Covenant Not to Compete. (i) The Company and its affiliates are currently engaged in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve (12) months after Executive’s cessation of employment with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business. (ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement. (iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Board.
Appears in 6 contracts
Samples: Executive Employment Agreement (Endo, Inc.), Executive Employment Agreement (Endo, Inc.), Executive Employment Agreement (Endo, Inc.)
Covenant Not to Compete. Commencing on the Closing Date and ending on the three (i3) The Company and its affiliates are currently engaged in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets year anniversary of the Company and its affiliates as well as Closing Date (the goodwill and competitive business of “Restricted Period”), the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve (12) months after Executive’s cessation of employment with the Company, that Executive will Restricted Party shall not, unless otherwise agreed to by the Chief Executive Officer and shall cause each of Endo (following approval by the Chair of the Committee)his affiliates not to, anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunderRestricted Territory, directly or indirectly manageindirectly, operate, control, or participate engage in any Competitive Activities. The Restricted Territory shall mean anywhere in the management, operation, world where the Company (directly or control of, be employed by, associated with, or in through any manner connected with, lend Executive’s name to, or render Company Subsidiary) conducts its Business (as defined below) as of the Closing Date. The Restricted Party acknowledges that the Company conducted its Business throughout the Restricted Territory and the Restricted Party provided services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company throughout the Territory. The Restricted Party shall be deemed to be engaged in Competitive Activities if such Restricted Party or any of his affiliates (i) serves as a shareholder, owner, officer, director, member, manager, trustee or partner of, or consults with, advises or assists in any way, whether or not for consideration, any corporation, partnership, firm, proprietorship or other business unit on the termination date organization that constitutes more than 5% of the Company’s revenue on the termination date engages in any Competitive Activity (a “Competing Competitor”) or (ii) endorses the services of any such Competitor, solicits customers, provides or otherwise serves as an intermediary for any such Competitor or loans money or renders any other form of financial assistance to any such Competitor. In the event a court of competent jurisdiction determines that the provisions of this Section 2 are excessively broad as to duration, geographical scope or activity, it is expressly agreed that this Section 2 shall be construed so that the remaining provisions shall not be affected, but shall remain in full force and effect, and any such overbroad provisions shall be deemed, without further action on the part of any Person, to be modified, amended and/or limited, but only to the extent necessary to render the same valid and enforceable in such jurisdiction. For purposes of this Letter Agreement, the term (i) “Business”)” means the business and operations conducted and operated by the Company and/or the Company Subsidiaries prior to the Closing Date, consisting of serving as a global solutions provider for the fire safety and oil additives industries and (ii) “Competitive Activities” as used herein means any activity or service that competes with the Business; provided, however, that Executive may in any event (x) own up to a 5% the term “Competitive Activities” shall not include the passive ownership interest of securities of entities which are listed on a national securities exchange or traded in any public or private entity and the national over-the-counter market in an amount which shall not exceed two percent (y2%) serve on of the board outstanding shares of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such businessentity.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Board.
Appears in 6 contracts
Samples: Non Compete Agreement (Perimeter Solutions, SA), Non Compete Agreement (Perimeter Solutions, SA), Non Compete Agreement (Perimeter Solutions, SA)
Covenant Not to Compete. As a result of Employee’s employment by the Company: (i) The Employee will have access to trade secrets and Confidential Information of the Company, including, but not limited to, valuable information about its intellectual property, business operations and methods, and the persons with which it does business in various locations throughout the world, that is not generally known to or readily ascertainable by a Competing Business, (ii) Employee will develop relationships with the Company’s customers and others with which the Company does business, and its affiliates these relationships are currently engaged among the Company’s most important assets, (iii) Employee will receive specialized knowledge of and specialized training in the business of branded Company’s Business, and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets (iv) Employee will gain such knowledge of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agreesCompany’s Business that, during the Employment Term course of Employee’s employment with the Company and for a period of twelve one year following the termination thereof, Employee could not perform services for a Competing Business without inevitably disclosing the Company’s trade secrets and Confidential Information to that Competing Business. Accordingly, Employee agrees to the following:
(12a) months after ExecutiveWhile employed by the Company, Employee will not, without the express written consent of an authorized representative of the Company: (i) perform services (as an employee, independent contractor, officer, director, or otherwise) within the Territory for any Competing Business, (ii) engage in any activities (or assist others to engage in any activities) within the Territory that compete with the Company’s cessation Business, (iii) own or beneficially own an equity interest in a Competing Business, (iv) request, induce, or solicit (or assist others to request, induce, or solicit) any customers, prospective customers, or suppliers of the Company to curtail or cancel their business with the Company, or to do business within the scope of the Company’s Business with a Competing Business, (v) request, induce, or solicit (or assist others to request, induce, or solicit) for the benefit of any Competing Business any employee or independent contractor of the Company to terminate his or her employment or independent contractor relationship with the Company, or (vi) employ (or assist others to employ) for the benefit of any Competing Business any person who has been employed by the Company within the last year of Employee’s employment with the Company.
(b) For a period of one year following the termination of Employee’s employment with the Company, that Executive Employee will not, unless otherwise agreed to by without the Chief Executive Officer express written consent of Endo (following approval by the Chair an authorized representative of the CommitteeCompany: (i) perform services (as an employee, independent contractor, officer, director, or otherwise), anywhere in within the world whereTerritory for any Competing Business, at that are the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets same or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in similar to any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to that Employee performed for the Company or that otherwise utilize skills, knowledge, and/or business contacts and relationships that Employee utilized while providing services to the Company, (ii) engage in any activities (or assist others to engage in any activities) within the Territory that compete with the Company’s Business, (iii) own or beneficially own an equity interest in a Competing Business, (iv) request, induce, or solicit (or assist others to request, induce, or solicit) any customers, prospective customers, or suppliers of the Company, which were customers, prospective customers, or suppliers of the Company during the last year of Employee’s employment with the Company, to curtail or cancel their business unit on with the termination date that constitutes more than 5% Company, or to do business within the scope of the Company’s revenue on the termination date (Business with a “Competing Business”); provided, however(v) request, that Executive may in induce, or solicit (or assist others to request, induce, or solicit) any event (x) own up to a 5% passive ownership interest in any public customers, prospective customers, or private entity and (y) serve on the board of any Competing Business that competes with the business suppliers of the Company with which Employee worked or had business contact during the last year of Employee’s employment with the Company to curtail or cancel their business with the Company, or to do business within the scope of the Company’s Business with a Competing Business, (vi) request, induce, or solicit (or assist others to request, induce, or solicit) any employee or independent contractor of the Company to terminate his or her employment or independent relationship with the Company, (vii) request, induce, or solicit (or assist others to request, induce, or solicit) any person who has been employed by the Company within the last year of Employee’s employment by the Company or thereafter to be employed with a Competing Business, or (viii) employ or engage as a contractor (or assist others to employ or engage as a contractor) any person who has been employed by the Company within the last year of Employee’s employment by the Company or thereafter. These obligations will continue for the specified period regardless of whether the termination of Employee’s employment was voluntary or involuntary or with or without cause, and its affiliates as the specified period shall be tolled and shall not run during any time in which Employee fails to abide by these obligations.
(c) As an immaterial part of its overall businessexception to the above restrictions, Employee may own passive investments in Competing Businesses, (including, but not limited to, indirect investments through mutual funds), provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months securities of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business are publicly traded and Executive Employee does not provide services to, own or have any responsibilities regarding, control more than two percent of the outstanding voting rights or equity of the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Board.
Appears in 6 contracts
Samples: Employment Agreement (Charles & Colvard LTD), Executive Employment Agreement (LandStar, Inc.), Employment Agreement (Charles & Colvard LTD)
Covenant Not to Compete. (i) The Company During the Restricted Period defined in Exhibit A, Employee covenants and its affiliates are currently engaged in the business of branded and generic pharmaceuticalsagrees that Employee shall not:
a. Directly, with a focus on product developmentindirectly, clinical developmentor otherwise, manufacturingown, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve (12) months after Executive’s cessation of employment with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control ofserve as a consultant to, be employed by, associated withparticipate in, or be connected, in any manner, with the ownership management, operation or control of any business which is competitive with any type of business which Employer is engaged in or planned to engage in at any time during Employee's employment with Employer up to and including the time of the termination of employment ("Employer's Business");
b. Hire, offer to hire, entice away or in any other manner persuade or attempt to persuade any officer, employee or agent of Employer to alter or discontinue his or her relationship with Employer;
c. Directly or indirectly solicit, divert, or attempt to solicit or divert any customers or business of Employer; or
d. Directly or indirectly solicit, divert, or in any other manner connected with, lend Executive’s name to, persuade or render services attempt to persuade any supplier or advice to, any third party Employee to alter or any business whose products or services compete in whole or in part discontinue its relationship with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such businessEmployer.
(ii) 7.1 For the purposes of this Section 11(b)7, any third party or any business whose products compete includes any entity with which Employer's Business includes, without limitation, the Company or its affiliates has had a product(s) licensing agreement during development and operation of multiple commerce sites on the Employment Term and any entity with which Internet for the Company or any sale of its affiliates is at the time of termination actively negotiatingproducts, services, and eventually concludes within twelve privileges over the Internet, participating and building a reciprocal rebate program, providing e-commerce services to direct and multi-level marketing companies as well as discount warehouse companies, and inventing or adapting any e-commerce systems necessary to the operation of such sites. Notwithstanding Employee's obligations under this Section 7, Employee shall be entitled to own, as a passive investor, up to five percent (125%) months of the Employment Term, a commercial agreementany publicly-traded company without violating this provision.
(iii) Notwithstanding 7.2 Employer and Employee agree that this provision does not impose an undue hardship on Employee and is not injurious to the foregoing, it shall not be a violation public; that this provision is necessary to protect the valuable goodwill and the business of Employer; that the nature of Employee's responsibilities with Employer under this Agreement require Employee to have access to confidential information which is valuable and confidential to Employer's Business; that the scope of this Section 11(b)7 is reasonable in terms of length of time; and that adequate consideration supports this Section 7.
7.3 Employee recognizes that Employer has entered into strategic alliance agreements with partners, for Executive to provide services to (or engage in activities involving): (A) a subsidiaryvendors and clients that include various non-competition, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactionsnondisclosure, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; non-circumvention requirements and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, employee agrees to such Competing Business uphold and the basis of the affiliation is solely due to common ownership abide by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Boardthese agreements.
Appears in 5 contracts
Samples: Employment Agreement (Shopping Sherlock Inc), Employment Agreement (Shopping Sherlock Inc), Employment Agreement (Shopping Sherlock Inc)
Covenant Not to Compete. (i) The Company and its affiliates are currently engaged 5.1 In consideration of the compensation to be paid to Employee under this Agreement, Employee acknowledges that in the course of Employee’s employment, he has and will become familiar with Employer’s and the Employer Entities’ trade secrets, business plans and business strategies and with other confidential business information concerning Employer and the Employer Entities and that Employee’s services have been and shall be of branded special, unique and generic pharmaceuticalsextraordinary value to Employer and the Employer Entities. Employee also acknowledges that in the course of his employment he had and will have access to Employer’s and the Employer Entities’ relationships and goodwill with their customers, with a focus on product developmentdistributors, clinical developmentsuppliers and employees. In light of Employee’s value to, manufacturingand knowledge of, distribution Employer, the Employer Entities, and sales & marketing. To protect the Confidential Information Business (as defined below) and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliatesEmployee’s compensation pursuant to this Agreement, Executive agreesEmployee agrees that, during the Employment Term and for a period of twelve two (122) months after Executiveyears following a termination of Employee’s cessation of employment with for any reason (the Company“Non-Compete Period”), that Executive he will not, unless otherwise agreed to by the Chief Executive Officer in association with or as an officer, principal, manager, member, advisor, agent, partner, director, material stockholder, employee or consultant of Endo any corporation (following approval by the Chair of the Committee)or sub-unit, anywhere in the world wherecase of a diversified business) or other enterprise, at entity or association, work on the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets acquisition or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control development of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiaryany line of business, division property or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that project which is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business competitive with any business that Employer or any Employer Entity engages in during the Term, including but not limited to, the mining, processing, transportation, distribution, trading and sale of synfuel, coal and coal byproducts (collectively, the basis of “Business”). Such restriction shall cover Employee’s activities anywhere in the affiliation is solely due to common ownership by a private equity states in the United States in which Employer or similar investment fund; provided, that, any Employer Entity conducts operations during the Term or jurisdictions outside the United States in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (which Employer or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to Employer Entity conducts operations during the prior approval of the BoardTerm.
Appears in 5 contracts
Samples: Employment Agreement (Alpha Metallurgical Resources, Inc.), Employment Agreement (Alpha Metallurgical Resources, Inc.), Employment Agreement (Alpha Metallurgical Resources, Inc.)
Covenant Not to Compete. (ia) The Executive acknowledges that the services he is to render to the Company are of a special and its affiliates are currently engaged in the business of branded and generic pharmaceuticalsunusual character, with a focus on product developmentunique value to the Company, clinical developmentthe loss of which cannot adequately be compensated by damages or an action at law. In view of the unique value to the Companies of the services of Executive for which the Company has contracted hereunder, manufacturingbecause of the confidential information to be obtained by, distribution or disclosed to, Executive as herein above set forth, and sales & marketing. To protect as a material inducement to the Confidential Information Company to enter into this Agreement and to pay to Executive the compensation stated herein and any additional benefits stated herein, and other trade secrets of the Company good and its affiliates as well as the goodwill and competitive business of the Company and its affiliatesvaluable consideration, Executive agrees, covenants and agrees that during the Employment Term and during the “Non-Competition Period,” as defined below, Executive shall not, directly or indirectly, enter into the employment of, tender consulting or other services to, acquire any interest in (whether for a period of twelve (12) months after Executive’s cessation of employment own account as an individual proprietor, or as a partner, associate, stockholder, officer, director, trustee or otherwise), or otherwise participate in any business that competes, directly or indirectly, with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair any of the Committee), anywhere Companies (i) in the world wheresame lines of business in the business process outsourcing industry that the Companies are engaged in at the time Executive’s employment is terminated, or if Executive is an employee of any of the Companies, at the time Executive is accused of being in competition with any of the Companies pursuant to this Section 9; (ii) in the provision of the business processes provided by the Companies at the time Executive’s employment is terminated, or if Executive is an employee of any of the Companies, at the time Executive is accused of being in competition with any of the Companies pursuant to this Section 9; (iii) in the provision of business processes that any of the Companies have taken substantial steps to provide to customers at the time Executive’s employment is terminated, or if Executive is an employee of any of the Companies, at the time Executive is accused of being in competition with any of the Companies pursuant to this Section 9; or (iv) in the provision of business processes that any of the Companies are in the process of marketing to existing or potential clients that any of the Companies are taking measures to retain as clients of the Companies, at the time Executive’s employment is terminated, or if Executive is an employee of any of the Companies, at the time Executive is accused of being in competition with any of the Companies pursuant to this Section 9, during the Employment Term. Executive and the Company acknowledge that clauses (ii), (iii) and (iv) in the immediately preceding sentence shall not be deemed or interpreted to narrow or otherwise limit the scope of clause (i) of such sentence. Notwithstanding the foregoing, in the event Executive voluntarily terminates employment other than for Good Reason, Executive shall be restricted from engaging in any business processing outsourcing business for one year from the Date of Termination. For purposes of this Section 9, the “Non-Competition Period” shall be the one year period following Executive’s termination of employment for any reason; provided that, notwithstanding the above, if Executive’s employment is terminated at the end of the Employment Term following the Company’s giving Executive a notice of its desire not to extend the Employment Term in accordance with Section 2, the Non-Competition Period, and this Section 9(a), shall not apply following such termination of employment, unless, in the sole discretion of the Company, the Company developscontinues to pay Executive the Base Salary in effect at the time of termination for one year following termination.
(b) Notwithstanding the foregoing, manufactures, distributes, markets nothing in this Agreement shall prevent (A) the purchase or sells its products, except ownership by Executive of up to two percent (2%) in the course aggregate of Executive’s employment hereunderany class of securities of any entity if such securities (i) are listed on a national securities exchange or (ii) are registered under Section 12(g) of the Exchange Act; or (B) the direct or indirect ownership of securities of a private company, directly provided that, Executive is only a passive investor in such company (having no role, duty or indirectly manage, operate, control, or participate responsibility whatsoever in the management, operation, operations or control of, be employed by, associated with, or direction of such company) and owns no more than five percent (5%) in the aggregate of any manner connected with, lend securities of such company. If Executive’s name toemployment with the Company is terminated for any reason, and after such termination Executive wishes to take any action, including without limitation, taking a position with another company, which action could potentially be deemed a violation of this Section 9, Executive shall have the right, after providing the Board with all relevant information, to request a consent to such action from the Board which consent shall not be unreasonably withheld. The Board shall respond to Executive’s request by granting or render services or advice todenying such consent within not more than 30 calendar days from the date the Company receives written notice of such request from Executive. If Executive disagrees with the Board’s decision relating to the consent, any then a third-party arbitrator (the “Arbitrator”) shall be appointed within five (5) days of the date Executive notifies the Company of his disagreement, and the third party or any business whose products or services compete in whole or in part Arbitrator shall be instructed to make a determination with the products or services (both on the market respect to whether Executive’s action would constitute a legally valid and in development) material to the Company or any business unit on the termination date that constitutes enforceable violation of Section 9 within not more than 5% thirty (30) days of his appointment and such determination shall be binding on all of the parties hereto. The cost of the Arbitrator shall be borne by the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on if the board of any Competing Business that competes Arbitrator’s determination is inconsistent with Executive’s position, then the business cost of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) Arbitrator shall be subject to the prior approval of the Boardborne by Executive.
Appears in 5 contracts
Samples: Employment and Non Competition Agreement, Employment Agreement (ExlService Holdings, Inc.), Employment and Non Competition Agreement (ExlService Holdings, Inc.)
Covenant Not to Compete. (i) The Company Employee agrees and its affiliates are currently engaged in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect acknowledges that due to the Confidential Information Information, and other trade secrets personal contacts with the customers, prospective customers, and employees of the Company Company, which the Employee has already acquired and its affiliates as well as will continue to acquire during the goodwill and competitive business course of his employment by the Company, that the Company and its affiliateswould be irreparably damaged should the Employee in any way enter into competition with the Company. Therefore, Executive agrees, the Employee agrees that at all times during his employment by the Employment Term Company and for a period of twelve three (123) months after Executive’s cessation years following the termination of employment with for any reason that neither the CompanyEmployee nor any Affiliate (as defined below) will, that Executive will not, unless otherwise agreed to by without the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% prior written consent of the Company’s revenue on :
a. Either directly or indirectly, (i) become financially interested in a Competing Enterprise (as defined below) (other than as a holder of less than five percent (5%) of the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board outstanding voting securities of any entity whose voting securities are listed on a national securities exchange), or (ii) engage in or be employed by any Competing Business that competes with the business Enterprise as a consultant, officer, director, or executive or employee, or any other capacity; or
b. Either directly or indirectly, contact, communicate or solicit any distributor or customer of the Company and its affiliates as an immaterial part for the purpose of its overall businesscausing them to terminate or alter or amend their business relationship with the Company to the Company’s detriment; or
c. Either directly or indirectly, provided that Executive recuses Executive fully and completely from all matters relating to such business.
on the Employee’s own behalf or in the service or on behalf of others (ii) For purposes of this Section 11(bwhether a Competing Enterprise or not), knowingly solicit, divert, or hire away, or attempt to solicit, divert, or hire away, any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which person employed by the Company or any of its affiliates subsidiaries, whether or not such employee is a full-time or a temporary employee of the Company or any of its subsidiaries and whether or not such employment is pursuant to written agreement and whether or not such employment is at will. The parties agree and acknowledge that the time of termination actively negotiatingrestrictions contained in this section are reasonable, and eventually concludes within twelve (12) months necessary to protect the Company’s legitimate interests in its customers, accounts and other secret and confidential information. Each party agrees that if a court of law determines that this covenant is unreasonable as to time, geographic area, or scope of activity, that the Employment TermCompany and the Employee shall be deemed to have consented to, a commercial agreement.
(iii) Notwithstanding and are deemed to have requested, reformation of this covenant by such court to the foregoing, it shall not be a violation extent necessary to make such covenant reasonable. For the purposes of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Board.6:
Appears in 5 contracts
Samples: Employment Agreement (Omega Protein Corp), Employment Agreement (Omega Protein Corp), Employment Agreement (Omega Protein Corp)
Covenant Not to Compete. (ia) The Company and its affiliates are currently engaged in During the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term Employee's service hereunder and for a period of twelve eighteen (1218) months after Executive’s cessation thereafter, regardless of the reason or method of termination, the Employee will not, directly or indirectly, for the Employee's own benefit or the benefit of any other person or entity:
(i) solicit in any manner, seek to obtain, or service the business of any customer of the Company, other than for the Company; (ii) become an owner of any business, if such business competes with the Company; (iii) become employed by or serve as an agent, independent contractor or representative of any business which competes with the Company; (iv) solicit the employment of or hire any employee of the Company, or encourage any employee to terminate his or her employment with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo ; or (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or v) prepare in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services to compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(iib) For purposes of this Section 11(b)Agreement, a "customer" shall be deemed to be any third party person, business, partnership, proprietorship, firm, organization or any corporation which has done business whose products compete includes any entity with which the Company or its affiliates which has had a product(s) licensing agreement during the Employment Term and been solicited or serviced in any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide servicesmanner, directly or indirectly, by the Company within eighteen (18) months prior to such Competing Business the date of the termination of the Employee, and the basis phrase "service the business of any customer" means the development, modification, enhancement or improvement of any product or service offered by the Company or which is reasonably related to the products or services offered by the Company. The Employee hereby acknowledges that, by virtue of the affiliation is solely due Employee's position and access to common ownership by a private equity or similar investment fund; providedinformation, thatthe Employee will have advantageous familiarity and personal contacts with the Company's customers, wherever located, and that the restrictions contemplated hereby are reasonable for the protection of the Company's goodwill and customer base, and the Company's efforts in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(cthe development of such customers.
(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) If the Employee does not comply with the provisions of this Section 11(b)(iii7, the eighteen (18) month period of non-competition provided herein shall be subject tolled and deemed not to run during any period(s) of noncompliance, the prior approval intention of the Boardparties being to provide eighteen (18) full months of non-competition by the Employee after the termination or expiration of this Agreement.
Appears in 5 contracts
Samples: Employment Agreement (Interactive Intelligence Inc), Employment Agreement (Interactive Intelligence Inc), Employment Agreement (Interactive Intelligence Inc)
Covenant Not to Compete. Employee expressly acknowledges that (i) The Company the Universal Companies are and its affiliates are currently will be engaged in the business of branded producing and generic pharmaceuticalsselling bottled water, with enhanced beverages and related food products; (ii) Employee is one of a focus on product development, clinical development, manufacturing, distribution limited number of persons who has extensive knowledge and sales & marketing. To expertise relevant to the businesses of the Universal Companies; (iii) Employee's performance of his services for the Company hereunder will afford him full and complete access to and cause him to become highly knowledgeable about the Universal Companies' Confidential and Proprietary Information; (iv) the agreements and covenants contained in this Section 4.6 are essential to protect the Confidential Information business and other trade secrets goodwill of the Company and its affiliates as well as Universal Companies, because, if Employee enters into any activities competitive with the goodwill and competitive business businesses of the Company and its affiliatesUniversal Companies, Executive agreeshe will cause substantial harm to the Universal Companies; (v) he will be exposed to the Universal Companies' largest customers, during the Employment Term and which Employee acknowledges he would not have been exposed to but for a period of twelve (12) months after Executive’s cessation of his employment with the Company, that Executive will not, unless otherwise agreed to by ; (vi) the Chief Executive Officer of Endo (following approval by the Chair business territory of the Committee), anywhere in Universal Companies constitutes the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, geographic markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is Universal Companies at the time of termination actively negotiating, of employment ("Business Territory"); and eventually concludes within twelve (12vii) months his covenants to the Company set forth in this Section 4.6 are being made in consideration of the Employment TermCompany's willingness to employ him. Accordingly, a commercial agreement.
(iii) Notwithstanding Employee hereby agrees that during the foregoingRestricted Period, it he shall not be a violation of this Section 11(b)directly or indirectly own any interest in, for Executive to provide services to (or engage in activities involving): (A) a subsidiaryinvest in, division or affiliate of a Competing Business where such subsidiarylend to, division or affiliate is not engaged in a Competing Business and Executive does not provide borrow from, manage, control, participate in, consult with, become employed by, render services to, or have in any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner other manner whatsoever engage in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, any business which is competitive with any business actively being engaged in venture capital investmentsby the Universal Companies or actively (and demonstrably) being considered by the Universal Companies for entry into on the date of the termination of Employee's employment with the Universal Companies, leveraged buy-outswithin the Business Territory. Employee acknowledges that the Restricted Business are in direct competition with one or more lines of business actively being engaged in by the Company within the Company's geographical markets for those lines of business. The preceding to the contrary notwithstanding, Employee shall be free to make investments in public or private companies, other forms the publicly traded securities of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directlyany corporation, provided that in connection therewith, Executive does such investments do not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, amount to such Competing Business and the basis more than 1% of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision outstanding securities of services to (or engagement in activities involving) any entity described in clauses (A) or (B) class of this Section 11(b)(iii) shall be subject to the prior approval of the Boardsuch corporation.
Appears in 5 contracts
Samples: Employment Agreement (Cardinal Minerals Inc), Employment Agreement (Cardinal Minerals Inc), Employment Agreement (Cardinal Minerals Inc)
Covenant Not to Compete. (ia) The Employee recognizes that in each of the highly competitive businesses in which the Company will be engaged following the Effective Date, personal contact is of primary importance in securing new customers and its affiliates are currently engaged in retaining the accounts and goodwill of present customers and protecting the business of branded and generic pharmaceuticalsthe Company. The Employee, with a focus on product developmenttherefore, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, agrees that during the term of his Employment Term and for a period of twelve (12) months three years after Executive’s cessation of employment with the CompanyTermination Date, that Executive he will not, unless otherwise agreed within 75 miles of each geographic location in which he has devoted substantial attention at such location to the material business interests of the Company (the "Relevant Geographic Areas"): (i) accept employment or render service to any Person that is engaged in a business directly competitive with the business then engaged in by the Chief Executive Officer of Endo Company or (following approval by the Chair of the Committee)ii) enter into or take part in or lend his name, anywhere in the world wherecounsel or assistance to any business, at the time of Executive’s termination of employmenteither as proprietor, the Company developsprincipal, manufacturesinvestor, distributespartner, markets or sells its productsdirector, except in the course of Executive’s employment hereunderofficer, directly or indirectly manageemployee, operateconsultant, controladvisor, or participate in the managementagent, operation, or control of, be employed by, associated withindependent contractor, or in any manner connected withother capacity whatsoever, lend Executive’s name to, or render services or advice to, for any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date purpose that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes would be competitive with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from (all matters relating to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) foregoing activities are collectively referred to as the "Prohibited Activity"). Notwithstanding the foregoing, it shall not be the Employee may own and hold as a violation passive investment up to 5% of the outstanding shares of any class of capital stock (or other equity interest) in a competing corporation, limited liability company, limited partnership or other entity if that class of capital stock (or other equity interest) is listed on a national stock exchange or included in the Nasdaq National Market.
(b) In addition to all other remedies at law or in equity which the Company may have for breach of a provision of this Section 11(b)7 by the Employee, it is agreed that in the event of any breach or attempted or threatened breach of any such provision, the Company will be entitled, on application to any court of proper jurisdiction, to a temporary restraining order or preliminary injunction (without the necessity of (i) proving irreparable harm, (ii) establishing that monetary damages are inadequate or (iii) posting any bond with respect thereto) against the Employee prohibiting such breach or attempted or threatened breach by proving only the existence of such breach or attempted or threatened breach. If the provisions of this Section 7 should ever be deemed to exceed the time, geographic or occupational limitations applicable law permits, the Employee and the Company agree that those provisions will be and are hereby reformed to the maximum time, geographic or occupational limitations applicable law permits.
(c) The covenants of the Employee in this Section 7 are independent of and severable from every other provision of this Agreement; and the breach of any other provision of this Agreement by the Company or the breach by the Company of any other agreement between the Company and the Employee will not affect the validity of the provisions of this Section 7 or constitute a defense of the Employee in any suit or action brought by the Company to enforce any of the provisions of this Section 7 or seek any relief for Executive the breach thereof by Employee.
(d) The Employee acknowledges, agrees and stipulates that: (i) the terms and provisions of this Agreement are reasonable and constitute an otherwise enforceable agreement to provide services to or of which the terms and provisions of this Section 7 are ancillary or a part; (or engage in activities involving): (Aii) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate the consideration provided by the Company under this Agreement is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Businessillusory; and (Ciii) an affiliate the consideration given by the Company under this Agreement, including the provision by the Company of a Competing Business if Executive does not provide servicesConfidential Information to the Employee as Section 8 contemplates, directly or indirectly, gives rise to such Competing Business the Company's interest in restraining and prohibiting the Employee from engaging in the Prohibited Activity within the Relevant Geographic Areas as this Section 7 provides and the basis of Employee's covenant not to engage in the affiliation Prohibited Activity within the Relevant Geographic Areas pursuant to this Section 7 is solely due designed to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to enforce the Employee's consideration (or engagement return promises) including the Employee's promise in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject 8 to the prior approval of the Boardnot disclose Confidential Information.
Appears in 4 contracts
Samples: Employment Agreement (RMX Industries Inc), Employment Agreement (RMX Industries Inc), Employment Agreement (RMX Industries Inc)
Covenant Not to Compete. The Executive acknowledges and recognizes the highly competitive nature of the Company's Business and the goodwill, continued patronage, and the names and addresses of the Company's Clients (ias hereinafter defined) The Company and its affiliates are currently engaged in the business of branded and generic pharmaceuticals, with constitute a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets substantial asset of the Company having been acquired through considerable time, money and its affiliates as well as the goodwill and competitive business effort. Accordingly, in consideration of the Company execution of this Agreement, and its affiliatesas except as may specifically otherwise approved by the Parent Board, the Executive agrees, agrees to the following:
(1) That during the Employment Term Restricted Period (as hereinafter defined) and for a period of twelve within the Restricted Area (12) months after Executive’s cessation of employment with as hereinafter defined), the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, individually or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part conjunction with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide servicesothers, directly or indirectly, to such Competing engage in any Business Activities (as hereinafter defined), whether as an officer, director, proprietor, employer, partner, independent contractor, investor (other than as a holder solely as an investment of less than four and the basis ninety-nine one hundreds percent (4.99%) of the affiliation is solely due to common ownership by outstanding capital stock of a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(apublicly traded company), 11(cconsultant, advisor, agent or otherwise.
(2) That during the Restricted Period and 11(dwithin the Restricted Area, the Executive will not, directly or indirectly, compete with the Company by soliciting, inducing or influencing any of the Company's Clients which have a business relationship with the Company at the time during the Restricted Period to discontinue or reduce the extent of such relationship with the Company.
(3) herein; providedThat during the Restricted Period and within the Restricted Area, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses the Executive will not (A) directly or indirectly recruit, solicit or otherwise influence any employee or agent of the Company to discontinue such employment or agency relationship with the Company, or (B) employ or seek to employ, or cause or permit any business which competes directly or indirectly with the Business Activities of this Section 11(b)(iiithe Company (the “Competitive Business”) shall be subject to employ or seek to employ for any Competitive Business any person who is then (or was at any time within two (2) years prior to the prior approval of date Executive or the BoardCompetitive Business employs or seeks to employ such person) employed by the Company.
Appears in 4 contracts
Samples: Executive Employment Agreement (cbdMD, Inc.), Executive Employment Agreement (Level Brands, Inc.), Executive Employment Agreement (Level Brands, Inc.)
Covenant Not to Compete. In recognition of the considerations described herein and that the services rendered by Employee are special, unique, unusual and of a intellectual nature Employee covenants and agrees:
(ia) The Employee agrees that for a period of one (1) year after termination of Employee’s employment with the Company for any reason, Employee will not, without the prior written consent of Company, directly or indirectly, have an interest in, be employed by or be connected with, as an Employee, consultant, officer, director, partner, member, stockholder, any person or entity owning, managing, controlling, operating or otherwise participating or assisting in any business that is in competition with Company’s business nor interfere with, disrupt or attempt to disrupt the relationship, contractual or otherwise, between Company and its affiliates are currently engaged any customer, client, supplier, employee or consultant of the Company. Notwithstanding the foregoing, Employee’s ownership of less than five percent (5%) of the issued and outstanding securities of any class of a corporation listed on national securities shall not be deemed a violation of this Agreement. For the purpose of this section a person or entity shall be deemed to be in competition with Company if it directly or indirectly provides goods or services related to the business of branded and generic pharmaceuticalsmanufacture, with a focus on product sale, distribution, lease, development, clinical developmentimprovement or research of Proton Exchange Membranes, manufacturingenergy recovery ventilators, distribution immersion coatings, desalination devices, hydrogen on demand devices and/or hydrogen generation device(s) of any sort, polymer membranes used in moisture transfer applications and sales & marketing. To protect any other business areas or product lines in which Company, any of its subsidiaries, strategic partners or joint venturers engages in, develops or enters into or hereafter engages in, enters into or develops during the Confidential Information and other trade secrets time Employee is employed by Company.
(b) Employee agrees that upon termination of Employee’s employment with the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term for any reason and for a period of twelve six (126) months after Executive’s cessation of employment with the Companythereafter, that Executive Employee will not, unless otherwise agreed to not solicit or hire any person employed by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, Company at the any time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such businessduring said period.
(iic) For purposes Nothing in Section 14 shall reduce or abrogate the Employees obligations during the term of this Section 11(b)Agreement under Sections 9, any third party 10 or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement11 hereof.
(iiid) Notwithstanding It is the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business desire and the basis intent of the affiliation is solely due parties that the provisions of Section 14 be enforced to common ownership by a private equity or similar investment fund; provided, that, the fullest extent possible under the laws and public policies applied in each casejurisdiction in which enforcement is sought. Accordingly, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10if any particular portion of Section 14 is adjudicated to be invalid or unenforceable, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) 14 shall be subject deemed amended to delete the portion thus adjudicated to be invalid or unenforceable, such deletion to apply only with respect to the prior approval operation of Section 14 in the Boardparticular jurisdiction in which such adjudication is made.
Appears in 4 contracts
Samples: Employee Non Disclosure and Non Compete Agreement, Employee Non Disclosure and Non Compete Agreement, Employee Non Disclosure and Non Compete Agreement
Covenant Not to Compete. (ia) The Company and its affiliates are currently engaged in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for For a period of twelve 1 year from any termination of your employment, (12) months after Executive’s cessation or, if later, upon conclusion of employment with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committeeyour service as a consultant), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunderyou shall not, directly or indirectly indirectly, for your own benefit or for, with or through any other individual, firm, corporation, partnership or other entity, whether acting in an individual, fiduciary or other capacity, own, manage, operate, control, advise, invest in (except as a 1% or less shareholder of a public company), loan money to, or participate or assist in the ownership, management, operation, operation or control ofof or be associated as a director, be employed byofficer, associated employee, partner, consultant, advisor, creditor, agent, independent contractor or otherwise with, or acquiesce in any manner connected with, lend Executive’s the use of your name to, or render services or advice toby, any third party or any business whose products or services compete enterprise that is in whole or in part direct competition with the products or services (both on the market and in development) material to the Company or any subsidiary within the United States of America or any other country that the Company conducts business unit on at the time of your termination.
(b) In addition to the foregoing, at all times during the period of your employment and for 1 year after any termination date that constitutes more than 5% thereof (or, if later, upon conclusion of your services as a consultant), you will not, directly or indirectly (as described above), for your benefit or for, with or through any business, hire, employ, solicit, or otherwise encourage or entice any of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (xor subsidiary’s) own up employees or consultants to a 5% passive ownership interest in any public leave or private entity and (y) serve on the board of any Competing Business that competes terminate their employment with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such businessCompany.
(iic) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which You and the Company consider the restrictions contained in subparagraphs (a) and (b) above to be reasonable for the purpose of preserving the Company’s proprietary rights and interests. If a court makes a final judicial determination that any such restrictions are unreasonable or its affiliates has had a product(s) licensing agreement during the Employment Term otherwise unenforceable against you, you and any entity with which the Company or any of its affiliates is at hereby authorize such court to amend this Agreement so as to produce the time of termination actively negotiatingbroadest, legally enforceable agreement, and eventually concludes within twelve for this purpose the restrictions on time period, geographical area and scope of activities set forth in subparagraphs (12a) months of and (b) above are divisible; if the Employment Termcourt refuses to do so, a commercial agreementyou and the Company hereto agree to modify the provisions held to be unenforceable to preserve each party’s anticipated benefits thereunder to the maximum extent legal.
(iiid) Notwithstanding You acknowledge and agree that the foregoing, it shall not be a violation Company’s remedies at law for breach or threatened breach of any of the provisions of this Section 11(b)Paragraph would be inadequate. Therefore, for Executive to provide services to (or engage you agree that in activities involving): (A) a subsidiary, division or affiliate the event of a Competing Business where such subsidiarybreach or threatened breach by you of the provisions in this Paragraph, division or affiliate is not engaged in a Competing Business and Executive does not provide services the Company shall be entitled to, in addition to its remedies at law and without posting any bond, equitable relief in the form of specific performance, a temporary restraining order, a temporary or have any responsibilities regarding, the Competing Business; (B) any entity that ispermanent injunction, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or any other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and equitable remedy that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall may then be subject to the prior approval of the Boardavailable.
Appears in 4 contracts
Samples: Change in Control Agreement (Radyne Corp), Change in Control Agreement (Radyne Corp), Change in Control Agreement (Radyne Corp)
Covenant Not to Compete. (ia) The Company and its affiliates are currently engaged in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agreesEmployee agrees that he will not, during the Employee's employment with the Company (whether for the Term of Employment Term contemplated by this Agreement or longer) and for a period of twelve three (123) months years after Executive’s cessation such employment has terminated or ended (for whatever reason): (i) Solicit, encourage or support any employee or independent contractor of employment the Company to terminate his or her relationship with the Company, that Executive will not, unless otherwise agreed who has not ceased to by the Chief Executive Officer of Endo (following approval by the Chair be an employee or independent contractor of the Committee)Company for a period of three (3) years; (ii) Solicit, anywhere in the world where, at the time encourage or support any supplier of Executive’s termination of employment, goods or services to the Company developsto discontinue doing, manufactures, distributes, markets or sells its products, except in reduce the course of Executive’s employment hereunder, directly or indirectly manage, operate, controlamount of, or participate in transfer all or part of its business with the management, operation, Company or control of, be employed by, associated with, otherwise interfere or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or attempt to interfere with any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to relationship between the Company or any of such suppliers, (iii) Solicit, encourage or support any Company Customer to discontinue doing, reduce the amount of or transfer all or part of its business unit on with the termination date Company; or (iv) Engage in any Competitive Activity within the United States as an employee, agent, officer, consultant, adviser, director, or owner of any interest in (except for ownership of a minor percentage of stock in a "public" competitor) any entity that constitutes more than 5% engages in any Competitive Activity, or provide any financing or other credit enhancement related thereto.
(b) Employee acknowledges that all of the provisions of this Section 8 are fair and necessary to protect the interests of the Company’s revenue on . Employee acknowledges and agrees that irreparable injury will result to the termination date Company from any breach of this Section 8, and that there is no adequate remedy at law to redress a breach or threatened breach. As a result of the foregoing, Employee acknowledges and agrees that the parties seeking to enforce any provisions of this Section 8 shall be entitled to an injunction or other equitable relief against him to restrain him from such breach; provided that nothing contained herein shall prohibit the Company, or any of its subsidiaries or affiliates, from pursuing any other remedy it may have. Such injunctive relief shall not preclude the Company from recovering whatever damages it can establish.
(a “Competing Business”)c) Notwithstanding anything herein to the contrary, the Employee shall not be subject to the provisions of paragraphs (a) and (b) of this Section 8 if the Company fails to timely satisfy all payments to the Employee required by Section 5(b)(2) of this Agreement; provided, however, that Executive may in a waiver to any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on such payments by the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it Employee shall not be a violation of this Section 11(b), for Executive to provide services to construed as relieving the Employee from complying with paragraphs (or engage in activities involving): (Aa) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (Bb) of this Section 11(b)(iii) shall be subject 8 unless the Board of Directors expressly consent in writing to the prior approval of the Boardsuch waiver.
