Covenant Not to Compete Confidentiality. The Executive recognizes that the services to be performed hereunder are special, unique, and extraordinary and that by reason of the Executive's prior employment with the Company and the employment contemplated by this Agreement the Executive has acquired and will acquire confidential information and trade secrets concerning the Company's operations ("Company Confidential Information") and the operations of its parent and affiliates ("Affiliate Confidential Information"). Accordingly, it is agreed that: (a) During the Term, and for the greater of one year following the Term or any period following the Term covered by payments provided for in Section 5 hereof, the Executive will not, directly or indirectly, as an officer, director, stockholder, partner, associate, owner, employee, consultant or otherwise, become or be interested in or associated with any other corporation, firm or business engaged in the same or a similar or competitive business with the Company or any of its affiliates in any geographical area in which the Company or any of its affiliates are then engaged in business, provided that the Executive's ownership, directly or indirectly, of not more than one percent of the issued and outstanding stock of a corporation the shares of which are regularly traded on a national securities exchange or in the over-the-counter market shall not, in any event, be deemed to be a violation of this subsection. (b) The Executive shall not divulge to any entity or person, other than the Company or its affiliates, or, in the event of an assignment of this Agreement pursuant to Section 13 hereof, the assignee and its affiliates, if any, whether during the Term or after the expiration or termination thereof, any Company Confidential Information concerning the Company's customer lists, research or development programs or plans, processes, methods or any other of its trade secrets, except information that is then available to the public in published literature and became publicly available through no fault of the Executive. (c) The Executive shall not divulge to any person or entity, including an assignee of this Agreement and its affiliates, but excepting the Company and its affiliates, whether during the Term or after the expiration or termination thereof, any Affiliate Confidential Information acquired by the Executive concerning the customer lists, research or development programs or plans, processes, methods or any other trade secrets of the parent or any affiliate, except information which is then available to the public in published literature and became publicly available through no fault of the Executive. (d) The Executive acknowledges that all information the disclosure of which is prohibited hereby is of a confidential and proprietary character and of great value to the Company and its affiliates. Upon the expiration or termination of the Term, the Executive shall forthwith deliver up to the Company all records, memoranda, data and documents of any description which refer or relate in any way to Company Confidential Information or Affiliate Confidential Information and return to the Company any of its equipment and property which may then be in the Executive's possession or under the Executive's personal control. Upon the assignment of this Agreement, pursuant to Section 13, the Executive shall forthwith deliver up to the Company all records, memoranda, data and documents of any description which refer or relate in any way to Affiliate Confidential Information and return to the Company any of its equipment and property which may then be in the Executive's possession or under the Executive's personal control. (e) The Executive agrees during the Term and for a two year period after the expiration or termination thereof not to disclose the terms of this Agreement to any person other than the Executive's immediate family, the Executive's attorneys, accountants and other professional advisors or a prospective employer permitted hereby, except as otherwise required by law. (f) The Company shall be entitled, in addition to any other right or remedy that it may have at law or in equity with respect to a breach of this Agreement by the Executive (including the right to terminate payments pursuant to Subsection 5(d) hereof), to an injunction, without the posting of a bond or other security, enjoining or restraining the Executive from any violation or threatened violation of this section, and the Executive hereby consents to the issuance of such an injunction.
