Non-Competition Agreement. (a) Subject to Section 3(a) and Section 12, Employee will 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, directly or indirectly, for himself or on behalf of or in conjunction with any other person, company, partnership, corporation, business or entity 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 selling any products or services in direct competition with the Company, within 100 miles of (i) the principal executive offices of the Company or (ii) any place to which the Company provides products or services or in which the Company (including the subsidiaries thereof) is in the process of initiating business operations during the term of this covenant (the "Territory"); (ii) call upon, hire, attempt to hire, contact or solicit with respect to hiring (for Employee or on behalf of another) any person who is, at that time, or who has been within one (1) year prior to that time, an employee of the Company (including the subsidiaries thereof) in a managerial or sales capacity, provided that Employee shall be permitted to call upon and hire any member of his immediate family; (iii) call upon, solicit, divert or take away or attempt to call upon, solicit, divert or take away 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 subsidiaries thereof) for the purpose of soliciting or selling products or services in direct competition with the Company; (iv) call upon any prospective acquisition candidate, on Employee's own behalf or on behalf of any competitor, with which candidate the Company (including the subsidiaries thereof) entered into substantive discussions or for which candidate the Company made an acquisition analysis, for the purpose of acquiring such entity; or (v) disclose customers, whether current or proposed, of the Company (or the subsidiaries thereof) to any person, firm, partnership, corporation or business for any reason or purpose whatsoever. Notwithstanding the above, the foregoing covenant shall not be deemed to prohibit Employee from acquiring as an investment not more than three percent (3%) of the capital stock of a competing business, whose stock is traded on a national securities exchange or over-the-counter. (b) Because of the difficulty of measuring economic losses to 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 the Company for which it would have no other adequate remedy, Employee agrees that the foregoing covenant may be enforced by the Company in the event of breach by him by injunctions and restraining orders without the necessity of posting any bond therefor. (c) In the course of Employee’s employment with the Company, Employee will become exposed to certain of the Company’s confidential information and business relationships, which the above covenants are designed to protect. 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, subject to the following paragraph. 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 established 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 this paragraph 3, and in any event such new business, activities or location are not in violation of this paragraph 3 or of Employee's obligations under this paragraph 3, if any, 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 are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent that the court deems reasonable, and the Agreement shall thereby be reformed to such extent. (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 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 of two (2) years following Employee’s employment set forth 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.
Appears in 8 contracts
Samples: Employment Agreement (Fyi Inc), Employment Agreement (Fyi Inc), Employment Agreement (Fyi Inc)
Non-Competition Agreement. (a) Subject to Section 3(a) and Section 12, Employee will 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, directly or indirectly, for himself or on behalf of or in conjunction with any other person, company, partnership, corporation, business or entity 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 selling any products or services in direct competition with the Company, within 100 miles of (i) the principal executive offices of the Company or (ii) any place to which the Company provides products or services or in which the Company (including the subsidiaries thereof) is in the process of initiating business operations during the term of this covenant (the "Territory");
(ii) call upon, hire, attempt to hire, contact or solicit with respect to hiring (for Employee or on behalf of another) upon any person who is, at that time, or who has been within one (1) year prior to that timethe Territory, an employee of the Company (including the subsidiaries thereof) in a managerial capacity for the purpose or sales capacitywith the intent of enticing such employee away from or out of the employ of the Company (including the subsidiaries thereof), provided that Employee shall be permitted to call upon and hire any member of his immediate family;
(iii) call upon, solicit, divert or take away or attempt to call upon, solicit, divert or take away 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 subsidiaries thereof) within the Territory for the purpose of soliciting or selling products or services in direct competition with the CompanyCompany within the Territory;
(iv) call upon any prospective acquisition candidate, on Employee's own behalf or on behalf of any competitor, with which candidate was either called upon by the Company (including the subsidiaries thereof) entered into substantive discussions or for which candidate the Company made an acquisition analysis, for the purpose of acquiring such entity; or
(v) disclose customers, whether current in existence or proposed, of the Company (or the subsidiaries thereof) to any person, firm, partnership, corporation or business for any reason or purpose whatsoever. Notwithstanding the above, the foregoing covenant shall not be deemed to prohibit Employee from acquiring as an investment not more than three percent (3%) of the capital stock of a competing business, whose stock is traded on a national securities exchange or over-the-counter.
(b) Because of the difficulty of measuring economic losses to 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 the Company for which it would have no other adequate remedy, Employee agrees that the foregoing covenant may be enforced by the Company in the event of breach by him by injunctions and restraining orders without the necessity of posting any bond therefor.
(c) In the course of Employee’s employment with the Company, Employee will become exposed to certain of the Company’s confidential information and business relationships, which the above covenants are designed to protect. 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, subject to the following paragraph. 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 established 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 this paragraph 3, and in any event such new business, activities or location are not in violation of this paragraph 3 or of Employee's obligations under this paragraph 3, if any, 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 are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent that the court deems reasonable, and the Agreement shall thereby be reformed to such extent.
(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 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 of two (2) years following Employee’s 's employment set forth 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.
