Common use of Covenant Not to Compete; Nonsolicitation Clause in Contracts

Covenant Not to Compete; Nonsolicitation. (a) Except as specifically set forth in this Section 4, during the Period of Employment and for the 18-month period after the Period of Employment (the “Restriction Period”), the Executive shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer or otherwise, engage in any business or activity anywhere in the United States (including its territories, possessions and commonwealths) which competes or could reasonably be expected to compete with the business (or any portion thereof) of the Company and/or the Parent, as of the date of termination of the Period of Employment; provided, however, that the ownership by the Executive of less than 2% of the outstanding stock of any publicly traded corporation shall not be deemed solely by reason thereof to cause the Executive to be engaged in any businesses being conducted by such publicly traded corporation. In the event of Executive’s breach of this subsection (a), the Restriction Period with respect to this subsection (a) shall be extended by the amount of time during which the Executive is in breach. (b) During the Restriction Period, the Executive will not, directly or indirectly, either for himself or for any other person or entity (i) solicit (A) any employee of the Company or any affiliate of the Company to terminate his or her employment with the Company or such affiliate during his or her employment with the Company or such affiliate or (B) any former employee of the Company or an affiliate of the Company for a period of one year after such individual terminates his or his employment with the Company or such affiliate, (ii) solicit any customer or client of the Company or any such affiliate (or any prospective customer or client of the Company or such affiliate) as of the termination of the Period of Employment to terminate its relationship with the Company or such affiliate, or do business with any third parties, or (iii) take any action that is reasonably likely to cause injury to the relationships between the Company or any such affiliate or any of their respective employees and any lessor, lessee, vendor, supplier, 1 Memry’s Compensation Committee will need to approve this grant. customer, distributor, employee, consultant or other business associate of the Company or any such affiliate as such relationship relates to the Company’s or such affiliate’s conduct of its business. In the event of Executive’s breach of this subsection (b), the Restriction Period with respect to this subsection (b) shall be extended by the amount of time during which the Executive is in breach. (c) If the final judgment of a court of competent jurisdiction declares that any term or provision of this Section 4 is invalid or unenforceable, the parties agree that the court making the determination of invalidity or unenforceability shall have the power to reduce the scope, duration, or area of the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified after the expiration of the time within which the judgment may be appealed.

Covenant Not to Compete; Nonsolicitation. (a) Except as specifically set forth in this Section 4, during the Period of Employment and for the 18-month period after the Period of Employment (the “Restriction Period”)Employment, the Executive shall notwill not engage, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer or otherwise, engage in any business or activity anywhere in the United States (including its territories, possessions and commonwealths) or Canada in any business which competes or could reasonably be expected to compete with the Company and/or its affiliates and, for such time after the Period of Employment with respect to which the Company is providing severance payments or benefits to the Executive (i.e., six (6) months under Section 8(e)), any business (which competes or any portion thereof) of could reasonably be expected to compete with the Company and/or the Parent, its affiliates as of the date of termination of the Period of Employment; provided, however, that the ownership by the Executive of less than 2% of the outstanding stock of any publicly traded corporation shall not be deemed solely by reason thereof to cause the Executive to be engaged in any businesses being conducted by such publicly traded corporation. In Notwithstanding the event foregoing, the Executive, at his sole discretion, may, by written notice to the Company within ten (10) days following the termination of the Period of Employment, elect to not receive severance payments or benefits pursuant to Section 8(e) of this Agreement, and, in return, the Executive’s breach of this subsection (a), the Restriction Period with respect post-termination non-competition obligations pursuant to this subsection (aSection 4(a) shall be extended by the amount of time during which the Executive is in breachterminate. (b) During the Restriction PeriodPeriod of Employment and for a period of two years thereafter, the Executive will not, directly or indirectly, either for himself or for any other person or entity (i) solicit (A) any employee of the Company or any affiliate of the Company to terminate his or her employment with the Company or such affiliate during his or her employment with the Company or such affiliate or (B) any former employee of the Company or an affiliate of the Company for a period of one year after such individual terminates his or his employment with the Company or such affiliate, (ii) solicit any customer or client of the Company or any such affiliate (or any prospective customer or client of the Company or such affiliate) as of the termination of the Period of Employment to terminate its relationship with the Company or such affiliate, or do business with any third parties, or (iii) take any action that is reasonably likely to cause injury to the relationships between the Company or any such affiliate or any of their respective employees and any lessor, lessee, vendor, supplier, 1 Memry’s Compensation Committee will need to approve this grant. customer, distributor, employee, consultant or other business associate of the Company or any such affiliate as such relationship relates to the Company’s or such affiliate’s conduct of its business. In the event of Executive’s breach of this subsection (b), the Restriction Period with respect to this subsection (b) shall be extended by the amount of time during which the Executive is in breach. (c) If the final judgment of a court of competent jurisdiction declares that any term or provision of this Section 4 is invalid or unenforceable, the parties agree that the court making the determination of invalidity or unenforceability shall have the power to reduce the scope, duration, or area of the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified after the expiration of the time within which the judgment may be appealed.