Appears in 2 contracts
Samples: Employment Agreement (Sola International Inc), Employment Agreement (Sola International Inc)
Covenant Not to Compete Confidentiality. The Executive recognizes that the services to be performed hereunder are special, unique, and extraordinary and that by reason of the Executive's prior employment with the Company and the employment contemplated by this Agreement the Executive has acquired and will acquire confidential information and trade secrets concerning the Company's operations ("Company Confidential Information") and the operations of its parent and affiliates ("Affiliate Confidential Information"). Accordingly, it is agreed that:
(a) During Seller agrees that, during the Term, and for the greater of one four year period immediately following the Term or any period following the Term covered by payments provided for in Section 5 hereofClosing, the Executive will Seller and its Subsidiaries shall not, directly or indirectly, engage in, or have any financial or other interest in, or manage or operate, or provide or arrange any financing for any Person or business (whether as an director, officer, directoremployee, stockholderagent, representative, security holder, equity owner, partner, associate, owner, employeemember, consultant or otherwise) involving or engaged in any firm, become or be interested in or associated with any other corporation, firm partnership, proprietorship or other business engaged entity that engages in the same business of manufacturing, selling or distributing Discrete Devices as being conducted by Seller on the date hereof (a similar or competitive business with the Company "Competing Business"); provided, however, that it shall not be a violation of this Section 7.9 for Seller or any of its affiliates in any geographical area in which the Company or any of its affiliates are then engaged in business, provided that the Executive's ownershipAffiliates (i) to own, directly or indirectly, solely as an investment, securities of not more than one percent of the issued and outstanding stock of a corporation the shares of which any Person that are regularly traded on a national securities exchange or in the over-the-counter market shall Nasdaq Stock Market (or a recognized securities exchange outside the United States) if Seller or any of its Affiliates (x) is not a controlling Person or a member of a group that controls such Person and (y) does not, in directly or indirectly, own more than 7.5% or more of the voting securities of such Person, (ii) to directly or indirectly acquire any eventPerson, be deemed provided that not more than 25% of the revenues of such acquired Person for the twelve months preceding the acquisition were derived from the Competing Business and provided that Seller disposes of such Competing Business within eighteen months after the closing date of such acquisition, (iii) to continue operating existing lines of business, other than the Business, or any of the Excluded Assets or (iv) any business permitted to be a violation engaged in by Seller pursuant to the terms of this subsectionthe IP Agreement.
(b) The Executive shall not divulge Seller acknowledges and agrees that, to any entity or personthe extent the Conveyed Assets include information concerning the Business which had been previously delivered by Seller to Purchaser prior to the Closing ("Confidential Information"), other than the Company or its affiliates, or, in the event of an assignment of this Agreement pursuant to Section 13 hereof, the assignee and its affiliates, if any, whether during the Term or after the expiration or termination thereof, any Company such Confidential Information concerning effective at the Company's customer listsClosing will be acquired by Purchaser and will become the property of Purchaser. Effective upon the Closing, research or development programs or plans, processes, methods at no time from the Closing Date to the tenth anniversary thereof shall Seller or any other Affiliate of its trade secrets, except information that is then available to the public in published literature and became publicly available through no fault of the Executive.
(c) The Executive shall not divulge Seller disclose any Confidential Information to any person or entityentity for any reason or purpose whatsoever other than to Purchaser, including an assignee nor shall any Seller or any Affiliate of this Agreement and Seller make use of any Confidential Information for its affiliates, but excepting own benefit or for the Company and its affiliates, whether during benefit of any other Person or entity unless the Term prior written consent to such disclosure or use is obtained from Purchaser. The foregoing restriction shall not apply to any disclosure of Confidential Information at any time after the expiration or termination thereof, any Affiliate Closing to the extent that (i) such Confidential Information acquired by the Executive concerning the customer lists, research or development programs or plans, processes, methods or any other trade secrets of the parent or any affiliate, except information which is then available to the public in published literature and became subsequently becomes publicly available through no fault of the Executive.
(d) The Executive acknowledges that all information the disclosure of which is prohibited hereby is of a confidential and proprietary character and of great value to the Company and its affiliates. Upon the expiration or termination of the Term, the Executive shall forthwith deliver up to the Company all records, memoranda, data and documents without breach of any description which refer or relate in any way to Company Confidential Information or Affiliate Confidential Information and return to the Company any of its equipment and property which may then be in the Executive's possession or under the Executive's personal control. Upon the assignment of this Agreement, pursuant to Section 13, the Executive shall forthwith deliver up to the Company all records, memoranda, data and documents of any description which refer or relate in any way to Affiliate Confidential Information and return to the Company any of its equipment and property which may then be in the Executive's possession or under the Executive's personal control.
(e) The Executive agrees during the Term and for a two year period after the expiration or termination thereof not to disclose the terms of this Agreement to any person other than the Executive's immediate family, the Executive's attorneys, accountants and other professional advisors or a prospective employer permitted hereby, except as otherwise required by law.