Appears in 4 contracts
Samples: Employment Agreement (Fyi Inc), Employment Agreement (Fyi Inc), Employment Agreement (Fyi Inc)
Non-Competition Agreement. (a) Subject to Section 3(a) and Section 12, Employee Executive will not, during the period of his employment by or with the Company, and for a period of two six (26) years months (subject to extension, provided below) immediately following the termination of his employment under this AgreementAgreement (the "Restricted Period"), for any reason whatsoever, directly or indirectly, for himself or on behalf of or in conjunction with any other person, company, partnership, corporation, corporation or business or entity of whatever nature:
(i) engage, as an officer, director, shareholder, owner, partner, joint venturerventure, or in a managerial capacity, whether as an employee, independent contractor, consultant or advisor, or as a sales representative, in the development, distribution or sale of any business selling any non-adult sophisticate publication or related services or products or services in direct competition with the Company, within 100 miles Metro or any of (i) the principal executive offices Metro's other subsidiaries in any state of the Company United States of America or (ii) in any place to which the Company provides products or services or foreign country in which the Company (including the subsidiaries thereof) Company, Metro or any such subsidiary is in the process of initiating conducting or has conducted business operations during the term of this covenant (the "Territory");
(ii) call upon, hire, attempt to hire, contact or solicit with respect to hiring (for Employee or on behalf of another) upon any person who is, at that time, or who has been within one (1) year prior to that time, is an employee of the Company (including the or Metro or any of its other subsidiaries thereof) in a managerial or sales capacity, provided that Employee shall be permitted to call upon and hire capacity for the purpose or with the intent of enticing such employee away from or out of the employ of the Company or Metro or any member of his immediate familyits other subsidiaries;
(iii) call upon, solicit, divert or take away or attempt to call upon, solicit, divert or take away upon any person or entity which is, at that time, or which has been, been within one two (12) year years prior to that time, a customer of the Company (including the or Metro or any of its other subsidiaries thereof) for the purpose of soliciting solicititig or selling products or services in direct competition with the CompanyCompany or Metro or any of it other subsidiaries;
(iv) call upon any prospective acquisition candidate, on EmployeeExecutive's own behalf or on behalf of any competitor, with which candidate was either called upon by the Company (including the or Metro or any of its other subsidiaries thereof) entered into substantive discussions or for which candidate the Company or Metro or any of its other subsidiaries made an acquisition analysis, analysis for the purpose of acquiring such entity; or
(v) disclose customers, whether current or proposed, of the Company (or the subsidiaries thereof) to any person, firm, partnership, corporation or business for any reason or purpose whatsoever. Notwithstanding the above, the foregoing covenant shall not be deemed decided to prohibit Employee Executive from acquiring as an investment not more than three one percent (31%) of the capital stock of a competing business, business whose stock is traded on a national securities exchange or an over-the-countercounter or similar market; (ii) engaging in any business which Executive is involved in as of the date of this Agreement, which businesses are specifically set forth on Exhibit "A" attached hereto; or (iii) participating in any project which is offered to, but rejected by, the Company and Metro in accordance with Section 6 below. The Company may elect to extend the term of the Restricted Period for up to an additional twenty-four (24) months (for a total of thirty (30) months from the termination of Executive's employment) by notifying Executive of such decision, in writing, during the Restricted Period; provided, however, that if the Company makes such election it shall pay to Executive during such extension his Base Salary in accordance with Section 2(a) above. If the Company elects to extend the Restricted Period as provided above, the Restricted Period shall deemed to be a thirty (30) month period from the termination of Executive's employment under this Agreement (or such shorter period during which the Company elects to continue to pay the Base Salary to Executive as provided above), and the restrictions set forth above shall continue during such Restricted Period, as extended.
(b) Because of the difficulty of measuring economic losses to the Company and Metro 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 Metro for which it they would have no other adequate remedy, Employee Executive agrees that the foregoing covenant may be enforced by the Company or Metro in the event of any breach or threatened breach by him him, by injunctions and injunctions, restraining orders without the necessity of posting any bond therefor.and other appropriate equitable relief
(c) In the course of Employee’s employment with the Company, Employee will become exposed to certain of the Company’s confidential information and business relationships, which the above covenants are designed to protect. 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, subject to the following paragraph. 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 established 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 this paragraph 3, and in any event such new business, activities or location are not in violation of this paragraph 3 or of Employee's obligations under this paragraph 3, if any, 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 Section 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 that which the court deems reasonable, reasonable and the Agreement shall thereby be reformed to such extentreformed.
(ed) All of the covenants in this paragraph Section 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 Executive against the CompanyCompany or Metro (other than for nonpayment of any sums due and owing pursuant to this Agreement), whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by Metro or the Company of such covenants. It is specifically agreed that the period of two Restricted Period (2as may be extended by the Company) years following Employee’s employment set forth at the beginning of this paragraph 3, during which the agreements and covenants of Employee Executive made in this paragraph Section 3 shall be effective, shall be computed by excluding from such computation any time during which Employee Executive is in violation of any provision of this paragraph Section 3.
Appears in 3 contracts
Samples: Employment Agreement (Metro Global Media Inc), Employment Agreement (Metro Global Media Inc), Employment Agreement (Metro Global Media Inc)
Non-Competition Agreement. (aA) Subject to Section 3(a) and Section 12, Employee will not, during During the period term of his employment by or with the Company, this Agreement and for a period of two one year after the termination date of this Agreement (2whether such termination be with or without cause), Employee agrees that he will not directly or indirectly, own, operate or otherwise work for or participate in any competitive business in the United States which designs, develops, manufactures or markets any product or service that in any way competes with Parent’s or the Company’s business, products or services as conducted, or planned to be conducted, on the date of termination (a “Competitive Business”).