Covenant Not to Compete; Nonsolicitation. (a) Except as specifically set forth in this Section 4, during the Period of Employment and for the 18-month period after the Period of Employment (the “Restriction Period”)Employment, the Executive shall notwill not engage, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer or otherwise, engage in any business or activity anywhere in the United States (including its territories, possessions and commonwealths) or Canada in any business which competes or could reasonably be expected to compete with the business (or any portion thereof) of the Company and/or its affiliates and, for a period of one year after the Parent, as of the date of termination of the Period of Employment, any business which competes or could reasonably be expected to compete with the Company and/or its affiliates as of the date of termination; provided, however, that (i) the ownership by the Executive of less than 2% of the outstanding stock of any publicly traded corporation shall not be deemed solely by reason thereof to cause the Executive to be engaged in any businesses being conducted by such publicly traded corporation. In ; and (ii) the event Company, at its sole discretion, may, by written notice to the Executive no more than six (6) months and no less than three (3) months prior to the end of the one-year period described above, extend such one-year period for a second year, in which case the Company will be obligated to pay the Executive, quarterly in advance, at the rate of the Executive’s breach base salary in effect on the last day of this subsection (a)the Period of Employment, the Restriction Period with respect to this subsection (a) shall be extended by the amount of time during which the Executive is in breachfor such additional one-year non-compete period. (b) During the Restriction PeriodPeriod of Employment and for a period of two years thereafter, the Executive will not, directly or indirectly, either for himself or for any other person or entity (i) solicit (A) any employee of the Company or any affiliate of the Company to terminate his or her employment with the Company or such affiliate during his or her employment with the Company or such affiliate or (B) any former employee of the Company or an affiliate of the Company for a period of one year after such individual terminates his or his employment with the Company or such affiliate, (ii) solicit any customer or client of the Company or any such affiliate (or any prospective customer or client of the Company or such affiliate) as of the termination of the Period of Employment to terminate its relationship with the Company or such affiliate, or do business with any third parties, or (iii) take any action that is reasonably likely to cause injury to the relationships between the Company or any such affiliate or any of their respective employees and any lessor, lessee, vendor, supplier, 1 Memry’s Compensation Committee will need to approve this grant. customer, distributor, employee, consultant or other business associate of the Company or any such affiliate as such relationship relates to the Company’s or such affiliate’s conduct of its business. In the event of Executive’s breach of this subsection (b), the Restriction Period with respect to this subsection (b) shall be extended by the amount of time during which the Executive is in breach. (c) If the final judgment of a court of competent jurisdiction declares that any term or provision of this Section 4 is invalid or unenforceable, the parties agree that the court making the determination of invalidity or unenforceability shall have the power to reduce the scope, duration, or area of the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified after the expiration of the time within which the judgment may be appealed.