Appears in 3 contracts
Samples: Employment Agreement (United American Companies Inc), Employment Agreement (United American Companies Inc), Employment Agreement (United American Companies Inc)
Covenant Not to Compete. The Employee recognizes that the Company has business goodwill and other legitimate business interests which must be protected in connection with and in addition to the Information (as defined hereinafter), and therefore, in exchange for access to the Information, the specialized training and instruction which the Company will provide, the Company's agreement to employ the Employee on the terms and conditions set forth herein, the Company's agreement to execute and consummate the Purchase Agreement, and the promotion and advertisement by the Company of Employee's skill, ability and value in the Company's business, subject to the provisions of the next full paragraph of this Section 12, the Employee agrees that in the event (i) The Company and its affiliates are currently engaged in Employee is terminated for Cause, or (ii) Employee leaves the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets employ of the Company and its affiliates as well as the goodwill and competitive business other than a Termination By Employee With Good Reason prior to expiration of the Company and its affiliatesterm of the Agreement, Executive agreesor (iii) upon the expiration of the term of this Agreement, during the Employment Term and then for a period of twelve the latest date of (12i) months five (5) years after Executive’s cessation the date of this Agreement, or (ii) three (3) years after the date employment is so terminated, except in the event of Termination Without Cause or in the event of Termination By Employee With Good Reason By Employee:
(a) Employee will not in any capacity or relationship enter into, engage in, or be connected with the Company, that Executive will not, unless otherwise agreed to any business or business operation or activity within a fifty (50) mile radius of any office location then operated by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, Employer at the time of Executive’s termination of employmentsuch termination, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete which consists in whole or in part with of the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% Business of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.and
(iib) For purposes of this Section 11(b), Employee will not call upon any third party customer whose account is serviced in whole or any business whose products compete includes any entity with which in part by the Company Employer or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is Affiliates at the time of the termination actively negotiatingof Employee's employment, and eventually concludes with the purpose of selling or attempting to sell to any such customer any services included within twelve that offered by the Employer or its Affiliates; and
(12c) months Employee will not intentionally divert, solicit or take away any customer, supplier or employee of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (Employer or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services toits Affiliates, or have the patronage of any responsibilities regarding, customer or supplier of the Competing Business; (B) any entity that isEmployer or its Affiliates, or is a general partner inotherwise interfere with or disturb the relationship existing between the Employer or its Affiliates and any of their respective customers, suppliers or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide servicesemployees, directly or indirectly. The foregoing restrictive covenants shall apply to the Employee in the event of his Termination Without Cause or in the event of Termination By Employee With Good Reason by the Employee, to such Competing Business and but only for a period of one (1) year. In the basis event the Company ceases operation of the affiliation is solely due to common ownership by Business of the Company other than in a private equity merger, consolidation, or similar investment fund; providedtransaction, thator upon the filing of a bankruptcy or receivership proceeding against the Employer, in each caseor upon the appointment of a liquidator for the Company, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) the provisions of this Section 11(b)(iii) 12 shall not be applicable to the conduct of Employee subsequent thereto. It is mutually understood and agreed that if any of the provisions relating to the scope, time or territory in this Section 12 are more extensive than is enforceable under applicable laws or are broader than necessary to protect the good will and legitimate business interests of the Company, then the Parties agree that they will reduce the degree and extent of such provisions by whatever minimal amount is necessary to bring such provisions within the ambit of enforceability under applicable law. The Parties acknowledge that the remedies at law for breach of Employee's covenants contained in this Section 12 are inadequate, and they agree that the Company shall be subject entitled, at its election, to injunctive relief (without the necessity of posting bond against such breach or attempted breach), and to specific performance of such covenants in addition to any other remedies at law or equity that may be available to the prior approval of the BoardCompany.
Appears in 3 contracts
Samples: Purchase and Sale Agreement (Us Legal Support Inc), Purchase and Sale Agreement (Us Legal Support Inc), Purchase and Sale Agreement (Us Legal Support Inc)
Covenant Not to Compete. (i) The Executive hereby understands and acknowledges that, by virtue of his position with the Company and its affiliates are currently engaged in the business of branded Bank, he has obtained advantageous familiarity and generic pharmaceuticalspersonal contacts with Customers and Prospective Customers, with a focus on product developmentwherever located, clinical developmentand the business, manufacturingoperations, distribution and sales & marketing. To protect the Confidential Information and other trade secrets affairs of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agreesBank. Accordingly, during the Employment Term and term of this Agreement and, except as provided in subparagraph (b) of this Section 15, for a period of twelve two (122) months after Executive’s cessation years following the termination of his employment with the CompanyCompany and the Bank (including but not limited to by reason of retirement) (“Restriction Period”), that other than a termination of the Executive’s employment with the Company and the Bank following a Change in Control, the Executive will shall not, unless otherwise directly or indirectly, except as agreed to by the Chief Executive Officer of Endo (following approval by the Chair duly adopted resolution of the Committee)Bank Board:
(a) as owner, anywhere officer, director, stockholder, investor, proprietor, organizer, employee, agent, representative, consultant, independent contractor, or otherwise, engage in the world wheresame trade or business as the Company’s Business, at in the time of Executive’s termination of employment, same or similar capacity as the Executive worked for the Company develops, manufactures, distributes, markets or sells its products, except in and the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated withBank, or in any manner connected with, lend Executive’s name to, such capacity as would cause the actual or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% threatened use of the Company’s revenue on or the termination date (a “Competing Business”)Bank’s trade secrets and/or Confidential Information; provided, however, that this subsection (a) shall not restrict the Executive may in any event from acquiring, as a passive investment, less than five percent (x5%) own up to a 5% passive ownership interest in any public or private entity and (y) serve on of the board outstanding securities of any Competing class of an entity that are listed on a national securities exchange or actively traded in the over-the-counter market. The Executive acknowledges and agrees that, given the level of trust and responsibility given to him while in the Company’s and the Bank’s employ, and the level and depth of trade secrets and Confidential Information entrusted to him, any immediately subsequent employment with a competitor to the Company’s Business that competes would result in the inevitable use or disclosure of the Company’s and the Bank’s trade secrets and Confidential Information and, therefore, the duration of this year restriction is reasonable and necessary to protect against such inevitable disclosure; or
(b) offer to provide employment or work of any kind (whether such employment is with the Executive or any other business or enterprise), either on a full-time or part-time or consulting basis, to any person who then currently is an employee of the Company and its affiliates as an immaterial part or the Bank. The restrictions on the activities of its overall business, provided that the Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes of contained in this Section 11(b), any third party 15 shall be limited to the following geographical areas: all counties in which Company or the Bank or any business whose products compete includes any entity with which other affiliate of the Company maintains an office or branch or has filed an application for regulatory approval to establish an office or branch as of date of termination, except as agreed otherwise by the Bank Board. Notwithstanding anything herein to the contrary, the Restriction Period shall be limited to a period of one year in the event of termination of the Executive’s employment by the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity Bank with which the Company Cause or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Boardretirement.
Appears in 3 contracts
Samples: Employment Agreement (Columbia Financial, Inc.), Employment Agreement (Columbia Financial, Inc.), Employment Agreement (Columbia Financial, Inc.)
Covenant Not to Compete. (ia) The Company and its affiliates are currently engaged in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve (12) months after Executive’s cessation of During Employee's employment with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at Affiliates (as defined in Exhibit B attached hereto) and thereafter during the time Restricted Period (as defined in Exhibit B attached hereto), regardless of the reason for the termination of Employee's employment, Employee will not engage in or carry on, directly or indirectly, either for himself or as a member of a partnership or as a shareholder, investor, owner, officer or director of a company or other entity, or as an employee, agent, associate or consultant of any person, partnership, corporation or other entity, any business in any State of the United States or in any other part of the world that directly competes with any services or products produced, sold, conducted, developed, or in the process of development by the Company or its Affiliates on the date of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreementEmployee's employment.
(iiib) Notwithstanding the foregoing, it Employee shall be permitted to engage in the following activities which could otherwise be covered by Section 12(a):
(i) the ownership of less than one percent of any class of securities of a publicly-held company whose gross assets exceed $100,000,000; and
(ii) working in the indoor air quality, heating, ventilation and air conditioning or plumbing maintenance services industry if such activities are not in direct competition with any products or services produced, sold, conducted, developed, or in the process of development by the Company or its Affiliates on the date of termination of Employee's employment.
(c) Employee acknowledges that the limitations set forth herein on his rights to compete with the Company and its Affiliates are reasonable and necessary for the protection of the Company and its Affiliates. In this regard, Employee specifically agrees that the limitations as to period of time and geographic area, as well as all other restrictions on his activities specified herein, are reasonable and necessary for the protection of the Company and its Affiliates. In particular, Employee acknowledges that the parties anticipate that Employee will be actively seeking markets for the products and services of the Company and its Affiliates throughout the United States during Employee's employment with the Company.
(d) In the event that there shall be any violation of the covenant not to compete set forth in this Section 12, then the time limitation thereof shall be extended for a period of time equal to the period of time during which such violation continues; and in the event the Company is required to seek relief from such violation in any court, board of arbitration or other tribunal, then the covenant shall be extended for a period of time equal to the pendency of such proceedings, including all appeals.
(e) Employee agrees that the remedy at law for any breach by Employee of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, 12 will be inadequate and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, the Company shall also be entitled to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Boardinjunctive relief.
Appears in 3 contracts
Samples: Employment Agreement (Group Maintenance America Corp), Employment Agreement (Group Maintenance America Corp), Employment Agreement (Group Maintenance America Corp)
Covenant Not to Compete. (i) The Company 4.1 Employee hereby covenants and its affiliates are currently engaged in the business of branded and generic pharmaceuticals, agrees with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, that during the Employment Term term hereof and for a period expiring two years after the termination of twelve (12) months after Executive’s cessation of Employee's employment with the Company, that Executive Employee will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, not directly or indirectly manage, (i) operate, controldevelop or own any interest, or participate in other than the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more ownership of less than 5% of the equity securities of a publicly traded company, in any business which has significant (viewed in relation to the business of SEI) activities relating to the ownership, management or operation of, or consultation regarding an HVAC service and replacement company (an "HVAC Business"); (ii) compete with the Company’s revenue on , SEI or their subsidiaries and affiliates in the termination date operation or development of any HVAC Business within 50 miles of any HVAC Business owned by SEI; (a “Competing Business”)iii) be employed by or consult with any business which owns, manages or operates an HVAC Business within 50 miles of any HVAC Business owned by SEI; (iv) interfere with, solicit, disrupt or attempt to disrupt any past, present or prospective relationship, contractual or otherwise, between the Company, SEI or their subsidiaries or affiliates, and any customer, client, supplier or employee of SEI, or its subsidiaries or affiliates; or (v) solicit any past, present or prospective management employee (including all corporate officers and managers, all regional managers and all general managers) of the Company, SEI or their subsidiaries or affiliates, to leave their employment with the Company, SEI or their subsidiaries or affiliates, or hire any such employee to work in any capacity; provided, however, that Executive may in any event (x) own up this provision shall not apply if Employee's employment hereunder is terminated without cause prior to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business expiration of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such businessAgreement.
(ii) For purposes 4.2 If a judicial determination is made that any of the provisions of this Section 11(b)4 constitutes an unreasonable or otherwise unenforceable restriction against Employee, any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation provisions of this Section 11(b), for Executive 4 shall be rendered void only to provide services the extent that such judicial determination finds such provisions to (be unreasonable or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regardingotherwise unenforceable. In this regard, the Competing Business; (B) parties hereto hereby agree that any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have judicial authority construing this Agreement shall be empowered to sever any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis portion of the affiliation is solely due to common ownership by a private equity territory or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) prohibited business activity from the coverage of this Section 11(b)(iii) 4 and to apply the provisions of this Section 4 to the remaining portion of the territory or the remaining business activities not so severed by such judicial authority. Moreover, notwithstanding the fact that any provisions of this Section 4 are determined not to be specifically enforceable, the Company and/or SEI shall nevertheless be entitled to recover monetary damages as a result of the breach of such provision by Employee. The time period during which the prohibitions set forth in this Section 4 shall apply shall be subject tolled and suspended as to Employee for a period equal to the prior approval aggregate quantity of the Boardtime during which Employee violates such prohibitions in any respect.
Appears in 3 contracts
Samples: Employment Agreement (Service Experts Inc), Employment Agreement (Service Experts Inc), Employment Agreement (Service Experts Inc)
Covenant Not to Compete. (ia) The Company and its affiliates are currently engaged in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve (12) months after Executive’s cessation of During Employee's employment with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at Affiliates (as defined in Exhibit A attached hereto) and thereafter during the time Restricted Period (as defined in Exhibit A attached hereto), regardless of the reason for the termination of Employee's employment, Employee will not engage in or carry on, directly or indirectly, either for himself or as a member of a partnership or as a shareholder, investor, owner, officer or director of a company or other entity, or as an employee, agent, associate or consultant of any person, partnership, corporation or other entity, any business in any State of the United States or in any other part of the world that directly competes with any services or products produced, sold, conducted, developed, or in the process of development by the Company or its Affiliates on the date of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreementEmployee's employment.
(iiib) Notwithstanding the foregoing, it Employee shall be permitted to engage in the following activities which could otherwise be covered by Section 12(a):
(i) the ownership of less than one percent of any class of securities of a publicly-held company whose gross assets exceed $100,000,000; and
(ii) working in the indoor air quality, heating, ventilation and air conditioning or plumbing maintenance services industry if such activities are not in direct competition with any products or services produced, sold, conducted, developed, or in the process of development by the Company or its Affiliates on the date of termination of Employee's employment.
(c) Employee acknowledges that the limitations set forth herein on his rights to compete with the Company and its Affiliates are reasonable and necessary for the protection of the Company and its Affiliates. In this regard, Employee specifically agrees that the limitations as to period of time and geographic area, as well as all other restrictions on his activities specified herein, are reasonable and necessary for the protection of the Company and its Affiliates. In particular, Employee acknowledges that the parties anticipate that Employee will be actively seeking markets for the products and services of the Company and its Affiliates throughout the United States during Employee's employment with the Company.
(d) In the event that there shall be any violation of the covenant not to compete set forth in this Section 12, then the time limitation thereof shall be extended for a period of time equal to the period of time during which such violation continues; and in the event the Company is required to seek relief from such violation in any court, board of arbitration or other tribunal, then the covenant shall be extended for a period of time equal to the pendency of such proceedings, including all appeals.
(e) Employee agrees that the remedy at law for any breach by Employee of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, 12 will be inadequate and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, the Company shall also be entitled to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Boardinjunctive relief.
Appears in 3 contracts
Samples: Employment Agreement (Encompass Services Corp), Employment Agreement (Encompass Services Corp), Employment Agreement (Encompass Services Corp)
Covenant Not to Compete. (ia) The Company and its affiliates are currently engaged in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, agrees that during the Employment Term and for a period of twelve (12) months after Executive’s cessation of employment with the Company, that Executive Period he will not, unless otherwise agreed devote substantially full-time to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall businessnot engage in any competitive businesses. Subject to such full-time requirement and the restrictions set forth below in this Section 8 and Section 3(c) above, the Executive shall be permitted to continue his existing business investments and activities and may pursue additional business investments; provided that the Executive recuses not serve as officer of any public company resulting from such business investments. The Executive fully and completely from all matters relating to such business.
agrees that he shall not (i) invest in, manage, consult or participate in any way in any other timeshare business (in either an active or passive manner), (ii) For purposes of this Section 11(b), any third party participate in or advise any business whose products compete includes any entity with which the Company wherein timeshare is a relevant business segment or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) act for or on behalf of any business that intends to enter or participate in the timeshare business, in each case unless the independent members of the Company's Board of Directors determine that such action is in the best interest of the Company. Notwithstanding the foregoing, it the Executive may purchase stock as a stockholder in any publicly traded company, including any company which is involved in the timeshare business; provided that the Executive does not own (together or separately or through his affiliates) more than 5% of any company (other than the Company) in the timeshare business. In addition, the Executive shall not be a violation invest (directly or indirectly) in any timeshare property in the hospitality business (including any condominium project) or any property where the business plan therefor includes an intention to convert the property to timeshare, unless the independent members of the Company's Board of Directors determine that such an investment is in the best interest of the Company.
(b) Notwithstanding anything to the contrary in this Section 11(b8 or elsewhere in this Agreement, the Executive and/or affiliates thereof is permitted, at his option, to pursue the development of a timeshare resort on that certain property located on Harbor Island, San Diego, California, owed by the Port of San Diego. In the event the Executive or affiliate thereof so acquires such an interest, the Company has the option, at its election (which the Company may exercise at any time), for to require the Executive or affiliate thereof to provide services sell such interest to the Company at a price not to exceed 50% of the cumulative actual, direct cost incurred by the Executive or affiliate thereof in pursuing the development or acquisition of such property. In addition, at the direction of the independent members of the Company's Board of Directors, at any time following the decision by the Company not to acquire such interest, the Executive agrees to sell his interest in such property, and to divest himself of any interest in any affiliate possessing any controlling or managing interest therein, within six months after receipt of notice from the Company to do so, unless the independent members of the Board determine that such investment by or interest held by the Executive is in the best interest of the Company.
(c) Further, notwithstanding anything to the contrary in this Section 8 or engage elsewhere in activities involving): this Agreement, and without limiting the rights of the Executive otherwise applicable under this Agreement, the Executive or affiliates thereof is permitted to continue to meet its duties (i) as managing general partner with respect to (A) a subsidiary225-unit condominium project in Long Beach, division California which is being marketed for whole share unit sales or affiliate long-term residential use rather than vacation use (and with respect to which affiliates of a Competing Business where the Executive (the "KOAR Interests") currently own the unsold units in such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regardingproject, the Competing Business; balance having been sold to third parties) and (B) any entity that is, or is several retail centers and a proposed office development project and (ii) as constituent general partner in, or manages or participates in managing, of a private or public fund (including a hedge fund) or other investment vehiclenumber of partnerships, which is engaged in venture capital investmentspartnerships include five Embassy Suites hotels which are owned by partnerships controlled by affiliates of the Executive (the "Prior Partnerships"). Such duties with respect to the KOAR Interests and the Prior Partnerships may include the sale, leveraged buy-outsrefinancing, investments in restructuring and packaging thereof, and the formation of public or private companiesentities for such purpose, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate including the formation of a Competing Business if public real estate investment trust ("REIT") for any or all of the properties owned by the KOAR Interests or Prior Partnerships; provided the Executive does not provide servicesserve as an officer or employee of such REIT. The Executive agrees, directly or indirectlyhowever, to such Competing Business continue to retain third party management companies to manage the properties owned by the KOAR Interests and the basis Prior Partnerships and to employ personnel not employed by the Company to carry out the day-to-day responsibilities of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(cmanaging and overseeing such properties.
(d) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) The provisions of this Section 11(b)(iii) 8 shall be subject to survive for two years following any termination of employment, regardless of whether the prior approval of the Boardtermination is for "Good Cause" or otherwise.
Appears in 3 contracts
Samples: Employment Agreement (Signature Resorts Inc), Employment Agreement (Signature Resorts Inc), Employment Agreement (Signature Resorts Inc)
Covenant Not to Compete. (i) The Company and its affiliates are currently engaged in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term During Employee’s employment by Employer and for a period expiring one (1) year after the termination of twelve (12) months after ExecutiveEmployee’s cessation of employment with the Companyfor any reason, Employee covenants and agrees that Executive Employee will not:
(a) Directly, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee)indirectly, anywhere in the world whereor otherwise, at the time of Executive’s termination of employmentown, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control ofserve as a consultant to, be employed by, associated withparticipate in, or be connected, in any manner connected withmanner, lend Executive’s name towith the ownership, management, operation or render services or advice to, any third party or control of any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided Business or that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity competes with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company Employer or any of its affiliates or that is engaged in any type of business which, at the any time during Employee’s employment with Employer, Employer or any of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.its affiliates planned to develop;
(iiib) Notwithstanding Hire, offer to hire, entice away or in any other manner persuade or attempt to persuade any officer, employee or agent of Employer or any of its affiliates to alter or discontinue a relationship with Employer or to do any act that is inconsistent with the foregoinginterests of Employer or any of its affiliates;
(c) Directly or indirectly solicit, it shall not be a violation divert, take away or attempt to solicit, divert or take away any customers of Employer or any of its affiliates; or
(d) Directly or indirectly solicit, divert, or in any other manner persuade or attempt to persuade any supplier of Employer or any of its affiliates to alter or discontinue its relationship with Employer or any of its affiliates. For the purposes of this Section 11(b(7), for Executive businesses that are deemed to provide services to (or engage in activities involving): (A) a subsidiarycompete with Employer include, division or affiliate of a Competing Business where such subsidiarywithout limitation, division or affiliate is not businesses engaged in a Competing Business developing and Executive marketing molecular diagnostics focused on infectious disease or any other markets the Company may later enter. Because Employer does not provide services to, or have any responsibilities regardingbusiness in the United States of America, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis geographic scope of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, prohibitions in each case, Executive this Section (7) shall remain bound by all other post-employment be the United States of America. Notwithstanding Employee’s obligations under this Agreement including Executive’s obligations under Sections 10, 11(aSection (7), 11(cEmployee will be entitled to own, as a passive investor, up to three percent (3%) of any publicly traded company without violating this provision. Employer and 11(d) hereinEmployee agree that: this provision does not impose an undue hardship on Employee and is not injurious to the public; provided, further, that Executivethis provision is necessary to protect the business of Employer and its affiliates; the nature of Employee’s provision responsibilities with Employer under this Agreement require Employee to have access to confidential information which is valuable and confidential to all of services to (or engagement in activities involving) any entity described in clauses (A) or (B) the Business; the scope of this Section 11(b)(iii(7) shall be subject to the prior approval is reasonable in terms of the Boardlength of time and geographic scope; and adequate consideration supports this Section (7), including consideration herein.
Appears in 3 contracts
Samples: Employment Agreement (Great Basin Scientific, Inc.), Employment Agreement (Great Basin Scientific, Inc.), Employment Agreement (Great Basin Scientific, Inc.)
Covenant Not to Compete. (iExcept as set forth in Section 6d(2) The Company and its affiliates are currently engaged in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve (12) months after Executive’s cessation of employment with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employmentthis Agreement, the Company develops, manufactures, distributes, markets or sells its products, except in Employee acknowledges and recognizes the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% highly competitive nature of the Company’s revenue on Business and the termination date goodwill, continued patronage, and specifically the names and addresses of the Company’s Clients (as hereinafter defined) constitute a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business substantial asset of the Company having been acquired through considerable time, money and its affiliates as an immaterial part effort. Accordingly, in consideration of its overall businessthe execution of this Agreement, provided that Executive recuses Executive fully and completely from all matters relating the Employee agrees to such business.the following:
(ii1) For purposes of this Section 11(bThat during the Restricted Period (as hereinafter defined) and within the Restricted Area (as hereinafter defined), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiatingEmployee will not, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, individually or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide servicesconjunction with others, directly or indirectly, to such Competing engage in any Business and the basis Activities (as hereinafter defined), whether as an officer, director, proprietor, employer, partner, independent contractor, investor (other than as a holder solely as an investment of less than one percent (1%) of the affiliation is solely due to common ownership by outstanding capital stock of a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(apublicly traded corporation), 11(cconsultant, advisor, agent or otherwise.
(2) That during the Restricted Period and 11(dwithin the Restricted Area, the Employee will not, directly or indirectly, compete with the Company by soliciting, inducing or influencing any of the Company’s clients which have a business relationship with the Company at the time during the Restricted Period to discontinue or reduce the extent of such relationship with the Company.
(3) herein; providedThat during the Restricted Period and within the Restricted Area, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses the Employee will not (A) directly or indirectly recruit, solicit or otherwise influence any employee or agent of the Company to discontinue such employment or agency relationship with the Company, or (B) in connection with any business which competes directly or indirectly the Business Activities of this Section 11(b)(iiithe Company (the “Competitive Business”), employ or seek to employ, or cause or permit to employ or seek to employ for any Competitive Business any person who is then (or was at any time within six (6) shall be subject months prior to the prior approval of date Employee or the BoardCompetitive Business employs or seeks to employ such person) employed by the Company.
Appears in 3 contracts
Samples: Employment Agreement (IFLI Acquisition Corp.), Employment Agreement (IFLI Acquisition Corp.), Employment Agreement (Power Smoothie Cafe Franchising Inc.)
Covenant Not to Compete. For purposes of Sections 9 and 10, "Affiliated Company" shall be limited to an Affiliated Company as defined in Section 1(i) with which Employee has had substantial involvement during the term of his employment with Company. Employee acknowledges that the services he has rendered and is to render are of a special and unusual character with a unique value to Company, the loss of which cannot adequately be compensated by damages in an action at law. In view of the unique value to Company of the services of Employee for which Company has contracted hereunder, the substantial goodwill of the Company that Employee has obtained and will continue to obtain and because of the confidential information to be obtained by or disclosed to Employee, and as a material inducement to Company to enter into this Agreement and to pay to the Employee the compensation and benefits stated in Section 5 and other promises contained herein, Employee covenants and agrees as follows:
(a) During Employee's term of employment with the Company and for eighteen (18) months thereafter, without regard to the reason for separation, Employee will not, without the prior written consent of Company, directly or indirectly, whether as a principal, agent, officer, director, employee, consultant or otherwise, one or in association with any other person, firm, corporation or other business organization, carry on, or be engaged, employed by, concerned or take part in, or render services to, or own, share in the earnings of or invest in the stock, bonds or other securities of any person, firm, partnership, corporation or other business organization (other than the ownership of less than 5% of the securities of any public company) engaged anywhere in the Geographic Area of Non-Competition set forth in Section 1(g), in a business which is in competition with (i) The any of the businesses carried on by Company; (ii) any of the businesses carried on by an Affiliated Company; or (iii) any business which Company or any Affiliated Company anticipates entering or anticipated entering as of the date of Employee's separation as the result of an active research and development program (each of the foregoing being herein sometimes referred to as a "Similar Business"). Employee shall not, directly or indirectly, solicit or divert business from the Company, or attempt to convert to other methods of using the same or similar products or services provided by Company. Employee acknowledges and agrees that conduct of any said activities by any person other than Company could accordingly constitute competition with Company and its affiliates are currently engaged in the business is expressly prohibited by this Section 13.
(b) As a separate and independent covenant, Employee agrees that during Employee's term of branded and generic pharmaceuticals, employment with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve eighteen (1218) months after Executive’s cessation thereafter, without regard to the reason for separation, he will not in any manner, directly or indirectly (except in the course of his employment with Company), for the purpose of conducting or engaging in any Similar Business, call upon, solicit, advise or otherwise do, or attempt to do, business with any clients, customers or accounts of Company or any Affiliated Company.
(c) As a separate and independent covenant, during the term of Employee's employment with the Company, that Executive will notEmployee shall promptly disclose to Company each business opportunity of a type which, unless otherwise agreed based upon its prospects and relationship to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of Company, Company might reasonably consider pursuing. If Employee's employment is terminated for any reason, Company shall have the Company and exclusive right to participate in or undertake any such opportunity on its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating own behalf without any involvement by or remuneration to such businessEmployee.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Board.
Appears in 2 contracts
Samples: Employment Agreement (NanoDynamics, Inc.), Employment Agreement (NanoDynamics, Inc.)
Covenant Not to Compete. For purposes of Sections 9 and 10, "Affiliated Company" shall be limited to an Affiliated Company as defined in Section 1(i) with which Employee has had substantial involvement during the term of his employment with Company. Employee acknowledges that the services he has rendered and is to render are of a special and unusual character with a unique value to Company, the loss of which cannot adequately be compensated by damages in an action at law. In view of the unique value to Company of the services of Employee for which Company has contracted hereunder, the substantial goodwill of the Company that Employee has obtained and will continue to obtain and because of the confidential information to be obtained by or disclosed to Employee, and as a material inducement to Company to enter into this Agreement and to pay to the Employee the compensation and benefits stated in Section 5 and other promises contained herein, Employee covenants and agrees as follows:
(a) During Employee's term of employment with the Company and for eighteen (18) months thereafter, without regard to the reason for separation, Employee will not, without the prior written consent of Company, directly or indirectly, whether as a principal, agent, officer, director, employee, consultant or otherwise; alone or in association with any other person, firm, corporation or other business organization, carry on, or be engaged, employed by, concerned or take part in, or render services to, or own, share in the earnings of or invest in the stock, bonds or other securities of any person, firm, partnership, corporation or other business organization (other than the ownership of less than 5% of the securities of any public company) engaged anywhere in the Geographic Area of Non-Competition set forth in Section 1(g), in a business which is in competition with (i) The any of the businesses carried on by Company; (ii) any of the businesses carried on by an Affiliated Company; or (iii) any business which Company or any Affiliated Company anticipates entering or anticipated entering as of the date of Employee's separation as the result of an active research and development program (each of the foregoing being herein sometimes referred to as a "Similar Business"). Employee shall not, directly or indirectly, solicit or divert business from the Company, or attempt to convert to other methods of using the same or similar products or services provided by Company. Employee acknowledges and agrees that conduct of any said activities by any person other than Company could accordingly constitute competition with Company and its affiliates are currently engaged in the business is expressly prohibited by this Section 13.
(b) As a separate and independent covenant, Employee agrees that during Employee's term of branded and generic pharmaceuticals, employment with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve eighteen (1218) months after Executive’s cessation thereafter, without regard to the reason for separation, he will not in any manner, directly or indirectly (except in the course of his employment with Company), for the purpose of conducting or engaging in any Similar Business, call upon, solicit, advise or otherwise do, or attempt to do, business with any clients, customers or accounts of Company or any Affiliated Company.
(c) As a separate and independent covenant, during the term of Employee's employment with the Company, that Executive will notEmployee shall promptly disclose to Company each business opportunity of a type which, unless otherwise agreed based upon its prospects and relationship to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of Company, Company might reasonably consider pursuing. If Employee's employment is terminated for any reason, Company shall have the Company and exclusive right to participate in or undertake any such opportunity on its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating own behalf without any involvement by or remuneration to such businessEmployee.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Board.
Appears in 2 contracts
Samples: Employment Agreement (NanoDynamics, Inc.), Employment Agreement (NanoDynamics, Inc.)
Covenant Not to Compete. The Employee recognizes that the Company has business goodwill and other legitimate business interests which must be protected in connection with and in addition to the Information (as defined hereinafter), and therefore, in exchange for access to the Information, the specialized training and instruction which the Company will provide, the Company's agreement to employ the Employee on the terms and conditions set forth herein, the agreement by LRA-CA to execute and consummate the Purchase Agreement, and the promotion and advertisement by the Company of Employee's skill, ability and value in the Company's business, subject to the provisions of the next full paragraph of this Section 12, the Employee agrees that (a) during the term of this Agreement, except as otherwise specifically permitted herein, Employee will not actively engage, directly or indirectly, in any other business other than that of Company and (b) in the event (i) The Company and its affiliates are currently engaged in Employee is terminated for Cause, or (ii) Employee leaves the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets employ of the Company and its affiliates as well as the goodwill and competitive business other than a Termination By Employee With Good Reason prior to expiration of the Company and its affiliatesterm of the Agreement, Executive agreesor (iii) upon the expiration of the term of this Agreement, during the Employment Term and then for a period of twelve four and one-half (124-1/2) months years after Executive’s cessation the date of employment this Agreement (if such period extends beyond the date the Employee's service hereunder is so terminated):
(a) Employee will not in any capacity or relationship enter into, engage in, or be connected with any business or business operation or activity (i) within Orange and Los Angeles Counties which competes with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair Business of the Committee), anywhere Company or (ii) which is in competition with the Business and is located within 50 miles of any office operated by LRA or any Affiliate of LRA which is also engaged in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in Business; and
(b) Employee will not call upon any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business customer whose products or services compete account is serviced in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which by the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is Affiliates at the time of the termination actively negotiatingof Employee's employment, and eventually concludes with the purpose of selling or attempting to sell to any such customer any services included within twelve that offered by the Company or its Affiliates engaged in the Business; and
(12c) months Employee will not intentionally divert, solicit or take away any customer, supplier or employee of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (Company or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not its Affiliates engaged in a Competing Business and Executive does not provide services tothe Business, or have the patronage of any responsibilities regarding, customer or supplier of the Competing Company or its Affiliates engaged in the Business; (B) any entity that is, or is a general partner inotherwise interfere with or disturb the relationship existing between the Company or its Affiliates and any of their respective customers, suppliers or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide servicesemployees, directly or indirectly. In addition, the foregoing restrictive covenants shall also apply to the Employee in the event of his Termination Without Cause or in the event of Termination By Employee With Good Reason by the Employee, but only for a period of one (1) year from such Competing Business and date of termination. In the basis event the Company ceases operation of the affiliation is solely due to common ownership by Business of the Company (other than in a private equity merger, consolidation, sale of assets or similar investment fund; providedtransaction, thator upon the filing of a bankruptcy or receivership proceeding against the Company, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(aor upon the appointment of a liquidator for the Company), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) the provisions of this Section 11(b)(iii) 12 shall not be applicable to the conduct of Employee subsequent thereto. It is mutually understood and agreed that if any of the provisions relating to the scope, time or territory in this Section 12 are more extensive than is enforceable under applicable laws or are broader than necessary to protect the good will and legitimate business interests of the Company, then the Parties agree that they will reduce the degree and extent of such provisions by whatever minimal amount is necessary to bring such provisions within the ambit of enforceability under applicable law. The Parties acknowledge that the remedies at law for breach of Employee's covenants contained in this Section 12 are inadequate, and they agree that the Company shall be subject entitled, at its election, to injunctive relief (without the necessity of posting bond against such breach or attempted breach), and to specific performance of such covenants in addition to any other remedies at law or equity that may be available to the prior approval of the BoardCompany.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Us Legal Support Inc), Stock Purchase Agreement (Us Legal Support Inc)
Covenant Not to Compete. The Employee recognizes that the Employer has business goodwill and other legitimate business interests which must be protected in connection with and in addition to the Information (as defined hereinafter), and therefore, in exchange for access to the Information, the specialized training and instruction which the Company will provide, the Company's agreement to employ the Employee on the terms and conditions set forth herein, the Company's agreement to execute and consummate the Purchase Agreement, and the promotion and advertisement by the Company of Employee's skill, ability and value in the Company's business, subject to the provisions of the next full paragraph of this Section 12, the Employee agrees that in the event (i) The Company and its affiliates are currently engaged in Employee is terminated for Cause, or (ii) Employee leaves the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets employ of the Company and its affiliates as well as the goodwill and competitive business other than a Termination By Employee With Good Reason prior to expiration of the Company and its affiliatesterm of the Agreement, Executive agreesor (iii) upon the expiration of the term of this Agreement, during the Employment Term and then for a period of twelve the latest date of (12i) months five (5) years after Executive’s cessation the date of this Agreement, or (ii) three (3) years after the date employment is so terminated:
(a) Employee will not in any capacity or relationship enter into, engage in, or be connected with the Company, that Executive will not, unless otherwise agreed to any business or business operation or activity within a fifty (50) mile radius of any office location then operated by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, Employer at the time of Executive’s termination of employmentsuch termination, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete which consists in whole or in part with of the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% Business of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.and
(iib) For purposes of this Section 11(b), Employee will not call upon any third party customer whose account is serviced in whole or any business whose products compete includes any entity with which in part by the Company Employer or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is Affiliates at the time of the termination actively negotiatingof Employee's employment, and eventually concludes with the purpose of selling or attempting to sell to any such customer any services included within twelve that offered by the Employer or its Affiliates; and
(12c) months Employee will not intentionally divert, solicit or take away any customer, supplier or employee of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (Employer or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services toits Affiliates, or have the patronage of any responsibilities regarding, customer or supplier of the Competing Business; (B) any entity that isEmployer or its Affiliates, or is a general partner inotherwise interfere with or disturb the relationship existing between the Employer or its Affiliates and any of their respective customers, suppliers or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide servicesemployees, directly or indirectly. In addition, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive foregoing restrictive covenants shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject also apply to the prior approval Employee in the event of his Termination Without Cause or in the Boardevent of Termination By Employee With Good Reason by the Employee, but only for so long as the Company is making payments to the Employee as required by Section 11 herein.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Us Legal Support Inc), Agreement of Purchase and Sale of Assets (Us Legal Support Inc)
Covenant Not to Compete. (i) The Company and its affiliates are currently engaged 5.1 In consideration of the compensation to be paid to Employee under this Agreement, Employee acknowledges that in the course of Employee's employment with certain Employer Entities, he has prior to the date of this Agreement, and will during the Term of employment, become familiar with Employer's and the Employer Entities' trade secrets, business plans and business strategies and with other confidential business information concerning Employer and the Employer Entities and that Employee's services have been and shall be of branded special, unique and generic pharmaceuticalsextraordinary value to Employer and the Employer Entities. Employee also acknowledges that in the course of his employment he will have access to Employer's and the Employer Entities' relationships and goodwill with their customers, with a focus on product developmentdistributors, clinical developmentsuppliers and employees. In light of Employee's value to, manufacturingand knowledge of, distribution Employer, the Employer Entities, and sales & marketing. To protect the Confidential Information Business (as defined below) and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliatesEmployee's compensation pursuant to this Agreement, Executive agreesEmployee agrees that, during the Employment Term and for a period of twelve one (121) months after Executive’s cessation of employment with year thereafter (the Company"Non-Compete Period"), that Executive he will not, unless otherwise agreed to by in association with or as an officer, principal, manager, member, advisor, agent, partner, director, material stockholder, employee or consultant of any corporation (or sub-unit, in the Chief Executive Officer case of Endo a diversified business) or other enterprise, entity or association, work on the acquisition or development of, or engage in any line of business, property or project which is, directly or indirectly, competitive with any business that Employer or any Employer Entity engages in during the Term of employment, including but not limited to, the mining, processing, transportation, distribution, trading and sale of synfuel, coal and coal byproducts (following approval by the Chair of the Committee"Business"), . Such restriction shall cover Employee's activities anywhere in the world wherestates in which Employer conducts operations during the Term of this Agreement.
5.2 During the applicable Non-Compete Period, Employee will not solicit or induce any person who is or was employed by any of the Employer Entities at any time during such term or period (i) to interfere with the activities or businesses of Employer or any Employer Entity or (ii) to discontinue his or her employment with any of the Employer Entities.
5.3 During the applicable Non-Compete Period, Employee will not, directly or indirectly, influence or attempt to influence any customers, distributors or suppliers of any of the Employer Entities to divert their business to any competitor of Employer or any Employer Entity or in any way interfere with the relationship between any such customer, distributor or supplier and Employer and/or any Employer Entity (including, without limitation, making any negative statements or communications about Employer and the Employer Entities). During the applicable Non-Compete Period, Employee will not, directly or indirectly, acquire or attempt to acquire any business in the states in which Employer conducts operations during the Term of this Agreement; prior to the termination of the Term of employment, has made an acquisition proposal relating to the possible acquisition of such business by Employer or any Employer Entity, (such business, an "Acquisition Target"); or take any action to induce or attempt to induce any Acquisition Target to consummate any acquisition, investment or other similar transaction with any person other than Employer or any Employer Entity.
5.4 Employee understands that the provisions of Sections 5.1, 5.2 and 5.3 hereof may limit his ability to earn a livelihood in a business in which he is involved, but as a member of the management group of Employer and the Employer Entities he nevertheless agrees and hereby acknowledges that: (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests of Employer and any of the Employer Entities; (ii) such provisions contain reasonable limitations as to time, scope of activity, and geographical area to be restrained; and (iii) the consideration provided hereunder, including without limitation, any amounts or benefits provided under Article 3 hereof, is sufficient to compensate Employee for the restrictions contained in Sections 5.1, 5.2 and 5.3 hereof. Subject to the final sentence of Section 5.1, in consideration of the foregoing and in light of Employee's education, skills and abilities, Employee agrees that he will not assert that, and it should not be considered that, any provisions of Sections 5.1, 5.2 or 5.3 otherwise are void, voidable or unenforceable or should be voided or held unenforceable.
5.5 If, at the time of Executive’s termination enforcement of employmentArticles 4 or 5 of this Agreement, a court shall hold that the duration, scope, or area restrictions stated herein are unreasonable under circumstances then existing, the Company developsparties hereto agree that the maximum period, manufacturesscope or geographical area reasonable under such circumstances shall be substituted for the stated period, distributesscope or area and that the court shall be allowed and directed to revise the restrictions contained herein to cover the maximum period, markets or sells its products, except scope and area permitted by law. Employee acknowledges that he is a member of Employer's and the Employer Entities' management group with access to Employer's and Employer Entities' confidential business information and his services are unique to Employer and the Employer Entities. Employee therefore agrees that the remedy at law for any breach by him of any of the covenants and agreements set forth in Articles 4 and 5 will be inadequate and that in the course event of Executive’s employment hereunderany such breach, directly or indirectly manageEmployer and the Employer Entities may, operatein addition to the other remedies which may be available to them at law, controlapply to any court of competent jurisdiction to obtain specific performance and/or injunctive relief prohibiting Employee (together with all those persons associated with him) from the breach of such covenants and agreements and to enforce, or participate prevent any violations of, the provisions of this Agreement. In addition, in the managementevent of a breach or violation by Employee of this Article 5, operation, the applicable Non-Compete Period set forth in this Article shall be tolled until such breach or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% violation has been cured.
5.6 Each of the Company’s revenue covenants of this Article 5 are given by Employee as part of the consideration for this Agreement and as an inducement to Employer to enter into this Agreement and accept the obligations hereunder.
5.7 Provisions of Article 5 shall not be binding on Employee if Employer fails to perform any material obligation under this Agreement, including, without limitation, the termination date (a “Competing Business”)failure of Employer to make timely payments of monies due to Employee under Article 3 of this Agreement; provided, however, that Executive may (a) Employee has notified Employer in any event (x) own up writing within 30 days of the date of the failure of Employer to a 5% passive ownership interest in any public or private entity perform such material obligation and (yb) serve on such failure remains uncorrected and/or uncontested by Employer for 15 days following the board date of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such businessnotice.
(ii) For purposes 5.8 Notwithstanding anything to the contrary contained in this Article 5, the non-competition and non-solicitation provisions of this Article 5 shall not apply in the event that this Agreement (a) shall be terminated by Employee for Good Reason pursuant to Section 11(b3.4 or (b) Employee or Employer, as the case may be, elects not to renew the Term of this Agreement pursuant to Section 3.2(iv) or Section 3.4(ii), any third party respectively, or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding Employee resigns from the foregoingEmployer pursuant to Section 3.2(iii) and Employer elects not to exercise its option, it shall not be a violation in its sole discretion, to subject Employee to the non-competition and non-solicitation provisions of this Article 5 in accordance with Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d3.3(iii) herein; providedprovided that Employee does not receive, furtheror does not elect to receive, that Executive’s provision any of services to (the benefits or engagement in activities involving) any entity described in clauses (A) or (B) payments under Sections 3.5, 3.8 and/or 3.10 of this Section 11(b)(iii) Agreement (if applicable).