(B) years immediately following During the term of this Agreement and for a period ending one year from the termination of his Employee’s employment under with Parent and the Company, whether by reason of the expiration of the term of this Agreement, for any reason whatsoeverresignation, discharge by Parent and the Company or otherwise, Employee hereby agrees that Employee will not, directly or indirectly, for himself or on behalf of or in conjunction with any other person, company, partnership, corporation, business or entity of whatever nature:
(i) engagesolicit, as an officer, director, shareholder, owner, partner, joint venturer, otherwise attempt to employ or in a managerial capacity, whether as an employee, independent contractor, consultant contract with any current or advisor, future employee of Parent or as a sales representative, the Company for employment or otherwise in any business selling Competitive Business or otherwise offer any products inducement to any current or services in direct competition with future employee of Parent or the Company to leave Parent’s or the Company, within 100 miles of (i) the principal executive offices of the Company or (ii) any place to which the Company provides products or services or in which the Company (including the subsidiaries thereof) is in the process of initiating business operations during the term of this covenant (the "Territory");’s employ; or
(ii) call upon, hire, attempt to hirecontact or solicit any customer or client of Parent or the Company (an “Existing Customer”), contact or solicit any individual or business entity with respect whom Parent or the Company has directly communicated for the purpose of rendering services prior to hiring the effective date of such termination (a “Potential Customer”), or otherwise provide any other products or services for Employee any Existing Customer or Potential Customer of Parent or the Company, on behalf of another) any person who is, at that time, a Competitive Business or who has been within one (1) year prior to that time, an employee of the Company (including the subsidiaries thereof) in a managerial manner that is competitive to the Parent’s or sales capacity, provided that Employee shall be permitted to call upon and hire any member of his immediate family;the Company’s business; or
(iii) call uponUse or divulge to anyone any information about the identity of Parent’s or the Company’s customers or suppliers (including without limitation, solicit, divert mental or take away or attempt to call upon, solicit, divert or take away any person or entity which is, at that timewritten customer lists and customer prospect lists), or which has beeninformation about customer requirements, within one transactions, work orders, pricing policies, plans, or any other Confidential Information.
(1C) year prior to that time, a customer of the Company (including the subsidiaries thereof) for For the purpose of soliciting this Agreement, Competitive Business shall mean any business operation (including a sole proprietorship) in the United States which designs, develops, manufactures or selling markets any product or service that in any way competes with Parent’s or the Company’s health information access system business, products or services in direct competition with the Company;
(iv) call upon any prospective acquisition candidateas conducted, on Employee's own behalf or on behalf of any competitorcontemplated to be conducted, with which candidate the Company (including the subsidiaries thereof) entered into substantive discussions or for which candidate the Company made an acquisition analysis, for the purpose of acquiring such entity; or
(v) disclose customers, whether current or proposed, of the Company (or the subsidiaries thereof) to any person, firm, partnership, corporation or business for any reason or purpose whatsoever. Notwithstanding the above, the foregoing covenant shall not be deemed to prohibit Employee from acquiring as an investment not more than three percent (3%) of the capital stock of a competing business, whose stock is traded on a national securities exchange or over-the-counter.
(b) Because of the difficulty of measuring economic losses to 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 the Company for which it would have no other adequate remedy, Employee agrees that the foregoing covenant may be enforced by the Company in the event of breach by him by injunctions and restraining orders without the necessity of posting any bond therefor.
(c) In the course of Employee’s employment with the Company, Employee will become exposed to certain of the Company’s confidential information and business relationships, which the above covenants are designed to protect. 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, subject to the following paragraph. 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 established 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 this paragraph 3, and in any event such new business, activities or location are not in violation of this paragraph 3 or of Employee's obligations under this paragraph 3, if any, 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 applicabletermination.
(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 that the court deems reasonable, and the Agreement shall thereby be reformed to such extent.
(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 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 of two (2) years following Employee’s employment set forth 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.
Appears in 3 contracts
Samples: Employment Agreement (Streamline Health Solutions Inc.), Employment Agreement (Streamline Health Solutions Inc.), Employment Agreement (Streamline Health Solutions Inc.)
Non-Competition Agreement. (a) Subject to Section 3(a) and Section 12, Employee will The Executive shall not, during the period of his the Executive's employment by or with the Company, and for a period of two one (21) years year immediately following the termination of his the Executive's employment under this Agreement, for any reason whatsoever, directly or indirectly, for himself the Executive or on behalf of or in conjunction with any other person, persons, company, partnership, corporation, corporation or business or entity of whatever nature:
(i) engage, as an officer, director, shareholderstockholder, owner, partner, joint venturer, or in a managerial managerial, consulting or advisory capacity, whether as an employee, independent contractor, consultant or advisor, or as a sales representative, in any business selling which offers any services or products or services in direct competition with the Company, Company within 100 miles the United States of America (i) the principal executive offices of the Company or (ii) any place to which the Company provides products or services or in which the Company (including the subsidiaries thereof) is in the process of initiating business operations during the term of this covenant (the "TerritoryUSA");
(ii) call upon, hire, attempt to hire, contact or solicit with respect to hiring (for Employee or on behalf of another) upon any person who is, at that time, or who has been within one (1) year prior to that timethe USA, an employee of the Company (including the subsidiaries thereof) in a managerial capacity for the purpose or sales capacity, provided that Employee shall be permitted to call upon and hire any member with the intent of his immediate familyenticing such employee away from or out of the employ of the Company;
(iii) call upon, solicit, divert or take away or attempt to call upon, solicit, divert or take away upon any person or entity which is, at that time, or which has been, within one (1) year prior to that time, a customer client of the Company (including the subsidiaries thereof) for the purpose of soliciting or selling products or services in direct competition with the Company;within the
(iv) call upon any prospective acquisition candidate, on Employeethe Executive's own behalf or on behalf of any competitor, with which candidate was, to the Executive's actual knowledge after due inquiry, either called upon by the Company (including the subsidiaries thereof) entered into substantive discussions or for which candidate the Company made an acquisition analysis, for the purpose of acquiring such entity; or
(v) disclose customersinduce or attempt to induce any person known by the Executive to be a customer, whether current supplier, or proposed, business relation of the Company (to cease doing business with the Company or in any way interfere with the subsidiaries thereof) relationship between the Company and any person known by the Executive to any personbe a customer, firmsupplier, partnershiplicensee, corporation or business for any reason or purpose whatsoeverrelation of the Company. Notwithstanding the above, the foregoing covenant covenants shall not be deemed to prohibit Employee the Executive from acquiring as an investment not more than three one percent (31%) of the capital stock of a competing business, whose stock is traded on a national securities exchange or over-the-counter.