Covenant Not to Compete; Nonsolicitation. (a) Except as specifically set forth in this Section 4, during the Period of Employment and for the 18-month period after the Period of Employment (the “Restriction Period”)Employment, the Executive shall notwill not engage, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer or otherwise, engage in any business or activity anywhere in the United States (including its territories, possessions and commonwealths) or Canada in any business which competes or could reasonably be expected to compete with the business (or any portion thereof) of the Company and/or its affiliates and, for a period of six months after the Parent, as of the date of termination of the Period of Employment, or such longer period to match any period of severance payable pursuant to Section 8 to the Executive, any business which competes or could reasonably be expected to compete with the Company and/or its affiliates as of the date of termination; provided, however, that the ownership by the Executive of less than 2% of the outstanding stock of any publicly traded corporation shall not be deemed solely by reason thereof to cause the Executive to be engaged in any businesses being conducted by such publicly traded corporation. In the event of Executive’s breach of this subsection (a), the Restriction Period with respect to this subsection (a) shall be extended by the amount of time during which the Executive is in breach. (b) During the Restriction PeriodPeriod of Employment and for a period of two years thereafter, the Executive will not, directly or indirectly, either for himself or for any other person or entity (i) solicit (A) any employee of the Company or any affiliate of the Company to terminate his or her employment with the Company or such affiliate during his or her employment with the Company or such affiliate or (B) any former employee of the Company or an affiliate of the Company for a period of one year after such individual terminates his or his employment with the Company or such affiliate, (ii) solicit any customer or client of the Company or any such affiliate (or any prospective customer or client of the Company or such affiliate) as of the termination of the Period of Employment to terminate its relationship with the Company or such affiliate, or do business with any third parties, or (iii) take any action that is reasonably likely to cause injury to the relationships between the Company or any such affiliate or any of their respective employees and any lessor, lessee, vendor, supplier, 1 Memry’s Compensation Committee will need to approve this grant. customer, distributor, employee, consultant or other business associate of the Company or any such affiliate as such relationship relates to the Company’s or such affiliate’s conduct of its business. In the event of Executive’s breach of this subsection (b), the Restriction Period with respect to this subsection (b) shall be extended by the amount of time during which the Executive is in breach. (c) If the final judgment of a court of competent jurisdiction declares that any term or provision of this Section 4 is invalid or unenforceable, the parties agree that the court making the determination of invalidity or unenforceability shall have the power to reduce the scope, duration, or area of the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified after the expiration of the time within which the judgment may be appealed.

Covenant Not to Compete; Nonsolicitation. (a) Except as specifically set forth in this Section 4, during the Period of Employment and for the 18-month period after the Period of Employment (the “Restriction Period”)Employment, the Executive shall notwill not engage, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer or otherwise, engage in any business or activity anywhere in the United States (including its territories, possessions and commonwealths) or Canada in any business which competes or could reasonably be expected to compete with the Company and/or its affiliates and, for such time after the termination of the Period of Employment with respect to which the Company is providing severance payments or benefits to the Executive (i.e., eighteen (18) months under the terms of Section 8(e)), any business (which competes or any portion thereof) of could reasonably be expected to compete with the Company and/or the Parent, its affiliates as of the date of termination of the Period of Employment; provided, however, that the ownership by the Executive of less than 2% of the outstanding stock of any publicly traded corporation shall not be deemed solely by reason thereof to cause the Executive to be engaged in any businesses being conducted by such publicly traded corporation. In Notwithstanding the event foregoing, the Executive, at his sole discretion, may, by written notice to the Company within ten (10) days following the termination of the Period of Employment, elect to not receive severance payments or benefits pursuant to Section 8(e) of this Agreement, and, in return, the Executive’s breach of this subsection (a), the Restriction Period with respect post-termination non-competition obligations pursuant to this subsection (aSection 4(a) shall be extended by the amount of time during which the Executive is in breachterminate. (b) During the Restriction PeriodPeriod of Employment and for a period of two years thereafter, the Executive will not, directly or indirectly, either for himself or for