5.9 If Employee breaches any obligation under Article 4 and/or Article 5 hereof, Employer shall be subject provide notice of such breach to Employee. The Employee agrees that, within 30 days after Employer provides such notice, Employee shall pay to Employer, in cash, an amount equal to any and all payments paid to or on behalf of Employee under Article 3 of this Agreement including, without limitation, to the prior approval extent Employee has sold any equity which vested pursuant to Section 3.10 hereof, any cash proceeds received from such sale. Employee agrees that failure to make such timely payment to Employer constitutes an independent and material breach of this Agreement by Employee, for which Employer may seek recovery of the Boardunpaid amount as liquidated damages, in addition to all other rights and remedies Employer may have resulting from Employee's breach of the obligations set forth in Article 4 and/or Article 5 hereof. Employee agrees that timely payment to Employer as set forth herein is reasonable and necessary because the damages that will result from a breach of Article 4 and/or Article 5 hereof cannot readily be ascertained. Further, Employee agrees that timely payment to Employer as set forth herein is not a penalty, and it does not preclude Employer from seeking all other remedies that may be available to Employer, including, without limitation, those set forth in this Article 5.
Appears in 2 contracts
Samples: Employment Agreement (Alpha Natural Resources, Inc.), Employment Agreement (Alpha Natural Resources, Inc.)
Covenant Not to Compete. For purposes of Sections 9 and 10, "Affiliated Company" shall be limited to an Affiliated Company as defined in Section 1(i) with which Employee has had substantial involvement during the term of his employment with Company. Employee acknowledges that the services he has rendered and is to render are of a special and unusual character with a unique value to Company, the loss of which cannot adequately be compensated by damages in an action at law. In view of the unique value to Company of the services of Employee for which Company has contracted hereunder, the substantial goodwill of the Company that Employee has obtained and will continue to obtain and because of the confidential information to be obtained by or disclosed to Employee, and as a material inducement to Company to enter into this Agreement and to pay to the Employee the compensation and benefits stated in Section 5 and other promises contained herein, Employee covenants and agrees as follows:
(a) During Employee's term of employment with the Company and for eighteen (18) months thereafter, without regard to the reason for separation, Employee will not, without the prior written consent of Company, directly or indirectly, whether as a principal, agent, officer, director, employee, consultant or otherwise, alone or in association with any other person, firm, corporation or other business organization, carry on, or be engaged, employed by, concerned or take part in, or render services to, or own, share in the earnings of or invest in the stock, bonds or other securities of any person, firm, partnership, corporation or other business organization (other than the ownership of less than 5% of the securities of any public company) engaged anywhere in the Geographic Area of Non-Competition set forth in Section 1(g), in a business which is in competition with (i) The any of the businesses carried on by Company; (ii) any of the businesses carried on by an Affiliated Company; or (iii) any business which Company or any Affiliated Company anticipates entering or anticipated entering as of the date of Employee's separation as the result of an active research and development program (each of the foregoing being herein sometimes referred to as a "Similar Business"). Employee shall not, directly or indirectly, solicit or divert business from the Company, or attempt to convert to other methods of using the same or similar products or services provided by Company. Employee acknowledges and agrees that conduct of any said activities by any person other than Company could accordingly constitute competition with Company and its affiliates are currently engaged in the business is expressly prohibited by this Section 13.
(b) As a separate and independent covenant, Employee agrees that during Employee's term of branded and generic pharmaceuticals, employment with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve eighteen (1218) months after Executive’s cessation thereafter, without regard to the reason for separation, he will not in any manner, directly or indirectly (except in the course of his employment with Company), for the purpose of conducting or engaging in any Similar Business, call upon, solicit, advise or otherwise do, or attempt to do, business with any clients, customers or accounts of Company or any Affiliated Company.
(c) As a separate and independent covenant, during the term of Employee's employment with the Company, that Executive will notEmployee shall promptly disclose to Company each business opportunity of a type which, unless otherwise agreed based upon its prospects and relationship to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of Company, Company might reasonably consider pursuing. If Employee's employment is terminated for any reason, Company shall have the Company and exclusive right to participate in or undertake any such opportunity on its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating own behalf without any involvement by or remuneration to such businessEmployee.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Board.
Appears in 2 contracts
Samples: Employment Agreement (NanoDynamics, Inc.), Employment Agreement (NanoDynamics, Inc.)
Covenant Not to Compete. (iDuring the Restricted Period, and except as permitted by Section 12(h) The Company and its affiliates are currently engaged in the business of branded and generic pharmaceuticalsbelow, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve (12) months after Executive’s cessation of employment with the Company, that Executive will Employee shall not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee)and he shall cause his controlled affiliates not to, anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide servicesmanner, directly or indirectly, as an employee, officer, director, member, manager, shareholder, consultant, contractor, partner, joint venturer, agent, equity owner, or in any other capacity similar to such the capacity in which he provided services to the Company Parties, (i) engage in, or carry on or assist, any Competing Business and in the basis Restricted Area; (ii) provide any services substantially similar to the services Employee provided to the Company Parties through any Competitive Business in the Restricted Area; (iii) solicit, or attempt to solicit, directly or by assisting others, any business from any of the affiliation Company’s customers with whom Employee had material contact during the Employment Term for purposes of providing products or services on behalf of a Competitive Business or otherwise that are competitive with those provided by the Company Parties in the Business; or (iv) solicit, encourage, facilitate, or induce any customer or Person which was a customer within the one-year period preceding the solicitation, encouragement, facilitation, or inducement, to breach any agreement or contract with, or discontinue or curtail his, her, or its business relationships with, the Company Parties. Notwithstanding the foregoing, Employee shall be permitted to request, and with prior written permission from the Company which shall not be unreasonably withheld, shall be permitted, following the termination of his employment with the Company and notwithstanding this Section 12(d), to provide professional advice to, or become employed or otherwise engaged by, a diversified entity that engages in competition with the Company so long as Employee’s duties for such entity do not directly or indirectly involve any aspect of such entity’s business that competes with, or is solely due anticipated to common ownership compete with, the Company’s business as conducted by a private equity or similar investment fundthe Company at any time during the course of Employee’s employment with the Company; provided, that, in each case, Executive shall remain bound by Employee fully complies with all other post-employment obligations otherwise applicable covenants under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) Agreement; and 11(d) herein; provided, further, that Executive’s provision Employee does not undertake the performance of services to (such employment or engagement in activities involving) with the intent to circumvent, and does not otherwise permit the circumvention of, any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval otherwise applicable terms and conditions of the BoardAgreement.
Appears in 2 contracts
Samples: Employment Agreement (Granite Ridge Resources, Inc.), Employment Agreement (Granite Ridge Resources, Inc.)
Covenant Not to Compete. (i) The Executive acknowledges and agrees with the Company and its affiliates are currently engaged in that during the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets course of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve (12) months after Executive’s cessation of 's employment with the Company, the Executive has had and will continue to have the opportunity to develop relationships with existing employees, customers and other business associates of the Company and the Subsidiaries, which relationships constitute goodwill of the Company, and the Executive acknowledges and agrees that the Company would be irreparably damaged if the Executive will notwere to take actions that would damage or misappropriate such goodwill. The Executive acknowledges that the Company and its Subsidiaries currently engages throughout the United States (the "Territory"), unless otherwise agreed the business of the development, sale, marketing and administration of life insurance, annuities and extended care insurance products (the "Subject Business"). Accordingly, during the term of the Executive's employment with the Company and (i) prior to a Change of Control, and in the case of a voluntary termination by the Chief Executive Officer of Endo (following approval under paragraph 4(d) or a termination by the Chair Company for Cause under paragraph 4(b), the balance of the Committee), anywhere in term of this Agreement under paragraph 2 as if no termination of employment occurred but notice of termination of the world where, automatic extension was given either by the Executive at the time of Executive’s termination his notice of employment, voluntary resignation or given by the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of its notice of termination actively negotiatingfor Cause, and eventually concludes within twelve or (12ii) months of after a Change in Control, one year after the Employment Term, a commercial agreement.
Termination Date (iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b"Noncompete Period"), for the Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide servicesshall not, directly or indirectly, enter into, engage in, assist, give or lend funds to such Competing Business and or otherwise finance, be employed by or consult with, or have a financial or other interest in, any business which engages in the basis Subject Business, whether for or by himself or as an independent contractor, agent, stockholder, partner or joint venturer for any other person, provided that the aggregate ownership by the Executive of no more than two percent of the affiliation is solely due to common ownership by outstanding equity securities of any person, which securities are traded on a private equity national or similar investment fund; providedforeign securities exchange, thatquoted on the Nasdaq Stock Market or other automated quotation system or, in each casethe case of the Company, of no more than ten percent of the Company's outstanding equity securities shall not be deemed to be giving or lending funds to, otherwise financing or having a financial interest in a competitor. In the event that any person in which the executive has any financial or other interest directly or indirectly enters into the Subject Business in the Territory during the Noncompete Period, the Executive shall remain bound by divest all of his interest (other post-employment obligations than any amount permitted under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(cparagraph) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described such person within 30 days after such person enters into the Subject Business in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the BoardTerritory.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Life Usa Holding Inc /Mn/), Employment Agreement (Life Usa Holding Inc /Mn/)
Covenant Not to Compete. (a) During the Employment Period and for the two (2) year period following the date of termination of the Employment Period (the "Noncompetition Period"), --------------------- the Employee shall not (i) in any geographic area where Pacer conducts business during the Noncompetition Period, engage or participate in directly or indirectly (whether as an officer, director, employee, partner, consultant, holder of an equity or debt investment, lender or in any other manner or capacity, including, without limitation, by the rendering of services or advice to any person), or lend your name (or any part or variant thereof) to, any Competing Business (as defined in below); (ii) deal, directly or indirectly, in a competitive manner with any customers doing business with Pacer during the Noncompetition Period; (iii) solicit or employ any officer, director or agent of Pacer to become an officer, director, or agent of the Employee, the Employee's affiliates or anyone else; or (iv) engage in or participate in, directly or indirectly, any business conducted under any name that shall be the same as or similar to the name of Pacer or any trade name used by it. Ownership by the Employee for investment of less than 2% of the outstanding shares of capital stock or class of debt securities of any corporation with one or more classes of its capital stock listed on a national securities exchange or actively traded in the over-the-counter market shall not constitute a breach of the foregoing covenant. The Employee is entering into the foregoing covenant to assure the Company of the transfer of the goodwill of the Sellers, and its affiliates are currently engaged in order to induce the Company to consummate the purchase contemplated by the Purchase Agreement.
(b) The Employee will not at any time after the date hereof divulge, furnish to or make accessible to anyone any knowledge or information with respect to confidential or secret processes, inventions, discoveries, improvements, formulae, plans, material, devices or ideas or know-how, whether patentable or not, with respect to any confidential or secret aspects of the business of branded Pacer (including, without limitation, customer lists, supplier lists and generic pharmaceuticals, pricing arrangements with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve (12) months after Executive’s cessation of employment with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets customers or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”suppliers); provided, however, that Executive may in -------- ------- nothing herein shall prohibit the Employee from complying with any event (x) own up to a 5% passive ownership interest in any public order or private entity and (y) serve on the board decree of any Competing Business that competes with court of competent jurisdiction or governmental entity or other requirements of law, but the business Employee will give Pacer reasonably timely notice of the Company receipt of any such order or decree or legal requirement, and its affiliates as an immaterial part the foregoing provision shall not apply to (i) any information which is or becomes generally available to the public through no breach of its overall businessthis Agreement or (ii) is or becomes available to the Employee on a non-confidential basis from a source who is not, provided that Executive recuses Executive fully and completely to the Employee's knowledge, prohibited from all matters relating to such businessdisclosing the same by any legal or contractual obligation.
(iic) For purposes of this Section 11(b)As used herein, the term "Competing Business" shall mean any third party ------------------ transportation or any other business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company that Pacer or any of its affiliates is has engaged in at any time during the time of termination actively negotiatingEmployment Period in any city or county in any state, and eventually concludes within twelve (12) months province or other political subdivision of the Employment TermUnited States, a commercial agreement.
Canada, Mexico, Japan or China including, without limitation, any business engaged in (i) intermodal marketing, (ii) flatbed specialized hauling services, (iii) Notwithstanding the foregoingless- then-truckload common carrier services, it shall not be a violation of this Section 11(b)(iv) drayage, for Executive to provide consolidation, deconsolidation or distribution services, (v) contract warehousing, freight handling or logistic services, (vi) comprehensive transportation management programs or services to third party customers, (or engage in activities involving): vii) freight consolidation and deconsolidation, (Aviii) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; traffic management and (Cix) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Boardrailroad signal project management.
Appears in 2 contracts
Samples: Employment Agreement (Pacer International Inc/Tn), Employment Agreement (Pacer International Inc/Tn)
Covenant Not to Compete. (i) The Employee acknowledges that during her employment with the Company she, at the expense of the Company, has been and its affiliates are currently engaged will continue to be specially trained in the business of branded the Company, has established and generic pharmaceuticalswill continue to establish favorable relations with the customers, with a focus on product developmentclients and accounts of the Company or any subsidiary, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets parent or affiliate of the Company and its affiliates as well as has had and will continue to have access to the goodwill Intellectual Property, trade secrets and competitive business Confidential Information of the Company or any subsidiary, parent or affiliate of the Company. Therefore, in consideration of such training and its affiliatesrelations, Executive agreesand in consideration of her continued employment with the Company and the increase in compensation and additional benefits provided in this Agreement, the issuance of restricted units pursuant to a separate Restricted Unit Award Agreement dated the date hereof (the “Restricted Unit Agreement”) and to further protect the Intellectual Property, trade secrets and Confidential Information of the Company or any subsidiary, parent or affiliate of the Company, Employee agrees that during the Employment Term term of her employment by the Company and for a period of twelve one year from and after the voluntary or involuntary termination of such employment for any or no reason (12) months after Executive’s cessation including, without limitation, a termination of employment with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by Company due to the Chair fulfillment of the Committeethen-current term of this Agreement pursuant to Section 12(a), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as shall have the option to extend such period of time by an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating additional one year period by electing to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is continue to pay Employee’s annual salary at the time of termination actively negotiatingtermination, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide servicesshe will not, directly or indirectly, to such Competing Business and without the basis express written consent of the affiliation is solely due Company, except when and as requested to common ownership by a private equity do in and about the performing of her duties under this Agreement:
(a) own, manage, operate, control or similar investment fund; providedparticipate in the ownership, thatmanagement, operation or control of, or have any interest, financial or otherwise, in each caseor act as an officer, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10director, 11(apartner, manager, member, principal, employee, agent, representative, consultant or independent contractor of, or in any way assist, any individual or entity in the conduct of any business that trades, markets, sells or distributes propane gas (at retail, wholesale or otherwise), 11(c) and 11(d) herein; providedgathers, furtherprocesses, that Executive’s provision stores, transports, trades, markets or distributes natural gas or liquefied by-products of services to natural gas or petroleum (at retail, wholesale or engagement in activities involving) any entity described in clauses (Aotherwise) or sells, services and installs parts, appliances or supplies related thereto;
(Bb) of this Section 11(b)(iii) shall be subject divert or attempt to divert clients or customers (whether or not such persons have done business with the prior approval Company or any subsidiary, parent or affiliate of the BoardCompany once or more than once) or accounts of the Company or any subsidiary, parent or affiliate of the Company; or
(c) entice or induce or in any manner influence any person who is or becomes in the employ or service of the Company or any subsidiary, parent or affiliate of the Company to leave such employ or service for the purpose of engaging in a business that may be in competition with any business now or at any time during the period hereof engaged in by the Company or any subsidiary, parent or affiliate of the Company. Notwithstanding the foregoing provisions, Employee may (i) take action for, on behalf of, and at the direction of the Company pursuant to a written agreement with the Company or otherwise, and (ii) own up to 5% of the outstanding equity securities in any corporation or entity (including units in a master limited partnership) that is listed upon a national stock exchange or actively traded in the over-the-counter market.
Appears in 2 contracts
Samples: Employment Agreement (Inergy L P), Employment Agreement (Inergy L P)
Covenant Not to Compete. (i) The Company and its affiliates are currently engaged in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, acknowledges and understands that the nature, kind and character of the business conducted by the Employer is highly competitive. Incident to the Executive engagement hereunder and for the considerations contained herein, the Executive agrees that:
(1) during the Employment Term term of this Agreement and for a period of twelve (12) months after following the later of the termination of this Agreement or the resignation or Involuntary Termination of Executive’s cessation of employment with , the Company, that Executive will not, unless otherwise agreed in the Georgia counties of Xxxxx, Xxxx and Muscogee or the Alabama counties of Xxx and Xxxxxxx:
(a) enter into any employment relationship with any bank, thrift institution, other entity providing financial services or an affiliate of any of the foregoing in a capacity identical with or substantially similar to the capacity in which he was employed by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, Employer at the time of Executive’s his termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.;
(iib) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, on his own behalf or in the service or on behalf of others, solicit, divert, appropriate or attempt to such Competing Business and the basis solicit, divert or appropriate, any business from any of the affiliation Employer's customers with whom the Executive has had material contact during the past two (2) years of the Executive's employment, for purposes of providing products or services that are competitive with those provided by the Employer; or
(c) on his own behalf or in the service or on behalf of others, solicit, recruit or hire away, or attempt to solicit, recruit or hire away, directly or by assisting others, any employee of the Employer, whether or not such employee is solely due a full-time employee, part-time or temporary employee of the Employer, and whether or not such employment is pursuant to common ownership a written agreement or is for a determined period or at will.
(2) by virtue of the duties and special knowledge of the affairs and operations of the Employer that the Executive has and will obtain as a private equity result of his employment relationship with the Employer, a breach or similar investment fund; provided, thatthreatened breach by him of the provisions of this covenant not to compete shall cause irreparable injury to the Employer and shall entitle the Employer, in each caseaddition to any other remedy, to injunctive relief against such breach or threatened breach. The Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) acknowledges that the foregoing covenants are reasonable and 11(d) herein; provided, further, that Executive’s provision of services necessary to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to protect the prior approval interests of the BoardEmployer.
Appears in 2 contracts
Samples: Separation Agreement (Flag Financial Corp), Separation Agreement (Flag Financial Corp)
Covenant Not to Compete. (ia) The I acknowledge and agree that the Company and its affiliates are currently is engaged in the a highly competitive business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets that by virtue of the Company position in which I am employed, my engaging in any business, which is directly competitive with the Company, will cause it great and its affiliates irreparable harm. Consequently, I covenant and agree that so long as well as the goodwill and competitive business of I am employed by the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve (12) months one year after Executive’s cessation the termination of my employment with the Company, that Executive will whether such termination is voluntary or involuntary, I shall not, unless otherwise agreed to by without the Chief Executive Officer of Endo (following approval by the Chair express written consent of the CommitteeBoard of the Company, compete with the Company or with respect to any products or services of the Company (including planned products and/or technology being developed for products or services) for which I had any research, development, manufacturing, marketing, sales, service, reimbursement or clinical responsibility as of the date of my termination (collectively referred to as the “Restricted Products”), anywhere . My agreement not to compete shall apply to all geographic areas in which the world where, Company markets or plans to market the Restricted Products at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such businessmy termination.
(iib) For purposes of this Section 11(b)paragraph only, I will be deemed to compete with the Company, if alone or together with any third party other person or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide servicesentity, directly or indirectly, I engage in research, development, manufacturing, marketing, sales, service or clinical education activity with respect to any product (or technology) that resembles, is comparable to, or functions in essentially the same manner as (or is being developed to do so), any of the Restricted Products (such Competing Business activities constituting “Competitive Activity”).
(c) I shall not financially support in any manner, or be a proprietor, a director, an officer, an employee, an agent, a partner, a shareholder (other than ownership of less than two (2%) percent of the outstanding voting securities of any entity whose voting securities are traded on a securities exchange; provided that any of the other restrictions contained in this sentence are not applicable) or a lender to, or otherwise promote, any business, enterprise, person, firm, corporation, partnership, association or other entity that engages in a Competitive Activity with the Company with respect to Restricted Products.
(d) In connection with my agreement not to compete, I also agree that if I accept employment with an organization that engages in Competitive Activity within one year or less after termination of my employment with the Company, both I and the basis organization will provide to the Company prior to the commencement of my employment with the affiliation is solely due organization assurances satisfactory to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, the Company that Executive’s I will not render any services to the organization that would cause me to violate any provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Boardagreement.
Appears in 2 contracts
Samples: Employment Agreement (Oncolyze, Inc.), Contract of Employment (Oncolyze, Inc.)
Covenant Not to Compete. The Employee recognizes that the Company has business good will and other legitimate business interests which must be protected in connection with and in addition to the Information (as defined hereinafter), and therefore, in exchange for access to the Information, the specialized training and instruction which the Company will provide, the Company's agreement to employ the Employee on the terms and conditions set forth herein, the Company's agreement to execute and consummate the Purchase Agreement, and the promotion and advertisement by the Company of Employee's skill, ability and value in the Company's business, the Employee agrees that in the event (i) The Company and its affiliates are currently engaged in Employee is terminated for Cause, or (ii) Employee leaves the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets employ of the Company other than a Termination With Good Reason prior to expiration of the term of the Agreement, or (iii) upon the expiration of the term of this Agreement, then during Employee's employment under this Agreement, and its affiliates for a period of three (3) years after any termination of employment:
(a) Employee will not in any capacity or relationship enter into, engage in, or be connected with any business or business operation or activity within a fifty (50) mile radius of any office location then operated by the Company at the time of such termination, which consists in whole or in part of the Business of the Company (as well defined hereinafter). For purposes of this Agreement, the "Business of the Company" shall be defined as the goodwill and competitive current business of the Company and its affiliatesAffiliates, Executive agreesincluding, during the Employment Term and for a period of twelve (12) months after Executive’s cessation of employment with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employmentbut not limited to, the Company develops, manufactures, distributes, markets or sells its products, except in the course providing of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in court reporting and litigation support services; and
(b) Employee will not call upon any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business customer whose products or services compete account is serviced in whole or in part with the products or services (both on the market and in development) material to by the Company or any business unit on its Affiliates at the time of the termination date of Employee's employment, with the purpose of selling or attempting to sell to any such customer any services included within that constitutes more than 5% offered by the Company or its Affiliates; and
(c) Employee will not intentionally divert, solicit or take away any customer, supplier or employee of the Company’s revenue Company or its Affiliates, or the patronage of any customer or supplier of the Company or its Affiliates, or otherwise interfere with or disturb the relationship existing between the Company or its Affiliates and any of its respective customers, suppliers or employees, or court reporters performing services for the company, directly or indirectly. In addition, the foregoing restrictive covenants shall also apply to the Employee in the event of his Termination Without Cause or in the event of Termination with Good Reason by the Employee, but only for so long as the Company is making payments to the Employee as required by Section 11 herein. Notwithstanding anything to the contrary contained herein, the Employee shall be permitted to own up to five percent (5%) of the issued and outstanding shares of stock of any publicly traded company on a passive basis without violating the termination date (a “Competing Business”)provisions contained in this Section 12. Notwithstanding anything to the contrary contained herein, the provisions of this Section 12 shall be null and void if the Company fails to timely pay the Employee any amounts due and owing to the Employee under this Agreement; provided, however, that Executive may in any the Employee shall furnish the Company prior written notice of such breach by the Company and permit the Company fifteen (15) days to cure such violation and further provide that such breach by the Company is not as a result of the Employee's breach of this Agreement. Any past due payments due and owing by the Company to the Employee shall bear interest at the rate of twelve percent (12%) per annum. In the event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on Company ceases operation of the board of any Competing Business that competes with the business of the Company other than in a merger, consolidation, or similar transaction, or upon the filing of a bankruptcy or receivership proceeding against Company, or upon the appointment of a liquidator for Company, the provisions of this Section 12 shall not be applicable to the conduct of Employee subsequent thereto. It is mutually understood and its affiliates as an immaterial part agreed that if any of its overall business, provided that Executive recuses Executive fully and completely from all matters the provisions relating to the scope, time or territory in this Section 12 are more extensive than is enforceable under applicable laws or are broader than necessary to protect the good will and legitimate business interests of Company, then the Parties agree that they will reduce the degree and extent of such business.
provisions by whatever minimal amount is necessary to bring such provisions within the ambit of enforceability under applicable law. The Parties acknowledge that the remedies at law for breach of Employee's covenants contained in this Section 12 are inadequate, and they agree that the Company shall be entitled, at its election, to injunctive relief (without the necessity of posting bond against such breach or attempted breach as provided in Section 16 of this Agreement), and to specific performance of said covenants in addition to any other remedies at law or equity that may be available to the Company. Notwithstanding any provision in this Agreement, the obligations of the Employee pursuant to this Section 12 shall terminate immediately upon the occurrence of: (i) an Event of Default (as that term is defined in the Buyer Note) under the Buyer Note which is not as a result of exercising its offset rights as granted by the Purchase Agreement and which is not cured within the time periods provided pursuant to the terms of the Buyer Note; or (ii) For purposes a default of any of the obligations of the Company under this Section 11(b)Agreement, any third party or any business whose products compete includes any entity with but only fifteen (15) days after the delivery by the Employee to the Company of a notice detailing such default, during which the Company or its affiliates has had shall have an opportunity to cure. Notwithstanding the preceding sentence, in the event that an Event of Default occurs under the Buyer Note as a product(sresult of the Company's non-payment under the Buyer Note, which remains uncured for one hundred eighty (180) licensing agreement during the Employment Term days, and any entity with which such payment, if made, would cause the Company or any to violate the terms of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months either of the Employment Term, a commercial agreement.
Subordination Agreements (iii) Notwithstanding as such term is defined in the foregoing, it shall not be a violation of this Section 11(bBuyer Note), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (Bthen only Section 12(a) of this Section 11(b)(iii) 12 shall be subject to terminate immediately, and the prior approval remainder of the Boardthis Section 12 shall remain in full force and effect.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Us Legal Support Inc), Stock Purchase Agreement (Us Legal Support Inc)
Covenant Not to Compete. (ia) The Company Employee agrees that during the terms of this Agreement he shall devote his full business time, energy, skill, labor, and attention to the affairs of the Employer and its affiliates or subsidiaries, shall promptly and faithfully do and perform all services pertaining thereto that are currently engaged in the business or may hereafter be required of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve (12) months after Executive’s cessation of employment with the Company, that Executive will not, unless otherwise agreed to him by the Chief Executive Officer of Endo (following approval by the Chair of the Committee)Employer, anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or and shall not engage in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide servicesactivities, directly or indirectly, involving a conflict of interest with the business or relations of the Employer or its affiliates or subsidiaries. OTCQB: TNTY wxx.xxxxxxxxxxxxxxxxx.xxx
(b) Employee recognizes that the business of the Employer and its affiliates or subsidiaries are national and international in scope and that the services to such Competing Business be performed hereunder and the basis methods employed by the Employer or its affiliates or subsidiaries are such as will place Employee in close business and personal relationship with competing businesses of the affiliation Employer or its affiliates or subsidiaries. Therefore, from and after the date of this Agreement and for one year after expiration of this Agreement or termination of this Agreement, Employee shall not, directly or indirectly, for his own benefit or for, with, or through any other person, company, or competitive company to Employer, within The United States own, manage consult, or be connected with, as owner, partner, joint venture, director, employee, officer, consultant, or in any other capacity whatsoever, engage in any business which is solely due the same as, similar to common ownership by or competitive with any business activities of the Employer. “Business” is defined direct employment or consulting activity. This above provision (b) is effective except that the employee may participate in any capacity as a private equity participant in a business and/or industry in which the employee has prior career experience, directly, as an employee, or similar investment fund; providedindirectly, thatas a consultant, paid or not paid. Participation with a potentially competitive entity must follow section 5 of this document. The employee must attach a resume to document prior career experience to which he/she chooses to reserve access to as a direct or indirect participant post employment with the Company during the above specified term. Employee acknowledges that the restrictive covenants (the “Restrictive Covenants’) contained in this Section are a condition of his employment and are reasonable and valid in geographical and temporary scope and in all other respects. If any court determines that any Restrictive Covenants, or any part of the Restrictive Covenants, is invalid or unenforceable, the remainder of the Restrictive Covenants and parts thereof shall not thereby be affected and shall be given full effect, without regard to the invalid portion. If any court determines that any of the Restrictive Covenants, or any part thereof, is invalid and unenforceable because of geographic or temporal scope of such provision, such court shall have the power to reduce the geographic or temporal scope of such provision, as the case may be, and, in each caseits reduced form, Executive such provision shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall then be subject to the prior approval of the Boardenforceable.
Appears in 2 contracts
Samples: Senior Executive Employment Agreement (True Nature Holding, Inc.), Senior Executive Employment Agreement (True Nature Holding, Inc.)
Covenant Not to Compete. (ia) The Executive acknowledges that the services he is to render to the Company are of a special and its affiliates are currently engaged in the business of branded and generic pharmaceuticalsunusual character, with a focus on product developmentunique value to the Company, clinical developmentthe loss of which cannot adequately be compensated by damages or an action at law. In view of the unique value to the Companies of the services of Executive for which the Company has contracted hereunder, manufacturingbecause of the confidential information to be obtained by, distribution or disclosed to, Executive as herein above set forth, and sales & marketing. To protect as a material inducement to the Confidential Information Company to enter into this Agreement and to pay to Executive the compensation stated herein and any additional benefits stated herein, and other trade secrets of the Company good and its affiliates as well as the goodwill and competitive business of the Company and its affiliatesvaluable consideration, Executive agrees, covenants and agrees that during the Employment Term and during the “Non-Competition Period,” as defined below, Executive shall not, directly or indirectly, enter into the employment of, tender consulting or other services to, acquire any interest in (whether for a period of twelve (12) months after Executive’s cessation of employment own account as an individual proprietor, or as a partner, associate, stockholder, officer, director, trustee or otherwise), or otherwise participate in any business that competes, directly or indirectly, with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair any of the Committee), anywhere Companies (i) in the world wheresame lines of business in the business process outsourcing industry that the Companies are engaged in at the time Executive’s employment is terminated, or if Executive is an employee of any of the Companies, at the time Executive is accused of Executive’s termination being in competition with any of employment, the Company develops, manufactures, distributes, markets or sells its products, except Companies pursuant to this Section 9; (ii) in the course provision of the business process outsourcing services provided by the Companies at the time Executive’s employment hereunder, directly or indirectly manage, operate, controlis terminated, or participate if Executive is an employee of any of the Companies, at the time Executive is accused of being in competition with any of the Companies pursuant to this Section 9; (iii) in the provision of business process outsourcing services that any of the Companies have taken substantial steps to provide to customers at the time Executive’s employment is terminated, or if Executive is an employee of any of the Companies, at the time Executive is accused of being in competition with any of the Companies pursuant to this Section 9; or (iv) in the provision of business process outsourcing services that any of the Companies are in the process of marketing to existing or potential clients that any of the Companies are taking measures to retain as clients of the Companies, at the time Executive’s employment is terminated, or if Executive is an employee of any of the Companies, at the time Executive is accused of being in competition with any of the Companies pursuant to this Section 9, during the Employment Term. Executive and the Company acknowledge that clauses (ii), (iii) and (iv) in the immediately preceding sentence shall not be deemed or interpreted to narrow or otherwise limit the scope of clause (i) of such sentence. Notwithstanding the foregoing, in the event Executive voluntarily terminates employment other than with Good Reason, Executive shall be restricted from engaging in any business process outsourcing business for one year from the Termination Date. For purposes of this Section 9, the “Non-Competition Period” shall be the one year period following the Termination Date.
(b) Notwithstanding the foregoing, nothing in this Agreement shall prevent (A) the purchase or ownership by Executive of up to two percent (2%) in the aggregate of any class of securities of any entity if such securities (i) are listed on a national securities exchange or (ii) are registered under Section 12(g) of the Exchange Act; or (B) the direct or indirect ownership of securities of a private company; provided that Executive is only a passive investor in such company (having no role, duty or responsibility whatsoever in the management, operation, operations or control of, be employed by, associated with, or direction of such company) and owns no more than five percent (5%) in the aggregate of any manner connected with, lend securities of such company. If Executive’s name toemployment with the Company is terminated for any reason, and after such termination Executive wishes to take any action, including without limitation, taking a position with another company, which action could potentially be deemed a violation of this Section 9, Executive shall have the right, after providing the Board with all relevant information, to request a consent to such action from the Board which consent shall not be unreasonably withheld. The Board shall respond to Executive’s request by granting or render services or advice todenying such consent within not more than 30 calendar days from the date the Company receives written notice of such request from Executive. If Executive disagrees with the Board’s decision relating to the consent, any then the disagreement shall be resolved by arbitration under the provisions of Section 12(g) below, as modified by the following two sentences. A single third-party arbitrator (the “Arbitrator”) shall be appointed as promptly as practicable following the date Executive notifies the Company of his disagreement, and the third party or any business whose products or services compete in whole or in part Arbitrator shall make a determination with the products or services (both on the market respect to whether Executive’s action would constitute a legally valid and in development) material to the Company or any business unit on the termination date that constitutes enforceable violation of Section 9 within not more than 5% thirty (30) days of his appointment, and such determination shall be binding on all of the parties hereto. The cost of the Arbitrator shall be borne by the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may if the Company substantially prevails in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with arbitration, then the business cost of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) Arbitrator shall be subject to the prior approval of the Boardborne by Executive.
Appears in 2 contracts
Samples: Employment and Non Competition Agreement (ExlService Holdings, Inc.), Employment Agreement (ExlService Holdings, Inc.)
Covenant Not to Compete. (ia) The Company and its affiliates are currently engaged in During the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term Employee’s service hereunder and for a period of twelve eighteen (1218) months after Executivethereafter, regardless of the reason or method of termination, the Employee will not, directly or indirectly, for the Employee’s cessation own benefit or the benefit of any other person or entity:
(i) solicit in any manner, seek to obtain, or service the business of any customer of the Company, other than for the Company;
(ii) become an owner of any business, if such business competes with the Company;
(iii) become employed by or serve as an agent, independent contractor or representative of any business which competes with the Company;
(iv) solicit the employment of or hire any employee of the Company, or encourage any employee to terminate his or her employment with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo ; or
(following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or v) prepare in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services to compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(iib) For purposes of this Section 11(b)Agreement, a “customer” shall be deemed to be any third party person, business, partnership, proprietorship, firm, organization or any corporation which has done business whose products compete includes any entity with which the Company or its affiliates which has had a product(s) licensing agreement during the Employment Term and been solicited or serviced in any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide servicesmanner, directly or indirectly, by the Company within eighteen (18) months prior to such Competing Business the date of the termination of the Employee, and the basis phrase “service the business of any customer” means the development, modification, enhancement or improvement of any product or service offered by the Company or which is reasonably related to the products or services offered by the Company. The Employee hereby acknowledges that, by virtue of the affiliation is solely due Employee’s position and access to common ownership by a private equity or similar investment fund; providedinformation, thatthe Employee will have advantageous familiarity and personal contacts with the Company’s customers, wherever located, and that the restrictions contemplated hereby are reasonable for the protection of the Company’s goodwill and customer base, and the Company’s efforts in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(cthe development of such customers.
(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) If the Employee does not comply with the provisions of this Section 11(b)(iii7, the eighteen (18) month period of non-competition provided herein shall be subject tolled and deemed not to run during any period(s) of noncompliance, the prior approval intention of the Boardparties being to provide eighteen (18) full months of non-competition by the Employee after the termination or expiration of this Agreement.
Appears in 2 contracts
Samples: Employment Agreement (Interactive Intelligence Inc), Employment Agreement (Interactive Intelligence Inc)
Covenant Not to Compete. a. Executive acknowledges that the businesses of the Company and its subsidiaries is highly competitive and international in scope, that their licenses are sourced and their products are marketed throughout the world, that the Company and its subsidiaries compete in nearly all of their business activities with other organizations which are or could be located in nearly any part of the world and that the nature of Executive’s services, position and expertise are such that he is capable of competing with the Company from nearly any location in the world. Executive further acknowledges that all services of Executive are exclusive to the Company, and that Executive’s performances and services hereunder are of a special, unique, unusual, extraordinary and intellectual character which gives them peculiar value, the loss of which cannot reasonably or adequately be compensated in an action at law for damages and that a breach by Executive of the terms of this Article VI will cause the Company irreparable injury.
b. In recognition of the foregoing Executive covenants and agrees that during his employment with the Company and for a period of two (2) years thereafter (the “Restricted Period”) he will not, directly or indirectly, as a principal, officer, director, shareholder, partner, member, employee, consultant, independent contractor, agent or executive or in any other capacity whatsoever, without the prior written consent of the Company, do any of the following:
(i) The Company and its affiliates are currently Engage in the business of acquiring, licensing or distributing music, home video, video games or computer software;
(ii) Acquire any ownership of any kind in, or become associated with or provide services to any other person, corporation, partnership, limited liability company, business trust, association or other business entity (each an “Entity”) engaged in the business of branded acquiring, licensing or distributing music, home video, video games or computer software;
(iii) Intentionally and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve (12) months after Executive’s cessation of employment with the Company, that Executive will not, unless otherwise agreed knowingly solicit or attempt to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, solicit or participate in the managementsolicitation of or otherwise advise or encourage any then employee, operationagent, consultant or representative of, or control ofvendor or supplier to, be employed bythe Company to terminate his, associated withher or its relationship therewith; or
(iv) Solicit or attempt to solicit or encourage any person, who is then, or in any manner connected withwas within the then most recent 12-month period, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company knowledge of Executive, an employee, agent, consultant or any business unit on the termination date that constitutes more than 5% representative of the Company’s revenue on the termination date (a “Competing Business”); provided, howeverto become an employee, that agent, representative or consultant of or to Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company other individual or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreemententity.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Board.
Appears in 2 contracts
Samples: Executive Severance Agreement (Navarre Corp /Mn/), Executive Severance Agreement (Navarre Corp /Mn/)
Covenant Not to Compete. The Employee recognizes that the Company has business goodwill and other legitimate business interests which must be protected in connection with and in addition to the Information (as defined hereinafter), and therefore, in exchange for access to the Information, the specialized training and instruction which the Company will provide, the Company's agreement to employ the Employee on the terms and conditions set forth herein, the Company's agreement to execute and consummate the Purchase Agreement, and the promotion and advertisement by the Company of Employee's skill, ability and value in the Company's business, subject to the provisions of the next full paragraph of this Section 12, the Employee agrees that in the event (i) The Company and its affiliates are currently engaged in Employee is terminated for Cause, or (ii) Employee leaves the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets employ of the Company and its affiliates as well as the goodwill and competitive business other than a Termination By Employee With Good Reason prior to expiration of the Company and its affiliatesterm of the Agreement, Executive agreesor (iii) upon the expiration of the term of this Agreement, during the Employment Term and then for a period of twelve the latest date of (12i) months five (5) years after Executive’s cessation the date of employment with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, controlthis Agreement, or participate in (ii) three (3) years after the managementdate employment is so terminated:
(a) Enter into, operationengage in, or control ofbe connected with any court reporting business or business operation or activity within Westchester, be employed byNew York, associated withKings, or Queens, Bronx, Richmond, Rockland and Nassau Counties in New York and Bergen, Essex, Union, Middlesex, Morris, Warren, Somerset, Sussex and Passaic Counties in New Jersey; and
(b) Employee will not call upon any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business customer whose products or services compete account is serviced in whole or in part with by the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company Employer or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is Affiliates at the time of the termination actively negotiatingof Employee's employment, and eventually concludes with the purpose of selling or attempting to sell to any such customer any services included within twelve that offered by the Employer or its Affiliates; and
(12c) months Employee will not intentionally divert, solicit or take away any customer, supplier or employee of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (Employer or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services toits Affiliates, or have the patronage of any responsibilities regarding, customer or supplier of the Competing Business; (B) any entity that isEmployer or its Affiliates, or is a general partner inotherwise interfere with or disturb the relationship existing between the Employer or its Affiliates and any of their respective customers, suppliers or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide servicesemployees, directly or indirectly. In addition, the foregoing restrictive covenants shall also apply to such Competing Business and the basis Employee in the event of Termination By Employee With Good Reason by the Employee, but only for a period of one (1) year. In the event the Company ceases operation of the affiliation is solely due to common ownership by Business of the Company other than in a private equity merger, consolidation, or similar investment fund; providedtransaction, thator upon the filing of a bankruptcy or receivership proceeding against the Employer, in each caseor upon the appointment of a liquidator for the Company, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) the provisions of this Section 11(b)(iii) 12 shall not be applicable to the conduct of Employee subsequent thereto. In addition, in the event that at the expiration of this Agreement at the end of its schedule term the Company is unwilling to extend the Agreement, the Employee shall be subject immediately entitled to work as a court reporter in the Territory set forth in Section 12 (a) provided that he continues to comply with Sections 12(b) and 12(c) while he works as a court reporter and for any court or governmental agency. It is mutually understood and agreed that if any of the provisions relating to the prior approval scope, time or territory in this Section 12 are more extensive than is enforceable under applicable laws or are broader than necessary to protect the good will and legitimate business interests of the BoardCompany, then the Parties agree that they will reduce the degree and extent of such provisions by whatever minimal amount is necessary to bring such provisions within the ambit of enforceability under applicable law. The Parties acknowledge that the remedies at law for breach of Employee's covenants contained in this Section 12 are inadequate, and they agree that the Company shall be entitled, at its election, to injunctive relief (without the necessity of posting bond against such breach or attempted breach), and to specific performance of such covenants in addition to any other remedies at law or equity that may be available to the Company.