(b) Because of the difficulty of measuring economic losses to the Company as a result of a breach of the foregoing covenantcovenants, and because of the immediate and irreparable damage that could be caused to the Company for which it the Company would have no other adequate remedy, Employee the Executive agrees that the foregoing covenant covenants may be enforced by the Company in the event of breach by him the Executive, by injunctions and restraining orders without the necessity of posting any bond therefororders.
(c) In the course of Employee’s employment with the Company, Employee will become exposed to certain of the Company’s confidential information and business relationships, which the above covenants are designed to protect. 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, subject to the following paragraph. 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 established 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 this paragraph 3, and in any event such new business, activities or location are not in violation of this paragraph 3 or of Employee's obligations under this paragraph 3, if any, 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 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 that which the court deems reasonable, and the this Agreement shall thereby be reformed reformed.
(d) The Executive acknowledges that the covenants in this Paragraph 3: (i) are agreed to such extentby the Executive as an inducement for and in consideration of the Company's entering into this Agreement; and (ii) contain limitations as to time, geographic area and scope of activity to be restrained that are reasonable and do not impose a greater restraint than is necessary to protect the goodwill or other business interests of Company.
(e) All The Executive agrees that all of the covenants in this paragraph Paragraph 3 shall be construed as an agreement independent of any other provision in this Agreement, that the Company shall be the beneficiary of and have the right to enforce such covenants, and that the existence of any claim or cause of action of Employee 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 of two one (21) years following Employee’s employment set forth 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.year
Appears in 2 contracts
Samples: Employment Agreement (Qk Healthcare Inc), Employment Agreement (Qk Healthcare Inc)
Non-Competition Agreement. (a) Subject to Section 3(a) and Section 12, Employee will 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, except as provided herein, directly or indirectly, for himself or on behalf of or in conjunction with any other person, company, partnership, corporation, corporation or business or entity 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 selling any products or services in direct competition with the CompanyCompany or TransCom or any of their respective subsidiaries, within 100 miles of (i) the principal executive offices of where the Company or (ii) any place to which the Company provides products or services or in which the Company (including the of TransCom's other subsidiaries thereof) is in the process of initiating business operations during the term of this covenant has a physical location (the "Territory");
(ii) call upon, hire, attempt to hire, contact or solicit with respect to hiring (for Employee or on behalf of another) upon any person who is, at that time, or who has been within one (1) year prior to that time, an employee of the Company or TransCom (including the respective subsidiaries thereof) in a sales or managerial capacity for the purpose or sales capacity, provided that Employee shall be permitted to call upon and hire any member with the intent of his immediate familyenticing such employee away from or out of the employ of the Company or TransCom (including the respective subsidiaries thereof);
(iii) call upon, solicit, divert or take away or attempt to call upon, solicit, divert or take away 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 TransCom (including the respective subsidiaries thereof) for the purpose of soliciting or selling products or services in direct competition with the CompanyCompany or TransCom;
(iv) call upon any prospective acquisition candidate, on EmployeeExecutive's own behalf or on behalf of any competitor, with which candidate was, to Executive's actual knowledge, either called upon by the Company or TransCom (including the respective subsidiaries thereof) entered into substantive discussions or for which candidate the Company or TransCom made an acquisition analysis, for the purpose of acquiring such entity or all or substantially all of such entity; or
(v) disclose customers, whether current or proposed, of the Company (or the subsidiaries thereof) to any person, firm, partnership, corporation or business for any reason or purpose whatsoever's assets. Notwithstanding the above, the foregoing covenant shall not be deemed to prohibit Employee Executive from (i) participating in the activities as and to the extent described on Schedule 13.1 to the Agreement and Plan of Organization dated as of April __, 1998 to which the Company, TransCom and the Executive are parties, or (ii) acquiring as an a passive investment not more than three two percent (32%) of the capital stock of a competing business, whose business the stock of which is traded on a national securities exchange or on an over-the-countercounter or similar market.
(b) Because of the difficulty of measuring economic losses to the Company and TransCom 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 TransCom for which it they would have no other adequate remedy, Employee Executive agrees that the foregoing covenant may be enforced by TransCom or the Company in the event of breach or threatened breach by him Executive, by injunctions and injunctions, restraining orders without the necessity of posting any bond thereforand other appropriate equitable relief.
