Kadmon Non Compete Abbvie Undertaking
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Non-Compete Agreement In consideration of this Agreement, the Executive agrees that he will not, for a period of one year from the date of his or her termination of employment with the Company, directly or indirectly own, manage, operate, join, control, be employed by, or participate in the ownership, management, operation or control of, or be connected in any manner, including but not limited to, holding the position of shareholder, director, officer, consultant, independent contractor, executive partner, or investor with any "Competing Enterprise." For purposes of this paragraph, a "Competing Enterprise" means any entity, firm or person engaged in a business within the State of Wisconsin or the upper peninsula area of the State of Michigan (the "Territory") which is in competition with any of the businesses of the Company or any of its subsidiaries within the Territory as of the date the Executive's termination of employment, and whose aggregate gross revenues, calculated for the most recently completed fiscal year of the Competing Enterprise, derived from all such competing activities within the Territory during such fiscal year, equal at least 10% or more of such Enterprise's consolidated net revenues for such fiscal year. If the Executive notifies the Company in writing of any employment or opportunity which the Executive proposes to undertake during the one year non-compete period, and supplies the Company with any additional information which the Company may reasonably request, the Company agrees to promptly notify the Executive within thirty days after all information reasonably requested by it has been provided, whether the Company considers the proposed employment or opportunity to be prohibited by these provisions and, if so, whether the Company is willing to waive the same. Notwithstanding anything in this Section 10, the Executive shall not be prohibited from acquiring or holding up to 2% of the common stock of an entity that is traded on a national securities exchange or a nationally recognized over-the-counter market.
Employment and Non-Competition Agreements The Employment and Non-Competition Agreements described in SECTION 6.2 hereof shall have been duly executed and delivered by all parties thereto and shall be in full force and effect.
Employment; Noncompetition; Nondisclosure The Manager has not been notified that any of its executive officers or key employees named in the General Disclosure Package (each, a “Company-Focused Professional”) plans to terminate his or her employment with the Manager or Colony, as the case may be. Neither the Manager nor, to the knowledge of the Manager, any Company-Focused Professional is subject to any noncompete, nondisclosure, confidentiality, employment, consulting or similar agreement that would be violated by the present or proposed business activities of the Company or the Manager as described in the Registration Statement, the General Disclosure Package and the Prospectus.
Non-Competition Agreement (a) Executive shall not, during the term of his employment hereunder, be engaged in any other business activity pursued for gain, profit or other pecuniary advantage if such activity interferes in any material respect with Executive's duties and responsibilities hereunder. The foregoing limitations shall not be construed as prohibiting Executive from making personal investments in such form or manner as will neither require his services in the operation or affairs of the companies or enterprises in which such investments are made nor violate the terms of this paragraph 3. In addition, Executive shall not, during the period of his employment by or with the Company, and for a period of two (2) years immediately following the termination of his employment under this Agreement, for any reason whatsoever, other than a termination by the Company without cause or by Executive for Good Reason, directly or indirectly, for himself or on behalf of or in conjunction with any other person, company, partnership, corporation or business of whatever nature: (i) engage, as an officer, director, shareholder, owner, partner, joint venturer, or in a managerial capacity, whether as an employee, independent contractor, consultant or advisor, or as a sales representative, in any business in direct competition with the Company or Metals, within 200 miles of where the Company or any of Metals' subsidiaries conducts business, including any territory serviced by the Company or Metals or any of such subsidiaries (the "Territory"); (ii) call upon any person who is, at that time, within the Territory, an employee of the Company or Metals (including the respective subsidiaries thereof) in a managerial capacity for the purpose or with the intent of enticing such employee away from or out of the employ of the Company or Metals (including the respective subsidiaries thereof); (iii) call upon any person or entity which is, at that time, or which has been, within one (1) year prior to that time, a customer of the Company or Metals (including the respective subsidiaries thereof) within the Territory for the purpose of soliciting or selling products or services in direct competition with the Company or Metals within the Territory; (iv) call upon any prospective acquisition candidate, on Executive's own behalf or on behalf of any competitor, which candidate was, to Executive's actual knowledge after due inquiry, either called upon by the Company or Metals (including the respective subsidiaries thereof) or for which the Company or Metals made an acquisition analysis, for the purpose of acquiring such entity. Notwithstanding the above, the foregoing covenant shall not be deemed to prohibit Executive from acquiring as an investment not more than one percent (1%) of the capital stock of a competing business, whose stock is traded on a national securities exchange or on an over-the-counter or similar market. (b) Because of the difficulty of measuring economic losses to the Company and Metals as a result of a breach of the foregoing covenant, and because of the immediate and irreparable damage that could be caused to the Company and Metals for which they would have no other adequate remedy, Executive agrees that the foregoing covenant may be enforced by Metals or the Company in the event of breach by him, by injunctions and restraining