(f) The Company shall be entitled, in addition to any other right or remedy that it may have at law or in equity with respect to a breach of this Agreement by the Executive (including the right to terminate payments pursuant to Subsection 5(d) hereof), to an injunction, without the posting of a bond or other security, enjoining or restraining the Executive from any violation or threatened violation of this section, and the Executive hereby consents to the issuance of such an injunction.obligation of
Appears in 1 contract
Samples: Asset Purchase Agreement (Fairchild Semiconductor International Inc)
Covenant Not to Compete Confidentiality. The Executive recognizes Each Principal ---------------------------------------- Shareholder agrees that for a period of three years after the services to be performed hereunder are special, unique, and extraordinary and that by reason of the Executive's prior employment with the Company and the employment contemplated by this Agreement the Executive has acquired and will acquire confidential information and trade secrets concerning the Company's operations ("Company Confidential Information") and the operations of its parent and affiliates ("Affiliate Confidential Information"). AccordinglyClosing Date, it is agreed that:
(a) During the Term, and for the greater of one year following the Term or any period following the Term covered by payments provided for in Section 5 hereof, the Executive will not, directly or indirectly, as an officer(i) own, directormanage, stockholderoperate, partnercontrol or participate in the ownership, associatemanagement, owneroperation or control of any business, employeewhether in corporate, consultant proprietorship or partnership form or otherwise, become or be interested in or associated with any other corporation, firm or business engaged in the same design, manufacturing or a similar or marketing of products that are competitive business with the Company products produced by Presto on the Closing Date or any of its affiliates in any geographical area in which that otherwise competes with the Company Presto Business or any of its affiliates are then engaged in business(ii) disclose, provided that the Executive's ownershipreveal, directly divulge or indirectly, of not more than one percent of the issued and outstanding stock of a corporation the shares of which are regularly traded on a national securities exchange or in the over-the-counter market shall not, in any event, be deemed to be a violation of this subsection.
(b) The Executive shall not divulge communicate to any person or entity or person, other than authorized officers, directors and employees of Buyer, or use or otherwise exploit for its own benefit or for the Company or its affiliatesbenefit of anyone other than Buyer, orany Confidential Information (as defined below). No Principal Shareholder shall have any obligation to keep confidential any Confidential Information if and to the extent disclosure thereof is specifically required by law; provided, however, that in the event disclosure is required by applicable law, the Principal Shareholders, shall, to the extent reasonably possible, provide Buyer with prompt notice of such requirement prior to making any disclosure so that Buyer may seek an assignment appropriate protective order. For purposes of this Agreement pursuant Paragraph 6.9, "Confidential Information" shall mean any confidential information with respect to Section 13 hereofthe conduct or details of the Presto Business, the assignee including, without limitation methods of operation, customers, and its affiliates, if any, whether during the Term or after the expiration or termination thereof, any Company Confidential Information concerning the Company's customer lists, research products, proposed products, former products, proposed, pending or development programs completed acquisitions of any company, division, product line or other business unit, prices, fees, costs, plans, processesdesigns, methods or any other of its technology, inventions, trade secrets, except know-how, software, marketing methods, policies, plans, personnel, suppliers, competitors, markets or other specialized information or proprietary matters. The term "Confidential Information" does not include, and there shall be no obligation hereunder with respect to, information that (a) is then generally available to the public in published literature and became publicly available through no fault of on the Executive.
(c) The Executive shall not divulge to any person or entity, including an assignee date of this Agreement and its affiliatesAgreement, but excepting the Company and its affiliates, whether during the Term or after the expiration or termination thereof, any Affiliate Confidential Information acquired by the Executive concerning the customer lists, research or development programs or plans, processes, methods or any other trade secrets of the parent or any affiliate, except information which is then (b) becomes generally available to the public in published literature other than as a result of a disclosure by any Shareholder not otherwise permissible thereunder, or (c) any Shareholder learns from other sources where such sources have not violated their confidentiality obligation to Buyer. The parties hereto specifically acknowledge and became publicly available through no fault agree that the remedy at law for any breach of the Executive.
(d) The Executive acknowledges foregoing will be inadequate and that all information the disclosure of which is prohibited hereby is of a confidential and proprietary character and of great value to the Company and its affiliates. Upon the expiration or termination of the Term, the Executive shall forthwith deliver up to the Company all records, memoranda, data and documents of any description which refer or relate in any way to Company Confidential Information or Affiliate Confidential Information and return to the Company any of its equipment and property which may then be in the Executive's possession or under the Executive's personal control. Upon the assignment of this Agreement, pursuant to Section 13, the Executive shall forthwith deliver up to the Company all records, memoranda, data and documents of any description which refer or relate in any way to Affiliate Confidential Information and return to the Company any of its equipment and property which may then be in the Executive's possession or under the Executive's personal control.