Appears in 2 contracts
Samples: Agreement of Purchase and Sale of Assets (Us Legal Support Inc), Purchase and Sale Agreement (Us Legal Support Inc)
Covenant Not to Compete. (i) The Company Subject to the Closing, and its affiliates are currently engaged as an inducement to ABR to execute this Agreement and complete the transactions contemplated hereby, and in order to preserve the goodwill associated with the business of branded Company being acquired pursuant to this Agreement, each shareholder covenants and generic pharmaceuticalsagrees that, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve three (123) months after Executive’s cessation of employment years from the Closing Date, he will not directly or indirectly:
(i) engage in, continue in or carry on any business which competes with the Business or is substantially similar thereto, including owning or controlling any financial interest in any corporation, partnership, firm or other form of business organization which is so engaged;
(ii) consult with, advise or assist in any way, whether or not for consideration, any corporation, partnership, firm or other business organization which is now or becomes a competitor of Company or ABR in any aspect with respect to the Business, including, but not limited to, advertising or otherwise endorsing the products of any such competitor; soliciting customers or otherwise serving as an intermediary for any such competitor; loaning money or rendering any other form of financial assistance to or engaging in any form of business transaction on other than an arm's length basis with any such competitor;
(iii) offer employment to an employee of Company, that Executive will not, unless otherwise agreed to by without the Chief Executive Officer prior written consent of Endo ABR; or
(following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or iv) engage in any manner connected with, lend Executive’s name to, practice the purpose of which is to evade the provisions of this covenant not to compete or render services or advice to, to commit any third party or any business whose products or services compete in whole or in part with act which adversely affects the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may the foregoing shall not prohibit the ownership of securities of corporations which are listed on a national securities exchange or traded in any event (x) own up to a the national over-the-counter market in an amount which shall not exceed 5% passive ownership interest in any public or private entity and (y) serve on of the board outstanding shares of any Competing Business such corporation. The parties agree that competes with the geographic scope of this covenant not to compete shall extend to the United States jurisdictions of Maryland, New Jersey, New York, Pennsylvania, Virginia and the District of Columbia, which constitute the geographic area in which the Employer has operated its business at some time during the two years preceding the date of this Agreement. The parties agree that ABR may sell, assign or otherwise transfer this covenant not to compete, in whole or in part, to any person, corporation, firm or entity that purchases all or part of the business of the Company and its affiliates as an immaterial part Company. In the event a court of its overall business, provided competent jurisdiction determines that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes the provisions of this Section 11(b)covenant not to compete are excessively broad as to duration, any third party geographical scope or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoingactivity, it is expressly agreed that this covenant not to compete shall be construed so that the remaining provisions shall not be a violation of this Section 11(b)affected, for Executive to provide services to (or engage but shall remain in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business full force and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactionseffect, and that might make an investment which Executive could not make directlyany such over broad provisions shall be deemed, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have without further action on the part of any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectlyperson, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; providedbe modified, thatamended and/or limited, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject but only to the prior approval of extent necessary to render the Boardsame valid and enforceable in such jurisdiction.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Abr Information Services Inc), Agreement and Plan of Reorganization (Abr Information Services Inc)
Covenant Not to Compete. (a) Executive hereby acknowledges and recognizes the highly competitive nature of the business of the Association and, accordingly, agrees that during the period he is receiving payments under this Agreement, Executive shall not, except as otherwise permitted in writing by the Association:
(i) The Company and its affiliates are currently engaged solicit, offer employment to, or take any other action intended (or that a reasonable person acting in like circumstances would expect) to have the business effect of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets causing any officer or employee of the Company Association and its affiliates as well as Xxxxx Bankshares, Inc. (the goodwill and competitive business “Company”), or any of the Company and its their respective subsidiaries or affiliates, Executive agrees, during the Employment Term to terminate his or her employment and for a period of twelve (12) months after Executive’s cessation of accept employment with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated become affiliated with, or provide services for compensation in any manner connected with, lend Executive’s name to, or render services or advice capacity whatsoever to, any third party firm, corporation, entity or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business enterprise that competes with the business of the Company Association and its affiliates the Company, or any of their direct or indirect subsidiaries or affiliates, and has offices within a twenty (20) mile radius of the Association’s offices, determined as an immaterial part of its overall businessthe effective date of such termination, provided that Executive recuses Executive fully and completely from all matters relating except as agreed to such business.pursuant to a resolution duly adopted by the Board of Directors (“Competitor”);
(ii) For purposes of this Section 11(b)serve as a consultant, director, independent contractor, employee of, or provide financial or other assistance to, any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.Competitor; or
(iii) Notwithstanding directly or indirectly solicit persons or entities who were customers, clients, or referral sources of the foregoingAssociation and the Company, it or their subsidiaries to become a customer, client, or referral source of any Competitor.
(b) If Executive violates any provision contained in Section 9 of this Agreement, the Executive acknowledges and agrees that the Association and the Company will be entitled to seek an injunction restraining Executive from competing or disclosing, in whole or in part, the knowledge of the past, present, planned or considered business activities of the Association and to recover any provable damages. Nothing herein will be construed as prohibiting the Association from pursuing any other remedies available to the Association for such breach or threatened breach, including the recovery of damages from Executive.
(c) It is expressly understood and agreed that, although Executive and the Association and the Company consider the restrictions contained in Section 9(a) hereof reasonable for the purpose of preserving for the Association and the Company and their subsidiaries their good will and other proprietary rights, if a final judicial determination is made by a court having jurisdiction that the time or territory or any other restriction contained in Section 9(a) hereof is an unreasonable or otherwise unenforceable restriction against Executive, the provisions of Section 9(a) hereof shall not be a violation rendered void but shall be deemed amended to apply as to such maximum time and territory and to such other extent as such court may judicially determine or indicate to be reasonable.
(d) The provisions of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, 9 shall survive the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis termination of the affiliation is solely due to common ownership by a private equity or similar investment fund; providedAgreement, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval regardless of the Boardreason for termination.
Appears in 2 contracts
Samples: Retention and Non Competition Agreement (Poage Bankshares, Inc.), Retention and Non Competition Agreement (Poage Bankshares, Inc.)
Covenant Not to Compete. The Consultant recognizes that the Company has business goodwill and other legitimate business interests which must be protected in connection with and in addition to the Information (i) The as defined hereinafter), and therefore, in exchange for access to the Information, the specialized training and instruction which the Company will provide, the Company's agreement to retain the Consultant on the terms and its affiliates are currently engaged conditions set forth herein, the Company's agreement to execute and consummate the Purchase Agreement, and the promotion and advertisement by the Company of Consultant's skill, ability and value in the business of branded and generic pharmaceuticalsCompany's business, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect subject to the Confidential Information and other trade secrets provisions of the Company and its affiliates as well as next full paragraph of this Section 8, the goodwill and competitive business Consultant agrees that upon the expiration of the Company and its affiliatesterm of this Agreement, Executive agrees, during the Employment Term and then for a period of twelve the latest date of (12i) months five (5) years after Executive’s cessation the date of employment with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, controlthis Agreement, or participate in (ii) three (3) years after the managementdate his service as a consultant is so terminated.
(a) Consultant will not enter into, operationengage in, or control ofbe connected with any court reporting business or business operation or activity within Westchester, be employed byNew York, associated withKings, or Queens, Bronx, Richmond, Rockland and Nassau Counties in New York and Bergen, Essex, Union Middlesex, Morris, Warren, Somerset, Sussex and Passaic Counties in New Jersey; and
(b) Consultant will not call upon any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business customer whose products or services compete account is serviced in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which by the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is Affiliates at the time of the termination actively negotiatingof Consultant as a consultant hereunder, and eventually concludes with the purpose of selling or attempting to sell to any such customer any services included within twelve that offered by the Company or its Affiliates; and
(12c) months Consultant will not intentionally divert, solicit or take away any customer, supplier or employee of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (Company or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services toits Affiliates, or have the patronage of any responsibilities regarding, customer or supplier of the Competing Business; (B) any entity that isCompany or its Affiliates, or is a general partner inotherwise interfere with or disturb the relationship existing between the Company or its Affiliates and any of their respective customers, suppliers or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide servicesemployees, directly or indirectly, to such Competing Business and . In the basis event the Company ceases operation of the affiliation is solely due to common ownership by Business of the Company other than in a private equity merger, consolidation, or similar investment fund; providedtransaction, thator upon the filing of a bankruptcy or receivership proceeding against the Company, in each caseor upon the appointment of a liquidator for the Company, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) the provisions of this Section 11(b)(iii) 8 shall not be applicable to the conduct of Consultant subsequent thereto. It is mutually understood and agreed that if any of the provisions relating to the scope, time or territory in this Section 8 are more extensive than is enforceable under applicable laws or are broader than necessary to protect the good will and legitimate business interests of the Company, then the Parties agree that they will reduce the degree and extent of such provisions by whatever minimal amount is necessary to bring such provisions within the ambit of enforceability under applicable law. The Parties acknowledge that the remedies at law for breach of Consultant's covenants contained in this Section 8 are inadequate, and they agree that the Company shall be subject entitled, at its election, to injunctive relief (without the necessity of posting bond against such breach or attempted breach), and to specific performance of such covenants in addition to any other remedies at law or equity that may be available to the prior approval of the BoardCompany.
Appears in 2 contracts
Samples: Agreement of Purchase and Sale of Assets (Us Legal Support Inc), Purchase and Sale Agreement (Us Legal Support Inc)
Covenant Not to Compete. (ia) The Company During the Employment Period and its affiliates are currently engaged for the one-year period following the voluntary termination of the Employment Period by the Employee or termination of the Employment Period by the Employer without Cause, and so long as the Employer is not in default of a material obligation hereunder, the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets Employee agrees not to engage in any aspect of the Company and its affiliates Business other than as well as the goodwill and competitive business an employee of the Employer. The Employee shall be deemed to be engaging in Company and its affiliatesBusiness if he directly or indirectly, Executive agreeswhether or not for compensation, during the Employment Term and for a period of twelve (12) months after Executive’s cessation of employment with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere participates in the world whereownership, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, operation or control of, be of any Competitor (as hereinafter defined) or is employed by, associated with, by or in performs consulting services for any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”)Competitor; provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on if such Competitor renders substantial services other than Company Business, the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it Employee shall not be a violation of this Section 11(b), for Executive to provide services to (or engage prohibited from engaging in any such activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that solely in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Businesswith such other services; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision Employee may invest in publicly traded companies that engage in Company Business where Employee's investment is less than 5% of services the outstanding stock of such company.
(b) During the Employment Period and for the two-year period following the voluntary termination of the Employment Period by the Employee or termination of the Employment Period by the Employer without Cause, and so long as the Employer is not in default of a material obligation hereunder, the Employee agrees, other than as an employee of the Employer, not to solicit the employment of any employee of the Employer.
(c) During the Employment Period and at all times following the termination of the Employment for any reason, the Employee agrees that, other than as an employee of the Employer, he shall not release any customer or engagement supplier lists or manufacturing or marketing information of the Employer, or any other documents or other information (whether or not such 5 information is in activities involvingwriting) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject that is proprietary to the prior approval Employer or any customer or supplier of the BoardEmployer, or otherwise confidential or non-public, to any person, except with the Employer's written consent or as may be required pursuant to the order of a court of competent jurisdiction.
(d) For purposes of Section 4:
(i) The "Company Business" is the manufacture and sale of processed fruits and vegetables, pineapple products and tomato products and each other business in which the Employer is engaged during the Employment Period.
Appears in 2 contracts
Samples: Employment Agreement (Del Monte Foods Co), Employment Agreement (Del Monte Foods Co)
Covenant Not to Compete. The Employee recognizes that the ----------------------- Company has business goodwill and other legitimate business interests which must be protected in connection with and in addition to the Information (as defined hereinafter), and therefore, in exchange for access to the Information, the specialized training and instruction which the Company will provide, the Company's agreement to employ the Employee on the terms and conditions set forth herein, the Company's agreement to execute and consummate the Purchase Agreement, and the promotion and advertisement by the Company of Employee's skill, ability and value in the Company's business, subject to the provisions of the next full paragraph of this Section 12, the Employee agrees that in the event (i) The Company and its affiliates are currently engaged in Employee is terminated for Cause, or (ii) Employee leaves the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets employ of the Company and its affiliates as well as the goodwill and competitive business other than a Termination By Employee With Good Reason prior to expiration of the Company and its affiliatesterm of the Agreement, Executive agreesor (iii) upon the expiration of the term of this Agreement, during the Employment Term and then for a period of twelve the latest date of (12i) months five (5) years after Executive’s cessation the date of this Agreement, or (ii) three (3) years after the date employment is so terminated:
(a) Employee will not in any capacity or relationship enter into, engage in, or be connected with the Company, that Executive will not, unless otherwise agreed to any business or business operation or activity within a fifty (50) mile radius of any office location then operated by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, Employer at the time of Executive’s termination of employmentsuch termination, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete which consists in whole or in part with of the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% Business of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.and
(iib) For purposes of this Section 11(b), Employee will not call upon any third party customer whose account is serviced in whole or any business whose products compete includes any entity with which in part by the Company Employer or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is Affiliates at the time of the termination actively negotiatingof Employee's employment, and eventually concludes with the purpose of selling or attempting to sell to any such customer any services included within twelve that offered by the Employer or its Affiliates; and
(12c) months Employee will not intentionally divert, solicit or take away any customer, supplier or employee of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (Employer or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services toits Affiliates, or have the patronage of any responsibilities regarding, customer or supplier of the Competing Business; (B) any entity that isEmployer or its Affiliates, or is a general partner inotherwise interfere with or disturb the relationship existing between the Employer or its Affiliates and any of their respective customers, suppliers or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide servicesemployees, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Board.
Appears in 2 contracts
Samples: Employment Agreement (Us Legal Support Inc), Employment Agreement (Us Legal Support Inc)
Covenant Not to Compete. (ia) The Company and its affiliates are currently engaged in the business In consideration of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets Purchaser’s consummation of the Company transactions contemplated by this Agreement and its affiliates as well as the goodwill for other good and competitive business of the Company and its affiliatesvaluable consideration, Executive agrees, during the Employment Term and for a period of twelve five (125) months years from and after Executive’s cessation of employment with the CompanyClosing Date, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunderneither Seller nor any Seller Affiliate will, directly or indirectly manage(whether as an owner, operateproprietor, controlpartner, shareholder, officer, employee, independent contractor, director, joint venturer, consultant, lender or participate investor), solicit or engage in the managementProhibited Business. For purposes of this Section 4.05, operation, the “Prohibited Business” means offering to provide or control of, be employed by, associated with, providing any product or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part service competitive with the products Business, in the geographic areas where Seller engages in business as of the date hereof. The parties agree that this Section 4.05 shall not prohibit the ownership by Seller, solely as an investment, of securities of a person engaged in the Prohibited Business if (i) such Seller is not an “affiliate” (as such term is defined in Rule 405 promulgated under the Securities Act) of the issuer of such securities, (ii) such securities are publicly traded on a national securities exchange and (iii) Seller does not, directly or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes indirectly, beneficially own more than 5% of the Company’s revenue on class of which such securities are a part. Seller acknowledges and agrees that the termination date (limitations imposed by this Section 4.05(a) as to time, geographical area, and scope of activity being restrained are reasonable and do not impose a “Competing Business”); provided, however, that Executive may in any event (x) own up greater restraint than is necessary to a 5% passive ownership interest in any public protect the goodwill or private entity and (y) serve on the board other business interests of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such businessPurchaser.
(iib) For purposes of this Section 11(b)From and after the Closing Date, any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide servicesneither Seller nor Seller’s Affiliates shall, directly or indirectly, (i) discourage any person from accepting employment with Purchaser or any Affiliate of Purchaser or (ii) hire or solicit the employment or services of, or cause or attempt to such Competing Business cause to leave the employment or service of Purchaser or any Affiliate of Purchaser, any person who or which is employed by, or otherwise engaged to perform services for, Purchaser or any Affiliate of Purchaser (whether in the capacity of employee, consultant, independent contractor or otherwise) or who is offered a position by Purchaser in connection with the transactions contemplated hereby.
(c) The parties hereby agree that if Seller or Seller’s Affiliate violates this Section 4.05, it would be difficult to determine the entire cost, damage or injury which Purchaser and its Affiliates would sustain. Seller acknowledges that if it or Seller’s Affiliate violates or threatens to violate this Section 4.05, Purchaser will have no adequate remedy at law. In that event, Purchaser and/or its Affiliates shall have the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, thatright, in each caseaddition to any other rights that may be available to them, Executive shall remain bound to seek in any court of competent jurisdiction injunctive relief to restrain any violation by all other post-employment Seller of this Section 4.05 or to compel specific performance by Seller of one or more of its obligations under this Agreement including Executive’s obligations under Sections 10, 11(aSection 4.05 (any requirements for posting of bonds for injunction are hereby expressly waived), 11(c) and 11(d) herein; provided, further, . The seeking or obtaining by Purchaser or its Affiliates of such injunctive relief shall not foreclose or in any way limit the right of Purchaser to obtain a money judgment against Seller for any damage to Purchaser or its Affiliates that Executive’s provision of services to (or engagement in activities involving) may result from any entity described in clauses (A) or (B) breach by Seller of this Section 11(b)(iii) 4.05. If the final judgment of a court of competent jurisdiction declares that any term or provision of this Section 4.05 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 Section 4.05 shall be subject to enforceable as so modified after the prior approval expiration of the Boardtime within which the judgment may be appealed.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Argo Digital Solutions Inc), Asset Purchase Agreement (rVue Holdings, Inc.)
Covenant Not to Compete. (ia) The Company and its affiliates are currently engaged in During the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term Employee's service hereunder and for a period of twelve eighteen (1218) months after Executive’s cessation thereafter, regardless of the reason or method of termination, the Employee will not, directly or indirectly, for the Employee's own benefit or the benefit of any other person or entity:
(i) solicit in any manner, seek to obtain, or service the business of any customer of the Company, other than for the Company;
(ii) become an owner of any business, if such business competes with the Company;
(iii) become employed by or serve as an agent, independent contractor or representative of any business which competes with the Company;
(iv) solicit the employment of or hire any employee of the Company, or encourage any employee to terminate his or her employment with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo ; or
(following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or v) prepare in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services to compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(iib) For purposes of this Section 11(b)Agreement, a "customer" shall be deemed to be any third party person, business, partnership, proprietorship, firm, organization or any corporation which has done business whose products compete includes any entity with which the Company or its affiliates which has had a product(s) licensing agreement during the Employment Term and been solicited or serviced in any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide servicesmanner, directly or indirectly, by the Company within eighteen (18) months prior to such Competing Business the date of the termination of the Employee, and the basis phrase "service the business of any customer" means the development, modification, enhancement or improvement of any product or service offered by the Company or which is reasonably related to the products or services offered by the Company. The Employee hereby acknowledges that, by virtue of the affiliation is solely due Employee's position and access to common ownership by a private equity or similar investment fund; providedinformation, thatthe Employee will have advantageous familiarity and personal contacts with the Company's customers, wherever located, and that the restrictions contemplated hereby are reasonable for the protection of the Company's goodwill and customer base, and the Company's efforts in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(cthe development of such customers.
(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) If the Employee does not comply with the provisions of this Section 11(b)(iii7, the eighteen (18) month period of non-competition provided herein shall be subject tolled and deemed not to run during any period(s) of noncompliance, the prior approval intention of the Boardparties being to provide eighteen (18) full months of non-competition by the Employee after the termination or expiration of this Agreement.
Appears in 2 contracts
Samples: Employment Agreement (Interactive Intelligence Group, Inc.), Employment Agreement (Interactive Intelligence Inc)
Covenant Not to Compete. (a) In connection with the Merger, the Executive acknowledges and agrees that: (i) The Company and its affiliates are currently engaged Executive will receive substantial consideration for his shares of common stock of the Company, in the business form of branded cash pursuant to the Merger Agreement and generic pharmaceuticals, with the opportunity to reinvest a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets significant amount of cash into shares of common stock of the Company or the holding company thereof (“Common Stock”), which Common Stock will materially benefit Executive; (ii) it is essential to the success of the Company following the Merger and its affiliates as well as the goodwill enterprise of the Company in the future that the Common Stock that is being transferred to Executive in connection with the Merger be protected by non-competition agreements of the type set forth below; (iii) holders of Common Stock would suffer significant and competitive irreparable harm from such Executive competing with the business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve (12) months time after the Merger or after the termination of Executive’s cessation of employment with the Company; (iv) in connection with the Merger, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except and in the course of Executive’s employment hereunderwith the Company, Executive will be provided with access to sensitive and proprietary information about the clients, prospective clients, knowledge capital and business practices of the Company, and has been and will be provided with the opportunity to develop relationships with clients, prospective clients, employees and other agents of the Company, and Executive further acknowledges that such proprietary information and relationships are extremely valuable assets in which the Company has invested and will continue to invest substantial time, effort and expense and which represent a significant component of the value of the Merger to the other owners of the Company. In recognition of all of the foregoing, ancillary to the Merger, the Executive agrees that during the period beginning on the Effective Date and ending on the third anniversary of the termination of Executive’s employment with the Company for any reason (the “Non-Compete Term”) the Executive shall not:
(i) Either directly or indirectly manageindirectly, operatefor himself or on behalf of or in conjunction with any other person, controlpersons, company, firm, partnership, corporation, business, group or other entity (each, a “Person”), engage in any Competing Business, whether as an employee, consultant, partner, principal, agent, representative, stockholder or other individual, corporate, or participate in the management, operationrepresentative capacity, or control of, be employed by, associated withrender any services or provide any advice or substantial assistance to any such Person that engages in a Competing Business. “Competing Businesses” shall include any business which rents construction or industrial equipment, or in any manner connected withother business in which the Company is engaging, lend or in which the Company has taken concrete and significant steps towards engaging, at the time of the Executive’s name totermination of employment, in each case in the geographic areas in which the Company operates or has taken significant steps towards operating; provided, however, that notwithstanding the foregoing, the Executive may make passive investments in up to 5% of the outstanding publicly traded common stock of an entity which operates a Competing Business. In addition, notwithstanding the foregoing, the Executive shall not be deemed to violate this covenant if he has a role with a Person that engages in a Competing Business if his role is limited to the departments, divisions, affiliates, subsidiaries or other units of such Person that do not engage in the Competing Business.
(ii) Either directly or indirectly, for himself or on behalf of or in conjunction with any other Person, solicit, hire or divert any Person who is, or render services who is, at the time of termination of the Executive’s employment, or advice tohas been within six (6) months prior to the time of termination of Executive’s employment, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to an employee of the Company or any of its subsidiaries for the purpose or with the intent of enticing such employee away from the employ of the Company or any of its subsidiaries.
(iii) Either directly or indirectly, for himself or on behalf of or in conjunction with any other Person, solicit, hire or divert any Person who is, or who is, at the time of termination of the Executive’s employment, or has been within six (6) months prior to the time of termination of Executive’s employment, a customer or supplier of the Company or any of its subsidiaries for the purpose or with the intent of (A) inducing or attempting to induce such Person to cease doing business unit on with the termination date that constitutes more Company or (B) in any way interfering with the relationship between such Person and the Company. In addition to the foregoing, the Executive shall not make any Unauthorized Disclosure. For purposes of this Agreement, “Unauthorized Disclosure” shall mean disclosure by the Executive without the prior written consent of the Board to any person, other than 5% an employee of the Company or a person to whom disclosure is reasonably necessary or appropriate in connection with the performance by the Executive of his duties as an executive of the Company or as may be legally required, of any confidential information obtained by the Executive while in the employ of the Company (including, but not limited to, any confidential information with respect to any of the Company’s revenue on the termination date (a “Competing Business”customers or methods of distribution); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public such term shall not include the use or private entity and (y) serve on disclosure by the board Executive, without consent, of any Competing Business that competes with information known generally to the business public (other than as a result of the Company and its affiliates as an immaterial part disclosure by him in violation of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such businessthis provision).
(b) Because of the difficulty of measuring economic losses to the Company as a result of a breach of the foregoing covenants, and because of the immediate and irreparable damage that could be caused to the Company for which it would have no other adequate remedy, the Executive agrees: (i) that the foregoing covenants, in addition to and not in limitation of any other rights, remedies or damages available to the Company at law, in equity or under this Agreement, may be enforced by the Company in the event of the breach or threatened breach by the Executive, by injunctions and/or restraining orders; (ii) For purposes that in the event any material breach by the Executive of this any of the foregoing covenants occurs while the Executive is receiving payments under Section 11(b10(c)(ii), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(smay cease making payments thereunder and the Executive must repay all amounts previously received from the Company thereunder; and (iii) licensing agreement during the Employment Term and any entity with which to repay all amounts received, if any, from the Company or any of its affiliates is at with respect to the time purchase of Common Stock from the Executive in connection with the termination actively negotiating, and eventually concludes within twelve (12) months of the Employment TermExecutive’s employment with the Company. If the Company is involved in court or other legal proceedings to enforce the covenants contained in this Section 14, a commercial agreementthen in the event the Company prevails in such proceedings, the Executive shall be liable for the payment of reasonable attorneys’ fees, costs and ancillary expenses incurred by the Company in enforcing its rights hereunder.
(iiic) The covenants in this Section 14 are severable and separate, and the unenforceability of any specific covenant shall not affect the provisions of any other covenant. Moreover, in the event any court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth herein are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent that such court deems reasonable, and the Agreement shall thereby be reformed to reflect the same.
(d) All of the covenants in this Section 14 shall be construed as an agreement independent of any other provision in this Agreement, and the existence of any claim or cause of action of the Executive against the Company whether predicated on this Agreement or otherwise shall not constitute a defense to the enforcement by the Company of such covenants. It is specifically agreed that the period following the termination of the Executive’s employment with the Company during which the agreements and covenants of the Executive made in this Section 14 shall be effective, shall be computed by excluding from such computation any time during which the Executive is in violation of any provision of this Section 14.
(e) Notwithstanding any of the foregoing, it if any applicable law, judicial ruling or order shall not reduce the time period during which the Executive shall be a violation of this prohibited from engaging in any competitive activity described in Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding14 hereof, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, period of time for which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services be prohibited pursuant to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) 14 hereof shall be subject to the prior approval of the Boardmaximum time permitted by law.
Appears in 1 contract
Covenant Not to Compete. (i) The Company and its affiliates are currently engaged 5.1 In consideration of the compensation to be paid to Employee under this Agreement, Employee acknowledges that in the course of Employee's employment with certain Employer Entities, he has prior to the date of this Agreement, and will during the Term of employment, become familiar with Employer's and the Employer Entities' trade secrets, business plans and business strategies and with other confidential business information concerning Employer and the Employer Entities and that Employee's services have been and shall be of branded special, unique and generic pharmaceuticalsextraordinary value to Employer and the Employer Entities. Employee also acknowledges that in the course of his employment he will have access to Employer's and the Employer Entities' relationships and goodwill with their customers, with a focus on product developmentdistributors, clinical developmentsuppliers and employees. In light of Employee's value to, manufacturingand knowledge of, distribution Employer, the Employer Entities, and sales & marketing. To protect the Confidential Information Business (as defined below) and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliatesEmployee's compensation pursuant to this Agreement, Executive agreesEmployee agrees that, during the Employment Term and for a period of twelve one (121) months after Executive’s cessation of employment with year thereafter (the Company"Non-Compete Period"), that Executive he will not, unless otherwise agreed in association with or as an officer, principal, manager, member, advisor, agent, partner, director, material stockholder, employee or consultant of any corporation (or sub-unit, in the case of a diversified business) or other enterprise, entity or association, work on the acquisition or development of, or engage in any line of business, property or project which is, directly or indirectly, competitive with any business that Employer or any Employer Entity engages in or is planning to by engage in during the Chief Executive Officer Term of Endo employment, including but not limited to, the mining, processing, transportation, distribution, trading and sale of synfuel, coal and coal byproducts (following approval by the Chair of the Committee"Business"), . Such restriction shall cover Employee's activities anywhere in the world wherecontiguous United States.
5.2 During the applicable Non-Compete Period, Employee will not solicit or induce any person who is or was employed by any of the Employer Entities at any time during such term or period (i) to interfere with the activities or businesses of Employer or any Employer Entity or (ii) to discontinue his or her employment with any of the Employer Entities.
5.3 During the applicable Non-Compete Period, Employee will not, directly or indirectly, influence or attempt to influence any customers, distributors or suppliers of any of the Employer Entities to divert their business to any competitor of Employer or any Employer Entity or in any way interfere with the relationship between any such customer, distributor or supplier and Employer and/or any Employer Entity (including, without limitation, making any negative statements or communications about Employer and the Employer Entities). During the applicable Non-Compete Period, Employee will not, directly or indirectly, acquire or attempt to acquire any business in the contiguous United States to which Employer or any Employer Entity, prior to the termination of the Term of employment, has made an acquisition proposal relating to the possible acquisition of such business by Employer or any Employer Entity, or has planned, discussed or contemplated making such an acquisition proposal (such business, an "Acquisition Target"), or take any action to induce or attempt to induce any Acquisition Target to consummate any acquisition, investment or other similar transaction with any person other than Employer or any Employer Entity.
5.4 Employee understands that the provisions of Sections 5.1, 5.2 and 5.3 hereof may limit his ability to earn a livelihood in a business in which he is involved, but as a member of the management group of Employer and the Employer Entities he nevertheless agrees and hereby acknowledges that: (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests of Employer and any of the Employer Entities; (ii) such provisions contain reasonable limitations as to time, scope of activity, and geographical area to be restrained; and (iii) the consideration provided hereunder, including without limitation, any amounts or benefits provided under Article 3 hereof, is sufficient to compensate Employee for the restrictions contained in Sections 5.1, 5.2 and 5.3 hereof. In consideration of the foregoing and in light of Employee's education, skills and abilities, Employee agrees that he will not assert that, and it should not be considered that, any provisions of Sections 5.1, 5.2 or 5.3 otherwise are void, voidable or unenforceable or should be voided or held unenforceable.
5.5 If, at the time of Executive’s termination enforcement of employmentArticles 4 or 5 of this Agreement, a court shall hold that the duration, scope, or area restrictions stated herein are unreasonable under circumstances then existing, the Company developsparties hereto agree that the maximum period, manufacturesscope or geographical area reasonable under such circumstances shall be substituted for the stated period, distributesscope or area and that the court shall be allowed and directed to revise the restrictions contained herein to cover the maximum period, markets or sells its products, except scope and area permitted by law. Employee acknowledges that he is a member of Employer's and the Employer Entities' management group with access to Employer's and Employer Entities' confidential business information and his services are unique to Employer and the Employer Entities. Employee therefore agrees that the remedy at law for any breach by him of any of the covenants and agreements set forth in Articles 4 and 5 will be inadequate and that in the course event of Executive’s employment hereunderany such breach, directly or indirectly manageEmployer and the Employer Entities may, operatein addition to the other remedies which may be available to them at law, controlapply to any court of competent jurisdiction to obtain specific performance and/or injunctive relief prohibiting Employee (together with all those persons associated with him) from the breach of such covenants and agreements and to enforce, or participate prevent any violations of, the provisions of this Agreement. In addition, in the managementevent of a breach or violation by Employee of this Article 5, operation, the applicable Non-Compete Period set forth in this Article shall be tolled until such breach or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% violation has been cured.
5.6 Each of the Company’s revenue covenants of this Article 5 are given by Employee as part of the consideration for this Agreement and as an inducement to Employer to enter into this Agreement and accept the obligations hereunder.
5.7 Provisions of Article 5 shall not be binding on Employee if Employer fails to perform any material obligation under this Agreement, including, without limitation, the termination date (a “Competing Business”)failure of Employer to make timely payments of monies due to Employee under Article 3 of this Agreement; provided, however, that Executive may (a) Employee has notified Employer in any event (x) own up writing within 30 days of the date of the failure of Employer to a 5% passive ownership interest in any public or private entity perform such material obligation and (yb) serve on such failure remains uncorrected and/or uncontested by Employer for 15 days following the board date of any Competing Business such notice.
5.8 Notwithstanding anything to the contrary contained in this Article 5, the provisions of this Article 5 shall not apply in the event that competes with this Agreement shall be terminated by Employee for Good Reason pursuant to Section 3.4 or Employee or Employer, as the business case may be, elects not to renew the Term of the Company and its affiliates as an immaterial part of its overall businessthis Agreement pursuant to Section 3.2(iv) or Section 3.4(ii), respectively, provided that Executive recuses Executive fully and completely from all matters relating Employee does not receive, or does not elect to such businessreceive, any of the benefits or payments under Sections 3.5, 3.8 and/or 3.10 of this Agreement.
(ii) For purposes 5.9 If Employee breaches any obligation under Article 4 and/or Article 5 hereof, Employer shall provide notice of such breach to Employee. The Employee agrees that, within 30 days after Employer provides such notice, Employee shall pay to Employer, in cash, an amount equal to any and all payments paid to or on behalf of Employee under Article 3 of this Agreement including, without limitation, to the extent Employee has sold any equity which vested pursuant to Section 11(b)3.10 hereof, any third party or any business whose products compete includes any entity with cash proceeds received from such sale. Employee agrees that failure to make such timely payment to Employer constitutes an independent and material breach of this Agreement by Employee, for which Employer may seek recovery of the Company or its affiliates has had unpaid amount as liquidated damages, in addition to all other rights and remedies Employer may have resulting from Employee's breach of the obligations set forth in Article 4 and/or Article 5 hereof. Employee agrees that timely payment to Employer as set forth herein is reasonable and necessary because the damages that will result from a product(s) licensing agreement during the Employment Term and any entity with which the Company or any breach of its affiliates Article 4 and/or Article 5 hereof cannot readily be ascertained. Further, Employee agrees that timely payment to Employer as set forth herein is at the time of termination actively negotiatingnot a penalty, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by preclude Employer from seeking all other post-employment obligations under remedies that may be available to Employer, including, without limitation, those set forth in this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the BoardArticle 5.
Appears in 1 contract
Samples: Employment Agreement (Alpha Natural Resources, Inc.)
Covenant Not to Compete. (ia) The Executive acknowledges that the services he is to render to the Company are of a special and its affiliates are currently engaged in the business of branded and generic pharmaceuticalsunusual character, with a focus on product developmentunique value to the Company, clinical developmentthe loss of which cannot adequately be compensated by damages or an action at law. In view of the unique value to the Companies of the services of Executive for which the Company has contracted hereunder, manufacturingbecause of the confidential information to be obtained by, distribution or disclosed to, Executive as herein above set forth, and sales & marketing. To protect as a material inducement to the Confidential Information Company to enter into this Agreement and to pay to Executive the compensation stated herein and any additional benefits stated herein, and other trade secrets of the Company good and its affiliates as well as the goodwill and competitive business of the Company and its affiliatesvaluable consideration, Executive agrees, covenants and agrees that during the Employment Term and during the “Non-Competition Period,” as defined below, Executive shall not, directly or indirectly, enter into the employment of, tender consulting or other services to, acquire any interest in (whether for a period of twelve (12) months after Executive’s cessation of employment own account as an individual proprietor, or as a partner, associate, stockholder, officer, director, trustee or otherwise), or otherwise participate in any business that competes, directly or indirectly, with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair any of the Committee), anywhere Companies (i) in the world wheresame lines of business in the business process outsourcing industry that the Companies are engaged in at the time Executive’s employment is terminated, or if Executive is an employee of any of the Companies, at the time Executive is accused of Executive’s termination being in competition with any of employment, the Company develops, manufactures, distributes, markets or sells its products, except Companies pursuant to this Section 9; (ii) in the course provision of the business process outsourcing services provided by the Companies at the time Executive’s employment hereunder, directly or indirectly manage, operate, controlis terminated, or participate if Executive is an employee of any of the Companies, at the time Executive is accused of being in competition with any of the Companies pursuant to this Section 9; (iii) in the provision of business process outsourcing services that any of the Companies have taken substantial steps to provide to customers at the time Executive’s employment is terminated, or if Executive is an employee of any of the Companies, at the time Executive is accused of being in competition with any of the Companies pursuant to this Section 9; or (iv) in the provision of business process outsourcing services that any of the Companies are in the process of marketing to existing or potential clients that any of the Companies are taking measures to retain as clients of the Companies, at the time Executive’s employment is terminated, or if Executive is an employee of any of the Companies, at the time Executive is accused of being in competition with any of the Companies pursuant to this Section 9, during the Employment Term. Executive and the Company acknowledge that clauses (ii), (iii) and (iv) in the immediately preceding sentence shall not be deemed or interpreted to narrow or otherwise limit the scope of clause (i) of such sentence. Notwithstanding the foregoing, in the event Executive voluntarily terminates employment other than with Good Reason, Executive shall be restricted from engaging in any business process outsourcing business for one year from the Termination Date. For purposes of this Section 9, the “Non-Competition Period” shall be the one year period following the Termination Date.
(b) Notwithstanding the foregoing, nothing in this Agreement shall prevent (A) the purchase or ownership by Executive of up to two percent (2%) in the aggregate of any class of securities of any entity if such securities (i) are listed on a national securities exchange or
(ii) are registered under Section 12(g) of the Exchange Act; or (B) the direct or indirect ownership of securities of a private company; provided that Executive is only a passive investor in such company (having no role, duty or responsibility whatsoever in the management, operation, operations or control of, be employed by, associated with, or direction of such company) and owns no more than five percent (5%) in the aggregate of any manner connected with, lend securities of such company. If Executive’s name toemployment with the Company is terminated for any reason, and after such termination Executive wishes to take any action, including without limitation, taking a position with another company, which action could potentially be deemed a violation of this Section 9, Executive shall have the right, after providing the Board with all relevant information, to request a consent to such action from the Board which consent shall not be unreasonably withheld. The Board shall respond to Executive’s request by granting or render services or advice todenying such consent within not more than 30 calendar days from the date the Company receives written notice of such request from Executive. If Executive disagrees with the Board’s decision relating to the consent, any then the disagreement shall be resolved by arbitration under the provisions of Section 12(g) below, as modified by the following two sentences. A single third-party arbitrator (the “Arbitrator”) shall be appointed as promptly as practicable following the date Executive notifies the Company of his disagreement, and the third party or any business whose products or services compete in whole or in part Arbitrator shall make a determination with the products or services (both on the market respect to whether Executive’s action would constitute a legally valid and in development) material to the Company or any business unit on the termination date that constitutes enforceable violation of Section 9 within not more than 5% thirty (30) days of his appointment, and such determination shall be binding on all of the parties hereto. The cost of the Arbitrator shall be borne by the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may if the Company substantially prevails in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with arbitration, then the business cost of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) Arbitrator shall be subject to the prior approval of the Boardborne by Executive.
Appears in 1 contract
Samples: Employment & Non Competition Agreement (ExlService Holdings, Inc.)
Covenant Not to Compete. a. Employee agrees that from the Effective Date through and including the nine (9) month period subsequent to the Final Payment Date (the “Non-Compete Term”) Employee: (i) The Company will not directly or indirectly, whether as owner, partner, shareholder, consultant, agent, employee, co-venturer or otherwise, engage, participate, assist or invest in any competing business that publishes technology-related content, provides purchase-intent data, or operates technology-related events and, in any case, derives its revenue from selling products and its affiliates are currently engaged in services similar to products and services offered by the business of branded Employer to customers and generic pharmaceuticalsprospects similar to Employer’s own customers and prospects; (ii) will refrain from directly or indirectly employing, with a focus on product developmentattempting to employ, clinical developmentrecruiting or otherwise soliciting, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve (12) months after Executive’s cessation of inducing or influencing any person to leave employment with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer Employer (other than terminations of Endo (following approval by the Chair employment of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except subordinate employees undertaken in the course of the Executive’s employment hereunderwith the Employer); and (iii) will refrain from soliciting or encouraging any customer or supplier to terminate or otherwise modify adversely its business relationship with the Employer. Employee understands that the restrictions set forth in this Section 10 are intended to protect Employer’s interest in its Confidential Information (as defined in Section 8(a) of the Employment Agreement) and established employee, directly customer and supplier relationships and goodwill, and agrees that such restrictions are reasonable and appropriate for this purpose. Employee acknowledges and agrees that the specific companies listed in the Employer’s most recent periodic filing are considered competitors of Employer. Employee further acknowledges that the specific companies listed as competitors create only a limited list of potential competitors and that other companies or indirectly manageentities may be deemed to be competitors based on the nature of their products and services and how they compete in the marketplace against Employer’s customers and prospects. At the Employee’s request, operateEmployer will update the listing of specific companies. Notwithstanding the foregoing, controlthe Executive may own up to one percent (1%) of the outstanding stock of a publicly held corporation which constitutes or is affiliated with a competing business.
b. Employee acknowledges and agrees that the services rendered to Employer are of a unique, special and extraordinary character which would be difficult or impossible for Employer to replace or protect, and by reason thereof, Employee hereby agrees that in the event he violates any of the provisions of Section 10(a), Employer shall, in addition to any other rights and remedies available to it, at law or otherwise, be entitled to an injunction or restraining order to be issued by any court of competent jurisdiction in any state enjoining and restraining the Employee from committing any violation of Section 10(a). Employee acknowledges and agrees that, if (i) he breaches any of the terms of this Separation Agreement, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in developmentii) there is a material to the Company or any business unit on the termination date that constitutes more than 5% restatement of the Company’s revenue on financial statements for the termination date first quarter or second quarter of fiscal 2018 as a result of, based upon, or in connection with Employee’s fraud or willful misconduct, he shall forfeit all rights to receive any amounts otherwise payable to him pursuant to Section 3 of this Separation Agreement and he shall immediately repay to the Company the entire gross amount that was previously paid to him thereunder (a “Competing Business”); providedincluding any gains realized from the vesting of equity-based awards) and shall forever release and discharge Employer and its parents, howeversubsidiaries, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity affiliates, successors, and (y) serve on assigns from the board performance of any Competing Business obligations arising from this Separation Agreement, but shall not release Employee from performance of his obligations under this Separation Agreement.
c. The covenants in this Section 10 are severable and separate, and the unenforceability of any specific covenant shall not affect the provisions of any other covenant. Moreover, in the event any court of competent jurisdiction shall determine that competes with the business scope, time or territorial restrictions set forth herein are unreasonable, then it is the intention of the Company parties that such restrictions be enforced to the fullest extent that such court deems reasonable, and its affiliates the Separation Agreement shall thereby be reformed to reflect the same.
d. All of the covenants in this Section 10 shall be construed as an immaterial part agreement independent of its overall businessany other provision in this Separation Agreement, provided that Executive recuses Executive fully and completely from all matters relating the existence of any claim or cause of action of Employee against Employer whether predicated on this Separation Agreement or otherwise shall not constitute a defense to the enforcement by Employer of such businesscovenants.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or e. Notwithstanding any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it if any applicable law, judicial ruling or order shall not reduce the time period during which Employee shall be a violation of prohibited from engaging in any competitive activity described in this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding10, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, period of time for which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, Employee shall be prohibited pursuant to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) 10 shall be subject to the prior approval of the Boardmaximum time permitted by law.