any other person or entity (i) solicit (A) any employee of the Company or any affiliate of the Company to terminate his or her employment with the Company or such affiliate during his or her employment with the Company or such affiliate or (B) any former employee of the Company or an affiliate of the Company for a period of one year after such individual terminates his or his employment with the Company or such affiliate, (ii) solicit any customer or client of the Company or any such affiliate (or any prospective customer or client of the Company or such affiliate) as of the termination of the Period of Employment to terminate its relationship with the Company or such affiliate, or do business with any third parties, or (iii) take any action that is reasonably likely to cause injury to the relationships between the Company or any such affiliate or any of their respective employees and any lessor, lessee, vendor, supplier, 1 Memry’s Compensation Committee will need to approve this grant. customer, distributor, employee, consultant or other business associate of the Company or any such affiliate as such relationship relates to the Company’s or such affiliate’s conduct of its business. In the event of Executive’s breach of this subsection (b), the Restriction Period with respect to this subsection (b) shall be extended by the amount of time during which the Executive is in breach. (c) If the final judgment of a court of competent jurisdiction declares that any term or provision of this Section 4 is invalid or unenforceable, the parties agree that the court making the determination of invalidity or unenforceability shall have the power to reduce the scope, duration, or area of the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified after the expiration of the time within which the judgment may be appealed.

Covenant Not to Compete; Nonsolicitation. (a) Except as specifically set forth in this Section 45, during from the Period date hereof through the second anniversary of Employment and for the 18-month period after end of the Period of Employment Term (the “Restriction Period”), the Executive shall notwill not engage, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer or otherwise, engage in any business or activity anywhere in the United States (including its territories, possessions and commonwealths) or Canada in any business which competes or could reasonably be expected to compete with the business (or any portion thereof) of the Company and/or the Parent, its affiliates as of the date of termination of the Period of Employmenttermination; provided, however, that (i) the ownership by the Executive of less than 2% of the outstanding stock of any publicly traded corporation shall not be deemed solely by reason thereof to cause the Executive to be engaged in any businesses being conducted by such publicly traded corporation. In If the event final judgment of Executive’s breach a court of competent jurisdiction declares that any term or provision of this subsection (a)Section 5(a) is invalid or unenforceable, the Restriction Period parties agree that the court making the determination of invalidity or unenforceability shall have the power to reduce the scope, duration, or area of the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with respect a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this subsection (a) Agreement shall be extended by enforceable as so modified after the amount expiration of the time during within which the Executive is in breachjudgment may be appealed. (b) During the Restriction Period, the Executive will not, directly or indirectly, either for himself or for any other person or entity (i) solicit (A) any employee of the Company or any affiliate of the Company to terminate his or her employment with the Company or such affiliate during his or her employment with the Company or such affiliate or (B) any former employee of the Company or an affiliate of the Company for a period of one year after such individual terminates his or his employment with the Company or such affiliate, (ii) solicit any customer or client of the Company or any such affiliate (or any prospective customer or client of the Company or such affiliate) as of the termination of the Period of Employment to terminate its relationship with the Company or such affiliate, or do business with any third parties, or (iii) take any action that is reasonably likely to cause injury to the relationships between the Company or any such affiliate or any of their respective employees and any lessor, lessee, vendor, supplier, 1 Memry’s Compensation Committee will need to approve this grant. customer, distributor, employee, consultant or other business associate of the Company or any such affiliate as such relationship relates to the Company’s or such affiliate’s conduct of its business. In the event of Executive’s breach of this subsection (b), the Restriction Period with respect to this subsection (b) shall be extended by the amount of time during which the Executive is in breach. (c) If the final judgment of a court of competent jurisdiction declares that any term or provision of this Section 4 is invalid or unenforceable, the parties agree that the court making the determination of invalidity or unenforceability shall have the power to reduce the scope, duration, or area of the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified after the expiration of the time within which the judgment may be appealed.