(e) The Executive agrees during the Term and for a two year period after the expiration or termination thereof not to disclose the terms of this Agreement to any person other than the Executive's immediate family, the Executive's attorneys, accountants and other professional advisors or a prospective employer permitted hereby, except as otherwise required by law.
(f) The Company shall be entitledBuyer, in addition to any other right relief available to it, shall be entitled to temporary and permanent injunctive relief without the necessity of proving actual damage or remedy posting any bond whatsoever. In the event that it may have at law or in equity with respect to a breach the provisions of this Agreement by the Executive (including the right to terminate payments pursuant to Subsection 5(d) hereof), to an injunction, without the posting of a bond or other security, enjoining or restraining the Executive from any violation or threatened violation of this section, and the Executive hereby consents to the issuance of such an injunction.Paragraph
Appears in 1 contract
Covenant Not to Compete Confidentiality. The Executive recognizes that the services to be performed hereunder are special, unique, and extraordinary and that by reason of the Executive's prior employment with the Company and the employment contemplated by this Agreement the Executive has acquired and will acquire confidential information and trade secrets concerning the Company's operations ("Company Confidential Information") and the operations of its parent and affiliates ("Affiliate Confidential Information"). Accordingly, it is agreed that:
(a) During Employee covenants that, during the Termterm of his employment by the Corporation, and for the greater a period of one year following the Term or any period following the Term covered by payments provided for in Section 5 hereofthereafter, the Executive he will not, not engage directly or indirectly, in, or serve as an officeremployee or consultant to, directorany Competing Business and shall not lend assistance of any kind to such Competing Business. For the purposes of this Agreement, stockholder, partner, associate, owner, employee, consultant or otherwise, become or "Competing Business" shall be interested in or associated with deemed to mean any other corporationperson, firm or business corporation (other than an entity which is or hereafter becomes an affiliate of the Corporation), which within a fifty mile geographical radius of the area where the Corporation sells or markets its products or services, is engaged in the same sale or a similar marketing of information systems or competitive business with the Company services in The People's Republic of China. Employee's ownership or any of its affiliates in any geographical area in which the Company or any of its affiliates are then engaged in business, provided that the Executive's ownershipholding, directly or indirectly, of not more securities constituting less than one two percent (2%) of the issued and outstanding stock securities of a corporation any corporation, the shares securities of which are regularly traded on a national securities exchange or in the over-the-counter market market, which would otherwise be prohibited by the foregoing provisions, shall not, in any event, conclusively be deemed not to be a violation in breach of this subsectionEmployee's covenant set forth herein.
(b) The Executive shall Employee further covenants that during the term of his employment, and for a period of three years thereafter, irrespective of whether any future termination is voluntary or involuntary or with cause, he will not divulge disclose, divulge, utilize, furnish, or make accessible to any entity or person, anyone (other than the Company or its affiliates, or, in the event regular course of an assignment the business of this Agreement pursuant to Section 13 hereofthe Corporation) or use for his own benefit, the assignee and its affiliates, if any, whether during the Term gain or after the expiration or termination thereofotherwise, any Company Confidential Information information concerning the Company's any inventions, discoveries, improvements, processes, computer software programs, know-how, ideas, trade secrets, customer lists, research or development programs or plans, processes, methods or any other confidential materials, data, information or instructions, technical or otherwise, issued or proclaimed, for the sole use of its trade secretsthe Corporation, except disclosed to him or in any way acquired by him during his employment hereunder; it being the intent of the Corporation, with which Employee agrees, to restrict him from disseminating or using any information that which is then unpublished and not readily available to the general public. The parties hereby stipulate that all such information is confidential material and affects the successful conduct of the business and the goodwill of the Corporation. Nothing herein shall restrict Employee from disseminating, or otherwise using any information which is published or which is or becomes readily available to the general public in published literature and became publicly available through no fault of the Executiveaction by Employee.