orders. (c) It is agreed by the parties that the foregoing covenants in this paragraph 3 impose a reasonable restraint on Executive in light of the activities and business of the Company or Metals, as the case may be (including Metals' other subsidiaries) on the date of the execution of this Agreement and the current plans of Metals (including Metals' other subsidiaries); but it is also the intent of the Company and Executive that such covenants be construed and enforced in accordance with the changing activities, business and locations of the Company and Metals, as the case may be (including Metals' other subsidiaries) throughout the term of this covenant, whether before or after the date of termination of the employment of Executive. For example, if, during the term of this Agreement, the Company or Metals, as the case may be (including Metals' other subsidiaries) engages in new and different activities, enters a new business or establishes new locations for its current activities or business in addition to or other than the activities or business enumerated under the Recitals above or the locations currently established therefor, then Executive will be precluded from soliciting the customers or employees of such new activities or business or from such new location and from directly competing with such new business within 200 miles of its then-established operating location(s) through the term of this covenant. It is further agreed by the parties hereto that, in the event that Executive shall cease to be employed hereunder, and shall enter into a business or pursue other activities not in competition with the Company or Metals (including Metals' other subsidiaries), or similar activities or business in locations the operation of which, under such circumstances, does not violate clause (i) of this paragraph 3, and in any event such new business, activities or location are not in violation of this paragraph 3 or of Executive's obligations under this paragraph 3, if any, Executive shall not be chargeable with a violation of this paragraph 3 if the Company or Metals (including Metals' other subsidiaries) shall thereafter enter the same, similar or a competitive (i) business, (ii) course of activities or (iii) location, as applicable. (d) The covenants in this paragraph 3 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 are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which the court deems reasonable, and the Agreement shall thereby be reformed. (e) All of the covenants in this paragraph 3 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 Executive against the Company or Metals, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by Metals or the Company of such covenants. It is specifically agreed that the period of two (2) years following termination of employment stated at the beginning of this paragraph 3, during which the agreements and covenants of Executive made in this paragraph 3 shall be effective, shall be computed by excluding from such computation any time during which Executive is in violation of any provision of this paragraph 3.
No Existing Non-Competition Agreements No Insider is subject to any non-competition agreement or non-solicitation agreement with any employer or prior employer which could materially affect his ability to be an employee, officer and/or director of the Company, except as disclosed in the Registration Statement.
Noncompetition Agreement (a) Employee shall not, during the term of his employment hereunder, be engaged in any other business activity pursued for gain, profit or other pecuniary advantage if such activity interferes with Employee's duties and responsibilities hereunder. The foregoing limitations shall not be construed as prohibiting Employee from making personal investments in such form or manner as will neither require his services in the operation or affairs of the companies or enterprises in which such investments are made nor violate the terms of this paragraph 3. Employee will not, during the period of his employment by or with Employer, and for a period of two (2) years immediately following the termination of his employment under this Agreement, except as provided below, directly or indirectly, for himself or on behalf of or in conjunction with any other person, persons, company, partnership, corporation or business of whatever nature: (i) engage, as an officer, director, shareholder, owner, partner, joint venturer, or in a managerial capacity, whether as an employee, independent contractor, consultant or advisor, or as a sales representative, in any business in direct competition with Employer or the Company within 100 miles of where the Company or any of its subsidiaries conduct business, including any territory serviced by the Company or any of such subsidiaries (the "TERRITORY"); (ii) call upon any person who is, at that time, an employee of Employer or the Company (including the respective subsidiaries thereof) in a sales or managerial capacity for the purpose or with the intent of enticing such employee away from or out of the employ of Employer or the Company (including the respective subsidiaries thereof); (iii) call upon any person or entity which is, at that time, or which has been, within one (1) year prior to that time, a customer of the Company (including the respective subsidiaries thereof) for the purpose of soliciting or selling products or services in direct competition with the Company; or (iv) call upon any prospective acquisition candidate, on Employee's own behalf or on behalf of any competitor, which candidate was, to Employee's actual knowledge after due inquiry, either called upon by Employer or the Company (including the respective subsidiaries thereof) or for which Employer or the Company made an acquisition analysis for the purpose of acquiring such entity or all or substantially all of such entity's assets. Notwithstanding the above, the foregoing covenant shall not be deemed to prohibit Employee from acquiring as a passive investment not more than two percent (2%) of the capital stock of a competing business the stock of which is traded on a national securities exchange or on an over-the -counter or similar market. (b) Because of the difficulty of measuring economic losses to Employer or the Company as a result of a breach of the foregoing covenant, and because of the immediate and irreparable damage that could be caused to Employer or the