(c) In the course of Employee’s employment with the Company, Employee will become exposed to certain of the Company’s confidential information and business relationships, which the above covenants are designed to protect. It is agreed by the parties that the foregoing covenants in this paragraph 3 impose a reasonable restraint on Employee Executive in light of the activities and business of the Company or TransCom, as the case may be (including the CompanyTransCom's other subsidiaries) on the date of the execution Effective Date of this Agreement and the current plans of the Company TransCom (including the CompanyTransCom's other subsidiaries); but it is also the intent of the Company and Employee Executive that such covenants be construed and enforced in accordance with the changing activities, business and locations of the Company and TransCom, as the case may be (including the CompanyTransCom's other subsidiaries) throughout the term of this covenantthese covenants, whether before or after the date of termination of the employment of Employee, subject to the following paragraphExecutive. For example, if, during the Term term of this Agreementthese covenants, the Company or TransCom, as the case may be (including the CompanyTransCom's other subsidiaries) engages engage in new and different activitiesactivities related to the Business, enters enter a new business related to the Business or established establish new locations for its their current activities or business businesses in addition to or other than the activities or business businesses enumerated under the Recitals above or the locations currently established therefor, then Employee Executive will be precluded from soliciting the customers or employees of such new activities or business businesses or from such new location locations and from directly competing with such new business businesses within 100 miles of its all then-established operating location(s) through the term of this covenantthese covenants. It is further agreed by the parties hereto that, in the event that Employee Executive shall cease to be employed hereunder, and shall enter into a business or pursue other activities not in competition with the Company or TransCom (including the CompanyTransCom's other subsidiaries), or similar activities or business in locations the operation of which, under such circumstances, does not violate clause (i) of this paragraph 33(a), and in any event such new business, activities or location are not in violation of this paragraph 3 or of Employee's obligations under this paragraph 3, if any, Employee Executive shall not be chargeable with a violation of this paragraph 3 if the Company or TransCom (including the CompanyTransCom's 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 herein are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent that which the court deems reasonable, and the this Agreement shall thereby be reformed to such extentreformed.
(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 Executive against the CompanyCompany or TransCom, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by TransCom or the Company of such covenants. It is specifically agreed that the period of two (2) years following Employee’s termination of employment set forth stated at the beginning of this paragraph 3, during which the agreements and covenants of Employee Executive made in this paragraph 3 shall be effective, shall be computed by excluding from such computation any time during which Employee Executive is in violation of any provision of this paragraph 3.
Appears in 1 contract
Samples: Founder's Employment Agreement (Transportation Components Inc)
Non-Competition Agreement. (a) Subject to Section 3(a) and Section 12, Employee will shall not, during the period of his employment by or with the Company, Company and for a period of two (2) years immediately year period following the termination of his employment under this AgreementSection 5(c) hereto, or for any reason whatsoever, directly or indirectly, for himself or on behalf of or in conjunction with any other person, company, partnership, corporation, business or entity of whatever nature:a one (1) year period following the termination of
(i) engage, as an officer, director, shareholder, owner, partner, joint venturer, trustee, or in a managerial capacity, whether as an employee, independent contractor, agent, consultant or advisor, or as a sales representative, in any business selling any products or services in direct competition with the Company, within 100 miles of (i) the principal executive offices of the Company or (ii) any place to which the Company provides products or services or in which the Company (including the subsidiaries thereof) is in the process of initiating business operations during the term of this covenant (the "Territory");
(ii) call upon, hire, attempt to hire, contact or solicit with respect to hiring (for Employee or on behalf of another) upon any person who is, at that time, or who has been within one (1) year prior to that time, an employee of the Company (including the subsidiaries thereof) in a managerial capacity for the purpose or sales capacity, provided that Employee shall be permitted to call upon and hire any member with the intent of his immediate familyenticing such employee away from or out of the employ of the Company;
(iii) call upon, solicit, divert or take away or attempt to call upon, solicit, divert or take away 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 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 the Employee's own behalf or on behalf of any competitorcompetitor of the Company, with which candidate was either called upon by the Company (including the subsidiaries thereof) entered into substantive discussions or for which candidate the Company made an acquisition analysis, for the purpose of acquiring such entity; or
(v) disclose customers. For purposes of this Section and for purposes of Sections 5, whether current or proposed6, 7, 8 and 16, the term "Company" shall be deemed to include all direct and indirect subsidiaries, and affiliates of the Company (or the subsidiaries thereof) to any person, firm, partnership, corporation or business for any reason or purpose whatsoeverCompany. Notwithstanding the above, the foregoing covenant shall not be deemed to prohibit Employee from acquiring as an investment not more than three five percent (35%) of the capital stock of a competing business, whose stock is publicly traded on a national securities exchange or on the over-the-countercounter market.
(b) Because of the difficulty of measuring economic losses to 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 the Company for which it would have no other adequate remedy, Employee agrees that the foregoing covenant may be enforced by the Company in the event of breach by him by injunctions and restraining orders without the necessity of posting any bond therefor.damage
(c) In the course of Employee’s employment with the Company, Employee will become exposed to certain of the Company’s confidential information and business relationships, which the above covenants are designed to protect. It is agreed by the parties that the foregoing covenants in this paragraph Section 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)current plans; 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, subject to the following paragraph. 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 established 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 this paragraph 3, and in any event such new business, activities or location are not in violation of this paragraph 3 or of Employee's obligations under this paragraph 3, if any, 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 Section 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 that the court deems reasonable, and the Agreement shall thereby be reformed to such extent.
(e) All of the covenants in this paragraph Section 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 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 ; provided, however, that the Company's continued failure to make payments to Employee under Section 2 of this Agreement shall constitute such a defense.
(f) Notwithstanding any of the foregoing, if any applicable law shall reduce the time period during which Employee shall be prohibited from engaging in any competitive activity described in Section 3(a) hereof, the period of two (2) years following Employee’s employment set forth at the beginning of this paragraph 3, during time for which the agreements and covenants of Employee made in this paragraph 3 shall be effective, prohibited pursuant to Section 3(a) hereof shall be computed the maximum time permitted by excluding from such computation any time during which Employee is in violation of any provision of this paragraph 3law.