(c) The Executive shall not divulge Employee agrees that his engagement in any competition with the Corporation in violation of his undertaking pursuant to any person or entity, including an assignee subparagraph (a) of this Agreement Paragraph 6 or the disclosure by him of any confidential material may result in irreparable injury and its affiliatesdamage to the Corporation which will not be adequately compensable in money damages; that the Corporation may have no adequate remedy at law therefor, but excepting and that the Company and its affiliatesCorporation may obtain such preliminary, whether during the Term temporary or after the expiration permanent mandatory or termination thereofrestraining injunctions, orders or decrees as may be necessary to protect it against or on account of any Affiliate Confidential Information acquired breach by the Executive concerning the customer lists, research or development programs or plans, processes, methods or any other trade secrets Employee of the parent or any affiliate, except information which is then available to the public in published literature and became publicly available through no fault of the Executiveforegoing.
(d) The Executive acknowledges Employee agrees that all information the disclosure of which is prohibited hereby is of a confidential and proprietary character and of great value to the Company and its affiliates. Upon the expiration or upon any termination of the Termhis employment, the Executive shall forthwith deliver up to the Company all recordswhether voluntary or involuntary, memorandaor with cause, data and documents of he will notify any description which refer new partner, associate, or relate any other person, firm or corporation with whom he becomes associated in any way to Company Confidential Information or Affiliate Confidential Information and return to capacity whatsoever, of the Company any of its equipment and property which may then be in the Executive's possession or under the Executive's personal control. Upon the assignment existence of this AgreementAgreement and the provisions of this Paragraph 6, pursuant to Section 13, and that the Executive shall forthwith deliver up to the Company all records, memoranda, data and documents of any description which refer or relate in any way to Affiliate Confidential Information and return to the Company any of its equipment and property which Corporation may then be in the Executive's possession or under the Executive's personal controlgive similar notice thereof.
(e) The Executive agrees during the Term and for a two year period after the expiration or termination thereof not to disclose the terms covenants by Employee set forth in this Paragraph 6 shall be construed as an agreement independent of this Agreement or the provisions of any other agreement between the parties. The existence of any claim or cause of action by Employee against the Corporation, whether predicated upon this or any other agreement, or otherwise, shall therefore not constitute a defense by Employee to any person other than the Executive's immediate family, enforcement of the Executive's attorneys, accountants and other professional advisors or a prospective employer permitted hereby, except as otherwise required by lawprovisions of this Paragraph 6.
(f) The Company While the restrictions set forth in this Paragraph 6 are considered by the parties to be reasonable in all circumstances, it is recognized that restrictions of the nature in question may fail for reasons unforeseen, and accordingly it is hereby agreed and declared that if any such restrictions shall be entitledadjudged to be void as going beyond what is reasonable in all the circumstances for the protection of the interests of the Corporation but would be valid if part of the wording thereof were deleted, or the period thereof reduced, or the range of activities or area dealt with thereby reduced in addition scope, the said transaction shall apply with such modifications as may be necessary to any other right or remedy that make it may have at law or in equity with respect to a breach of this Agreement by the Executive (including the right to terminate payments pursuant to Subsection 5(d) hereof), to an injunction, without the posting of a bond or other security, enjoining or restraining the Executive from any violation or threatened violation of this section, valid and the Executive hereby consents to the issuance of such an injunctioneffective.