Company for which they would have no other adequate remedy, Employee agrees that the foregoing covenant may be enforced by Employer or the Company in the event of breach or threatened breach by Employee, by injunctions, restraining orders and other appropriate equitable relief. (c) It is agreed by the parties that the foregoing covenants in this paragraph 3 impose a reasonable restraint on Employee in light of the activities and business of the Company (including the Company's subsidiaries) on the date of the execution of this Agreement and the current plans of the Company (including the Company's subsidiaries); but it is also the intent of the Company and Employee that such covenants be construed and enforced in accordance with the changing activities, business and locations of the Company (including the Company's subsidiaries) throughout the term of this covenant, whether before or after the date of termination of the employment of Employee. For example, if, during the term of this Agreement, the Company (including the Company's subsidiaries) engages in new and different activities, enters a new business or establishes new locations for its current activities or business in addition to or other than the activities or business enumerated under the Recitals above or the locations currently established therefor, then Employee will be precluded from soliciting the customers or Employees of such new activities or business or from such new location and from directly competing with such new business within 100 miles of its then-established operating location(s) through the term of this covenant. It is further agreed by the parties hereto that, in the event that Employee shall cease to be employed hereunder, and shall enter into a business or pursue other activities not in competition with the Company (including the Company's subsidiaries), or similar activities or business in locations the operation of which, under such circumstances, does not violate clause (i) of paragraph 3(a), Employee shall not be chargeable with a violation of this paragraph 3 if the Company (including the Company's subsidiaries) shall thereafter enter the same, similar or a competitive (i) business, (ii) course of activities or (iii) location, as applicable. (d) The covenants in this paragraph 3 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 which the court deems reasonable, and this Agreement shall thereby be reformed. (e) All of the covenants in this paragraph 3 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 Employee against Employer or the Company, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by Employer or the Company of such covenants. It is specifically agreed that the period of two (2) years following termination of employment stated at the beginning of this paragraph 3, during which the agreements and covenants of Employee made in this paragraph 3 shall be effective, shall be computed by excluding from such computation any time during which Employee is in violation of any provision of this paragraph 3.
Non-Compete (a) Seller acknowledges that it is familiar with the trade secrets related to the Business and with other confidential and proprietary information concerning the Business. Seller acknowledges and agrees that the Business would be irreparably damaged if Seller were to violate the provisions of this Section 5.14(a). Seller further acknowledges and agrees that the covenants and agreements set forth in this Section 5.14(a) were a material inducement to Purchaser to enter into this Agreement and to perform its obligations hereunder, and that Purchaser would not obtain the benefit of the bargain set forth in this Agreement if Seller were to breach the provisions of this Section 5.14(a). Therefore, in further consideration for the payment of the Purchase Price hereunder, and in order to protect the value of the Business acquired by Purchaser hereunder (including the goodwill inherent in the Business), during the Restricted Period, Seller will not, and will cause each of its Subsidiaries not to, directly or indirectly, for its own account or on behalf of or together with any other Person, engage in, participate in, own, manage, control or participate in the ownership, management or control of a Person engaged in (i) the development, manufacture, marketing or sale of Covered Products, or (ii) the sale of spare parts for the provision of repair or maintenance services with respect to equipment constituting Covered Products, in each case, except to the extent permitted under the Seller Allowed Field (collectively, such categories of activity, the “Seller Excluded Fields”). (b) Notwithstanding Section 5.14(a) above, nothing in this Agreement shall restrict Seller or any of its Subsidiaries from (collectively, the categories of activity below, the “Seller Allowed Fields”): (i) developing, manufacturing, marketing or selling any products other than Covered Products or spare parts for or the provision of repair or maintenance services with respect to equipment constituting Covered Products, including developing, manufacturing, marketing and selling any products primarily relating to printing by offset, inkjet, electro photographic, and gravure processes; (ii) developing any CtP Device or enhancements thereto or modifications thereof that may be useful in imaging any Thermally Imageable Film but are not developed for the purpose of creating such utility or manufacturing, marketing or selling such CtP Device or a CtP Device so enhanced or modified; (iii) developing or manufacturing a Functional Printing-Related Product; provided, so long as the AM3D Supply Agreement is in effect the foregoing exception for manufacturing shall not permit production scale manufacturing of Thermally Imageable Films or Flexographic Plates being supplied under the AM3D Supply Agreement; (iv) the internal use of a Covered Product by Seller or its Subsidiary; (v) marketing or selling any Functional Printing-Related Product to any current or potential, or future, Functional Printing Customer or marketing any Covered Product to any potential Functional Printing Customer (with sales of any Covered Products that are not Functional Printing-Related Products to be sold to Functional Printing Customers by a Person other than Seller or its Subsidiaries); (vi) the sale of spare parts for the provision of repair or maintenance services with respect to equipment constituting