Appears in 1 contract
Samples: Employment Agreement (Prime Foods Development Corp)
Non-Competition Agreement. (a) Subject to Section 3(a) and Section 12, Employee will not, during the period of his employment Employment by or with the Company, and for a period equal to the longer of (i) two (2) years or (ii) the period during which Employee is entitled to receive and is receiving any payment pursuant to paragraph 5(d) hereof, immediately following the termination of his employment under this Agreement, for any reason whatsoever, directly or indirectly, for himself or on behalf of or in conjunction with any other person, persons, company, partnership, corporation, corporation or business or entity 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 selling any products or services in direct competition with the Company, Company within 100 miles of (i) the principal executive offices of where the Company or (ii) where any place to which of the Company's subsidiaries or affiliates conducts business, including any territory serviced by the Company provides products or services or in which the Company (including the any of such subsidiaries thereof) is in the process of initiating business operations during the term of this covenant (the "Territory");
(ii) call upon, hire, attempt to hire, contact or solicit with respect to hiring (for Employee or on behalf of another) upon any person who is, at that time, or who has been within one (1) year prior to that timethe Territory, an employee of the Company (including the respective subsidiaries and/or affiliates thereof) in a managerial capacity for the purpose or sales capacitywith the intent of enticing such employee away from or out of the employ of the Company (including the respective subsidiaries and/or affiliates thereof), provided that Employee shall be permitted to call upon and hire any member of his or her immediate family;
(iii) call upon, solicit, divert or take away or attempt to call upon, solicit, divert or take away 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 and/or affiliates thereof) within the Territory for the purpose of soliciting or selling products or services in direct competition with the CompanyCompany (including the respective subsidiaries and/or affiliates thereof) within the Territory;
(iv) call upon any prospective acquisition candidate, on Employee's own behalf or on behalf of any competitor, with which candidate was either called upon by the Company (including the respective subsidiaries and/or affiliates thereof) entered into substantive discussions or for which candidate the Company (including the respective subsidiaries and/or affiliates thereof) made an acquisition analysis, for the purpose of acquiring such entity; or
. In addition to (vand not in lieu of) disclose customersthe restriction contained in clause (ii) above, whether current Employee agrees that, during the period that the restrictions contained in this Section 3 remain in effect, ad so long as he is employed by, or proposedotherwise affiliated with, Consolidation Capital Corporation ("CCC"), he shall not, directly or indirectly, offer employment with CCC to, or otherwise allow CCC to employ, any person who: (1) is employed by the Company or a subsidiary of the Company at the time; (2) was so employed by the Company or a subsidiary of the Company within one (1) year prior to such time; or (3) provides (or within the subsidiaries thereofprior year provided) substantial service to the Company or a subsidiary of the Company as part of an entity that is or was a vendor or other outside service provider to the Company or any personsubsidiary, firm, partnership, corporation or business for any reason or purpose whatsoeverexcluding only X. Xxxxxxx Xxxx and Xxxxxxx Xxxxxxx. Notwithstanding the above, the foregoing covenant shall not be deemed to prohibit Employee from acquiring capital stock in CCC or serving as an officer, director or employee or consultant to CCC, or acquiring as an investment not more than three one percent (31%) of the capital stock of a competing business, whose stock is traded on a national securities exchange or over-the-counter; provided that such actions do not otherwise breach Employee's obligations hereunder.
(b) Because of the difficulty of measuring economic losses to 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 the Company for which it they would have no other adequate remedy, Employee agrees that the foregoing covenant may be enforced by the Company in the event of breach by him him, by injunctions and restraining orders without the necessity of posting any bond therefororders.
(c) In the course of Employee’s employment with the Company, Employee will become exposed to certain of the Company’s confidential information and business relationships, which the above covenants are designed to protect. 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 subsidiariessubsidiaries and/or affiliates) 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 subsidiariesother subsidiaries and/or affiliates) throughout the term of this covenant, whether before or after the date of termination of the employment of Employee, subject to the following paragraph. 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 established 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 subsidiariesother subsidiaries and including businesses that Employee knows are then being considered by the Company), 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 Employee's obligations under this paragraph 3, if any, 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 are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent that which the court deems reasonable, and the Agreement shall thereby be reformed to such extentreformed.
(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 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 of two (2) years following Employee’s employment set forth 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.
(f) Notwithstanding any of the foregoing, if any applicable law shall reduce the time period during which Employee shall be prohibited from engaging in any competitive activity described in paragraph 3(a) hereof, the period of time for which Employee shall be prohibited pursuant to paragraph 3(a) hereof shall be the maximum time permitted by law. However, in the event that the time period specified by paragraph 3(a) shall be so reduced, then, notwithstanding the provisions of paragraph 5(d) hereof, Employee shall be entitled to receive from the Company his base salary at the rate then in effect solely for the longer of (i) the time period during which the provisions of paragraph 3(a) shall be enforceable under the provisions of such applicable law, or (ii) the time period during which Employee is not engaging in any competitive activity, but in no event longer than the term provided in paragraph 5(d).