Appears in 1 contract
Samples: Transition, Separation and Release Agreement (TechTarget Inc)
Covenant Not to Compete. (i) The Company and its affiliates are currently engaged in a. Executive acknowledges that the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets businesses of the Company is highly competitive and international in scope, that its affiliates as well as products are sourced and marketed throughout North America, that the goodwill Company competes in nearly all of its business activities with other organizations which are or could be located throughout North America and competitive business that the nature of Executive’s services, position and expertise are such that he is capable of competing with the Company from nearly any location in North America. Executive further acknowledges that all services of Executive are exclusive to the Company, and that Executive’s performances and services hereunder are of a special, unique, unusual, extraordinary and intellectual character which gives them peculiar value, the loss of which cannot reasonably or adequately be compensated in an action at law for damages and that a breach by Executive of the terms of this Section 6 of this Agreement will cause the Company and its affiliatesirreparable injury.
b. In recognition of the foregoing, Executive agreescovenants and agrees that he will not, as a principal, officer, director, shareholder, partner, member, employee, consultant, independent contractor, agent or executive or in any other capacity whatsoever, without the prior written consent of the Company, do any of the following during the Employment Term and for a period of twelve (12) months after Executive’s cessation of his employment with the Company, plus an additional eighteen (18) months following a Severance Event:
(i) Engage in a business that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair competes with a material portion of the Committee)Company’s, anywhere or any of its subsidiaries, business activities;
(ii) Acquire any ownership of any kind in, or become associated with or provide services to any other person, corporation, partnership, limited liability company, business trust, association or other business entity engaged in a business that competes with a material portion of the world whereCompany’s, at the time or any of Executive’s termination of employmentits subsidiaries, the Company develops, manufactures, distributes, markets business activities;
(iii) Intentionally and knowingly solicit or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, attempt to solicit or participate in the management, operation, solicitation of a vendor or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% a customer of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in or any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall businesssubsidiaries, provided that Executive recuses Executive fully and completely from all matters relating to such business.terminate his, her or its relationship therewith; or
(iiiv) For purposes Solicit or attempt to solicit or encourage any person, who is then, or was within the then most recent twelve (12) month period, to the knowledge of this Section 11(b)Executive, any third party an employee, agent, consultant or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which representative of the Company or any of its affiliates is at subsidiaries, to become an employee, agent, representative or consultant of or to Executive or any other individual or entity.
c. Nothing in this Section 6 of this Agreement shall prevent Executive from making or holding an investment in securities traded on any national securities exchange or traded in the time of termination actively negotiatingover-the-counter market, and eventually concludes within twelve provided said investments do not exceed one percent (121%) months of the Employment Termissued and outstanding securities of any one such issuer or, a commercial agreement.
if the total investment in the issuer is $500,000 or less, up to five percent (iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B5%) of this Section 11(b)(iii) shall be subject to the prior approval of the Boardsuch issued and outstanding securities.
Appears in 1 contract
Covenant Not to Compete. (ia) The Executive acknowledges that, in consideration of his employment, and to induce Company to allow Executive access to confidential information and Company's and OTX's clients, customers and other with whom Company and its affiliates are currently engaged in the OTX have formed valuable business of branded and generic pharmaceuticalsarrangements, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agreeshe will not, during the Employment Term such time as Executive is employed by Company and for a period of twelve one (121) months year after Executive’s cessation of employment with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time expiration or termination of Executive’s termination of 's employment, or, if later, termination or expiration of a subsequent consulting arrangement, regardless of whether Executive caused said termination:
(i) In the Company develops, manufactures, distributes, markets or sells its products, except in the course event of voluntary termination by Executive’s employment hereunder, directly or indirectly manageindirectly, perform any services similar to his duties and obligations under this Agreement, own an interest in, operate, join, control, or participate in the management, operationin, or control ofbe connected as an officer, be employed byemployee, associated withagent, independent contractor, partner, shareholder or principal of any corporation, partnership, proprietorship, firm, association, person, or in any manner connected withother entity producing, lend Executive’s name todesigning, providing, soliciting orders for, selling, distributing, or render marketing products, goods, equipment, or services that compete directly or indirectly with -OTX's products and services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall OTX's business, provided that Executive recuses Executive fully and completely from all matters relating to such business.without first obtaining the written approval of OTX;
(ii) For purposes of this Section 11(b)Take any action that would interfere with, any third party diminish or any business whose products compete includes any entity impair the valuable relationships that OTX and/or OTX's Affiliates have with its or their customers and clients and others with which the Company OTX and/or OTX's Affiliates have business relationships or to which its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.services are rendered;
(iii) Notwithstanding Directly or indirectly, for his own benefit or for the benefit of any other person (whether as an officer, director, owner, partner, investor, consultant, employee, agent, manager, or other participant in any business or venture) divert, solicit or attempt to divert or solicit any of OTX's customers or patrons with respect to products or services offered by OTX;
(iv) Recruit or otherwise solicit, induce or influence any person (natural or otherwise) who is or becomes an employee or consultant of the Company or the Company's Affiliates to terminate his or her employment with, or otherwise cease his relationship with, Company or the Company's Affiliates or hire any such employee or consultant who has left the employ of Company or the Company's Affiliates within two (2) years after the termination or expiration of such employee's or consultant's employment with Company or the Company's Affiliates, as the case may be; or
(v) Assist with others in engaging in any of the foregoing.
(b) It is acknowledged and agreed by Executive that Company, it OTX and their respective affiliates have a legitimate business interest justifying the restrictions contained herein and that such restrictions are reasonably necessary to protect such legitimate business interests, which interests, including, without limitation, trade secrets; other valuable confidential business information, including but not limited to the information set forth in Sections 15 and 16, that may not qualify as trade secrets, but as to which Company, OTX and their Affiliates have expended time and money in developing and as to which they hold confidential and proprietary; substantial business relationships with existing and prospective customers, clients and others with whom Company, OTX and their Affiliates have formed valuable relationships; customer and client goodwill associated with the ongoing business of Company, OTX and their Affiliates and evidenced by the various trademarks, trade names, service marks and trade dress used by Company, OTX and their Affiliates in connection with their businesses, and an expectation of continuing patronage from their existing customers, clients and others with whom Company, OTX and their Affiliates have formed valuable business relationships.
(c) Executive acknowledges and agrees that, in the event of a breach or threatened breach of any of the terms of this Section, Company and/or the Company's Affiliates, as the case may be, would suffer irreparable harm for which monetary damages would be inadequate. Accordingly, in addition to any other remedies available, at law or in equity, in the event of a breach or threatened breach by the Executive of the provisions of this Section, Company and/or the Company's Affiliates shall not be a entitled to seek an injunction restraining Executive from such breach or to seek specific performance of the terms hereof. The 1-year period mentioned above shall be tolled for any period(s) of violation or period(s) of time required for litigation to enforce the covenants herein. In addition, any breach or threatened breach of any of the terms of this Section 11(b), for Executive to provide services to which is not curedwithin thirty (or engage in activities involving): (A30) a subsidiary, division or affiliate days of receipt of a Competing Business where such subsidiary, division written notice from the Board or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis Chairman of the affiliation is solely due to common ownership Board which specifically identifies such purported breach or threatened breach by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all constitute cause for the termination of Executive's employment hereunder notwithstanding any other post-employment obligations under term, provision or definition contained in this Agreement including Executive’s obligations under Sections 10, 11(a), 11(cAgreement.
(d) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) The provisions of this Section 11(b)(iii) shall be subject to survive any termination or expiration of this Agreement. Executive has carefully read and considered the prior approval provisions of this Section, and having done so, agrees that the restrictions set forth in this Section (including, but not limited to, the time period of the Boardrestrictions) are fair and reasonable and are reasonably required for the protection of the interests of Company.
Appears in 1 contract
Covenant Not to Compete. (i) The parties agree that the Company and its affiliates are currently engaged would be substantially harmed if Employee competes with the Company during employment with the Company or after termination of employment with the Company. Employee acknowledges this is particularly true here, as he is integrally involved in the business of branded research and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets development of the Company Company's Technology and its affiliates as well as the goodwill and competitive business of Technology improvements. Therefore, in exchange for benefits provided to Employee hereunder, Employee agrees that during his employment with the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve two (122) months years after Executive’s cessation termination of such employment for any reason, Employee will not directly or indirectly, without the written consent of the Company: Render services to or for any Competing Organization or engage in any activity that competes with the Business of the Company or in any way assists any Competing Organization within any state in the United States or within any country in which the Company directly or indirectly markets or services products or provides services or reasonably intends such period to market or service products or provide services provided, however, that ownership of stock or other securities in a publicly held corporation, for which Employee's sole purpose is that of an investor, is not prohibited; During Employee's employment by the Company, Employee agrees not to plan or otherwise take any preliminary steps, either alone or in concert with others, to set up or engage in any business enterprise that would be in competition with the Company or to seek employment with a Competing Organization. In any way interfere or attempt to interfere with the Company's relationships with any of its current or potential customers; Hire, offer to hire, entice away, or in any other way persuade or attempt to persuade any employee, officer, agent, independent contractor, supplier, customer, or subcontractor of the Company to discontinue their relationship with the Company; and Vilify, criticize, or otherwise slander or defame the Business or business practices of the Company or its officers, directors, or employees. Employee further agrees that he will, prior to accepting employment with any new employer, inform that employer of his covenant not to compete and provide that employer with a copy of this Agreement. Consideration - Employee acknowledges and agrees that in addition to his continued employment with the Company, that Executive will nothe has been offered and has voluntarily accepted the following consideration for his agreements specified herein: Compensation payable in such amount as set forth herein in Section 4; The grant of incentive stock options as set forth in Section 4(c) herein and as reflected in Exhibit A, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committeeattached hereto; The severance allowance as set forth herein in at Section 5(d), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market ; and in development) material Access to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business's Confidential Information.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Board.
Appears in 1 contract
Covenant Not to Compete. (i) The Company Employee agrees and its affiliates are currently engaged in acknowledges that due to the business of branded confidential information, and generic pharmaceuticalspersonal contacts with the customers, with a focus on product developmentprospective customers, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets employees of the Company and its affiliates as well as Company, which the goodwill and competitive business Employee will acquire during the course of his employment by the Company, that the Company and its affiliateswould be irreparably damaged should the Employee in any way enter into competition with the Company. Therefore, Executive agrees, the Employee agrees that at all times during his employment by the Employment Term Company and for a period of twelve three (123) months after Executive’s cessation years following the termination of employment with for any reason that neither the CompanyEmployee nor any Affiliate (as defined below) will, that Executive will not, unless otherwise agreed to by without the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% prior written consent of the Company’s revenue on :
a. Either directly or indirectly, (i) become financially interested in a Competing Enterprise (as defined below) (other than as a holder of less than five percent (5%) of the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board outstanding voting securities of any Competing Business that competes with entity whose voting securities are listed on a national securities exchange or quoted by the business of the Company and its affiliates as an immaterial part of its overall businessNASDAQ Stock Market), provided that Executive recuses Executive fully and completely from all matters relating to such business.
or (ii) For purposes engage in or be employed by any Competing Enterprise as a consultant, officer, director, or executive or employee, or any other capacity; or
b. Either directly or indirectly, on the Employee’s own behalf or in the service or on behalf of others, solicit, divert or appropriate, or attempt to solicit, divert, or appropriate, to any Competing Enterprise, any person or entity with whom the Company has done or is doing business during the term of this Section 11(bAgreement; or
c. Either directly or indirectly, on the Employee’s own behalf or in the service or on behalf of others (whether a Competing Enterprise or not), solicit, divert, or hire away, or attempt to solicit, divert, or hire away, any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which person employed by the Company or any of its affiliates subsidiaries, whether or not such employee is a full-time or a temporary employee of the Company or any of its subsidiaries and whether or not such employment is pursuant to written agreement and whether or not such employment is at will. The parties agree and acknowledge that the time of termination actively negotiatingrestrictions contained in this section are reasonable, and eventually concludes within twelve (12) months necessary to protect the Company’s legitimate interests in its customers, accounts and other secret and confidential information. Each party agrees that if a court of law determines that this covenant is unreasonable as to time, geographic area, or scope of activity, that the Employment TermCompany and Employee shall be deemed to have consented to, a commercial agreement.
(iii) Notwithstanding and are deemed to have requested, reformation of this covenant by such court to the foregoing, it shall not be a violation extent necessary to make such covenant reasonable. For the purposes of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Board.6:
Appears in 1 contract
Samples: Change of Control and Severance Agreement (Omega Protein Corp)
Covenant Not to Compete. (ia) The Company As used in Sections 5 and its affiliates are currently engaged in the business of branded 6, "Company" shall refer to Ultimate Electronics, Inc. and generic pharmaceuticalsany affiliate, with a focus on product development, clinical development, manufacturing, distribution and sales & marketingsubsidiary or successor thereof. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, Employee agrees that during the Employment Term and for a period of twelve (12) months one year after Executive’s cessation the termination of his employment with the Company, that Executive he will not, unless otherwise agreed to by without the prior written consent of the Chief Executive Officer or the President of Endo Ultimate Electronics, Inc., either individually, or in partnership or jointly or in conjunction with any person, firm, corporation or any other entity as principal, agent, employee or shareholder or in any other manner whatsoever (following approval i) become associated with, accept employment with, serve as a consultant to, or accept compensation from, any person, firm or corporation (including any new business started by Employee alone or with others) whose products and/or services comprising fifteen percent (15%) or more of its sales compete with those products and/or services offered by the Chair Company, (ii) contact or solicit any employee, independent contractor, customer or vendor of the Committee)Company or attempt to induce that person or entity to terminate existing business relationships, anywhere in or (iii) willfully make any public statement or willfully perform or do any other act prejudicial or injurious to the world wherereputation or goodwill, at or otherwise interfere with the time of Executive’s termination of employmentbusiness of, the Company developsor their affiliates.
(b) Employee and the Company acknowledge that by virtue of their experience, manufactures, distributes, markets access to information or sells its products, except in other opportunity made available to Employee through the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part Employee's relationship with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully Employee and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had have acquired extensive skill and information specifically suited to immediate application by a product(s) licensing agreement during business in competition with the Employment Term Company. Accordingly, Employee and any entity with which the Company consider the foregoing restrictions of future employment or business activities in all respects reasonable. Optionee further acknowledges that the market area for each of the Company's retail stores encompasses approximately a one hundred and twenty (120) mile radius and that the location of a competing store or business within that radius is likely to result in dilution of the Company's customer base. In addition, the Optionee acknowledges that he or she may have knowledge of additional markets identified by the Board of Directors for future retail store locations. For these reasons and others, Optionee agrees that a one (1) year time restriction under the terms set forth in this agreement is reasonable. The Optionee further agrees that a one hundred and twenty (120) mile radius from any of its affiliates is at the time of termination actively negotiatingCompany's retail stores, and eventually concludes within twelve (12) months such other locations identified by the Board of Directors and known to the Employment TermOptionee, a commercial agreement.
(iii) Notwithstanding under the foregoing, it shall not be a violation of terms set forth in this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or agreement is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Boardreasonable geographic restriction.
Appears in 1 contract
Samples: Confidentiality Agreement (Ultimate Electronics Inc)
Covenant Not to Compete. (i) The Company Employee acknowledges that the services rendered to Employer by Employee have been and its affiliates are currently engaged in the business will continue to be of branded a special and generic pharmaceuticals, with unusual character which have a focus on product development, clinical development, manufacturing, distribution unique value to Employer and sales & marketing. To protect the Confidential Information and other Employee has had or will have access to trade secrets and confidential information belonging to Employer, the loss of which cannot adequately be compensated by damages in an action of law. Employee acknowledges that Employer's business and services are highly specialized, that the Company identity and its affiliates as well as particular needs of Employer's customers and suppliers are not generally known, and that the goodwill documents and competitive business information regarding Employer's customers, provider contracts, suppliers, services, methods of operation, sales, pricing and costs are highly confidential and constitute trade secrets. During the Company and its affiliates, Executive agrees, during the Employment Term term of Employee's employment with Employer and for a period of twelve (12) months after Executive’s cessation following the effective date of termination of Employee's employment with the CompanyEmployer for any reason whatsoever, that Executive Employee:
(a) will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly indirectly, own, manage, operate, control, or participate in be employed by, perform services for, connected with the ownership, management, operation, or control ofof any business which performs services similar to or competitive with those provided by Employer of which provides medical equipment or similar services to any person or entity, be employed byin any territory where Employer conducts business or in any territory identified in Employer's business plan as a territory in which Employer intends to develop within the next twelve (12) months;
(b) will not, associated either on his own account or for any person, firm, partnership, corporation or other entity, solicit, interfere with, or in endeavor to cause any manner connected with, lend Executive’s name toemployee of Employer to leave his employment, or render services induce or advice toattempt to induce any such employee to breach his employment agreement with Employer;
(c) shall not solicit, induce or attempt to induce any third party past or any current customer of the Employer to cease doing business whose products or services compete in whole or in part with the products or services (both on the market through Employer, or to do business with any other person, firm, partnership, corporation or other entity. In this regard, Employer's customers include all insurance companies, vendors, physicians, clinics, health maintenance organizations, hospitals, surgical centers, and in development) material to the Company other health care providers who have ever been charged for, bought, rented, leased, or have been provided with any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”)medical equipment being offered or provided for sale, rent or lease by Employer; provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.and
(iid) For purposes Employee shall, from the date of this Section 11(b)Agreement, any third party refrain from making disparaging, negative or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company other similar remarks concerning Employer or any of its affiliates is at to any third party. Similarly, Employer and its affiliates shall, from the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation date of this Section 11(b)Agreement, for Executive to provide services to (or engage in activities involving): (A) a subsidiaryrefrain from making disparaging, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) negative or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have similar remarks concerning Employee to any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Boardthird party.
Appears in 1 contract
Covenant Not to Compete. (a) In exchange for the consideration described herein, Seller agrees, for the periods indicated below, that:
(i) The Company and its affiliates are currently engaged in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve (12) months after Executive’s cessation of employment with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in During the course of Executive’s employment hereunderbeing a shareholder of LO, directly or indirectly manageSeller has had, operateand may continue to have access to and gain knowledge of certain trade secrets and confidential customer information regarding customers, controlaccounts and procedures of LO including, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name but not limited to, LO’s books and records, files, customer and account lists, and other information which has reference to any customer or render services or advice tobusiness serviced by LO, any third party or any business whose products or services compete in whole or in part with which shall hereinafter be referred to as “Confidential Client Information.” Seller acknowledges and agrees that: Confidential Client Information is both confidential and a trade secret, is not readily accessible to competitors of LO and shall be used by him for the products or services (both on sole benefit of LO; the market Confidential Client Information has been compiled through and in development) material to by use of LO’s ingenuity, time, marketing and product development strategies, policies, labor, expense, continuous solicitation, investigation and long experience rendering the Company or any business unit on the termination date that constitutes more than 5% Confidential Client Information a valuable asset of the Company’s revenue on the termination date (LO, owned solely by LO and is a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall businessgoodwill; the Confidential Client Information consists of, provided among other things, preferred customers of a particularly profitable nature whose identities are not generally know in the trade; the nature of LO’s business relationship to any client or customer solicited, produced, served, marketed or handled by Seller, is such that Executive recuses Executive fully it would normally continue unless interfered with; the nature of LO’s business is such that a customer will only patronize one business provider; and completely from all matters relating actual use or divulging to such businessothers for their use of the Confidential Client Information in violation of the terms of this Agreement would be unfair use, to LO’s extreme prejudice, done with an intent of the Seller to injure LO.
(ii) For purposes the period of this Section 11(b)five (5) years from the date of execution hereof, Seller will not, directly or indirectly, either on his own account or as a partner, joint venturer, consultant, broker, agent, adviser, shareholder, member or otherwise either individually or for any third party other person, firm or corporation or otherwise, use or divulge Confidential Client Information in any manner or solicit, service, market, divert, accept, or handle any business whose products compete includes in any entity with which way related to the Company or its affiliates has had business currently conducted by LO for current customers of LO within a product(sthree hundred (300) licensing agreement during the Employment Term and any entity with which the Company or any mile radius of its affiliates is at the time of termination actively negotiatingKnoxville, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreementTennessee.
(iii) Notwithstanding For the foregoingperiod of five (5) years from the date of execution hereof, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide servicesSeller will not, directly or indirectly, either on his own account or as a partner, joint venturer, consultant, broker, agent, adviser, shareholder, member or otherwise either individually or for any other person, firm or corporation or otherwise, solicit, service, market, divert, accept, or handle any business similar to LO’s business on the date of this Agreement or operate or be affiliated in any manner whatsoever with a business of any type engaged in the fabrication of electric signs.
(iv) For the period of five (5) years from the date of execution hereof, Seller will not, directly or indirectly, induce any person employed by LO on the date of this Agreement to leave his or her employment with LO.
(v) For the period of five (5) years from the date of execution hereof, Seller will not use or divulge to any other person or entity for its use any Confidential Client Information or trade secrets of LO relating to customers or prospects of LO, except in connection with the acquisition of Atmospheric Glow Technologies, LLC, and disclosure to governmental authorities and professional advisors as needed.
(vi) Notwithstanding anything herein to the contrary, Seller shall be entitled to make such Competing Business disclosures as it reasonably believes are required under federal or state securities laws and no such disclosures shall be deemed to violate any provision of this Agreement.
(b) The covenants in paragraphs 8(a)(i)-(vi) are intended to be separate and divisible covenants, and if, for any reason, any one or more thereof shall be held to be invalid or unenforceable, in whole or in part, it is agreed that the same shall not be held to affect the validity or enforceability of any other such covenant of this Agreement.
(c) The agreement of Seller not to engage in activities prohibited herein for the period of time agreed upon herein is a substantial consideration of this Agreement. Seller represents and admits that the above covenants are manifestly reasonable on their face and the basis parties expressly agree that they are also reasonable as to time and otherwise and that same are no greater than is required for the protection of LO. Seller agrees that the remedy at law for any breach by it of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under above covenants will be inadequate and that this Agreement including Executive’s obligations under Sections 10may be enforced by an injunction by any competent Court enjoining and restraining any violations hereof, 11(a)including, 11(c) without limitation, an injunction restraining Seller and 11(d) herein; provided, further, that Executive’s provision any other person acting in concert with him from continuance of services to (or engagement any act in activities involving) any entity described in clauses (A) or (B) violation of this Section 11(b)(iii) shall be subject to the prior approval of the Boardcovenant.
Appears in 1 contract
Samples: Stock Purchase Agreement (Atmospheric Glow Technologies Inc)
Covenant Not to Compete. (i) The Company and its affiliates are currently engaged 5.1 In consideration of the compensation to be paid to Employee under this Agreement, Employee acknowledges that in the course of Employee's employment with certain Employer Entities, he has prior to the date of this Agreement, and will during the Term of employment, become familiar with Employer's and the Employer Entities' trade secrets, business plans and business strategies and with other confidential business information concerning Employer and the Employer Entities and that Employee's services have been and shall be of branded special, unique and generic pharmaceuticalsextraordinary value to Employer and the Employer Entities. Employee also acknowledges that in the course of his employment he will have access to Employer's and the Employer Entities' relationships and goodwill with their customers, with a focus on product developmentdistributors, clinical developmentsuppliers and employees. In light of Employee's value to, manufacturingand knowledge of, distribution Employer, the Employer Entities, and sales & marketing. To protect the Confidential Information Business (as defined below) and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliatesEmployee's compensation pursuant to this Agreement, Executive agreesEmployee agrees that, during the Employment Term and for a period of twelve one (121) months after Executive’s cessation of employment with year thereafter (the Company"Non-Compete Period"), that Executive he will not, unless otherwise agreed in association with or as an officer, principal, manager, member, advisor, agent, partner, director, material stockholder, employee or consultant of any corporation (or sub-unit, in the case of a diversified business) or other enterprise, entity or association, work on the acquisition or development of, or engage in any line of business, property or project which is, directly or indirectly, competitive with any business that Employer or any Employer Entity engages in or is planning to by engage in during the Chief Executive Officer Term of Endo employment, including but not limited to, the mining, processing, transportation, distribution, trading and sale of synfuel, coal and coal byproducts (following approval by the Chair of the Committee"Business"), . Such restriction shall cover Employee's activities anywhere in the world wherecontiguous United States.
5.2 During the applicable Non-Compete Period, Employee will not solicit or induce any person who is or was employed by any of the Employer Entities at any time during such term or period (i) to interfere with the activities or businesses of Employer or any Employer Entity or (ii) to discontinue his or her employment with any of the Employer Entities.
5.3 During the applicable Non-Compete Period, Employee will not, directly or indirectly, influence or attempt to influence any customers, distributors or suppliers of any of the Employer Entities to divert their business to any competitor of Employer or any Employer Entity or in any way interfere with the relationship between any such customer, distributor or supplier and Employer and/or any Employer Entity (including, without limitation, making any negative statements or communications about Employer and the Employer Entities). During the applicable Non-Compete Period, Employee will not, directly or indirectly, acquire or attempt to acquire any business in the contiguous United States to which Employer or any Employer Entity, prior to the termination of the Term of employment, has made an acquisition proposal relating to the possible acquisition of such business by Employer or any Employer Entity, or has planned, discussed or contemplated making such an acquisition proposal (such business, an "Acquisition Target"), or take any action to induce or attempt to induce any Acquisition Target to consummate any acquisition, investment or other similar transaction with any person other than Employer or any Employer Entity.
5.4 Employee understands that the provisions of Sections 5.1, 5.2 and 5.3 hereof may limit his ability to earn a livelihood in a business in which he is involved, but as a member of the management group of Employer and the Employer Entities he nevertheless agrees and hereby acknowledges that: (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests of Employer and any of the Employer Entities; (ii) such provisions contain reasonable limitations as to time, scope of activity, and geographical area to be restrained; and (iii) the consideration provided hereunder, including without limitation, any amounts or benefits provided under Article 3 hereof, is sufficient to compensate Employee for the restrictions contained in Sections 5.1, 5.2 and 5.3 hereof. In consideration of the foregoing and in light of Employee's education, skills and abilities, Employee agrees that he will not assert that, and it should not be considered that, any provisions of Sections 5.1, 5.2 or 5.3 otherwise are void, voidable or unenforceable or should be voided or held unenforceable.
5.5 If, at the time of Executive’s termination enforcement of employmentArticles 4 or 5 of this Agreement, a court shall hold that the duration, scope, or area restrictions stated herein are unreasonable under circumstances then existing, the Company developsparties hereto agree that the maximum period, manufacturesscope or geographical area reasonable under such circumstances shall be substituted for the stated period, distributesscope or area and that the court shall be allowed and directed to revise the restrictions contained herein to cover the maximum period, markets or sells its products, except scope and area permitted by law. Employee acknowledges that he is a member of Employer's and the Employer Entities' management group with access to Employer's and Employer Entities' confidential business information and his services are unique to Employer and the Employer Entities. Employee therefore agrees that the remedy at law for any breach by him of any of the covenants and agreements set forth in Articles 4 and 5 will be inadequate and that in the course event of Executive’s employment hereunderany such breach, directly or indirectly manageEmployer and the Employer Entities may, operatein addition to the other remedies which may be available to them at law, controlapply to any court of competent jurisdiction to obtain specific performance and/or injunctive relief prohibiting Employee (together with all those persons associated with him) from the breach of such covenants and agreements and to enforce, or participate prevent any violations of, the provisions of this Agreement. In addition, in the managementevent of a breach or violation by Employee of this Article 5, operation, the applicable Non-Compete Period set forth in this Article shall be tolled until such breach or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% violation has been cured.
5.6 Each of the Company’s revenue covenants of this Article 5 are given by Employee as part of the consideration for this Agreement and as an inducement to Employer to enter into this Agreement and accept the obligations hereunder.
5.7 Provisions of Article 5 shall not be binding on Employee if Employer fails to perform any material obligation under this Agreement, including, without limitation, the termination date (a “Competing Business”)failure of Employer to make timely payments of monies due to Employee under Article 3 of this Agreement; provided, however, that Executive may (a) Employee has notified Employer in any event (x) own up writing within 30 days of the date of the failure of Employer to a 5% passive ownership interest in any public or private entity perform such material obligation and (yb) serve on such failure remains uncorrected and/or uncontested by Employer for 15 days following the board date of any Competing Business such notice.
5.8 Notwithstanding anything to the contrary contained in this Article 5, the provisions of this Article 5 shall not apply in the event that competes with this Agreement shall be terminated by Employee for Good Reason pursuant to Section 3.4 or Employee or Employer, as the business case may be, elects not to renew the Term of the Company and its affiliates as an immaterial part of its overall businessthis Agreement pursuant to Section 3.2(iv) or Section 3.4(ii), respectively, provided that Executive recuses Executive fully and completely from all matters relating Employee does not receive, or does not elect to such business.
(ii) For purposes receive, any of the benefits or payments under Sections 3.5, 3.8 and/or 3.10 of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreementAgreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Board.
Appears in 1 contract
Samples: Employment Agreement (Alpha Natural Resources, Inc.)
Covenant Not to Compete. (ia) The Company and its affiliates are currently engaged in During the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term Employee's service hereunder and for a period of twelve eighteen (1218) months after Executive’s cessation thereafter, regardless of the reason or method of termination, the Employee will not, directly or indirectly, for the Employee's own benefit or the benefit of any other person or entity:
(i) solicit in any manner, seek to obtain, or service the business of any customer of the Company, other than for the Company;
(ii) become an owner of any business, if such business competes with the Company;
(iii) become employed by or serve as an agent, independent contractor or representative of any business which competes with the Company;
(iv) solicit the employment of or hire any employee of the Company, or encourage any employee to terminate his or her employment with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo ; or
(following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or v) prepare in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services to compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(iib) For purposes of this Section 11(b)Agreement, a "customer" shall be deemed to be any third party person, business, partnership, proprietorship, firm, organization or any corporation which has done business whose products compete includes any entity with which the Company or its affiliates which has had a product(s) licensing agreement during the Employment Term and been solicited or serviced in any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide servicesmanner, directly or indirectly, by the Company within eighteen (18) months prior to such Competing Business the date of the termination of the Employee, and the basis phrase "service the business of any customer" means the development, modification, enhancement or improvement of any product or service offered by the Company or which is reasonably related to the products or services offered by the Company. The Employee hereby acknowledges that, by virtue of the affiliation is solely due Employee's position and access to common ownership by a private equity or similar investment fund; providedinformation, thatthe Employee will have advantageous familiarity and personal contacts with the Company's customers, wherever located, and that the restrictions contemplated hereby are reasonable for the protection of the Company's goodwill and customer base, and the Company's efforts in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(cthe development of such customers.
(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) If the Employee does not comply with the provisions of this Section 11(b)(iii7, the eighteen ( 18) month period of non-competition provided herein shall be subject tolled and deemed not to run during any period( s) of noncompliance, the prior approval intention of the Boardparties being to provide eighteen (18) full months of non-competition by the Employee after the termination or expiration of this Agreement.
Appears in 1 contract
Samples: Employment Agreement (Interactive Intelligence Group, Inc.)
Covenant Not to Compete. (ia) The Company and its affiliates are currently engaged in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets In furtherance of the Company and its affiliates as well as the goodwill and competitive business of "preferred provider" status accorded by the Company and its affiliates, Executive agrees, during to the Employment Term and for a period of twelve (12) months after Executive’s cessation of employment with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employmentCapital Entities under Section 3.2, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market covenants and in development) material to agrees that the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiatingshall not, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services permit the other Company Entities to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, at any time during the term of this Agreement (whether as stockholder, principal, agent, independent contractor, partner or otherwise) maintain an ownership interest in, manage, operate, control or participate in a business involving (i) the Financing of Products or the offering of Ancillary Services anywhere within any Active Service Area (which activities the parties agree shall be deemed to be in direct competition with the Capital Entities), or (ii) the financing of products or services manufactured, sold, furnished provided or marketed by Persons that are not Company Entities, or the offering of ancillary services similar to the Ancillary Services with respect to such Competing Business products or services, or the providing of secured financing to any Person (whether or not such competition relates to the services offered by the Capital Entities under this Agreement) anywhere within any Active Service Area (it being acknowledged that the prohibited activities are not limited to any particular region within the Active Service Areas because the prohibited activities may be engaged in effectively in competition with the Capital Entities' business from any location within the United States or within any other Active Service Area), except as provided in paragraph (b) below and Section 4.2.
(b) Notwithstanding the basis provisions of paragraph (a) above:
(i) the affiliation is solely due to common ownership by a private equity Company Entities may acquire and own, individually or similar investment fund; provided, thatcollectively, in each casethe aggregate, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) except as provided in clause (ii) below, not in excess of 5% of any class of stock of any financial institution if such stock is publicly traded and listed on any national or regional stock exchange or reported on the National Association of Securities Dealers Automated Quotation System (NASDAQ) and (B) ownership interests in any company that has an equipment leasing subsidiary or division to the extent that by ownership of such equity interests or otherwise the Company Entities do not "control" (as described in the definition of Subsidiary) such company, provided that the Company Entities shall not assist such equipment leasing subsidiary or division in competing with the Capital Entities and shall not provide such subsidiary or division with any "preferred provider" rights of the type set forth in Section 3.2;
(ii) the Company Entities may acquire or establish and own a bank, insurance company, savings and loan association or similar financial institution that does not (or, following such acquisition, ceases to) offer programs for equipment leasing or other types of equipment Financing with respect to Products, asset remarketing or Finance-related equipment insurance in connection with Products that compete with programs for such services offered by the Capital Entities;
(iii) the Company Entities may issue credit cards; provided that the Company Entities shall not use such credit cards to offer programs for equipment leasing or other types of equipment Financing with respect to Products, asset remarketing or Finance-related equipment insurance in connection with Products that compete with programs for such services offered by the Capital Entities (it being understood that for purposes of this Section 11(b)(iiiclause (iii) "Products" shall be subject to include Products (as defined in the prior approval of AT&T Operating Agreement or any Comparable Operating Agreement entered into pursuant to, and as defined in, the Board.AT&T Operating Agreement);
Appears in 1 contract
Covenant Not to Compete. (i) The Company and its affiliates are currently engaged Employee acknowledges that because of Employee’s position of trust with the Company, in the business course of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve (12) months after ExecutiveEmployee’s cessation of employment with the Company, Employee will be given access to or will become familiar with their trade secrets and with other Confidential Information, and that Executive Employee’s services have been and shall be of special, unique and extraordinary value to the Company. Therefore, Employee agrees that during Employee’s employment by the Company, Employee will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, either directly or indirectly indirectly, without prior written authorization from the Company, own, manage, operate, control, be employed by, perform services for, consult with, solicit business for, participate in, or participate in be connected with the ownership, management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or of any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes which is competitive with the business of the Company on Employee’s date of termination (which includes the business of providing technology solutions related to employee engagement, talent management, payroll and its affiliates as an immaterial part benefits administration, workforce management, and related services). Employee further agrees that for a period of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
18 months after Employee is no longer employed by the Company (ii) For purposes of this Section 11(bthe “Restriction Period”), throughout the United States and any third party or any business whose products compete includes any entity with other jurisdiction in which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that isconducting business, or is considering at the Board level to conduct business, as of the Termination Date, Employee shall not, in any capacity, whether individually or jointly, as a general partner inpartner, or manages or participates in managingemployee, a private or public fund (including a hedge fund) or other investment vehicleconsultant, which is engaged in venture capital investmentsofficer, leveraged buy-outsdirector, investments in public or private companies, other forms of private or alternative equity transactions, shareholder or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide servicesother capacity, directly or indirectly, own, manage, advise, counsel, assist or engage in the ownership, management or control of, or be employed or engaged by or otherwise affiliated or associated as a consultant, independent contractor or otherwise, with any other business that provides payroll processing services, payroll tax filing services, time and attendance solutions, human resource and benefit services, applicant tracking systems, or in any similar business that competes with the Company, and Employee will not assist any third parties to such Competing Business and compete with the basis Company in any way. Notwithstanding the foregoing, Employee may own, directly or indirectly, solely as an investment, securities of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) which are traded on any national securities exchange so long as Employee does not, directly or (B) indirectly, own 2% or more of this Section 11(b)(iii) shall be subject to the prior approval any class of the Boardsecurities of such entity.
Appears in 1 contract
Covenant Not to Compete. Employee acknowledges that the services ----------------------- he will render to Employer are of a special and unique character, any loss of which cannot adequately be compensated by damages or an action at law. In view of the unique value to Employer of the services of Employee for which Employer has contracted hereunder, the confidential information obtained by (ior disclosed to) The Company Employee as a consequence of his employment with Employer and its affiliates are currently engaged in the harm that would result to the business of branded Employer as a result of competition between Employee and generic pharmaceuticalsEmployer; as a material inducement to Employer to enter into this Agreement; and as a material inducement to Employer to pay Employee the compensation provided in this Agreement on the terms and conditions hereof, Employee covenants and agrees as follows:
(a) Employee will not (without the prior written consent of Employer (which consent may be withheld by Employer in its sole discretion for any reason)) for so long as he shall be employed by Employer commencing with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term Date and for a period ending on the first anniversary following the termination of twelve (12) months after Executive’s cessation of his employment with the CompanyEmployer under this Agreement for any reason whatsoever, that Executive will notfor his own account or otherwise, unless otherwise agreed to by the Chief Executive Officer of Endo and whether alone or in concert with others, directly or indirectly:
(following approval by the Chair i) compete with Employer in any manner in those segments of the Committee)publishing, anywhere market research, data management business or any other business activity in the world wherewhich Employer, at the time of Executive’s termination of employmenttermination, is substantially engaged or which Employer then is actively pursuing (the Company develops"Business"), manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated withparticipate in, render financial or other assistance to or be connected in any manner connected withwith the ownership, lend Executive’s name tomanagement, representatives, operations or render services or advice to, any third party or control of that part of any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business any of the Company and its affiliates Business, or solicit business as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.contemplated by paragraph (ii) below;
(ii) For purposes solicit or accept solicitations in competition with Employer in any Business of this Section 11(b)any advertiser, customer or client of Employer at the time of termination, or any person or entity who, within the one (1) year immediately preceding the time of termination, was an advertiser, customer or client of Employer or was solicited by Employer to be an advertiser, customer or client;
(iii) offer employment to or employ any person who is, at the time of such offer, or who had been within one (1) year prior to the time of such offer, (x) an employee of Employer or its subsidiaries or (y) an independent contractor or consultant of Employer engaged in editorial, research, skilled production or data management, managerial or sales work, unless, in the case of an employee, such person shall have been terminated by Employer without cause, or shall have terminated his or her employment with the consent of Employer, and shall have worked at least six months at another employer prior to the date when such person first is employed or offered employment by Employee; or
(iv) request, suggest or cause any past, present or future advertisers, customers or clients of the Employer, any third party of its subsidiaries or any of their affiliates engaged in the Business, to cancel or terminate, or change the terms of, any business whose products compete includes any entity relationship with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company Employer, or any of its affiliates is at or engaged in the time Business or request or cause any vendor, printer, manufacturer or material supplier to cancel, terminate or change the terms of, any relationship with the Employer, any of termination actively negotiating, and eventually concludes within twelve (12) months its subsidiaries or any of their affiliates related to the Employment Term, a commercial agreementBusiness.
