Activity (as defined below) any person or entity other than the Company), anywhere in the United States in (i) engage in any element of the Business (whether as an owner, employee, agent, partner, independent contractor or otherwise), and (ii) provide any services, whether with or without compensation, to any individual or entity (other than the Company and its affiliates) that is engaged in any element component of the Business, or (iii) invest in or become interested in, as a lender, partner, member, shareholder, principal or otherwise, any entity (other than the Company or its affiliates) that is engaged in any element of the Business, in the case of any of (i), (ii) or (iii), in any geographic area in which the Company or any its affiliates currently conducts the Business, or conducting the Business as of the date of such cessation of employment, ; provided, however, that, notwithstanding that the foregoing, Executive's ownership as a passive investor of less than two percent (2%) of the Executive may invest in securities of any entity, solely for investment purposes issued and without participating in the business thereof, if (A) such securities are traded on any national securities exchange or the National Association of Securities Dealers, Inc. Automated Quotation System, (B) the Executive is not a controlling person of, or a member outstanding stock of a group which controls, such entity and (C) the Executive does not, directly or indirectly, own 5% or more of any class of securities of such entity. A “Permitted Activity” publicly held corporation shall not be any of those activities set forth on Exhibit A heretodeemed to constitute competition. (b) During and after the Restricted Periodperiod during which the Executive is employed, the Executive shall keep secret and retain in strictest confidence, and shall not use for his benefit or the benefit of others, except in connection with the business and affairs of the Company and its affiliates, all confidential matters relating to the Company's Business and the business of any of its affiliates and to the Company and any of its affiliates, learned by the Executive heretofore or hereafter directly or indirectly from the Company or any of its affiliates (the "Confidential Company Information Information"), including, without limitation, information with respect to (i) the strategic plans, budgets, forecasts, intended expansions of product, service, or geographic markets of the Company and its affiliates, (ii) sales figures, contracts, agreements, and undertakings with or with respect to customers, (iii) profit or loss figures, and (iv) customers, clients, suppliers, sources of supply and customer lists, and shall not disclose such Confidential Company Information to anyone outside of the Company except (i) with the Company’s 's express prior written consent, (ii) to the extent such consent and except for Confidential Company Information which is at the time of receipt or thereafter becomes publicly known through no wrongful act of the Executive or is received from a third party not under an obligation to keep such information confidential and without breach of this Agreement or (iiiAgreement. Notwithstanding the foregoing, this Section 6.1(b) shall not apply to the extent required by court order or applicable law, provided that the Executive shall promptly provide written notice is acting to the Company prior extent necessary to disclosing any Confidential Company Information so comply with legal process; provided that in the event that the Company may seek a protective order Executive is subpoenaed to testify or to produce any information or documents before any court, administrative agency or other appropriate remedy tribunal relating to any aspect pertaining to the Company, he shall immediately notify the Company thereof. (c) During the period commencing on the date hereof and ending two years following the date upon which the Executive agrees shall cease to cooperate be an employee of the Company or its affiliates, the Executive shall not, without the Company's prior written consent, directly or indirectly, solicit or encourage to leave the employment or other service of the Company or any of its affiliates, any employee or independent contractor thereof or hire (on behalf of the Executive or any other person or entity) any employee or independent contractor who has left the employment or other service of the Company or any of its affiliates within one year of the termination of such employee's or independent contractor's employment or other service with the Company in connection with seeking and its affiliates. During such order period, the Executive will not, whether for his own account or for the account of any other person, firm, corporation or other remedy). “Confidential business organization, intentionally interfere with the Company's or any of its affiliates' relationship with, or endeavor to entice away from the Company Information” means or any of its affiliates, any person who during the Term is or was a customer or client of the Company or any of its affiliates. (d) All memoranda, notes, lists, records, property and any other tangible product and documents (and all information copies thereof) made, produced or compiled by the Executive or made available to the Executive concerning the Business of the Company and its affiliates that is not available shall be the Company's property and shall be delivered to the public, including, without limitation, the information, observations and data obtained by the Executive during the Term concerning the Business and affairs of the Company and its affiliates, information concerning acquisition opportunities in or reasonably related to the Company’s or its affiliates’ business or industry of which the Executive becomes aware during the Term, the persons or entities that are current, former or prospective suppliers or customers of at any one or more of them, as well as development, transition and transformation plans, methodologies and methods of doing business, strategic, marketing and expansion plans, including without limitation plans regarding planned and potential sales, financial and business plans, employee lists and telephone numbers, locations of sales representatives, new and existing programs and services, prices and terms, customer service, integration processes, requirements and costs of providing service, support and equipmenttime on request.