Appears in 1 contract
Non-Competition Agreement. (a) Subject to Section 3(a) and Section 12, Employee High will not, during the period of his High's employment by or with the Company, and for a period of two one (21) years year immediately following the termination of his High's employment under this Agreement, for any reason whatsoever, directly or indirectly, for himself High or on behalf of or in conjunction with any other person, persons, company, partnership, corporation, corporation or business or entity of whatever nature:
(i) engage, as an officer, director, shareholderstockholder, owner, partner, joint venturer, or in a managerial managerial, consulting or advisory capacity, whether as an employee, independent contractor, consultant or advisor, or as a sales representative, in any business selling which offers any services or products or services in direct competition with Company within the Company, within 100 miles of (i) the principal executive offices of the Company or (ii) any place to which the Company provides products or services or in which the Company (including the subsidiaries thereof) is in the process of initiating business operations during the term of this covenant (the "Territory");
(ii) call upon, hire, attempt to hire, contact or solicit with respect to hiring (for Employee or on behalf of another) upon any person who is, at that time, or who has been within one (1) year prior to that timethe Territory, an employee of the Company (including the subsidiaries thereof) in a managerial capacity for the purpose or sales capacity, provided that Employee shall be permitted to call upon and hire any member with the intent of his immediate familyenticing such employee away from or out of the employ of Company;
(iii) call upon, solicit, divert or take away or attempt to call upon, solicit, divert or take away upon any person or entity which is, at that time, or which has been, within one (1) year prior to that time, a customer client of Company within the Company (including the subsidiaries thereof) Territory for the purpose of soliciting or selling products or services in direct competition with Company within the CompanyTerritory;
(iv) call upon any prospective acquisition candidate, on EmployeeHigh's own behalf or on behalf of any competitor, with which candidate the was, to High's actual knowledge after due inquiry, either called upon by Company (including the subsidiaries thereof) entered into substantive discussions or for which candidate the Company made an acquisition analysis, for the purpose of acquiring such entity; or
(v) disclose customersinduce or attempt to induce any person known by High to be a customer, whether current supplier, or proposed, business relation of the Company (to cease doing business with the Company or in any way interfere with the subsidiaries thereof) relationship between the Company and any person known by High to any personbe a customer, firmsupplier, partnershiplicensee, corporation or business for any reason or purpose whatsoeverrelation of the Company. Notwithstanding the above, the foregoing covenant covenants shall not be deemed to prohibit Employee High from acquiring as an investment not more than three five percent (35%) of the capital stock of a competing business, whose stock is traded on a national securities exchange or over-the-counter.
(b) Because of the difficulty of measuring economic losses to the Company as a result of a breach of the foregoing covenantcovenants, and because of the immediate and irreparable damage that could be caused to the Company for which it Company would have no other adequate remedy, Employee High agrees that the foregoing covenant covenants may be enforced by the Company in the event of breach by him High, by injunctions and restraining orders without the necessity of posting any bond therefororders.
(c) In the course of Employee’s employment with the Company, Employee will become exposed to certain of the Company’s confidential information and business relationships, which the above covenants are designed to protect. 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, subject to the following paragraph. 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 established 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 this paragraph 3, and in any event such new business, activities or location are not in violation of this paragraph 3 or of Employee's obligations under this paragraph 3, if any, 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 Section 4 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 that which the court deems reasonable, and the this Agreement shall thereby be reformed reformed.
(d) High acknowledges that the covenants in this Section 4 (i) are agreed to such extentby High as an inducement for and in consideration of the Company's entering into this Agreement, and (ii) contain limitations as to time, geographic area and scope of activity to be restrained that are reasonable and do not impose a greater restraint than is necessary to protect the goodwill or other business interests of Company.
(e) All High agrees that all of the covenants in this paragraph 3 Section 4 shall be construed as an agreement independent of any other provision in this Agreement, that Company shall be the beneficiary of and have the right to enforce such covenants, and that the existence of any claim or cause of action of Employee High 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 of two one (21) years year following Employee’s termination of employment set forth stated at the beginning of this paragraph 3Section 4, during which the agreements and covenants of Employee High made in this paragraph 3 Section 4 shall be effective, shall be computed by excluding from such computation any time during which Employee High is in violation of any provision of this paragraph 3Section 4.
Appears in 1 contract
Samples: Employment Agreement (Cytation Corp)
Non-Competition Agreement. (a) Subject to Section 3(aSections 5(d) and (e) and Section 12, Employee will 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 Agreementwith the Company, for any reason whatsoever, directly or indirectly, for himself or on behalf of or in conjunction with any other person, company, partnership, corporation, business or entity 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 selling any products or services in direct competition with the Company, within 100 miles of (i) the principal executive offices of the Company or (ii) any place to which the Company provides products or services or in which the Company (including the subsidiaries thereof) is in the process of initiating business operations during the term of this covenant (the "“Territory"”);
(ii) call upon, hire, attempt to hire, contact or solicit with respect to hiring (for Employee or on behalf of another) any person who is, at that time, or who has been within one (1) year prior to that time, an employee of the Company (including the subsidiaries thereof) in a managerial or sales capacity, provided that Employee shall be permitted to call upon and hire any member of his immediate family;
(iii) call upon, solicit, divert or take away or attempt to call upon, solicit, divert or take away 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 subsidiaries thereof) for the purpose of soliciting or selling products or services in direct competition with the Company;
(iv) call upon any prospective acquisition candidate, on Employee's ’s own behalf or on behalf of any competitor, with which candidate was either called upon by the Company (including the subsidiaries thereof) entered into substantive discussions or for which candidate the Company made an acquisition analysis, for the purpose of acquiring such entity; or
(v) disclose customers, whether current in existence or proposed, of the Company (or the subsidiaries thereof) to any person, firm, partnership, corporation or business for any reason or purpose whatsoever. Notwithstanding the above, the foregoing covenant shall not be deemed to prohibit Employee from acquiring as an investment not more than three percent (3%) of the capital stock of a competing business, whose stock is traded on a national securities exchange or over-the-counter.
(b) Because of the difficulty of measuring economic losses to 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 the Company for which it would have no other adequate remedy, Employee agrees that the foregoing covenant may be enforced by the Company in the event of breach by him by injunctions and restraining orders without the necessity of posting any bond therefor.