(iiib) Notwithstanding the foregoing, it Employee shall not be a violation at any time, whether alone or in concert with others, directly or indirectly say or perform acts that will disparage the reputation, trade name, integrity and goodwill of this Section 11(b)the Employer, for Executive to provide services to (any of its publications or engage in activities involving): (A) a subsidiarybusinesses, division the Partnership or affiliate any of a Competing Business where such subsidiarythe Employer's officers, division or affiliate is employees, agents, directors, stockholders and/or affiliates, including, but not engaged in a Competing Business and Executive does not provide services limited to, or have MS Farm Journal Corporation and Xxxxxx Xxxxxx & Co., Inc. Employer shall not at any responsibilities regardingtime, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, whether alone or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide servicesconcert with others, directly or indirectly, make statements to third parties disparaging the reputation of Employee. For the avoidance of doubt, such Competing Business agreements by Employer and the basis Employee shall not be breached by any termination of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-Employee's employment obligations under this Agreement or the content of any pleadings, affidavits, depositions or singular matters relating to a dispute between Employer and Employee.
(c) Employee acknowledges and agrees that Employer conducts its Business throughout the continental United States and intends to conduct it in certain non-United States jurisdictions. The specific provisions of this covenant not to compete by Employee are limited to and binding only within those markets and geographical boundaries, including Executive’s obligations under Sections 10without limitation the continental United States, 11(a)in which Employer is engaged in Business or where Employer, 11(cat the time of termination, is actively and in good faith pursuing the engagement of Business.
(d) Employee acknowledges that this Section is an essential element of this Agreement, and 11(d) herein; providedthat but for this Section, furtherEmployer would not have entered into this Agreement. Employee also acknowledges that the provisions of this Section are reasonable and necessary to protect the legitimate interests of Employer and that any breach of the terms, that Executive’s provision covenants or agreements set forth in this Section shall be competitively unfair and may cause irreparable damage to Employer because of the special and unique services to be performed by Employee under this Agreement and that recovery of damages at law will not be an adequate remedy. Accordingly, Employee agrees that for any breach or threatened breach of the terms, covenants and agreements of this Section, in addition to any other rights or remedies Employer may have, Employer may apply to any court of law or equity having jurisdiction to enforce the specific performance of the foregoing provisions and may apply for injunctive relief against any act which would violate any such provisions. Employer agrees that for any breach of the agreement of Employer set forth in the last sentence of clause (or engagement in activities involving) any entity described in clauses (A) or (Bb) of this Section 11(b)(iii) shall be subject 9, in addition to the prior approval any other rights or remedies Employee may have, Employee may apply to any court of the Boardlaw or equity having jurisdiction for injunctive relief against statements by Employer that would violate such agreement.
Appears in 1 contract
Covenant Not to Compete. (ia) The Company and its affiliates are currently engaged in During the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term Employee’s service hereunder and for a period of twelve (12) months after Executivethereafter, regardless of the reason or method of termination, the Employee will not, directly or indirectly, for the Employee’s cessation own benefit or the benefit of any other person or entity:
(i) solicit in any manner, seek to obtain, or service the business of any customer of the Company, other than for the Company;
(ii) become an owner of any business, if such business competes with the Company;
(iii) become employed by or serve as an agent, independent contractor or representative of any of the following direct competitors of the Company – Altigen, Apropos, Artisoft, Aspect, Avaya, Cisco, Concerto, Telephony at Work – unless such employment or service is in a business unit that does not compete with the Company.
(iv) solicit the employment of or hire any employee of the Company, or encourage any employee to terminate his or her employment with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo ; or
(following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or v) prepare in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services to compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(iib) For purposes of this Section 11(b)Agreement, a “customer” shall be deemed to be any third party person, business, partnership, proprietorship, firm, organization or any corporation which has done business whose products compete includes any entity with which the Company or its affiliates which has had a product(s) licensing agreement during the Employment Term and been solicited or serviced in any entity with which manner, directly or indirectly, by the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months prior to the date of the Employment Termtermination of the Employee, a commercial agreementand the phrase “service the business of any customer” means the development, modification, enhancement or improvement of any product or service offered by the Company or which is reasonably related to the products or services offered by the Company. The Employee hereby acknowledges that, by virtue of the Employee’s position and access to information, the Employee will have advantageous familiarity and personal contacts with the Company’s customers, wherever located, and that the restrictions contemplated hereby are reasonable for the protection of the Company’s goodwill and customer base, and the Company’s efforts in the development of such customers.
(iiic) Notwithstanding If the foregoing, it shall Employee does not be a violation comply with the provisions of this Section 11(b)7, for Executive the twelve (12) month period of non-competition provided herein shall be tolled and deemed not to run during any period(s) of noncompliance, the intention of the parties being to provide services to twelve (12) full months of non-competition by the Employee after the termination or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) expiration of this Section 11(b)(iii) shall be subject to the prior approval of the BoardAgreement.
Appears in 1 contract
Samples: Employment Agreement (Interactive Intelligence Inc)
Covenant Not to Compete. (i) The Company and its affiliates are currently engaged in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, agrees that during the Employment Term and for a period of twelve (12) months after Executive’s cessation of employment with the Company, that Executive Period he will not, unless otherwise agreed devote full-time to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part not engage in any type of its overall businessbusiness which engages in the medical internet, online pharmacy and information services or any other related businesses, including but not limited to all aspects of the Business. Subject to such full-time requirement and the restrictions set forth below in this Section 8 and Section 3(c) above, the Executive shall be permitted to continue his existing business investments and activities and may pursue additional business investments; provided that the Executive recuses may not serve as a director or officer of any public company resulting from such business investments if such public company is in competition with the Company. The Executive fully and completely agrees that, from all matters relating to such business.
the end of the Employment Period through a one (1) year period thereafter, he shall not, within the Protected Territory (as defined hereinafter), (i) invest in, manage, consult or participate in any way in any other business in competition with the Business (in either an active or passive manner), (ii) participate in or advise any business which has business activities similar to the Business are a relevant business segment, or (iii) act for or on behalf of any business that intends to enter or participate in any business which has any business activities similar to the Business, in each case unless the independent members of the Company's Board determines that such action is in the best interests of the Company. Notwithstanding the foregoing, the Executive may purchase stock as a stockholder in any publicly traded company, including any company which is involved in the development or operation of a medical internet site in the Protected Territory; provided that the Executive does not own (together or separately or through his affiliates) more than five percent (5%) of any company (other than the Company) engaged in a business which is competitive with the Business of the Company within the Protected Territory. In addition, the Executive shall not invest (directly or indirectly) in any competitive business operating within the Protected Territory unless the independent members of the Company's Board determines that such an investment is in the best interests of the Company. For purposes of this Section 11(b)Agreement, any third party or any business whose products compete includes any entity with which the "Protected Territory" shall mean that area within a one hundred (100) mile radius of the principal offices of the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time Date of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreementTermination.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Board.
Appears in 1 contract
Covenant Not to Compete. (a) For the purposes of this Section 2, the "Company" shall be deemed to include any entity directly or indirectly controlling, controlled by or under common control with FORE Systems, Inc. Through the period beginning on the Effective Date and ending on July 22, 1999 (the "Non-Competition Period"), Employee shall not:
(i) The directly or indirectly induce or attempt to influence any employee of the Company and its affiliates are currently to terminate his or her employment with the Company;
(ii) contact, directly or indirectly, any person or entity (a "Person") who is or was a customer of the Company or otherwise has or had a business relationship with the Company for purposes of competing, or aiding any Person to compete, directly or indirectly, with the Company in any business engaged in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution marketing and sales & marketing. To protect the Confidential Information and other trade secrets selling of the Company following computer networking equipment: ATM switches, ATM adapters, ATM video devices, Ethernet or hybrid Ethernet/ATM switches and its affiliates as well as the goodwill ATM access and competitive business of the Company and its affiliates, Executive agrees, concentrator devices (a "Directly Competitive Business") during the Employment Term and for Non-Competition Period; or
(iii) engage in, directly or indirectly, whether as a period of twelve (12) months after Executive’s cessation of employment with the Companyprincipal, that Executive will notpartner, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee)director, officer, agent, employee, consultant or in any other capacity, or have any direct or indirect ownership interest in any Person anywhere in the world wherewhich is engaged, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, either directly or indirectly manageindirectly, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Directly Competitive Business”); provided, however, that Executive may this Section 2 shall not preclude the Employee from owning, as a passive investor, up to ten percent (10%) in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, Person which is engaged in venture capital investments, leveraged buy-outs, investments a Directly Competitive Business.
(b) The Employee expressly acknowledges that the covenants contained in public or private companies, other forms this Section 2 are of private or alternative equity transactions, or in public equity transactions, vital importance to the Company and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding such covenants are a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, material inducement to such Competing Business and the basis of the affiliation is solely due Company to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under enter into this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement pay to the Employee the compensation and other benefits set forth in activities involving) any entity described in clauses (A) or (B) Section 3 hereof. Any breach of this Section 11(b)(iii) shall 2 by the Employee will cause the Company to suffer irreparable injury. In the event of any such breach by the Employee of this Section 2, the Company will be subject entitled, in addition to the prior approval any other remedies available to it at law or equity, to injunctive relief, including, without limitation, a temporary restraining order, without any necessity of the Boardfirst proving any harm.
Appears in 1 contract
Covenant Not to Compete. (a) As an inducement to Parent and Merger Sub to enter into the Merger Agreement, in order to preserve the goodwill of the Company being acquired by Parent (through its wholly-owned subsidiary, Merger Sub) pursuant to the Merger Agreement and upon acquisition of Stockholder’s shares of Company Common Stock, and in consideration for the payments to Stockholder under the Merger Agreement, Stockholder hereby covenants and agrees that, during the Restricted Period, the Stockholder shall not, without the prior written consent of the Parent:
(i) The Company and its affiliates are currently engaged in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve (12) months after Executive’s cessation of employment with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly indirectly, own, manage, operate, join, control, promote or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete finance (in whole or in part with part) or be connected as an officer, director, employee, stockholder, Affiliate, promoter, manager, partner, principal, licensor, sublicensor, licensee, sublicensor, agent, representative, advisor (whether paid or not) or consultant of, for or to, any Person engaged directly or indirectly in any activity in the products United States that is engaged in the administration of pension and/or benefit plans as presently or services (both on at any time during the market and in development) material term of this Agreement conducted or proposed to be conducted by the Company or any business unit on (the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Restricted Business”); provided, however, that Executive may the Stockholder shall not be deemed to be in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business contravention of the Company and its affiliates provisions of Section 3 if the Stockholder owns shares as an immaterial part of its overall businessa passive investor in a publicly traded entity engaged in a Restricted Business, provided that Executive recuses Executive fully and completely from all matters relating the number of shares of such entity’s capital stock that are owned beneficially or of record by the Stockholder and/or the Stockholder’s Affiliates collectively represent less than three percent (3%) of the total number of shares of such entity’s outstanding capital stock; provided further that the Stockholder shall not be deemed to such business.be in contravention of the provisions of this Section 3 by virtue of Stockholder’s enrollment (or continued enrollment) solely as a plan participant in a pension or benefit plan available to the Stockholder in his capacity as an employee of the Company, Parent or any other entity by which the Stockholder may be employed; or
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which disparage the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which Parent or intentionally cause the Company or Parent to be viewed in a negative light by any of client or prospective client or in its affiliates industry generally, or take any action that is at the time of termination actively negotiating, and eventually concludes within twelve (12) months designed or intended to cause any current or prospective client of the Employment Term, a commercial agreementCompany to terminate its business relationship with the Company.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Board.
Appears in 1 contract
Samples: Non Competition and Non Solicitation Agreement (United Benefits & Pension Services, Inc.)
Covenant Not to Compete. (a) During the period commencing on the Closing Date and ending five years thereafter (the "Term"):
(i) The Company In order to preserve the value of the Assets and its affiliates are currently the Interests, each of KKI, Xxxx and HL agrees that it will not, directly or indirectly, as a partner, officer, employee, director, stockholder, investor, lender, proprietor, consultant, representative, agent or otherwise become or be interested in, or associate with or render assistance to, any person (other than Buyer) engaged in the business ownership, operation and/or management of branded and generic pharmaceuticalsany amusement park, with a focus on product developmenttheme park, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets water park or family entertainment center located (A) within 250 miles of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve Park or (12B) months after Executive’s cessation of employment with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world wherecase of acting as a lender, at within the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); providedUnited States. The foregoing provisions shall not, however, that Executive may prohibit the ownership by any person of not more than two percent (2%) of any class of outstanding equity securities listed for trading on a national securities exchange or publicly traded in the over-the-counter market of any person (other than Buyer) which engages in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such businessbusinesses.
(ii) For purposes Each of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term KKI and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, Xxxx agrees that it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide serviceswill not, directly or indirectly, during the Term, for its own benefit or for the benefit of any other person knowingly solicit the professional services of any employee, agent or consultant of Buyer or any Affiliate of Buyer or otherwise interfere with the relationship between Buyer or any Affiliate and any of such persons.
(b) After the Closing, neither KKI nor Xxxx nor any of KKI's Representatives will, directly or indirectly, use, disclose or make available to such Competing Business and anyone (other than Buyer) any confidential information concerning the basis ownership and/or operation of the affiliation is solely due Park (the "Confidential Information"), except to common ownership the extent that such Confidential Information has been made publicly available by Buyer. The Confidential Information includes, without limitation, the business practices, financial information, customer and prospective customers names, suppliers and prospective suppliers names, leads and account information, mailing lists, computer programs, advertising campaigns (including, without limitation, displays, drawings, memoranda, designs, styles or devices), employee names, compensation and benefit information of KKI pertaining to the Park.
(c) The parties agree that a private equity violation of the foregoing agreements not to compete or similar investment fund; provideddisclose, thator any provision thereof, will cause irreparable damage to Buyer, and Buyer shall be entitled (without any requirement of posting a bond or other security), in each caseaddition to any other rights and remedies which it may have, Executive shall remain bound by all at law or in equity, to an injunction enjoining and restraining KKI, HL, Xxxx and/or KKI's Representatives from doing or continuing to do any such act or any other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (violations or engagement in activities involving) any entity described in clauses (A) or (B) threatened violations of this Section 11(b)(iii4.9.
(d) The parties hereto agree that the covenant set forth in this Section 4.9 is reasonable with respect to its duration, geographical area and scope. If the final judgment of a court of competent jurisdiction declares that any term or provision of this Section 4.9 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 subject to enforceable as so modified after the prior approval expiration of the Boardtime within which the judgment may be appealed.
Appears in 1 contract
Covenant Not to Compete. (ia) The Company In consideration for Employer entering into this Agreement, save for the current activities of the other businesses that Employee is at the date of this Agreement involved in as a result of his relationship and its affiliates positions with various of the Trans Continental and Xxxxxxxx Group's of companies, Employee covenants and agrees that during the Service Period and for the eighteen (18) months period thereafter, Employee will, neither individually nor on behalf of any other person or entity, without the express prior written consent of Employer, directly or indirectly, provide to any person or entity any services that are currently engaged the same or similar to the services Employee provided to Employer in respect to any business activities of such other person or entity which compete with the Internet driven casting, modeling and athletic services business of Employer. Because the Employer's business is international in scope, Employee acknowledges and agrees that the above restrictions shall apply to prevent Employee from providing the prohibited services to any person or entity, wherever located, if the competing business is conducted in any country in which Employer conducts, or, at the time of termination, reasonably expected to conduct, business. Upon the termination of Employee, the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets Employer is deemed to include all business activities of the Company Employer (and its affiliates as well as any parent or subsidiary of Employer) that Employer (and any parent or subsidiary of Employer) engaged in during the goodwill one year period prior to the date of termination and competitive all business activities that the Employer had made substantial plans to engage in. Employee will undertake no activities that may lead Employee to compete with or to acquire rival, conflicting or antagonistic interests to those of Employer with respect to the business of Employer, whether alone, as a partner, or as an officer, director, employee, independent contractor, consultant or shareholder holding 15% or more of the Company and its affiliatesoutstanding voting stock of any other corporation, Executive agreesor as a trustee, during fiduciary or other representative of any other person or entity.
(b) During the Employment Term Service Period and for a period of twelve eighteen (1218) months after Executive’s cessation of employment with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide servicesEmployee will not, directly or indirectly, on its behalf or on behalf of any other person or entity, solicit or induce, or hire, any other employee of Employer or any parent or affiliate to such Competing Business and leave his or her employment, or solicit or induce, or contract with, any consultant or independent contractor to sever that person's relationship with Employer.
(c) If any court shall determine that the basis duration of geographical limit of any covenant contained in this Section 10 is unenforceable, it is the intention of the affiliation is solely due parties that covenant shall not thereby be terminated but shall be deemed amended to common ownership by a private equity or similar investment fund; providedthe extent required to render it valid and enforceable, that, such amendment to apply only in each case, Executive shall remain bound by all other post-employment obligations under the jurisdiction of the court that has made such adjudication.
(d) Employee acknowledges and agrees that the covenants contained in Sections 10 and 11 hereof are of the essence in this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, furtherAgreement, that Executive’s provision each of services such covenants is reasonable and necessary to (or protect and preserve the interests, properties, and business of Employer, and that irreparable loss and damage will be suffered by Employer should Employee breach any of such covenants. Employee further represents and acknowledges that he shall not be precluded from gainful engagement in activities involvinga satisfactory fashion by the enforcement of these provisions.
(e) any entity described This Section 11 shall not be effective in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Boardevent Employee is terminated by Employer without Cause.
Appears in 1 contract
Covenant Not to Compete. (i) The Company Executive acknowledges and its affiliates are currently engaged accepts that as the President and CEO of the Company, Executive will have access to Confidential Information and Trade Secrets, and that Executive possesses special, unique and extraordinary skills and knowledge in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets activities of the Company and its affiliates as well as the goodwill and competitive business ICC Holdings. The success or failure of the Company and its affiliatesICC Holdings hinges, in part, upon the President and CEO’s discharge of Executive’s duties and obligations hereunder. Accordingly, Executive agreesagrees that for any reason (whether voluntary or involuntary), during Executive shall not, directly or indirectly, for himself or for any other person, firm, ICC Holdings, partnership, association or other entity:
(a) During the Employment Term and for a period of twelve two (122) months years after Executive’s cessation the Date of employment with the CompanyTermination, that Executive will not, unless otherwise agreed to by the Chief Executive Officer regardless of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of how Executive’s employment hereunderwas terminated, directly or indirectly manageown, operate, manage, consult with, advise, control, or solicit, participate in the management, operation, management or control of, be employed by, associated withmaintain or continue any interest whatsoever in any business which competes directly with the Company including, but not limited to; Society Insurance, Badger Mutual Insurance Company, Allied Insurance, Argo Group International Holdings, Ltd., Farmers Insurance Group, Founders Insurance Company, Hanover Insurance Group, Inc., Midwest Family Mutual Insurance Company, Specialty Risk of America, US Insurance Company, or any start-up company which provides liquor liability insurance in one or more of the same markets, any time during the last two (2) years of Executive’s employment in the insurance industry as carried on by the Company in any manner connected withstate in which the Company is licensed to transact business;
(b) During the Term and for a period of two (2) years after the Date of Termination, lend regardless of how Executive’s name toemployment was terminated, solicit any of the actual or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to targeted prospective customers of the Company or its affiliates, subsidiaries or successors in interest with respect to any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up matters related to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes competitive with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.Company; or
(iic) For purposes During the Term and for a period of this Section 11(b)two (2) years after the Date of Termination, regardless of how Executive’s employment was terminated, attempt to induce, advise, request, solicit, employ, or enter into any third party consulting or contractual arrangement with any business whose products compete includes any entity with which Key Employee (as defined below) of the Company Company, its affiliates, subsidiaries or successors in interest, unless such employee or former employee has not been employed by the Company, its affiliates has had a product(s) licensing agreement affiliates, subsidiaries or successors in interest during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months prior to Executive’s attempt to employ him; and he will not enter into a contract or engage in discussions or negotiations with potential investors in preparation to do any of the Employment Termactivities prohibited in subsections 12(a) through (c). For purposes of this Agreement, a commercial agreement“Key Employee” shall mean a person or employee: (i) an employee of the Company who is important to the Company and/or ICC Holdings because of the Company’s or ICC Holdings’ actions, such as investment of money and time; (ii) an employee of the Company who has gained a high level of influence, credibility, notoriety, etc.; and (iii) an employee of the Company who has the ability to harm or threaten the Company’s or ICC Holdings’ legitimate business interest.
(d) Executive specifically agrees that the two (2) year period referred to herein shall be extended by the number of days included in any period of time during which Executive is or was engaged in the above-referenced activities.
(e) By signing this Agreement, Executive acknowledges that Executive has had ample time and opportunity to have this covenant not to compete reviewed by Executive’s independent legal counsel, expressly agrees with every term and condition contained herein, and that the covenant: (i) is reasonable as to time and geographical area; (ii) does not place any unreasonable burden upon Executive; and (iii) will not harm the general public. Executive further acknowledges, understands and agrees that the covenant not to compete described herein is necessary for the Company’s protection because of the nature and scope of the Company’s business and Executive’s position with and services for the Company. Further, Executive acknowledges and agrees that, in the event of Executive’s breach of this covenant not to compete, monetary damages will not sufficiently compensate the Company for its injury caused thereby, and Executive accordingly agrees that in addition to such monetary damages, Executive may be restrained and enjoined from any continuing breach of this covenant not to compete without any bond or other security being required by any court. Executive acknowledges and agrees that any breach of this covenant not to compete by Executive will result in irreparable damage to the Company.
(f) Notwithstanding any of the foregoing, it shall not be a violation in the event that any of the provisions in this Section 11(b), for Executive 12 shall be held to provide services to (be invalid or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regardingunenforceable, the Competing Business; remaining provisions thereof shall nevertheless continue to be valid and enforceable as though the invalid or unenforceable parts had not been included therein. In the event that any provision set forth in this Section 12 relating to the time period or the area of restriction or related aspects shall be declared by a court of competent jurisdiction to exceed the maximum restrictions such court deems reasonable and enforceable, the time period or areas of restriction or related aspects deemed reasonable and enforceable by the court shall become and thereafter be the maximum restriction in such regard, and the restriction shall remain enforceable to the fullest extent deemed reasonable by such court.
(Bg) The parties further agrees that if Executive breaches any entity that isof the covenants or promises made in this Section 12, the Company will be entitled to enforce its rights by injunction proceedings restraining Executive from such breaches or is a general partner in, or manages or participates threatened breaches without bond. Neither the institution of an injunction proceeding nor the granting of any injunctive relief therein shall in managing, a private or public fund (including a hedge fund) or any way limit the right of the Company to other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, relief available at law or in public equity transactions, equity. The parties further agree that the prevailing party shall be entitled to recover its attorney’s fees and that might make an investment which Executive could not make directly, provided that all litigation expenses incurred in connection therewith, Executive does not provide services to, engage the enforcement of any provision contained in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Board12(g).
Appears in 1 contract
Covenant Not to Compete. (ia) The Company and its affiliates are currently engaged in the business of branded and generic pharmaceuticals, with During Xxxxx'service hereunder as either a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term consultant or an employee and for a period of twelve (12) months after Executive’s cessation thereafter, regardless of the reason or method of termination, Xxxxx will not, directly or indirectly:
(i) solicit in any manner, seek to obtain, or service the business of any customer of the Company, other than for the Company, in connection with any transactions, business plan, project or endeavor which would have an adverse affect upon the Company or upon the Company's relations with such customer;
(ii) become an owner of any business, if such business competes with the Company;
(iii) become employed by or serve as an agent, independent contractor or representative of any business which competes with the Company; or
(iv) solicit the employment of any Employee of the Company, or encourage any Employee to terminate his or her employment with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(iib) For purposes of this Section 11(b)Agreement, a "customer" shall be deemed to be any third party person, business, partnership, proprietorship, firm, organization or any corporation which has done business whose products compete includes any entity with which the Company or its affiliates which has had a product(s) licensing agreement during the Employment Term and been solicited or serviced in any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide servicesmanner, directly or indirectly, by the Company within eighteen (18) months prior to such Competing Business the date of the termination of Xxxxx and the basis phrase "service the business of any customer" means the development, modification, enhancement or improvement of any product or service offered by the Company or which is reasonably related to the products or services offered by the Company. Xxxxx hereby acknowledges that, by virtue of his position and access to information whether as a consultant or as an employee, he will have advantageous familiarity and personal contacts with the Company's customers, wherever located and that the restrictions contemplated hereby are reasonable for the protection of the affiliation is solely due to common ownership by a private equity or similar investment fund; providedCompany's goodwill and customer base, that, and the Company's efforts in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(cthe development of such customers.
(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) If Xxxxx does not comply with the provisions of this Section 11(b)(iii9, the twelve (12) month period of non-competition provided herein shall be subject tolled and deemed not to run during any period(s) of noncompliance, the prior approval intention of the Boardparties being to provide twelve (12) full months of non-competition by Xxxxx after the termination or expiration of this Agreement.
Appears in 1 contract
Samples: Consulting and Employment Agreement (Interactive Intelligence Inc)
Covenant Not to Compete. You agree that our Confidential Information is valuable to us, and the restrictions on your future employment contained in this Agreement are reasonably necessary in order for us to remain competitive in our business. You agree that during the course of your employment with the Company you have learned and will learn trade secrets and valuable confidential information of the Company, have developed and will develop substantial business relationships with specific customers and prospective customers or clients of the Company and entities doing business with the Company, including homeowners associations, and have developed and will develop goodwill on behalf of the Company in every geographic area in which the Company owns or manages properties or has plans to do so. You have participated and will participate in specialized training on behalf of the Company. In consideration of our execution of the Employment Agreement and the compensation payable to you under the Employment Agreement, and in recognition of our heightened need for protection from abuse of relationships formed or Confidential Information garnered, you covenant and agree that during the term of your employment agreement and for one (1) year after termination (excluding your termination without Cause as defined therein), you will not directly or indirectly engage in the _______ _______ Executive Company business of the Company, which shall include without limitation, timesharing, club or affiliates that (i) The Company and its affiliates are currently engaged operate a timeshare, interval, points membership or vacation membership resort or (ii) have a marketing or sales office that engages in the business of branded the Company. You further agree that for a period of two (2) years following your separation from the Company, you shall not directly or indirectly, whether for pay or otherwise, alone or with or on behalf of others, (a) solicit or contact for the purpose of providing, or provide (regardless of whether you engaged in solicitations) business services of the same type provided by the Company to any homeowners association with which you have conducted business or with which you have sought to do business on behalf of the Company; (b) divert or attempt to divert any homeowners association with which you have conducted business or attempted to conduct business on behalf of the Company to enter into business relationships with any individuals or entities of the same or similar type as the relationships with which they have conducted with the Company during your employment with the Company; (c) assist, encourage, or induce any homeowners association with which you have dealt on behalf of the Company during your employment with the Company to terminate or reduce its business relationship with the Company; (d) solicit or contact any members, prospective purchasers, guests and generic pharmaceuticalscustomers of the Company to reduce or terminate their relationship with the Company or to enter into relationships with individuals or entities performing or offering services in competition with the Company; (e) provide services to any prospective purchasers, guests and customers of the Company in competition with the Company; (f) solicit, recruit, or hire (whether as a focus on product developmentconsultant, clinical developmentemployee, manufacturingor independent contractor) any individual who is or who was in the six (6) months preceding the solicitation, distribution recruitment, or hiring, a team member/employee of the Company; (g) assist other individuals or entities to do the acts set forth in this Section, In particular, you shall not perform business services for Starwood Property Management or Vacation Resorts International during the Restricted Period. It shall not be a defense to a claim of breach of this provision that any homeowners association, owner, prospective purchaser, or customer first contacted you to seek your services. These restrictions shall apply in any jurisdiction and sales & marketing. To protect location in which the Confidential Information and other Company currently conducts or has active plans to conduct business, Further, following your separation, you agree that you shall not use or disclose any confidential information or trade secrets of the Company and its affiliates as well as the goodwill and competitive business without written authorization of the Company or as required by law and its affiliates, Executive agrees, during the Employment Term and for a period of twelve (12) months after Executive’s cessation of employment with shall not make false or defamatory statements regarding the Company, its business, and its officers, directors and employees. To the extent that Executive will not, unless otherwise agreed you have any questions as to by whether any of these restrictions apply to any specific employment or business opportunity you wish to consider you shall contact the Chief Executive Officer in writing setting forth the activities in which you wish to engage and seeking a determination of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, whether the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date views such proposed activities as being prohibited by this Agreement. You agree that constitutes more than 5% of the Company’s revenue on the termination date (these prohibitions do not prohibit you from earning a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be living subject to the prior approval of the Boardobligations contained in this Agreement.
Appears in 1 contract
Samples: Employment Agreement (Diamond Resorts International, Inc.)
Covenant Not to Compete. (i) The Company Employee hereby acknowledges and its affiliates are currently engaged in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agreesagrees that, during the Employment Term and for a period term of twelve (12) months after ExecutiveEmployee’s cessation of employment with the Company: (i) the Company has expended and will continue to expend considerable time, that Executive expense, and organizational resources to develop and maintain its reputation and good-will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, industry and among its customers and clients and prospective customers and clients; (ii) the Company develops, manufactures, distributes, markets or sells will rely upon the reputation and good-will it has established to successfully continue its products, except in business; (iii) the course Company will entrust such reputation and good-will to Employee during the term of ExecutiveEmployee’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part and will provide Employee with opportunities to become acquainted with the products or Company’s customers, clients, suppliers, licensees, business partners, employees, contractors, and agents, to establish business relationships with them, and to have access to records detailing their business activities with the Company; (iv) Employee has become, and will continue to become, familiar with the Company’s trade secrets and with other Confidential Information, as defined in Exhibit 4.1; (v) Employee’s services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% have been and will continue to be unique in nature and of extraordinary value to the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (yvi) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall businesswould be irreparably damaged if Employee were to provide similar services, provided that Executive recuses Executive fully and completely from all matters relating or reveal trade secrets or Confidential information, to such business.
(ii) For purposes of this Section 11(b), any third party person or any business whose products compete includes any entity competing with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does similar business. Accordingly, Employee agrees as follows:
8.1.1 For a period of one year immediately following the termination of Employee’s employment, regardless of whether Employee’s termination is voluntary or involuntary, with or without cause, Employee shall not provide services toengage as an officer, director, partner, consultant, managerial employee, agent, principal, individual owner or proprietor, or have otherwise, either for himself or on behalf of any responsibilities regardingother person, the Competing Business; (B) any entity that isfirm, partnership, corporation, association, or is a general partner inother entity, in any development, planning, marketing, sales, management, research or manages or participates operational activities in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is any business engaged in venture capital investments, leveraged buy-outs, investments in public the development of compound classes or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and technology platforms that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities the Company was actively involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and with during the basis period of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including ExecutiveEmployee’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Boardemployment.
Appears in 1 contract
Samples: Employee Employment Agreement (Oncovista Innovative Therapies, Inc)
Covenant Not to Compete. Executive acknowledges ----------------------- that the Company (iincluding its subsidiaries and affiliates) The Company has developed a valuable and extensive worldwide trade in its affiliates are currently engaged in the business of branded products and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the that its Confidential Information and other trade secrets customers, which have been established and maintained at substantial expense, are of great value to the Company. The Company will permit Executive to utilize, during his employment and in pursuit of the Company Company's business, the Company's Confidential Information and will provide training about its affiliates as well as business and operations, including the goodwill Company's products, customers and competitive business of customer requirements. Executive covenants to the Company and its affiliatesthat neither he nor any corporation, Executive agreespartnership, business firm or entity in which he may now or hereafter have an equity interest (excepting a publicly-traded corporation in which he has a less than 1% interest for investment purposes), or by which he may be employed or otherwise affiliated as an employee, representative, consultant, or otherwise, nor any person subject to his control or direction will, during the Employment Term and for a period entire "Period of twelve (12) months after Executive’s cessation of employment with this Covenant Not to Compete" as hereafter defined, within the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder"Trade Area" hereafter specified, directly or indirectly manageindirectly:
i. Conduct, operateengage in, controlbe connected with, have any interest in, consult for, or participate in the management, operation, aid or control of, be employed by, associated with, or assist in any manner connected withany person, lend Executive’s name tofirm or business entity (whether a corporation, partnership, proprietorship or render otherwise) in engaging in the development, manufacture, distribution, sale or application of services or advice toproducts like or similar to any services or products now being developed, any third party manufactured, marketed or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to distributed by the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall businessaffiliates, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b)or which may be developed, any third party manufactured, marketed or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which distributed by the Company or any of its affiliates is at any time during Executive's employment with the time Company or any of termination actively negotiatingits affiliates; or
ii. In any way solicit, and eventually concludes within twelve (12) months divert, take away or interfere with any of the Employment Termbusiness, a commercial agreement.
(iii) Notwithstanding the foregoingcustomers, it shall not be a violation of this Section 11(b), for Executive to provide services to (trade or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis patronage of the affiliation is solely due Company or its subsidiaries or affiliates; or
iii. Seek to common ownership by a private equity employ or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) otherwise retain any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval person who was an employee of the Board.Company or any of its affiliates during
Appears in 1 contract
Samples: Executive Agreement (Petrolite Corp)
Covenant Not to Compete. (i) The Company and its affiliates are currently engaged in Without the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets consent of the Company and its affiliates as well as Company, the goodwill and competitive business of the Company and its affiliatesParticipant shall not, Executive agreesdirectly or indirectly, at any time during the Employment Term Participant’s service on the Company’s Board or the Board of any of its Subsidiaries, and for a period of twelve eighteen (1218) months after Executivefollowing the termination of Participant’s cessation of employment relationship with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells and its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control ofSubsidiaries for any reason, be employed by, associated with, or in any manner way connected withas an owner, lend Executive’s name toinvestor, partner, director, officer, employee, agent, or render services or advice to, any third party or consultant with any business whose entity directly engaged in the production and/or sale of products competitive with any material product, offering or services compete in whole or in part with the products or services (both on the market and in development) material to business of the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”)its Subsidiaries; provided, however, that Executive may in any event (x) own up the Participant shall not be deemed to a 5% passive ownership have breached this undertaking if his sole relation with such entity consists of his holding, directly or indirectly, an equity interest in any public such entity not greater than two percent (2%) of such entity’s outstanding equity interest, and the class of equity in which the Participant holds an interest is listed and traded on a broadly recognized national or private entity and (y) serve regional securities exchange; provided, further, that in the event that Participant’s service on the Company’s Board or the board of any Competing Business of its Subsidiaries terminates for reasons related to a change in control, this restriction shall not apply. A Participant’s investment in another business entity shall not be deemed to be directly competitive with the Company’s operations or otherwise prohibited if: (a) it was known to the independent directors at the time the Participant joined the Company’s Board; (b) reviewed and approved by disinterested independent directors; or (c) of a passive, minority investment nature and the disinterested independent directors have determined that competes the activities undertaken by such other business entity are not directly in competition with the Company as there are no corporate opportunities that are being taken from the Company by virtue of the Participant’s investment. The Participant acknowledges that: (a) the services to be performed by him for the Company as a member of the Company’s Board are of a special, unique, unusual, extraordinary, and intellectual character; (b) the business of the Company and its subsidiaries is worldwide in scope and its business opportunities are located throughout the world; (c) the Company and its Subsidiaries and affiliates as an immaterial compete with other businesses that are or could be located in any part of its overall business, provided that Executive recuses Executive fully the world; and completely from all matters relating to such business.
(iid) For purposes the provisions of this Section 11(b)13 are reasonable and necessary to protect the Company’s business. If any covenant in this Section 13 is held to be unreasonable, arbitrary, or against public policy, such covenant will be considered to be divisible with respect to scope, time, and geographic area, and such lesser scope, time, or geographic area, or all of them, as a court of competent jurisdiction may determine to be reasonable, not arbitrary, and not against public policy, will be effective, binding, and enforceable against the Participant. The period of time applicable to any third party covenant in this Section 13 will be extended by the duration of any violation by the Participant of such covenant. For so long as while the covenants under this Section 13 are in effect, the Participant will give notice to the Company of the identity of the Participant’s new employer or any new company whose board Participant may join or otherwise affiliate with, within two business whose products compete includes days after accepting any entity with which such affiliation. The Company may notify such company that the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates Participant is bound by this Award Agreement and, at the time of termination actively negotiatingCompany’s election, and eventually concludes within twelve (12) months of the Employment Term, furnish such company with a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation copy of this Section 11(b), for Executive to provide services to (Award Agreement or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Boardrelevant portions thereof.
Appears in 1 contract
Samples: Performance Share Unit Award Agreement (Teton Energy Corp)
Covenant Not to Compete. In exchange for the Severance Benefits and Other Benefits, you agree that beginning on the date you execute this Agreement and continuing during the Leave of Absence Period: (ia) The you will not participate in recruiting or soliciting any Company and its affiliates are currently engaged in employees; (b) you will not communicate to any person or entity regarding the business nature, quality of branded and generic pharmaceuticalswork, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets special knowledge or personal characteristics of any person employed by the Company and its affiliates as well as without the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve (12) months after Executive’s cessation of employment with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% prior written consent of the Company’s revenue on Senior Vice President, Chief People Officer (or successor having similar responsibilities within the termination date Company); and (a c) without the consent of the Company’s Chief Executive Officer, who will consider and respond to any request within ten business days, you will not accept employment with or perform services for (1) The Wm. Wrigley Company or (2) any company that produces or sells cocoa-based products, including without limitation chocolate, cocoa-based snacks including confectionery, cocoa-based beverages or other products containing chocolate, cocoa or cocoa butter (the “Competing BusinessCompetitive Businesses”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it provision shall not be a violation of this Section 11(b), for Executive to provide violated by your accepting employment with or providing services to to:
(or engage in activities involving): (Ai) a subsidiary, division or affiliate unit (“Group”) of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any an entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide servicesengages, directly or indirectly, to such Competing Business and the basis in any of the affiliation Competitive Businesses, so long as the Group for which you work is solely due to common ownership by not engaged in any of the Competitive Businesses, or
(ii) a private equity parent company for which the gross revenue from Competitive Businesses constitutes less than 10% of the parent company’s gross consolidated revenue for its most recently completed fiscal year, so long as you do not participate directly in such Competitive Business, or
(iii) an entity with annual gross revenue less than $50 million which does not sell confectionery and which has not more than 30% of its revenue from products that have either (a) cocoa, cocoa butter or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) chocolate as a primary ingredient or (Bb) of this Section 11(b)(iii) shall be subject to cocoa or chocolate as the prior approval of the Boardprimary characterizing flavor.
Appears in 1 contract
Samples: Confidential Agreement and General Release (Hershey Co)
Covenant Not to Compete. During the period commencing on the Closing Date and ending on the earlier of (i) The Company and the date Buyer or its affiliates are currently engaged in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets successors or assigns shall cease operation of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve (12) months after Executive’s cessation of employment with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets Business or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which five years thereafter (the Company or its affiliates has had a product(s"TERM"):
(a) licensing agreement during In order to preserve the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months value of the Employment TermAssets being sold to Buyer, a commercial agreement.
(iii) Notwithstanding each of Seller, FRE and the foregoing, Shareholders agrees that it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide serviceswill not, directly or indirectly, to such Competing Business as a partner, officer, employee, director, stockholder, proprietor, consultant, representative, agent or otherwise become or be interested in, or associate with or render assistance to, any person engaged in the ownership, operation and/or management of any (i) water park located within 100 miles of the Park; or (ii) amusement park, theme park, mini-theme park or family amusement or entertainment center located within 50 miles of the Park, provided that Seller and the basis Shareholders may engage in the ownership, operation and/or management of a family entertainment center within such 50 mile radius provided that such center is within a one (1) mile radius of the affiliation is solely due to common locations specified in SCHEDULE 4.9 within the cities of San Xxxxxx, San Xxxxx, Union City and San Xxxx. Each of R&B and the Members agrees that it will not directly or indirectly, as a partner, officer, employee, director, stockholder, proprietor, consultant, representative, agent or otherwise become or be interested in, or associate with or render assistance to, any person engaged in the ownership, operation, and/or management of any waterpark located within 50 miles of the Park. The foregoing provisions shall not, however, prohibit (x) the ownership by any person of not more than five percent (5%) of any class of outstanding equity securities listed for trading on a private equity national securities exchange or publicly traded in the over-the-counter market which engages in any of such businesses; or (y) the employment of Xxxxxx Xxxxx by any person.
(b) Each of Seller, the General Partners and the Principals agrees that it will not, directly or indirectly, during the Term, for its own benefit or for the benefit of any other entity or person knowingly solicit the professional services of any employee, agent or consultant of Buyer or any Affiliate of Buyer or otherwise interfere with the relationship between Buyer or any Affiliate and any of such persons.
(c) After the Closing, neither Seller, nor any General Partner, Principal or Seller's Representative will, directly or indirectly, use, disclose or make available to anyone (other than Buyer) any confidential information concerning the ownership and/or operation of the Park (the "CONFIDENTIAL INFORMATION"), except to the extent that such Confidential Information has been made publicly available by Buyer. The Confidential Information includes, without limitation, the business practices, financial information, customer and prospective customers names, suppliers and prospective suppliers names, leads and account information, mailing lists, computer programs, advertising campaigns (including, without limitation, displays, drawings, memoranda, designs, styles or devices), employee names, compensation and benefit information of Seller or the General Partners pertaining to the Park. In the event that Seller, either General Partner or any Principal is requested or required (by oral question or request for information or documents in any legal proceeding, interrogatory, subpoena, civil investigative demand, or similar investment fund; providedprocess) to disclose any Confidential Information, thatSeller, in each case, Executive such General Partner or such Principal shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, notify Buyer promptly of the request or requirement so that Executive’s provision of services to (Buyer may seek an appropriate protective order or engagement in activities involving) any entity described in clauses (A) or (B) waive compliance with the provisions of this Section 11(b)(iii) 4.9(c). If, in the absence of a protective order or the receipt of a waiver hereunder, Seller, either General Partner or a Principal is, on the advice of counsel, compelled to disclose any Confidential Information to the tribunal or else stand liable for contempt, Seller, such General Partner or such Principal may disclose the Confidential Information to the tribunal; provided that Seller, such General Partner or such Principal shall use its best efforts to obtain, at the request of Buyer, an order or other assurance that confidential treatment shall be subject accorded to the prior approval such portion of the BoardConfidential Information required to be disclosed as Buyer shall designate.