Appears in 1 contract
Samples: Employment Agreement (Eurotech LTD)
Covenant Not to Compete Confidentiality. The Executive recognizes that the services to be performed hereunder are special, unique, and extraordinary and that by reason of the Executive's prior employment with the Company and the employment contemplated by this Agreement the Executive has acquired and will acquire confidential information and trade secrets concerning the Company's operations ("Company Confidential Information") and the operations of its parent and affiliates ("Affiliate Confidential Information"). Accordingly, it is agreed that:
(a) During Seller agrees that, during the Term, and for the greater of one four year period immediately following the Term or any period following the Term covered by payments provided for in Section 5 hereofClosing, the Executive will Seller and its Subsidiaries shall not, directly or indirectly, engage in, or have any financial or other interest in, or manage or operate, or provide or arrange any financing for any Person or business (whether as an director, officer, directoremployee, stockholderagent, representative, security holder, equity owner, partner, associate, owner, employeemember, consultant or otherwise) involving or engaged in any firm, become or be interested in or associated with any other corporation, firm partnership, proprietorship or other business engaged entity that engages in the same business of manufacturing, selling or distributing Discrete Devices as being conducted by Seller on the date hereof (a similar or competitive business with the Company “Competing Business”); provided, however, that it shall not be a violation of this Section 7.9 for Seller or any of its affiliates in any geographical area in which the Company or any of its affiliates are then engaged in business, provided that the Executive's ownershipAffiliates (i) to own, directly or indirectly, solely as an investment, securities of not more than one percent of the issued and outstanding stock of a corporation the shares of which any Person that are regularly traded on a national securities exchange or in the over-the-counter market shall Nasdaq Stock Market (or a recognized securities exchange outside the United States) if Seller or any of its Affiliates (x) is not a controlling Person or a member of a group that controls such Person and (y) does not, in directly or indirectly, own more than 7.5% or more of the voting securities of such Person, (ii) to directly or indirectly acquire any eventPerson, be deemed provided that not more than 25% of the revenues of such acquired Person for the twelve months preceding the acquisition were derived from the Competing Business and provided that Seller disposes of such Competing Business within eighteen months after the closing date of such acquisition, (iii) to continue operating existing lines of business, other than the Business, or any of the Excluded Assets or (iv) any business permitted to be a violation engaged in by Seller pursuant to the terms of this subsectionthe IP Agreement.
(b) The Executive shall not divulge Seller acknowledges and agrees that, to any entity or personthe extent the Conveyed Assets include information concerning the Business which had been previously delivered by Seller to Purchaser prior to the Closing (“Confidential Information”), other than the Company or its affiliates, or, in the event of an assignment of this Agreement pursuant to Section 13 hereof, the assignee and its affiliates, if any, whether during the Term or after the expiration or termination thereof, any Company such Confidential Information concerning effective at the Company's customer listsClosing will be acquired by Purchaser and will become the property of Purchaser. Effective upon the Closing, research or development programs or plans, processes, methods at no time from the Closing Date to the tenth anniversary thereof shall Seller or any other Affiliate of its trade secrets, except information that is then available to the public in published literature and became publicly available through no fault of the Executive.
(c) The Executive shall not divulge Seller disclose any Confidential Information to any person or entityentity for any reason or purpose whatsoever other than to Purchaser, including an assignee nor shall any Seller or any Affiliate of this Agreement and Seller make use of any Confidential Information for its affiliates, but excepting own benefit or for the Company and its affiliates, whether during benefit of any other Person or entity unless the Term prior written consent to such disclosure or use is obtained from Purchaser. The foregoing restriction shall not apply to any disclosure of Confidential Information at any time after the expiration or termination thereof, any Affiliate Closing to the extent that (i) such Confidential Information acquired subsequently becomes publicly available without breach of any obligation of confidentiality; (ii) such Confidential Information becomes available to Seller or its Affiliates on a non-confidential basis from a third party that is, to the Knowledge of Seller or its Affiliates, not bound by the Executive concerning the customer listsa confidentiality agreement with or subject to any obligation or duty of confidentiality; (iii) disclosure of Confidential Information is required to Xxxxxx Corporation, research or development programs or plans, processes, methods a governmental authority or any other trade secrets of party in connection with a claim for environmental indemnification by Purchaser, including any claim for environmental indemnification made by Seller against Xxxxxx Corporation under the parent Xxxxxx Agreement; or (iv) such disclosure is required by applicable law or any affiliaterule, except information which is then available to the public in published literature and became publicly available through no fault of the Executive.
(d) The Executive acknowledges that all information the disclosure of which is prohibited hereby is of a confidential and proprietary character and of great value to the Company and its affiliates. Upon the expiration regulation or termination of the Term, the Executive shall forthwith deliver up to the Company all records, memoranda, data and documents order of any description which refer Governmental Authority, provided that Seller or relate in any way to Company Confidential Information or Affiliate Confidential Information and return to the Company any of its equipment and property which may then be in the Executive's possession or under the Executive's personal control. Upon the assignment of this Agreement, pursuant to Section 13, the Executive Affiliates shall forthwith deliver up to the Company all records, memoranda, data and documents provide Purchaser with prompt notice of any description which refer or relate in any way such order prior to Affiliate Confidential Information and return to the Company any of its equipment and property which disclosure so that appropriate protective orders may then be in the Executive's possession or under the Executive's personal controlsought.