(c) In the course of Employee’s employment with the Company, Employee will become exposed to certain of the Company’s confidential information and business relationships, which the above covenants are designed to protect. It is agreed by the parties that the foregoing covenants in this paragraph Section 3 impose a reasonable restraint on Employee in light of the activities and business of the Company (including the Company's ’s subsidiaries) on the date of the execution of this Agreement and the current plans of the Company (including the Company's ’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 ’s subsidiaries) throughout the term of this covenant, whether before or after the date of termination of the employment of Employee, subject to the following paragraph. For example, if, during the Term of this Agreement, the Company (including the Company's ’s subsidiaries) engages in new and different activities, enters a new business or established 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 ’s subsidiaries), or similar activities or business in locations the operation of which, under such circumstances, does not violate clause (i) of this paragraph Section 3, and in any event such new business, activities or location are not in violation of this paragraph Section 3 or of Employee's ’s obligations under this paragraph Section 3, if any, Employee shall not be chargeable with a violation of this paragraph Section 3 if the Company (including the Company's ’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 Section 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 that the court deems reasonable, and the Agreement shall thereby be reformed to such extent.
(e) All of the covenants in this paragraph Section 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 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 of two (2) years following Employee’s employment set forth at the beginning of this paragraph Section 3, during which the agreements and covenants of Employee made in this paragraph Section 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 Section 3.
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Non-Competition Agreement. (a) Subject to Section 3(a) and Section 12, Employee High will not, during the period of his High's employment by or with the Company, and for a period of two one (21) years year immediately following the termination of his High's employment under this Agreement, for any reason whatsoever, directly or indirectly, for himself High or on behalf of or in conjunction with any other person, persons, company, partnership, corporation, corporation or business or entity of whatever nature:
(i) engage, as an officer, director, shareholderstockholder, owner, partner, joint venturer, or in a managerial managerial, consulting or advisory capacity, whether as an employee, independent contractor, consultant or advisor, or as a sales representative, in any business selling which offers any services or products or services in direct competition with Company within the Company, within 100 miles of (i) the principal executive offices of the Company or (ii) any place to which the Company provides products or services or in which the Company (including the subsidiaries thereof) is in the process of initiating business operations during the term of this covenant (the "Territory");
(ii) call upon, hire, attempt to hire, contact or solicit with respect to hiring (for Employee or on behalf of another) upon any person who is, at that time, or who has been within one (1) year prior to that timethe Territory, an employee of the Company (including the subsidiaries thereof) in a managerial capacity for the purpose or sales capacity, provided that Employee shall be permitted to call upon and hire any member with the intent of his immediate familyenticing such employee away from or out of the employ of Company;
(iii) call upon, solicit, divert or take away or attempt to call upon, solicit, divert or take away upon any person or entity which is, at that time, or which has been, within one (1) year prior to that time, a customer client of Company within the Company (including the subsidiaries thereof) Territory for the purpose of soliciting or selling products or services in direct competition with Company within the CompanyTerritory;
(iv) call upon any prospective acquisition candidate, on EmployeeHigh's own behalf or on behalf of any competitor, with which candidate the was, to High's actual knowledge after due inquiry, either called upon by Company (including the subsidiaries thereof) entered into substantive discussions or for which candidate the Company made an acquisition analysis, for the purpose of acquiring such entity; or
(v) disclose customersinduce or attempt to induce any person known by High to be a customer, whether current supplier, or proposed, business relation of the Company (to cease doing business with the Company or in any way interfere with the subsidiaries thereof) relationship between the Company and any person known by High to any personbe a customer, firmsupplier, partnershiplicensee, corporation or business for any reason or purpose whatsoeverrelation of the Company. Notwithstanding the above, the foregoing covenant covenants shall not be deemed to prohibit Employee High from acquiring as an investment not more than three one percent (31%) of the capital stock of a competing business, whose stock is traded on a national securities exchange or over-the-counter.
(b) Because of the difficulty of measuring economic losses to the Company as a result of a breach of the foregoing covenantcovenants, and because of the immediate and irreparable damage that could be caused to the Company for which it Company would have no other adequate remedy, Employee High agrees that the foregoing covenant covenants may be enforced by the Company in the event of breach by him High, by injunctions and restraining orders without the necessity of posting any bond therefororders.
(c) In the course of Employee’s employment with the Company, Employee will become exposed to certain of the Company’s confidential information and business relationships, which the above covenants are designed to protect. 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, subject to the following paragraph. 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 established 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 this paragraph 3, and in any event such new business, activities or location are not in violation of this paragraph 3 or of Employee's obligations under this paragraph 3, if any, 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 Section 4 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 that which the court deems reasonable, and the this Agreement shall thereby be reformed reformed.
(d) High acknowledges that the covenants in this Section 4 (i) are agreed to such extentby High as an inducement for and in consideration of the Company's entering into this Agreement, and (ii) contain limitations as to time, geographic area and scope of activity to be restrained that are reasonable and do not impose a greater restraint than is necessary to protect the goodwill or other business interests of Company.
(e) All High agrees that all of the covenants in this paragraph 3 Section 4 shall be construed as an agreement independent of any other provision in this Agreement, that Company shall be the beneficiary of and have the right to enforce such covenants, and that the existence of any claim or cause of action of Employee High 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 of two one (21) years year following Employee’s termination of employment set forth stated at the beginning of this paragraph 3Section 4, during which the agreements and covenants of Employee High made in this paragraph 3 Section 4 shall be effective, shall be computed by excluding from such computation any time during which Employee High is in violation of any provision of this paragraph 3Section 4.
Appears in 1 contract