(d) The parties agree that a violation of the foregoing agreements not to compete or disclose, or any provision thereof, will cause irreparable damage to Buyer, and Buyer shall be entitled (without any requirement of posting a bond or other security), in addition to any other rights and remedies which it may have, at law or in equity, to an injunction enjoining and restraining Seller, any General Partner, Principal and/or Representative thereof from doing or continuing to do any such act or any other violations or threatened violations of this Section 4.9.
(e) The parties hereto agree that the covenant set forth in this Section 4.9 (the "Covenant") is reasonable with respect to its duration, geographical area and scope. The Covenant is expressly intended to conform with Section 16601 of the California Business and Professional Code. If the final judgment of a court of competent jurisdiction declares that any term or provision of this Section 4.9 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.
Appears in 1 contract
Covenant Not to Compete. The Employee recognizes that the ----------------------- Company has business good will and other legitimate business interests which must be protected in connection with and in addition to the Information (as defined hereinafter), and therefore, in exchange for access to the Information, the specialized training and instruction which the Company will provide, the Company's agreement to employ the Employee on the terms and conditions set forth herein, the Company's agreement to execute and consummate the Purchase Agreement, and the promotion and advertisement by the Company of Employee's skill, ability and value in the Company's business, the Employee agrees that in the event (i) The Company and its affiliates are currently engaged in Employee is terminated for Cause, or (ii) Employee leaves the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets employ of the Company other than a Termination With Good Reason prior to expiration of the term of the Agreement, or (iii) upon the expiration of the term of this Agreement, then during Employee's employment under this Agreement, and its affiliates for a period of three (3) years after any termination of employment:
(a) Employee will not in any capacity or relationship enter into, engage in, or be connected with any business or business operation or activity within a fifty (50) mile radius of any office location then operated by the Company at the time of such termination, which consists in whole or in part of the Business of the Company (as well defined hereinafter). For purposes of this Agreement, the "Business of the Company" shall be defined as the goodwill and competitive current business of the Company and its affiliatesAffiliates, Executive agreesincluding, during the Employment Term and for a period of twelve (12) months after Executive’s cessation of employment with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employmentbut not limited to, the Company develops, manufactures, distributes, markets or sells its products, except in the course providing of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in court reporting and litigation support services; and
(b) Employee will not call upon any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business customer whose products or services compete account is serviced in whole or in part with the products or services (both on the market and in development) material to by the Company or any business unit on its Affiliates at the time of the termination date of Employee's employment, with the purpose of selling or attempting to sell to any such customer any services included within that constitutes more than 5% offered by the Company or its Affiliates; and
(c) Employee will not intentionally divert, solicit or take away any customer, supplier or employee of the Company’s revenue Company or its Affiliates, or the patronage of any customer or supplier of the Company or its Affiliates, or otherwise interfere with or disturb the relationship existing between the Company or its Affiliates and any of its respective customers, suppliers or employees, or court reporters performing services for the company, directly or indirectly. In addition, the foregoing restrictive covenants shall also apply to the Employee in the event of his Termination Without Cause or in the event of Termination with Good Reason by the Employee, but only for so long as the Company is making payments to the Employee as required by Section 11 herein. Notwithstanding anything to the contrary contained herein, the Employee shall be permitted to own up to five percent (5%) of the issued and outstanding shares of stock of any publicly traded company on a passive basis without violating the termination date (a “Competing Business”)provisions contained in this Section 12. Notwithstanding anything to the contrary contained herein, the provisions of this Section 12 shall be null and void if the Company fails to timely pay the Employee any amounts due and owing to the Employee under this Agreement; provided, however, that Executive may in any the Employee shall furnish the Company prior written notice of such breach by the Company and permit the Company fifteen (15) days to cure such violation and further provide that such breach by the Company is not as a result of the Employee's breach of this Agreement. Any past due payments due and owing by the Company to the Employee shall bear interest at the rate of twelve percent (12%) per annum. In the event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on Company ceases operation of the board of any Competing Business that competes with the business of the Company other than in a merger, consolidation, or similar transaction, or upon the filing of a bankruptcy or receivership proceeding against Company, or upon the appointment of a liquidator for Company, the provisions of this Section 12 shall not be applicable to the conduct of Employee subsequent thereto. It is mutually understood and its affiliates as an immaterial part agreed that if any of its overall business, provided that Executive recuses Executive fully and completely from all matters the provisions relating to the scope, time or territory in this Section 12 are more extensive than is enforceable under applicable laws or are broader than necessary to protect the good will and legitimate business interests of Company, then the Parties agree that they will reduce the degree and extent of such business.
provisions by whatever minimal amount is necessary to bring such provisions within the ambit of enforceability under applicable law. The Parties acknowledge that the remedies at law for breach of Employee's covenants contained in this Section 12 are inadequate, and they agree that the Company shall be entitled, at its election, to injunctive relief (without the necessity of posting bond against such breach or attempted breach as provided in Section 16 of this Agreement), and to specific performance of said covenants in addition to any other remedies at law or equity that may be available to the Company. Notwithstanding any provision in this Agreement, the obligations of the Employee pursuant to this Section 12 shall terminate immediately upon the occurrence of: (i) an Event of Default (as that term is defined in the Buyer Note) under the Buyer Note which is not as a result of exercising its offset rights as granted by the Purchase Agreement and which is not cured within the time periods provided pursuant to the terms of the Buyer Note; or (ii) For purposes a default of any of the obligations of the Company under this Section 11(b)Agreement, any third party or any business whose products compete includes any entity with but only fifteen (15) days after the delivery by the Employee to the Company of a notice detailing such default, during which the Company or its affiliates has had shall have an opportunity to cure. Notwithstanding the preceding sentence, in the event that an Event of Default occurs under the Buyer Note as a product(sresult of the Company's non-payment under the Buyer Note, which remains uncured for one hundred eighty (180) licensing agreement during the Employment Term days, and any entity with which such payment, if made, would cause the Company or any to violate the terms of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months either of the Employment Term, a commercial agreement.
Subordination Agreements (iii) Notwithstanding as such term is defined in the foregoing, it shall not be a violation of this Section 11(bBuyer Note), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (Bthen only Section 12(a) of this Section 11(b)(iii) 12 shall be subject to terminate immediately, and the prior approval remainder of the Boardthis Section 12 shall remain in full force and effect.
Appears in 1 contract
Covenant Not to Compete. (i) The Company and its affiliates are currently engaged 5.1 In consideration of the compensation to be paid to Employee under this Agreement, Employee acknowledges that in the course of Employee's employment with certain Employer Entities, he has prior to the date of this Agreement, and will during the Term of employment, become familiar with Employer's and the Employer Entities' trade secrets, business plans and business strategies and with other confidential business information concerning Employer and the Employer Entities and that Employee's services have been and shall be of branded special, unique and generic pharmaceuticalsextraordinary value to Employer and the Employer Entities. Employee also acknowledges that in the course of his employment he will have access to Employer's and the Employer Entities' relationships and goodwill with their customers, with a focus on product developmentdistributors, clinical developmentsuppliers and employees. In light of Employee's value to, manufacturingand knowledge of, distribution Employer, the Employer Entities, and sales & marketing. To protect the Confidential Information Business (as defined below) and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliatesEmployee's compensation pursuant to this Agreement, Executive agreesEmployee agrees that, during the Employment Term and for a period of twelve one (121) months after Executive’s cessation of employment with year thereafter (the Company"Non-Compete Period"), that Executive he will not, unless otherwise agreed to by in association with or as an officer, principal, manager, member, advisor, agent, partner, director, material stockholder, employee or consultant of any corporation (or sub-unit, in the Chief Executive Officer case of Endo a diversified business) or other enterprise, entity or association, work on the acquisition or development of, or engage in any line of business, property or project which is, directly or indirectly, competitive with any business that Employer or any Employer Entity engages in during the Term of employment, including but not limited to, the mining, processing, transportation, distribution, trading and sale of synfuel, coal and coal byproducts (following approval by the Chair of the Committee"Business"), . Such restriction shall cover Employee's activities anywhere in the world wherestates in which Employer conducts operations during the Term of this Agreement.
5.2 During the applicable Non-Compete Period, Employee will not solicit or induce any person who is or was employed by any of the Employer Entities at any time during such term or period (i) to interfere with the activities or businesses of Employer or any Employer Entity or (ii) to discontinue his or her employment with any of the Employer Entities.
5.3 During the applicable Non-Compete Period, Employee will not, directly or indirectly, influence or attempt to influence any customers, distributors or suppliers of any of the Employer Entities to divert their business to any competitor of Employer or any Employer Entity or in any way interfere with the relationship between any such customer, distributor or supplier and Employer and/or any Employer Entity (including, without limitation, making any negative statements or communications about Employer and the Employer Entities). During the applicable Non-Compete Period, Employee will not, directly or indirectly, acquire or attempt to acquire any business in the states in which Employer conducts operations during the Term of this Agreement; prior to the termination of the Term of employment, has made an acquisition proposal relating to the possible acquisition of such business by Employer or any Employer Entity, (such business, an "Acquisition Target"); or take any action to induce or attempt to induce any Acquisition Target to consummate any acquisition, investment or other similar transaction with any person other than Employer or any Employer Entity.
5.4 Employee understands that the provisions of Sections 5.1, 5.2 and 5.3 hereof may limit his ability to earn a livelihood in a business in which he is involved, but as a member of the management group of Employer and the Employer Entities he nevertheless agrees and hereby acknowledges that: (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests of Employer and any of the Employer Entities; (ii) such provisions contain reasonable limitations as to time, scope of activity, and geographical area to be restrained; and (iii) the consideration provided hereunder, including without limitation, any amounts or benefits provided under Article 3 hereof, is sufficient to compensate Employee for the restrictions contained in Sections 5.1, 5.2 and 5.3 hereof. Subject to the final sentence of Section 5.1, in consideration of the foregoing and in light of Employee's education, skills and abilities, Employee agrees that he will not assert that, and it should not be considered that, any provisions of Sections 5.1, 5.2 or 5.3 otherwise are void, voidable or unenforceable or should be voided or held unenforceable.
5.5 If, at the time of Executive’s termination enforcement of employmentArticles 4 or 5 of this Agreement, a court shall hold that the duration, scope, or area restrictions stated herein are unreasonable under circumstances then existing, the Company developsparties hereto agree that the maximum period, manufacturesscope or geographical area reasonable under such circumstances shall be substituted for the stated period, distributesscope or area and that the court shall be allowed and directed to revise the restrictions contained herein to cover the maximum period, markets or sells its products, except scope and area permitted by law. Employee acknowledges that he is a member of Employer's and the Employer Entities' management group with access to Employer's and Employer Entities' confidential business information and his services are unique to Employer and the Employer Entities. Employee therefore agrees that the remedy at law for any breach by him of any of the covenants and agreements set forth in Articles 4 and 5 will be inadequate and that in the course event of Executive’s employment hereunderany such breach, directly or indirectly manageEmployer and the Employer Entities may, operatein addition to the other remedies which may be available to them at law, controlapply to any court of competent jurisdiction to obtain specific performance and/or injunctive relief prohibiting Employee (together with all those persons associated with him) from the breach of such covenants and agreements and to enforce, or participate prevent any violations of, the provisions of this Agreement. In addition, in the managementevent of a breach or violation by Employee of this Article 5, operation, the applicable Non-Compete Period set forth in this Article shall be tolled until such breach or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% violation has been cured.
5.6 Each of the Company’s revenue covenants of this Article 5 are given by Employee as part of the consideration for this Agreement and as an inducement to Employer to enter into this Agreement and accept the obligations hereunder.
5.7 Provisions of Article 5 shall not be binding on Employee if Employer fails to perform any material obligation under this Agreement, including, without limitation, the termination date (a “Competing Business”)failure of Employer to make timely payments of monies due to Employee under Article 3 of this Agreement; provided, however, that Executive may (a) Employee has notified Employer in any event (x) own up writing within 30 days of the date of the failure of Employer to a 5% passive ownership interest in any public or private entity perform such material obligation and (yb) serve on such failure remains uncorrected and/or uncontested by Employer for 15 days following the board date of any Competing Business such notice.
5.8 Notwithstanding anything to the contrary contained in this Article 5, the provisions of this Article 5 shall not apply in the event that competes with this Agreement shall be terminated by Employee for Good Reason pursuant to Section 3.4 or Employee or Employer, as the business case may be, elects not to renew the Term of the Company and its affiliates as an immaterial part of its overall businessthis Agreement pursuant to Section 3.2(iv) or Section 3.4(ii), respectively, provided that Executive recuses Executive fully and completely from all matters relating Employee does not receive, or does not elect to such business.
(ii) For purposes receive, any of the benefits or payments under Sections 3.5, 3.8 and/or 3.10 of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreementAgreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Board.
Appears in 1 contract
Samples: Employment Agreement (Alpha Natural Resources, Inc.)
Covenant Not to Compete. (i) The Company Employer and its affiliates are currently engaged Employee acknowledge that, by virtue of Employee's responsibilities and authority as President and Chief Executive Officer of Employer, he will, during the course of his employment, be instrumental in developing, and will receive, highly confidential information concerning Employer and the Affiliates, their services, their trade secrets, their proprietary information, and other information concerning the business of branded Employer and generic pharmaceuticalsthe Affiliates, with much of which is unavailable to persons of lesser responsibility and authority. Employee further acknowledges that the ability of such information to benefit a focus on product developmentcompetitor or potential competitor of Employer shall cause irreparable harm, clinical development, manufacturing, distribution damage and sales & marketingloss to Employer and the Affiliates. To protect Employer and the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliatesAffiliates from Employee's using or exploiting this information, Executive agreesEmployee agrees that he shall not, during the Employment Term and for a period of twelve (12) months after Executive’s cessation from the date of employment with termination of this Agreement for any reason, (i) perform substantially similar job duties or functions as those performed for Employer under this Agreement for any entity engaged in the Company, that Executive will not, unless otherwise agreed to by Business in the Chief Executive Officer United States of Endo America (following approval by the Chair of the Committee"Restricted Territory"), anywhere or (ii) directly or indirectly, own, manage, join, control, contract with, be employed by, act in the world wherecapacity of an officer, at the time of Executive’s termination of employmentdirector, the Company developstrustee, manufactures, distributes, markets shareholder or sells its products, except in the course of Executive’s employment hereunder, directly partner or indirectly manage, operate, controlconsultant, or participate in any manner in the ownership, management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or of any business whose products or services compete person engaged in whole the Business in the Restricted Territory wherein Employee would perform substantially similar duties or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”)job functions as those performed for Employer under this Agreement; provided, however, that Executive may in any event Employee shall be permitted to own not more than five percent (x5%) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part stock of its overall business, provided that Executive recuses Executive fully and completely from all matters relating a corporation required to such business.
(ii) For purposes file reports pursuant to the Securities Exchange Act of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding 1934. As to the foregoing, it shall not be Employee acknowledges that he has the ability to earn a violation of this Section 11(b), comparable income within or without the Restricted Territory as a manager or executive for Executive to provide services to (persons or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is entities not engaged in a Competing the Business and Executive does that earning a livelihood by working for persons or entities not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public the Business within or private companies, other forms of private without the Restricted Territory would not constitute a hardship or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Board.an
Appears in 1 contract
Covenant Not to Compete. (i) The Company and its affiliates are currently engaged in During the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets term of the Company Arrangement, the ----------------------- Individual covenants and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve (12) months after Executive’s cessation of employment with the Company, agrees that Executive he or she will not:
(a) Directly or indirectly, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee)own, anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, be employed by or participate in be connected with the ownership, management, operation, operation or control of, be employed by, associated with, :
(1) Any advertising agency (or in any manner connected with, lend Executive’s name to, holding company or render services or advice to, any third party or any business whose products or services compete in whole or in part with subsidiary thereof) other than the products or services Company;
(both on the market and in development2) material to Any client of the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date 's subsidiaries or affiliates; or
(a “Competing Business”); provided, however, 3) Any company or other entity selling products that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board compete with products of any Competing Business that competes with the business clients of the Company and its affiliates or of the Company's subsidiaries or affiliates; unless the Chief Executive Officer of the Company shall have given prior written consent upon such terms as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such businesshe shall deem appropriate.
(iib) For Directly or indirectly, for the Individual's own benefit or for the benefit of any other person, firm or corporation:
(1) Solicit, for purposes of this Section 11(b)employment, either any third party or any business whose products compete includes any entity with which employee of the Company or its subsidiaries or affiliates has had a product(s) licensing agreement during the Employment Term and or any entity with which employee of any client of the Company or the Company's subsidiaries or affiliates;
(2) Induce either any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months employee of the Employment Term, a commercial agreementCompany or its subsidiaries or affiliates or any employee of any client of the Company or the Company's subsidiaries or affiliates to terminate such employment for purposes of becoming employed elsewhere;
(3) Interfere with the relationship either between the Company or its subsidiaries or affiliates and its employees or between any client of the Company or of the Company's subsidiaries or affiliates and its employees; or
(4) Otherwise hire or induce others to hire either any employee of the Company or its subsidiaries or affiliates or of any client of the Company or of the Company's subsidiaries or affiliates; unless the Chief Executive Officer of the Company shall have given prior written consent upon such terms as he shall deem appropriate.
(iiic) Notwithstanding The precise value of the foregoingcovenants contained in this Section 11 is so difficult to evaluate that no accurate measure of monetary damages could possibly be established and, in the event of a breach or threatened breach of such covenants, the Company's remedy at law would be inadequate and the Company shall be entitled to temporary and permanent injunctive relief restraining the Individual from such breach or threatened breach. In the event that any covenant made in this Section 11 shall be more restrictive than permitted by applicable law, it shall not be a violation of this Section 11(b), for Executive limited to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, extent which is engaged so permitted. Nothing in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and this subsection (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iiic) shall be subject construed as preventing the Company from pursuing any and all other remedies available to it for breach or threatened breach of covenants made in this Section 11, including the prior approval recovery of money damages from the BoardIndividual. It is expressly understood and agreed that the Company's remedies for breach of these covenants shall not be limited to damages in the amount of salary to be paid under the Arrangement.
Appears in 1 contract
Samples: Executive Employment Consultancy Arrangement (Bcom3 Group Inc)
Covenant Not to Compete. (a) For the Applicable Period (as hereinafter defined), if (x) the Executive has received or is receiving benefits under Section 9, (y) the Executive terminates his employment before the end of the term of this Agreement for any reason other than those specified in subsections (i) The or (ii) of Section 8(a), or (z) the Company and its affiliates are terminates the Executive's employment for Cause (as defined in Section 9(e)), the Executive shall not, directly or indirectly, individually or on behalf of any other person or entity, (i) engage or be interested in (whether as owner, stockholder, partner, lender, consultant, employee, agent or otherwise) any business, activity or enterprise which is then competitive with the business of any division or operation of the Company or the Company's subsidiaries (collectively, the "Company Group") in any region of the United States in which such business is then being conducted, it being understood that the Company Group currently is engaged primarily in the business of branded operating retail specialty apparel stores and generic pharmaceuticalsspecialty footwear stores, with a focus on product developmentor (ii) hire or employ any person who has been an employee, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets representative or agent of any member of the Company and its affiliates as well as Group at any time during the goodwill and competitive business Executive's employment or solicit, aid or induce such person to leave his or her employment with any member of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve (12) months after Executive’s cessation of Group to accept employment with any other person or entity. The Executive's ownership of less than 1% of any class of stock in a publicly- traded corporation or his membership on any board of directors that the Board has approved in writing shall not be deemed a breach of this Section 13. The Executive shall not accept an appointment to a board of directors for an organization outside the Company Group that would be inconsistent with his performing his obligations to the Company, that Executive will not, unless otherwise agreed to by and he shall obtain the Chief Executive Officer of Endo (following approval by the Chair consent of the Committee)Board of any and all of his memberships on boards of directors of any entity other than the Company. The "Applicable Period" shall mean, anywhere in (A) where the world where, at the time of Executive’s termination of employmentExecutive has received or is receiving benefits under Section 9, the Company developsperiod during which the Executive is receiving such benefits, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that the Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on limit the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes of Applicable Period under this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): clause (A) a subsidiary, division to 12 months (or affiliate such greater period of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, time) from the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms effective date of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis termination of the affiliation is solely due to common ownership Executive's employment (the "Reduced Period") by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject giving notice to the prior approval of Company that he is electing to forfeit and have the Board.Company cease paying and providing all amounts and benefits arising under Section 9 following expiration
Appears in 1 contract
Covenant Not to Compete. (i) The Executive acknowledges and agrees with the Company and its affiliates are currently engaged in that during the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets course of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve (12) months after Executive’s cessation of 's employment with the Company, the Executive has had and will continue to have the opportunity to develop relationships with existing employees, customers and other business associates of the Company and the Subsidiaries, which relationships constitute goodwill of the Company, and the Executive acknowledges and agrees that the Company would be irreparably damaged if the Executive will notwere to take actions that would damage or misappropriate such goodwill. The Executive acknowledges that the Company and its Subsidiaries currently engages, unless otherwise agreed throughout the United States (the "Territory"), the business of the development, sale, marketing and administration of life insurance, annuities and extended care insurance products (the "Subject Business"). Accordingly, during the term of the Executive's employment with the Company and (i) prior to a Change of Control and in the case of a voluntary termination by the Chief Executive Officer of Endo (following approval under paragraph 4(d) or a termination by the Chair Company for Cause under paragraph 4(b), the balance of the Committee), anywhere in term of this Agreement under paragraph 2 as if no termination of employment occurred but notice of termination of the world where, automatic extension was given either by the Executive at the time of Executive’s termination his notice of employment, voluntary resignation or given by the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of its notice of termination actively negotiatingfor Cause, and eventually concludes within twelve or (12ii) months of after a Change in Control, one year after the Employment Term, a commercial agreement.
Termination Date (iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b"Noncompete Period"), for the Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide servicesshall not, directly or indirectly, enter into, engage in, assist, give or lend funds to such Competing Business and or otherwise finance, be employed by or consult with, or have a financial or other interest in, any business which engages in the basis Subject Business, whether for or by himself or as an independent contractor, agent, stockholder, partner or joint venturer for any other person, provided that the aggregate ownership by the Executive of no more than two percent of the affiliation is solely due to common ownership by outstanding equity securities of any person, which securities are traded on a private equity national or similar investment fund; providedforeign securities exchange, thatquoted on the Nasdaq Stock Market or other automated quotation system or, in each casethe case of the Company, of no more than ten percent of the Company's outstanding equity securities shall not be deemed to be giving or lending funds to, otherwise financing or having a financial interest in a competitor. In the event that any person in which the executive has any financial or other interest directly or indirectly enters into the Subject Business in the Territory during the Noncompete Period, the Executive shall remain bound by divest all of his interest (other post-employment obligations than any amount permitted under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(cparagraph) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described such person within 30 days after such person enters into the Subject Business in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the BoardTerritory.
Appears in 1 contract
Samples: Stock Purchase Agreement (Life Usa Holding Inc /Mn/)
Covenant Not to Compete. (ia) The Company and its affiliates are currently engaged in During the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term Employee's service hereunder and for a period of twelve six (126) months after Executive’s cessation thereafter, regardless of the reason or method of termination, the Employee will not, directly or indirectly, for the Employee's own benefit or the benefit of any other person or entity:
(i) solicit in any manner, seek to obtain, or service the business of any customer of the Company, other than for the Company;
(ii) become an owner of any business, if such business competes with the Company;
(iii) become employed by or serve as an agent, independent contractor or representative of any business which competes with the Company;
(iv) solicit the employment of or hire any employee of the Company, or encourage any employee to terminate his or her employment with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo ; or
(following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or v) prepare in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services to compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(iib) For purposes of this Section 11(b)Agreement, a "customer" shall be deemed to be any third party person, business, partnership, proprietorship, firm, organization or any corporation which has done business whose products compete includes any entity with which the Company or its affiliates which has had a product(s) licensing agreement during the Employment Term and been solicited or serviced in any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide servicesmanner, directly or indirectly, by the Company within eighteen (18) months prior to such Competing Business the date of the termination of the Employee, and the basis phrase "service the business of any customer" means the development, modification, enhancement or improvement of any product or service offered by the Company or which is reasonably related to the products or services offered by the Company. The Employee hereby acknowledges that, by virtue of the affiliation is solely due Employee's position and access to common ownership by a private equity or similar investment fund; providedinformation, thatthe Employee will have advantageous familiarity and personal contacts with the Company's customers, wherever located, and that the restrictions contemplated hereby are reasonable for the protection of the Company's goodwill and customer base, and the Company's efforts in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(cthe development of such customers.
(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) If the Employee does not comply with the provisions of this Section 11(b)(iii7, the six (6) month period of non-competition provided herein shall be subject tolled and deemed not to run during any period(s) of noncompliance, the prior approval intention of the Boardparties being to provide six (6) full months of non-competition by the Employee after the termination or expiration of this Agreement.
Appears in 1 contract
Samples: Employment Agreement (Interactive Intelligence Group, Inc.)
Covenant Not to Compete. (a) In connection with the Merger, the Executive acknowledges and agrees that: (i) The Company and its affiliates are currently engaged Executive will receive substantial consideration for his shares of common stock of the Company, in the business form of branded cash pursuant to the Merger Agreement and generic pharmaceuticals, with the opportunity to reinvest a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets significant amount of cash into shares of common stock of the Company or the holding company thereof (“Common Stock”), which Common Stock will materially benefit Executive; (ii) it is essential to the success of the Company following the Merger and its affiliates as well as the goodwill enterprise of the Company in the future that the Common Stock that is being transferred to Executive in connection with the Merger be protected by non-competition agreements of the type set forth below; (iii) holders of Common Stock would suffer significant and competitive irreparable harm from such Executive competing with the business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve (12) months time after the Merger or after the termination of Executive’s cessation of employment with the Company; (iv) in connection with the Merger, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except and in the course of Executive’s employment hereunderwith the Company, Executive will be provided with access to sensitive and proprietary information about the clients, prospective clients, knowledge capital and business practices of the Company, and has been and will be provided with the opportunity to develop relationships with clients, prospective clients, employees and other agents of the Company, and Executive further acknowledges that such proprietary information and relationships are extremely valuable assets in which the Company has invested and will continue to invest substantial time, effort and expense and which represent a significant component of the value of the Merger to the other owners of the Company. In recognition of all of the foregoing, ancillary to the Merger, the Executive agrees that during the period beginning on the Effective Date and ending on the third anniversary following the termination of Executive’s employment with the Company for any reason (the “Non-Compete Term”) the Executive shall not:
(i) Either directly or indirectly manageindirectly, operatefor himself or on behalf of or in conjunction with any other person, controlpersons, company, firm, partnership, corporation, business, group or other entity (each, a “Person”), engage in any Competing Business, whether as an employee, consultant, partner, principal, agent, representative, stockholder or other individual, corporate, or participate in the management, operationrepresentative capacity, or control of, be employed by, associated withrender any services or provide any advice or substantial assistance to any such Person that engages in a Competing Business. “Competing Businesses” shall include any business which rents construction or industrial equipment, or in any manner connected withother business in which the Company is engaging, lend or in which the Company has taken concrete and significant steps towards engaging, at the time of the Executive’s name totermination of employment, in each case in the geographic areas in which the Company operates or has taken significant steps towards operating; provided, however, that notwithstanding the foregoing, the Executive may make passive investments in up to 5% of the outstanding publicly traded common stock of an entity which operates a Competing Business. In addition, notwithstanding the foregoing, the Executive shall not be deemed to violate this covenant if he has a role with a Person that engages in a Competing Business if his role is limited to the departments, divisions, affiliates, subsidiaries or other units of such Person that do not engage in the Competing Business.
(ii) Either directly or indirectly, for himself or on behalf of or in conjunction with any other Person, solicit, hire or divert any Person who is, or render services who is, at the time of termination of the Executive’s employment, or advice tohas been within six (6) months prior to the time of termination of Executive’s employment, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to an employee of the Company or any of its subsidiaries for the purpose or with the intent of enticing such employee away from the employ of the Company or any of its subsidiaries.
(iii) Either directly or indirectly, for himself or on behalf of or in conjunction with any other Person, solicit, hire or divert any Person who is, or who is, at the time of termination of the Executive’s employment, or has been within six (6) months prior to the time of termination of Executive’s employment, a customer or supplier of the Company or any of its subsidiaries for the purpose or with the intent of (A) inducing or attempting to induce such Person to cease doing business unit on with the termination date that constitutes more Company or (B) in any way interfering with the relationship between such Person and the Company. In addition to the foregoing, the Executive shall not make any Unauthorized Disclosure. For purposes of this Agreement, “Unauthorized Disclosure” shall mean disclosure by the Executive without the prior written consent of the Board to any person, other than 5% an employee of the Company or a person to whom disclosure is reasonably necessary or appropriate in connection with the performance by the Executive of his duties as an executive of the Company or as may be legally required, of any confidential information obtained by the Executive while in the employ of the Company (including, but not limited to, any confidential information with respect to any of the Company’s revenue on the termination date (a “Competing Business”customers or methods of distribution); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public such term shall not include the use or private entity and (y) serve on disclosure by the board Executive, without consent, of any Competing Business that competes with information known generally to the business public (other than as a result of the Company and its affiliates as an immaterial part disclosure by him in violation of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such businessthis provision).
(b) Because of the difficulty of measuring economic losses to the Company as a result of a breach of the foregoing covenants, and because of the immediate and irreparable damage that could be caused to the Company for which it would have no other adequate remedy, the Executive agrees: (i) that the foregoing covenants, in addition to and not in limitation of any other rights, remedies or damages available to the Company at law, in equity or under this Agreement, may be enforced by the Company in the event of the breach or threatened breach by the Executive, by injunctions and/or restraining orders; (ii) For purposes that in the event any material breach by the Executive of this any of the foregoing covenants occurs while the Executive is receiving payments under Section 11(b11(c)(ii), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(smay cease making payments thereunder and the Executive must repay all amounts previously received from the Company thereunder; and (iii) licensing agreement during the Employment Term and any entity with which to repay all amounts received, if any, from the Company or any of its affiliates is at with respect to the time purchase of Common Stock from the Executive in connection with the termination actively negotiating, and eventually concludes within twelve (12) months of the Employment TermExecutive’s employment with the Company. If the Company is involved in court or other legal proceedings to enforce the covenants contained in this Section 15, a commercial agreementthen in the event the Company prevails in such proceedings, the Executive shall be liable for the payment of reasonable attorneys’ fees, costs and ancillary expenses incurred by the Company in enforcing its rights hereunder.
(iiic) The covenants in this Section 15 are severable and separate, and the unenforceability of any specific covenant shall not affect the provisions of any other covenant. Moreover, in the event any court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth herein are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent that such court deems reasonable, and the Agreement shall thereby be reformed to reflect the same.
(d) All of the covenants in this Section 15 shall be construed as an agreement independent of any other provision in this Agreement, and the existence of any claim or cause of action of the Executive against the Company whether predicated on this Agreement or otherwise shall not constitute a defense to the enforcement by the Company of such covenants. It is specifically agreed that the period following the termination of the Executive’s employment with the Company during which the agreements and covenants of the Executive made in this Section 15 shall be effective, shall be computed by excluding from such computation any time during which the Executive is in violation of any provision of this Section 15.
(e) Notwithstanding any of the foregoing, it if any applicable law, judicial ruling or order shall not reduce the time period during which the Executive shall be a violation of this prohibited from engaging in any competitive activity described in Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding15 hereof, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, period of time for which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services be prohibited pursuant to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) 15 hereof shall be subject to the prior approval of the Boardmaximum time permitted by law.
Appears in 1 contract
Samples: Employment Agreement (Neff Corp)
Covenant Not to Compete. (i) The Company and its affiliates are currently engaged in During the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets term of the Company Arrangement, the Individual ----------------------- covenants and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve (12) months after Executive’s cessation of employment with the Company, agrees that Executive he or she will not:
(a) Directly or indirectly, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee)own, anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, be employed by or participate in be connected with the ownership, management, operation, operation or control of, be employed by, associated with, :
(1) Any advertising agency (or in any manner connected with, lend Executive’s name to, holding company or render services or advice to, any third party or any business whose products or services compete in whole or in part with subsidiary thereof) other than the products or services Company;
(both on the market and in development2) material to Any client of the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date 's subsidiaries or affiliates; or
(a “Competing Business”); provided, however, 3) Any company or other entity selling products that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board compete with products of any Competing Business that competes with the business clients of the Company and its affiliates or of the Company's subsidiaries of affiliates; unless the Chief Executive Officer of the Company shall have given prior written consent upon such terms as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such businesshe shall deem appropriate.
(iib) For Directly or indirectly, for the Individual's own benefit or for the benefit of any other person, firm or corporation:
(1) Solicit, for purposes of this Section 11(b)employment, either any third party or any business whose products compete includes any entity with which employee of the Company or its subsidiaries or affiliates has had a product(s) licensing agreement during the Employment Term and or any entity with which employee of any client of the Company or the Company's subsidiaries or affiliates;
(2) Induce either any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months employee of the Employment Term, a commercial agreementCompany or its subsidiaries or affiliates or any employee of any client of the Company or the Company's subsidiaries or affiliates to terminate such employment for purposes of becoming employed elsewhere;
(3) Interfere with the relationship either between the Company or its subsidiaries or affiliates and its employees or between any client of the Company or of the Company's subsidiaries or affiliates and its employees; or
(4) Otherwise hire or induce others to hire either any employee of the Company or its subsidiaries or affiliates or of any client of the Company or of the Company's subsidiaries or affiliates; unless the Chief Executive Officer of the Company shall have given prior written consent upon such terms as he shall deem appropriate.
(iiic) Notwithstanding The precise value of the foregoingcovenants contained in this Section 11 is so difficult to evaluate that no accurate measure of monetary damages could possibly be established and, in the event of a breach or threatened breach of such covenants, the Company's remedy at law would be inadequate and the Company shall be entitled to temporary and permanent injunctive relief restraining the Individual from such breach or threatened breach. In the event that any covenant made in this Section 11 shall be more restrictive than permitted by applicable law, it shall not be a violation of this Section 11(b), for Executive limited to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, extent which is engaged so permitted. Nothing in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and this subsection (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iiic) shall be subject construed as preventing the Company from pursuing any and all other remedies available to it for breach or threatened breach of covenants made in this Section 11, including the prior approval recovery of money damages from the BoardIndividual. It is expressly understood and agreed that the Company's remedies for breach of these covenants shall not be limited to damages in the amount of salary to be paid under the Arrangement.
Appears in 1 contract
Samples: Executive Employment Consultancy Arrangement (Bcom3 Group Inc)
Covenant Not to Compete. (i) The Executive hereby understands and acknowledges that, by virtue of his position with the Company and its affiliates are currently engaged in the business of branded Bank, he has obtained advantageous familiarity and generic pharmaceuticalspersonal contacts with Customers and Prospective Customers, with a focus on product developmentwherever located, clinical developmentand the business, manufacturingoperations, distribution and sales & marketing. To protect the Confidential Information and other trade secrets affairs of the Company and its affiliates the Bank. Accordingly, except as well as the goodwill and competitive business set forth in subparagraph (b) of the Company and its affiliates, Executive agreesthis Section 15, during the Employment Term term of this Agreement and for a period of twelve two (122) months after Executive’s cessation years following the termination of his employment with the CompanyCompany and the Bank (including but not limited to by reason of retirement) (“Restriction Period”), that other than a termination of the Executive’s employment with the Company and the Bank following a Change in Control, the Executive will shall not, unless otherwise directly or indirectly, except as agreed to by the Chief Executive Officer of Endo (following approval by the Chair duly adopted resolution of the Committee)Bank Board:
(a) as owner, anywhere officer, director, stockholder, investor, proprietor, organizer, employee, agent, representative, consultant, independent contractor, or otherwise, engage in the world wheresame trade or business as the Company’s Business, at in the time of Executive’s termination of employment, same or similar capacity as the Executive worked for the Company develops, manufactures, distributes, markets or sells its products, except in and the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated withBank, or in any manner connected with, lend Executive’s name to, such capacity as would cause the actual or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% threatened use of the Company’s revenue on or the termination date (a “Competing Business”)Bank’s trade secrets and/or Confidential Information; provided, however, that this subsection (a) shall not restrict the Executive may in any event from acquiring, as a passive investment, less than five percent (x5%) own up to a 5% passive ownership interest in any public or private entity and (y) serve on of the board outstanding securities of any Competing class of an entity that are listed on a national securities exchange or actively traded in the over-the-counter market. The Executive acknowledges and agrees that, given the level of trust and responsibility given to him while in the Company’s and the Bank’s employ, and the level and depth of trade secrets and Confidential Information entrusted to him, any immediately subsequent employment with a competitor to the Company’s Business that competes would result in the inevitable use or disclosure of the Company’s and the Bank’s trade secrets and Confidential Information and, therefore, the duration of this year restriction is reasonable and necessary to protect against such inevitable disclosure; or
(b) offer to provide employment or work of any kind (whether such employment is with the Executive or any other business or enterprise), either on a full-time or part-time or consulting basis, to any person who then currently is an employee of the Company and its affiliates as an immaterial part or the Bank. The restrictions on the activities of its overall business, provided that the Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes of contained in this Section 11(b), any third party 15 shall be limited to the following geographical areas: all counties in which Company or the Bank or any business whose products compete includes any entity with which other affiliate of the Company maintains an office or branch or has filed an application for regulatory approval to establish an office or branch as of date of termination, except as agreed otherwise by the Bank Board. Notwithstanding anything herein to the contrary, the Restriction Period shall be limited to a period of one year in the event of termination of the Executive’s employment by the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity Bank with which the Company Cause or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Boardretirement.
Appears in 1 contract
Covenant Not to Compete. (ia) The Company and its affiliates are currently engaged in During the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term Employee's service hereunder and for a period of twelve eighteen (1218) months after Executive’s cessation thereafter, regardless of the reason or method of termination, the Employee will not, directly or indirectly, for the Employee's own benefit or the benefit of any other person or entity:
i. solicit in any manner, seek to obtain, or service the business of any customer of the Company, other than for the Company;
ii. become an owner of any business, if such business competes with the Company;
iii. become employed by or serve as an agent, independent contractor or representative of any business which competes with the Company;
iv. solicit the employment of or hire any employee of the Company, or encourage any employee to terminate his or her employment with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or ; or
v. prepare in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services to compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(iib) For purposes of this Section 11(b)Agreement, a "customer" shall be deemed to be any third party person, business, partnership, proprietorship, firm, organization or any corporation which has done business whose products compete includes any entity with which the Company or its affiliates which has had a product(s) licensing agreement during the Employment Term and been solicited or serviced in any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide servicesmanner, directly or indirectly, by the Company within eighteen (18) months prior to such Competing Business the date of the termination of the Employee, and the basis phrase "service the business of any customer" means the development, modification, enhancement or improvement of any product or service offered by the Company or which is reasonably related to the products or services offered by the Company. The Employee hereby acknowledges that, by virtue of the affiliation is solely due Employee's position and access to common ownership by a private equity or similar investment fund; providedinformation, thatthe Employee will have advantageous familiarity and personal contacts with the Company's customers, wherever located, and that the restrictions contemplated hereby are reasonable for the protection of the Company's goodwill and customer base, and the Company's efforts in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(cthe development of such customers.
(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) If the Employee does not comply with the provisions of this Section 11(b)(iii7, the eighteen (18) month period of non-competition provided herein shall be subject tolled and deemed not to run during any period(s) of noncompliance, the prior approval intention of the Boardparties being to provide eighteen (18) full months of non-competition by the Employee after the termination or expiration of this Agreement.
Appears in 1 contract
Samples: Employment Agreement (Interactive Intelligence Inc)
Covenant Not to Compete. (i) The Immediately upon Employee's execution of this Agreement and on an on-going basis, the Company and its affiliates are currently engaged in the business of branded Primedex agree that they shall provide to Employee confidential information and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as Primedex and their businesses ("Confidential Information"). In consideration of, among other things, the goodwill Company's and competitive business Primedex's obligation to disclose Confidential Information to Employee and his receipt of Confidential Information, Employee agrees that during his employment with the Company and its affiliates, Executive agrees, during the Employment Term and/or Primedex and for a period of the twelve (12) months after Executive’s cessation month period following the termination of Employee's employment with the Companyhereunder for any reason, that Executive Employee will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manageindirectly, operatewhether as an individual, controlemployee, director, consultant, investor, stockholder, partner, agent, principal, lender or participate in the management, operation, or control of, be employed by, associated withadvisor, or in any manner connected withother capacity whatsoever, lend Executive’s name toand whether personally or through other persons:
(i) provide services to any person, firm, corporation or render other business enterprise whose primary business involves (A) owning or operating diagnostic imaging centers or the provision of diagnostic imaging services, (B) providing administrative, management or other information services to radiology practices or advice to(C) providing management services in the area of radiology, any third party or any business whose products or services compete in whole or in part with each case unless he obtains the products or services (both on the market and in development) material to prior written consent of the Company or any business unit on the termination date that constitutes more than 5% Primedex. This covenant not to compete shall apply only as to each of the Company’s revenue on geographic markets in which Company or Primedex conducts business as of the date of termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes Employee's employment with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such businessor Primedex.