Covered Products to the extent then permitted to be sold pursuant to clause (v) and provided that Covered Products that are not Functional Printing-Related Products are to be sold exclusively by Purchaser; (vii) licensing, transferring, or selling or otherwise monetizing in any manner, directly or indirectly, any Intellectual Property that is owned by Seller or licensed to Seller by any Third Party, excluding any Intellectual Property licensed by or to Seller or any of its Subsidiaries (or any assignee or successor) under any Closing Agreement; (viii) performing their respective binding obligations under this Agreement and/or the Closing Agreements; (ix) owning five percent (5%) or less of the outstanding equity securities of any class of any issuer whose securities are listed and traded on a nationally recognized securities exchange or market (whether or not in the United States of America) provided that such ownership is passive; (x) owning, affiliating with, or conducting any activity with respect to, a Person that engages, either directly or indirectly, in any activity prohibited by this Section 5.14 (any such Person, together with all of its Affiliates, a “Competing Person” and any such business that engages in such activity, a “Competing Business”) that is the result of: (A) a Business Combination involving one or more of Seller or any of its Subsidiaries and any Competing Person, or (B) the acquisition of any Competing Person or any securities in any Competing Person by Seller or any of its Subsidiaries, if, in the case of either (A) or (B), no more than (x) ten percent (10%) of the total annual consolidated revenues or EBITDA of such Competing Person and (y) $100,000,000 of the total annual consolidated revenues or $25,000,000 of annual EBITDA of such Competing Person, taken as a whole, and prior to any Business Combination with Seller or any of its Subsidiaries, are generated from the Competing Business; provided, however, that Seller and its Subsidiaries may proceed with any such ownership, affiliation, or conduct notwithstanding such Competing Business being in excess of the aforementioned thresholds, if, and only if, Seller and the applicable Subsidiaries or the Competing Person, as applicable, (A) enter into a definitive agreement no later than twelve (12) months after the consummation of such ownership, affiliation or conduct to divest a sufficient portion of such Competing Business or (B) wind down, no later than twelve (12) months after the consummation of such acquisition, a sufficient portion of such Competing Business, such that, after giving effect to such divestiture or wind down, no more than (x) ten percent (10%) of the total annual consolidated revenues or annual EBITDA of such Competing Person and (y) $100,000,000 of the total annual consolidated revenues or $25,000,000 of annual EBITDA of such Competing Person, taken as a whole, are generated from the Competing Business; or (xi) acquiring a Competing Person or more than five percent (5%) of the outstanding equity securities of any class of any Competing Person that generates more than (x) ten percent (10%) of the total annual consolidated revenues or EBITDA of such Competing Person, or (y) $100,000,000 of the total annual consolidated revenues or $25,000,000 of annual EBITDA of such Competing Person, taken as a whole, from the Competing Business; provided, however, that the Restricted Parties may proceed with any such acquisition notwithstanding such Competing Business being in excess of the aforementioned thresholds, if, and only if, Seller and the applicable Subsidiaries (A) enter into a definitive agreement no later than twelve (12) months after the consummation of such acquisition to divest a sufficient portion of such Competing Business or (B) wind down, no later than twelve (12) months after the consummation of such acquisition, a sufficient portion of such Competing Business, such that, after giving effect to such divestiture or wind down, no more than (x) ten percent (10%) of the total annual consolidated revenues or annual EBITDA of such Competing Person and (y) no more than $100,000,000 of the total annual consolidated revenues or $25,000,000 of annual EBITDA of such Competing Person, taken as a whole, are generated from the Competing Business. (c) If Seller or any of its Subsidiaries is involved in a Business Combination where neither Seller nor any of its Subsidiaries prior to the Business Combination is the Controlling Entity after the Business Combination, the restrictions contained in this Section 5.14 shall not apply to the operations or businesses of any third party(ies) to the Business Combination or any of such third party’s Subsidiaries which were Subsidiaries of such third party prior to the Business Combination, in each case, as conducted prior to the consummation of the Business Combination, but shall only apply to the operations of Seller or its Subsidiaries or, if the operations of Seller or any of its Subsidiaries is integrated or consolidated with any other business of such third party of any of its Subsidiaries, the resulting business after such integration or consolidation. Seller shall be the “Controlling Entity” if (1) through a Business Combination Seller or any of its Subsidiaries controls more than fifty percent (50%) of the stock, board seats, or voting rights of another entity, (2) a majority of the directors of the surviving entity following a Business Combination are individuals who served on the board of directors of Seller immediately prior to the consummation of such Business Combination or (3) the holders of a majority of the outstanding equity interests of the surviving entity following a Business Combination were holders of equity interests of Seller immediately prior to the consummation of such Business Combination. (d) Seller agrees that this Section 5.14 (including the provisions relating to duration, geographical area and scope) is reasonable and necessary to protect and preserve Purchaser’s and the Business’ legitimate business interests and the value of the Business, and to prevent an unfair advantage from being conferred on Seller. If any provision of this Section 5.14 would be held to be excessively broad as to duration, geographical area, scope, activity or subject, for any reason, such provision shall be modified, by limiting and reducing it, so as to be enforceable to the extent permitted by applicable Law.