(e) The Executive agrees during the Term and for a two year period after the expiration or termination thereof not to disclose the terms of this Agreement to any person other than the Executive's immediate family, the Executive's attorneys, accountants and other professional advisors or a prospective employer permitted hereby, except as otherwise required by law.
(f) The Company shall be entitled, in addition to any other right or remedy that it may have at law or in equity with respect to a breach of this Agreement by the Executive (including the right to terminate payments pursuant to Subsection 5(d) hereof), to an injunction, without the posting of a bond or other security, enjoining or restraining the Executive from any violation or threatened violation of this section, and the Executive hereby consents to the issuance of such an injunction.
Appears in 1 contract
Covenant Not to Compete Confidentiality. The Executive recognizes (a) Employee acknowledges that in the services course of his employment by the Company he has and will become privy to be performed hereunder are special, unique, various economic and extraordinary trade secrets and that by reason relationships of the Executive's prior employment with the Company and the employment contemplated by its affiliates. Therefore, in consideration of this Agreement the Executive has acquired and will acquire confidential information and trade secrets concerning the Company's operations ("Company Confidential Information") and the operations of its parent and affiliates ("Affiliate Confidential Information"). AccordinglyAgreement, it is agreed that:
(a) During the Term, and for the greater of one year following the Term or any period following the Term covered by payments provided for in Section 5 hereof, the Executive Employee hereby agrees that he will not, directly or indirectly, except for the benefit of the Company or its affiliates or subsidiaries, or with the prior written consent of the Board of Directors of the Company, which consent may be granted or withheld at the sole discretion of the Company's Board of Directors:
(i) During the Noncompetition Period (as hereinafter defined), become an officer, director, stockholder, partner, member, manager, associate, employee, owner, employeecreditor, independent contractor, co-venturer, consultant or otherwise, become or be interested in or associated with any other person, corporation, firm or business engaged in providing software solution services, including but not limited to systems integration, custom software development, training, systems support, outsourcing and/or information technology consulting services, excluding however, information technology staffing business and commercial software product businesses, except as to where a majority of the same or revenues of any such business is derived from custom software development services (a similar or competitive business with "Edgewater Services Business") within a radius of fifty (50) miles from any office operated during the Company Noncompetition Period by the Company, or any of its affiliates (collectively, the "Territory") or in any geographical area in which Edgewater Services Business directly competitive with that of the Company Company, or any of its affiliates are then affiliates, or itself engage in such business; provided, however, that
(A) Nothing herein shall be construed to prohibit Employee from owning not more than five percent (5%) of any class of securities issued by an entity which is subject to the reporting requirements of the Securities Exchange Act of 1934, as amended, or which is traded over the counter;
(B) The foregoing shall not restrict Employee with respect to businesses, other than a Edgewater Services Business, engaged in businessby the Company or its affiliates during the Noncompetition Period unless Employee either is or was substantially involved in such other businesses of the Company or such affiliates or had access to Confidential Information (as hereinafter defined) with respect to such other businesses; or
(ii) During the Noncompetition Period, provided that in the Executive's ownershipTerritory, solicit, cause or authorize, directly or indirectly, to be solicited for or on behalf of not more than one percent himself or third parties, from parties who are or were customers of the issued and outstanding stock of a corporation Company or its affiliates, any Edgewater Services Business transacted by or with such customer by the shares of which are regularly traded on a national securities exchange Company or its affiliates; or
(iii) During the Noncompetition Period, in the over-the-counter market shall notTerritory, accept or cause or authorize, directly or indirectly, to be accepted for or on behalf of himself or for third parties, any such Edgewater Services Business from any such customers of the Company or its affiliates; or