(ii) For purposes solicit business from, attempt to do business with, or do business with any customer of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity Primedex with which whom the Company or any of its affiliates is at Primedex transacted business within the time of termination actively negotiatingpreceding 12 months, and eventually concludes within twelve (12) months of for which Employee contacted, called on, serviced, did business with or had significant contact with during Employee's employment with the Employment Term, a commercial agreementCompany or Primedex.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services tosolicit, or have attempt to encourage or solicit, any responsibilities regarding, individual to leave the Competing Business; (B) Company's or Primedex's employ for any entity that is, reason or is a general partner in, interfere in any other manner with the employment relationships between the Company and Primedex and their current or manages prospective employees or participates in managing, a private any employee who has been employed by the Company or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the BoardPrimedex within ninety days preceding Employee's termination.
Appears in 1 contract
Samples: Retention Agreement (RadNet, Inc.)
Covenant Not to Compete. (i) The Company and its affiliates are currently engaged 5.1 In consideration of the compensation to be paid to Employee under this Agreement, Employee acknowledges that in the course of Employee's employment with certain Employer Entities, he has prior to the date of this Agreement, and will during the Term of employment, become familiar with Employer's and the Employer Entities' trade secrets, business plans and business strategies and with other confidential business information concerning Employer and the Employer Entities and that Employee's services have been and shall be of branded special, unique and generic pharmaceuticalsextraordinary value to Employer and the Employer Entities. Employee also acknowledges that in the course of his employment he will have access to Employer's and the Employer Entities' relationships and goodwill with their customers, with a focus on product developmentdistributors, clinical developmentsuppliers and employees. In light of Employee's value to, manufacturingand knowledge of, distribution Employer, the Employer Entities, and sales & marketing. To protect the Confidential Information Business (as defined below) and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliatesEmployee's compensation pursuant to this Agreement, Executive agreesEmployee agrees that, during the Employment Term and for a period of twelve one (121) months after Executive’s cessation of employment with year thereafter (the Company"Non-Compete Period"), that Executive he will not, unless otherwise agreed to by in association with or as an officer, principal, manager, member, advisor, agent, partner, director, material stockholder, employee or consultant of any corporation (or sub-unit, in the Chief Executive Officer case of Endo a diversified business) or other enterprise, entity or association, work on the acquisition or development of, or engage in any line of business, property or project which is, directly or indirectly, competitive with any business that Employer or any Employer Entity engages in during the Term of employment, including but not limited to, the mining, processing, transportation, distribution, trading and sale of synfuel, coal and coal byproducts (following approval by the Chair of the Committee"Business"), . Such restriction shall cover Employee's activities anywhere in the world wherestates in which Employer conducts operations during the Term of this Agreement.
5.2 During the applicable Non-Compete Period, Employee will not solicit or induce any person who is or was employed by any of the Employer Entities at any time during such term or period (i) to interfere with the activities or businesses of Employer or any Employer Entity or (ii) to discontinue his or her employment with any of the Employer Entities.
5.3 During the applicable Non-Compete Period, Employee will not, directly or indirectly, influence or attempt to influence any customers, distributors or suppliers of any of the Employer Entities to divert their business to any competitor of Employer or any Employer Entity or in any way interfere with the relationship between any such customer, distributor or supplier and Employer and/or any Employer Entity (including, without limitation, making any negative statements or communications about Employer and the Employer Entities). During the applicable Non-Compete Period, Employee will not, directly or indirectly, acquire or attempt to acquire any business in the states in which Employer conducts operations during the Term of this Agreement; prior to the termination of the Term of employment, has made an acquisition proposal relating to the possible acquisition of such business by Employer or any Employer Entity, (such business, an "Acquisition Target"); or take any action to induce or attempt to induce any Acquisition Target to consummate any acquisition, investment or other similar transaction with any person other than Employer or any Employer Entity.
5.4 Employee understands that the provisions of Sections 5.1, 5.2 and 5.3 hereof may limit his ability to earn a livelihood in a business in which he is involved, but as a member of the management group of Employer and the Employer Entities he nevertheless agrees and hereby acknowledges that: (i) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests of Employer and any of the Employer Entities; (ii) such provisions contain reasonable limitations as to time, scope of activity, and geographical area to be restrained; and (iii) the consideration provided hereunder, including without limitation, any amounts or benefits provided under Article 3 hereof, is sufficient to compensate Employee for the restrictions contained in Sections 5.1, 5.2 and 5.3 hereof. Subject to the final sentence of Section 5.1, in consideration of the foregoing and in light of Employee's education, skills and abilities, Employee agrees that he will not assert that, and it should not be considered that, any provisions of Sections 5.1, 5.2 or 5.3 otherwise are void, voidable or unenforceable or should be voided or held unenforceable.
5.5 If, at the time of Executive’s termination enforcement of employmentArticles 4 or 5 of this Agreement, a court shall hold that the duration, scope, or area restrictions stated herein are unreasonable under circumstances then existing, the Company developsparties hereto agree that the maximum period, manufacturesscope or geographical area reasonable under such circumstances shall be substituted for the stated period, distributesscope or area and that the court shall be allowed and directed to revise the restrictions contained herein to cover the maximum period, markets or sells its products, except scope and area permitted by law. Employee acknowledges that he is a member of Employer's and the Employer Entities' management group with access to Employer's and Employer Entities' confidential business information and his services are unique to Employer and the Employer Entities. Employee therefore agrees that the remedy at law for any breach by him of any of the covenants and agreements set forth in Articles 4 and 5 will be inadequate and that in the course event of Executive’s employment hereunderany such breach, directly or indirectly manageEmployer and the Employer Entities may, operatein addition to the other remedies which may be available to them at law, controlapply to any court of competent jurisdiction to obtain specific performance and/or injunctive relief prohibiting Employee (together with all those persons associated with him) from the breach of such covenants and agreements and to enforce, or participate prevent any violations of, the provisions of this Agreement. In addition, in the managementevent of a breach or violation by Employee of this Article 5, operation, the applicable Non-Compete Period set forth in this Article shall be tolled until such breach or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% violation has been cured.
5.6 Each of the Company’s revenue covenants of this Article 5 are given by Employee as part of the consideration for this Agreement and as an inducement to Employer to enter into this Agreement and accept the obligations hereunder.
5.7 Provisions of Article 5 shall not be binding on Employee if Employer fails to perform any material obligation under this Agreement, including, without limitation, the termination date (a “Competing Business”)failure of Employer to make timely payments of monies due to Employee under Article 3 of this Agreement; provided, however, that Executive may (a) Employee has notified Employer in any event (x) own up writing within 30 days of the date of the failure of Employer to a 5% passive ownership interest in any public or private entity perform such material obligation and (yb) serve on such failure remains uncorrected and/or uncontested by Employer for 15 days following the board date of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such businessnotice.
(ii) For purposes 5.8 Notwithstanding anything to the contrary contained in this Article 5, the non-competition and non-solicitation provisions of this Article 5 shall not apply in the event that this Agreement (a) shall be terminated by Employee for Good Reason pursuant to Section 11(b3.4 or (b) Employee or Employer, as the case may be, elects not to renew the Term of this Agreement pursuant to Section 3.2(iv) or Section 3.4(ii), any third party respectively, or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding Employee resigns from the foregoingEmployer pursuant to Section 3.2(iii) and Employer elects not to exercise its option, it shall not be a violation in its sole discretion, to subject Employee to the non-competition and non-solicitation provisions of this Article 5 in accordance with Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d3.3(iii) herein; providedprovided that Employee does not receive, furtheror does not elect to receive, that Executive’s provision any of services to (the benefits or engagement in activities involving) any entity described in clauses (A) or (B) payments under Sections 3.5, 3.8 and/or 3.10 of this Section 11(b)(iii) shall be subject to the prior approval of the BoardAgreement (if applicable).
Appears in 1 contract
Samples: Employment Agreement (Alpha Natural Resources, Inc.)
Covenant Not to Compete. I acknowledge the unique nature of the business of Aurora and the need of Aurora to maintain its competitive advantage in its industry through the protection of its trade secrets and proprietary information. Accordingly, I agree that during the term of my service as an employee with Aurora and through the later of (A) December 31, 2002 or (B) the later of the termination of my service as an employee (the "Noncompete Period"), I will not:
(i) The Company and solicit or induce any person who is then a director, officer or employee of Aurora to terminate his or her directorial or employment relationship with Aurora (provided that the publication of "help wanted" or similar notices in media of general circulation shall not be deemed to be a solicitation or inducement for purposes of this clause); or
(ii) solicit or induce any party who is a customer or supplier of Aurora with respect to the Business (defined below) to terminate or significantly diminish its affiliates are currently engaged relationship with Aurora; or
(iii) market or sell any product or service that directly competes with any product or service manufactured, sold or under development by Aurora in the business of branded and generic pharmaceuticalsBusiness; or
(iv) research, develop or manufacture any product or service that directly competes with a focus on any product developmentor service manufactured, clinical development, manufacturing, distribution and sales & marketingsold or under development by Aurora in the Business. To protect the Confidential Information and other trade secrets In order to assure that I do not breach any of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliatesforegoing provisions, Executive agrees, I agree that during the Employment Term and for a period Noncompete Period, I will not accept employment with, advise, or provide consulting services to any department or functional area of twelve (12) months after Executive’s cessation of employment with the Companyany business, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere which department or functional area primarily engages in the world whereBusiness, at the time nor will I acquire any interest in (except an equity interest of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more less than 5% of the Company’s revenue on the termination date (total outstanding shares of a “Competing Business”); provided, however, that Executive may in any event (xpublicly traded company) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity core business is substantially similar to the Business, without first obtaining the written consent of Aurora. Aurora shall be permitted to withhold such consent in its sole discretion unless my prospective employer and I are able to provide Aurora with which assurances reasonably satisfactory to Aurora that I will not be assisting the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or prospective employer in any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreementprohibited activities listed above.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject to the prior approval of the Board.
Appears in 1 contract
Samples: Employment Agreement (Vertex Pharmaceuticals Inc / Ma)
Covenant Not to Compete. (i) The Company and its affiliates are currently engaged in a. Executive acknowledges that the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets businesses of the Company is highly competitive and international in scope, that its licenses are sourced and its affiliates as well as products are marketed throughout the goodwill and competitive world, that the Company compete in nearly all of their business activities with other organizations which are or could be located in nearly any part of the world and that the nature of Executive’s services, position and expertise are such that he is capable of competing with the Company from nearly any location in the world. Executive further acknowledges that all services of Executive are exclusive to the Company, and its affiliatesthat Executive’s performances and services hereunder are of a special, unique, unusual, extraordinary and intellectual character which gives them peculiar value, the loss of which cannot reasonably or adequately be compensated in an action at law for damages and that a breach by Executive of the terms of this Paragraph 9 will cause the Company irreparable injury.
b. In recognition of the foregoing, Executive agrees, covenants and agrees that during his employment with the Employment Term Company and for a period of twelve (12) months after Executive’s cessation of employment with the Companythereafter, that Executive he will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and as a principal, officer, director, shareholder, partner, member, employee, consultant, independent contractor, agent or executive or in any other capacity whatsoever, without the basis prior written consent of the affiliation Company, do any of the following:
(i) Engage in the business of acquiring, licensing, producing, marketing or distributing animé content where animé content is solely due defined as animated television series and specials, movies, or direct to common ownership by a private equity or similar investment fund; provided, thathome video long form content which is primarily produced in Japan, in each caseany form or media;
(ii) Acquire any ownership of any kind in, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of or become associated with or provide services to any other person, corporation, partnership, limited liability company, business trust, association or other business entity engaged in the business of acquiring, licensing, producing, marketing or distributing animé content in any form or media;
(iii) Intentionally and knowingly solicit or engagement attempt to solicit or participate in activities involvingthe solicitation of or otherwise advise or encourage any then employee, agent, consultant or representative of, or vendor or supplier to, the Company to terminate his, her or its relationship therewith; or
(iv) Solicit or attempt to solicit or encourage any entity described in clauses (A) person, who is then, or (B) of this Section 11(b)(iii) shall be subject was within the then most recent 12-month period, to the prior approval knowledge of Executive, an employee, agent, consultant or representative of the BoardCompany or Parent, to become an employee, agent, representative or consultant of or to Executive or any other individual or entity.
Appears in 1 contract
Covenant Not to Compete. (i) The Company and its affiliates the Sellers acknowledge and ------------------------ agree that they each have technical expertise associated with the Company's business and are currently engaged well known in the business of branded and generic pharmaceuticalspresentation/communication industry. In addition, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and the Sellers have valuable business contacts with clients and potential clients and with professionals in the presentation/communication industry. The Company's reputation and good will is an integral part of business success throughout the areas where it conducts its affiliates as well as business. If the Company or the Sellers deprive Buyer of any of its goodwill or in any manner uses its reputation and competitive business goodwill in competition with the Buyer, the Buyer will be deprived of the benefits it has bargained for pursuant to this Agreement. Since the Company and its affiliatesthe Sellers have the ability to compete with the Buyer in the operation of the Buyer's business, Executive agreesBuyer, during therefore, desires that the Employment Term Company and the Sellers enter into this covenant not to compete. But for Company's and the Sellers' entry into this covenant not to compete, Buyer would not enter into this Agreement. It is, therefore, understood and agreed that by the sale of the Company's assets, the Company and the Seller have transferred to Buyer all of their business goodwill as contemplated by, among other laws, California Business and Professions Code Section 16601. The Company and the Sellers, therefore, each agree that for a period of twelve five (125) months after Executive’s cessation of employment with years from the CompanyEffective Date (the "Term"), that Executive will they shall not, unless otherwise agreed to by the Chief Executive Officer of Endo without Buyer's prior written consent (following approval by the Chair of the Committeewhich may be given or withheld in Buyer's sole and absolute discretion), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly indirectly,
(i) own, manage, operatejoin, operate or control, or participate in the ownership, management, operation, operation or control of, or be employed byconnected as a director, associated officer, employee, partner, consultant or otherwise with, or permit their names to be used by or in connection with, any profit or non- profit business or organization which produces, designs, conducts research on, provides, sells, distributes or markets products, goods, equipment or services which, directly or indirectly compete with the Buyer's business, as conducted by the Company immediately prior to the Closing and as is proposed to be conducted by the Buyer after the Closing, in the Counties specified in Exhibit D attached hereto of the United States, or in any manner connected withother countries in which the Company's business is conducted;
(ii) call on or solicit or divert or take away from the Buyer (including without limitation by divulging to any competitor or potential competitor of the Buyer) any Person, lend Executive’s name to, firm or render services corporation or advice to, any third party other entity who is or any business which at the Closing was a customer of the Company or whose products or services compete in whole or in part with the products or services (both on the market and in development) material identity is known to the Company or any business unit on the termination date that constitutes more than 5% of Sellers at the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates Closing as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which one whom the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.Sellers intended to solicit; or
(iii) Notwithstanding hire or offer employment to or seek to hire or offer employment to any employee of the foregoing, it shall not be a violation Company whose employment is continued by the Buyer after the Closing or any employee of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division any successor or affiliate of the Buyer, unless Buyer first terminates the employment of such employee or gives its written consent to such employment or offer of employment. The Company and the Sellers acknowledge that the provisions of this (S)5(f) are reasonable and necessary to protect legitimate interests of Buyer. The Company and the Sellers further acknowledge that any breach of this (S) 5(f) by them will cause irreparable injury to Buyer, for which the available remedies at law will not be adequate. Accordingly, in the event of any such breach or threatened breach of any provisions of this (S)5(f), in addition to any other remedy provided by law or in equity, the Buyer shall be entitled to appropriate injunctive relief and/or specific performance, in any court of competent jurisdiction, restraining the Company and/or the Sellers from any such actual or threatened breach of this section without posting bond or other security. The Company and the Sellers stipulate to the entry against it of any temporary, preliminary or permanent injunction and agree not to resist the Buyer's application for such equitable relief, except on the grounds that the acts or omissions alleged do not violate any of the provisions of this section. The Company and the Sellers shall, in the event that any injunctive relief or damages shall be granted to the Buyer, pay all of the Buyer's reasonable costs and expenses, including attorneys' fees, incurred in obtaining such relief. If the final judgment of a Competing Business where such subsidiarycourt of competent jurisdiction declares that any term or provision of this (S)5(f) is invalid or unenforceable, division the Parties agree that the court making the determination of invalidity or affiliate is not engaged in a Competing Business and Executive does not provide services tounenforceability shall have the power to reduce the scope, duration, or have any responsibilities regardingarea of the term or provision, the Competing Business; (B) any entity that isto delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is a general partner in, valid and enforceable and that comes closest to expressing the intention of the invalid or manages unenforceable term or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactionsprovision, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and this Agreement shall be enforceable as so modified after the basis expiration of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall time within which the judgment may be subject to the prior approval of the Boardappealed.
Appears in 1 contract
Covenant Not to Compete. (i) The Company Sellers each acknowledge and its affiliates are currently engaged in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve (12) months after Executive’s cessation of employment with the Company, agree that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, they ------------------------ have technical expertise associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as are well known in the presentation/communication industry. In addition, the Sellers have valuable business contacts with clients and potential clients of the Company and with professionals in the presentation/communication industry. The Company's reputation and good will are an immaterial integral part of business success throughout the areas where it conducts its overall business. If Sellers deprive Buyer of the Company's goodwill or in any manner use their reputation and goodwill in competition with the Company, Buyer will be deprived of the benefits it has bargained for pursuant to this Agreement. Since Sellers have the ability to compete with the Company in the operation of the Company's business, provided Buyer, therefore, desires that Executive recuses Executive fully the Sellers enter into this covenant not to compete. But for Sellers' entry into this covenant not to compete, Buyer would not enter into this Agreement. It is, therefore, understood and completely agreed that by the sale of their Company Stock, the Sellers have transferred to Buyer all of their business goodwill in the Company. Sellers, therefore, agree that for a period of three (3) years from all matters relating to such business.the Closing (the "Term"), Sellers shall not, without Buyer's prior written consent (which may be given or withheld in Buyer's sole and absolute discretion), directly or indirectly,
(iii) For purposes of this Section 11(b)own, manage, join, operate or control, or participate in the ownership, management, operation or control of, or be connected as a director, officer, employee, partner, consultant or otherwise with, or permit their names to be used by or in connection with, any third party profit or any non- profit business whose products or organization which sells, distributes or markets products, goods or equipment which, directly or indirectly compete includes any entity with which the Company's business, as conducted by the Company or its affiliates has had a product(simmediately prior to the Closing (audio-visual systems sales and installation) licensing agreement during in the Employment Term and any entity with which state of Texas; provided, however, the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it following activities shall not be a violation of the terms of this Section 11(b)non-compete provision: (x) the sale by Xxxxxx Media Services, for Executive Inc. of used rental equipment in customary distribution channels, and (y) the sale, merger, consolidation or other business combination between Xxxxxx Media Services, Inc. and a company which has a division which is involved in audio-visual system sales and installation.
(ii) call on or solicit or divert or take away from the Company and/or the Buyer (including without limitation by divulging to provide any competitor or potential competitor of the Company and/or the Buyer) any Person, firm or corporation or other entity who is or which at the Closing was a customer of the Company and/or the Buyer or whose identity is known to the Sellers at the Closing as one whom the Company and/or the Buyer intends to solicit; provided, however, it is acknowledged that Xxxxxx Media Services, Inc. and the Company have common customers and Xxxxxx Media Services, Inc.'s continued providing of audio-visual equipment rental and staging services to such common customers or the solicitation of other customers or potential customers of the Company for such services shall not be a violation of the terms of this non-compete provision; or
(iii) hire or engage in activities involving): (A) a subsidiary, division offer employment to or seek to hire or offer employment to any employee of the Company whose employment is continued by the Company after the Closing or any employee of any successor or affiliate of the Company, unless Buyer first terminates the employment of such employee or gives its written consent to such employment or offer of employment. Sellers acknowledge that the provisions of this (S)5(d) are reasonable and necessary to protect legitimate interests of Buyer. Sellers further acknowledge that any breach of this (S)5(d) by them will cause irreparable injury to Buyer and the Company, for which the available remedies at law will not be adequate. Accordingly, in the event of any such breach or threatened breach of any provisions of this (S)5(d), in addition to any other remedy provided by law or in equity, the Buyer and the Company shall be entitled to appropriate injunctive relief and/or specific performance, in any court of competent jurisdiction, restraining the Sellers from any such actual or threatened breach of this section without posting bond or other security. Sellers stipulate to the entry against them of any temporary, preliminary or permanent injunction and agree not to resist the Buyer's and/or the Company's application for such equitable relief, except on the grounds that the acts or omissions alleged do not violate any of the provisions of this section. Sellers shall, in the event that any injunctive relief or damages shall be granted to the Buyer and/or the Company, pay all of the Buyer's and/or the Company's reasonable costs and expenses, including attorneys' fees, incurred in obtaining such relief. If the final judgment of a Competing Business where such subsidiarycourt of competent jurisdiction declares that any term or provision of this (S)5(d) is invalid or unenforceable, division the Parties agree that the court making the determination of invalidity or affiliate is not engaged in a Competing Business and Executive does not provide services tounenforceability shall have the power to reduce the scope, duration, or have any responsibilities regardingarea of the term or provision, the Competing Business; (B) any entity that isto delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is a general partner in, valid and enforceable and that comes closest to expressing the intention of the invalid or manages unenforceable term or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactionsprovision, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and this Agreement shall be enforceable as so modified after the basis expiration of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall time within which the judgment may be subject to the prior approval of the Boardappealed.
Appears in 1 contract
Covenant Not to Compete. (i) The Contractor hereby agrees that Contractor will not, either during the Term or until the first anniversary of the Termination Date, engage in any business activities on behalf of any enterprise that competes with the Company and its affiliates are currently in the Business. The Contractor will be deemed to be engaged in such competitive business activities if Contractor participates in such a business enterprise as an employee, officer, director, contractor, agent, partner, proprietor, or other participant; provided that the business ownership of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets no more than 2 percent of the Company and its affiliates stock of a publicly traded corporation engaged in a competitive business shall not be deemed to be engaging in competitive business activities; further, no provision of this Agreement shall preclude the Contractor from making passive investments in any company or from becoming involved in the parent, affiliate or subsidiary company of any company involved in the Company's Business as well long as the goodwill and competitive business of Contractor has no involvement in such competing entity. The Contractor further agrees that the Company and its affiliatesContractor shall not for Contractor or for any other person, Executive agreesfirm, during the Employment Term and corporation, partnership or other entity, for a period of twelve one (121) months after Executive’s cessation year from the Termination Date, directly or indirectly:
(i) solicit any sales agent, employee, former employee who was employed by the Company in the preceding 90 days or full-time employee of employment the Company for the purposes of hiring or retaining such sales agent, employee or contractor,
(ii) contact any present or prospective client of the Business of the Company ("Company Clients") to solicit such Company Clients to enter into a contract or arrangement with any competitor of the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo or
(following approval by the Chair iii) make known names and/or addresses of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets Clients or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or any information relating in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company's trade or business relationships with such Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”)Clients; providedprovided always, however, that Executive may the provisions of this Section shall not apply to any information which: (i) had been rightfully in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business possession of the Company and recipient prior to its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating disclosure to such business.
the recipient; (ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which had been in the Company or public domain prior to its affiliates has had a product(s) licensing agreement during disclosure to the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
recipient; (iii) Notwithstanding has become part of the foregoing, it shall not be a violation public domain by publication or by any other means except an unauthorized act or omission on the part of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Businessrecipient; (Biv) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, had been supplied to such Competing Business and the basis of the affiliation is solely due to common ownership recipient without restriction by a private equity or similar investment fundthird party who is under no obligation to maintain such information in confidence; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (Bv) of this Section 11(b)(iii) shall is required to be subject to disclosed by any federal or state law, rule or regulation or by any applicable judgment, order or decree or any court or governmental body or agency having jurisdiction in the prior approval of the Boardpremises.
Appears in 1 contract
Samples: Independent Contractor Agreement (Cryo Cell International Inc)
Covenant Not to Compete. As a result of Employee’s employment by the Company: (i) The Employee will have access to trade secrets and Confidential Information of the Company, including, but not limited to, valuable information about its intellectual property, business operations and methods, and the persons with which it does business in various locations throughout the world, that is not generally known to or readily ascertainable by a Competing Business, (ii) Employee will develop relationships with the Company’s customers and others with which the Company does business, and its affiliates these relationships are currently engaged among the Company’s most important assets, (iii) Employee will receive specialized knowledge of and specialized training in the business of branded Company’s Business, and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets (iv) Employee will gain such knowledge of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agreesCompany’s Business that, during the Employment Term course of Employee’s employment with the Company and for a period of twelve one year following the termination thereof, Employee could not perform services for a Competing Business without inevitably disclosing the Company’s trade secrets and Confidential Information to that Competing Business. Accordingly, Employee agrees to the following:
(12a) months after ExecutiveWhile employed by the Company, Employee will not, without the express written consent of an authorized representative of the Company: (i) perform services (as an employee, independent contractor, officer, director, or otherwise) within the Territory for any Competing Business, (ii) engage in any activities (or assist others to engage in any activities) within the Territory that compete with the Company’s cessation Business, (iii) own or beneficially own an equity interest in a Competing Business, (iv) request, induce, or solicit (or assist others to request, induce, or solicit) any customers, prospective customers, or suppliers of employment the Company to curtail or cancel their business with the Company, that Executive will not, unless otherwise agreed or to by do business within the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% scope of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and , (Cv) an affiliate of a Competing Business if Executive does not provide servicesrequest, directly induce, or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to solicit (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) shall be subject assist others to the prior approval of the Board.request, induce, or
Appears in 1 contract
Covenant Not to Compete. (i) The Company Crumxxxx xxxnowledges that as long as Crumxxxx xx employed by CCAi, Crumxxxx'x xxxess to the Confidential Information will enable Crumxxxx xx benefit from CCAi's goodwill and its affiliates are currently engaged in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketingknow-how. To protect the Confidential Information and other trade secrets these vital interests of the Company and its affiliates CCAi, Crumxxxx xxxees that as well long as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during the Employment Term this Agreement is in effect and for a period of twelve (12) months after Executive’s cessation two years following the termination of employment with the CompanyCrumxxxx'x xxxloyment, that Executive will Crumxxxx xxxl not, unless otherwise agreed to by without the Chief Executive Officer prior written consent of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its productsCCAi, except as set forth in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete in whole or in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes Section 3.2 of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide servicesAgreement, directly or indirectly, as a shareholder, director, officer, employee, agent or consultant, (a) invest or engage in any business which is competitive with that of CCAi or accept employment with or render services to such Competing Business and a competitor of CCAi or take any action inconsistent with the basis relationship of an employee to CCAi; (b) solicit sales of, or sell or deliver, any product or system of a competitor of CCAi that is of the affiliation kind and character manufactured, sold or distributed by CCAi to any person, firm or corporation called upon or served by Crumxxxx xx behalf of CCAi; (c) solicit or divert from CCAi the business or patronage of any person, firm or corporation with whom Crumxxxx xxx had business relations on CCAi's behalf in the 12 month period immediately prior to Crumxxxx'x xxxmination of employment, including performing services similar to those performances while an employee of CCAi with any customer of CCAi; (d) invest or engage in any business which is solely due a member of the so-called "SAP Alliance Partners", a list of which is attached hereto as ATTACHMENT B and may be updated from time to common ownership time by a private equity or similar investment fundCCAi; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (Be) engage or assist in or influence the engagement or hiring by any competing organization of any salesman, distributor, contractor or employee of CCAi at the time of Crumxxxx'x xxxmination of employment, or otherwise cause or encourage any person, firm or corporation having a business relationship with CCAi at the time of Crumxxxx'x xxxmination of employment to sever such relationship with, or commit any act materially adverse to, CCAi. Crumxxxx xxxther agrees that this covenant not to compete applies whether Crumxxxx xxxs as an individual for his own account, or as a partner, employee, agent, salesman, distributor, consultant or representative of any person, firm or corporation. The restriction contained in this Section 11(b)(iii) 3 as it relates to the period following the termination of Crumxxxx'x xxxloyment shall be subject limited to those geographic areas in which CCAi is then doing or soliciting business or selling products or services, and no business shall be considered competitive with CCAi unless CCAi was actually and actively engaged in such business or had definitive plans to enter such business at the prior approval time of the Boardtermination of Crumxxxx'x xxxloyment.
Appears in 1 contract
Samples: Employment Agreement (Conley Canitano & Associates Inc)
Covenant Not to Compete. (i) The Company As a necessary inducement to cause Purchaser to enter into this Agreement, Seller and its affiliates are currently engaged in the business of branded Stiexxxx xxxh covenants, warrants and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect the Confidential Information and other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliates, Executive agrees, during contingent on the Employment Term and Closing, that they shall not, either directly or indirectly:
(a) for a period of twelve three (123) months after Executive’s cessation of employment years (the "Covenant Period") commencing on the Closing Date, engage in, or have any interest in or be associated with (whether as an officer, director, shareholder, partner, associate, employee, consultant, owner or otherwise) any corporation, partnership, trust, association, firm, limited liability company or enterprise which is engaged in, the Business, any facet thereof or any business, venture or enterprise which during the term hereof competes with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee)Purchaser or any affiliate thereof, anywhere in the world where, at the time of Executive’s termination of employment, the Company develops, manufactures, distributes, markets or sells its products, United States; except in the course of Executive’s employment hereunder, directly or indirectly manage, operate, control, or participate in the management, operation, or control of, be employed by, associated with, or that Seller and Stiexxxx may invest in any manner connected withpublicly-held corporation engaged in any similar business, lend Executive’s name to, or render services or advice to, any third party or any business whose products or services compete if their aggregate investment in whole or such corporation does not exceed one (1%) percent in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% value of the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity issued and (y) serve on the board outstanding capital stock of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.corporation;
(iib) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide servicesuse, directly or indirectly, the BioPhotonics name for or in connection with any business related to such Competing Business and electrophoresis;
(c) divert, or by aid of others, do anything which would tend to divert from the basis Business, any trade or business with any customer with whom Purchaser, Seller or Stiexxxx xxx any contact or association in connection with the Business;
(d) solicit, induce or attempt to induce any employee of the affiliation is solely due Purchaser to common ownership by a private equity or similar investment fund; providedenter into the employ of: (i) Stiexxxx xx Seller, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involvingii) any entity described in clauses (A) which Stiexxxx xx an employee or in which Stiexxxx xx Seller has a financial interest, or (Biii) any competitor of the Purchaser; or to solicit, induce, or attempt to induce any person employed by Purchaser in connection with the Business to leave the employment of the Purchaser;
(e) employ or otherwise contract for the services of any individual who was or currently is an employee of Purchaser at any time during the period from one (1) year prior to the date of this Agreement through the expiration of the Covenant Period, without first securing the written consent of Purchaser; or
(f) use, publish, disseminate, distribute or otherwise disclose any proprietary or confidential information of Purchaser, of whatever kind or nature, including, without limitation, information relating to the Business, trade secrets, licensing or know-how agreements, marketing strategies, heat treating processes, methods, machinery, equipment, distribution processes, source of goods and materials, goods and material purchasing, operating and other cost data, customer lists and customer contact personnel, terms and conditions of agreements to which Purchaser is a party, and any other information which is not generally known in the industry. The parties acknowledge that Seller may continue to develop and manufacture digital electronic camera products and may sell such to end-users who do not directly compete with Purchaser, as well as to distributors in the ordinary course of business. The covenants set forth in Section 11(b)(iii) 8.3 will not be enforceable against Stiexxxx xx he is terminated by the Company, unless he is terminated for cause. Solely with respect to this Agreement, cause shall be subject defined as fraud, dishonesty, or other misconduct in the performance of his duties and responsibilities as an employee of Purchaser. The parties intend that the covenant set forth in this Section 8.3 shall be deemed to be a series of separate covenants with respect to the prior approval of Business. The parties acknowledge and agree that the Board.covenants set forth above are reasonable and valid in geographical and temporal scope and in all
Appears in 1 contract
Covenant Not to Compete. (i) The Company Employer and its affiliates are currently engaged Employee acknowledge that, by virtue of Employee's responsibilities and authority, he shall, during the course of his Employment, be instrumental in developing, and receive highly confidential information concerning, Employer and the business Affiliates, their customers, their services, their trade secrets, their proprietary information and other information concerning the Logistics Business, much of branded which will be unavailable to those in positions of lesser responsibility and generic pharmaceuticalsauthority. Employee further acknowledges that the ability of such information to benefit a competitor or potential competitor of Employer shall cause irreparable harm, with a focus on product development, clinical development, manufacturing, distribution damage and sales & marketingloss to Employer and the Affiliates. To protect Employer and the Confidential Information Affiliates from Employee's using or exploiting this information, Employee agrees that, if the employment relationship between Employee and Employer terminates for any reason whatsoever other trade secrets of the Company and its affiliates as well as the goodwill and competitive business of the Company and its affiliatesthan termination by Employer without Cause, Executive agreesthen, during the Employment Term and in such event, for a period of twelve one (121) months after Executive’s cessation year from the date of employment with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world where, at the time of Executive’s Employee's termination of employment, the Company develops, manufactures, distributes, markets or sells its products, except Employee shall not engage in the course of Executive’s employment hereunderLogistics Business in the Restricted Territory, and Employee shall not directly or indirectly indirectly, own, manage, operatejoin, control, contract with, be employed by, act in the capacity of an officer, director, trustee, shareholder or partner or consultant, or participate in any manner in the ownership, management, operation, or control of, be employed by, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any third party or of any business whose products or services compete person engaged in whole or the Logistics Business in part with the products or services (both on the market and in development) material to the Company or any business unit on the termination date that constitutes more than 5% of the Company’s revenue on the termination date (a “Competing Business”)Restricted Territory; provided, however, that Executive may in any event Employee shall be permitted to own not more than five percent (x5%) own up to a 5% passive ownership interest in any public or private entity and (y) serve on the board of any Competing Business that competes with the business of the Company and its affiliates as an immaterial part stock of its overall business, provided that Executive recuses Executive fully and completely from all matters relating a corporation required to such business.
(ii) For purposes file reports pursuant to the Securities Exchange Act of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding 1934. As to the foregoing, it shall not be Employee acknowledges that he has the ability to earn a violation of this Section 11(b), for Executive to provide services to (comparable income within or engage without the Restricted Territory in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing other than the Logistics Business and Executive does that earning a livelihood outside the Logistics Business within or without the Restricted Territory would not provide services toconstitute a hardship or an unreasonable restriction on the Employee or restrict him from earning comparable income. Employee acknowledges that the area in which the Employer engages in the Logistics Business shall geographically increase under the leadership of Employee and that, or have any responsibilities regardingas such increase occurs in such new areas, it is necessary for the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis interests of the affiliation is solely due Employer to common ownership by a private equity or similar investment fund; providedbe protected in them. Accordingly, Employee acknowledges and agrees that, upon receipt of consideration from Employer in the sum of One Hundred Dollars ($100.00), in each case, Executive shall remain bound by all other post-employment obligations under he shall, at any time and from time to time, execute an amendment to this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision amending the definition of services Restricted Territory to (or engagement in activities involving) any entity described in clauses (A) or (B) include such new areas. This Paragraph 16 shall survive the termination of this Section 11(b)(iii) shall be subject to the prior approval of the BoardAgreement.
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Covenant Not to Compete. You acknowledge that the services you are to render to the Company are of a special and unusual character, with a unique value to the Company, the loss of which cannot adequately be compensated by damages or an action at law. In view of the unique value to the Company, its subsidiaries and affiliates (collectively, the “Group”) of the services of you for which the Company has contracted hereunder, because of the confidential information to be obtained by, or disclosed to, you as herein above set forth, and as a material inducement to the Company to enter into this Letter Agreement and to pay to you the compensation stated herein and any additional benefits stated herein, and other good and valuable consideration, you covenant and agree that during your employment and during the “Non-Competition Period,” as defined below, you shall not, directly or indirectly, enter into the employment of, tender consulting or other services to, acquire any interest in (whether for your own account as an individual proprietor, or as a partner, associate, stockholder, officer, director, trustee or otherwise), or otherwise participate in any business that competes, directly or indirectly, with any member of the Group (i) The Company and its affiliates are currently engaged in the same lines of business in the business of branded and generic pharmaceuticals, with a focus on product development, clinical development, manufacturing, distribution and sales & marketing. To protect process outsourcing industry that the Confidential Information and other trade secrets members of the Company and its affiliates as well as Group are engaged in at the goodwill and competitive business time your employment is terminated, or if you are an employee of any member of the Company and its affiliates, Executive agrees, during the Employment Term and for a period of twelve (12) months after Executive’s cessation of employment with the Company, that Executive will not, unless otherwise agreed to by the Chief Executive Officer of Endo (following approval by the Chair of the Committee), anywhere in the world whereGroup, at the time you are accused of Executive’s being in competition with any of the Group pursuant to this Letter Agreement; (ii) in the provision of the business processes provided by the Group at the time your employment is terminated, or if you are an employee of any member of the Group, at the time you are accused of being in competition with any member of the Group pursuant to this Letter Agreement; (iii) in the provision of business processes that any of the Group has taken substantial steps to provide to customers at the time your employment is terminated, or if you are an employee of any of the Group, at the time you are accused of being in competition with any of the Group pursuant to this Letter Agreement; or (iv) in the provision of business processes that any of the Group are in the process of marketing to existing or potential clients that any of the Group are taking measures to retain as clients of the Group, at the time your employment is terminated, or if you are an employee of any of the Group, at the time you are accused of being in competition with any of the Group pursuant to this Letter Agreement, during your employment with the Group. You and the Company acknowledge that clauses (ii), (iii) and (iv) in the immediately preceding sentence shall not be deemed or interpreted to narrow or otherwise limit the scope of clause (i) of such sentence. For purposes of this Letter Agreement, the “Non-Competition Period” shall be the one year period following your termination of employmentemployment for any reason. Notwithstanding the foregoing, nothing in this Letter Agreement shall prevent (A) the Company develops, manufactures, distributes, markets purchase or sells its products, except ownership by you of up to two percent (2%) in the course aggregate of Executive’s employment hereunderany class of securities of any entity if such securities (i) are listed on a national securities exchange or (ii) are registered under Section 12(g) of the Securities Exchange Act of 1934; or (B) the direct or indirect ownership of securities of a private company, directly provided that, you are only Private & Confidential 5 a passive investor in such company (having no role, duty or indirectly manage, operate, control, or participate responsibility whatsoever in the management, operationoperations or direction of such company) and own no more than five percent (5%) in the aggregate of any securities of such company. If your employment with the Company is terminated for any reason, and after such termination you wish to take any action, including without limitation, taking a position with another company, which action could potentially be deemed a violation of this Letter Agreement, you shall have the right, after providing the Board with all relevant information, to request a consent to such action from the Board which consent shall not be unreasonably withheld. The Board shall respond to your request by granting or control ofdenying such consent within not more than 30 calendar days from the date the Company receives written notice of such request from you. If you disagree with the Board’s decision relating to the consent, then a third-party arbitrator (the “Arbitrator”) shall be employed byappointed within five (5) days of the date you notify the Company of your disagreement, associated with, or in any manner connected with, lend Executive’s name to, or render services or advice to, any and the third party or any business whose products or services compete in whole or in part Arbitrator shall be instructed to make a determination with the products or services (both on the market respect to whether your action would constitute a legally valid and in development) material to the Company or any business unit on the termination date that constitutes enforceable violation of this Letter Agreement within not more than 5% thirty (30) days following his appointment and such determination shall be binding on all of the parties hereto. The cost of the Arbitrator shall be borne by the Company’s revenue on the termination date (a “Competing Business”); provided, however, that Executive may in any event (x) own up to a 5% passive ownership interest in any public or private entity and (y) serve on if the board of any Competing Business that competes Arbitrator’s determination is inconsistent with your position, then the business cost of the Company and its affiliates as an immaterial part of its overall business, provided that Executive recuses Executive fully and completely from all matters relating to such business.
(ii) For purposes of this Section 11(b), any third party or any business whose products compete includes any entity with which the Company or its affiliates has had a product(s) licensing agreement during the Employment Term and any entity with which the Company or any of its affiliates is at the time of termination actively negotiating, and eventually concludes within twelve (12) months of the Employment Term, a commercial agreement.
(iii) Notwithstanding the foregoing, it shall not be a violation of this Section 11(b), for Executive to provide services to (or engage in activities involving): (A) a subsidiary, division or affiliate of a Competing Business where such subsidiary, division or affiliate is not engaged in a Competing Business and Executive does not provide services to, or have any responsibilities regarding, the Competing Business; (B) any entity that is, or is a general partner in, or manages or participates in managing, a private or public fund (including a hedge fund) or other investment vehicle, which is engaged in venture capital investments, leveraged buy-outs, investments in public or private companies, other forms of private or alternative equity transactions, or in public equity transactions, and that might make an investment which Executive could not make directly, provided that in connection therewith, Executive does not provide services to, engage in activities involved with, or have any responsibilities regarding a Competing Business; and (C) an affiliate of a Competing Business if Executive does not provide services, directly or indirectly, to such Competing Business and the basis of the affiliation is solely due to common ownership by a private equity or similar investment fund; provided, that, in each case, Executive shall remain bound by all other post-employment obligations under this Agreement including Executive’s obligations under Sections 10, 11(a), 11(c) and 11(d) herein; provided, further, that Executive’s provision of services to (or engagement in activities involving) any entity described in clauses (A) or (B) of this Section 11(b)(iii) Arbitrator shall be subject to the prior approval of the Boardborne by you.
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