Confidentiality; Non-Competition (a) Executive agrees that he will not, at any time during or after the Term, make use of or divulge to any other person, firm or corporation any trade or business secret, process, method or means, or any other confidential information concerning the business or policies of the Company, which he may have learned in connection with his employment. For purposes of this Agreement, a "trade or business secret, process, method or means, or any other confidential information" shall mean and include written information reasonably treated as confidential or as a trade secret by the Company. Executive's obligation under this Section 4.3 (a) shall not apply to any information which (i) is known publicly; (ii) is in the public domain or hereafter enters the public domain without the fault of Executive; (iii) is known to Executive prior to his receipt of such information from the Company, as evidenced by written records of Executive or (iv) is hereafter disclosed to Executive by a third party not under an obligation of confidence to the Company. Executive agrees not to remove from the premises of the Company, except as an employee of the Company in pursuit of the business of the Company or except as specifically permitted in writing by the Company, any document or other object containing or reflecting any such confidential information. Executive recognizes that all such documents and objects, whether developed by him or by someone else, will be the sole exclusive property of the Company. Upon termination of his employment hereunder, Executive shall forthwith deliver to the Company all such confidential information, including without limitation all lists of customers, correspondence, accounts, records and any other documents or property made or held by him or under his control in relation to the business or affairs of the Company, and no copy of any such confidential information shall be retained by him. (b) If Executive's employment is terminated for any reason other than for Cause, Executive shall not for a period of one year from the date of such termination, directly or indirectly, whether as an employee, consultant, independent contractor, partner, or joint venturer, (i) perform any services for a competitor which has material operations which directly compete with the Company in the sale of any products sold by the Company at the time of the termination of Executive's employment; (ii) solicit or induce, or in any manner attempt to solicit or induce, any person employed by, or as agent of, the Company to terminate such person's contract of employment or agency, as the case may be, with the Company or (iii) divert, or attempt to divert, any person, concern, or entity from doing business with the Company, nor will he attempt to induce any such person, concern or entity to cease being a customer or supplier of the Company. Notwithstanding anything herein to the contrary, this Section 4.3(b) shall not prevent Executive from acquiring securities representing not more than 5% of the outstanding voting securities of any publicly held corporation.
Non-Competition and Non-Solicitation Agreement Without the prior written consent of the Company, Employee shall not, during the term of this Agreement, or for a two (2) year period of time following the date of termination of this Agreement or the termination of Employee's employment with the Company: a. Solicit business from, attempt to do business with, or do business with any customer of the Company which either: (1) Employee initially called on, initially serviced, initially did business with or had initial contact with during his/her employment at the Company; or (2) Employee became initially acquainted with or received Confidential Information regarding as a result of his/her employment at the Company. This restriction applies only to businesses that are within the scope of services or products provided by the Company. b. Induce, solicit or attempt to solicit or induce any employee of the Company (or any affiliate of the Company) to leave their employment with the Company and/or accept employment elsewhere.
Non-Compete Agreements The Company, in its sole discretion, may require you to execute a separate non-compete, non-solicitation, or similar agreement in connection with the grant of the Restricted Stock Units pursuant to this Agreement or in connection with the acceleration of the Restricted Stock Units in accordance with the provisions of Section 6 of this Agreement.