(iv) From and after the date hereof and during the Noncompetition Period, (A) use, publish, disseminate or otherwise disclose, directly or indirectly, any information heretofore or hereafter acquired, developed or used by the Company or its affiliates relating to their business or the operations, employees or customers of the Company or its affiliates which constitutes proprietary or confidential information of the Company or its affiliates ("Confidential Information"), including without limitation any Confidential Information contained in any eventcustomer lists, be deemed to be a mailing lists and sources thereof, statistical data and compilations, patents, copyrights, trademarks, trade names, inventions, formulae, methods, processes, agreements, contracts, manuals or any other documents; and (B) from and after the date hereof, use, publish, disseminate or otherwise disclose, directly or indirectly, any information heretofore or hereafter acquired, developed or used by the Company or its affiliates which constitutes Confidential Information, but excluding any Confidential Information which has become part of common knowledge or understanding in the Edgewater Services Business industry or otherwise in the public domain (other than from disclosure by Employee in violation of this subsection.Agreement); provided, however, this subparagraph (iv) shall not be applicable to the extent Employee is required to testify in a judicial or regulatory proceeding pursuant to the order of a judge or administrative law judge after Employee requests that such Confidential Information be preserved; or
(bv) The Executive shall not divulge During the Noncompetition Period, in the Territory,
(A) Solicit, entice, persuade or induce, directly or indirectly, any employee (or person who within the preceding ninety (90) days was an employee) of the Company or its affiliates or any other person who is under contract with or rendering services to the Company or its affiliates, to terminate his or her employment by, or contractual relationship with, such person or to refrain from extending or renewing the same (upon the same or new terms) or to refrain from rendering, services to or for such person or to become employed by or to enter into contractual relations with any entity persons other than such person or personto enter into a relationship with a competitor of the Company or its affiliates;
(B) Solicit, induce, attempt to hire, or hire any employee of the Company (or any who was an employee of the Company during the preceding ninety (90) days) or assist in such hiring by any other person or business entity; or
(C) Authorize or knowingly approve or assist in the taking of any such actions by any person other than the Company or its affiliates, or, in the event of an assignment of this Agreement pursuant to Section 13 hereof, the assignee and its affiliates, if any, whether during the Term or after the expiration or termination thereof, any Company Confidential Information concerning the Company's customer lists, research or development programs or plans, processes, methods or any other of its trade secrets, except information that is then available to the public in published literature and became publicly available through no fault of the Executive.
(cb) The Executive shall not divulge to any person or entity, including an assignee of this Agreement and its affiliates, but excepting the Company and its affiliates, whether during the Term or after the expiration or termination thereof, any Affiliate Confidential Information acquired by the Executive concerning the customer lists, research or development programs or plans, processes, methods or any other trade secrets of the parent or any affiliate, except information which is then available to the public in published literature and became publicly available through no fault of the Executive.
(d) The Executive acknowledges that all information the disclosure of which is prohibited hereby is of a confidential and proprietary character and of great value to the Company and its affiliates. Upon the expiration or termination of the Term, the Executive shall forthwith deliver up to the Company all records, memoranda, data and documents of any description which refer or relate in any way to Company Confidential Information or Affiliate Confidential Information and return to the Company any of its equipment and property which may then be in the Executive's possession or under the Executive's personal control. Upon the assignment For purposes of this Agreement, pursuant the term "Noncompetition Period" shall mean the period commencing on the date hereof and ending twenty four (24) months after the date Employee ceases to Section 13be an officer or employee of, the Executive shall forthwith deliver up or consultant to the Company all records, memoranda, data and documents of any description which refer or relate in any way to Affiliate Confidential Information and return to the Company any of its equipment and property which may then be in affiliates; provided, however, that the Executive's possession or Noncompetition Period shall end one (1) year from the date of termination of the employment of Employee by the Company under the Executive's personal control.
(e) The Executive agrees during the Term and for a two year period after the expiration or termination thereof not to disclose the terms of this Agreement to any person other than the Executive's immediate family, the Executive's attorneys, accountants and other professional advisors which is without cause or a prospective employer permitted hereby, except as otherwise required by lawEmployee for Good Reason.
(f) The Company shall be entitled, in addition to any other right or remedy that it may have at law or in equity with respect to a breach of this Agreement by the Executive (including the right to terminate payments pursuant to Subsection 5(d) hereof), to an injunction, without the posting of a bond or other security, enjoining or restraining the Executive from any violation or threatened violation of this section, and the Executive hereby consents to the issuance of such an injunction.
Appears in 1 contract
Samples: Employment Agreement (Edgewater Technology Inc/De/)
